Cranston v JA & BM Bowden & Sons Pty Ltd - [2007] NSWWCCPD 43

WORKERS COMPENSATION COMMISSION

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

CITATION:Cranston v JA & BM Bowden & Sons Pty Ltd [2007] NSWWCCPD 43
APPELLANT:  Pauline Anne Cranston
RESPONDENT:  JA & BM Bowden & Sons Pty Ltd
INSURER:GIO General Ltd
FILE NUMBER:  WCC5779-06
DATE OF REGISTRAR’S DECISION:             27 October 2006
DATE OF APPEAL DECISION:  9 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claims under Items 4.04, 4.07, 4.08, 4.12, 5.02, 9.01 and 10.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003; disbursements – agency fees and fees for private investigator’s reports.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondent:   Sparke Helmore Lawyers

ORDERS MADE ON APPEAL: The decision of the Registrar dated 27 October 2006 is amended in accordance with these reasons.

The Respondent, JA & BM Bowden & Sons Pty Ltd is to pay the Appellant, Ms Cranston $165 inclusive of GST in respect of her costs of the appeal.

BACKGROUND

On 8 September 2006, Pauline Cranston filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator. The Respondent to the appeal JA & BM Bowden & Sons Pty Ltd (‘Bowdens’) and Bowdens’ workers compensation insurer is GIO General Ltd (‘GIO’). On 28 September 2006, GIO lodged a Notice of Opposition to the appeal.

Ms Cranston was born on 22 February 1951 and is aged 55. She worked as a manager for Bowdens on a fruit farm at Batlow. Ms Cranston lodged a claim for workers compensation in respect of an injury to her back, right leg and sexual organs on 1 February 1999 and as a result of the nature and conditions of her employment between 1996 and 1 February 1999.

On 19 May 2004, the Commission registered Ms Cranston’s ‘Application to Resolve a Dispute’ in respect of her claim for compensation for permanent impairment and pain and suffering. On 9 June 2004, GIO filed a ‘Reply’. On 13 September 2004, an Arbitrator conducted a teleconference with the parties following which he referred Ms Cranston to two Approved Medical Specialists (‘AMSs’), Dr James Bodel, Orthopaedic Surgeon, and Dr Edward Korbel, Urologist, for examination and assessment. Their Medical Assessment Certificates (‘MACs’) were issued on 24 June 2005. On 7 July 2005, Ms Cranston’s solicitors lodged an appeal against the medical assessment made by Dr Bodel, which was referred to a Medical Appeal Panel. On 17 November 2005, the Appeal Panel revoked Dr Bodel’s MAC and issued a new MAC.

On 7 December 2005, the Arbitrator conducted a further teleconference with the parties during the course of which the parties came to an agreed resolution of the issues in dispute. On 12 December 2005, the Arbitrator issued a Certificate of Determination in the following terms:

“1. In relation to the Applicant’s claim pursuant to section 66 the Respondent agrees to pay pursuant…

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: [2007] NSWWCCPD 43
Decision Date: 9 February 2007

CaseChat Overview and Summary

Pauline Anne Cranston appealed against the Registrar’s assessment of costs in proceedings for workers compensation, following a decision of the Commission Arbitrator, against the Respondent JA & BM Bowden & Sons Pty Ltd and the insurer, GIO General Ltd. Ms Cranston claimed the Registrar erred in his assessment of professional costs and disbursements. The Acting Deputy President, Robin Handley, considered the appeal on the papers and allowed certain claims. He found that Ms Cranston's solicitors were entitled to $120 under Item 4.04 of the Compensation Costs Table for lodging objections to subpoenas, $50 under Item 4.07 for reviewing the AMS reports, and $190 under Item 4.12 for reporting on the outcome of the second teleconference. The Acting Deputy President rejected the remainder of the appeal and confirmed the Registrar’s determination. The costs of the appeal were assessed at $165 inclusive of GST, payable by the Respondent.

Orders