Hodges v Rodney Wallace Rowe - [2007] NSWWCCPD 41

WORKERS COMPENSATION COMMISSION

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

CITATION:Hodges v Rodney Wallace Rowe and anor [2007] NSWWCCPD 41
APPELLANT:  Yvonne Fay Hodges
FIRST RESPONDENT:  Rodney Wallace Rowe
SECOND FIRST RESPONDENT:  Ian Sweeney Trust t/as The Trustee for Ian Sweeney Family Trust
THIRD RESPONDENT:  Ellimatta Aboriginal Housing Corporation
FIRST RESPONDENT’S INSURER:                 QBE Workers Compensation (NSW) Limited
SECOND RESPONDENT’S INSURER:            Allianz Australia Workers Compensation (NSW) Limited
THIRD RESPONDENT’S INSURER                 GIO Australia
FILE NUMBER:  WCC8695-05
DATE OF REGISTRAR’S DECISION:             30 September 2005
DATE OF APPEAL DECISION:  8 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; failure to consider relevant material; fees for an investigation report; attendance fees of agents; Items 4.08; 4.09; 4.10; 4.12; 9.01, and Clause 5 of Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER:  Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION:  Appellant: McCabe Partners Lawyers
First Respondent: No appearance
Second and Third Respondent: Sparke Helmore Lawyers

ORDERS MADE ON APPEAL: 1. Paragraphs two and four of the decision of the delegate dated 30 September 2005 are revoked and the following orders are made in their place:

“(i) The Applicant’s costs of the substantive proceedings are assessed in the sum of $10,376.77.
(ii) The Second and Third Respondents are, therefore, to pay to the Applicant a total amount of $10,376.77 if those costs have not already been paid.”

2. Paragraph one of the delegate’s decision referring to the order for costs contained in the ‘Consent Orders’ and paragraph three of the delegate’s decision, allowing $250.00 for costs included in the total amount ordered to be paid are confirmed.
3. No order as to the costs of the appeal.

BACKGROUND

Prior proceedings

Yvonne Hodges (‘Ms Hodges’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC 19070-04). Ms Hodges named Rodney Wallace Rowe as the First Respondent, Ian Sweeney Trading as The Ian Sweeney Family Trust (‘the Sweeney Family Trust’) as the Second Respondent and Ellimatta Aboriginal Housing Corporation (‘Ellimatta’) as the Third Respondent. Ms Hodges claimed that she suffered an injury in the course of her employment and sought weekly benefits compensation pursuant to section 40 of the Workers CompensationAct 1987 (‘the 1987 Act’); lump sum compensation pursuant to section 66 and 67 and medical and related expenses in accordance with section 60 of the 1987 Act.

The dispute was resolved by consent at the hearing conducted on 4 April 2005 by a Commission arbitrator (‘the Arbitrator’). The Arbitrator issued a ‘Certificate of Determination – Consent Orders’ on 11 April 2005 ordering: the Sweeney Family Trust to pay Ms Hodges weekly compensation at the rate of $100.00 per week pursuant to section 40 of the 1987 Act from 1 July 2001 to date and continuing; the Respondent [sic the Sweeney Family Trust] to pay Ms Hodges’ expenses pursuant to Section 60 of the 1987 Act, and that the Sweeney Family Trust and Ellimatta pay Ms Hodges’ costs of…

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 41
Decision Date: 8 February 2007

CaseChat Overview and Summary

Yvonne Fay Hodges appealed against the Registrar’s assessment of costs made by the Workers Compensation Commission. The appeal concerned the determination of costs related to the resolution of Ms Hodges' workers compensation claim. The dispute involved the correct interpretation and application of the Compensation Costs Table and the Workers Compensation Regulation 2003. Ms Hodges argued that the Registrar erred in various aspects of the cost assessment, including the disallowance of certain disbursements, the allowance for the cost of an investigation report, and the application of specific items in the Compensation Costs Table.

The Acting Deputy President, Elizabeth Tydd, found that the Registrar erred in several respects. Firstly, regarding the investigation report, the Acting Deputy President found that while some parts of the report were not necessarily incurred and thus not allowable, other parts, such as the cost of obtaining statements from Ms Hodges, were allowable. The Acting Deputy President reduced the allowable cost of the report from $990.00 to $420.20 (including GST). Secondly, concerning the items in the Compensation Costs Table, the Acting Deputy President found errors in the Registrar’s interpretation of Items 4.09, 4.10, and 4.12. The Acting Deputy President allowed a total of $500.00 (plus GST) for participating in the teleconference and the conciliation conference under Item 4.09, disallowed the allowance under Item 4.10 as it had no application, and allowed $380.00 (plus GST) for reporting to Ms Hodges following the teleconference and the conciliation conference under Item 4.12. The Acting Deputy President also confirmed the Registrar’s allowance of $250.00 (plus GST) under Item 9.01 and upheld the allowance of $1,000.00 (plus GST) under Clause 5 of Schedule 6 of the WC Regulation.

Consequently, the Acting Deputy President revoked certain parts of the Registrar’s decision and made new orders regarding the assessment of costs. The Appellant’s costs of the substantive proceedings were assessed in the sum of $10,376.77, and the Second and Third Respondents were ordered to pay this amount if it had not already been paid. The Acting Deputy President made no order as to the costs of the appeal, given that the Appellant was largely unsuccessful.

Orders