Dring v Kurmala Home and anor
[2006] NSWWCCPD 250
•29 September 2006
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 in the form approved by the Commission and be accompanied by the fee approved by the Commission from time to time.
(3)After deciding the question the subject of the appeal, the Commission constituted by a Presidential member may, unless it affirms the Registrar’s decision:
(a) make such determination in relation to the application as, in its opinion, should have been made by the Registrar, or
(b) remit its decision on the question to the Registrar and order the Registrar to re-determine the application.
(4)On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.”
GROUNDS OF APPEAL
The Appellant Worker challenges the Registrar’s decision on the grounds that the Registrar erred in:
(a)not allowing the 50% multiplier in relation to the determination in respect of Clause 5 of Schedule 6 of the Workers Compensation Regulation 2003 (‘the Regulation’) (‘Clause 5 Schedule 6’), and
(b)not allowing the maximum of $187.50 for instructing an agent under item 10.01 (‘item 10.01’).
SUBMISSIONS AND FINDINGS
Background
The substantive proceedings in this matter involved a claim for lump sum compensation and for hospital and medical expenses against two employers in respect of separate injuries. Each employer was separately insured and represented. Preliminary letters of claim were sent on 15 June, 25 July and 4 August 2005. On 31 August 2005 an Application to Resolve a Dispute was filed in the Commission joining the two Respondents. Each Respondent filed a Reply.
At a teleconference held on 19 November 2005 the parties were able to settle the claim. The settlement provided for the claims to be withdrawn and an agreement to be filed pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’). The Respondents were ordered to pay the Appellant Worker’s costs. That agreement was filed on 20 December 2005. It provided for the payment of lump sum compensation by the First Respondent under section 66 of the 1987 Act in the sum of $6,900.00 in respect of 11.5% permanent impairment of the back and $1,875.00 by the Second Respondent in respect of 1.5% whole person impairment.
The attempts to resolve the Appellant Worker’s claim for costs were unsuccessful.
Clause 5 Schedule 6
This clause provides:
“5 Costs where multiple insurers party to claim
If more than one insurer (or any combination of insurers) is a party to a claim or a dispute or other matter in relation to a claim, the maximum costs in respect of the matter are the total of the following:
(a) the costs for the matter calculated in accordance with the table,
(b) 50% of that amount per party (other than the party who made the claim),
and payment of the costs is to be shared equally among the insurers who are parties to the matter.
Note. Clause 81 provides that in Part 19 (Costs) and Schedules 6 and 7, the term insurer includes an employer.”
The Registrar allowed the sum of $1,250.00 under this clause. This figure was the sum submitted by the Respondents as being appropriate. The Appellant Worker submits that it is not in the interests of justice for the Registrar to accept a figure proposed by the Respondents without being clear on how such a figure was arrived at.
It is also submitted that the Registrar has failed to propose a figure in percentage terms consistent with the legislation which states ‘50%’. It is argued that the Registrar’s reliance on Dunn v Port Macquarie RSL Club Ltd [2004] NSWWCCPD 33 (‘Dunn’) failed to acknowledge the significant factual differences between that case and the present matter. That difference is said to be that in Dunn there was only one employer and in the present matter there are two employers. It is true that in Dunn there was only one employer, but there were four insurers. Therefore, the factual differences between Dunn and the present case are not decisive.
The principles to be applied in multiple party claims were discussed in detail in Dunn where it was held at [34] and [35] that:
“34. To claim that the total of the costs claimed by the Appellant be multiplied by four also ignores the fact that, as the Registrar’s delegate notes in the reasons, the matter was not overly complicated by joining the further three insurers to the claim as each insurer was on risk for a different period, but with the same employer/Respondent.
35. In my view the Registrar has an overriding discretion to award costs in accordance with what is fair and reasonable for the work performed. When considering the application of Clause 5 of Schedule 6 of the Regulation the ramifications for the costs incurred, in joining multiple insurers, must be taken into account.”
In assessing costs the Registrar must apply Clause 110 of the Regulation. That Clause requires the Registrar to consider:
“(a)whether or not it was reasonable to carry out the work to which the costs relate, and
(b)what is a fair and reasonable amount of costs for the work concerned.”
Clause 5 of Schedule 6 does not require that because of the presence of multiple parties the increase in costs must be 50%. The reference to 50% “per party” in Clause 5 is a reference to the “maximum costs in respect of the matter”. It is not a percentage that is allowed automatically regardless of the nature of the claim or the reasonableness of the costs incurred.
In the present matter the Registrar considered the evidence in support of the claim under Clause 5 and concluded at [45] of his Statement of Reasons for Decision (‘Reasons’) that:
“…some additional time was required in considering documentation, correspondence, communications with parties and their solicitors, additional procedural steps, additional conferences and additional work to prepare the matter, gather evidence, give advice and take instructions.”
After considering the above matters he then noted that the sum of $1,250.00 allowed for an additional five hours work which, in his opinion, was “a generous concession” by the Respondents and he “would certainly not allow any more”.
In my opinion the Registrar correctly applied Clause 5 Schedule 6 and the principles discussed in Dunn. I see no error of law in his approach, Reasons or in the exercise of his discretion.
Item 10.01
The amount claimed under this heading was $187.50. The Registrar allowed $62.50. This amount was within the Registrar’s discretion and discloses no error of law.
DECISION
The decision of the Registrar is confirmed.
Pursuant to Clause 120 of the Regulation I suspend the operation of the Registrar’s decision until the date of this decision.
COSTS
No order as to costs of the appeal.
Bill Roche
Acting Deputy President
29 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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