Flegerbein v Tom B Blackburn Pty Ltd - [2006] NSWWCCPD 30

WORKERS COMPENSATION COMMISSION

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

CITATION:Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWWCCPD 30
APPELLANT:  James Flegerbein
RESPONDENT:  Tom B Blackburn Pty Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC9214-04
DATE OF REGISTRAR’S DECISION:             11 October 2004
DATE OF APPEAL DECISION:  28 February 2006
SUBJECT MATTER OF DECISION: Appeal against Registrar’s assessment of costs; Fees for Investigation Report; Agency Fees; Photocopying; Item 2.06 of Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondent:   Vandervords Solicitors

ORDERS MADE ON APPEAL: The decision of the Registrar is confirmed.

BACKGROUND

On 1 November 2004 James Flegerbein filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator.

The Respondent to the appeal is Mr Flegerbein’s employer, Tom B Blackburn Pty Ltd (‘Blackburn’). Allianz Australia Workers Compensation (NSW) Ltd is the relevant workers compensation insurer and acted for and on behalf of Blackburn.

The Registrar’s decision (by her delegate, a Commission Arbitrator) made on 11 October 2004, is as follows:
“1.Pursuant to a Certificate of Determination dated 12 September, 2003 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 $6,957.31.
3.The Applicant’s costs of the assessment are not allowed.”
Blackburn submits there has been no error of law and the determination should be upheld.
I have before me the submissions that were made to the Registrar and both parties’ written submissions on appeal. 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.

The costs regime in the Commission is discussed at length in the recent determination of Berger v Moree Plains Shire Council [2005] NSW WCC PD 152 (‘Berger’). Appeals are governed by clause 119 of the Workers Compensation Regulation 2003 (‘the WC Regulation’), which provides as follows:
“119 Appeal 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.

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: [2006] NSWWCCPD 30
Decision Date: 28 February 2006

CaseChat Overview and Summary

In Flegerbein v Tom B Blackburn Pty Ltd, the applicant, Mr Flegerbein, contested the decision of the Registrar regarding the assessment of costs in workers compensation proceedings. The dispute centred around the disallowance of certain disbursements and the reduction of costs allowable for professional work, as well as the interpretation of relevant regulations. The case was decided in the Workers Compensation Commission of New South Wales. The central legal issues revolved around the interpretation and application of the Workers Compensation Regulation 2003 concerning the assessment of costs and disbursements in workers compensation proceedings. Specifically, the court had to determine whether the Registrar’s decisions regarding the disallowance of certain disbursements and the reduction of allowable costs constituted errors of law.

The court examined whether the Registrar's decisions were based on a misinterpretation of the relevant regulations or an inappropriate exercise of discretion. In this regard, the court referred to the decision in Berger v Moree Plains Shire Council and the interpretation of clause 113 of the Legal Profession Regulation 2005, which was applied to assess the reasonableness of disbursements. The court concluded that the Registrar did not err in law when disallowing the disbursements related to the investigator’s report, as these costs had already been claimed under another schedule of the regulation. The court further held that the reduction in costs for professional work was within the Registrar's discretion and did not amount to an error of law.

Consequently, the court dismissed the appeal and upheld the Registrar's decision. The court did not find any basis to interfere with the Registrar's assessment of the costs and disbursements, thereby affirming the Registrar’s authority in interpreting and applying the relevant regulations. The final orders confirmed the dismissal of Mr Flegerbein's appeal and maintained the Registrar's decisions as correct in law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The costs regime in the Commission is discussed at length in the recent determination of Berger v Moree Plains Shire Council [2005] NSW WCC PD 152 (‘Berger’). Appeals are governed by clause 119 of the Workers Compensation Regulation 2003 (‘the WC Regulation’), which provides as follows:“119 Appeal against decision of Registrar as to matter of law1.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.” Mr Flegerbein argues that the Registrar erred in: disallowing disbursements relating to an investigation report; reducing the costs allowable for professional work under Item 2.06 of Schedule 6 of the WC Regulation, and disallowing disbursements arising out of an agent inspecting, filing and photocopying documents. Where these alleged ‘errors’ concern a misinterpretation of the relevant law in relation to the assessment of costs in Commission proceedings, they will be “as to a matter of law”. An ‘error’ concerning only the exercise of the Registrar’s discretion as to the quantum of costs for a particular item in the WC Regulation does not constitute “a matter of law”. Mr Flegerbein claimed $3,564.22 for a ‘Factual and Liability Summary Report’ or ‘Private Investigator’s Report’ (referred to as an investigator’s report in this determination) from St George Registration and Investigation Services (‘SGRIS’). The Registrar rejected the claim (along with two other claims for disbursements) stating:“These Items are not recoverable as a Disbursement. See Clause 82 of the Workers Compensation Regulation 2003 and the Decision of Dr Gabriel Fleming in Nebauer v Hunter Area Health Service [2004] NSW WCC PD 60.” I have considered the submissions of both parties in relation to the claim for this fee. A similar claim arose in the matter of Berger. In that matter I decided that clause 113 of the Legal Profession Regulation 2005 (‘the LP Regulation’) (not Part 19 of the WC Regulation) applies to the assessment of costs for an investigation report claimed as a disbursement. The relevant test for a disbursement claimed under Schedule 3, Part 1, Item 10 (‘Disbursements’) of the LP Regulation is whether the disbursement was “reasonably incurred or was reasonable in amount”. As I noted in Berger, it is not reasonable to claim a cost as a disbursement that has already been the subject of a claim under Schedule 6 of the WC Regulation.

Ratio Decidendi

Legal Principle Established

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