Harvey v JJC Group Pty Limited - [2006] NSWWCCPD 329

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Harvey v JJC Group Pty Ltd [2006] NSWWCCPD 329
APPELLANT:  Russell Harvey
RESPONDENT:  JJC Group Pty Ltd
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC9138-05
DATE OF REGISTRAR’S DECISION:             19 May 2006
DATE OF APPEAL DECISION:  30 November 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claims under Items 2.05, 2.06, 4.03, 4.03A, 4.03B 4.05, 4.08, 4.10, 4.12, and 9.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003 and in respect of clause 5 of the Regulation; disbursements – agency fees, fee for private investigator’s report, solicitor’s travel expenses, fee for company search.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: McCabe Partners Lawyers
Respondent: Hunt & Hunt Lawyers

ORDERS MADE ON APPEAL: The Registrar’s determination of Mr Harvey’s claim for costs in this matter, dated 19 May 2006, is amended in accordance with these reasons.

The Respondent, JJC Group Pty Ltd, is to pay the Appellant, Mr Harvey $385.00 inclusive of GST in respect of his costs in this appeal.

BACKGROUND TO THE APPEAL

On 6 June 2006, Russell Harvey filed an appeal against a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 19 May 2006. The Respondent to the appeal is JJC Group Pty Ltd (‘JJC’). On 3 July 2006, JJC’s solicitors filed a ‘Notice of Opposition’ to the appeal.

Mr Harvey (also referred to as ‘the Applicant’) commenced proceedings in the Commission to recover workers compensation from JJC and two other respondents, Lynlock Pty Ltd and the WorkCover Authority of NSW. On 15 March 2005, an Arbitrator directed that the Applicant discontinue proceedings against Lynlock and the WorkCover Authority.

On 4 April 2005, an Arbitrator conducted a conciliation with the Applicant and JJC and assisted them to come to an agreed resolution of the issues in dispute. On 29 April 2005, the Arbitrator issued a Certificate of Determination including a clause requiring that JJC “pay the Applicant’s costs as agreed or assessed”. By letter dated 21 June 2005, the Commission notified the parties of its registration of an agreement pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’) whereby JJC agreed to pay Mr Harvey compensation totalling $35,000 in respect of permanent impairment of his back and legs and pain and suffering.

On 14 June 2005, the parties having failed to agree on the costs payable, Mr Harvey’s solicitors lodged an ‘Application for Assessment of Costs’ with the Commission in respect of their Bill of Costs dated 4 April 2005. JJC’s submissions were received on 12 August 2005. Mr Harvey’s solicitors state they responded with further submissions by letter dated 29 August 2005, although the letter, which they have copied and attached to their submissions on the appeal, refers to matter number 9136-05 rather than the current matter 9138-05.

The Registrar…

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.

Keep reading for free

Create a free CaseChat account to read Harvey v JJC Group Pty Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWWCCPD 329
Decision Date: 30 November 2006

CaseChat Overview and Summary

In the case of Harvey v JJC Group Pty Limited, the appeal before the Workers Compensation Commission was brought by Russell Harvey against the decision of the Registrar concerning the assessment of costs. The Registrar had assessed Mr Harvey's costs at $13,481.38, a sum which Harvey’s solicitors believed to be insufficient. The appeal was heard by Acting Deputy President Robin Handley, who reviewed the case on the papers without the need for a formal hearing. The issues in dispute revolved around specific items of professional costs and disbursements claimed by Mr Harvey’s solicitors, which the Delegate had either allowed in part or disallowed.

Upon reviewing the Delegate's determination, the Acting Deputy President found that the Delegate had erred in not considering certain submissions made by Mr Harvey's solicitors. Despite this, the Acting Deputy President determined that the disallowance of certain claims was justified based on the evidence and applicable regulations. For instance, the claim for briefing a private investigator was not allowed as it was deemed not reasonably necessary. Conversely, claims for requesting a review from the insurer, serving directions for production of documents, and reporting to the client on the outcome of a conference or arbitration were allowed. The Acting Deputy President also adjusted the allowable amount for certain activities due to errors in the Delegate’s assessment, such as the maximum allowable cost for conferences and arbitrations being exceeded.

Regarding the costs related to proceedings against the WorkCover Authority of NSW and Lynlock Pty Ltd, the Acting Deputy President allowed an additional 35% of the costs incurred, finding it fair and reasonable given the late stage at which the proceedings were discontinued. The disallowance of agency fees, private investigator’s report, and certain disbursements was upheld, while the claim for solicitor's travelling expenses and a Lawpoint search was allowed as fair and reasonable. The Acting Deputy President concluded that the total costs payable should be increased from $13,481.38 to $18,184.60. Lastly, the Acting Deputy President ordered JJC Group Pty Ltd to pay Mr Harvey $385 inclusive of GST for his costs in this appeal.

Orders