Berger v Moree Plains Shire Council
[2005] NSWWCCPD 152
•12 December 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Berger v Moree Plains Shire Council [2005] NSW WCC PD 152
APPELLANT: Craig Anthony Berger
RESPONDENT: Moree Plains Shire Council
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC18301-2004
DATE OF REGISTRAR’S DECISION: 8 April 2005
DATE OF APPEAL DECISION: 12 December 2005
SUBJECT MATTER OF DECISION: Appeal against assessment of costs pursuant to an order for costs made by an Arbitrator. Workers Compensation Commission Regulation 2003, Schedule 6.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION: Appellant: McCabe Partners, Lawyers
Respondent: A.O. Ellison & Co, Solicitors
ORDERS MADE ON APPEAL: The Registrar’s ‘Determination of a Claim for Costs’ in this matter, dated 8 April 2005, is amended in accordance with these reasons and the Respondent is to pay the Appellant’s costs as assessed at $ 5,871.62
No order as to the costs of the Appeal.
INDEX
PAGE
Background to the Appeal 2
On the Papers Review 3
Jurisdiction 3Part 19 of the Workers Compensation Regulation 2003 3
Did the Registrar have Power to Assess Costs at first Instance? 4
Identification of “Matters of Law” on Appeal 5
The Costs Regime in the Commission 6
The Workplace Injury Management and Workers Compensation Act 1998 7
The Workers Compensation Regulation 2003 8
The Legal Profession Act 2004 and the Legal Profession Regulation 2005 10
Summary 15
“Matters of Law” on Appeal 15
Multiple Applications to the Commission 15
Reduction of the Schedule 6 Prescribed Rate 19
Duplication of an Activity/Item in the Compensation Costs Table 22
Evidence of Costs Events 24
Multiple Teleconferences 25
Factual Investigation Reports 26
Workers Travel Expenses 30
GST 31
Decision 36
Costs 36Background to the Appeal
1.On 5 May 2005 Craig Anthony Berger (‘the Appellant’) filed an appeal against a decision of the Registrar, in relation to a claim for costs of proceedings heard and determined by a Commission Arbitrator.
2.The Respondent to the appeal is Moree Plains Shire Council. Allianz Australia Workers Compensation (NSW) Ltd is the Council’s workers compensation insurer. It acted for, and on behalf of the Council in the Commission proceedings.
3.The dispute to which the costs assessment relates was finalised in the Commission, on 26 September 2003, by way of the parties filing an ‘Agreement to Discontinue Proceedings in the Commission’, pursuant to Rule 74(2) of the Workers Compensation Commission Rules 2003 (‘the WCC Rules’). The discontinuance annexed the terms of the parties’ agreement to settle the dispute, which included an agreement that ‘the Respondent to pay the Applicant’s costs as agreed or assessed”. The parties agreement, including as to costs, was registered in the Commission pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’) on 8 October 2003.
4.On 9 November 2004 Mr Berger applied to the Registrar for an assessment of costs. A Commission Arbitrator made the assessment of costs as the delegate of the Registrar (and is referred to throughout this decision as ‘the Registrar’). The assessment and reasons were issued on 8 April 2005. The Registrar determined that:
“1.Pursuant to the settlement of a dispute the Respondent 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 $ 8,399.12
3.There is no order or determination as to the costs of the assessment.
4.The Respondent is to pay the amount of $ 8,399.12 to the Applicant if those costs have not already been paid.”
5.The Appellant is dissatisfied with the Registrar’s decision as to a number of “matters of law” (clause 119(1) of the Workers Compensation Regulation 2003 and disputes the amount of the costs ordered).
6.The Respondent submits that the appeal should be dismissed, with costs, on the basis that it does not identify “a matter of law arising in the proceedings”.
7.Mr Berger and the Insurer have been legally represented throughout the Commission proceedings.
On the Papers Review
8.The Applicant argues the matter should not proceed ‘on the papers’. The Respondent submits that it should be so determined.
9.The parties have had ample opportunity to make written submissions on the appeal. Each should be aware that proceedings in the Commission may be determined on the papers (section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)) and that, therefore, all submissions should be made in writing.
10.I am satisfied that the parties are aware of the case against them and that to determine the matter on the papers is not a denial of procedural fairness. 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
Jurisdiction
Part 19 of the Workers Compensation Regulation 2003 (‘the WC Regulation’)
11.Appeals against an assessment of costs, on a matter of law, are governed by clause 119 of Part 19 of the WC 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 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.
12.The WCC Rules do not contain provisions concerning the making of an appeal pursuant to clause 119 of the WC Regulation.
13.The ‘application’ referred to in clause 119(1) is an application for the assessment of costs that may be made pursuant to clauses 96-99 of the WC Regulation, and in the manner set out in clause 100. Clauses 96, 97 and 98 do not apply to Mr Berger’s application for an assessment of costs.
14.Clause 99 of the WC Regulation provides that a “person who has paid or is liable to pay, or who is entitled to receive or who has received, costs as a result of an order for payment of an unspecified amount of costs made by a court or the Commission may apply to the Registrar for an assessment of the whole of, or any part of, those costs”. This clause governs ‘party/party’ costs in the Commission that are the subject of an ‘order for payment’. Mr Berger stated in his ‘Application for the Assessment of Costs’ that he sought an assessment of “party/party costs”. The Registrar did not have power to determine this application unless an ‘order for payment’ of costs had been made by the Commission.
Did the Registrar have Power to Assess Costs at First Instance?
15.After receiving the ‘Agreement to Discontinue Proceedings’ (in accordance with Rule 74) the Registrar wrote to the parties, on 1 October 2003, in the following terms:
“Receipt of Agreement to Discontinue Proceedings is acknowledged. As requested, the Commission has determined these proceedings on the terms as agreed between the parties. We note settlement in this matter as contained in Annexure “A” attached to ‘Agreement to Discontinue Proceedings’ filed on 26 September 2003.”
‘Annexure A’ incorporated the parties’ agreement that, among other things, “the Respondent to pay the Applicant’s costs as agreed or assessed”.
16.The intent and effect of this letter is unclear and raises the question of whether the parties had the benefit of an ‘order for costs’ in this matter.
17.Where parties come to an agreement as to the terms of settlement of a dispute they may apply to the Commission for an order to give effect to those terms (in accordance with Rule 75 of the WCC Rules). This order will be made, where it is one that “the Commission otherwise has power to make”. The Commission cannot make an order to give effect to an agreement as to permanent impairment compensation that is not in accordance with the medical assessment certificate of an Approved Medical Specialist (section 65 of the 1987 Act). Where the parties come to an agreement as to permanent impairment compensation and/or pain and suffering compensation, they may discontinue that part of the dispute and register their agreement pursuant to section 66A of the 1987 Act. The parties may include a provision as to the payment of costs in an agreement registered under section 66A (section 66A(10)). This is what the parties did in this matter.
18.Where parties who are in agreement as to the discontinuance of the substantive proceedings nonetheless want the benefit of an order from the Commission as to costs, they may discontinue the proceedings in part, only as to the matters agreed, and ask for the Commission to make an order for costs. Section 341 of the 1998 Act gives the Commission “full power to determine by whom, to whom and to what extent the costs are to be paid”.
19.Where proceedings are in fact ‘determined’ by the Commission, it “must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination”, as required by section 294 of the 1998 Act.
20.In this matter the Registrar did not issue a formal ‘Certificate of Determination’ (in the usual format) as to costs or any other matter that was the subject of the dispute. Nor did the parties ask the Commission to make orders to give effect to their costs agreement, contained in Annexure “A” of the agreed discontinuance.
21.Mr Berger filed his ‘Application for an Assessment of Costs’ with the Registrar on 9 November 2004. The Registrar in her assessment dated 8 April 2005 stated that the Applicant’s entitlement to costs arose “pursuant to the settlement of a dispute” and that, “clause 99 of the Workers Compensation Regulation 2003 enables a party having the benefit of an unspecified entitlement to costs to apply for an assessment of those costs”. This is not what clause 99 in fact provides. Clause 99 requires the ‘entitlement’ to costs to arise “as the result of an order” by a court or the Commission.
22.I note that neither party has challenged the Registrar’s authority to give the assessment of costs dated 8 April 2005. However, unless “an order for payment” of costs had been made in the proceedings before the Arbitrator, the Registrar does not have the power to determine an application pursuant to clause 99 of the WC Regulation. I return therefore, to the question of the status of the Registrar’s letter to the parties of 1 October 2003 (set out above).
23.The Commission must “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (section 354 of the 1998 Act). In my view it was intended that these principles also apply to proceedings before the Registrar. This is consistent with the critical role of the Registrar and the objectives of the Commission, of which she is a Member (sections 367 and 368 of the 1998 Act).
24.In this matter I am certain that the intention of the parties was that the costs awarded to Mr Berger, could, if necessary, be subject to assessment by the Registrar. While there is clearly an argument for the contrary view, I find in this instance that the Registrar’s letter of 1 October 2003 amounts to an order for costs in the terms agreed by the parties (i.e. “The Respondent to pay the Applicant’s costs as agreed or assessed”). It cannot be said to amount to an order in relation to permanent impairment compensation, as it is not in accordance with the binding opinion of an Approved Medical Specialist (‘AMS’). The parties also clearly did not intend their agreement as to weekly payments of compensation to be made into an order of the Commission. I am prepared to make that finding in relation to costs, in order to achieve fairness for the parties.
25.Having found that the matter was properly before the Registrar at first instance it remains to determine whether the Appellant has identified a “matter of law” that enlivens the jurisdiction to review the assessment under clause 119(1) of the WC Regulation.
Identification of “Matters of Law” on Appeal
26.The Appellant submits that he is dissatisfied with the following matters of law (summarized as best I can) arising in the proceedings:
1.“there is no reason why a worker should be prejudiced (against the obvious intention of the legislation) by having to wait until he/she can bring all his claims for dispute resolution at the same time.. . . . the Registrar’s decision on this aspect was ultra vires as the question was not one as to whether the incurring of a cost was fair and reasonable, but rather the statutory regime provided for a particular course” (‘Multiple Applications to the Commission’).
