Levett v Young Mining Company Pty Ltd - [2007] NSWWCCPD 28

WORKERS COMPENSATION COMMISSION

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

CITATION:Levett v Young Mining Company Pty Ltd [2007] NSWWCCPD 28
APPELLANT:  John Levett
RESPONDENT:  Young Mining Company Pty Ltd
INSURER:GIO General Ltd
FILE NUMBER:  WCC9025-05
DATE OF REGISTRAR’S DECISION:             2 March 2006
DATE OF APPEAL DECISION:  30 January 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claims under Items 2.05, 4.04, 9.01 and 10.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003; whether maximum costs specified in the Table before 17 March 2006 are inclusive of GST; disbursements – fee for clinical notes, medical consultation fee, agency fees, fee for private investigator’s report, and applicant’s travelling expenses.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondent:   Sparke Helmore Lawyers

ORDERS MADE ON APPEAL: Clause 8 of the Registrar’s decision dated 2 March 2006 is revoked and the following clause is substituted:

“The Respondent is to pay the amount of $7,037.00 to the Applicant if those costs have not already been paid.”

The Registrar’s decision dated 2 March 2006 is otherwise confirmed.
There is no order as to the costs of this appeal.

BACKGROUND

On 21 March 2006, John Levett filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator. The Respondent to the appeal is Young Mining Company Pty Ltd (‘YMC’). YMC’s workers compensation insurer is GIO General Ltd (‘GIO’). On 18 April 2006, YMC lodged a ‘Notice of Opposition to the Appeal’ and submissions.

Mr Levett was born on 2 October 1951 and is aged 55. On 23 November 2001, Mr Levett made a claim for workers compensation for injuries to his right and left arms/wrists arising out of the nature and conditions of his employment by YMC between 1 July 1987 and 23 November 2001. On 22 September 2004, the Commission registered Mr Levett’s ‘Application to Resolve a Dispute’ in respect of his claim for (1) medical, hospital or related expenses, and (2) compensation for permanent impairment and pain and suffering. On 12 October 2004, YMC filed a ‘Reply’.

An Arbitrator conducted teleconferences with the parties on 8 December 2004 and 2 May 2005 in the course of which the parties came to an agreed resolution of the issues in dispute. On 3 May 2005, the Arbitrator issued a Certificate of Determination in the following terms:

“1. That the Applicant is to discontinue his claim after the appropriate section 66A Agreement is lodged with the Workers Compensation Commission. The requirement for the Applicant to lodge a Notice of Discontinuance is dispensed with.

2. That the Respondent pay the Applicant’s costs as agreed or assessed, including preparation of 1 hour and attendance at the teleconference on 2 May 2005.
Whilst not a determination of the Commission, I note that the parties have agreed to lodge a section 66A Agreement for the total 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 28
Decision Date: 30 January 2007

CaseChat Overview and Summary

The Workers Compensation Commission received an appeal from John Levett against the Registrar's assessment of costs in his workers compensation claim, determined by a Commission Arbitrator. The respondent to the appeal is Young Mining Company Pty Ltd, with GIO General Ltd acting as their insurer. The appeal was lodged by Mr Levett on 21 March 2006, and YMC lodged a 'Notice of Opposition to the Appeal' on 18 April 2006, followed by submissions. The appeal was heard by Acting Deputy President Robin Handley, who issued a decision on 30 January 2007. The appeal primarily focused on the Registrar's assessment of professional costs and disbursements, including claims under specific items of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003, and whether an additional amount for GST payable on professional costs should be allowed.

The court considered the legal issues arising from the appeal, such as whether the Delegate's disallowance of claims for certain professional costs and disbursements constituted an error of law. The court examined the parties' submissions on these issues, including the claims for briefing a factual investigator, lodging an objection to a request for the production of documents, and the conduct of other proceedings before the Commission involving the determination of substantive legal issues. The court also considered the disallowance of claims for agency fees, clinical notes, and a private investigator's report, as well as the applicant's travelling expenses. Furthermore, the court addressed whether an additional amount in respect of GST payable on professional costs should be allowed.

The court concluded that the Delegate made an error of law by disallowing the claim under Item 4.04 for lodging an objection to a request for the production of documents, and that the claim should be allowed in the amount of $60. The court also found that the Delegate made an error of law in not disallowing the claim for instructing an agent under Item 10.01, and that the claim should be disallowed. The court reduced the disbursement allowed in respect of the Applicant's travelling expenses from $740 to $537, and confirmed that the Delegate was correct in disallowing a claim for GST to be added to the costs claimed in respect of Items in the Table, as the services were performed and the Delegate's assessment was made before the relevant amendment to the Regulation took effect.

The court revoked Clause 8 of the Registrar's decision dated 2 March 2006 and substituted the following clause: "The Respondent is to pay the amount of $7,037.00 to the Applicant if those costs have not already been paid." The Registrar's decision dated 2 March 2006 was otherwise confirmed, and there was no order as to the costs of this appeal.

Orders