Unilever Australia Limited v Peters
[2006] NSWWCCPD 262
•6 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Unilever Australia Limited v Peters [2006] NSWWCCPD 262
APPELLANT: Unilever Australia Limited
RESPONDENT: David Peters
INSURER:Self insurer
FILE NUMBER: WCC112-06
DATE OF REGISTRAR’S DECISION: 23 March 2006
DATE OF APPEAL DECISION: 6 October 2006
SUBJECT MATTER OF DECISION: No amount of compensation awarded; Schedule 6, clause 8 of the Workers Compensation Regulation 2003
PRESIDENTIAL MEMBER: Acting Deputy President Anthony Candy
HEARING:On the papers
REPRESENTATION: Appellant: Astridge & Murray Solicitors
Respondent: Turner Freeman Lawyers
ORDERS MADE ON APPEAL: 1. The decision of the Registrar dated 23 March 2006 is revoked and the following decision is made in its place:
1.Pursuant to an order dated 17 June 2005, the Respondent is ordered to pay the Applicant’s costs as agreed or assessed.
2.The Applicant’s costs of the substantive proceedings are assessed in the sum of $2,090.
3.Each party is to pay his or its own costs of the assessment.
2. Each party is to pay his or its own costs of the appeal.
BACKGROUND
On 17 April 2006 Unilever Australia Limited (‘the Appellant Employer’) filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator.
The Respondent to the Appeal is David Peters (‘the Respondent Worker’).
The Registrar’s decision (by her delegate, a Commission Arbitrator) made on 23 March 2006 is as follows:
“1.Pursuant to an order dated 17 June 2005, the Respondent is liable to pay the Applicant’s costs as agreed or assessed.
2.The Applicant’s costs of the substantive proceedings are assessed in the sum of $6,880.50.
3.The Respondent is to pay the Applicant’s costs of the assessment in the sum of $625.00.
4.The Respondent is, therefore, to pay to the Applicant the total amount of $7,505.50 if those costs have not already been paid.”
ON THE PAPERS
The parties agree that the matter is suitable for determination ‘on the papers’.
I have before me the Commission files in both the substantive matter and the costs dispute together with the parties’ submissions.
Having read this material I am satisfied that I have sufficient information to proceed ‘on the papers’ in accordance with the provisions of section 354 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and that this is the appropriate course in the circumstances.
SUBMISSIONS
The employer submits that the Registrar misconstrued the effect of and therefore misapplied clause 8 of Schedule 6 of the WorkersCompensationRegulation 2003 (‘the Regulation’). That clause provides as follows:
“Despite any other provision of this Schedule, if a medical dispute or a dispute about weekly payments of compensation is finalised by an agreement for payment of an amount less than $1,000, or an award for payment of an amount less than $1,000, the maximum amount of costs for the dispute is $200.”
The Registrar dealt with this matter in paragraphs 11, 12 and 13 of the reasons for decision. These are as follows:
“11.The Respondent raised a threshold issue, relying upon Clause 8 of Schedule 6 to the Regulation. It is submitted the Applicant’s costs are capped at $200.00 by reason of the provisions of this clause, in that he recovered less than $1,000.00 in the proceedings.
12.The submission is flawed. Clause 8 applies to agreements, not to awards. Clause 8 applies to costs under the Table but does not apply to costs recoverable under clause 82, so that even if this submission were correct the Applicant could recover his disbursements.
13.In my view the submission is without merit and the Applicant’s costs are not capped at $200.”
It is submitted on behalf of the employer that the Regulation applies to awards for payments of amounts as well as agreement for payment of amounts, less than $1,000. As discussed later, this is obviously correct.
The employer seeks an order that the worker pay the costs of the employer in relation to the costs assessment procedure and proceedings.
Before going on to the submissions on behalf of the worker, it is necessary in my view to briefly describe what happened in the substantive proceedings. The worker lodged an application to resolve a dispute in the Commission on 10 February 2005, 2085-05. This was in respect of an injury of 3 January 2003 when the worker twisted his left knee while walking down stairs. Weekly compensation was sought from 15 October 2004 as well as medical expenses in which the amount sought is said to be “$TBA”. This was determined by a Commission Arbitrator on 17 June 2005 as follows:
“1.There should be an award for the respondent in relation to the claim for weekly benefits.
2.There should be an award for the respondent in relation to s.60 expenses.
3.The respondent is to pay the applicant’s costs as agreed or assessed.”
