Oliver v Granville RSL Sub-Branch Club Ltd
[2006] NSWWCCPD 56
•3 April 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Oliver v Granville RSL Sub-Branch Club Ltd [2006] NSWWCCPD 56
APPELLANT: Dion Oliver
RESPONDENT: Granville RSL Sub-Branch Club Ltd
INSURER:CGU Workers Compensation
FILE NUMBER: WCC11862-03
DATE OF REGISTRAR’S DECISION: 20 December 2004
DATE OF APPEAL DECISION: 3 April 2006
SUBJECT MATTER OF DECISION: Item 2.08 of Schedule 6 of the Workers Compensation Regulation 2003
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Gerald Malouf & Partners
Respondent: No Appearance on Appeal
ORDERS MADE ON APPEAL: The Registrar’s ‘Determination of a Claim for Costs’ in this matter, dated 20 December 2004, is amended in accordance with these reasons.
The Respondent is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
On 3 February 2005 Dion Oliver filed an appeal against the Registrar’s assessment of costs in relation to proceedings previously determined by a Commission Arbitrator.
The Respondent to the appeal is the employer, Granville RSL Sub-Branch Club Ltd (‘the Club’). The relevant workers compensation insurer is CGU Workers Compensation (NSW) Ltd (‘CGU’). Neither the employer nor insurer has filed an appearance or any submissions in the appeal. A Certificate of Service filed by Mr Oliver’s solicitors on 11 February 2005 indicates that the appeal was served on CGU on 10 February 2005.
The Registrar’s decision (by her delegate, a Commission Arbitrator) was made on 20 December 2004.
I have before me the submissions that were made to the Registrar by both parties and the submissions of Mr Oliver on appeal. I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
In making an assessment of costs the Registrar determined that Mr Oliver had made out his claim for costs under Item 2.08 of Schedule 6 of the Workers Compensation Regulation 2003 (‘the Regulation’). The Registrar then found that “the maximum . . . is not warranted” and ordered an allowance of “$325.00 plus GST”.
The appeal is on only one issue, namely the assertion by Mr Oliver that:
“The Registrar erred in the interpretation of Item 2.08 as this item has a set rate and not one that should be apportioned, it is not based on an hourly rate.
The Registrar’s interpretation would appear to be contrary to the spirit of the legislation which seeks to encourage early resolution of disputes by providing costs incentives hence the set rate of $750.00 which is payable only prior to lodgement of proceedings with the Commission.”
Appeals are governed by clause 119 of the Regulation, which provides as follows:
“119 Appeal 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.
DISCUSSION AND FINDINGS
The question of whether a regulatory provision is strict or provides an Arbitrator with a discretion is a matter of law.
Item 2.08 of Schedule 6 of the Regulation provides as follows:
“Agreeing terms of settlement with the insurer in the case of a claim for compensation under section 66 or 67 of the 1987 Act following a review of the claim by the insurer.”
Maximum amount for individual activity/event $750
Maximum total for type of activity/event $750”Clause 2(b) of Schedule 6 provides that:
(2) The maximum costs for an activity or event described in a Part of the table and carried out in or in relation to a claim made or to be made in respect of a particular injury are as follows:
…(b) Certain events or activities on behalf of claimant until dispute referred or order sought For an activity or event carried out on behalf of a claimant in any of the following circumstances (other than for an activity or event covered by paragraph (d) of this clause and Part 3 of the table):
(i). . .
(ii). . .
(iii)the insurer makes a reasonable offer of settlement (in the case of a claim for compensation under section 66 or 67 of the 1987Act)
(iv). . .
- the cost set out in Column 3 of Part 2A, of the table opposite that activity or event up to the maximum total costs for that type of activity or event set out in Column 4 of the table”. (emphasis added)
The words of Schedule 6 must be given their ordinary meaning.
Mr Oliver is correct to state that the cost in the table for Item 2.08 is not an ‘hourly rate’. In those items in Schedule 6 where an hourly rate (e.g. Item 2.04A) or ‘activity/event’ rate (e.g. Item 2.04) is set in Column 3, the ‘maximum amount’ (Column 3) and the ‘maximum total’ (Column 4) for an item may differ.
Next to Item 2.08 the ‘maximum amount’ in Column 3 is $750. The ‘maximum total’ in Column 4 is the same, i.e. $750. On Mr Oliver’s reasoning in the appeal the amount in Column 3 would be a ‘minimum’ or ‘fixed’ amount, because he argues that he is entitled to the full amount whenever the activity or event is performed. This reasoning excludes the Arbitrator from determining what is a fair and reasonable amount for the work described and claimed pursuant to this Item (see Regulation 105). In my view the wording of the Schedule does not lead to this view. Column 3 sets a maximum amount in relation to each item. It is a matter for the Arbitrator’s discretion, taking into account the matters set out in the Regulation, to determine whether or not the maximum amount in Column 3 is a fair and reasonable amount for the activity or event described, in the circumstances of each case. This assessment is then subject to the ‘maximum total’ amount prescribed by Column 4 of the Schedule, relative to each Item.
In the circumstances of this matter the Arbitrator determined that an amount of $325 for Item 2.08 was “appropriate in the circumstances”. This statement is inadequate to disclose the reasoning behind the Arbitrator’s decision. The parties clearly entered into settlement negotiations and settlement offers were exchanged. Mr Oliver’s legal representative entered into these negotiations on his behalf and they were, ultimately, successful in achieving an agreed settlement. This activity is what is described in Item 2.08 and I see no reason to decrease the amount from $750 to $325 under Item 2.08. A decision based on the exercise of discretion should not be set aside unless it is demonstrably unfair and unjust in the circumstances. In my view, although the amount in issue is small it is unjust in the circumstances of this matter, to deny the claim for costs of Item 2.08, where the activity described in it has clearly been undertaken. The assessment of costs should be amended accordingly to increase the award under Item 2.08 to $750.
DECISION
The Registrar’s ‘Determination of a Claim for Costs’ in this matter, dated 20 December 2004, is amended in accordance with these reasons.
The Respondent is to pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
3 April 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
0
0