Moore v PM & JH Turner - [2006] NSWWCCPD 110

WORKERS COMPENSATION COMMISSION

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

CITATION:Moore v PM & JH Turner [2006] NSWWCCPD 110

APPELLANT: Peter William Moore

RESPONDENT: PM & JH Turner

INSURER:QBE Workers Compensation (NSW) Limited

FILE NUMBER:  WCC20418-04
DATE OF REGISTRAR’S DECISION:             2 March 2005
DATE OF APPEAL DECISION:  5 June 2006
SUBJECT MATTER OF DECISION: Recovery of costs pursuant to Clause 82 and Schedule 6 of the Workers Compensation Regulation 2003.
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 decision of the Registrar dated 2 March 2005 is confirmed.

2. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 1 April 2005, Peter William Moore (‘the Appellant’) filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator.

The Respondent to the appeal is PM & JH Turner (‘the Respondent’). The relevant workers compensation insurer is QBE Workers Compensation (NSW) Limited (‘QBE’). Neither the Respondent nor insurer has filed an appearance or any submissions in the appeal. A ‘Certificate of Service’ filed by the Appellant on 8 April 2005 indicated that the appeal was served on QBE on 6 April 2005.

The Registrar’s decision (by her delegate, a Commission Arbitrator) made on 2 March 2005, is as follows:

“1. Pursuant to an Agreement and Order dated 3 April 2004 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 $3,697.00 (inclusive of GST) are determined as fair and reasonable.

3. Part of the Applicant’s costs of the assessment (inclusive of GST) are allowed in an amount of $125.00.

4. The Respondent is pay the amount of $3,822.00 to the Applicant if those costs have not already been paid.”

In making an assessment of costs, the Registrar noted that the parties had reached agreement with respect to a number of Items set out in Schedule 6 of the Workers Compensation Regulation 2003 (‘the Regulation’) but that Item 1.01 and Item 2.06 remained in dispute. In addition, the Registrar disallowed a number of disbursements sought by the Appellant’s solicitors.

The substantive file is not available however, it appears that the Appellant’s claim was for permanent impairment compensation. It is noted that an ‘Application for Registration of Agreement’ under section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’) was completed on 5 February 2004.

The Appellant seeks payment of costs in respect of all events undertaken in connection with the preparation of the substantive claim.

ON THE PAPERS REVIEW

The Appellant submits that:

“This matter should not be dealt with ‘on the papers’ and should be listed for oral submissions before the Registrar. Any decision in regards to the payment of private investigator’s fees would have a significant consequence upon the Applicant and may result in an Appeal to…

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 110
Decision Date: 5 June 2006

CaseChat Overview and Summary

The case of Moore v PM & JH Turner involved an appeal by Peter William Moore against a decision of the Registrar concerning the recovery of costs pursuant to Clause 82 and Schedule 6 of the Workers Compensation Regulation 2003. The appeal was against the Registrar's assessment of costs in proceedings determined by a Commission Arbitrator. The Respondent to the appeal was PM & JH Turner, and the relevant workers compensation insurer was QBE Workers Compensation (NSW) Limited. The Registrar had determined that the Appellant's costs of the proceedings assessed in the sum of $3,697.00 (inclusive of GST) were fair and reasonable. However, the Appellant disagreed with the Registrar's disallowance of certain disbursements, including the fees for an investigator's report and an accountant's statement.

The principal legal issues in dispute were whether the Registrar correctly disallowed the fees for the investigator's report and the accountant's statement. The Appellant argued that the investigator's fee was necessary for the independent investigation of the facts and circumstances of the injury, and that disallowing the fee would result in a denial of procedural fairness. As for the accountant's fee, the Appellant submitted that it was necessary to investigate whether he had suffered a wage loss from 1996 through to 2005 to determine the nature and extent of his claim.

The court considered the submissions made by the Appellant and the relevant authorities. It was noted that Deputy President Fleming in Berger v Moree Plains Shire Council had concluded that costs regulated under Clause 82 of the Workers Compensation Regulation 2003 are subject to the same assessment process as costs included in the Compensation Costs Table in Schedule 6. The court also considered the contents of the investigator's report and the accountant's statement and found that there was no evidence of an independent investigation or reasonable necessity for the disbursements claimed.

The court concluded that the Appellant had not demonstrated any error of law by the Registrar in relation to the assessment of costs in Commission proceedings. The decision of the Registrar dated 2 March 2005 was confirmed, and no order as to costs of the appeal was made.

In conclusion, the appeal was dismissed, and the decision of the Registrar was upheld. The Appellant was not entitled to the disallowed disbursements, and the Registrar's assessment of costs was fair and reasonable.

Orders