McGlynn v N Gebhardt & R Gebhardt - [2007] NSWWCCPD 37

WORKERS COMPENSATION COMMISSION

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

CITATION:McGlynn v N Gebhardt & R Gebhardt [2007] NSWWCCPD 37
APPELLANTS: Therese Fay McGlynn on behalf of the late Timothy Gordon McGlynn and John Leslie Purtell on behalf of Courtney and Jack McGlynn

RESPONDENT: N Gebhardt & R Gebhardt

INSURER:QBE Workers Compensation (NSW) Limited

FILE NUMBER:  WCC9037-05
DATE OF REGISTRAR’S DECISION:             28 February 2006
DATE OF APPEAL DECISION:  7 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s Assessment of Costs: Various Items in Schedule 6 of the Workers Compensation Regulation (2003); Death claim; whether additional feels allowed for joining of two dependant children represented by the Public Trustee; disbursements and costs.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondent: QBE In-House Legal

ORDERS MADE ON APPEAL: 1. The Registrar’s determination of the Appellants’ claim for costs in this matter, dated 28 February 2006 is amended in accordance with these reasons.

2. The Respondent, N Gebhardt and R Gebhardt is to pay the Appellants $687.50 (inclusive of GST) in respect of their costs of the assessment.
3. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 17 March 2006 Therese Fay McGlynn on behalf of the late Timothy Gordon McGlynn and John Leslie Purtell on behalf of Courtney and Jack McGlynn (‘the Appellants’) filed an ‘Appeal Against a Cost Determination’ made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 28 February 2006. The Respondent to the appeal is N Gebhardt and R Gebhardt (‘the Respondent’). The Respondent’s insurer is QBE Workers Compensation (NSW) Limited (‘QBE’).

No submissions have been filed by the Respondent in opposition to the appeal.

Therese Fay McGlynn on behalf of the late Timothy Gordon McGlynn commenced proceedings in the Commission on 3 June 2004 against the Respondent seeking weekly benefits compensation in respect of three children, Christopher Timothy McGlynn, Courtney Jane McGlynn and Jack William McGlynn together with a lump sum death benefit as a result of the death of Timothy Gordon McGlynn in a motor vehicle accident in the course of his employment on 23 February 2004.

In its Reply filed on 14 September 2004, the Respondent stated that liability was not in dispute in that the lump sum benefit in the sum of $285,750.00 had already been paid to the Public Trustee. The Respondent conceded that the children Courtney McGlynn and Jack McGlynn were totally dependant for support on the deceased and were entitled to weekly payments. The only issue in dispute was the dependancy of the eldest child Christopher McGlynn and the question of apportionment of the lump sum between the claimed dependants.

Following a Teleconference on 14 September 2004, the Arbitrator directed that the then Applicant, Therese McGlynn: “… Formally enjoin the Public Trustee to the proceedings within four days in respect to the youngest sons [sic].”

As a consequence of that direction, Ms McGlynn’s solicitor filed an…

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 37
Decision Date: 7 February 2007

CaseChat Overview and Summary

In this workers compensation case, the Appellants, Therese Fay McGlynn on behalf of the late Timothy Gordon McGlynn and John Leslie Purtell on behalf of Courtney and Jack McGlynn, appealed the Registrar's assessment of costs in a death claim. The Respondent, N Gebhardt and R Gebhardt, had already conceded liability for the lump sum death benefit and weekly payments for the children, but disputed the dependency of the eldest child and the apportionment of the lump sum. The key issue was whether additional fees were allowed for the joining of two dependent children represented by the Public Trustee.

The court found that the Delegate's decision to disallow professional costs in relation to the second applicant was correct as the claims had already been allowed. However, the court held that it was appropriate to award additional fees in respect of the additional work undertaken relative to the two applicants. The court allowed an additional 25% for the costs incurred in the proceedings relative to the additional applicant, bringing the total assessed costs to $10,047.35 inclusive of GST. The Appellants were also awarded $687.50 (inclusive of GST) in respect of their costs of the assessment. No order was made as to costs of the appeal as the Appellants' solicitor was only successful to the extent of the additional fees awarded.

Orders