Lynas v Beth Holland t/as Newport Kindergarten

[2006] NSWWCCPD 334

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Lynas v Beth Holland t/as Newport Kindergarten [2006] NSWWCCPD 334

APPELLANT:  Joanna Elizabeth Lynas

RESPONDENT:  Beth Holland t/as Newport Kindergarten

INSURER:Allianz Australia Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC21325-05

DATE OF REGISTRAR’S DECISION:             6 April 2006

DATE OF APPEAL DECISION:  5 December 2006

SUBJECT MATTER OF DECISION:                Appeal against the Registrar’s decision in relation to costs; no jurisdiction to assess costs in respect of related proceedings

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Beilby Poulden Costello Lawyers

Respondent: Lander & Rogers Lawyers

ORDERS MADE ON APPEAL: The decision of the Registrar is set aside and the matter is remitted to the Registrar for redetermination pursuant to clause 119(3) of the Workers Compensation Regulation 2003.

There is no order as to the costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 28 April 2006, Joanna Lynas filed an appeal against a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 6 April 2006. The Respondent to the appeal is Beth Holland, trading as Newport Kindergarten (‘the Kindergarten’). The Kindergarten’s workers compensation insurer is Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’). On 22 May 2006, Allianz filed a ‘Notice of Opposition’ to the appeal.

1. Ms Lynas was born on 20 August 1974 and is aged 32. On 18 March 1994, she was riding a bicycle to the Kindergarten, where she worked as a childcare assistant, when she fell, injuring her right leg and back. In 1995, Ms Lynas commenced proceedings in the Compensation Court of NSW resulting in a settlement and order for payment of compensation. Allianz state the award was made on 15 September 1996 in the sum of $18,179, representing a 20% loss of efficient use of the right leg below the knee, together with $16,321 in respect of pain and suffering, pursuant to respectively, sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’), and expenses under section 60. Weekly compensation was paid from 21 March 1994 until 26 April 2002 together with medical and related expenses.

1. In March 2002, Ms Lynas commenced proceedings in the Compensation Court (matter no 7207-02) for additional compensation for a further 5% permanent loss of efficient use of her right leg below the knee and 10% permanent impairment of the back. These proceedings were delayed by her need for further surgery on her right knee and, in January 2004, the proceedings were transferred to the Commission, where they were registered under matter no 1767-04. Ultimately, the proceedings were resolved by agreement and, on 15 September 2005, the Commission issued a Certificate of Determination with an award in favour of Ms Lynas for the sum of $1,298.50 under section 66 of the 1987 Act.

1. On 29 March 2005, the Commission registered Ms Lynas’ ‘Application to Resolve a Dispute’ in respect of her claim for weekly compensation under matter no 4652-05. Allianz filed a ‘Reply’ on 19 April 2005. On 7 June 2005, an Arbitrator conducted a teleconference with the parties at which the parties reached an agreed resolution of the dispute. On 10 June 2005, the Commission issued a Certificate of Determination in the following terms:

“1. Need to file a Notice of Discontinuance be waived.
2. Respondent to pay Applicant weekly compensation pursuant to s 40, the sum of $94.75 / week on a voluntary basis from 31 July 2004 to date and continuing provided a medical certificate is forwarded from that date (31 July 2004).
3. Respondent to pay Applicant’s costs as agreed or assessed.”

1. Ms Lynas’ solicitors appear to have prepared two Bill of Costs. According to Allianz, the first, dated 18 July 2005, was in respect of the claim for weekly compensation, in the amount of $5,956.50. Allianz state they paid this amount on 3 August 2005. The second Bill of Costs, dated 11 October 2005, apparently in respect of the claim for further lump sum compensation, was for $3,965.50 in respect of proceedings in the Commission, together with an attached Bill of Costs (stated to be dated 12 December 2005) for $5,818.60 in respect of costs attributable to the proceedings in the Compensation Court prior to their transfer to the Commission, a total of $9,784.10.

