Smith v Kalamazoo Pty Limited - [2007] NSWWCCPD 115

WORKERS COMPENSATION COMMISSION

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

CITATION:Smith v Kalamazoo Pty Limited [2007] NSWWCCPD 115
APPELLANT:  Alan Smith
RESPONDENT:  Kalamazoo Pty Limited
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:  WCC8063-06
DATE OF REGISTRAR’S DECISION:             6 September 2006
DATE OF APPEAL DECISION:  21 May 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claim under Item 4.07 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER:  Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION:  Appellant:      Gerard Malouf and Partners
Respondent:   Hicksons Lawyers

ORDERS MADE ON APPEAL: 1. The decision of the Registrar dated 6 September 2006 is confirmed.
2.No order as to costs of the appeal.

BACKGROUND

Substantive Proceedings

On 3 December 2003 Alan Smith (‘Mr Smith’) commenced proceedings in the Workers Compensation Commission (‘the Commission’) against Kalamazoo Pty Limited (‘Kalamazoo’) claiming lump sum compensation and medical and related expenses.

A teleconference was held with the parties on 13 April 2004 when the matter was referred to an Approved Medical Specialist. After the issue of the Medical Assessment Certificate a further teleconference was held on 9 November 2004 when the matter was resolved.

A Certificate of Determination was issued on 12 November 2004 which included an order that Kalamazoo pay Mr Smith’s costs “as agreed or assessed”.

The parties did not agree on costs and Mr Smith’s solicitor lodged an Application for Assessment of Costs on 25 May 2006. As a result of agreement between the parties, the only disputed matter to be determined was Item 4.07 of the Compensation Costs Table.

The costs were determined by the Registrar’s delegate, a Commission Arbitrator (‘the Delegate’) on 6 September 2006. The decision is as follows:

“1.Pursuant to a Certificate of Determination - Consent Orders made on 12 November 2004, the Respondent is to pay the Applicant’s costs as agreed or assessed.
2.The Respondent is to pay the Applicant’s costs of the assessment in the sum of $4,388.52.
3.The Applicant’s costs of the assessment are not allowed.
4.The Respondent is, therefore, to pay to the Applicant a total amount of $4,388.52 if those costs have not already been paid.”

On 21 September 2006 Mr Smith lodged an appeal from the Delegate’s decision.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Kalamazoo submit that the matter should be dealt with ‘on the papers’ whilst Mr Smith is silent on this issue.

I have both the Commission file regarding the cost dispute and the appeal file. In addition I have the substantive file and am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing…

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 115
Decision Date: 21 May 2007

CaseChat Overview and Summary

In the case of Smith v Kalamazoo Pty Limited, the appellant, Alan Smith, appealed against the Registrar’s decision in relation to costs, specifically concerning professional costs claimed under Item 4.07 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003. Kalamazoo Pty Limited, the respondent, and its insurer, Allianz Australia Workers Compensation (NSW) Limited, were the other parties involved. The appeal was heard by Acting Deputy President Julian Martin, who decided the matter on the papers, finding sufficient information available without the need for a formal hearing. The substantive proceedings involved Mr Smith’s claim for lump sum compensation and medical and related expenses against Kalamazoo, which was resolved in November 2004. The parties disagreed on the costs, leading to an application for assessment of costs by Mr Smith’s solicitor, focusing on Item 4.07 of the Compensation Costs Table.

The primary legal issue in this appeal was whether the Delegate correctly disallowed Mr Smith’s claim under Item 4.07 of the Compensation Costs Table. The relevant regulation, Clause 119(1) of the Workers Compensation Regulation 2003, limits the grounds of appeal to matters of law, focusing on whether the discretion was exercised unfairly and unlawfully. Mr Smith’s solicitor argued that the Delegate erred by not applying the principles in Shipp v Fletcher International Exports Pty Ltd correctly. They claimed that the referral to an Approved Medical Specialist during a teleconference was sufficient to claim the cost under Item 4.07. However, the Delegate followed the decision in Berger v Moree Plains Shire Council, which stated that the activity described must be undertaken by the legal representative to claim the cost. The Delegate found that the activity was performed by the Arbitrator during the teleconference, and other activities such as advising Mr Smith of the appointment and forwarding reports to the AMS were subsumed into Item 4.09.

Acting Deputy President Julian Martin found no error of law in the Delegate’s decision, as it correctly followed the precedent set in Berger. He noted that the facts of Berger were similar to those in Mr Smith’s case, and the Delegate accurately applied the regulation. Martin also found that the Delegate provided adequate reasons for the decision, aligning with the view that lengthy written reasons are not necessary for the Registrar or their delegate to comply with the Act and the Rules. Therefore, the decision of the Registrar dated 6 September 2006 was confirmed, and no order as to costs of the appeal was made.

Orders