Western Suburbs Leagues Club (Campbelltown) Limited v Bates

[2006] NSWWCCPD 48

WORKERS COMPENSATION COMMISSION

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

CITATION:Western Suburbs Leagues Club (Campbelltown) Limited v Bates [2006] NSWWCCPD 48

APPELLANT:  Western Suburbs Leagues Club (Campbelltown) Limited

RESPONDENT:  Gary Robert Bates

INSURER:Employers Mutual Indemnity

FILE NUMBER:  WCC10642-04

DATE OF REGISTRAR’S DECISION:             26 October 2004

DATE OF APPEAL DECISION:  20 March 2006

SUBJECT MATTER OF DECISION:                Costs; conduct money; Items 4.03A and 4.03B; procedural fairness; exercise of discretion; weight of evidence.

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President

HEARING:On the papers

REPRESENTATION:  Appellant:      Edwards Michael Lawyers

Respondent:   PD Banister Lawyers

ORDERS MADE ON APPEAL:  The Registrar’s ‘Determination of a Claim for Costs’ in this matter, dated 26 October 2004, is amended in accordance with these reasons.

No order as to the costs of the Appeal.

BACKGROUND

1. On 11 November 2004 Western Suburbs Leagues Club (Campbelltown) Limited (‘the Club’) filed an appeal against the Registrar’s assessment of costs in relation to proceedings previously determined by a Commission Arbitrator. 

1. The Respondent to the appeal is the employee, Gary Robert Bates. 

1. The Registrar’s decision (by her delegate, a Commission Arbitrator) made on 26 October 2004, was as follows:

   “1.Pursuant to Consent Orders dated 14 May, 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 $3,907.75.

   3.The Respondent is to pay the Applicant the amount of $550.00 (inclusive of GST) being the Applicant’s costs of the assessment.

   4.The Respondent is to pay to the Applicant the amount of $4,457.75 (inclusive of GST).”

2. The grounds of appeal relied upon by the Club are:

   ·The Registrar denied the Club procedural fairness and this is an error of law going to jurisdiction.

   ·The Registrar erred by exercising discretion as to costs in favour of Mr Bates against the overwhelming weight of evidence and this constitutes an error of law.

3. In addition to the ‘Appeal from Registrar’s Determination on Costs’, the Club has filed submissions on appeal in a document entitled ‘Respondent’s Supplementary Submissions’.

1. Although a direction issued on 15 November 2004 requiring Mr Bates to file written submissions by 7 December 2004, he has not filed any submissions.  Certificates of Service filed by the Club on 18 November and 16 December 2004 indicate that both the ‘Appeal from Registrar’s Determination on Costs’ and the Club’s submissions were served on Mr Bates’ legal representatives. 

1. I have before me the submissions that were made to the Registrar by both parties and the submissions of the Club on appeal.  I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

1. Appeals are governed by clause 119 of Workers Compensation Regulation 2003 (‘the Regulation’) which provides as follows:

   “119 Appeal against decision of Registrar as to matter of law

   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.”

1. The grounds of appeal relied upon by the Club raise “matters of law” and they are the only matters that I am going to address in the appeal.  A denial of procedural fairness and the failure to exercise discretion according to the evidence, if demonstrated, are errors of law.

GROUNDS OF APPEAL

Procedural fairness

1. The Club submits that it was denied procedural fairness when the Registrar:

   ·     allowed Mr Bates to amend the ‘Application for Assessment of Costs’ in his Submissions in Reply; and

   ·     awarded Mr Bates more than the amount claimed under Items 4.03A and 4.03B.

1. In the ‘Application for Assessment of Costs’ filed by Mr Bates on 13 July 2004, he claimed under the heading “Disbursements” the following costs:

Bloomsfield Hospital – Clinical Notes      $33.00

Conduct money provided to:

Western Suburbs Leagues Club                 $  27.00

Employers Mutual Indemnity  $  27.00

Bloomfield Hospital  $  52.75

Dr N O’Ryan  $  27.00

TOTAL$166.75

1. In their ‘Written Submissions in relation to Application for Assessment of Costs’ filed on 28 July 2004, the Club indicated that it objected to the form of the assessment for the conduct money.  In particular, the Club submitted that the Bill of Costs did not refer to Item numbers in Schedules 6 and 7 for claimable events and that conduct money claimed as a disbursement is not permissible under the Regulations.

1. In a document entitled ‘Applicant’s Reply to Respondent’s Submissions’ filed on 9 August 2004, Mr Bates noted the procedural objection by the Club and provided a further supplementary Assessment of Costs claiming:

   · pursuant to Item 4.03A of Schedule 6 - $160 for the service of Directions upon Western Suburbs Leagues Club, Employers Mutual Indemnity, Bloomfield Hospital and Dr N O’Ryan;

   · pursuant to Item 4.03B of Schedule 6 the amounts set out in paragraph 11 relating to conduct money totalling $133.75 (giving a sub-total of $293.75); and

   ·     GST at 10% bringing the total claim under Items 4.03A and 4.03B to $323.15.