2.“. . . for the Registrar to depart from Schedule 6 [of the Workers CompensationRegulation 2003] would require evidence that the activity was not warranted and that the rate prescribed was inappropriate. It is submitted that a matter of law arises in that the Registrar had no evidence in the assessment to formulate any such views” (‘Reduction of the Schedule 6 Prescribed Rate’).
3.“It is submitted that it is an error of law for the Registrar to only allow [Item 4.07] once as it was obviously required twice” (‘Duplication of an Activity/Item in the Compensation Costs Table’).
4.“. . the failure to consider the record of the Workers Compensation Commission is a legal error which should be corrected on appeal” (‘Evidence of Costs Events’).
5.“Whether multiple teleconferences, associated preparation and advising the client are allowed for in the Compensation Costs Table”- specifically Items 4.08, 4.09 and 4.12 (‘Multiple Teleconferences’).
6.“Whether the costs of a factual investigation are subject to a Registrar’s decision” (‘Factual Investigation Reports’).
7.“Whether a worker’s travel costs and expenses of attending a medical examination are within the jurisdiction of the Registrar” (‘Travel Expenses’), and
8.The submission of 3 May 2005 raises the question of whether GST has been allowed on disbursements (‘GST’).
27.In general terms these “matters” all allege a misinterpretation of the relevant law in relation to the assessment of costs in Commission proceedings. I am therefore satisfied that I have jurisdiction to hear the appeal pursuant to clause 119 of the WC Regulation.
The Costs Regime in the Commission
28.This appeal raises numerous important issues concerning the regulation of costs in the Commission. In so far as it is relevant to this particular application it is necessary for me to set out in some detail how Commission costs are, in fact, regulated.
29.Costs incurred after the commencement of the 1998 Act, on 1 January 2002, are governed by Part 8 of that Act, which establishes a comprehensive statutory regime for the regulation of costs in Commission proceedings. However, the 1998 Act, the WC Regulation, the Legal Profession Act 2004, the Legal Profession Regulation 2005 and regulatory instruments (made from time to time) must be read together in order to fully understand and appreciate the costs regime applicable to disputes in the Commission.
30.The Legal Profession Act 2004 replaces the Legal Profession Act 1987 and all references to the earlier Act are now references to the 2004 Act (Schedule 9 of the Legal Profession Act 2004).
31.The Legal Profession Regulation 2005 replaces the Legal Profession Regulation 2002, which was applicable at the time of the proceedings in this matter.
32.The relevant provisions for the purpose of this discussion do not significantly differ as between the 1987 Act and the 2004 Act, and the 2002 and 2005 Regulations. I refer here to the Legal Profession Act 2004 and the Legal Profession Regulation 2005, as they will be of continuing relevance to other matters in the Commission.
33.Part 8 of the 1998 Act prevails over any inconsistency with the Legal Profession Act 2004 (section 334).
The 1998 Act
34.Section 337 provides that:
337 Maximum lawyer and agent costs
(1) The regulations may make provision for or with respect to the following:
(a) fixing maximum costs for legal services or agent services provided to a claimant, an employer or an insurer in or in connection with any workers compensation matter or work injury damages matter,
(b) fixing maximum costs for matters that are not legal services or agent services but are related to a claim for compensation or work injury damages (for example, expenses for witnesses or medical reports).
(2) Regulations under this section can fix costs and amounts by reference to costs and amounts fixed by regulations under the Legal Profession Act 1987.
(3) A legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section.
(4) An agent is not entitled to be paid or recover for an agent service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section.
(5)This section does not entitle a legal practitioner to recover costs for a legal service or matter that a court or costs assessor determines were unreasonably incurred.
(6)The power under this section to make regulations fixing maximum costs for services or matters includes power to make regulations to provide that no amount is recoverable for a particular service or matter or class of services or matters, with the result that a legal practitioner or agent is not entitled to be paid or recover any amount for the service or matter concerned.
35.Section 338 restricts the recovery of the costs of obtaining medical and other reports.
36.Section 339 provides that the WorkCover Authority may fix the maximum fees for the provision of certain services, including reports, by health service providers.
37.Section 341 gives the Commission broad powers in relation to the determination of costs, as follows:
341 Costs to be determined by Commission
(1)Costs to which this Division applies are in the discretion of the Commission.
(2)The Commission has full power to determine by whom, to whom and to what extent costs are to be paid.
(3)The Commission may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 (or in relevant regulations under Division 4 of this Part) or on an indemnity basis.
(4)The Commission may not order the payment of costs by a claimant unless the Commission is satisfied that the claim was frivolous or vexatious, fraudulent or made without proper justification.
(5)If the Commission is satisfied that a part only of a claim was frivolous or vexatious, fraudulent or made without proper justification, the Commission may order the claimant to pay the costs relating to that part of the claim.
(6)Any party to a claim may apply to the Commission for an award of costs.
38.Section 347 provides for the making of regulations with respect to costs, as follows:
347 Regulations for costs assessment
(1) The regulations may make provision for or with respect to:
(a)the assessment or taxation of costs payable to a legal practitioner or agent in connection with a claim for compensation or work injury damages, and
(b) matters associated with the assessment or taxation of those costs.
(2)In particular, the regulations may make provision for or with respect to any matter for or in connection with which provision is made by Division 6 (Assessment of costs) of Part 11 of the Legal Profession Act 1987.
(3)Regulations for the purposes of this Division may adopt, with or without modification, any of the provisions of Division 6 (Assessment of costs) of Part 11 of the Legal Profession Act 1987
(4)Without limiting this section, the regulations may make provision for or with respect to the assessment of costs by the Commission.
(5)The regulations may make such modifications to the provisions of Part 11 of the Legal Profession Act 1987 as may be consequential on the assessment or taxation of costs payable to a legal practitioner being provided for by the regulations under this Division rather than under Division 6 of Part 11 of that Act.
39.Section 348 provides that regulations made pursuant to section 347 displace the provisions of the Legal Profession Act 1987.
The WC Regulation
40.Part 19 of the WC Regulation (clauses 81 to 126) provides for the costs payable, including the assessment of ‘costs’, in matters before the Commission.
41.Clause 81 defines ‘insurer’ to include ‘employer’ in Part 19.
42.Clause 82 provides for ‘Costs not regulated by this Part’ as follows;
82 Costs not regulated by this Part
Costs referred to in this Part do not include any of the following:
(a)costs for legal services provided for an appeal under section 353 (Appeal against decision of Commission constituted by Presidential member) of the 1998 Act,
(b)fees for investigators’ reports or for other material produced or obtained by investigators (such as witness statements or other evidence),
(c)fees for accident reconstruction reports,
(d)fees for accountants’ reports,
(e)fees for reports from health service providers,
(f)fees for other professional reports relating to treatment or rehabilitation (for example, architects’ reports concerning house modifications),
(g)fees for interpreter or translation services,
(h)fees imposed by a court or the Commission,
(i)travel costs and expenses of the claimant in the matter for attendance at medical examinations, a court or the Commission,
(j)witness expenses at a court or the Commission.
43.Clause 84 fixes the maximum costs recoverable by legal practitioners and agents, as those set out in Schedule 6, except where otherwise provided in Part 19. Schedule 6 is critical to a consideration of costs in compensation matters. It sets out the maximum costs recoverable in workers compensation matters by reference to the Compensation Costs Table (‘the Table’). Schedule 6 also:
·limits the costs that may be claimed for multiple claims or disputes in respect of the same injury (clause 2),
·restricts costs to those occurring within the time periods specified in the Table (clause 3),
·restricts traveling and accommodation costs for attending Commission proceedings (clause 4),
·prescribes the method of calculating costs where multiple insurers are parties to a claim (clause 5),
·sets out the manner of calculating ‘hourly rates’ for the purpose of the Table (clause 6),
·provides that the Commission or the Registrar may determine whether a costs activity or event for the purpose of an appeal to a Presidential Member, is in respect of a “substantive legal issue” (clause 7),
·limits costs to $200 where a medical dispute or weekly payments dispute is finalized, by agreement or an order, for payment of an amount less than $1000 (clause 8),
·provides that certain agents are not entitled to costs (clause 9), and
·permits the “recovery of certain charges for certain documents from public authorities” (clause 10).
44.The Court of Appeal decision in Orellana Fuentes v Standard Knitting Mill Pty Limited & Anor; Carey v Blasdom Pty Limited T/as Ascot Freightlines & Anor [2003] NSWCA 146 (‘Fuentes’) is the only matter where the Court has considered the statutory costs regime in the Commission. Ipp JA, with whom Spigelman CJ and Handley JA agreed, observed that:
“. The costs regime contained in Sch 6 is part of the scheme of procedural mechanisms and other incentives designed to promote the settlement of disputes before formal hearings take place. This explains why Sch 6 provides for substantially more recoverable costs for proceedings that precede formal hearings. (at [73])
and further:. . . With regard to the Commission . . . Parliament has placed considerable emphasis on conciliation proceedings and informal hearings in an attempt to provide mechanisms and incentives for settlement of disputes before the disputes are formally disposed of in the traditional way by the adversarial process. Workers compensation is well suited to this policy. The costs structure contained in Sch 6 is part of this system and creates an additional incentive to parties, lawyers and agents to strive for consensual settlements prior to formal hearings... I am not persuaded that this policy offends the interests of justice. (at [108])”
45.Clauses 110 to 113 concern the “Assessment of party/party costs” and are relevant to the application for assessment in this matter. Clauses 110 and 111 provide as follows:
110Assessment of costs—costs ordered by court or Commission
(1)When dealing with an application relating to costs payable as a result of an order made by a court or the Commission, the Registrar must consider:
(a)whether or not it was reasonable to carry out the work to which the costs relate, and
(b) what is a fair and reasonable amount of costs for the work concerned.
(2)The Registrar is to determine the costs payable as a result of the order by assessing the amount of the costs that, in his or her opinion, is a fair and reasonable amount.
(3)If a court or the Commission has ordered that costs are to be assessed on an indemnity basis, the Registrar must assess the costs on that basis, having regard to any relevant rules of the court or Commission.
