Fieldsend v Gail Geddes and Ian David Geddes trading as Warranboo Partnership

WORKERS COMPENSATION COMMISSION

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

CITATION:Fieldsend v Gail Geddes & Ian David Geddes t/as Warranboo Partnership [2007] NSWWCCPD 16
APPELLANT:  Bruce Ian Fieldsend
RESPONDENT:  Gail Geddes & Ian David Geddes t/as Warranboo Partnership
INSURER:Gallagher Bassett Services (formerly Allianz Australia Workers Compensation (NSW) Limited)
FILE NUMBER:  WCC12421-05
DATE OF REGISTRAR’S DECISION:             20 December 2005
DATE OF APPEAL DECISION:  17 January 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claim under Items 2.05, 2.06, 4.04, 4.08 and 4.12 of the Compensation Costs Table in Schedule 6 of the WorkersCompensation Regulation 2003; disbursements - investigator’s report.
PRESIDENTIAL MEMBER:  Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondent:   Goldbergs Lawyers

ORDERS MADE ON APPEAL: 1. The decision of the Registrar dated 20 December 2005 is confirmed.
2.No order as to costs of the appeal.

BACKGROUND

Substantive Proceedings

On 10 December 2004 Bruce Ian Fieldsend (‘Mr Fieldsend’) commenced proceedings in the Workers Compensation Commission (‘the Commission’) against Gail Geddes & Ian David Geddes t/as Warranboo Partnership (‘Warranboo Partnership’) claiming medical and related expenses and lump sum compensation.

A teleconference was held with the parties on 28 June 2005 when the matter resolved. A Certificate of Determination was issued on 29 June 2005 which included an order that Warranboo Partnership pay Mr Fieldsend’s “costs as agreed or assessed”.

The parties did not agree on costs and Mr Fieldsend’s solicitor lodged an Application for Assessment of Costs on 26 July 2005.

The costs were determined by the Registrar’s delegate, a Commission Arbitrator (‘the Delegate’) on 20 December 2005. The decision is as follows:

“1. Pursuant to An Order 29 June 2005 the Respondent employer is liable to pay the Applicant’s costs of the proceedings as agreed or assessed.
2.The Applicant’s costs of the proceedings are assessed at $6,206.00.
3.The Applicant’s costs of the assessment are not allowed.
4.The Respondent is to pay the amount of $6,206.00 to the Applicant if those costs have not already been paid.”

On 23 January 2006 Mr Fieldsend lodged an appeal from the Delegate’s decision.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”

Warranboo Partnership submit that the matter should be dealt with ‘on the papers’ whilst Mr Fieldsend is silent on this issue.

I have both the Commission file regarding the cost dispute and the appeal file. In addition I have the substantive file and 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.

ISSUES IN DISPUTE

Mr Fieldsend’s solicitor submits that the Delegate erred in relation to professional costs…

CaseChat Overview and Summary

In this workers compensation matter, Bruce Ian Fieldsend (the appellant) appealed the Registrar’s decision in relation to costs, which was determined by a Commission Arbitrator. The Registrar had ordered Warranboo Partnership (the respondent) to pay Mr Fieldsend’s costs as agreed or assessed. The parties were unable to agree on the costs, leading to the appellant lodging an Application for Assessment of Costs. The Arbitrator assessed the costs at $6,206.00, disallowing some professional costs and the costs of a private investigator’s report. The appellant challenged the Arbitrator’s decision, arguing that it contained errors of law and that the Delegate had not exercised his discretion fairly and lawfully.

The legal issues in dispute were whether the Arbitrator erred in relation to certain professional costs and the claim for the private investigator’s report. The appellant’s submissions focused on the alleged errors of law and the Delegate’s discretion. The respondent, on the other hand, argued that the appeal was lodged outside the statutory time limit and that the appeal was only in relation to the assessment of costs, not a claim for compensation. The respondent also argued that the appeal was procedurally flawed.

The Acting Deputy President reviewed the submissions and the relevant legislation, including the Workers Compensation Regulation 2003 and the Legal Profession Act 2004. The Acting Deputy President found that the Arbitrator did not err in law or in the exercise of his discretion. The Arbitrator had considered the nature of the proceedings and the issues involved, and the costs claimed were not reasonably necessary. The Acting Deputy President also found that the Delegate did not err in disallowing the costs of the private investigator’s report. The Appellant’s submissions regarding the Delegate’s use of terminology were not accepted, as the Delegate had applied the correct test in assessing the disbursement.

The Acting Deputy President confirmed the Registrar’s decision dated 20 December 2005 and made no order as to the costs of the appeal. The appeal was dismissed, and the decision stands as confirmed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established