1. On 14 December 2005, Ms Lynas’ solicitors lodged an ‘Application for Assessment of Costs’ with the Commission in “matter no 4652-05” in respect of their fees of $9,784.10, and referring to their Bill of Costs given to Allianz on 18 July 2005 and 12 December 2005. Attached to this Application was an “Amended Tax Invoice” for $3,965.50 dated 18 October 2005 (in respect of proceedings in the Commission) and an assessment of costs (in Supreme Court of NSW format) for $5,818.60 dated 12 December 2005 (in respect of proceedings in the Compensation Court), together with a copy of the Certificate of Determination in matter no 4652-05 dated 10 June 2005.

1. Allianz filed a ‘Notice of Objection’ on 22 February 2006, objecting to $2,822.89 of the costs and disbursements claimed in respect of the period 1 July 2000 to 31 August 2002 (during the Compensation Court proceedings). Allianz stated that Ms Lynas’ solicitors had claimed costs of $5,956.50 in respect of the proceedings for weekly payments in a Bill of Costs dated 18 July 2005, which was paid on 3 August 2005.

1. Ms Lynas’ solicitors’ response, dated 27 February 2006, noted Allianz’s objections to $2,822.89 of the $5,818.60 claimed, and made further submissions, conceding $725.00 of the $5,818.60 claimed in respect of the Compensation Court proceedings.

1. The Registrar delegated the assessment of costs to a Commission Arbitrator (‘the Delegate’) who made a determination dated 6 April 2006. The Certificate of Determination stated:

“1. Pursuant to an Order 10 June 2005, 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 $3151.50.
3. There is no order as to costs of the assessment.
4. The Respondent is to pay the amount of $3151.50 to the Applicant if those costs have not already been paid.”

1. In the Statement of Reasons for his decision, the Delegate said the effect of clause 99 of the Workers Compensation Regulation 2003 (‘the 2003 Regulation’) is that only a person who has an entitlement to costs as a result of an order for an unspecified amount of costs made by the Commission, may apply to the Registrar for an assessment of costs. The Delegate noted that the proceedings which were the subject of the assessment were those brought in respect of Ms Lynas’ claim for weekly compensation registered under matter no 4652-05, determined on 10 June 2005. Other proceedings with a history in the Compensation Court were only a background to the assessment and “do not fall within the jurisdiction of the Commission for assessment”.

1. By letter dated 18 April 2006, Ms Lynas’ solicitors made an application under clause 117 of the 2003 Regulation for the correction of an error in the determination dated 6 April 2006. The basis for this application was that the Delegate had not dealt with the assessment of costs in relation to the Compensation Court proceedings which had been included in the ‘Application for Assessment of Costs’. Ms Lynas’ solicitors submitted there was an obvious error in the Delegate’s Statement of Reasons in his determining that the proceedings were in relation to the claim for weekly compensation and that the Bill of Costs in respect of the Compensation Court proceedings was outside the jurisdiction of the Commission for the purposes of the assessment.

1. The Registrar responded by letter dated 29 June 2006, declining the application, stating that the Application for Assessment of Costs lodged with the Commission on 14 December 2005 was stated to relate to matter no 4652-05, and that attached to the Application was a copy of the Certificate of Determination in that matter dated 10 June 2005. The Registrar said the costs in relation to the Compensation Court proceedings were not relevant to that matter and did not come within the jurisdiction of the Commission. The costs which were the subject of the assessment were appropriately assessed and there was no inadvertent error for correction under clause 117.

ISSUE IN DISPUTE

1. Ms Lynas’ solicitors submit the Delegate erred by limiting his assessment of costs to those in relation to Ms Lynas’ claim for weekly benefits, and by determining that he had no jurisdiction to assess other costs claimed in relation to other proceedings commenced in the Compensation Court of NSW and transferred to the Commission. The parties’ submissions on this issue are discussed below.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submission by Allianz that the matter can be heard ‘on the papers’, Ms Lynas’ solicitors having made no submission on this issue, 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. 

1. No application to adduce fresh evidence was made.

SUBMISSIONS, DISCUSSION AND FINDINGS

1. The relevant legislation providing for the assessment of costs in workers compensation matters is the 1998 Act and the 2003 Regulation. Clause 84 of the 2003 Regulation fixes the maximum costs recoverable by legal practitioners and agents at those set out in Schedule 6, except where otherwise provided in Part 19. Schedule 6 sets out the maximum costs recoverable in workers compensation matters by reference to the Compensation Costs Table (‘the Table’) at the end of the Schedule. The Table identifies particular activities or events with an item number.

