Fifita v SPL Group Limited - [2007] NSWWCCPD 53

WORKERS COMPENSATION COMMISSION

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

CITATION:Fifita v SPL Group Limited [2007] NSWWCCPD 53

APPELLANT: Kalolo Fifita

RESPONDENT: SPL Group Limited

INSURER:QBE Workers Compensation (NSW) Limited

FILE NUMBER:  WCC17194-05
DATE OF REGISTRAR’S DECISION:             28 February 2006
DATE OF APPEAL DECISION:  15 February 2007
SUBJECT MATTER OF DECISION:                Appeal against the Registrar’s Assessment of Costs, application of GST; procedural fairness.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      Maurice May Lawyers
Respondent: QBE Legal

ORDERS MADE ON APPEAL: 1. The Registrar’s determination of Mr
Fifita’s claim for costs in this matter, dated 28 February 2006 is amended in accordance with these reasons.
2.The Respondent, SPL Group Limited is to pay the Appellant, Mr Fifita, $165.00 inclusive of GST in respect of his costs in this appeal.

BACKGROUND TO THE APPEAL

On 6 March 2006 Kalolo Fifita (‘the Appellant’) filed an ‘Appeal Against a Cost Determination’ made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 28 February 2006. The Respondent to the appeal is SPL Group Limited (‘the Respondent’). The Respondent’s insurer is QBE Workers Compensation (NSW) Limited (‘QBE’).

No ‘Notice of Opposition’ to the appeal or submissions have been filed by either the Respondent or QBE.

The Appellant commenced proceedings in the Commission on 22 January 2004 seeking permanent impairment/pain and suffering compensation as a consequence of an injury to his back and left leg on 21 February 1992.

A Teleconference was held on 4 May 2004 where the parties came to an agreed resolution of the issues in dispute. On 6 May 2004 a ‘Certificate of Determination – Consent Orders’ was issued which included a clause requiring the Respondent to pay the Appellant’s costs “as agreed or assessed”.

On 10 October 2005, the parties having failed to agreed on the costs payable, the Appellant filed an ‘Application for Assessment of Costs’ with the Commission in respect of his Bill of Costs dated 1 June 2004. The Respondent filed submissions on 17 June 2004.

The Registrar delegated the assessment of costs to a Commission Arbitrator (‘the Delegate’) who made a determination dated 28 February 2006. The ‘Certificate of Determination stated as follows:

“1.Pursuant to a Certificate of Determination dated 6 May 2004 the Respondent is liable to pay the Applicant’s costs as agreed or assessed, in respect of a claim for permanent impairment compensation.
2.The Applicant’s costs of the substantive proceedings are assessed in the sum of $4,462.50.

3.The Respondent is to pay the Applicant’s costs of the assessment in the sum of $220.00.

4.The Respondent is, therefore, to pay to the Applicant a total amount of $4,682.50, of those costs have not already been paid.”

The relevant aspects of the Delegate’s ‘Statement of Reasons’ for her decision will be dealt with below.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:

“(6) If the Commission is satisfied that sufficient information…

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 53
Decision Date: 15 February 2007

CaseChat Overview and Summary

Kalolo Fifita ('the Appellant') filed an appeal against a decision of the Registrar in relation to the assessment of costs in a workers' compensation matter against SPL Group Limited ('the Respondent'). The primary issue before the court was whether the Appellant was entitled to recover goods and services tax (GST) on the costs assessed, and whether the Delegate's failure to allow recovery of the GST was procedurally fair. The court found that the Delegate was not entitled to reassess costs that were not in dispute between the parties, and that the Appellant was not afforded procedural fairness in relation to the recovery of GST on undisputed items.

The court considered the relevant legislation, including the Workplace Injury Management and Workers Compensation Act 1998, the Workers Compensation Regulation 2003, the Legal Profession Act 2004, and the "A New Tax System (Goods & Services Tax) Act 1999." The court also considered previous decisions of the Workers Compensation Commission, including Chapman v Gosford City Council [2006] NSWWCCPD 4 and Berger v Moree Plains Shire Council [2005] NSWWCCPD 152. The court concluded that the Appellant was entitled to recover GST on all undisputed items, and that the Delegate's failure to allow recovery of the GST on undisputed items was a failure of procedural fairness.

The court amended the Registrar's determination of the Appellant's claim for costs, increasing the total amount payable to the Appellant to $4,915.50 inclusive of GST. The court also ordered that the Respondent pay the Appellant's costs of the appeal in the sum of $165.00 inclusive of GST.

The final orders of the court were that the Registrar's determination of the Appellant's claim for costs in this matter, dated 28 February 2006, is amended in accordance with these reasons, and that the Respondent, SPL Group Limited, pay the Appellant, Mr Fifita, $165.00 inclusive of GST in respect of his costs in this appeal.

Orders