Bennett v Coles Myer Logistics Pty Limited
[2006] NSWWCCPD 238
•20 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Bennett v Coles Myer Logistics Pty Limited [2006] NSWWCCPD 238
APPELLANT: Terry Malcolm Bennett
RESPONDENT: Coles Myer Logistics Pty Limited
INSURER:Coles Myer NSW Injury Services
FILE NUMBER: WCC16459-05
DATE OF REGISTRAR’S DECISION: 29 November 2005
DATE OF APPEAL DECISION: 20 September 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; adequacy of reasons; Item 2.04A of Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER: Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION: Appellant: Maurice May Lawyers
Respondent: Lander & Rogers Lawyers
ORDERS MADE ON APPEAL:
1.Paragraphs one, two and four of the decision of the delegate dated 29 November 2005, are revoked and the following orders are made in their place:
“(i) Pursuant to a Certificate of Determination issued following a hearing conducted on 7 March 2005, the Respondent is liable to pay the Applicant’s costs of the proceedings as agreed or assessed.
(ii) The Applicant’s costs of the proceedings are assessed at $4884.00.
(iii) The Respondent is to pay the amount of $5159.00 to the Applicant if those costs have not already been paid.”
2.Paragraph three of the delegate’s decision, awarding costs of the assessment in the sum of $275.00 (inclusive of GST), is confirmed.
3.The Respondent to pay the Appellant, the amount of $605.00 (inclusive of GST) in respect of the costs of the appeal.
BACKGROUND
Prior Proceedings
On 2 November 2004, Terry Malcolm Bennett (‘Mr Bennett’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (matter number WCC17905-04). Mr Bennett claimed to be suffering from industrial deafness as a result of his employment as a store man with Coles Myer Logistics Pty Limited (‘Coles Myer’) the Respondent employer. Mr Bennett sought compensation pursuant to section 66 and medical and related expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 23 November 2004, Coles Myer lodged a ‘Reply to the application to resolve a dispute’ in which it disputed: that the medical expenses were reasonable and necessary; that work was a substantial contributing factor to the injury claimed, and that Coles Myer was the last noisy employer.
On 28 February 2005, a teleconference was conducted before a Commission Arbitrator (‘the Arbitrator’) and, as the dispute was not resolved it was set down for a conciliation/arbitration hearing on 7 March 2005. The dispute was resolved by consent at the hearing. The Certificate of Determination issued by the Arbitrator refers to the date of the hearing, and sets out the following orders and notations:
“1. The Respondent is to file in the Commission a completed s.66A agreement, within 14 days.
2. I note that the Applicant advised that he discontinues these proceedings.
3. I dispense with the requirement to file a notice of discontinuance as required by Rule 74 of the Workers Compensation Commission Rules 2003.
4. The Respondent is 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:
5. The parties have settled the dispute and that [sic] the Respondent agrees to pay to the Applicant, pursuant to s.66 of the Workers Compensation Act 1987, the sum of $10,000.00 in respect of a [sic] 8.0 per cent whole person impairment.
6. The Respondent agrees to pay the Applicant’s, reasonable medical costs for the provision of hearing aids, pursuant to s.60 of the Workers Compensation Act 1987, such amount to be paid on production of accounts and receipts.
7. In reaching this arrangement the parties agree that the Applicant was not employed in employment to which the nature of the disease was due.”
On 26 September 2005, Mr Bennett’s solicitor lodged an ‘Application for Assessment of Costs’ (matter number WCC16459-05) and on 17 October 2005 Coles Myer lodged submissions in reply.
On 25 October 2005 Mr Bennett’s solicitor lodged further submissions in support of the application.
The Registrar’s decision in relation to this application, by her delegate, (‘the delegate’) was made on 29 November 2005. The delegate’s decision is set out as follows:
“1. Pursuant to a Registration of Section 66A Lump Sum Agreement dated 11 March 2005, the Respondent is liable to pay the Applicant’s costs as agreed or assessed, in respect of a claim for permanent impairment compensation.
2. The Applicant’s costs of the substantive proceedings assessed in the sum of $4,774.
3. The Respondent is to pay the Applicant’s costs of the assessment in the sum of $275.
4. The Respondent is, therefore, to pay to the Applicant a total amount of $5,049, if those cost have not already been paid.”