(4)The costs assessed are to include the costs of the assessment (including the costs of the parties to the assessment, and the Registrar). The Registrar may determine by whom and to what extent the costs of the assessment are to be paid.
(5)The costs of the Registrar are to be paid to the Commission.
111.Additional matters to be considered by Registrar in assessing costs ordered by court or Commission
In assessing what is a fair and reasonable amount of costs, the Registrar may have regard to any or all of the following matters:
(a)the skill, labour and responsibility displayed on the part of the legal practitioner or agent responsible for the matter,
(b)the complexity, novelty or difficulty of the matter,
(c)the quality of the work done and whether the level of expertise was appropriate to the nature of the work done,
(d)the place where and circumstances in which the legal services were provided,
(e)the time within which the work was required to be done,
(f)the outcome of the matter.
46.Clause 119 concerns appeals against the Registrar’s assessment of costs, on matters of law, and is set out above. Clause 120 provides that the Registrar, or the Commission constituted by a Presidential member, may stay the decision pending an appeal.
47.Costs in relation to medical reports are also regulated by clause 45 of Part 10 of the WC Regulation, which provides as follows:
45 Restrictions on recovery of cost of medical reports
(1)A party to proceedings on a claim is not entitled to be paid for or recover the cost of obtaining a medical report in connection with the claim unless the report:
(a) has been admitted in those proceedings on behalf of the party, or
(b) is a claims management phase report (as provided by subclause (2)).
(2)The following medical reports are claims management phase reports:
(a)a medical certificate that accompanies a claim for weekly payments of compensation,
(b)a medical certificate that accompanies an initial notification of injury,
(c)any medical report provided by a medical practitioner as part of and in the course of treatment of the injured worker by the medical practitioner,
(d)any medical report provided by a medical practitioner in respect of an examination of the injured worker pursuant to a requirement of the employer in accordance with section 119 of the 1998 Act.
(3)In this clause:
(a) a reference to a claim includes an initial notification of injury (as defined in Part 3 of Chapter 7 of the 1998 Act), and
(b) a reference to proceedings on a claim includes proceedings in respect of the payment of provisional weekly payments of compensation under that Part.
The Legal Profession Act 2004 (‘the LP Act’) and the Legal Profession Regulation 2005 (‘the LP Regulation’)
48.The removal of certain costs, referred to in clause 82 of the WC Regulation, from the operation of Part 19 raises two questions, i.e. how are clause 82 costs to be assessed, and who is to assess them? A particular issue arises as to fees for reports of ‘health service providers’, pursuant to clause 82(e) of the Regulation. Section 339 of the 1998 Act and clause 45 of the Regulation regulate the cost of these reports.
How are clause 82 Costs to be Assessed?
49.As noted above, the 1998 Act and the WC Regulation displace the provisions of the LP Act in relation to the costs of legal services by a legal practitioner in Commission proceedings.
50.However, with the exception of fees for reports from health service providers, the 1998 Act and Part 19 of the WC Regulation do not expressly regulate those items set out in clause 82. These costs fall within the jurisdiction of the LP Act. It is clear from sections 334, 335 and 347 of the 1998 Act that it was within the contemplation of the legislators that the LP Act may apply to the assessment of some costs arising in Commission proceedings (see also clauses 116 and 124 of the WC Regulation).
51.‘Legal Costs’ are defined in section 4 of the LP Act as:
“legal costs means amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services including disbursements but not including interest”.
52.Section 329 of the LP Act provides, in part, as follows:
329. Regulations to provide for fixed costs
(1) The regulations may make provision for or with respect to the following:
(a) . . .
(b)fixing fair and reasonable costs for legal services provided in any workers compensation matter,
. . . .
(2)A law practice is not entitled to be paid or recover for a legal service an amount that exceeds the fair and reasonable cost fixed for the service by the regulations under this section.
53.Section 362 of the LP Act provides, in part, as follows:
362 Costs fixed by regulations or other legislation
(1)An assessment of costs fixed by a regulation under section 329 (1) (a), (b), (c), (d) or (e) is to be made in accordance with that regulation.
(2). . . .
(3). . . .
(4)An assessment of costs fixed by a provision of any other Act, or a statutory rule made under any other Act, is to be made:
(a)if the costs are fixed by a provision of any other Act—in accordance with that provision (despite anything to the contrary in a regulation under section 329), or
(b)if the costs are fixed by a provision of a statutory rule made under any other Act—in accordance with that provision (but only to the extent that the provision is not inconsistent with a regulation under section 329).
54.Clause 113 of the LP Regulation provides as follows:
113Prescribed costs for services in workers compensation matters—section 329 (1) (a) and (f) of the Act
(1)This clause applies to:
(a) costs for legal services provided in any workers compensation matter, and
(b) costs for a matter that is not a legal service but is related to proceedings in any workers compensation matter.
(2)The fair and reasonable costs fixed for a legal service specified in Part 1, 2 or 3 of Schedule 3 are the costs specified in relation to that service in that Part, calculated in accordance with that Part.
(3)However, after calculating the costs for legal services specified in Parts 1 and 2 of Schedule 3, the total of all such costs is to be reduced by 10%.
(4)The amount of costs fixed for a service specified in Part 4 of Schedule 3 is the amount specified in relation to that service in that Part, calculated in accordance with that Part.
(5)This clause is subject to the Workplace Injury Management and WorkersCompensation Act 1998, which includes provisions in relation to costs and the assessment of costs in workers compensation matters.
55.Sections 329 and 362 of the LP Act, clause 113 and Schedule 3 of the LP Regulation, the 1998 Act and the WC Regulation operate together to regulate the costs of matters listed in clause 82 of the WC Regulation. The fees for ‘reports from health service providers’ must be treated with particular care (as discussed below).
56.The costs in clause 82 of the WC Regulation should be assessed as follows:
(a)costs for legal services provided for an appeal under section 353 (Appeal against decision of Commission constituted by Presidential member) of the 1998 Act.
Clause 113 of the LP Regulation, applies to the assessment of costs for these services. They must therefore be assessed in accordance with Schedule 3, Parts 1, 2 and 3 of the LP Regulation (unless otherwise regulated by legislation governing costs subject to an order in the Court of Appeal).
(b)fees for investigators’ reports or for other material produced or obtained by investigators (such as witness statements or other evidence).
Clause 113 of the LP Regulation, applies to the assessment of costs for these services. Where claimed as a disbursement the fee for such a report must be assessed in accordance with Schedule 3, Part 1 Item 10 ‘Disbursements’ of the LP Regulation. This applies a test of whether the disbursement was “reasonably incurred or was reasonable in amount”. The determination of the total amount must also be a ‘fair and reasonable’ value for the service provided.
(c)fees for accident reconstruction reports.
Clause 113 of the LP Regulation, applies to the assessment of costs for these services. Where claimed as a disbursement the fee for such a report must be assessed in accordance with Schedule 3, Part 1 Item 10 ‘Disbursements’ of the LP Regulation. This applies a test of whether the disbursement was “reasonably incurred or was reasonable in amount”. The determination of the total amount must also be a ‘fair and reasonable’ value for the service provided.
Where claimed as a ‘professional report’ pursuant to Schedule 3 of the LP Regulation, Part 4, Item 2. “Preparation of Reports” it must be assessed under this item. The determination of the total amount must be a ‘fair and reasonable’ value for the service provided
(d)fees for accountants’ reports.
Clause 113 of the LP Regulation, applies to the assessment of costs for these services. They must therefore be assessed in accordance with Schedule 3 of the LP Regulation, Part 4, Item 2 “Preparation of Reports”. The determination of the total amount must be a ‘fair and reasonable’ value for the service provided.
(e)fees for reports from health service providers.
From 4 November 2003 the costs of these reports are regulated by the 1998 Act (section 339) and the WC Regulation (clause 45). Difficulties arise in relation to reports obtained between 1 January 2002 and 4 November 2003, because the Authority did not prescribe the costs of these reports until 4 November 2003. This is discussed further below.
(f)fees for other professional reports relating to treatment or rehabilitation (for example, architects’ reports concerning house modifications).
Clause 113 of the LP Regulation, applies to the assessment of costs for these services. They must therefore be assessed in accordance with Schedule 3, Part 4, Item 2 “Preparation of Reports” of the LP Regulation. The determination of the total amount must be a ‘fair and reasonable’ value for the service provided
(g)fees for interpreter or translation services.
Clause 113 of the LP Regulation, applies to the assessment of costs for interpreting and translation services. They must therefore be assessed in accordance with Schedule 3, Part 4 of the LP Regulation, Item 9 “Interpreters”. The determination of the total amount must be a ‘fair and reasonable’ value for the service provided
(h) fees imposed by a court or the Commission ,
These costs are not discretionary and will be regulated by reference to the fixing of costs by the court or the Commission.
(i)travel costs and expenses of the claimant in the matter for attendance at medical examinations, a court or the Commission,c
Clause 113 (4) of the LP Regulation, applies to the assessment of costs for these services. They must therefore be assessed in accordance with Schedule 3, Part 4 of the LP Regulation, Item 4 “Travelling and Accommodation”. The determination of the total amount must be a ‘fair and reasonable’ value for the service provided. While travel costs are not strictly ‘services’, Clause 113(1)(b) of the LP Regulation applies to “costs for a matter that is not a legal service but is related to proceedings in any workers compensation matter”.
(j) witness expenses at a court or the Commission.
Clause 113 (4) of the LP Regulation, applies to the assessment of costs for these services. They must therefore be assessed in accordance with Schedule 3, Part 4 of the LP Regulation, Item “5 Allowances to Non-Professionals”. The determination of the total amount must be a ‘fair and reasonable’ value for the service provided. Item 3 of Part 4 of Schedule 3 also provides for the costs of “expert witnesses”.
57.Note that all costs regulated by Parts 1, 2 and 3 of Schedule 3 are reduced by 10%, disbursements fixed by Part 4 (i.e. most of those above) are not so reduced.
