Chakti v H&B Construction Services Pty Limited - [2006] NSWWCCPD 358

WORKERS COMPENSATION COMMISSION

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

CITATION:Chakti v H&B Construction Services Pty Limited [2006] NSWWCCPD 358
APPELLANT:  Fady Chakti
RESPONDENT:  H&B Construction Services Pty Limited
RESPONDENT’S INSURER:  CGU Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC12062-05
DATE OF REGISTRAR’S DECISION:             4 November 2005
DATE OF APPEAL DECISION:  20 December 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claim under Items 2.06, 4.08, 4.09, 4.12 and 10.01 of the Compensation Costs Table in Schedule 6 of the WorkersCompensation Regulation 2003; disbursements - investigator’s report and solicitor’s travel expenses.
PRESIDENTIAL MEMBER:  Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondent:   Moray & Agnew

ORDERS MADE ON APPEAL: 1. The Registrar’s determination of a Claim for Costs in this matter, dated 4 November 2005 is amended in accordance with these reasons.

2.H&B Construction Services Pty Limited is to pay Fady Chakti $275 inclusive of GST in respect of his costs of the appeal.

BACKGROUND

Substantive Proceedings

On 14 February 2005 Fady Chakti (‘Mr Chakti’) commenced proceedings in the Workers Compensation Commission (‘the Commission’) against H&B Construction Services Pty Limited (‘H&B Construction’) claiming weekly benefits compensation, medical and related expenses and lump sum compensation.

A teleconference was held with the parties on 26 April 2005 and as the matter was unable to be resolved it was set down for arbitration hearing on 18 May 2005. The Arbitrator issued a Certificate of Determination on 15 June 2005 wherein he certified that the matter was complex for the purposes of the Compensation Costs Table.

The parties did not agree on costs and Mr Chakti’s solicitor lodged an Application for Assessment of Costs on 20 July 2005.

The costs were determined by the Registrar’s delegate, a Commission Arbitrator (‘the Delegate’) on 4 November 2005. The decision is as follows:

“1.Pursuant to an order for costs made on 15 June 2005, the Respondent is liable to pay the Applicant’s costs as agreed or assessed.
2.The Applicant’s costs of the substantive proceedings are assessed in the sum of $10,807.45.
3.No order as to the costs of the assessment.
4.The Respondent is, therefore, to pay to the Applicant a total amount of $10,807.45, if those costs have not already been paid.”

On 25 November 2005 Mr Chakti lodged an appeal from the Delegate’s decision.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”

H&B Construction submit that the matter should be dealt with ‘on the papers’ whilst Mr Chakti is silent on this issue.

I have both the Commission file regarding the cost dispute and the appeal file. In addition I have the substantive file and am satisfied that I have sufficient information…

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 Chakti v H&B Construction Services Pty Limited

Details

AGLC: Chakti v H&B Construction Services Pty Limited [2006] NSWWCCPD 358
Case: [2006] NSWWCCPD 358
Decision Date: 20 December 2006

CaseChat Overview and Summary

Fady Chakti, the appellant, filed an appeal against the Registrar’s decision on the costs incurred in a workers compensation claim against H&B Construction Services Pty Limited, the respondent. The case involved an assessment of professional costs and disbursements, including the costs of a private investigator's report and solicitor's travel expenses. The appeal was heard by Acting Deputy President Julian Martin on the basis of submitted documentation, without the need for a formal hearing.

The primary legal issues the court needed to decide were whether the Registrar had erred in assessing the professional costs and disbursements. Specifically, the court examined claims under various items of the Compensation Costs Table, including Items 2.06, 4.08, 4.09, 4.12, and 10.01, as well as the costs associated with the private investigator's report and the solicitor's travel expenses. The court also needed to determine if the introduction of fresh evidence during the appeal was permissible under the applicable regulations.

The court found that the Registrar had not erred in disallowing certain claims for professional costs, as there was insufficient evidence provided to substantiate the claims. For instance, the claim under Item 2.06 was disallowed because no evidence of a request for review was presented. Regarding the disbursements, the court determined that while the claim for the private investigator's report was excessive, the disallowance of the worker's statement taken by the investigator was an error. The court allowed an additional $110 for this statement, bringing the total costs to $10,946.95. Furthermore, the court corrected the calculation error in the solicitor's travel expenses, allowing an additional $29.50.

In its final decision, the court amended the Registrar's determination, increasing the total costs by $139.50. Additionally, it ordered H&B Construction Services Pty Limited to pay Fady Chakti $275 inclusive of GST for the costs of the appeal. This amount was deemed appropriate given the partial success of the appeal.

Orders