Subiaco Herbs Pty Ltd v Brady [2002] NSWCC 6

Reported Decision : 23 NSWCCR 118

Compensation Court of New South Wales

CITATION : Subiaco Herbs Pty Ltd v Brady [2002] NSWCC 6 PARTIES : Subiaco Herbs Pty Ltd v Noeline Brady MATTER NUMBER(S) : 7045 of 1999 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 16/10/00 DATE OF JUDGMENT: 01/31/2002

FOR APPLICANT: Mr T Wardell instructed by Grahame Goldberg Partners appeared for the applicant employer. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr R Taylor instructed by McCabe Partners appeared for the respondent worker.

JUDGMENT: 1. This is an application under s 208M(2) of the Legal Profession Act 1987 for leave to appeal against a determination of Mr M W Robinson, Costs Assessor, made on 12 July 2000. In the event that I grant leave to appeal, the parties were content that I proceed immediately to hear and determine the appeal pursuant to Compensation Court Rules Pt 5 r 22(1)(a). To that end, after having heard argument in open Court, I adjourned the matter to Chambers where, with the assistance of the legal representatives of the parties, I assessed the workers costs, as permitted by Compensation Court Rules Pt 5 r 21(7) and r 22(2). 2. There is no evidence before me that the application for leave to appeal was vested upon the proper officer of the Supreme Court, as required by Compensation Court Rules Pt 5 21 (2A) but no exception was taken by the respondent worker in that regard and I proceed on the basis that omnia praesumuntus rite esse acta. Background 3. On 2 May 1998, Noeline Winifred Brady ("the worker"), who was a general hand employed by Subiaco Herbs Pty Ltd ("the employer") at its herb farm, slipped and fell onto a concrete floor whilst trying to place a crate on the floor at the end of a conveyer belt. She sustained a number of injuries and was thereafter voluntarily paid weekly payments at all material times. The worker resides in Walcha, which is 93 kms east of Tamworth, if one follows the New England and Oxley Highways. At some time the worker consulted Messrs Gordon Garling Moffitt, Solicitors, of Young concerning a claim for lump sum compensation under ss 66 and 67 of the Workers Compensation Act 1987. The offices of that firm are at Young, which is approximately 600 kms south of Tamworth if one travels by Highways. On 12 January 1999, the worker instructed Messrs McCabe Partners, also of Young, to take over the conduct of the lump sum compensation claim. At the relevant time, Messrs McCabe Partners also had an office in the suburbs of Sydney. 4. The worker's solicitors arranged medical examinations for the worker and obtained medical reports and at some stage (probably 22 June 1999) a claim was "duly made" on the employer and its insurer. The insurer arranged for its own medical examinations of the worker, corresponding with her solicitors. On 12 October 1999, a request for conciliation was sent to the Workers Compensation Resolution service by the worker's solicitors. That Service arranged a Conciliation Conference to be held at Tamworth on 25 November 1999. The insurer arranged for Messrs Graham Goldberg Partners to represent the employer from this stage forward. At the Conciliation Conference, the parties commenced to negotiate a settlement of the worker's claim by way of commutation, but did not reach agreement on that day. After a number of telephone calls on a number of days, agreement was reached for a commutation settlement of $67,500, on 6 December 1999. 5. An application for determination was filed by the employer on 9 December 1999. That application was heard by Walker J on 14 December 1999. His Honour approved the commutation in the sum of $67,500 and made the usual costs order in favour of the worker. 6. It is common ground that the costs order made by his Honour extends to all the work done by the worker's solicitors in preparing her claim for lump sum compensation under ss 66 and 67 and in connection with the conciliation process (vide Workplace Injury Management and Workers Compensation Act 1998 s 112(7)(a) and (b)) as well as the costs of the application to this Court. 7. The employer's solicitors were able to agree on the amount of costs for work done by Messrs Gordon Garling Moffitt ($1,655) but were unsuccessful in reaching agreement with Messrs McCabe Partners. On 11 May 2000 that firm forwarded a Bill of Costs to the Supreme Court. Mr M W Robinson was appointed as the Costs Assessor. On 12 July 2000, he issued his Reasons for Determination of Costs and a Certificate. The amount allowed for the costs of providing legal services was $7,084.30 and the amount allowed for disbursements was $7,072.72 which, together with the fee for filing the Bill of Costs, amounted to $14,340.13. The costs of the Costs Assessor which are to be paid to the Supreme Court by the employer were certified at $634.