Reports of Health Service Providers
58.Part 8 of Chapter 7 of the 1998 Act and the WC Regulations regulates those costs incurred on and from 1 January 2002 (the commencement date, see clause 125 of the WC Regulation).
59.Section 339 of the 1998 Act provides, among other things, that a “health service provider is not entitled to be paid or recover any fee for providing a service that exceeds any maximum fee fixed under this section for the provision of the service”. Clause 45 of the WC Regulation also applies to the costs of reports from ‘health service providers’ (commonly ‘medical reports’) in proceedings before the Commission.
60.These provisions, together with clause 113(5) of the LP Regulation, exclude assessment of the costs of reports from ‘health service providers’ from the provisions of Schedule 3 of the LP Regulation, because they are regulated by the 1998 Act.
61.However, while section 339 of the 1998 Act empowered the Authority to fix the maximum fees for reports of health service providers, the Authority did not do so until 4 November 2003 when the ‘Workplace Injury Management and Workers Compensation (Medical Examinations and Reports) Order 2003’ (‘the Order’) was made. This Order set out the rates of fees for medical assessments by general practitioners, medical specialists and ‘Approved Medical Specialists’, who make an assessment referred to in section 339 of the 1998 Act. The Order has since been repealed and a new Order made, on 15 March 2005, increasing the appropriate rates for medical reports on and from gazettal, which was on 18 March 2005. For medical assessments made on and from 4 November 2003 the amount of costs that may be claimed will be capped in accordance with the Order (as amended from time to time).
62.The fees for reports from health service providers falling within clause 82(e) of the WC Regulation and obtained prior to 4 November 2003 are therefore fixed by Part 4 of Schedule 3 of the LP Regulation (Item 6 “medical examinations and reports”).
Who is to assess clause 82 Costs?
63.Excluding clause 82 costs from the whole of Part 19 of the WC Regulation arguably removes them not only from any restriction on maximum costs fixed by the Compensation Costs Table, but also from the assessment process set out in the Part.
64.Section 335 of the 1998 Act provides that: “An assessment of any costs is to be made so as to give effect to the provision of this Part (whether or not the assessment is made under Division 6 of Part 11 of the Legal Profession Act 1987)”.
65.Section 347 (5) of the 1998 Act provides that:
(5)The regulations may make such modifications to the provisions of Part 11 of the Legal Profession Act 1987as may be consequential on the assessment or taxation of costs payable to a legal practitioner being provided for by the regulations under this Division rather than under Division 6 of Part 11 of that Act.
66.No regulation has been made to modify the operation of the LP Act as to the assessment or taxation of costs included in clause 82 of the Regulation, and expressly excluded from Part 19 of the Regulation. There is no power in the Registrar of the Commission to assess costs under the LP Act. The Registrar is not a “costs assessor” for the purpose of costs regulated by that Act (Division 11 of Part 3.2).
67.To exclude clause 82 costs from the process of assessment by the Registrar and appeal against assessment (pursuant to Part 19 of the WC Regulation) would lead to an untenable result where Compensation Costs Table items must be assessed by the Registrar and clause 82 items must be assessed by a cost assessor appointed pursuant to the LP Act.
68.The Commission’s broad statutory power to determine “by whom, to whom and to what extent” costs are to be paid in the Commission (section 341 of the 1998 Act) is sufficient to enable the Registrar (who is a member of the Commission by virtue of section 368 of the 1998 Act) to assess the whole of the costs which are subject to an order in Commission proceedings. Section 336 provides that the WC Regulations may exclude a class of matters from Part 8 of Chapter 7 of the Act. While clause 82 of the WC Regulation excludes certain costs from Part 19 of the WC Regulation, it does not purport to exclude these costs from Part 8 of Chapter 7 of the 1998 Act.
69.The intention that the Registrar assesses all costs in the Commission is also clear from the language of the WC Regulation. Clause 99 provides that the Commission may direct the Registrar to “assess costs payable as a result of an order” made by the Commission. An order, made pursuant to section 341 of the 1998 Act, may include costs regulated by Part 19 of the WC Regulation or by the LP Act.
70.The ‘Explanatory Memorandum’ to the Workers Compensation (General) Amendment (Costs) Regulation 2001 stated that one of the objects of the Regulation was “to provide for the assessment of costs by the Registrar of the Workers Compensation Commission”.
71.I am satisfied that the items listed in clause 82 of the WC Regulation are subject to the same assessment process as costs included in the Compensation Costs Table in Schedule 6, i.e. assessment by the Registrar of the Commission and appeal to a Presidential Member as to a “matter of law”.
Summary
72.Without referring again, in detail, to the relevant statutory provisions, the assessment of costs in the Commission may be briefly summarised as follows:
·The 1998 Act and the WC Regulation govern the award and assessment of costs in the Commission unless otherwise excluded.
·Clause 82 of the WC Regulation excludes certain costs from assessment under that Regulation. These items, with the exception of fees for health service providers, must be assessed in accordance with the LP Act and the LP Regulation.
·Fees for reports of health service providers were not fixed by the 1998 Act, and the WC Regulation until 4 November 2003. Prior to this date they were regulated by the LP Act and the LP Regulation.
·On and from 4 November 2003 the fees for reports from health service providers are fixed by the ‘Workplace Injury Management and Workers Compensation (Medical Examinations and Reports) Order 2003’ and the ‘Workplace Injury Management and Workers Compensation (Medical Examinations and Reports) Order 2005’.
·All costs that are the subject of an order of the Commission, whether regulated by workers compensation legislation or the LP Act and LP Regulation, may be assessed by the Registrar of the Commission, in accordance with the WP Regulation.
Matters of Law on Appeal
Multiple Applications to the Commission
73.The Appellant argues that:
“ . . . there is no restriction on a worker bringing different ‘Applications to Resolve Disputes’ regarding different aspects of his/her claims for compensation benefits.. . . the 1998 Act provides for different regimes for the time between when a claim is made until it can be referred for dispute resolution. . . .
It is submitted there is no reason why a worker should be prejudiced (against the obvious intention of the legislation) by having to wait until he/she can bring all his (sic) claims for dispute resolution at the one time.
This need for the worker to commence two Applications also intersects with there being a “dispute” to be in existence prior to the commencement of proceedings . . . . Thus at the time when the Application to Commence Weekly Payments (sic) was filed, there was no “dispute” which would have entitled the Commission to have jurisdiction regarding the potential lump sum claims.
In addition the Workers Compensation Commission procedures do not allow for Amendment of the Application to Resolve a Dispute, especially to introduce a new claim.
It is therefore submitted that the Registrar’s decision on this aspect was ultra vires as the question was not one as to whether the incurring of a cost was fair and reasonable, but rather the statutory regime provided for a particular outcome.”
74.Mr Berger’s legal representative submitted that each of the matters filed in the Commission was addressed to a different aspect of the claim, i.e. weekly benefits or lump sum compensation. He argues that different statutory provisions as to the time of commencement govern these claims and therefore to require them to be made together would be unfair and cause significant delay and financial hardship. Payment of his entitlement would also inevitably be delayed. This submission, on the facts of this case, does not accurately reflect the nature of the two disputes that were filed in the Commission. The history of Mr Berger’s applications to the Commission, drawn from the details provided on the original documents in the Commission’s files, is as follows:
·On 23 August 2002 Mr Berger’s legal representative filed an ‘Application to Resolve a Dispute’ in relation to a claim for weekly compensation, medical expenses and lump sum compensation. The dates of injury were given as “4 .12.1995, 04.05.2000 and as a result of the nature and conditions of the Applicant’s employment with the Respondent from 1989 until 4.05.2000.” The Application stated that a report of Dr Conrad was to be later filed and relied upon. The Commission gave this application matter number WCC1890-2002.
·On 11 November 2002 Mr Berger’s legal representative filed a second ‘Application to Resolve a Dispute’ in identical terms to the previous application except that medical expenses were no longer in dispute and the total amount claimed for lump sum compensation was reduced. In addition to the medical reports previously filed with matter no WCC 1890-2002, a medical report of Dr Conrad, dated 24 September 2002 was filed with the application. The Commission gave this application matter number WCC 4072-2002.
·On 22 November 2002 a telephone conference in matter number 1809 was held and the Arbitrator directed that both matters be heard together. On 3 December 2002 the Deputy Registrar issued a direction in these terms.
·Thereafter the two ‘matters’ were heard together. It appears that they proceeded as number WCC1890-2002. This matter was resolved by the filing of a notice of discontinuance on 26 September 2003 and the registration of an agreement pursuant to section 66A of the 1987 Act in relation to lump sum compensation and costs.
75.The Registrar attempted to unscramble this history at paragraph 7 of the costs assessment. This was not assisted by the Appellant’s submissions on appeal, dated 3 May 2005, which referred to Matter No “1270-2004”. This is clearly an error as this matter number in the Commission refers to other parties, not Mr Berger. This is not the only error of this type in this application. As will be seen later in these reasons, the bill of costs, the application to the Registrar for assessment and the appeal against that application were riddled with errors as to dates of medical reports and dates of other relevant documents. This has meant that every document claimed in the bill has needed verification and as a consequence these reasons may at times appear complex and difficult to follow.
76.The Respondent argued before the Registrar that the second application to the Commission was substantively only by way of amendment to the earlier application filed in the Commission.
77.It is not entirely correct to state, as the Appellant does, that the dispute concerning lump sum compensation, i.e. the second dispute, could not have been made at the time of the filing of the first dispute. The first matter (WCC1890-2002) claimed weekly compensation AND lump sum compensation and medical expenses. The second application (WCC 4702-2002) also claimed weekly compensation AND lump sum compensation. Mr Berger had made a claim for lump sum compensation in February 2002, through a different legal representative. He made a further claim for lump sum compensation for permanent impairment, to his left knee and back and sexual organs, in August 2002. It is this further claim that his legal representative argues could not have been brought to the Commission, as a dispute, before November 2002 (pursuant to section 289 of the 1998 Act), when matter number WCC 4702-2002 was filed. However, in my view this latter ‘dispute’ was substantially only an amendment to the matter already filed in the Commission.
