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Quarmby v Motor Traders Association of NSW Group Apprenticeship Schemes

Quarmby v Motor Traders Association of NSW Group Apprenticeship Schemes

Case [2006] NSWWCCPD 324 28 November 2006

Admissibility of Evidence

Workers Compensation Law

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WORKERS COMPENSATION COMMISSION

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

CITATION:Quarmby v Motor Traders Association of NSW Group Apprenticeship Schemes [2006] NSWWCCPD 324
APPELLANT:  Phillip James Quarmby
RESPONDENT:  Motor Traders Association of NSW Group Apprenticeship Schemes
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC9794-05
DATE OF REGISTRAR’S DECISION:             26 August 2005
DATE OF APPEAL DECISION:  28 November 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; fees for an investigation report; attendance fees of agents; accountants fees; travel costs; Items 2.06; 4.08; 4.09; 4.10; 4.11; 4.12 and 10.01 of Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER:  Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondent:    Sparke Helmore

ORDERS MADE ON APPEAL: 1. Paragraphs two and four of the decision of the delegate dated 26 August 2005 are revoked and the following orders are made in their place:

“(i) The Applicant’s costs of the substantive proceedings are assessed in the sum of $6,359.35.
(ii) The Respondent is to pay to the Applicant a total amount of $6,359.35 if those costs have not already been paid.”

2. Paragraph one of the delegate’s decision referring to the order for costs contained in the ‘Certificate of Determination’ and paragraph three of the delegate’s decision making no order for the costs of the assessment were not raised on appeal and are confirmed.
3. No order as to the costs of the appeal.

BACKGROUND

Prior proceedings

On 26 July 2004 Phillip James Quarmby (‘Mr Quarmby’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC 11464-04). Mr Quarmby claimed that he suffered an injury to his neck, right arm and impairment of his sexual organ on 11 January 2000 in the course of his employment as an area manager with the Motor Traders Association of NSW Group Apprenticeship (‘MTA’), the Respondent employer. Mr Quarmby sought weekly benefits compensation for the period 9 November 2003 to date and continuing and medical and related expenses pursuant to section 60 of the Workers CompensationAct 1987 (‘the 1987 Act’). The application noted the award of the Compensation Court of New South Wales (‘the Court’) made on 26 November 2002 which required MTA to pay Mr Quarmby compensation of $9,400.00 for permanent impairment of his neck and $11,200.00 for loss of use of his right arm pursuant to section 66 of the 1987 Act, and $25,000.00 pursuant to section 67.

MTA lodged a Reply to the application on 13 August 2004 in which it disputed the claim in respect of Mr Quarmby’s dependents; his incapacity and his capacity to earn. MTA’s insurer is CGU Workers Compensation (NSW) Limited (‘the Insurer’).

The dispute was not resolved at the teleconference conducted on 18 October 2004, before a Commission Arbitrator (‘the Arbitrator’) and was set down for conciliation/arbitration on 3 November 2004. The matter proceeded to conciliation/arbitration on that day.

On 7 December 2004 the Arbitrator issued a ‘Certificate of…

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

AGLC: Quarmby v Motor Traders Association of NSW Group Apprenticeship Schemes [2006] NSWWCCPD 324
Case: [2006] NSWWCCPD 324
Decision Date: 28 November 2006

CaseChat Overview and Summary

Phillip James Quarmby appealed the Registrar’s assessment of costs in a workers compensation claim against the Motor Traders Association of NSW Group Apprenticeship Schemes. The appeal centered on the determination of specific cost items under the Compensation Costs Table and the assessment of various disbursements. The key issues were whether the delegate erred in assessing certain costs and if the disbursements were necessarily incurred.

The court found that the delegate’s determinations for some items, such as Item 2.06 for the request for review, Item 4.08 for preparation for a conference and conciliation/arbitration, and Item 4.12 for reporting to the client, were appropriate. However, the court identified errors in the delegate’s assessment of costs for Items 4.09, 4.10, and 4.11, which pertain to participation in conferences and arbitration. The court corrected the delegate’s miscalculation and confirmed a fair allowance for these items.

Regarding disbursements, the court upheld the delegate’s disallowance of certain agency fees and the costs of an accountant’s report, as these were not necessarily incurred. However, the court revised the delegate’s allowance for the investigation report, allowing only a portion of the claimed amount. The total allowable costs were adjusted to reflect these findings.

The court revoked parts of the delegate’s decision and made new orders regarding the costs. The Motor Traders Association was ordered to pay $6,359.35 if those costs had not already been paid. No order was made concerning the costs of the appeal.

Orders