The delegate’s decision was accompanied by a ‘Statement of Reasons’ which provided a summary of: the background to the determination; the relevant legislation, and the issues in dispute. The ‘Statement of Reasons’ also set out the delegate’s assessment of each disputed Item of the Compensation Costs Table (‘the Table’) contained in Schedule 6 of the Workers Compensation Regulation 2003 (‘the 2003 Regulation’).
Lodgement of the appeal
On 19 December 2005, Mr Bennett’s solicitor lodged an ‘Appeal from the Registrar’s Determination on Costs’.
On 9 January 2006, Coles Myer’s solicitor lodged submissions in reply. Coles Myer’s insurer is Coles Myer NSW Injury Services.
On 3 January 2006, the Registrar issued correspondence to Mr Bennett’s solicitors, and provided a copy to Coles Myer’s solicitor, in the following terms:
“The recent decision of Berger v Moree Plains Shire Council[2005] NSWWCCPD 152 [(‘Berger’)] addresses issues raised in the costs appeal. As the decision in Berger was delivered after lodgment of the appeal, there is some merit in reviewing the costs determination and the appeal grounds.
Having regard to the Berger’s case, you are requested to advise:
1. Whether you wish to discontinue the appeal application;
2. Whether you wished to amend the appeal application;
3. Whether you would consent to the original costs determination being referred to the costs assessor for review in accordance with the decision in Berger;
4. Whether you wished to proceed with the appeal.”On 20 January 2006, the Commission received correspondence from Mr Bennett’s solicitor confirming that the appeal should proceed and providing further submissions in relation to the decision in Berger.
On the same day, the Commission received correspondence from Coles Myer’s solicitor stating that it had not “received any indication from the applicant or [the Commission] as to whether the applicant intends to proceed.” Coles Myer’s solicitor also confirmed that “if the applicant does not [sic] proceed with the appeal we reserve our right to make further submissions in reliance upon [Berger]”. On the basis of this correspondence it appeared that Coles Myer had not been served with a copy of Mr Bennett’s solicitor’s further submissions. Accordingly, on 28 August 2006, the Commission issued a Direction requiring Mr Bennett’s solicitor to serve a copy of its correspondence dated 17 January 2006 on Coles Myer’s solicitor and also directing Coles Myer’s solicitor to file and serve submissions in reply by 8 September 2006.
Pursuant to that Direction, Mr Bennett’s solicitor filed a Certificate of Service dated 31 August 2006. Submissions in reply have not been lodged by Coles Myer’s solicitor.
ON THE PAPERS
Section 354(6) of the 1998 Act states:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
In determining whether a conference or formal hearing is required I have regard to Coles Myer’s solicitor’s submission that the appeal can be dealt with on the papers and I note that Mr Bennett’s solicitor’s submission are silent in this respect. I also have regard to the Certificate of Service filed by Mr Bennett’s solicitor which confirms that Coles Myer’s solicitor has been served with the additional submissions made by Mr Bennett’s solicitor. I am satisfied that Coles Myer’s solicitor has been provided with an opportunity to respond to the additional submissions. Accordingly, in my view, the parties are, or ought to be aware of the substantive issues in dispute between them; the issues in contention on appeal, particularly as they related to the decision in Berger, and the risks in relation to an adverse finding inherent in the issues raised on appeal. Having considered the submissions, the Arbitrator’s Reasons and all of the evidence before the Arbitrator, I am satisfied that I have sufficient information within the meaning of section 354 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and in accordance with Practice Directions 1 and 6 to proceed ‘on the papers’ without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
SUBMISSIONS
Mr Bennett’s submissions
Mr Bennett’s solicitor submits that the only issue disputed is the delegate’s decision in relation to Item 2.04A of the Table. Mr Bennett’s solicitor submits that:
· the delegate’s decision does not demonstrated that she had regard to his submissions;
· therefore the delegate failed to give adequate and proper consideration to his submissions;
· the Commission cannot be satisfied that the delegate has fulfilled her duty to give adequate and proper reasons, (Cargill Meat Processors Pty Limited v Clark[2005] NSWWCCPD 7 (‘Cargill’)), and
· accordingly the delegate has committed an error of law.
Mr Bennett’s solicitor also submits that the delegate relied upon the decision in McManus v Gosford City Council [2004] NSWWCCPD61 (‘McManus’) as authority for the proposition that the costs of preparing the Applicant’s statement are included in Item 2.01 of the Table. In Mr Bennett’s solicitor’s submission, the decision in McManus cannot support this proposition as, the facts in issue differ and the decision can only be relied upon as authority for the proposition that “…an Applicant is not entitled to recover the costs of obtaining and preparing a statement from the Applicant under item 2.05.” Further, it is submitted that McManus “…does not consider whether Item 2.04A is applicable to obtaining and preparing a witness statement from the Applicant.”
Mr Bennett’s solicitor also submits that the activities involved in the preparation of a witness statement are different to those involved in obtaining instruction from an applicant as the sources which may be considered for the preparation of a witness statement are “endless” and this supports an interpretation of Schedule 6 of the 2003 Regulations that allows recovery for this activity under Item 2.04A of the Table.
In relation to the decision in Berger, Mr Bennett’s solicitor submits that the decision confirms that “an Applicant is entitled to the costs of preparing a witness statement from the Applicant under item 2.04A [at paragraph 141]”. Further, Berger is “the authority upon which [the delegate] is bound to rely” and applying the authority of Berger would result in a reversal of the delegate’s decision.
Coles Myer’s submissions
Coles Myer’s solicitor submits that the delegate has not committed an error of law and the delegate’s decision should be confirmed.
Coles Myer’s solicitor submits that:
·the delegate specifically confirmed that she considered the application, correspondence and submissions at paragraph 5 of her reasons for decision and at paragraph 11 she again referred to Mr Bennett’s solicitor’s submissions;
·the delegate is not required to give detailed reasons for her decision, but merely outline the basis for her conclusions (Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28 (‘Orr’)), and
·considering the quantum in dispute it is “unreasonable” to suggest that the delegate should provide lengthy written reasons.
Further, Coles Myer’s solicitor submits that an identical view to that expressed in McManus was expressed in the case of Nebauer v Hunter Area Health Service [2004] NSWWCCPD 60 (‘Nebauer’). It is submitted that in Nebauer the Commission made it clear that there is no distinction between obtaining instructions from a client and taking a statement from the applicant/worker and regardless of whether it is claimed under Item 2.05 or any other Item of the Table the taking of a statement from the applicant/worker is covered under Item 2.01 of the Table.
In Coles Myer’s solicitor’s submission, Item 2.04A does not apply to the taking of a statement from a worker because:
· the worker is not merely a witness but the moving party and without that evidence which must be in the form of a statement pursuant to Rule 66 of the Workers Compensation Rules 2003 (’the Rules’) no case could proceed;
· Item 2.01A [sic] relates to the taking of a statement from someone who is “merely a witness”;
· the costs structure is reflective of the complexity involved in taking instructions from a client which provides a more generous maximum that that provided for taking a witness statement, and
· taking instructions for up to two hours without taking a statement and then claiming for that activity elsewhere is “double dipping and should not be allowed”.
Issues in dispute
In my assessment of the submissions the issues raised on appeal are as follows:
· Did the delegate err in failing to give proper reasons?
· Did the delegate err in her decision in relation to Item 2.04A of the Table?
DISCUSSION AND ANALYSIS
The relevant legislation
The relevant legislation concerning appeals to the Commission against an assessment of costs contained in the 1998 Act and the 2003 Regulation has been considered in a number of recent decisions (Berger; McManus; Orr; Nebauer; Chapman v Gosford City Council [2006] NSWWCCPD 4; Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWCCPD 30; Moore v PM & JH Turner [2006] NSWWCCPD 110; Woodbury v Miles [2006] NSWCCPD 5, and Asimus v J.J. Walker, A.D. Walker & Temple Pty Ltd t/as Templemore Partners [2006] NSWWCCPD 113, and need not be canvassed again in this decision.
The matters raised on appeal require reference to clause 84 of the 2003 Regulation. Clause 84 fixes the maximum costs recoverable by legal practitioners and agents to those set out in Schedule 6. In accordance with Schedule 6, clause 1 (2) (a) columns three and four of the Table must be applied to the costs incurred in relation to a claim for permanent impairment compensation or pain and suffering compensation.
In relation to Item 2.04A the Table provides:
“Compensation Costs Table
| Column 1 | Column 2 | Column 3 | Column 4 |
| Item No | Activity or event | Maximum amount for individual activity/event | Maximum total for type of activity/event |
| 2.04A | Where a claim cannot be brought without a witness statement, preparing witness statements | $100 per hour | $150” |
Of particular relevance to this matter, clause 110 of the 2003 Regulation provides that when dealing with an application relating to costs payable “the Registrar must (emphasis added) consider whether or not it was reasonable to carry out the work to which the costs relate, and what is a fair and reasonable amount of costs for the work concerned.”