1. In their submissions on the appeal, Ms Lynas’ solicitors refer to the transfer of the proceedings to recover additional compensation for permanent loss of efficient use of the right leg below the knee and permanent impairment of the back from the Compensation Court to the Commission. These proceedings were ultimately determined on 15 September 2005. Ms Lynas’ solicitors submit the Delegate misdirected himself by determining that the proceedings in respect of which the ‘Application for Assessment of Costs’ was filed was that in respect of weekly compensation rather than lump sum compensation. Ms Lynas’ solicitors also submit the Delegate failed to have regard to the fact that the proceedings were commenced in the Compensation Court and transferred to the Commission, and to the fact that Allianz conceded at least part of the costs incurred in the Compensation Court proceedings.

1. In its ‘Notice of Opposition’ to the appeal, Allianz submits that if the Commission is minded to make a finding in respect of Ms Lynas’ solicitors’ claim for costs in relation to the Compensation Court proceedings, then the Commission should do so in accordance with Allianz’s schedule of costs attached to its ‘Notice of Objection’ dated 22 February 2006.

1. I have examined Ms Lynas’ solicitors’ ‘Application for Assessment of Costs’ lodged on 14 December 2005, and confirm that, as stated by the Delegate, it refers to matter number 4652-05, and attaches a copy of the Certificate of Determination for that matter dated 10 June 2005. It is not clear whether the attached “Amended Tax Invoice” of 11 October 2005 is referrable to the claim for weekly compensation, determined on 10 June 2005, or the claim for additional lump sum compensation, determined on 15 September 2005, or both. I note the Application, at Part 3, states the Bill of Costs was given to Allianz on 18 July 2005 and 12 December 2005. Whether the Amended Tax Invoice of 11 October 2005 is an amended version of the Bill of Costs of 18 July 2005 is not stated. However, I note that the Amended Tax Invoice claims costs in respect of “Applying for referral to AMS” [Approved Medical Specialist] which, while disallowed by the Delegate, suggests that this Bill of Costs includes work undertaken in relation to the claim for lump sum compensation.

1. I note that in its ‘Notice of Objection’ filed on 22 February 2006, Allianz stated that it had paid Ms Lynas’ solicitors’ Bill of Costs for the sum of $5,956.50, dated 18 July 2005, on 3 August 2005. This gives further support to the possibility that the Amended Tax Invoice dated 11 October 2005 is in fact in respect of the claim for lump sum compensation. Thus, the Delegate may have assessed the wrong Bill of Costs and thereby have made an error of law in his decision.

1. With regard to the Delegate’s determination not to assess the costs attributable to the Compensation Court, in my view, the Delegate was correct. The Application was not in respect of the claim for lump sum compensation – it was in respect of the claim for weekly compensation. Thus, the Commission had no jurisdiction to assess the costs in relation to the proceedings in the Compensation Court and subsequently in the Commission in relation to the claim for lump sum compensation. This would have required Ms Lynas’ solicitors to make a separate ‘Application for Assessment of Costs’ in relation to those proceedings.

1. In my view, the confusion in relation to this assessment appears to be founded in Ms Lynas’ solicitors’ errors in completing the ‘Application for Assessment’. Given my concern that the Delegate may have assessed the wrong Bill of Costs, the appropriate outcome is that the Delegate’s assessment be set aside and the matter remitted to the Registrar for redetermination. This will require further submissions from the parties to establish whether the Amended Tax Invoice dated 11 October 2005 is in respect of the claim for weekly compensation or the claim for lump sum compensation. If the latter is the case, then the Amended Tax Invoice is beyond the jurisdiction of the Commission in determining the ‘Application for Assessment of Costs’ lodged on 14 December 2005.

DECISION

1. The decision of the Registrar is set aside and the matter is remitted to the Registrar for redetermination pursuant to clause 119(3) of the Workers Compensation Regulation 2003.

COSTS

1. As I have stated above, the confusion in relation to this assessment appears to be founded in errors made by Ms Lynas’ solicitors. The appropriate order, therefore, is: “There is no order as to the costs of this appeal.”

Robin Handley

Acting Deputy President  

5 December 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE