Ryan v Depira Pty Limited - [2007] NSWWCCPD 48

WORKERS COMPENSATION COMMISSION

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

CITATION:Ryan v Depira Pty Limited [2007] NSWWCCPD 48
APPELLANT:  Marilyn Leonie Ryan
RESPONDENT:  Depira Pty Limited
INSURER:Employers Mutual Indemnity NSW Limited
FILE NUMBER:  WCC 13443-05
DATE OF REGISTRAR’S DECISION:             2 March 2006
DATE OF APPEAL DECISION:  13 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; adequacy of reasons; costs of proceedings; GST; denial of procedural fairness; costs of disbursements; Items 4.08; 4.09; and 4.12 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:   Edwards Michael Moroney Lawyers

ORDERS MADE ON APPEAL: 1. Paragraphs two and four of the decision of the delegate dated 2 March 2006 are revoked and the following orders are made in their place:

“(ii) The Applicant’s costs of the substantive proceedings are assessed in the sum of $15,872.70.
(iii) The Respondent is, therefore, to pay to the Applicant a total amount of $15,872.70 if those costs have not already been paid.”

2. Paragraphs one and three of the delegate’s decision are confirmed.
3. The Respondent Depira, pay the Appellant Ms Ryan, $275.00 inclusive of GST in respect of her costs in this appeal.

BACKGROUND

Prior proceedings

On 10 March 2003 Marilyn Leonie Ryan (‘Ms Ryan ’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’) matter number WCC 7838-03-04. An “Amended” Application in the same matter was lodged by Ms Ryan on 3 April 2003. Ms Ryan claimed to have suffered injuries to her back with associated left leg pain, and aggravated pain in the neck, and left shoulder on 5 November 2001 as a result of falling in the course of her employment as a labourer. Ms Ryan also claimed injury to her back, neck, left arm sexual organs and severe psychological injury as a result of the nature and conditions of her employment from 2 April 2001 to 11 November 2001. Ms Ryan named Depira Pty Limited (‘Depira’) as the Respondent employer and sought: on going payments of weekly compensation from 5 November 2001 and continuing; lump sum compensation totalling $38,400.00 pursuant to section 66 of the Workers CompensationAct 1987 (‘the 1987 Act’); compensation pursuant to section 67 totalling $15,000.00, and medical and related expenses pursuant to section 60 of the 1987 Act.

On 7 April 2003 Depira filed a Reply to the Application in which it disputed all aspects of the claim.

On my review of the Commission’s files, teleconferences were conducted on 24 July, 7 August and 1 September 2003 by a Commission arbitrator (‘the Arbitrator’). On 11 November 2003 the Arbitrator issued Procedural Directions regarding referral to an Approved Medical Specialist (‘AMS’). On 19 November 2003 the Arbitrator provided a referral to an orthopaedic and urological AMS. The Commission issued the medical assessment certificates on 6 August 2004. A fourth teleconference was conducted on 2 September 2004…

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 48
Decision Date: 13 February 2007

CaseChat Overview and Summary

In the Workers Compensation Commission of New South Wales, Marilyn Leonie Ryan, the appellant, appealed against a decision of the Registrar concerning the assessment of costs in her workers' compensation matter against Depira Pty Limited, the respondent. The dispute primarily revolved around the adequacy of reasons provided for the Registrar's assessment, the costs of proceedings, the application of Goods and Services Tax (GST), and the denial of procedural fairness. The appeal was determined on the papers, without a formal hearing, as both parties did not contest the need for one and did not seek to present new evidence.

The key legal issues before the court included whether the Registrar erred in determining specific items under the Compensation Costs Table, the costs of disbursements, the costs of proceedings, and the application of GST. The court examined the submissions from both parties, the relevant legislation, and previous decisions of the Commission to assess the merits of the appeal. The court found that while the Registrar did not err in several aspects, there was a miscalculation in the costs for reporting to the client, which led to an overruling of the Registrar's decision in part. Specifically, the court allowed an additional $570.00 for reporting costs under Item 4.12 of the Table, bringing the total costs assessed to $15,872.70.

The court also addressed the issues of procedural fairness, the disallowance of GST, and the denial of costs for the proceedings. It concluded that the Registrar's decisions in these areas were correct, except for the under-allowance of reporting costs. Consequently, the appeal was partly successful, and the court ordered Depira to pay Ryan an additional $570.00 in costs, alongside $275.00 for the costs of the appeal. The Registrar's original assessment of costs was modified accordingly, and the court confirmed the remaining aspects of the Registrar's decision.

Orders