Ramsay v Lightning Ridge Mining & Steel Pty Limited - [2006] NSWWCCPD 302

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Ramsay v Lightning Ridge Mining & Steel Pty Limited [2006] NSWWCCPD 302
APPELLANT:  Carol Anne Ramsay
RESPONDENT:  Lightning Ridge Mining & Steel Pty Limited
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:  WCC8343-05
DATE OF REGISTRAR’S DECISION:             2 September 2005
DATE OF APPEAL DECISION:  9 November 2006
SUBJECT MATTER OF DECISION:                Appeal against the Registrar’s assessment of costs; fees for an investigation report.
PRESIDENTIAL MEMBER:  Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners
Respondent:   Sparke Helmore Lawyers

ORDERS MADE ON APPEAL: 1. Paragraphs two and four of the decision of the delegate dated 2 September 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 $2752.75.
(ii) The Respondent is to pay to the Applicant a total amount of $3027.75 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, awarding costs of the assessment in the sum of $275.00 were not raised on appeal and are confirmed.
3. No order as to the costs of the appeal.

BACKGROUND
Prior proceedings
1.On 29 August 2003 Carol Anne Ramsay (‘Ms Ramsay’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC16241-03). Ms Ramsay sought weekly benefits compensation pursuant to sections 37, 38, 39 and or 40 of the Workers CompensationAct 1987 (‘the 1987 Act’). Ms Ramsay claimed that she had developed carpal tunnel syndrome affecting her left and right wrists in the course of her employment between 1996 to 25 August 2000. Ms Ramsay named Lightning Ridge Mining and Steel Pty Limited (‘LR Mining’) as the Respondent employer.

2.On 14 January 2004 LR Mining lodged a Reply to the application in which it did not dispute the injury or liability. However LR Mining disputed the quantum of the claim for weekly compensation and submitted that Ms Ramsay had “at least a partial capacity for employment and her ability to earn would not entitle [her] to a full award at the statutory rate but a lesser amount pursuant to section 40”. LR Mining also referred to the award of the NSW Compensation Court (‘the Court’) made on 14 May 2003 which required LR Mining to pay Ms Ramsay compensation pursuant to section 66 of the 1987 Act for 11% loss of use of her left arm below the elbow; 6% loss of use of her right arm below the elbow, and $10,300.00 pursuant to section 67.

3.On 19 January 2004, a teleconference was conducted before a Commission Arbitrator (‘the Arbitrator’) at which time the dispute was resolved by consent. On 13 February 2004 the Arbitrator issued a ‘Certificate of Determination – Consent Orders’ confirming that the application was discontinued and ordering LR Mining to pay…

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 302
Decision Date: 9 November 2006

CaseChat Overview and Summary

Carol Anne Ramsay, an appellant, filed an appeal against the Registrar's decision on costs in relation to an investigation report. Lightning Ridge Mining and Steel Pty Limited, the respondent employer, had already been ordered to pay Ms Ramsay weekly compensation benefits. The central issue in this appeal was whether the delegate made an error in determining the costs of disbursements associated with the investigation report. The appeal was heard on the papers, and both parties' submissions were considered. The appeal was assessed against the relevant legislation and legal precedents.

The court found that the delegate erred in their interpretation of clause 82(b) of the WC Regulation, which excludes fees for investigators' reports from the regulated costs in Part 19. The exclusion does not prohibit recovery of these costs. The court held that the delegate applied the wrong legal test in determining the claim for the cost of the report. The court found that many of the costs incurred for the investigation report were either duplicative of documents already filed in the proceedings or irrelevant to the claim pursued. Therefore, the costs of obtaining the report were unreasonably incurred.

The court revoked paragraphs two and four of the delegate's decision and substituted new orders, assessing the applicant's costs of the substantive proceedings at $2752.75. The respondent was ordered to pay the applicant a total amount of $3027.75 if those costs had not already been paid. The appeal court did not order any costs for the appeal.

Orders