Nimbin Hotel Pty Limited v Dalton - [2007] NSWWCCPD 17

WORKERS COMPENSATION COMMISSION

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

CITATION:Nimbin Hotel Pty Limited v Dalton [2007] NSWWCCPD 17

APPELLANT: Nimbin Hotel Pty Limited

RESPONDENT: Shane Edward Dalton

INSURER:CGU Workers Compensation (NSW) Limited

FILE NUMBER:  WCC19908-05
DATE OF REGISTRAR’S DECISION:             6 April 2006
DATE OF APPEAL DECISION:  18 January 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s Assessment of Costs: Items 2.01, 2.06, 4.05, 4.08, 4.09, 4.11 and 4.10 of Schedule 6 of the Workers Compensation Regulation (2003); disbursements – agency fees.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      Sparke Helmore Lawyers
Respondent: Attwood Marshall Lawyers

ORDERS MADE ON APPEAL: 1. The Registrar’s determination of Mr
Dalton’s claim for costs in this matter, dated 6 April 2006 is amended in accordance with these reasons.

2. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 4 May 2006 Nimbin Hotel Pty Limited (‘Nimbin Hotel’) filed an ‘Appeal Against a Cost Determination’ made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 6 April 2006. The Respondent to the appeal is Shane Edward Dalton (‘Mr Dalton’). On 30 May 2006 Mr Dalton filed a ‘Notice of Opposition’ to the appeal.

Mr Dalton commenced proceedings in the Commission on 23 November 2004 seeking compensation benefits as a consequence of a number of injuries he sustained in a motor vehicle accident on 29 January 2003.

The parties attended an arbitration hearing on both 1 April 2005 and 12 October 2005. On 17 October 2005 a ‘Certificate of Determination- Consent Orders’ was issued which set out the terms of the agreed resolution of the issues in dispute between the parties. Those terms included an order that Nimbin Hotel pay Mr Dalton’s costs “as agreed or assessed”. It is noted that the Arbitrator certified the matter as “complex” stating as follows:

“This was a journey claim which ran over two days. At issue was whether the Applicant’s injury was attributable to the Applicant’s own serious and wilful misconduct, arising from his allegedly being under the influence of alcohol … there were complex issues of fact and law to be determined …”

On 22 November 2005, the parties having failed to agree on the costs payable, Mr Dalton’s solicitors filed an ‘Application for Assessment of Costs’ with the Commission in respect of their Bill of Costs dated 17 October 2005. By Notices dated 9 January 2006, the Commission invited the parties to file and serve written submissions. The parties remained in dispute as to certain Items.

The Registrar delegated the assessment of costs to a Commission Arbitrator (‘the Delegate’) who made a determination dated 6 April 2006. The ‘Certificate of Determination’ stated as follows:

“1. Pursuant to an Order dated 17 October 2005 the Respondent employer is liable to pay the Applicant’s costs of the proceedings as agreed or assessed.

2. The Applicant’s costs of the proceedings are assessed at $11,709.26 (inclusive of GST) are determined as…

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 17
Decision Date: 18 January 2007

CaseChat Overview and Summary

Nimbin Hotel Pty Limited sought to appeal against the Registrar’s determination of costs in the proceedings between itself and Mr Dalton. The matter had been the subject of a prior arbitration, resulting in an agreed resolution of the issues in dispute. The terms of the resolution included an order that Nimbin Hotel pay Mr Dalton’s costs “as agreed or assessed.” The appeal centred on the Registrar’s assessment of specific items of costs, particularly those related to professional fees and disbursements, including agency fees. Nimbin Hotel contested the assessment, arguing that certain fees were incorrectly calculated at an increased rate following the introduction of new regulatory rates and that the agency fees were not allowable.

The court examined the arguments presented by both parties. Nimbin Hotel contended that the increased rates for certain items should not apply as the services in question were performed before the new rates came into effect. Conversely, Mr Dalton argued that the Delegate had correctly applied the new rates and provided adequate reasoning for the increase. The court found that the Delegate had erred in applying the increased rates for certain items of professional fees as these items were not subject to the new rates, having been performed prior to their introduction. Regarding the agency fees, the court upheld the Delegate’s decision, finding that the fees were reasonably incurred and represented a fair and reasonable value for the service provided.

The court amended the Registrar’s determination, reducing the total costs awarded to Mr Dalton by $275.00 inclusive of GST. The final order set the total amount of costs to be $11,434.26 inclusive of GST. The court made no order as to the costs of the appeal, deeming it appropriate under the circumstances.

Orders