Green v Chris Mc Leod Cotton Picking Pty Ltd - [2006] NSWWCCPD 51

WORKERS COMPENSATION COMMISSION

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

CITATION:Green v Chris McLeod Cotton Picking Pty Ltd [2006] NSWWCCPD 51
APPELLANT:  Edward Green
RESPONDENT:  Chris McLeod Cotton Picking Pty Ltd
INSURER:Employers Mutual Indemnity (Workers Compensation) Ltd
FILE NUMBER:  WCC 16409-04
DATE OF REGISTRAR’S DECISION:             22 December 2004
DATE OF APPEAL DECISION:  22 March 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s determination in respect of costs; fee for investigation report; Item 2.06 of Schedule 6 of the Workers Compensation Regulation 2003
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: McCabe Partners, Lawyers
Respondent: Rankin Nathan, Lawyers

ORDERS MADE ON APPEAL: (1) Pursuant to clause 119(3) of the Workers Compensation Regulation 2003, clause 2 of the Registrar’s determination dated 22 December 2004 is set aside and the following clause is substituted:
“2. The Respondent is to pay the Applicant’s costs in this assessment.”
(2) Clauses 1 and 3 of the Registrar’s determination are affirmed.

(3) The Respondent, Chris McLeod Cotton Picking Pty Ltd, is to pay Mr Green’s costs in this appeal referable to the costs order made by the Registrar in relation to her assessment. There is no order in relation to costs referable to the other issues in dispute in this appeal.

BACKGROUND TO THE APPEAL

On 12 January 2005, Edward Green filed an appeal in respect of a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) dated 22 December 2004. The Respondent to the appeal is Chris McLeod Cotton Picking Pty Ltd. The Respondent’s workers compensation insurer, which acted on behalf of the Respondent in the Commission proceedings, is Employers Mutual Indemnity (Workers Compensation) Ltd (‘EMI’).

The dispute to which the costs determination relates was finalised in the Commission on 1 October 2004 by registration of an ‘Agreement to Discontinue Proceedings in the Commission’, pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’). The parties’ terms of settlement included agreement that the Respondent pay Mr Green’s costs as agreed or assessed.

The parties having failed to come to an agreement as to costs, on 13 October 2004, Mr Green applied to the Registrar for an assessment of costs. The Registrar delegated the assessment to a Commission Arbitrator who made the determination dated 22 December 2004. The Certificate of Determination stated:

“1. Pursuant to the registration of a Section 66A Lump Sum Agreement on 1 October, 2004 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 assessment are not allowed.
3. The Respondent is to pay the amount of $7,959.47 to the Applicant if those costs have not already been paid.”

In his ‘Statement of Reasons for Decision’, the Arbitrator identified and discussed the costs items and disbursements in dispute and made a finding in respect of each. Mr Green’s appeal is in respect of two of these findings, identified below,…

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.

Continue reading Green v Chris Mc Leod Cotton Picking Pty Ltd

Details

AGLC: Green v Chris Mc Leod Cotton Picking Pty Ltd [2006] NSWWCCPD 51
Case: [2006] NSWWCCPD 51
Decision Date: 22 March 2006

CaseChat Overview and Summary

Edward Green has appealed against a decision made by the Registrar of the Workers Compensation Commission concerning costs. The appeal pertains to the Registrar's determination, dated 22 December 2004, regarding the assessment of costs. Chris McLeod Cotton Picking Pty Ltd, the respondent in the case, is liable for the costs of the proceedings as agreed or assessed. Mr Green has contested two findings of the Arbitrator and the decision not to allow his costs of the assessment. The appeal was heard by Acting Deputy President Robin Handley, who determined that the Registrar should have made an order for the respondent to pay Mr Green's costs in relation to the assessment of costs.

The court examined the legal issues concerning the Arbitrator's assessment of costs. The Arbitrator had disallowed two costs items, one being the amount claimed for requesting a review of the claim from the insurer and the other being the disbursement for St George Registration & Investigation Services Pty Ltd's Factual & Liability Summary Report. The Arbitrator also determined that Mr Green's costs of the assessment were not to be allowed because he had been unsuccessful in his application. The court found that the Arbitrator's decision regarding the disbursement for St George was based on insufficient information. However, the court was satisfied that the Arbitrator's decision to only allow one hour for the item requesting a review of the claim from the insurer was not unreasonable.

The court decided that the Registrar should have made an order for the respondent to pay Mr Green's costs in relation to the assessment of costs. The court set aside clause 2 of the Registrar's determination and substituted the following clause: "2. The Respondent is to pay the Applicant's costs in this assessment." Clauses 1 and 3 of the Registrar's determination were affirmed. The respondent, Chris McLeod Cotton Picking Pty Ltd, is to pay Mr Green's costs in this appeal referable to the costs order made by the Registrar in relation to her assessment. There is no order in relation to costs referable to the other issues in dispute in this appeal.

Orders