Ritchie v GrainCorp Operations Limited - [2007] NSWWCCPD 44

WORKERS COMPENSATION COMMISSION

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

CITATION:Ritchie v GrainCorp Operations Limited [2007] NSWWCCPD 44
APPELLANT:  Joshua John Ritchie
RESPONDENT:  GrainCorp Operations Limited
INSURER:Self-Insured
FILE NUMBER:  WCC15137-05
DATE OF REGISTRAR’S DECISION:             19 December 2005
DATE OF APPEAL DECISION:  12 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; costs of disbursements; failure to consider relevant material; Items 2.05; 4.08; 4.09; 4.10; 4.11; 4.12; 9.01, and Clause 2 of Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER:  Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners
Respondent:   Goldbergs Lawyers

ORDERS MADE ON APPEAL: 1. Paragraphs one, two and four of the decision of the delegate dated 19 December 2005 are revoked and the following orders are made in their place:

“(i) Pursuant to Consent Orders dated 30 April 2005, the Respondent is liable to pay the Applicant’s costs as agreed or assessed.
(ii) The Applicant’s costs of the substantive proceedings are assessed in the sum of $10,008.30.
(iii) The Respondent is, therefore, to pay to the Applicant a total amount of $10,008.30 if those costs have not already been paid.”

2. Paragraph three of the delegate’s decision making no order for the costs of the assessment is confirmed.
3. The Respondent GrainCorp, to pay the Appellant, Mr Ritchie, $275.00 inclusive of GST in respect of his costs in this appeal.

BACKGROUND

Prior proceedings

Joshua John Ritchie (‘Mr Ritchie’) lodged two ‘Applications to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’). The first application was lodged on 16 May 2003 (WCC 9991-03) seeking provisional and ongoing payments of weekly compensation and the second application was lodged on 27 May 2003 (WCC 10446-03) seeking lump sum compensation totalling $44,700.00 pursuant to section 66 of the Workers CompensationAct 1987 (‘the 1987 Act’) and compensation pursuant to section 67 of the 1987 Act totalling $80,000.00. Mr Ritchie named GrainCorp Operations Limited (‘GrainCorp’) as the Respondent employer in both applications and claimed to have sustained frank injuries to his back, left and right legs in the course of his employment with GrainCorp on 16 May 2002 and 15 September 2002. Mr Ritchie also claimed that he sustained injuries to his back and left and right legs as a result of the nature and conditions of his employment from September 1999 to 31 December 2001 and from 1 January 2002 to 31 January 2003. Mr Ritchie also claimed loss of use of sexual organs as a result of the injuries claimed.

GrainCorp filed a Reply to the first application on 3 June 2003 and a Reply to the second application on 27 June 2003. GrainCorp is self insured.

Directions requiring GrainCorp to make interim payments pursuant to section 298(1) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) were made on 23 June and 8 September 2003 and again on 12 January 2004.

A teleconference was conducted by a Commission…

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 44
Decision Date: 12 February 2007

CaseChat Overview and Summary

The appeal in Ritchie v GrainCorp Operations Limited [2007] NSWWCCPD 44 was brought by Joshua John Ritchie, the appellant, against GrainCorp Operations Limited, the respondent, in relation to an assessment of costs made by the Registrar of the Workers Compensation Commission. The appeal related to the substantive proceedings and an assessment of costs for disbursements and professional costs. The appeal was heard on the papers and decided by Acting Deputy President Elizabeth Tydd on 12 February 2007.

The legal issues before the court included whether the delegate erred in determining Clause 2 of Schedule 6 of the Workers Compensation Regulation 2003 and Items 2.05; 4.08; 4.09; 4.10; 4.11; 4.12; and 9.01 of the Table; whether the delegate erred in determining the costs of disbursements; and whether the delegate erred in failing to consider relevant material. The court applied the relevant legislation, including the Workers Compensation Act 1998 and the Workers Compensation Regulation 2003, and considered previous cases in reaching its decision.

In relation to the appeal against the determination of professional costs, the court found that the delegate properly considered the two separate claims and the requirements of Clause 2 of Schedule 6 of the Workers Compensation Regulation in determining the applications. The court revoked the delegate’s disallowance of Item 2.05, allowing $110.00 for briefing a factual investigator under Item 2.05. The court also revoked the delegate’s allowance of $380.00 for the claim under Item 4.12, allowing $570.00 for reporting to the client following the two teleconferences and one conciliation/arbitration hearing under Item 4.12 of the Table. In relation to the appeal against the determination of disbursements, the court revoked the delegate’s disallowance of the costs of the disbursement claimed as a Report, allowing $137.50 for the statement obtained by the factual investigator.

The court increased the delegate’s assessment of costs by $456.50 to a total amount of $10,008.30. The court revoked paragraphs one, two and four of the decision of the delegate dated 19 December 2005 and made the following orders: (i) Pursuant to Consent Orders dated 30 April 2004, the Respondent is liable to pay the Applicant’s costs as agreed or assessed. (ii) The Applicant’s costs of the substantive proceedings are assessed in the sum of $10,008.30. (iii) The Respondent is, therefore, to pay to the Applicant a total amount of $10,008.30 if those costs have not already been paid. The court also confirmed paragraph three of the delegate’s decision making no order for the costs of the assessment.

In relation to costs on appeal, the court ordered that the respondent GrainCorp pay the appellant Mr Ritchie $275.00 inclusive of GST in respect of his costs in this appeal.

Orders