Legal Research
Cases
Nebauer v Hunter Area Health Service

Nebauer v Hunter Area Health Service

Link copied

Case Copied 30 August 2004 9 min read

Contents

On this page

WORKERS COMPENSATION COMMISSION

APPEAL FROM REGISTRAR’S DETERMINATION ON COSTS

CITATION:Nebauer v Hunter Area Health Service [2004] NSW WCC PD 60
APPELLANT:  Maxine Nebauer
RESPONDENT:  Hunter Area Health Service
INSURER:Treasury Managed Fund Workers Compensation
FILE NUMBER:  WCC4100-2004
DATE OF REGISTRAR’S DECISION:               17 May 2004
DATE OF APPEAL DECISION:  30 August 2004
SUBJECT MATTER OF DECISION: Part 2A Item 2.05 of Schedule 6 of the Workers Compensation Regulation 2003, Exercise of Discretion by Registrar.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming
HEARING:On the papers
REPRESENTATION:  Appellant: Whitelaw McDonald Solicitors & Attorneys
Respondent: Sparke Helmore Solicitors

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

THE APPEAL

On 9 June 2004 Maxine Nebauer (‘the Appellant’) 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 Hunter Area Health Service (‘the Respondent’). The relevant insurer, for the purposes of the appeal, is Treasury Managed Fund Workers Compensation.

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 28 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 $3,451.50.
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 $3,451.50 to the Applicant if those costs have not already been paid.”

The Appellant seeks to have the decision of the Registrar’s Delegate revoked on the basis that his determination in respect of Item 2.05 of Schedule 6 of the Workers Compensation Regulation 2003 (‘the Regulation’) is incorrect.

The Respondent submits that the Registrar’s Delegate has not made an error of law and his decision should be upheld.

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).

JURISDICTION

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…

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.

Keep reading for free

Create a free CaseChat account to read Nebauer v Hunter Area Health Service and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWWCCPD 60
Decision Date: 30 August 2004

CaseChat Overview and Summary

In the matter of Maxine Nebauer v Hunter Area Health Service, the appellant, Ms. Nebauer, appealed a decision made by the Registrar regarding costs. The respondent, Hunter Area Health Service, and the insurer, Treasury Managed Fund Workers Compensation, were the parties involved. The appeal centred on the interpretation of Item 2.05 of Schedule 6 of the Workers Compensation Regulation 2003, specifically regarding the disallowance of certain costs claimed by Ms. Nebauer. The dispute involved whether the costs associated with briefing a factual investigator to obtain evidence, other than witness statements, were allowable under the regulation. The central legal issue was whether the Registrar's Delegate correctly exercised his discretion in disallowing these costs.

The court examined whether the factual investigation report and the associated costs were properly disallowed under the regulation. Ms. Nebauer argued that the factual investigation report should be considered a claimable disbursement and that the cost of briefing the investigator was allowable. The Respondent contended that the costs were not allowable because the investigation report related to obtaining witness statements, which are specifically excluded under the regulation. The court considered the relevant provisions of the regulation, including Clause 82, which outlines costs not regulated by Part 19, and Clauses 105 and 106, which provide guidelines for the assessment of costs. The court concluded that the Registrar’s Delegate had not erred in the exercise of his discretion, affirming the disallowance of the claimed costs. The decision of the Registrar was upheld, and the appeal was dismissed.

Orders