Starkey v Arakella Pty Ltd - [2006] NSWWCCPD 218

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Starkey v Arakella Pty Ltd [2006] NSWWCCPD 218
APPELLANT: Dianne Lee Starkey
RESPONDENT: Arakella Pty Ltd
INSURERS:Employers Mutual Indemnity (Workers Compensation) Ltd

GIO General Ltd

FILE NUMBER:  WCC 16236-05
DATE OF REGISTRAR’S DECISION:             1 February 2006
DATE OF APPEAL DECISION:  6 September 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in respect of costs; assessment of costs under Items 2.04A and 4.12 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003; whether maximum costs specified in the Compensation Costs Table are inclusive of GST
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: Maurice May Lawyers
Respondent: Sparke Helmore Lawyers

ORDERS MADE ON APPEAL: The Registrar’s determination of Ms Starkey’s claim for costs in this matter, dated 1 February 2006, is amended in accordance with these reasons.

The Respondent, Arakella Pty Ltd, is to pay the Appellant, Ms Starkey, the sum of $385.00 inclusive of GST in respect of her costs in this appeal.

BACKGROUND TO THE APPEAL

On 7 February 2006, Dianne Starkey filed an appeal against a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) dated 1 February 2006. The Respondent to the appeal is Arakella Pty Ltd (‘Arakella’). On 2 March 2006, Arakella filed a ‘Notice of Opposition to the Appeal’.

Ms Starkey was born on 18 March 1960 and is aged 46. She commenced employment with Arakella as a picker/packer in 1998. Ms Starkey suffered injuries to her back and neck on 8 November 2000 when dragging a loaded pallet jack. She commenced proceedings in the Compensation Court of NSW in relation to her claim for workers compensation, which resulted in a settlement on 11 November 2003. Arakella’s workers compensation insurer in relation to this claim is Employers Mutual Indemnity (Workers Compensation) Ltd (‘EMI’). On 28 March 2003, Ms Starkey suffered a similar injury when she hit her head on a steel bar, and she subsequently lodged a second claim for workers compensation. Arakella’s workers compensation insurer in respect of this injury is GIO General Ltd (‘GIO’).

On 1 February 2005, the Commission registered Ms Starkey’s ‘Application to Resolve a Dispute’ in respect of her claim for weekly compensation from 29 October 2003 to date and continuing. On 7 June 2005, following a conciliation conference at which the parties came to an agreed resolution of the issues in dispute, the Commission issued a Certificate of Determination setting out the terms of settlement. These provided for the insurers to pay Ms Starkey’s medical, hospital or related expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’), together with weekly compensation in respect of one day – 23 February 2004, and “Costs as agreed or assessed”, which the parties, in their Terms of Settlement filed on 5 July 2005, agreed would be shared equally between GIO and EMI.

The parties being unable…

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 218
Decision Date: 6 September 2006

CaseChat Overview and Summary

In the matter of Starkey v Arakella Pty Ltd, the Court was called upon to review an appeal against a costs determination made by the Registrar of the Workers Compensation Commission. The appeal, brought by Dianne Lee Starkey, pertained to the assessment of her costs under Items 2.04A and 4.12 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003, as well as the question of whether the maximum costs specified in the Table were inclusive of GST.

The primary issues addressed by the court were whether the claim under Item 2.04A should have been allowed, whether an additional amount could be claimed in respect of GST for Schedule 6 costs, and the appropriate award under Item 4.12. The court found that the Arbitrator erred in disallowing the claim under Item 2.04A, as there was sufficient substantiation that the preparation of the witness statement was a discrete activity separate from the taking of instructions. Additionally, the court concluded that the maximum costs specified in the Compensation Costs Table should be interpreted as inclusive of GST, and thus, the Arbitrator’s decision not to award an additional amount in respect of GST was correct at the time of the determination.

Furthermore, the court determined that the Arbitrator made an error by only allowing recovery for one advice to the client under Item 4.12. The court found that the maximum costs identified in the Table represent the maximum costs that can be claimed for that activity or event, regardless of the number of activities or events of that type which have taken place. In this instance, the court found that Ms Starkey's solicitors were entitled to claim for two activities/events under Item 4.12, resulting in an increase in the award.

In conclusion, the court amended the Registrar’s determination, increasing the award to $6,772.08, comprising $150 under Item 2.04A and $190 under Item 4.12. The court also ordered Arakella Pty Ltd to pay Ms Starkey’s costs in this appeal in the sum of $385.00 inclusive of GST.

Orders