Smith v TBC Walker Waterloo Partners - [2006] NSWWCCPD 314

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Smith v TBC Walker Waterloo Partners [2006] NSWWCCPD 314
APPELLANT:  Judith Anne Smith
RESPONDENT:  TBC Walker Waterloo Partners
INSURER:Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER:  WCC 9736-05
DATE OF REGISTRAR’S DECISION:             28 September 2005
DATE OF APPEAL DECISION:  20 November 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs; fee for private investigator’s report; claims under Items 2.05, 9.01 and 10.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: McCabe Partners Lawyers
Respondent: Goldbergs Lawyers

ORDERS MADE ON APPEAL: The Registrar’s determination dated 28 September 2005 is confirmed.

There is no order as to the costs of this appeal.

BACKGROUND TO THE APPEAL

On 24 October 2005, Judith Smith filed an appeal against a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 28 September 2005. The Respondent to the appeal is TBC Walker Waterloo Partners (‘the Walker Partners’) and their workers compensation insurer is Allianz Australia Workers’ Compensation (NSW) Ltd (‘Allianz’). On 23 November 2005, Allianz lodged its Notice of Opposition to the appeal.

Ms Smith was born on 14 March 1966 and is aged 40. On 4 November 1988, Ms Smith was employed with the Walker Partners as a farm labourer at a property called ‘Waterloo’, near Narromine, when she was injured while riding a farm motorbike in the course of checking water troughs. As a result of the accident, in which she collided with a sheep, Ms Smith claims to have suffered injuries to her neck, back and both legs, together with severe bodily disfigurement.

On 22 July 2003, the Commission registered Ms Smith’s ‘Application to Resolve a Dispute’, and on 12 August 2003 Allianz filed its ‘Reply’. Following a teleconference with a Commission Arbitrator on 4 December 2003, the parties agreed to terms of settlement on 20 January 2004, and, on 31 March 2004, the Arbitrator issued a Certificate of Determination setting out Consent Orders, including an order “[t]hat the Respondent pay the Applicant’s costs (including one qualifying fee), forthwith after they have [sic].agreed or assessed”.

On 23 June 2005, the parties having failed to agree on the costs payable, Ms Smith’s solicitors lodged an ‘Application for Assessment of Costs’ with the Commission in respect of their Bill of Costs dated 29 April 2004. Allianz’s submissions were received on 14 July 2005.

The Registrar delegated the assessment to a Commission Arbitrator (‘the Delegate’) who made a determination dated 28 September 2005. The Certificate of Determination stated:

“1. Pursuant to Consent Orders of the Commission of 16 April 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 $6338.97.
3. There is no order as to the costs of the assessment.”

ISSUES IN…

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 314
Decision Date: 20 November 2006

CaseChat Overview and Summary

In the case of Smith v TBC Walker Waterloo Partners, Judith Anne Smith appealed against the Registrar’s decision regarding costs, specifically the fee for a private investigator’s report and claims under certain items of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003. The Registrar had assessed Smith’s costs at $6,338.97, a figure which did not include the private investigator’s fee of $2,459.36. Smith’s solicitors argued that the Registrar made errors in law regarding certain costs and disbursements, and they sought to overturn this decision. The appeal was heard on the papers by Acting Deputy President Robin Handley.

The primary legal issues before the court were whether the Registrar erred in law in disallowing certain professional costs and disbursements, namely the briefing of an investigator under Item 2.05, the costs of assessment under Item 9.01, the instruction of an agency under Item 10.01, and the fee for a private investigator’s report. Smith’s solicitors argued that the Registrar had misapplied the relevant legislative provisions and had failed to consider their submissions. The Respondent, TBC Walker Waterloo Partners, opposed the appeal and argued that the costs were properly disallowed.

Acting Deputy President Handley reviewed the submissions and the relevant legislative provisions, including the Compensation Costs Table. The court found that the Registrar had correctly exercised their discretion in disallowing the claims for costs under Items 2.05, 9.01, and 10.01, as well as the disbursement for the private investigator’s report. The court noted that the work claimed under these items was either already covered by other allowable costs or was not deemed reasonable given the circumstances of the case. The Acting Deputy President concluded that the Registrar’s decision should be upheld as it was not shown to be in error.

The final decision confirmed the Registrar’s determination dated 28 September 2005. Smith’s appeal against the costs assessment was rejected, and there was no order regarding the costs of the appeal itself.

Orders