Ricketts v JG & DG Harris - [2006] NSWWCCPD 333

WORKERS COMPENSATION COMMISSION

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

CITATION:Ricketts v J G & D G Harris [2006] NSWWCCPD 333
APPELLANT:  Paul Vincent Ricketts
RESPONDENT:  J G & D G Harris
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC9892-05
DATE OF REGISTRAR’S DECISION:             16 November 2005
DATE OF APPEAL DECISION:  5 December 2006
SUBJECT MATTER OF DECISION: Appeal against the Register’s decision in relation to costs; professional costs – claim under Item 2.06 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003; disbursements - investigator’s report
PRESIDENTIAL MEMBER:  Anthony Candy, Acting Deputy President
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondent:   QBE In-house Legal

ORDERS MADE ON APPEAL: The decision of the Registrar dated 16 November 2005 is confirmed.

BACKGROUND

On 9 December 2005 Paul Vincent Ricketts (‘the worker’) filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator.
The Respondent to the Appeal is the partnership of J G and D G Harris (‘the employer’), insured by QBE Workers Compensation (NSW) Ltd (‘QBE’)
The Registrar’s decision, by her delegate, a Commission Arbitrator, (‘the delegate’) made on 16 November 2005, is as follows:
“1.Pursuant to the Registration of a Section 66A Lump Sum Agreement on 26 June 2004 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 $6,433.94 inclusive of GST.
3.The Applicant’s costs of the assessment are assessed at $550 inclusive of GST.
4.The Respondent is to pay the amount of $6,983.94 inclusive of GST to the Applicant if those costs have not already been paid.”

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act1998 (‘the 1998 Act’) provides:
“If the Commission is satisfied that sufficient information has been supplied to it in connection with the proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
No submissions have been made by the parties that the matter should be listed for oral submissions on this appeal. I have before me the whole of the substantive file, the costs file and the appeal file.
Having regard to Practice Directions Nos. 1 and 6 and the documents that are before me, 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.

PRELIMINARY

An appeal from a decision of the Registrar, by her delegate, is under clause 119 of the Workers Compensation Regulation 2003 (‘the WC Regulation’). This provides:
“(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…

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 333
Decision Date: 5 December 2006

CaseChat Overview and Summary

Paul Vincent Ricketts appealed the Registrar’s decision on costs in a workers compensation case against J G & D G Harris, the employer, insured by QBE Workers Compensation (NSW) Ltd. The Registrar's decision assessed the costs at $6,433.94 inclusive of GST, plus $550 inclusive of GST for the cost of the assessment, making a total of $6,983.94. The worker contested the disallowance of two specific items: a request for a review of the claim from the insurer prior to referral of the matter to the Commission, and the cost of the factual investigation report.

The court examined the legal basis for the Registrar's decision. The Registrar disallowed the request for a review of the claim from the insurer, reasoning that there was no evidence of such a request. The worker argued that a request was made in a letter dated 1 October 2003, but the court upheld the disallowance, finding that the request was inappropriate given the simultaneous increase in the claim based on fresh evidence. Regarding the investigator's report, the Registrar allowed only $500 plus GST for obtaining details of the worker's earnings, disallowing the rest. The worker argued that the full cost of the investigator's report should be allowed, but the court found that the costs were unreasonable and unnecessarily incurred given the simplicity of the case and the settlement amount.

The court concluded that the Registrar's delegate did not err in disallowing the contested costs items and confirmed the Registrar's decision. The court did not order any costs for the appeal.

Orders