78.Item 4.01 of the Compensation Costs Table provides for a maximum total cost of $300 for lodging an application to resolve a dispute in the Commission. Item 4.02 provides for a maximum of $100 for service of material in relation to Item 4.01 on the other parties to the dispute; $40 is allowed for the first party, then $20 for each additional party. These amounts are expressed in the Compensation Costs Table in Schedule 6 of the Regulation to be payable for “the maximum amount for individual activity/event”. Mr Berger submitted that he was entitled to claim these amounts ($300 for Item 4.01 and $60 for Item 4.02) twice, i.e. in relation to both matters filed in the Commission (WCC 1890-2002 and WCC 4072-2002). The Registrar rejected that submission, stating, in relation to the claim for costs for both matters under Item 4.01 that:
“. . . while there is a commonality between the first and second Applications (weekly benefits and lump sum claims), the second Application apparently also included section 60 medical expenses. It is an unusual presentation and approach to matters. Despite this unusual presentation the Assessment is constrained by the provisions of clause 2 of Schedule 6 of the Regulation which does not allow more than the maximum in the Table ($300) in the event of more than one claim or more than one dispute in respect of a claim arising out of a particular injury. That appears to be the position here and clause 2 limits the activity claimed to $300 as the Table maximum.”
79.The Registrar adopted the same reasoning for the claim under Item 4.02, made in relation to both matters.
80.Mr Berger’s argument that the statutory scheme prevented these matters being claimed and disputed together is not sustainable. The date of injury claimed in both applications is identical. The later application attaches the report of Dr Conrad, dated 24 September 2002, which was foreshadowed in the earlier application. The preparation and filing of a completely fresh application was not needed to file this report, which had been identified in the earlier application. The amendment of the amount of the claim for lump sum compensation and the withdrawal of the claim for medical expenses also did not require a fresh application.
81.The submission that the Commission’s ‘Procedures’ do not allow amendment of an application may be dealt with simply. It is clearly wrong. WCC Rule 17 provides for the amendment of documents filed in the Commission on the application of any party. It does not exclude an application to amend the original ‘Application’ (filed pursuant to WCC Rule 37) or the ‘Reply’ (filed pursuant to WCC Rule 39). I note however that the treatment of the second ‘Application’ (WCC 4072-2002) as an amendment would not attract an item in the Compensation Costs Table in schedule 6 of the WC Regulation. There is no ‘Item’ applicable to the ‘event’ of ‘amending’ an Application or Reply.
82.It is in the interests of all parties, and the intention of the regulatory scheme, that claims and disputes in relation to the one injury be made together whenever possible. This avoids prolonged litigation for the parties, minimises the costs of medical and other reports and, as can be seen in this matter, minimises legal costs. The Appellant’s legal adviser was no doubt aware of the requirements of the 1998 Act and the WC Regulation.
83.Section 263 of the 1998 Act provides that:
Lump Sum compensation claims to be made at the same time
263(1). All claims for permanent impairment compensation or pain and suffering compensation in respect of an injury must, as far as practicable, be made at the same time.
(2)A legal practitioner or agent who acts for a worker when such a claim is made is not entitled to recover any costs from the worker or the employer in relation to any such claim made later (including such a claim made by later amendment of proceedings) unless there is a good reason for the claim being made later).
84.I am not persuaded by the Appellant’s submissions that there was good reason why the dispute filed in August 2002 and the later dispute, filed in November 2002, could not have been made together. Mr Berger’s injuries were long-standing. His claim for weekly compensation and permanent impairment had been on foot since, at least, February 2002. Medical evidence (Doctors Dan, Oates and Black) had already been obtained. The nature of Mr Berger’s injuries was not such that it was not fully revealed until November 2002. Had the claim for permanent impairment and pain and suffering compensation been properly and comprehensively made at the outset, the subsequent dispute could have been filed, once, in the Commission at the appropriate time.
85.Clause 2 of Schedule 6 of the WC Regulation relied upon by the Registrar to reject the double claim under Items 4.01 and 4.02, provides as follows;
2 Multiple claims or disputes in respect of an injury to be treated as a single claim or dispute
(1)In the event that more than one claim is made in respect of a particular injury, or more than one dispute arises in respect of a claim, the maximum total costs for a type of activity or event in respect of the injury, regardless of how many times the activity or event is carried out, is the maximum set out in Column 4 of the table in relation to that type of activity or event.
(2)Subclause (1) does not apply if:
(a) a period of more than 12 months has elapsed between the making of the first claim in respect of the injury and the making of a subsequent claim (and the same applies to each claim subsequent to that claim), or
(b) a period of more than 12 months has elapsed between the notification of the first dispute in respect of the claim and the notification of a subsequent dispute (and the same applies to each dispute subsequent to that dispute), or
(c) the Commission or the Registrar orders that the claims or disputes are to be treated as separate claims or disputes for the purposes of the calculation or assessment of costs.
(3)The Registrar may, on application, order that subclause (1) does not apply to costs incurred in respect of a claim or dispute if satisfied that the need for the costs to be incurred could not have been foreseen at the time that costs for the type of activity or event concerned were first incurred in connection with the injury.
(4)No costs are payable or recoverable in respect of an application for the purpose of subclause (3).
86.Clause 2 of Schedule 6 addresses the potential concerns articulated by the Appellant in relation to “multiple claims of the Regulation or disputes” (although in my view these concerns were not realised in this case). On the facts of this matter sub clauses (2) (a) and (b) and (c) do not apply. However subclause (3) requires the Registrar to consider whether “the need for the costs to be incurred could not have been foreseen at the time that costs for” the second application to the Commission (WCC No. 4702) was made. It is preferable that a party make an application to the Commission or the Registrar pursuant to sub clause 2(2)(c) at the time of making a later application, in order that the issue of how multiple disputes are to be dealt with is determined at the outset. The application could be put before the Arbitrator who has carriage of the first matter in order to resolve the issue prior to an award of costs being made. However, in this matter the Appellant’s ‘Application for Assessment of Costs’ and appeal on the assessment, outlining the double claim under Items 4.01 and 4.02 are sufficient to amount to an ‘application’ pursuant to sub clause (3) of clause 2.
87.Sub clause 2(3) of Schedule 6 involves the exercise of discretion and requires the Registrar to turn his or her mind to the relevant considerations in the particular matter. There is no evidence that the Registrar exercised this discretion.
88.Having reviewed the documents filed in both the original proceedings I see no reason why the second application should be treated as a separate dispute for the purpose of the assessment of costs. I am not satisfied that the “need for costs to be incurred could not have been forseen at the time” the costs were incurred. Mr Berger’s second ‘Application’ to the Commission should have been approached by way of the filing of the additional report of Dr Conrad in accordance with the Rules and the Commission’s Practice Directions. The amendment to the amount of lump sum compensation and the medical expenses claimed could have been made by way of application to the Arbitrator, in accordance with the Commission’s Rules, at the time of the first telephone conference. The filing of a second ‘Application to Resolve a Dispute’ was unnecessary and should not attract costs.
89.The Registrar’s assessment of $300 for Item 4.01 and $60 for Item 4.02 is confirmed.
Reduction of the Schedule 6 Prescribed Rate
90.The Appellant submits that:
“Why a claim for costs allowed for a specific item and at a particular rate up to a particular maximum under the Workers Compensation Regulation Schedule 6.
“Compensation Costs Table would not be “fair and reasonable” for the purpose of Regulation110 of the Workers Compensation Regulations.
It is submitted that if the legislation provides for a particular activity to be costed at a particular rate up to a particular maximum, it is not open to the Registrar to substitute a different view, unless he (sic) has evidence to the contrary. Regulation 84 of the Workers Compensation Regulations (sic) provides that costs that ARE recoverable ARE the costs set out in Schedule 6, except as provided for in that Part.It is submitted for the Registrar to depart from Schedule 6 would require evidence that the activity was not warranted and that the rate prescribed was inappropriate. It is submitted that a matter of law arises in that the Registrar had no evidence in the assessment to formulate any such views.”
91.As a general proposition there can be no argument that the Registrar must, in exercising the discretion to determine what costs are “fair and reasonable”, consider the evidence and submissions on the matters referred to in clause 110 and clause 111. Clearly this discretion cannot be exercised on a whim. It must be exercised fairly and lawfully. The costs assessment task may include perusal of the Commission file documenting proceedings before the Arbitrator and the evidence and submissions made on the application for assessment of costs. While it is probably not necessary in every costs assessment before the Registrar, in those matters where factual issues can only be resolved by recourse to evidence contained on the Commission file, then this file should be before the Registrar. The Appellant’s submission on this point takes the issue no further than this.
92.In the Appellant’s 3 May 2005 submissions he referred to the reduction of Schedule 6 prescribed amounts in relation to Item 2.04 of the Table, which provides for the activity of “Obtaining and reviewing medical reports”. The Appellant submits that he is entitled to claim the amount of $1100.00 for Item 2.04 of the Table. The Appellant’s legal representative has argued that the “Mills Workers Compensation Practice” does not set out a maximum total for Item 2.04 in Column 4 of the Table. He then states:
“. . . this has been left out for the following reasons. If the matter was extremely completed (sic) and required medical reports to be obtained by an orthopaedic surgeon, a neuro surgeon, a psychologist, required reports from treating orthopaedic surgeon, then, the cost would far outweigh the $600.
It is in the Applicant’s interest to prepare his case fully and to have all material attached to the ‘Application to Resolve a Dispute’.
Therefore the Applicant maintains that they are entitled to $1,100”.
93.It is hard to know where to begin with this submission. It is internally inconsistent in that it claims “Mills” (not the official print of the Regulation) does not specify a maximum amount for Item 2.04 of the Table, and yet then refers to the maximum, which is in fact set for Item 2.04 in Column 4 of the Table, of $600. It also omits any reference to relevant provisions of the Regulation.
94.The Registrar correctly identified that the Appellant was not allowed more than the maximum of $600 for Item 2.04. Clause 84 of the Regulation provides, where relevant, that:
84 Fixing of maximum costs recoverable by legal practitioners and agents
(1) The costs that are recoverable, and the maximum costs that are recoverable, for:
(a)legal services or agent services provided in or in relation to a claim for compensation, and
(b)matters that are not legal or agent services but are related to a claim for compensation,
are the costs set out in Schedule 6, except as otherwise provided by this Part.
