Dring v Kurmala Home and anor - [2006] NSWWCCPD 250

WORKERS COMPENSATION COMMISSION

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

CITATION:Dring v Kurmala Nursing Home and anor [2006] NSWWCCPD 250
APPELLANT:  Michelle Dring
FIRST RESPONDENT:  Kurmala Nursing Home
SECOND RESPONDENT:  New Horizons Enterprises Ltd
FIRST RESPONDENT’S INSURER:                 GIO General Limited
SECOND RESPONDENT’S INSURER:            QBE Workers Compensation (NSW) Limited
FILE NUMBER:  WCC21231-05
DATE OF REGISTRAR’S DECISION:             20 March 2006
DATE OF APPEAL DECISION:  29 September 2006
SUBJECT MATTER OF DECISION: Clause 5 Schedule 6 of the Workers Compensation Regulation 2003
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant: Steve Walker & Associates
FirstRespondent: Phillips Fox
Second Respondent: No Appearance

ORDERS MADE ON APPEAL: The decision of the Registrar dated 20 March 2006 is confirmed.

Pursuant to Clause 120 of the Workers Compensation Regulation 2003 I suspend the operation of the Registrar’s decision until the date of this decision.
No order as to costs of the appeal.

BACKGROUND

On 22 March 2006 Michelle Dring (‘the Appellant Worker’) filed an appeal against an assessment of costs made by the Registrar’s delegate in proceedings determined by a Commission Arbitrator.

The Respondents to the Appeal are Kurmala Nursing Home and New Horizons Enterprises (‘the Respondent Employers’).

The Registrar’s decision, by her delegate, a Commission Arbitrator, made on 20 March 2006, is as follows:

“1.   Pursuant to an order for costs, the Respondents are liable to pay the Applicant’s costs as agreed or assessed in the substantive proceedings (WCC14807-05).
2.   The Applicant’s costs of the substantive proceedings are assessed in the sum of $6,970.25.
3.   The Respondents are to pay the Applicant’s costs of the assessment in the sum of $275.00.
4.   The Respondents are, therefore, to pay to the Applicant a total amount of $7,245.25, if those costs have not already been paid.”

ON THE PAPERS

Section 354(6) of 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.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the First Respondent that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

PRELIMINARY

An appeal from a decision of the Registrar or his delegate is under clause 119 of the Workers Compensation Regulation 2003 (‘the Regulation’). Clause 119 provides:

“119Appeal against decision of Registrar as to matter of law
(1)A party to an application who is dissatisfied with a decision of the Registrar as to a matter of law arising in the proceedings to determine the application may, in accordance with the Rules of the Commission, appeal to the Commission constituted by a Presidential member against the decision.
(2)The appeal is to be…

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.

Keep reading for free

Create a free CaseChat account to read Dring v Kurmala Home and anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWWCCPD 250
Decision Date: 29 September 2006

CaseChat Overview and Summary

In Dring v Kurmala Nursing Home and anor, Michelle Dring, the appellant worker, lodged an appeal against a decision of the Registrar regarding costs in workers compensation proceedings. The first respondent, Kurmala Nursing Home, and the second respondent, New Horizons Enterprises, were the employers involved. The Registrar had assessed the costs incurred during the substantive proceedings, determining that the respondents were liable for the appellant's costs. The Registrar also allowed a sum for additional costs due to the presence of multiple insurers and limited the amount for instructing an agent under a specified item. The appellant contested these decisions, arguing that the Registrar should have applied a 50% multiplier and allowed the maximum amount for instructing an agent.

The legal issues before the court were whether the Registrar erred in not applying a 50% multiplier for the costs in the presence of multiple insurers and not allowing the maximum amount for instructing an agent. The court considered the relevant provisions of the Workers Compensation Regulation 2003 and the principles established in Dunn v Port Macquarie RSL Club Ltd. The court noted that while Clause 5 of Schedule 6 allows for a 50% increase in costs for each party other than the one who made the claim, this does not mean that the increase must automatically be applied. The Registrar had discretion to determine what was fair and reasonable, and the court found no error in the Registrar's application of this discretion. Regarding the amount claimed for instructing an agent, the Registrar had the discretion to determine a reasonable amount, and the court found that the Registrar's decision was within the allowed parameters.

The Acting Deputy President, Bill Roche, confirmed the decision of the Registrar. The court held that the Registrar correctly applied the relevant legal principles and exercised his discretion appropriately. The decision of the Registrar was thus upheld, and the appeal was dismissed. The Acting Deputy President suspended the operation of the Registrar's decision until the date of the appeal decision, and no order was made regarding the costs of the appeal.

Orders