Mayne Group Ltd v Gallagher

[2006] NSWWCCPD 212

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Mayne Group Ltd v Gallagher [2006] NSWWCCPD 212

APPELLANT:  Mayne Group Ltd

RESPONDENT:  Colin Gallagher

INSURER:Mayne Group Ltd Workers Compensation

FILE NUMBER:  WCC 16702-05

DATE OF REGISTRAR’S DECISION:             18 January 2006

DATE OF APPEAL DECISION:  31 August 2006

SUBJECT MATTER OF DECISION: Assessment of costs by the Registrar where no costs order made; costs in respect of an ‘Application for Assessment of Costs’; clause 98 and Item 3.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Leigh Virtue & Associates, Solicitors

Respondent: Maurice May Lawyers

ORDERS MADE ON APPEAL:  The decision of the Registrar is confirmed.

The Appellant, Mayne Group Ltd, is to pay the Respondent, Mr Gallagher, the amount of $250.00 in respect of his costs in this appeal.

:

BACKGROUND TO THE APPEAL

1. On 24 January 2006, Mayne Group Ltd filed an appeal against a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) dated 18 January 2006. The Respondent to the appeal is Colin Gallagher. Mayne Group’s workers compensation insurer is Mayne Group Ltd Workers Compensation. On 20 February 2006, Mr Gallaghers’ solicitors filed a ‘Notice of Opposition to the Appeal’.

1. Mr Gallagher, who was born on 11 October 1963 and is aged 42, was employed as a forklift driver/storeman at Mayne Group’s warehouse at Rydalmere. On 7 April 2004, he injured his back while driving a forklift. He was certified unfit for work by his treating doctor until 14 April 2004, and returned to work on 15 April 2004. Mr Gallagher lodged a claim for weekly compensation of $699.00 pursuant to section 36 of the Workers Compensation Act 1987 (‘the 1987 Act’) and for medical expenses of $188.30 pursuant to section 60 of the 1987 Act.

1. On 17 August 2004, Mr Gallagher lodged an ‘Application for an Interim Payment Direction’ with the Commission. On 14 September 2004, a delegate of the Registrar made the Direction requested. On 24 September 2004, Mayne Group lodged an ‘Application to Revoke an Interim Payment Direction’. On 11 November 2004, a different delegate of the Registrar ordered that this Application be dismissed. No order for costs was made in relation to either of these applications.

1. The parties were unsuccessful in agreeing on the quantum of costs payable and, on 30 September 2005, Mr Gallagher’s solicitors lodged an ‘Application for Assessment of Costs’ with the Registrar in respect of their Bill of Costs dated 13 October 2004. Mr Gallagher’s solicitors’ submissions were included with its Application. Mayne Group filed its submissions on 13 October 2005.

1. The Registrar delegated the assessment to a Commission Arbitrator who made a determination dated 18 January 2006. The Certificate of Determination stated:

“1. Pursuant to Interim Payment Order the Respondent employer is liable to pay the Applicant’s costs of the Application as agreed or assessed.
2. The Applicant’s costs of the proceedings assessed in the sum of $695.00 (inclusive of GST) are determined as fair and reasonable.
3. The Applicant’s costs of the assessment (inclusive of GST) are allowed in an amount of $250.00.
4. The Respondent is to pay the amount of $945.00 to the Applicant if those costs have not already been paid.”

1. In his ‘Statement of Reasons for Decision’, the Arbitrator said:

“12. For the same reasons as my colleague, Arbitrator Messenger in Dunne v KL Air Pty Ltd (10339-2004), I determine that it is not necessary for the Commission to make an Order for Costs in an Application for an Interim Payment Order. As a result of the operation of the Schedule the costs are payable and those costs set by the Schedule limit professional costs to $200.00.

13. Clause 1(1) d [sic] of Schedule 6 does not regulate disbursements. I allow the costs of Dr Wong of $495.00.

14. As for the Respondent’s application to “Revoke” the Interim Payment Order there is no similar provision in Schedule 6 that proscribes [sic] the costs of such an application and therefore absent an Order of the Commission the Applicant does not have an entitlement to the costs of that Application. All other costs of the Applicant claimed in the Bill of 13 October (except as allowed in paragraphs 12 and 13 above) are therefore not assessable.

15. The Applicant has been successful in recovering costs and is therefore entitled to its costs in this Application that I determine to be $250.00.”

The Schedule referred to is Schedule 6 of the Workers Compensation Regulation 2003 (‘the 2003 Regulation’).

ISSUES IN DISPUTE

1. The grounds of appeal identified by Mayne Group are, in summary, first, that the Arbitrator made an error of law by determining that costs can be assessed even where no costs order has been made by the Commission, and, second, that the Arbitrator made an error in ordering costs in respect of the ‘Application for Assessment of Costs’, despite Item 3.01 of the Compensation Costs Table (‘the Table’) in the 2003 Regulation limiting costs to $200.00 in an expedited assessment matter. These grounds and Mr Gallagher’s solicitors’ submissions in relation thereto 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. I have had regard to Practice Directions Numbers 1 and 6, the documents before me (which include the parties’ written submissions to the Arbitrator on the assessment), and the submission by Mr Gallagher’s solicitors that the matter can be decided ‘on the papers’. Mayne Group is silent on this issue, although I note their solicitors’ letter, dated 22 February 2006, seems to assume an oral hearing. That such an assumption is mistaken is clear from Practice Direction Number 1 which notes that many disputes will be suitable for determination on the papers, and sets out a number of factors that may be relevant to such a decision. The Registrar’s letter dated 3 March 2006 reminded the parties that the matter could be determined solely on the basis of the written application and any notice of opposition. Since this is a relatively straightforward matter concerned only with legal issues and involving a relatively small sum of money, 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.

DISCUSSION

Can costs be assessed where the Commission has made no costs order?

1. Mayne Group contends that the Arbitrator made an error of law by determining that costs could be assessed despite no order for costs having been made by the Commission: it contends there was no jurisdiction to assess costs without an order. The Arbitrator erred by relying on the decision of Arbitrator Messenger in Dunn v KL Air Pty Ltd (WCC 10339-2004) (‘Dunn’), which Mayne Group submits was wrongly determined.

1. Mr Gallagher’s solicitors submit there was no error of law, and clause 98 of the 2003 Regulation specifically allows for an application to be made for an assessment of costs without an order of the Commission for the payment of costs. They rely on the decision of Arbitrator Messenger in Dunn that, in accordance with Item 3.01 of the Table, the Applicant’s solicitor is entitled to costs when the Registrar makes an Interim Payment Direction. They note that the definition of ‘costs’ in section 332 of the 1998 Act does not limit costs to those that are the subject of an order, and the terms of the Commission’s discretion in section 341 states that the Commission “has full power to determine by whom, to whom and to what extent costs are to be paid” (section 341(2)).

1. In my view, Mr Gallagher’s solicitors are correct. Mayne Group referred to three decisions in support of its appeal. Two of those decisions, the decision of Arbitrator Lancken in Wright v BHP Billiton Ltd (WCC 8235-2004) and of Deputy President Fleming in Berger v Moree Plains Shire Council [2005] NSWWCCPD 152, include discussion of clause 99 of the 2003 Regulation in which there is specific reference to the entitlement to costs arising “as a result of an order”. There is no such restriction contained in clause 98, relevant in Mr Gallagher’s case, which states in subsection (1) merely that “A legal practitioner or agent who has given a bill of costs may apply to the Registrar for an assessment of the whole of, or any part of, those costs”. Thus, neither of those cases is relevant to this matter. The third decision referred to by Mayne Group is Roads and Traffic Authority v Warden [2004] NSWWCCPD 55. In my view, this decision, in which Deputy President Byron found a Certificate of Determination issued by a delegate of the Registrar to be a nullity because there was no substantive dispute before the Commission, deals with the Commission’s jurisdiction pursuant to section 352(2) of the 1998 Act, and is also not relevant to the issue in dispute in this matter.

1. Thus, I reject Mayne Group’s submissions that the Arbitrator made an error of law. Pursuant to Item 3.01 of the Table, a party who successfully applies to the Registrar for an Interim Payment Direction is entitled to costs in respect of that Direction without an order of the Commission. It is also clear from the ordinary meaning of the words in clause 98 of the 2003 Regulation, that this clause permits the Registrar to entertain and determine an application by a legal practitioner or agent for assessment of costs, notwithstanding that no order for the payment of costs has been made by the Commission.

Costs in respect of an Application for Costs

1. Mayne Group also contends that the Arbitrator made an error in ordering costs in respect of the Application for Costs, despite the maximum of $200.00 stipulated by Item 3.01 of the Table in respect of applying for expedited assessment to the Commission. Mr Gallagher’s solicitors submit that this ground is misconceived: the Table does not regulate the issue of disbursements.

1. Item 3.01 of the Table is specifically referrable to the legal practitioner’s professional costs for “Applying for expedited assessment to the Commission”. It does not include disbursements such as the $495.00 ($450.00 plus $45.00 GST) claimed by Mr Gallagher’s solicitors in respect of a report by Dr Wong from, it would appear, April 2004. The fees recoverable for such medical reports were, at the relevant time, regulated by the Workplace Injury Management and Workers Compensation (Medical Examinations and Reports) Order 2003 (now replaced by the Workplace Injury Management and Workers Compensation (Medical Examinations and Reports) Order 2005, effective 23 December 2005). Mr Gallagher’s professional costs in respect of their ‘Application for Assessment of Costs’ are recoverable under Item 9.01 of the Table.

1. Thus, the Arbitrator did not make an error of law in ordering Mayne Group to pay Mr Gallagher’s solicitors’ costs of the assessment.

DECISION

1. The decision of the Registrar is confirmed.

COSTS

1. In my view, it is reasonable to order that Mayne Group pay Mr Gallagher the amount of $250.00 in respect of his solicitors’ costs in this appeal.

1. The Appellant, Mayne Group Ltd, is to pay the Respondent, Mr Gallagher, the amount of $250.00 in respect of his costs in this appeal.

Robin Handley

Acting Deputy President  

31 August 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