Dixon v National Engineering Pty Ltd - [2006] NSWWCCPD 300

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Dixon v National Engineering Pty Ltd [2006] NSWWCCPD 300
APPELLANT:  Matthew Dixon
RESPONDENT:  National Engineering Pty Ltd
INSURER:Royal & Sun Alliance Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC 8813-05
DATE OF ARBITRATOR’S DECISION:          25 October 2005
DATE OF APPEAL DECISION:  8 November 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs; agency fees and fee for investigator’s report; claims under Items 2.05, 9.01 and 10.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: McCabe Partners Lawyers
Respondent: Royal & Sun Alliance Workers Compensation (NSW) Ltd

ORDERS MADE ON APPEAL: The Registrar’s determination of Mr Dixon’s claim for costs in this matter, dated 25 October 2005, is amended in accordance with these reasons.

The Respondent, National Engineering Pty Ltd, is to pay the Appellant, Mr Dixon $275.00 inclusive of GST in respect of his costs in this appeal.

BACKGROUND TO THE APPEAL

On 8 November 2005, Matthew Dixon filed an appeal against a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 25 October 2005. The Respondent to the appeal is National Engineering Pty Ltd, whose workers compensation insurer is Royal & Sun Alliance Workers Compensation (NSW) Ltd (‘Royal & Sun Alliance’). Neither National Engineering nor Royal and Sun Alliance have responded to service of the appeal, nor made submissions in relation thereto.

Mr Dixon was born on 23 March 1969 and is aged 37. He was employed by National Engineering as a labourer in Young between 1997 and 2000. Mr Dixon claims to have injured his right thumb in the course of his employment on 25 February 1998 and 7 March 1998. By letter dated 23 December 2002, Mr Dixon’s solicitors made a claim on his behalf against Royal and Sun Alliance for (1) compensation for permanent impairment, and (2) medical expenses.

The Commission registered Mr Dixon’s ‘Application to Resolve a Dispute’ on 25 March 2003. National Engineering’s ‘Reply’ was filed on 15 April 2003, nominating medical and legal issues in dispute, especially permanent impairment, but not factual issues. At a first teleconference conducted by an arbitrator on 7 July 2003, the parties came to an agreed resolution of the issues in dispute whereby National Engineering agreed to pay Mr Dixon $6,000 in respect of the permanent impairment of his right thumb, together with costs as agreed or assessed. The Commission subsequently issued a Certificate of Determination reflecting these terms dated 21 July 2003.

The parties being unable to agree to the costs payable, on 8 June 2005, Mr Dixon’s solicitors lodged an ‘Application for Assessment of Costs’ with the Commission in respect of their Bill of Costs dated 13 August 2003. Royal & Sun Alliance was invited to make submissions but did not do so.

The Registrar delegated the assessment to a Commission Arbitrator…

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 300
Decision Date: 8 November 2006

CaseChat Overview and Summary

In the Workers Compensation Commission, Matthew Dixon has appealed against a decision of the Registrar concerning costs in his workers compensation claim against National Engineering Pty Ltd. The appeal involves the assessment of costs as agreed or assessed under the Workplace Injury Management and Workers Compensation Act 1998 and the Workers Compensation Regulation 2003. Dixon's solicitors argue that the Arbitrator made errors in disallowing certain professional costs and disbursements. The appeal was determined 'on the papers', given the lack of submissions from National Engineering and Royal & Sun Alliance.

The court had to determine whether the Arbitrator made any errors of law in disallowing certain costs claimed by Dixon's solicitors. The grounds of appeal included claims under Items 2.05, 9.01, and 10.01 of the Compensation Costs Table, as well as claims for agency fees and a private investigator's report. The Arbitrator had disallowed these claims on the basis that they were not fairly or reasonably claimable in the circumstances of the matter. The court examined these claims in detail, considering whether the Arbitrator's decisions were in line with legislative provisions and relevant case law.

The court found that the Arbitrator's disallowance of the claim under Item 2.05 was correct, as it did not permit a claim for briefing a factual investigator to obtain a worker's statement. Regarding Item 9.01, the court determined that Dixon's solicitors were entitled to some compensation for preparing the application for assessment, and allowed $375.00 (plus GST) for this work. The claim under Item 10.01 was also disallowed, as it did not provide a basis for the asserted agency attendance. In relation to disbursements, the Arbitrator's disallowance of the agency filing fees was confirmed, but the photocopying fees were deemed reasonable and should have been allowed. The claim for the private investigator's report was also disallowed, as the court did not find that a factual investigation was reasonably necessary in this relatively straightforward matter.

The court concluded that the Arbitrator's award of $6,019.00 should be increased by $525.00 to $6,544.00. Given the partial success of Dixon's appeal, the court ordered that National Engineering pay Dixon's costs in the sum of $275.00 inclusive of GST, representing approximately one hour of work.

Orders