Clause 119(1) of the 2003 Regulation specifically limits the grounds on which an appeal may be made against the decision of the Registrar on an assessment of costs ‘to a matter of law’ arising in the proceedings.
The delegate found that Coles Myer’s obligation to pay costs arose pursuant to the “Registration of Section 66A Lump Sum Agreement dated 11 March 2005”. In my view, the orders made by the Arbitrator following the hearing on 7 March 2005 confirm that the obligation to pay costs arose pursuant to an order of the Commission. Accordingly, the application was properly entertained pursuant to clause 99 of the 2003 Regulation.
Did the delegate err in failing to provide sufficient reasons for her decision?
The delegate rejected Mr Bennett’s solicitor’s claim, concluding that:
“I refuse the claim as the Applicant’s statement is included in Item 2.01 and is not applicable to Item 2.04A (McManus v Gosford City Council (2004) NSWWCCPD 61)”.
The adequacy of the reasons must be considered relative to the nature of the decision and the decision maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6). In this matter, the claim was for an assessment of costs involving a sum of $4,906.00. In the context of the Commission, where proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits, lengthy written reasons will not generally be necessary to clearly and concisely convey to the parties, who are familiar with the case, the reasons for the decision.
Whilst I accept that the reasons are brief, particularly as they relate to the determination of the claim made pursuant to Item 2.04A, the decision, when considered in its entirety provides a background to the proceedings; lists the issues in dispute; briefly refers to the submissions of the parties; sets out an assessment of each claim, and of significance, clearly demonstrates that the delegate applied the mandatory considerations required of her in accordance with clause 110 of the 2003 Regulations. At paragraph 13 the delegate stated “I am still required to assess whether all items claimed are fair and reasonable in accordance with the Table.”
In applying the authority of Cargill I find that Mr Bennett’s solicitor has not demonstrated that the delegate’s reasons are inadequate and that their inadequacy sufficiently demonstrates that the delegate failed to exercise her statutory duty, to fairly and lawfully determine the application. Accordingly I find no ‘matter of law’ arising in relation to the adequacy of the delegate’s reasons.
Did the delegate err in her decision in relation to Item 2.04A of the Table?
Mr Bennett’s solicitor sought $110.00 (inclusive of GST) for the cost of preparing a witness statement.
Coles Myer disputed the claim on the basis that a witness must be a third party and relied upon the authority of Nebauer that the costs of obtaining a worker’s statement are encapsulated and absorbed in Item 2.01 of the Table.
Mr Bennett’s solicitor made further submissions, asserting that in Nebauer the Presidential Member considered the recovery of costs under Item 2.05 of the Table but did not consider whether Item 2.04A applied to the taking of a statement from a worker.
Mr Bennett’s solicitor also submitted that:
· Item 2.01 of the Table makes no reference to the preparation of a witness statement which is different in substance from taking instructions;
· Item 2.04A does not expressly exclude the Applicant;
· the Rules require that any party proposing to rely on oral evidence must lodge and serve a document containing a written statement of the evidence to be given;
· the words contained in Item 2.04A must be given their plain meaning, and
· the plain meaning of the word “witness” includes a party to proceedings.
As stated, the delegate rejected the claim relying on the authority of McManus.
In McManus the Commission was required to consider an appeal against a delegate’s decision to disallow a claim referable to Item 2.05 of the Table for the costs of briefing a factual investigator to obtain a statement from an applicant. Item 2.05 expressly excludes the costs of obtaining “witness statements” by an investigator. In that context the Deputy President held that “The costs involved in obtaining a worker’s statement are encapsulated and absorbed by Item 2.01”. The Deputy President observed that Item 2.01:
“…provides for a maximum total of $500, as was allowed by the Delegate in this matter. The Delegate specifically considered that this amount was fair and reasonable to allow for the time spent in obtaining a statement from the worker.”
The facts before the delegate in this application were clearly distinguishable from those presented in McManus. There was no evidence before the delegate that Mr Bennett’s statement was taken by an investigator nor was the claim made pursuant to Item 2.05 of the Table. The claim was made by Mr Bennett’s solicitor under Item 2.04A and there was no evidence before the delegate that the costs of obtaining Mr Bennett’s statement had been claimed under Item 2.01 for which $412.50 of a maximum of $500.00 had been awarded by the delegate.
