Calleja v Real Foods Pty Limited - [2006] NSWWCCPD 175

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Calleja v Real Foods Pty Limited [2006] NSWWCCPD 175
APPELLANT:  Francisco Javier Calleja
RESPONDENT:  Real Foods Pty Limited
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER:  WCC16446-04
DATE OF REGISTRAR’S DECISION:             13 April 2005
DATE OF APPEAL DECISION:  4 August 2006
SUBJECT MATTER OF DECISION: Costs; whether cost of investigator’s report necessary or reasonably incurred under Schedule 3 Legal Profession Regulation 2005
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners
Respondent:    No Appearance

ORDERS MADE ON APPEAL: Paragraphs 2 and 4 of the decision of the Registrar’s delegate dated 13 April 2005 are revoked and the following orders made in their place:

“2.The Applicant’s costs of the proceedings are assessed at $5,983.11.
4. The Respondent is to pay the amount of $5,983.11 to the Applicant if those costs have not already been paid.”
No order as to costs of the appeal.

BACKGROUND

On 5 May 2005 Francisco Javier (‘the Appellant Worker’) filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator.

The Respondent to the Appeal is Real Foods Pty Ltd (‘the Respondent Employer’).

The Registrar’s decision by her delegate, a Commission Arbitrator, made on 13 April 2005, is as follows:

“ 1.   Pursuant to an Agreement dated 29 June 2004 the Respondent employer is liable to pay the Applicant’s costs of the proceedings as agreed or assessed.
2.   The Applicant’s costs of the proceedings are assessed as $3,566.36.
3.   The Applicant’s costs of the assessment are not allowed.
4.   The Respondent is to pay the amount of $3,566.36 to the Applicant if those costs have not already been paid.”

ON THE PAPERS

Section 354(6) of the 1998 Act provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the Appellant Worker, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

QBE Workers Compensation (NSW) Limited (‘QBE’) was served with the appeal papers on 11 May 2005 (Certificate of Service filed 17 May 2005) but has filed no documents and made no submissions in the appeal.

PRELIMINARY

An appeal from a decision of the Registrar or his delegate is under clause 119 of the Workers Compensation Regulation 2003 (‘the Costs Regulation’). Clause 119 provides:

“119Appeal against decision of Registrar as to matter of law
(1)A party to an application who is dissatisfied with a decision of the Registrar as to a matter of law arising in the proceedings to determine the application may, in accordance with the Rules of the Commission, appeal to the Commission constituted by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Calleja v Real Foods Pty Limited

Details

AGLC: Calleja v Real Foods Pty Limited [2006] NSWWCCPD 175
Case: [2006] NSWWCCPD 175
Decision Date: 4 August 2006

CaseChat Overview and Summary

Francisco Javier Calleja appealed against a decision of the Registrar regarding the costs in proceedings determined by a Commission Arbitrator. The appeal was against the decision of the Registrar's delegate dated 13 April 2005, which assessed the costs of the proceedings at $3,566.36. The Respondent Employer, Real Foods Pty Ltd, did not appear or make any submissions during the appeal. The appeal was heard on the papers, and the Acting Deputy President, Bill Roche, found that there was sufficient information to proceed without a formal hearing.

The legal issues in the appeal were whether the Registrar's delegate made errors in the assessment of costs, particularly in relation to the cost of an investigator's report, agency fees, and lost wages expenses. The Appellant Worker argued that the Registrar's delegate had erred in various aspects of the costs assessment. The Acting Deputy President examined each of these issues and found that there was no error of law in the Registrar's delegate's assessment of costs for the request for a review of the claim from the insurer and the teleconferences. However, the Acting Deputy President found that the Registrar's delegate had erred in law by not applying the relevant provisions of the Legal Profession Regulation 2005 when assessing the cost of an investigator's report.

The Acting Deputy President concluded that the cost of an investigator's report should have been assessed under the Legal Profession Regulation 2005 rather than the Workers Compensation Regulation 2003. The Acting Deputy President allowed the Appellant Worker $100.00 (plus GST of $10.00) for the investigator's report to account for the time taken to take a statement from the Appellant Worker, given that the investigator was not a legal practitioner and the statement was taken over the phone. The Acting Deputy President also noted that the Registrar's delegate had made an error in the calculation of costs and that the correct assessment, including GST, should be $5,983.11. The Acting Deputy President revoked the previous decision and ordered the Respondent Employer to pay the Appellant Worker $5,983.11 if those costs had not already been paid. The Acting Deputy President made no order as to costs of the appeal.

Orders