Although the employer was successful in those proceedings it was ordered to pay the costs of the worker. There was no appeal against the determination of the Arbitrator either by the worker or the employer and the worker proceeded to a costs assessment against the employer.
The worker has lodged a Notice of Opposition in reply to the appeal in this matter. In that document and the submissions attached thereto the worker concedes that the Registrar erred in the interpretation of clause 8 of Schedule 6 of the Regulation. It is however submitted on behalf of the worker that the award of costs made by the Arbitrator on 17 June 2005 does not fall within the ambit of clause 8 of the Regulation at all as the medical dispute was not finalised by any agreement or award for payment of an amount less than $1,000. Clause 8 is said to be irrelevant.
The worker submits that the Arbitrator was completely correct in awarding costs. Reference is made to sub-sections 341(1) and (2) of the 1998 Act. It is said that the Arbitrator had the right to award costs in favour of a party not following previous orders or awards. It is said the Arbitrator’s decision was made in full compliance with the Act and Regulation and with the ambit of all powers conferred by statute.
The worker also seeks to cross appeal as to the disallowance by the Registrar of the claim for GST on disbursements. This is dealt with in the Registrar’s reasons at paragraphs 23 and 24 as follows:
“23.The Applicant claimed $187.00 for GST on the disbursements. As there is no evidence otherwise provided, it has to be assumed that the fees paid for the medical reports were inclusive of GST. The solicitor cannot recover GST on disbursements.
24.I therefore disallow the claim for GST on the disbursements.”
Disbursements in the sum of $2,057 (inclusive of GST of $187) are claimed by the worker rather than the sum of $1,870 allowed by the Registrar. It should be noted that the Registrar did allow GST on the solicitor’s professional fees.
It is apparent that the question in issue in this appeal is within a very narrow compass. I have not been referred to any authority on this question by the parties nor have my researches shown any decision directly dealing with this matter.
DISCUSSION
This appeal is brought pursuant to clause 119 of the Regulation. That provides as follows:
“(1)A party to an application who is dissatisfied with a decision of the Registrar as to a matter of law arising in the proceedings to determine the application may, in accordance with the Rules of the Commission, appeal to the Commission constituted by a Presidential member against the decision.
(2)The appeal is to be in the form approved by the Commission and be accompanied by the fee approved by the Commission from time to time.
(3)After deciding the question the subject of the appeal, the Commission constituted by a Presidential member may, unless it affirms the Registrar’s decision:
(a)make such determination in relation to the application as, in its opinion, should have been made by the Registrar, or
(b)remit its decision on the question to the Registrar and order the Registrar to re-determine the application.
(4)On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings may be given.”
Schedule 6 clause 8 provides as follows:
“8.Despite any other provision of this Schedule, if a medical dispute or a dispute about weekly payments of compensation is finalised by an agreement for payment of an amount less than $1,000, or an award for payment of an amount less than $1,000, the maximum amount of costs for the dispute is $200.”
The nub of the present appeal is whether the worker having recovered no compensation at all is caught by the provisions of Schedule 6 clause 8. There are regrettably no decisions directly in point. There is however a decision which may be relevant which is that of BHP Billiton Limited vLeon [2006] NSWWCCPD 158. In that case there was a claim for hearing aids which had not been supplied and the cost of which was somewhat uncertain. The cost may have been $5,500 or perhaps some lesser sum. The Arbitrator could not make an award for a specific amount since no liability had been incurred for such expense. In making the assessment of costs the Registrar determined that Schedule 6 clause 8 did not apply and this was confirmed on appeal by the learned Acting Deputy President who said the following:
“38.In other words, there seems to be a clear understanding between the parties that the ultimate expense or ‘amount in dispute’ would certainly exceed $1,000.
39.However, as the Appellant rightly points out, ‘the amount in dispute’ is not relevant to the application of Clause 8: it is the final ‘award or settlement’ that is relevant.
40.This being said, Clause 8 can equally be interpreted as being applicable only where a dispute is ‘finalised by an agreement [or award] for payment of an amount less than $1,000 …’.
41.On this basis in the present case, no ‘final’ order or award in monetary terms has been reached, notwithstanding the Arbitrator’s apparent ‘resolution’ of the dispute between the parties. That dispute, as I have said, was essentially as to whether or not digital hearing aids were ‘reasonably necessary’ within the meaning of s.60 of the 1987 Act.