1. The Registrar found that the initial claim for conduct money, as a disbursement, was not allowed. However, the Registrar went on to indicate that Mr Bates had amended his application to make this claim under Items 4.03A and 4.03B of Schedule 6 and these items were allowed.

1. The first objection under this ground of appeal is that the Registrar denied the Club procedural fairness by allowing the Assessment to be amended during the course of the Submissions in Reply. 

1. In Commission proceedings, the exact content of procedural fairness is determined by the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), the nature of the decision under review and the demands of the instant case (Kioa v West (1995) 159 CLR 550).

1. In considering the context of the case I note that the ‘Applicant’s Reply to Respondent’s Submissions’ was filed on 9 August 2004 and the Registrar issued a determination on 26 October 2004. During this period, the Club did not seek to file further submissions or otherwise object to the amendment of the Application by way of submission. Further, the amendment was in response to the procedural objection made by the Club and brought the claims within the relevant Items of Schedule 6. Thus the Club was already cognizant of the issue.

1. In my view it was appropriate for the Arbitrator to allow the application to be amended. There was no denial of procedural fairness here. The Club knew the substance of the claim for costs against it and had ample opportunity to file further submissions in relation to the issue if it wished to. The amendment did not affect the substance of the claim, but framed it properly within the costs regime of Schedule 6 of the Regulation.

2. The second objection under this ground of appeal is that the Club was denied procedural fairness because the Registrar awarded Mr Bates more than the $133.75 claimed under Item 4.03B.  The Registrar awarded $160 for this Item.  There are no reasons indicating why the Registrar awarded more than the amount claimed by Mr Bates, therefore I cannot know for certain.  However it appears from viewing the table that formed part of the decision of the Registrar’s delegate that this may have been an ‘obvious error’ not corrected before publication. 

1. Item 4.03B of Schedule 6 provides that an amount of “$40 per person served, regardless of the number of directions served on the person” up to $200 maximum may be claimed in costs for that Item. In this matter the evidence is that four directions were served, each on Western Suburbs Leagues Club, Employers Mutual Indemnity, Bloomfield Hospital and Dr O’Ryan. The conduct money actually paid to each is set out at paragraph 11 above.  It offends common sense that Mr Bates would be entitled to claim $40 in conduct money in each case if he in fact did not pay $40 in conduct money.  He is entitled to recover his disbursement.  Not a notional figure based upon the maximum in Item 4.03B, regardless of the actual cost of the disbursement.  If he has paid more than $40 in relation to service on one person, then he will not be entitled to more. 

1. The amount properly assessed pursuant to Item 4.03 is:

   Western Suburbs Leagues Club                 $  27.00

   Employers Mutual Indemnity  $  27.00

   Bloomfield Hospital  $  40.00

   Dr N O’Ryan  $  27.00

   TOTAL  $121.00

2. The assessment should be amended accordingly by the deduction of $39.

Exercise of discretion – weight of evidence

1. The Registrar found that Mr Bates succeeded in the ‘Application for Assessment of Costs’ and the Club should pay his costs.

1. The Club submits that the Registrar erred in exercising discretion to make an order in relation to the costs of the assessment in favour of Mr Bates in the amount of $550.00, as this was against the overwhelming weight of the evidence.

1. The Club submits that only there were only three items that were in dispute before the Registrar and there was no basis to find that the Mr Bates succeeded in the ‘Application for Assessment of Costs’.  It argues it was entirely successful in relation to two of the three disputed Items and substantially, if not wholly successful, in relation to the third (Items 4.03A and 4.03B – conduct money).  Thus the Club submits that the Registrar’s discretion miscarried.

1. The Club’s submissions outline the contested Items, the amount claimed by Mr Bates and the Club’s position.  It is correct that in relation to two of the Items, the Registrar made an award in the amount the Club proposed.  In relation to the conduct money, the Club submitted that it would not pay this as a disbursement and suggested a revised assessment using the relevant Item numbers.  This occurred in the ‘Applicant’s Reply to Respondent’s Submissions’ filed by Mr Bates.

1. In my view the Registrar did not err in exercising the discretion to order the Club pay the costs of the assessment.  Mr Bates was overwhelmingly successful in his claim.  The reasons demonstrate that most items were in fact agreed between the parties, which raises the question of why this matter could not have been settled by negotiation between the parties.  Disputation about the allocation of an Item number to a disbursement that was clearly made and clearly within costs provided for in the Schedule was unnecessary.

COSTS OF THE APPEAL

1. The determination of the Registrar in this matter has been amended by an amount of $39.00.  In my view the issues in dispute were relatively minor and, had the parties taken a sensible approach to their resolution, should not have demanded the time, cost and resources required of an appeal.  I make no order as to the costs of the appeal.

DECISION

1. The Registrar’s ‘Determination of a Claim for Costs’ in this matter, dated 26 October 2004, is amended in accordance with these reasons.

Dr Gabriel Fleming

Deputy President  

20 March 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE