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

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.

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

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).”
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.
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’.

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.

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.

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…

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.

Continue reading Western Suburbs Leagues Club (Campbelltown) Limited v Bates

Details

AGLC: Western Suburbs Leagues Club (Campbelltown) Limited v Bates [2006] NSWWCCPD 48
Case: [2006] NSWWCCPD 48
Decision Date: 20 March 2006

CaseChat Overview and Summary

In the case of Western Suburbs Leagues Club (Campbelltown) Limited v Bates, the dispute arose from the assessment of costs under the Workers Compensation Regulation 2003. The plaintiff, Western Suburbs Leagues Club (Campbelltown) Limited, appealed against the decision of the Registrar regarding the assessment of costs made in favor of Mr. Bates, the defendant. The key issues were whether the Registrar erred in allowing Mr. Bates to amend his application for assessment of costs and whether the Registrar correctly exercised his discretion in allowing certain costs claimed by Mr. Bates.

The primary legal issues before the court were whether the Registrar denied procedural fairness by permitting Mr. Bates to amend his application for assessment of costs and whether the Registrar correctly exercised his discretion in approving certain costs claimed under Items 4.03A and 4.03B of Schedule 6. The Club argued that the Registrar allowed procedural unfairness by permitting the amendment and by approving the conduct money as a permissible cost. The court needed to determine whether these actions constituted errors of law that warranted an appeal.

The court found that the Registrar did not err in law by allowing Mr. Bates to amend his application for assessment of costs. The court reasoned that there was no procedural unfairness because the amendment was made in response to objections raised by the Club, and it did not prejudice the Club's right to a fair hearing. Regarding the approval of conduct money, the court held that the Registrar correctly exercised his discretion in allowing these costs. The court concluded that the conduct money was appropriately claimed under the specified items of Schedule 6 and that the Registrar’s decision was consistent with the regulations.

The court's decision upheld the Registrar's ruling and dismissed the appeal. The court did not find any procedural unfairness or incorrect exercise of discretion by the Registrar. The appeal was accordingly dismissed with no orders for costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 law1. 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.” 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. 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. In the ‘Application for Assessment of Costs’ filed by Mr Bates on 13 July 2004, he claimed under the heading “Disbursements” the following costs: 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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