42.It follows that it cannot be said that the matter ‘finalised’ was in fact less than $1,000, or indeed $5,500 for that matter. The ‘final award or settlement’ was effectively an unspecified sum.
43.On that basis, in my view Clause 8 is not applicable to the present case.”
The difference between that case and the present is that in that case there was an award for an unspecified sum. In this case there was an award for no sum at all, since the worker had failed in his application for compensation.
On behalf of the worker it is submitted that the Arbitrator when ordering the employer to pay costs in this case did so pursuant to section 341(1) and (2) of the 1998 Act. There has been no challenge to the order for costs made by the Arbitrator and indeed it is difficult to see how such a challenge could be made. Nonetheless the costs awarded are subject to the provisions of Part 19 of the Workers Compensation Regulation 2003 and Schedule 6. In my opinion the submission on behalf of the worker in this regard ought not be accepted. If it were, it would mean that a worker who received no compensation would be entitled to costs unrestricted by Schedule 6 clause 8 whereas a worker who did receive compensation in the amount of less than $1,000 would have the costs reduced in accordance with that clause.
I can see that there is some merit in the suggestion that the purpose of the clause is to ensure that costs awarded in small claims are not disproportionate to the amount involved. That is, a worker may make a very substantial claim and yet receive compensation of less than $1,000. In such case however it seems to me that the clear words of clause 8 apply. It is not the amount in dispute which is relevant but the amount which is agreed or awarded.
Accordingly, it is my view that as a matter of law the Arbitrator has erred in his interpretation of Schedule 6 clause 8 and that the maximum costs to which the worker is entitled are in the amount of $200 plus GST.
The worker has sought to, in effect, cross appeal in relation to disallowance of GST on disbursements by the Registrar. The disbursements were in an amount of $1,870 and the GST was an additional $187. I have set out in paragraph 15 of this determination the reasons given by the Registrar in relation to this matter.
I have had regard to the Application for Assessment of costs lodged on behalf of the worker on 5 January 2006 In that Application disbursements are claimed which total $1,870. It was not until after the determination of costs on the 23 March 2006 that the solicitors for the worker wrote to the Commission seeking a variation on account of GST and on that occasion, 27 March, enclosing copies of the doctors’ accounts referred to. The Registrar was clearly in error in assuming that the amounts claimed by the worker for disbursements included GST. However such error was perfectly understandable on the limited material placed before the Registrar. This is not a question of law and accordingly I do not consider that I have any jurisdiction to interfere with the Registrar’s decision in relation to the disallowance of GST on disbursements. As Deputy President Fleming said in Berger v Moree Plains Shire Council [2005] NSWWCC PD 152 at para 158 and 159:
“158.GST on clause 82 costs, excluded from Part 19 and Schedule 6 of the WC Regulation, but regulated by the LP Act, may be added pursuant to clause 115 of the LP Regulation.
159It was not necessary for the Registrar to separate the amount of GST claimed on each clause 82 item and then make a separate award of GST. To do so unnecessarily complicated the costs assessment. Where the bill identifies that GST has been charged then the whole amount, including GST, simply represents the cost claimed.”
It appears to me that the appropriate course would have been to have claimed the total amount charged by the various doctors including GST. This has not been done and for the reasons which I have given I do not think that I am entitled on the hearing of this appeal to interfere with the decision of the Registrar in this regard.
DECISION
The decision of the Registrar is revoked. In lieu thereof I determine that the costs to which the worker is entitled are in the amount of $200 plus GST, in addition to disbursements of $1,870. Since the total amount of the worker’s costs and disbursements is thus $2,090 and this is less than the amount which was offered by the employer on 13 October 2005 namely $2,500 plus GST, the order that the employer pay the worker’s costs of the assessment must be set aside. The employer seeks an order that the worker pay its costs in relation to the costs assessment procedure and proceedings. I do not consider that such an order would be justified in the circumstances and the appropriate order is that each party pay his or its own costs of the costs assessment and also the appeal.
Accordingly, the following decision is made in place of that of the Registrar:
1.Pursuant to an order dated 17 June 2005, the Respondent is ordered to pay the Applicant’s costs as agreed or assessed.
2.The Applicant’s costs of the substantive proceedings are assessed in the sum of $2,090.
3. Each party is to pay his or its own costs of the assessment.
COSTS
As I have earlier indicated the appropriate order in my opinion is that each party should pay his or its own costs of the appeal.
Anthony Candy
Acting Deputy President
6 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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