95.It appears that there has been some ambiguity in this matter in relation to the maximum amounts claimed under Item 1.01 and 2.04 for “obtaining and reviewing medical reports”. Item 1.01 may only be claimed for this activity when it occurs prior to “Making claim for permanent impairment compensation or pain and suffering compensation”. Item 1.01 reports must also be in relation to a claim for permanent impairment and lump sum compensation, not in relation to a claim for some other entitlement, for example, weekly benefits compensation.
96.In relation to claims for permanent impairment compensation, Item 2.04 may only be claimed for this activity when it occurs following the making of a claim and prior to referring a dispute to the Commission. Item 2.04 also applies to medical reports not subject to a fee pursuant to Item 1.01. In other words, it is not permissible to claim costs under Item 1.01 and 2.04 for “obtaining and reviewing” the same medical reports.
97.The Registrar noted that the Appellant had claimed $600 (the maximum allowed) pursuant to Item 1.01 for “obtaining and reviewing” the following medical reports:
Dr Conrad (24 .09.02)
Dr Dan (19.06.03)
Dr Conrad (18.06.03)
Dr Dan (23.05.02)
Dr Dan-Clinical Notes (04.06.03)
Moree Hospital Notes (12.06.03)
98.In earlier negotiations the Appellant also sought to claim Item 1.01 in relation to four reports of Dr Sorrenti, dated 2 November 2000, 15 May 2001, 21 August 2001 and 17 September 2001, and a report from Dr Dan, dated 7 September 2001.
99.Two points should be made here. Firstly, ‘medical reports’ are not defined in Part 19 of the WC Regulation, however in my view the ‘clinical notes’ of a medical practitioner and ‘Moree Hospital Notes’ are not within the ordinary meaning of the term ‘medical reports’. Clinical notes are existing records not a report reached after a considered review of a worker’s medical status. Secondly, Mr Berger’s claim for lump sum compensation was made on 26 February 2002. The ‘Application to Resolve a Dispute’ in the Commission contained a copy of the claim. The Respondent submits the claim for permanent impairment compensation was not made until 9 August 2002, being the date on which the dispute was filed in the Commission (see Reply). The ‘Application to Resolve a Dispute in the Commission’ attached a copy of correspondence indicating the claim was made in February 2002 and an offer of settlement was made as early as April 2002. Taking the latest of these dates, i.e. 9 August 2002, in order to give the Appellant the benefit of any doubt, only the medical reports obtained and reviewed prior to 9 August 2002 may be claimed pursuant to Item 1.01. They are; Dr Sorrenti, dated 2 November 2000, 15 May 2001, 21 August 2001 and Dr Dan, dated 23 May 2002.
100.The correct assessment of Item 1.01 is therefore $150 for each of the first two reports (Dr Sorrenti November 2000 and May 2001) and $100 for the subsequent medical reports (Dr Sorrenti August 2001 and Dr Dan May 2002). This comes to a total of $500. No amount is allowed for reviewing ‘clinical notes’. I note that Item 1.01 was not in issue on the appeal and that the parties had agreed on the award of the maximum amount in the Compensation Costs Table. In these circumstances I will not reduce the amount awarded on appeal but note instead what my view is of the correct assessment.
101.Under Item 2.04 the Appellant claims for “obtaining and reviewing” the following medical reports; Dr Conrad (18.09.02), Dr Dan (no date given) and Dr Sorrenti (09.08.02). The Respondent submitted that only a report of Dr Conrad dated of 24 September 2002 and of Dr Sorrenti of 17 September 2002 (it is not clear whether these dates are errors) were filed.
102.The ‘Application to Resolve a Dispute’ was registered in the Commission on 23 August 2002. Costs for “obtaining and reviewing medical reports” until that date will be permitted under Item 2.04. The correct assessment of Item 2.04 is therefore $150 for the report of Dr Sorrenti 9 August 2002. No date is given in relation to a report of Dr Dan and therefore no amount is allowed. Even if the costs in relation to the reports of Dr Sorrenti in September 2002 and Dr Conrad in September 2002 were not precluded by clause 45 of the WC Regulation, the activity of obtaining them is not allowed because it did not occur within the time prescribed by Part 2A of the Compensation Costs Table. This comes to a total of $150 for Item 2.04 and the assessment should accordingly be reduced by $450.
103.Mr Berger also disputes the Registrar’s assessment of Item 2.06, which was reduced from a claim for $500 to the allowed amount of $250. The Registrar did not detail the Respondent’s objection to this claim, but accepted that a “fair and reasonable allowance” was $250. The Respondent alleged that no written request for review was received and requested a copy of the correspondence, which was not provided. In my view the Registrar’s assessment of $250 was correct, and, in the absence of evidence of the request to the insurer to review, was indeed generous. It should not be amended on appeal.
104.I note that it would be of assistance in an application for the assessment of costs, if the Applicant was required to identify the relevant dates for the purpose of a claim against each part of the Compensation Cost Table, for example, the date of the claim for permanent impairment (Part 1 of the Table), the date of the referral of the dispute to the Commission (Parts 2-4 of the Table), the date of appeal to a Medical Appeal Panel (Part 5 of the Table).
Duplication of an Activity/Item in the Compensation Costs Table
105.Item 4.07 of the Compensation Costs Table provides that the “maximum amount” for “[A]pplying to refer a matter to an approved medical specialist, or responding to such an application (including costs associated with agreeing on the approved medical specialist and review of the report by the approved medical specialist” is $100. The maximum total amount for this activity is also $100.
106.Mr Berger’s legal representative submits that Item 4.07 may be claimed each time a medical dispute is referred to an AMS. He argues that in this case “ . . it is an error of law for the Registrar to only allow this item once as it was obviously required twice”. Mr Berger submits that the “ activities associated with each referral [must] be replicated on each occasion”.
107.The Registrar stated, in assessing the item at the maximum of $100 that it was “[C]laimed for referral to AMS at $100. Ultimately, the Respondent has conceded this allowance within assessment. Allowed”.
108.The first point to make about Item 4.07 is that the activity it describes must in fact be undertaken by the legal representative in order to claim the cost. Where an application to refer a matter to an AMS is made in the course of a telephone conference, without any evidence of other activity by the legal representative, then Item 4.07 is effectively subsumed into Item 4.09. It is not intended that Item 4.07 be claimable regardless of whether the discrete activity it describes was carried out or not. In this matter the application to refer the matter to an AMS, and discussion about this, occurred at the telephone conference on 24 February 2003. This was one of a number of telephone conferences (discussed below) for which costs have been permitted.
109.Mr Berger was referred to Dr Middleton and Dr Breslin, Approved Medical Specialists, for assessment of the degree of permanent impairment he suffered as a result of his injury. The Commission chose these AMSs’, in the absence of the party’s agreement. It was the Commission that copied all of the relevant material to go to the AMS, arranged the appointment, corresponded with the parties and disseminated the Medical Assessment Certificates. Mr Berger’s legal representative submits that this involved the additional
“activities” of receiving notice of the appointment from the Commission and advising Mr Berger of same, and requesting travel expenses. The Commission file records the correspondence sent in relation to this matter. The Commission advised Mr Berger personally, and his legal representative, of the appointment with the two AMS’s, in one letter dated 7 April 2003. Mr Berger personally rang the Commission and requested a change of date, which was duly notified to the parties by the Commission by letter on 16 April 2003. The date was again changed, at the request of the Insurer, and the Commission notified the parties. These notifications from the Commission all included advice that expenses associated with the appointment were to be met by the employer or insurer. In my view the fact that Mr Berger was referred to two AMSs has not resulted in any additional activity for Mr Berger’s legal representative at all, but rather for Commission staff.
110.In any event the Compensation Costs Table does not permit an item to be claimed more than once for a particular activity/event or for a sum greater than the maximum for that activity/event to be awarded. Schedule 6 of the WC Regulation sets out the maximum costs that may be recovered in a compensation matter brought under the 1987 Act and the 1998 Act). The Compensation Costs Table divides the dispute resolution process in the Commission into stages and then into discrete events or activities. This allows for costs to be claimed in relation to events as the matter progresses through the Commission’s processes. Clause 1(2) of Schedule 6 provides, inter alia, that “[t]he maximum costs for an activity or event described in a Part of the table and carried out in or in relation to a claim made or to be made in respect of a particular injury are as” set out in subclauses (2)(a)– (i), which follow.
111.It is not intended that the “maximum total for type of activity/event” in Column 4 of the Compensation Costs Table be exceeded for the Items set out in Column 1. As I stated in Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCC PD 28:
“All individual ‘activities or events’, described in Column 2 of the Table, that come under that event/activity, described in Column 3 of the Table, must not exceed the maximum total for the ‘type’, as prescribed in Column 4 of the Table, not merely the totals for the individual ‘events’, as the Appellant suggests. The words of clause 1(2) are critical, “the maximum costs for an activity or event described in a Part of the Table and carried out in or in relation to a claim made or to be made in respect of a particular injury”. Maximum costs attach to the event/activity in the Table for a ‘claim’ made in respect of a particular injury, not, as the Appellant suggests, for each time the event or activity is claimed.”
112.Ultimately it is my view that in this matter the activity described in Item 4.07 occurred within Item 4.09 and is encompassed in the costs awarded for that item. The assessment should therefore be reduced by $100.
Evidence of Costs Events
113.Mr Berger argues that the Registrar failed to refer to the Commission’s file to determine, as a question of fact, how many telephone conferences occurred. His legal representative makes the broad submission that “ [I]t is necessary for the Registrar to consider evidence prior to coming to a concluded view as to whether a particular event occurred or not”. This much would appear to be incontrovertible and the best source of information on what has occurred in a matter is the Commission’s record. Having reviewed this record it is clear to me that the Registrar made factual errors in relation to the holding of telephone conferences in this matter.