In my view, there is no statement of principle set out in McManus that dictates that every claim, made pursuant to Item 2.04A of the Table, for the costs of obtaining an applicant’s statement should be rejected on the basis that the costs of obtaining that statement must be included under Item 2.01. The delegate’s decision provides no other basis for her decision in respect of this claim (see paragraph 31). Accordingly, I find that the delegate erred in her application of the authority provided in McManus. I find that this error is sufficient to give rise to an error of law.
Having found that the decision was infected by an error of law I am entitled to determine the application as, in my opinion, it should have been determined by the Registrar’s delegate (clause 119 (3)(a) of the 2003 Regulation).
Mr Bennett’s Application to Resolve a Dispute was lodged on 2 November 2004. Mr Bennett sought compensation pursuant to section 66 and medical and related expenses pursuant to section 60 of the 1987 Act. Mr Bennett’s statement dated, 7 October 2004, was filed with the Application. The Rules require a statement of evidence to be filed with the application if that evidence is to be introduced in the proceedings (Rule 66).
Coles Myer’s solicitor relies upon the decision in Nebauer in submitting that a witness must be a third party. That case was considered by Deputy President Fleming in Berger who found at paragraph 141 that:
“The reasoning in Nebauer as to whether the worker is to be considered a ‘witness’ for the purpose of 2.05 is not correct when the costs regime of Items 2.01, 2.04A and 2.05 is considered together. The better view is that the worker is included in the term ‘witness’ in the Table. (Emphasis added). Part 2A of the Compensation Costs Table sets out a costs regime relative to events that occur on behalf of a claimant prior to the dispute being referred to the Commission. It is possible, under that regime, for a statement by the worker to be taken either at the time of taking instructions (for which two hours is allowed pursuant to Item 2.01) or at some later time (Item 2.04A). Item 2.05 does not permit a claim for briefing a factual investigator to obtain witness statements, which includes a statement from the worker. Where, as in Nebauer, the preparation of the workers statement is undertaken by the legal practitioner or agent representing the worker and occurs at the time of taking instructions, then no claim may be made under Item 2.04A for the same work.”
In applying the authority in Berger I do not accept Coles Myer’s solicitor’s submission that a ‘witness’ for the purposes of Item 2.04A of the Table must be a third party.
Mr Bennett’s solicitor claims the costs of preparing Mr Bennett’s statement pursuant to Item 2.04A of the Table and in circumstances where the taking of a statement was not claimed under Item 2.01 the issue of duplication does not arise. In my view, Mr Bennett’s claim could not be brought without his statement (see discussion in Calleja v Real Foods Pty Limited [2006] NSWWCCPD 175). Accordingly, I find that it was ‘reasonable’ and necessary to obtain a statement from Mr Bennett in order to bring the claim.
The statement provided by Mr Bennett continues for two typed pages. It sets out details relevant to his application including his dependents; prior claims, and the noise he was exposed to during his employment with Coles Myer. The claim is for $110.00 (including GST) and I consider this a ‘fair and reasonable amount’ for the costs of the work concerned.
DECISION
Paragraphs one, two and four of the decision of the delegate dated 29 November 2005 are revoked and the following orders are made in their place:
“(i) Pursuant to a Certificate of Determination issued following a hearing conducted on 7 March 2005 the Respondent is liable to pay the Applicant’s costs as agreed or assessed.
(ii) The Applicant’s costs of the proceedings are assessed at $4884.00.
(iii) The Respondent is to pay the amount of $5159.00 to the Applicant if those costs have not already been paid.”
Paragraph three of the delegate’s decision, awarding costs of the assessment in the sum of $275.00 (inclusive of GST), was not raised on appeal and is confirmed.
COSTS
The Respondent seeks costs on the basis that the appeal is vexatious and without justification. I find no evidence in support of this submission. The Appellant has been successful on appeal. Having regard to the circumstances of the case and the relevant legislation (section 341(4) and section 354(5) of the 1998 Act) in my view, it is appropriate that I make an order for the Respondent to pay the Appellant’s costs of the appeal.
I order the Respondent to pay the Appellant, the amount of $605.00 (inclusive of GST) in respect of the costs of the appeal.
Elizabeth Tydd
Acting Deputy President
20 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ELIZABETH TYDD, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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