McCrae v KT Hine - [2006] NSWWCCPD 305

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:McCrae v KT Hine [2006] NSWWCCPD 305
APPELLANT:  Donald McCrae
RESPONDENT:  KT Hine
INSURER:Alliance Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER:  WCC11472-05
DATE OF REGISTRAR’S DECISION:             20 October 2005
DATE OF APPEAL DECISION:  13 November 2006
SUBJECT MATTER OF DECISION: Appeal against Registrar’s decision in relation to costs; fee for private investigator’s report; claims under Items 2.06, 9.01 and 10.01 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: McCabe Partners Lawyers
Respondent: Glenn Capel, Solicitor

ORDERS MADE ON APPEAL: The Registrar’s determination of Mr McCrae’s claim for costs in this matter, dated 20 October 2005, is amended in accordance with these reasons.
.
The Respondent, KT Hine, is to pay the Appellant, Mr McCrae $275.00 inclusive of GST in respect of his costs in this appeal.

BACKGROUND TO THE APPEAL

On 7 November 2005, Donald McCrae filed an appeal against a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 20 October 2005. The Respondent to the appeal is KT Hine and Mr Hine’s workers compensation insurer is Alliance Australia Workers’ Compensation (NSW) Ltd (‘Allianz’). On 21 November 2005, Allianz’s solicitor filed submissions in relation to the appeal.

Mr McCrae was born on 23 January 1926 and is aged 80. Until 1994, he was employed as a shearer by Mr Hine, against whom he succeeded in workers compensation proceedings in the Compensation Court of NSW in respect of various injuries. In about 2002, Mr McCrae made a claim for industrial deafness. Allianz offered Mr McCrae compensation for binaural hearing loss and pain and suffering, which he accepted. However, Allianz denied liability for the cost of hearing aids. In March 2003, Mr McCrae’s solicitors made a claim on his behalf for this expense.

On 7 October 2003, the Commission registered Mr McCrae’s ‘Application to Resolve a Dispute’. Allianz’s ‘Reply’ was filed on 12 November 2003. Following a teleconference conducted by an Arbitrator on 19 January 2004, the parties came to an agreed resolution of the issues in dispute, and the Arbitrator issued a Certificate of Determination dated 24 February 2004 in the following terms:

“1. This Application is discontinued by consent. The parties to file a notice pursuant to Rule 74 within 7 days.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.

The following is not a determination of the Commission, however, I note that the parties have agreed the following:
The Respondent to pay the Applicant [sic] lump sum $12,155 pursuant to section 66 of the Act in respect of 18.3% binaural hearing loss due to industrial deafness, plus lump sum $6,100 pursuant to section 67. The Respondent will pay the Applicant s60 of the Act expenses in the amount of $3,200 for hearing aids.”

The parties being unable to agree to the costs payable, on…

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: [2006] NSWWCCPD 305
Decision Date: 13 November 2006

CaseChat Overview and Summary

Donald McCrae, an 80-year-old former shearer, appeals against a decision of the Registrar of the Workers Compensation Commission regarding costs. The appeal concerns the assessment of certain costs incurred during the resolution of a dispute over compensation for industrial deafness. The parties had previously agreed on certain terms of compensation, but disagreement arose over the costs of a hearing aid. The appeal specifically challenges the Registrar's disallowance of costs claimed under Items 2.06, 9.01, and 10.01 of the Compensation Costs Table, as well as the balance of a disbursement for a private investigator's report.

The legal issues revolve around whether the Arbitrator correctly assessed the costs and if there was an error of law in the disallowance of the claims. The appeal hinges on whether the Arbitrator's decisions were fair and reasonable, particularly in light of the statutory framework and recent case law. The Arbitrator's decisions were scrutinized to determine if there was any miscarriage of discretion or an unlawful exercise of power.

Upon review, the Acting Deputy President found that the Arbitrator did err in some respects. For Item 2.06, it was determined that there was evidence of a request for review, and thus an award of $250 (plus GST) was appropriate. For Item 9.01, the Acting Deputy President found it fair and reasonable to allow a reduced amount for the costs of the assessment, setting it at $300 (plus GST). However, the disallowance of Item 10.01 and the limited award for the private investigator's report were upheld as reasonable. Consequently, the total costs awarded should be increased by $605 to $3,313.50.

The final decision amends the Registrar's determination, ordering KT Hine to pay Mr McCrae $275.00 inclusive of GST for the costs of this appeal. This amount reflects the partial success of Mr McCrae's solicitors in the appeal.

Orders