114.The issue in dispute here arises from the Registrar’s finding that the telephone conferences on 22 November 2002 (‘the first conference’) 24 February 2003 (‘the fourth conference’) and 12 August 2003 (‘the fifth conference’) “did not proceed”. I have reviewed the Commission file and am satisfied that a telephone conference was in fact held on 22 November 2002. The Arbitrator did hold this telephone conference. However, the matters described in the Commission’s guideline; ‘The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission’ were not progressed. The reason for this was that Mr Berger had filed his second application in the Commission. This document was not before the Arbitrator in order that he could consider whether the two applications should be, effectively, amalgamated. My comments above in relation to the need to file two ‘Applications’ in the Commission are also apposite here.
115.Telephone conferences held in the Commission are critical to the early resolution of a dispute. Their purpose is not to afford the parties’ legal representatives and the Arbitrator with a ‘meet and greet’ opportunity, nor are they for the sole purpose of giving directions as to the future conduct of the matter. In most matters only one telephone conference will be held. The worker is expected to attend, as is a representative of the Insurer who has authority to progress the matter and to agree to terms of settlement, if that becomes possible.
116.The Arbitrator re-listed the matter for another conference on 11 December 2002, to enable the two applications that had been filed to be amalgamated and for the parties to have discussions about the possibility of settlement. The Arbitrator did not have a copy of the second application before him although it had been filed in the Commission on 7 November 2002.
117.The Commission file also evidences that the Arbitrator held the ‘disputed’ telephone conference on 24 February 2003. It was at this conference that he determined to refer the ‘medical dispute’ to an AMS.
118.The Commission file evidences that a telephone conference was in fact listed for 12 August 2003, not 11 August 2003 as cited by the parties. The Arbitrator gave directions that the parties file further documents and that he would proceed to determine the matter ‘on the papers’.
119.Mr Berger’s legal representative argues that he is entitled to claim certain additional amounts for the telephone conferences of 22 November 2002 and 24 February 2003 namely:
·22 November 2002, Conference One-$250 for attendance, pursuant to Item 4.09 (for attendance), and $190 pursuant to Item 4.12 (for reporting to Mr Berger on the outcome of the conference).
·24 February 2003, Conference Four-$500 pursuant to Item 4.08 (for preparation), $250 pursuant to Item 4.09 (for attendance), and $190 pursuant to Item 4.12 (for reporting to Mr Berger on the outcome of the conference).
·12 August 2003- Conference Five-$250 pursuant to Item 4.09 (for attendance).
120.Ultimately this argument does not alter the assessment of costs pursuant to Item 4.08 and Item 4.12 because, as discussed below, the maximum amount allowable has been awarded under Items 4.08 and 4.12 of the Compensation Costs Table as follows:
·Item 4.08- Maximum Total of $500 allowed for Conference one, held on 22 November 2002.
·Item 4.12 – Maximum Total of $190 allowed for Conference three, held on 11 February 2003.
121.In relation to Item 4.09 the ‘maximum total’ of $1000 allowed for the activity/event of attending a conference has not been reached. The Registrar assessed the costs at $125 for Conference two, held on 11 December 2002, and $250 for conference three, held on 11 February 2003. The failure to consider an award of costs in relation to conferences one, four and five was based on an error of fact and should be reviewed.
122.I have taken into account the Commission’s record of these conferences and the parties submissions in relation to them. In my view Mr Berger’s legal representative is entitled to the following ‘fair and reasonable’, additional, costs for attendance at these conferences, pursuant to Item 4.09 as:
·Conference One-I do not accept that it was ‘fair and reasonable’ to allow the costs of attending and participating in this conference. The conference was adjourned because of Mr Berger’s filing of a second application. In my view the original application was not properly prepared in accordance with the WCC Rules and this lack of preparation led to the holding of an unnecessary and ultimately fruitless conference. $Nil is allowed.
·Conference Four-half an hour at $125
·Conference Five- one hour at $250.
123.The maximum total amount therefore payable to the Appellant pursuant to Item 4.09 is $1000, i.e. the maximum in the Compensation Costs Table. I would allow a total of $750 (Conference 1 - $Nil, Conference 2 - $125, Conference 3 - $250, Conference 4 - $125 and Conference 5 - $250). The bill should therefore be increased by $375 under Item 4.09 (Note that Schedule 6, Clause 6 allows the calculation of the hourly rated to the nearest quarter hour).
Multiple Teleconferences
124.The Appellant submits that;
“ . . . it is an error of law to limit the costs recoverable to one conference (or two) to resolve a particular dispute when that is NOT provided for in the Regulations.
. . . a worker (or insurer) is entitled to be advised of the outcome of each conference to understand what has occurred and to have a record of what has occurred with his/her claim. Otherwise, the worker (and probably more particular (sic) an insurer) would not have a record to consider when taking part in the next aspect of the dispute resolution process”.
125.Item 4.09 of the Compensation Costs Table in Schedule 6 of the WC Regulation provides for an amount of $250 per hour up to a maximum of $1000, for “ attending and participating in a conference with an Arbitrator” (other than an arbitration hearing or where Item 4.10 applies).
126.The Registrar did not purport to restrict the costs recoverable in relation to the telephone conferences, to only one conference. The decision to refuse to allow costs on conferences one, four and five was expressed to be due to, either the maximum amount being reached (consistent with Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCC PD 28) or the finding of fact (incorrect) that the conferences did not occur.
127.It should be noted that the Commission’s processes seek to actively involve the worker and the insurer personally in the proceedings, not only by way of legal representation. This aim is articulated in the Commission’s procedural guideline and is consistent with the Commission’s statutory objectives. Where the parties personally participate in the proceedings the likelihood of greater understanding of the issues in the dispute and of settlement is increased. If this occurs, as noted above, the burden upon the legal representative of reporting back to the client (referred to by the Appellant in the above submission), whether the worker or the insurer, is clearly reduced.
Factual Investigation Reports
128.The Appellant claimed an amount of $3423.20 for the cost of obtaining a ‘factual and liability report’ or ‘investigator’s report’ from St George Registration and Investigation Services. The Registrar awarded $550 in disbursements for the report.
129.The Respondent objected to this claim on the basis that no such report was served or tendered. The Registrar reduced the claim for the following reasons:
“Aside from whether or not it was formally served in the proceedings, there are other considerations. . . . the submissions of the Respondent, relative to liability not substantively being in contest and the relatively early stage that such was signalled. Allowances for Applicant instructions and related activities have already been allowed elsewhere including at Table maximums. . . . Beyond the Applicant and wife statements, it is not entirely clear to what extent ‘investigatory’ elements were pertinent to the resultant settlement. Inherently, the costs relative to obtaining the worker’s own statement are encapsulated within item 2.01 already allowed. To the extent of the report otherwise, it is a matter for the Registrar, or her delegate on assessment, to determine any ultimate allowance pursuant to clause 105 and 106 (sic) of the Regulations as may be fair and reasonable in the circumstances (McManus v Gosford City Council [2004] NSW WCC PD 61). Here, within that discretion, I allow $550 (including GST) under this reference.”
130.The Appellant submits that the Registrar does not have power to consider whether it was necessary for a party to obtain an investigator’s report and therefore does not have power to decide that the cost of such a report is not ‘fair and reasonable. The Appellant argues that;
“The Costs Regulations obviously anticipated that various types of reports (for investigators, accountants, doctors) will be necessary to support an Application to Resolve a Dispute. There is a statutory provision in section 339 of the 1998 Act for the WorkCover Authority to fix matchment (sic) fees for the provision of reports by health service providers. However, there is no such limit on the fees associated with an investigator’s report.”
131.The costs of an investigator’s report is excluded from Part 19 of the WC Regulation by clause 82 (b). The Appellant argues that, as “this Part” of the WC Regulation, referred to in clause 82, includes clause 110 the Registrar does not have a discretion to consider “what is a fair and reasonable amount of costs for the work concerned” (clause 110 (1)(b)).
132.I have set out above my view of how clause 82 costs are regulated by the complex interaction between the 1998 Act, the Regulations and the LP Act. Clause 113 of the LP Regulation, applies to the assessment of costs for an investigation report claimed as a disbursement. The cost of the report must therefore be assessed in accordance with Schedule 3, Part 1, Item 10 “Disbursements”. This applies a test of whether the disbursement was “reasonably incurred or was reasonable in amount”. The determination of the total amount must also represent a ‘fair and reasonable’ value for the service provided.
133.The Appellant also claimed Item 2.05 for “briefing the investigator to obtain evidence” (not allowed by the Registrar) although the report was not obtained within the relevant time for the purpose of Part 2A of the Compensation Costs Table (clause 3 of Schedule 6). The Registrar did not allow that claim and stated that:
“. . .It seems that, notwithstanding the extended journey of these proceedings, no factual report was ever served by the Applicant. Further, the following features are apparent on the materials before me. Liability for the claim was accepted by the insurer relatively early with respect to weekly payments compensation and for medical and surgical expenses (from the injury date of 4 May 2000). Further, it would seem that the essential basis for the proceedings was relative to section 66 and 67 claims, i.e. back, left leg, right leg and sexual organs (included by later amendment). Further, it seems that the Reply of the Respondent filed on 9 September 2002 noted an acceptance of injury liability relative to weekly payments and section 60 expenses. The Respondent reiterates within assessment also that liability was not the inherent issue. Equally, further, it is noted that an Applicant is not disenfranchised from obtaining investigatory reports, if seen as necessary, were liability to be stridently in issue by making such reference to that prospect within the initially filed Application. It is not seen as fair or reasonable in these proceedings for this allowance to be made. It is disallowed.”
