Chapman v Gosford City Council - [2006] NSWWCCPD 4

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Chapman v Gosford City Council [2006] NSWWCCPD 4
APPELLANT:  Allan Chapman
RESPONDENT:  Gosford City Council
INSURER:Gosford City Council
FILE NUMBER:  WCC 3677-04
DATE OF REGISTRAR’S DECISION:             16 September 2004
DATE OF APPEAL DECISION:  23 January 2006
SUBJECT MATTER OF DECISION: Appeal against Registrar’s determination in respect of costs, whether maximum costs specified in Schedule 6 of the Workers Compensation Regulation 2003 are inclusive of GST.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: Whitelaw McDonald, Solicitors
Respondent: Hunt & Hunt, Lawyers

ORDERS MADE ON APPEAL: The Registrar’s determination of Mr Chapman’s claim for costs is confirmed.
No order is made as to the costs of the appeal.

BACKGROUND TO THE APPEAL

On 8 October 2004, Allan Chapman filed an appeal against a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) dated 16 September 2004. The Respondent to the appeal is Gosford City Council, a self-insurer under the Workers Compensation Act 1987 (‘the 1987 Act’).

The dispute to which the costs determination relates was finalised in the Commission on 15 December 2003 by registration of an ‘Agreement to Discontinue Proceedings in the Commission’, pursuant to section 66A of the 1987 Act. The parties’ terms of settlement included an agreement that the Council pay Mr Chapman’s costs as agreed or assessed.

The parties having failed to come to an agreement as to costs, on 27 February 2004, Mr Chapman applied to the Registrar for an assessment of costs. The Registrar delegated the assessment to a Commission Arbitrator who made a determination dated 16 September 2004. The Certificate of Determination stated:

“1. Pursuant to an Agreement registered with the Commission on 15 December 2003 the Respondent Employer is liable to pay the Applicant’s costs of the proceedings as agreed or assessed.
1. [sic] The Respondent agreed to pay the Applicant’s costs as agreed or assessed.
2. The Applicant’s disputed costs of the substantive proceedings are assessed in the sum of $4,226.30, which sum includes GST.
3. No order as to costs.
4. The Respondent is, therefore, to pay to the Applicant a total amount of $4,226.30, which sum includes GST.”

In his ‘Statement of Reasons for Decision’, the Arbitrator found:

“the negotiations in the correspondence were without prejudice, and the Respondent is entitled to put all or any of the items claimed in issue in the assessment. I invited the Applicant to make any further submissions it wished, in respect of the disputed items, but he did not take the opportunity to do so.”

The Arbitrator then addressed the disputed items, setting out his reasons for allowing or disallowing each, and summarising his decision in an attached schedule.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act states:

“(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…

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.

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Details

Case: [2006] NSWWCCPD 4
Decision Date: 23 January 2006

CaseChat Overview and Summary

In Chapman v Gosford City Council, the appellant, Allan Chapman, appealed against a decision of the Registrar in relation to costs, specifically whether the maximum costs specified in Schedule 6 of the Workers Compensation Regulation 2003 were inclusive of GST. The respondent, Gosford City Council, a self-insurer under the Workers Compensation Act 1987, opposed the appeal. The case was heard on the papers by Acting Deputy President Robin Handley. The primary legal issue was whether the Arbitrator, acting as a delegate of the Registrar, erred in law by including GST in the maximum costs specified in the Compensation Costs Table of Schedule 6.

Deputy President Handley found that the Arbitrator did not err in law. Firstly, the Arbitrator's alleged failure to consider Mr Chapman’s solicitors’ submissions was not a breach of procedural fairness as there was no evidence that the Arbitrator was aware of the submissions. Secondly, the Arbitrator correctly found that the negotiations were "without prejudice" as the Council's correspondence was marked as such and intended to permit the Council to draw attention to their correspondence as evidence of their willingness to try and reach an agreement on costs incurred in relation to the substantive matters. Finally, the Arbitrator correctly decided that the Compensation Costs Table in Schedule 6 of the 2003 Regulation provides for amounts inclusive of GST. The ordinary meaning of the wording of clause 84 of the 2003 Regulation indicates that the maximum amount allowable for a particular activity or event in the Compensation Costs Table must be interpreted as being inclusive of GST.

Deputy President Handley concluded that Mr Chapman's solicitors had not made out any error of law by the Arbitrator. The Registrar’s determination of Mr Chapman’s claim for costs was confirmed, and no order was made as to the costs of the appeal as the claim was not found to be frivolous or vexatious, fraudulent or made without proper justification.

Orders