Magann v McInnes Processing Pty Limited - [2007] NSWWCCPD 73

WORKERS COMPENSATION COMMISSION

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

CITATION:Magann v McInnes Processing Pty Limited and anor [2007] NSWWCCPD 73
APPELLANT:  Neil Maxwell Magann
FIRST RESPONDENT:  McInnes Processing Pty Limited
SECOND RESPONDENT:  McInnes Packaging Pty Limited
INSURER (FIRST, and
SECOND RESPONDENTS)  CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC20959-05
DATE OF REGISTRAR’S DECISION:             21 March 2006
DATE OF APPEAL DECISION:  2 March 2007
SUBJECT MATTER OF DECISION:                Appeal against the Registrar’s assessment of costs; adequacy of reasons; costs of disbursements; costs of application for assessment of costs.
PRESIDENTIAL MEMBER:  Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondents:Lyons Barnett Kennedy Solicitors

ORDERS MADE ON APPEAL: 1. The decision of the delegate dated 21 March 2006 is revoked and the following orders are made in its place:

“(i) Pursuant to an Order dated 15 April 2005 the Second Respondent is liable to pay the Applicant’s costs of the substantive proceedings as agreed or assessed.
(ii) The parties have agreed that the Second Respondent pay the Applicant the costs of $12,840.68 (inclusive of GST) for the costs incurred in the substantive proceedings.
(iii) The Applicant’s costs of obtaining a statement have been assessed in the sum of $110.00 (inclusive of GST).
(iv) The Second Respondent is to pay the Applicant the sum of $137.50 (inclusive of GST) for the costs of the application for assessment.
(v) The Second Respondent is, therefore, to pay to the Applicant a total amount of $13,088.18 if those costs have not already been paid.”

2. The Second Respondent, McInnes Packaging Pty Limited is to pay the Appellant, Mr Magann, $275.00 inclusive of GST in respect of his costs in this appeal.

BACKGROUND

Prior proceedings

On 20 March 2003 Mr Neil Maxwell Magann (‘Mr Magann’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC 8122-05). Mr Magann named McInnes Processing Pty Limited as the First Respondent (‘McInnes’), and McInnes Packaging Pty Limited (‘McInnes Packaging’) as the Second Respondent. Against McInnes Mr Magann claimed that he suffered injuries to his back; right and left legs; neck; right and left shoulders; carpal tunnel syndrome in his right and left arms below the elbow and impairment to his sexual organs as a result of the nature and conditions of his employment as a labourer from 31 December 1995 to 17 May 1999. Against McInnes Packaging Mr Magann claimed injuries to the same body parts as a result of frank injuries on 31 July 1999 and 28 May 2002 together with injuries claimed to have been sustained as a result of the nature and conditions of his employment as a labourer from 21 May 1999 to 31 December 2001 and again from 1 January 2002 to 28 May 2002. Against both respondent employers (‘the Respondents’) Mr Magann sought weekly compensation and lump sum compensation pursuant to section 66 and 67 of the Workers CompensationAct 1987 (‘the 1987 Act’).

On 7 April 2003 McInnes Packaging…

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 73
Decision Date: 2 March 2007

CaseChat Overview and Summary

The appeal in Magann v McInnes Processing Pty Limited concerned the assessment of costs by the Registrar in a workers' compensation matter. The Appellant, Neil Maxwell Magann, sought compensation for injuries sustained during his employment with McInnes Processing Pty Limited and McInnes Packaging Pty Limited. The primary issues revolved around the Registrar's determination of costs related to obtaining a factual investigation report and the costs associated with the application for assessment of costs. Magann contested the Registrar's disallowance of the costs for the investigation report and the imposition of his costs for the application for assessment of costs.

The court examined whether the delegate, acting on behalf of the Registrar, erred in law by disallowing the costs for obtaining the factual investigation report and whether the delegate's reasons were adequate. The court found that the delegate's disallowance of the costs for the report was incorrect and that the delegate's reasons were insufficient to demonstrate a proper application of the relevant legislation. The court also determined that the delegate erred in assessing the costs of the application for assessment of costs against Magann. The court held that the application did not warrant extensive legal work, and accordingly, the appropriate costs were assessed at a lower amount.

The court revoked the Registrar's decision and made new orders. The Second Respondent, McInnes Packaging Pty Limited, was ordered to pay Magann $13,088.18 for the substantive proceedings costs and the costs of obtaining the statement, and $137.50 for the costs of the application for assessment of costs. Additionally, McInnes Packaging Pty Limited was ordered to pay Magann $275.00 in respect of his costs in the appeal.

Orders