De Jesus v Sargents Pty Ltd - [2006] NSWWCCPD 328

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:De Jesus v Sargents Pty Ltd [2006] NSWWCCPD 328
APPELLANT:  Maria Ramos De Jesus
RESPONDENT:  Sargents Pty Ltd
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC9020-05
DATE OF REGISTRAR’S DECISION:             9 May 2006
DATE OF APPEAL DECISION:  29 November 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claims under Items 1.01, 2.04, 4.01 and 9.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003; disbursements – fees for medical reports and private investigator’s report.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: McCabe Partners Lawyers
Respondent: Gillis Delaney Lawyers

ORDERS MADE ON APPEAL: The Registrar’s determination of Ms De Jesus’ claim for costs in this matter, dated 9 May 2006, is amended in accordance with these reasons.

The Respondent, Sargents Pty Ltd, is to pay the Appellant, Ms De Jesus $385 inclusive of GST in respect of her costs in this appeal.

BACKGROUND TO THE APPEAL

On 6 June 2006, Maria Ramos De Jesus filed an appeal against a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 9 May 2006. The Respondent to the appeal is Sargents Pty Ltd. Sargents’ workers compensation insurer is QBE Workers Compensation (NSW) Ltd (‘QBE’). On 27 June 2006, QBE filed their response to the appeal. Ms De Jesus’ solicitors made further submissions received on 4 August 2006.

Ms De Jesus was born on 9 March 1970 and is aged 36. On 19 June 2002, she suffered a crush injury to her right hand while working as a process worker with Sargents at its premises in Colyton. On 8 December 2003, the Commission registered her ‘Application to Resolve a Dispute’ in respect of her claim for medical expenses and compensation for permanent impairment and pain and suffering. No ‘Reply’ was filed by QBE. On 9 March 2004, the Commission registered an agreement between the parties under section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’) whereby QBE agreed to pay $65,000 compensation under sections 66 and 67 of the 1987 Act in respect of a 25% whole person impairment, together with the “Applicant’s costs as agreed or assessed”.

On 10 June 2005, the parties having failed to agree on the costs payable, Ms De Jesus’ solicitors lodged an ‘Application for Assessment of Costs’ with the Commission in respect of their Bill of Costs dated 22 January 2004. QBE did not file submissions.

The Registrar delegated the assessment of costs to a Commission Arbitrator (‘the Delegate’) who made a determination dated 9 May 2006. The Certificate of Determination stated:

“1. Pursuant to the Registration of Section 66A Agreement dated 9 March 2006 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 $4,413.50.
3. There should…

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 328
Decision Date: 29 November 2006

CaseChat Overview and Summary

Maria Ramos De Jesus appealed against the Registrar's decision in relation to costs, specifically professional costs and disbursements, against Sargents Pty Ltd, her former employer, in the context of a workers compensation claim. The appeal was lodged following the Registrar's determination on 9 May 2006, which assessed Ms De Jesus' costs at $4,413.50. The key issues in dispute were whether the Delegate had correctly allowed certain professional costs and disbursements as per the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003.

The court reviewed various claims made by Ms De Jesus' solicitors, including costs for obtaining and reviewing medical reports, lodging applications with the Commission, and the costs of the assessment itself. Additionally, the court examined the claims for disbursements, specifically fees for medical reports and a private investigator’s report. The court found that while the Delegate had correctly allowed some costs, several claims were either disallowed or under-assessed. For instance, the court confirmed the allowance of $600 for obtaining and reviewing medical reports and $300 for lodging applications. However, it was determined that the Delegate should have allowed a portion of the costs of the assessment, amounting to $421.50 plus GST, and certain disbursements, including fees for medical reports and a portion of the private investigator’s report fee.

The Acting Deputy President concluded that the total costs should be increased by $2,435.65 to $6,849.15. The decision amended the Registrar's determination, ordering Sargents Pty Ltd to pay Ms De Jesus $385.00 inclusive of GST in respect of her costs in this appeal. This amount represented approximately one and a half hours of work.

Orders