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McManus v Gosford City Council

McManus v Gosford City Council

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WORKERS COMPENSATION COMMISSION

APPEAL FROM REGISTRAR’S DETERMINATION ON COSTS

CITATION:McManus v Gosford City Council [2004] NSW WCC PD 61
APPELLANT: Clint McManus
RESPONDENT: Gosford City Council

FILE NUMBER:  WCC4169-2004
DATE OF REGISTRAR’S DECISION:               17 May 2004
DATE OF APPEAL DECISION:  1 September 2004
SUBJECT MATTER OF DECISION: Investigator fees, Attendance fees of agents, Clause 82, Items 4.12, 10.01 of Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming
HEARING:On the papers
REPRESENTATION:  Appellant: Whitelaw McDonald Solicitors & Attorneys
Respondent: Hunt & Hunt Lawyers

ORDERS MADE ON APPEAL: The assessment of the Registrar is amended in accordance with these reasons.

THE APPEAL

On 9 June 2004 Clint McManus (‘the Appellant/Mr McManus’) sought leave to bring an ‘Appeal from Registrar’s Determination on Costs’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 May 2004.

The Respondent to the Appeal is Gosford City Council (‘the Respondent’) who is a self-insurer, for the purposes of the appeal.

The Registrar delegated the assessment of costs to an Arbitrator pursuant to section 371(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The Certificate of Determination of Applicant’s Costs, dated 17 May 2004, records the Registrar’s orders as follows:

“By agreement the Respondent employer is liable to pay the Applicant’s costs of the Application as agreed or assessed.
Assessment
The costs are assessed as follows:
1. The Applicant’s costs of the proceedings are assessed at $3,993.00
2. The Applicant’s costs of the Assessment are assessed at $Nil

Determination
It is further determined that:
3.The Respondent is to pay the amount of $3,993.00 to the Applicant if those costs have not already been paid.”

The appeal was referred to me on 23 August 2004.

I am satisfied that I have sufficient information to determine the appeal ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances (section 354(6) of the 1998 Act).

ISSUES IN DISPUTE

The Appellant (the Applicant in the original proceedings) submits that the Registrar’s Delegate (‘the Delegate’) was incorrect in his interpretation and findings of various items in Part 2A of Schedule 6 of the Workers Compensation Regulation 2003 (‘the Regulation’). The Arbitrator’s reasons for decision were issued with the costs assessment. On the issues relevant to this appeal the Delegate found:

Item	Amount Claimed	Amount by which the bill should be reduced	Reasons
2.01	$500.00	$0	It is reasonable that the Applicant spent 2 hours taking instructions. I disallow the cost for the investigators report (see below). 2 hours is a reasonable time to take instructions which includes the time spent obtaining a statement.
2.05	$100.00	$100.00	I find below that the investigators account is not a disbursement and disallow it. It follows that the costs of obtaining the report are also not allowed.
4.12	$570.00	$380.00	The maximum allowed in the Schedule for this type of activity is $190.00. In any event the regulation requires the activity to take…

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: [2004] NSWWCCPD 61
Decision Date: 1 September 2004

CaseChat Overview and Summary

In McManus v Gosford City Council, the appellant contested a decision of the Registrar concerning the costs incurred in a matter before the Commission. The dispute primarily centred around the interpretation and application of the Regulation, particularly concerning the recovery of investigator's fees and agents' fees. The case was heard and determined by the Commission, which was constituted by a Presidential member.

The primary legal issues before the court were whether the investigator's fees were allowable disbursements and if the disallowance of agents' fees constituted discrimination against firms outside the Sydney CBD. The appellant argued that Clause 82B of the Regulation did not limit fees for investigator's reports and other materials produced by investigators, thus making the investigator's fee an allowable disbursement. Furthermore, the appellant contended that the disallowance of agents' fees was discriminatory against firms located outside the Sydney CBD, as it would prevent them from recovering costs for engaging agents for document inspection before the Commission.

The court examined the relevant provisions of the Regulation and Schedule 6, particularly Clause 82, Clause 105, and Clause 106, and considered the appellant's submissions. The court found that the appellant's interpretation of Clause 82B was incorrect and that the disallowance of the investigator's fees was in accordance with the Regulation. The court also found that the disallowance of agents' fees did not constitute discrimination against firms outside the Sydney CBD, as the Regulation did not provide for such fees to be recoverable.

The court dismissed the appeal and affirmed the Registrar's decision. The appellant was not entitled to recover the investigator's fees or the agents' fees as part of the costs in the matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Part 19 of the Regulation (made pursuant to section 347 of the 1998 Act) provides for the determination of ‘costs’ in matters before the Commission. The process for the assessment of costs, by the Registrar, is set out at Division 4 of Part 19. Subdivision 5 of Division 4, Clause 119 provides as follows:“119Appeal against decision of Registrar as to matter of law(1)A party to an application who is dissatisfied with a decision of the Registrar as to a matter of law arising in the proceedings to determine the application may, in accordance with the Rules of the Commission, appeal to the Commission constituted by a Presidential member against the decision. (2)The appeal is to be in the form approved by the Commission and be accompanied by the fee approved by the Commission from time to time. (3)After deciding the question the subject of the appeal, the Commission constituted by a Presidential member may, unless it affirms the Registrar’s decision: (a)make such determination in relation to the application as, in its opinion should have been made by the Registrar, or(b)remit its decision on the question to the Registrar and order the Registrar to re-determine the application. (4)On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.” Clause 82 of the Regulation prescribes the costs that are not regulated by Part 19, as follows: Clause 105 and Clause 106 of the Regulation directs the Registrar as to how an assessment of costs is to be made. These clauses provide as follows: The Items relevant to this appeal are listed in the Compensation Costs Table found in Schedule 6 Maximum costs – compensation matters, which provides as follows: The Appellant submits that Part 19 Clause 82 of the Regulation deals with costs that are not regulated by Schedule 6. More specifically, the Appellant contends that Clause 82B “places no limits on fees for Investigator’s reports or for other material produced or obtained by Investigators such as witness statements or other evidence”. On this basis, the Appellant submits that the investigator’s fee should be an allowable disbursement. The Appellant submits that the Delegate’s determination with respect to item 4.12 of Schedule 6 is incorrect. The Appellant refers to the decision of the Court of Appeal in Orellana-Fuentes v Standard Knitting Mill Pty Limited [2003] NSW CA 146 (20 June 2003) and maintains that the Appellant is entitled to provide the worker with advice “at the end of the initial telephone conference, the end of the Conciliation phase and at the end of the Arbitration phase”. In relation to the recovery of agents’ fees pursuant to item 10.01 of Schedule 6, the Appellant submits that an attendance by an agent before the Commission to inspect documents produced under direction constitutes a “representation before the Commission”. Furthermore, the Appellant contends that disallowing these fees would be discriminatory against firms that are located outside the Sydney CBD as they would be unable to recover the costs for engaging agents for document inspection before the Commission.

Ratio Decidendi

Legal Principle Established

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