Wilson v PJ & BM Kennedy - [2006] NSWWCCPD 345

WORKERS COMPENSATION COMMISSION

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

CITATION:Wilson v Phillip J Kennedy & Bronwyn M Kennedy t/as PJ & BM Kennedy [2006] NSWWCCPD 345
APPELLANT: Peter George Wilson
RESPONDENT: Phillip J Kennedy & Bronwyn M Kennedy t/as PJ & BM Kennedy

INSURER:CGU Workers Compensation (NSW) Limited

FILE NUMBER:  WCC1179-06
DATE OF REGISTRAR’S DECISION:             29 May 2006
DATE OF APPEAL DECISION:  15 December 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s Assessment of Costs: Items 2.05, 2.06, 4.07, 4.08, 4.12 and 9.01 of Schedule 6 of the Workers Compensation Regulation (2003); disbursements – agency fees, fee for private investigator’s report, travel expenses.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondent: Sparke Helmore Lawyers

ORDERS MADE ON APPEAL: 1. The Registrar’s determination of Mr
Wilson’s claim for costs in this matter, dated 29 May 2006 is amended in accordance with these reasons.

2. The Respondent, PJ & BM Kennedy is
to pay the Appellant, Mr Wilson, $275.00 inclusive of GST in respect of his costs in this appeal.

BACKGROUND TO THE APPEAL

On 23 June 2006 Peter George Wilson (‘Mr Wilson’) filed an ‘Appeal Against a Cost Determination’ made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 29 May 2006. The Respondent to the appeal is Phillip J Kennedy and Bronwyn M Kennedy trading as P J & B M Kennedy (the “Kennedy’s). On 19 July 2006 the Kennedy’s solicitor filed a ‘Notice of Opposition’ to the appeal.

Mr Wilson commenced proceedings in the Commission on 22 June 2004 seeking weekly benefits compensation and related medical expenses as a consequence of a number of injuries he claimed he suffered in the course of his employment with the Kennedy’s.

The parties attended an arbitration hearing on 1 November 2004. On 22 November 2004 a ‘Certificate of Determination’ was issued which included an order that the Kennedy’s pay Mr Wilson’s costs “as agreed or assessed”.

Mr Wilson also claimed non-economic loss compensation. Following referral to three separate Approved Medical Specialists (‘AMS’) to assess the various claims, the parties attended a Teleconference before the same Arbitrator on 12 December 2005 where the parties, assisted by the Arbitrator, were able to reach an agreed resolution of the issues in dispute. On 16 December 2005 the Arbitrator issued a further ‘Certificate of Determination’ setting out the parties’ agreement and again included a clause requiring the Kennedy’s to pay Mr Wilson’s costs “as agreed or assessed”.

On 23 January 2006, the parties having failed to agree on the costs payable, Mr Wilson’s solicitors filed an ‘Application for Assessment of Costs’ with the Commission in respect of their Bill of Costs apparently dated either 2 or 5 December 2005. The Kennedy’s filed submissions on 21 February 2006 and Mr Wilson’s solicitors filed further submissions on 6 April 2006.

The Registrar delegated the assessment of costs to a Commission Arbitrator (‘the Delegate’) who made a determination dated…

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 345
Decision Date: 15 December 2006

CaseChat Overview and Summary

This appeal is brought by Peter George Wilson (Mr Wilson) against Phillip J Kennedy and Bronwyn M Kennedy trading as PJ & BM Kennedy (the Kennedys) concerning an assessment of costs by the Registrar of the Workers Compensation Commission. The appeal is heard by Acting Deputy President Deborah Moore, who concludes that the Registrar's determination is amended and that the Kennedys are to pay Mr Wilson $275.00 inclusive of GST in respect of his costs in this appeal. The appeal raises issues concerning the interpretation of the Workers Compensation Regulation 2003 and the Compensation Costs Table. Mr Wilson's solicitor claimed $13,933.81 in costs. The Kennedys submitted that the total should be $13,019.62, while Mr Wilson's solicitor claimed it should be $13,021.56. The appeal concerns several items of costs, including professional costs and disbursements. Acting Deputy President Moore found that some items were not allowable, while others were allowed with some amendments. The appeal also considered the adequacy of the Registrar's reasons for the determination. Acting Deputy President Moore concludes that while the reasons were brief, they met the requirements of the Regulation and were capable of correction on appeal.

Orders