Williams v Moree Livestock Selling Agents - [2007] NSWWCCPD 25

WORKERS COMPENSATION COMMISSION

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

CITATION:Williams v Moree Livestock Selling Agents Association Pty Ltd [2007] NSWWCCPD 25
APPELLANT:  David Williams
RESPONDENT:  Moree Livestock Selling Agents Association Pty Ltd
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC17894-05
DATE OF REGISTRAR’S DECISION:             2 March 2006
DATE OF APPEAL DECISION:  25 January 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claims under Items 1.01, 2.04, 9.01 and 10.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003; whether maximum costs specified in the Table before 17 March 2006 are inclusive of GST; disbursement – agency fees.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondent:   Turks Legal

ORDERS MADE ON APPEAL: The decision of the Registrar dated 2 March 2006 is confirmed.

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

BACKGROUND

On 21 March 2006, David Williams filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator. The Respondent to the appeal is Moree Livestock Selling Agents Association Pty Ltd (‘the Association’). The Association’s workers compensation insurer is CGU Workers Compensation (NSW) Ltd (‘CGU’).

Mr Williams was born on 25 April 1947 and is aged 59. He claimed workers compensation for injuries to his lower back and both legs as a result of the nature and conditions of his employment with the Association at the Moree Selling Yards. Mr Williams gave notice of his injury and lodged claims for compensation on 31 December 2001 and 30 May 2004.

On 30 June 2005, the Commission registered Mr Williams’ ‘Application to Resolve a Dispute’ in respect of his claim for (1) weekly compensation, (2) medical, hospital or related expenses, and (3) compensation for permanent impairment and pain and suffering. The Association lodged a ‘Reply’ on 21 July 2005. On 8 September 2005, an Arbitrator conducted a teleconference with the parties in the course of which the parties came to an agreed resolution of the issues in dispute. On 9 September 2005, the Arbitrator issued a Certificate of Determination in the following terms:

“1. The parties agree that the applicant’s probable weekly earnings are $120 per week and further agree that the applicant’s current weekly earnings are $120 per week and accordingly I find there is no weekly wage loss up to 8 September 2005. Accordingly there is an award for the respondent in respect of the applicant’s claim for weekly benefits compensation.
2. Award for the respondent in relation to the claim under s 60.
3. The claim for lump sum compensation under s 66 is discontinued and the requirement to file a notice is dispensed with.
4. The respondent to pay the applicant’s costs as agreed or assessed.
The following is not a determination of the Commission, however, I note that the parties have agreed the following: the parties agree that…

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: [2007] NSWWCCPD 25
Decision Date: 25 January 2007

CaseChat Overview and Summary

David Williams, a former employee of Moree Livestock Selling Agents Association Pty Ltd, appealed against the Registrar’s assessment of costs in his workers compensation proceedings. The appeal focused on the claims under Items 1.01, 2.04, 9.01, and 10.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003, and the disallowance of an additional amount for GST on professional costs. Williams’ solicitors argued that the Delegate’s decision was incorrect in several respects, including the disallowance of certain medical reports, costs for the assessment of costs, fees for instructing an agent, and the disallowance of GST.

The court reviewed the submissions and the relevant legislation, particularly clause 119(1) of the Workers Compensation Regulation 2003, which limits the grounds of appeal against an assessment of costs to matters of law. The court found that the Delegate’s discretion was correctly exercised and not miscarried in any way. The disallowance of claims for medical reports was in accordance with Berger, which held that claims could only be made for reports obtained and reviewed before the making of a claim for permanent impairment compensation. The disallowance of costs for the assessment of costs was also upheld, as the parties had not agreed on costs, necessitating the assessment. The disallowance of fees for instructing an agent was deemed correct as the activities claimed were already covered under another item, and the court agreed with the reasoning in Dunn that disallowing such claims prevented double recovery. The disallowance of GST was upheld as the services were performed and assessed before the amendment to clause 123(1) of the 2003 Regulation, which now permits the addition of GST to recoverable costs.

In conclusion, the appeal was dismissed, and the Registrar’s decision dated 2 March 2006 was confirmed. There was no order as to the costs of the appeal.

Orders