Eyles v Patrick Stevedores No 1 Pty Ltd - [2007] NSWWCCPD 51

WORKERS COMPENSATION COMMISSION

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

CITATION:Eyles v Patrick Stevedores No 1 Pty Ltd [2007] NSWWCCPD 51
APPELLANT:  Edward Eyles
RESPONDENT:  Patrick Stevedores No 1 Pty Ltd
INSURER:Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER:  WCC7081-06
DATE OF REGISTRAR’S DECISION:             17 August 2006
DATE OF APPEAL DECISION:  14 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claims under Items 2.07 and 2.08 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:      Turner Freeman Lawyers
Respondent:   Allianz Australia Workers’ Compensation (NSW) Ltd

ORDERS MADE ON APPEAL: The decision of the Registrar dated 17 August 2006 is confirmed.

There is no order as to the costs of this appeal.

BACKGROUND

On 15 September 2006, Edward Eyles filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator. The Respondent to the appeal is Patrick Stevedores No 1 Pty Ltd (‘Patricks’). Patricks’ workers compensation insurer is Allianz Australia Workers’ Compensation (NSW) Ltd (‘Allianz’). Neither Patricks nor Allianz have lodged a Notice of Opposition or any submissions in reply.

Mr Eyles was born on 12 January 1936 and is aged 71. He claimed workers compensation for weekly payments, medical expenses, and permanent impairment and pain and suffering in respect of severe facial and bodily disfigurement associated with skin cancers caused by exposure to sunlight. By letter dated 24 November 2005, the Commission notified the parties that following settlement of the issues in dispute, the Commission had registered a section 66A lump sum agreement between the parties pursuant to which Patricks was to pay compensation to Mr Eyles for 14% whole person impairment in the amount of $18,500, together with $8,500 for pain and suffering, and costs as agreed or assessed.

On 8 May 2006, the parties having failed to agree on the costs payable, Mr Eyles’ solicitors lodged an ‘Application for Assessment of Costs’ with the Commission. Allianz filed its submissions in reply on 1 June 2006. The Registrar delegated the assessment of costs to an Arbitrator (‘the Delegate’) who made a determination dated 17 August 2006. The Certificate of Determination stated:

“1. Pursuant to Agreement and Order dated 24 November 2005, the Respondent employer is liable to pay the Applicant’s costs of the Application as agreed or assessed.
2. The Applicant’s costs of the proceedings assessed in the sum of $4,467.00 (inclusive of GST) are determined as fair and reasonable.
3. The Respondent is to pay the amount of $4,467.00 to the Applicant if those costs have not already been paid
4. That there be no order as to the costs of the assessment.”

The relevant parts of the Delegate’s Statement of Reasons for his decision are referred to below under the heading ‘Submissions, Discussion and Findings’.

ISSUES IN DISPUTE

Mr Eyles’ solicitors submit the Delegate erred in…

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 51
Decision Date: 14 February 2007

CaseChat Overview and Summary

The case of Eyles v Patrick Stevedores No 1 Pty Ltd involved an appeal by Edward Eyles against the Registrar’s decision regarding costs in workers compensation proceedings. The dispute centred around the costs claimed by Mr Eyles’ solicitors for agreeing terms of settlement with the insurer, specifically under Items 2.07 and 2.08 of the Compensation Costs Table in the Workers Compensation Regulation 2003. The key legal issue was whether Mr Eyles’ solicitors were entitled to claim professional costs under both items, given that they related to the settlement of two different claims: one for medical expenses under section 60 of the Workers Compensation Act 1987, and another for compensation under sections 66 and 67 of the same Act.

The Acting Deputy President of the Workers Compensation Commission reviewed the submissions made by Mr Eyles’ solicitors and the insurer, Allianz Australia Workers’ Compensation (NSW) Ltd. The Delegate had previously disallowed the claims under both Items 2.07 and 2.08, finding that it would not be fair and reasonable to allow recovery of costs under both, as this would involve compensating for the same legal work twice. The Acting Deputy President agreed with this assessment, noting that the Regulation’s intention was not to encourage the making of separate claims for different types of compensation to enable the recovery of additional costs. The President concluded that allowing costs under both items would not align with the objects of a fair, affordable, and financially viable workers compensation system. Therefore, the Acting Deputy President confirmed the Registrar’s decision.

In summary, the appeal was dismissed, and the decision of the Registrar dated 17 August 2006 was upheld. There was no order regarding the costs of the appeal.

Orders