134.Items under Part 2A of the Compensation Costs Table are claimable only for ‘certain events or activities on behalf of claimant until dispute referred or order sought’. The ‘Application to Resolve a Dispute’ was filed on 23 August 2002. The WC Rules required a statement of evidence to be filed with the application if that evidence was to be introduced in the proceedings. This clearly includes a statement by the worker, in this case Mr Berger. Mr Berger’s legal representative did not file a statement and did not brief the investigator (St George Registration and Investigation Services Pty Limited) to obtain a statement from Mr Berger until 18 November 2002 (refer correspondence in ‘Application for Assessment of Costs’). This was some two months after the application in the Commission had been filed. It is surprising to see that in the itemised bill of costs, dated 31 October 2003, the Appellant lists under ‘pre-filing’ the items: 2.02 ‘obtaining medical reports’ at 18 November 2002, 2.04A ‘preparing witness statement’ and 2.05 ‘briefing factual investigator’ at 18 November 2002’ and yet the claim for actually filing the application in the Commission pursuant to 4.01 is dated 23 August 2002.
135.The report of St George Registration and Investigation Services Pty Ltd is not extensive. The Registrar’s assessment of it, pursuant to costs claimed for ‘disbursements’ was as follows:
“ . .. I have noted the content of the subject report. Apart from statements of the Applicant and his wife (12 December 2002) it contained medical reports (various-dealt with in other allowances separately above) a business name search, a copy advice of “Robert Taylor-barrister” and a memorandum of fees. Aside from whether or not it was formally served in the proceedings, there are other considerations. Observations made earlier under 2.05 equally relate here, in particular, the submissions of the Respondent relative to liability not substantively being in contest and the relatively early stage that such was signalled. Allowances for Applicant instructions and related activities have already been allowed elsewhere including at table maximums (for example 2.01 above). Beyond the Applicant and wife statements, it is not entirely clear to what extent “investigatory” elements were pertinent to the resultant settlement. Inherently, the costs relative to obtaining the worker’s own statement is encapsulated within item 2.01 already allowed. To the extent of the report otherwise, it is a matter for the Registrar, or her delegate on assessment, to determine any ultimate allowance pursuant to clause 105 and 106 (sic) of the Regulation as may be fair and reasonable in the circumstances.”
136.The Registrar made an error of law in then purporting to assess the costs of the investigation report pursuant to clause 105 and 106 of the WC Regulation, in the amount of $550. The correct test is whether the disbursement was “reasonably incurred or was reasonable in amount” and whether the total amount allowed was a ‘fair and reasonable’ amount in relation to the value for the service provided. The determination of these questions by a costs assessor, is a matter of discretion and, as I said in Nebauer v Hunter Area Health Service [2004] NSW WCC PD 60 (at para 19):
“Only where the discretion can be said to have miscarried because it was exercised unfairly and unlawfully, taking into account the scope of the discretion, and the objects or purpose for which it is conferred, would it be an error of law (Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 758; R v Australian Broadcasting Tribunal; ex p 2HD Pty Ltd (1979) 144 CLR 45 at 49; Sheridan v David Anthony Clarke t/as Freestyle Marine Sports [2003] NSW WCC PD 9).”
137.The Appellant submits that:
“. .. on 11 .07.03, an Application to Admit Late Documents, which included the investigation report, prepared by St George Registration Investigation Services Pty Limited dated 07.02.2003 was forwarded to the Commission. A copy of this was forwarded to the Workers Compensation Commission on 29.05.2003 and a copy was also forwarded to Messrs AO Ellison & Co Solicitors [for the Respondent] on the 29.05.2003”.
138.These dates must clearly be incorrect, as the copy of the document ‘forwarded to the Commission’ could not have been sent prior to the original being filed. The claim that the investigation report was filed in the Commission also appears to be at odds with the statement in the correspondence between the legal representatives of the parties, where Mr Berger’s legal representative, by letter to the Respondent’s legal representative on 17 September 2004, notes the claim that the report was not served and attaches a copy of it to the correspondence. I find that the report was not filed and served while the substantive proceedings were on foot, save for the witness statements of Mr and Mrs Berger.
139.The Commission file evidences that the statement of Mr Berger, dated 7 February 2003, and the Statement of Mrs Berger, dated 12 December 2002, were filed in the Commission on 11 February 2003 by Mr Berger’s legal representative. There was no reference to these statements being gathered by a private investigator, nor was any report of an investigator attached. There is no ‘Application to Admit Late Documents’ on the Commission file in relation to the Investigator’s report. The Respondent alleges the report was not served. The remainder of the investigator’s report, which primarily concerns advice on whether Mr Berger could sustain a common law damages claim and a cursory review of the medical reports, does not appear on the Commission file. The copy of the report filed in the Commission with the Appellant’s costs application did not, as was submitted, contain statements from witnesses other than Mr and Mrs Berger, nor did it provide any detailed “wage information” (of relevance only to the claim for weekly compensation in any event). On balance, I find that the report was not filed, and the statements of Mr and Mrs Berger were filed as separate documents.
140.The Appellant’s submissions on this issue are to some degree self-defeating. He asserts that an investigative report is required prior to the worker seeking a review of the claim by the Insurer and thus prior to referral to the Commission. This, he asserts correctly, is consistent with the Commission’s “front-ended process”. However the Appellant did not obtain the investigation report at this time and therefore could not have had the benefit of it when requesting the insurer to review the claim.
141.The issue of duplication in the claim for the costs of obtaining the witness statements of Mr and Mrs Berger was correctly identified by the Registrar as relevant to the cost claimed for the investigation report. The issues raised in this matter provide the opportunity to revisit previous costs determinations in the Commission (Nebauer v Hunter Area Health Service [2004] NSW WCC PD 60 and McManus v Gosford City Council [2004] NSW WCC PD 61). The costs involved in obtaining a witness statement may be claimed under Items 2.01 or 2.04A of the Compensation Costs Table, depending upon when the cost is incurred. In Nebauer v Hunter Area Health Service [2004] NSW WCC PD 60 (‘Nebauer’) the investigative report obtained essentially amounted to the preparation of a statement by the worker. This was disallowed in that case on the basis that this task was encompassed in ‘obtaining instructions from client’ in Item 2.01. 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. 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.
142.The fee for an investigator’s report, whether to obtain witness statements or other factual investigations (including a statement from the worker), may be claimed pursuant to clause 82(b) of the WC Regulation. The test of whether such a report is claimable will, as discussed above, essentially be one of ‘reasonableness’. In most cases, it will not be reasonable to obtain witness statements by way of an investigators report, where the legal practitioner or agent has already obtained those statements, either at the time of taking instructions or at a later time, being before an application to the Commission is filed.
143.Taking the above matters into account it is my view that the fee for the investigation report of St George Registration Investigation Services Pty Limited dated 07.02.2003 was both unreasonably incurred and not reasonable in the amount claimed. The report was not filed in the substantive dispute; it was not reasonably necessary when considered against the issues that were in dispute between the parties; it was not solely, or even predominantly directed to the statutory benefits claim; it did not contain much additional factual information, for example, wages material; and it was not obtained at the relevant time in relation to Part 2A of the Compensation Costs Table. In so far as it was relevant because of the taking of Mr and Mrs Berger’s statements, these were not filed in accordance with the WCC Rules and were not identified as documents ‘not available but intending to rely upon’ in the ‘Application to Resolve a Dispute’. The relevance of the report is further diminished in view of the limitation of the costs claim to the settlement of the section 66 and 67 dispute.
144.In my view the Registrar has erred in exercising the discretion to award the amount of $550 for this report and the amount awarded should be $nil.
Workers Travel Expenses
145.Mr Berger claimed $1061.62 for costs in relation to return travel from Moree to Sydney to attend the appointment with Dr Conrad (1418 kms @ 59c per km) sustenance during the journey ($50 for 18/9/2002 and $75 for 19/9/2002) and accommodation while in Sydney ($100).
146.The Appellant argues that his travel costs and the expenses for attending a medical examination are not within the jurisdiction of the Registrar. He makes the same argument as for the costs of an ‘investigative report’ referred to above, namely that clause 82 ((i) in this instance) removes travel costs from the Registrar’s consideration. He argues that the worker’s costs “entitlements are governed by section 125 of the 1998 Act and the Respondent is obliged to meet them”.
147.Clause 82(i) of the WC Regulation provides that the “travel costs and other expenses of the claimant in the matter for attendance at medical examinations, a court or the Commission’ are not regulated by Part 19. I have set out above my view of how clause 82 costs are regulated by the complex interaction between the 1998 Act, the WC Regulations and the LP Act. Clause 113 of the LP Regulation, applies to the assessment of travel expenses. Clause 113 (4) of the LP Regulation, applies to the assessment of costs for these services. They must therefore be assessed in accordance with Schedule 3 of the LP Regulation, Part 4, Item“4. Travelling and Accommodation”. The determination of the total amount must be a ‘fair and reasonable’ value for the service provided (the rate per kilometre allowed under Schedule 3 is higher than the rate claimed by Mr Berger, however, in the absence of an explanation of the claim it is assumed that it is for ‘actual’ costs).
148.The Registrar allowed the claim in relation to “travel ($836.62 including GST), the elements of the claim with reference to sustenance and accommodation are not allowable nor do they fall within item 10.03 which deals with formal proceedings attendance ($225)- that element is disallowed”.
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149.Mr Berger claimed travel expenses for his attendance upon Dr Conrad on 18 September 2002 at the request of his instructing solicitor. He did not attend as the result of an order of the Commission nor was his attendance upon Dr Conrad “attendance at a Commission proceeding”. The Registrar was correct to find that Item 10.03 of the Compensation Costs Table did not apply.
150.The section 125 submission is easily dismissed. Section 125 of the 1998 Act provides for the “Reimbursement of worker for loss of wages and expenses associated with medical examination”. It applies where “a worker is required to submit himself or herself for examination pursuant to this Division” or where “ a worker is required to submit himself or herself for examination by an approved medical specialist”. Section 125 is part of Division 7 of Chapter 4 of the 1998 Act. Section 125 does not apply to the worker obtaining a medical report of his or her own choosing for the purpose of taking proceedings in the Commission.
151.The Appellant claims for “Applicant’s Travel Expenses”, for “Sustenance” pursuant to “[Pt 23 r106 (i)] and for “Accommodation” pursuant to “[Pt 23 r 106 (i)]”. This seems to be a reference to the District Court Rules, since amended. As Mr Berger’s legal representative should be well aware, these rules have no relevance to the assessment of costs in the Commission.
152.The ‘travel costs and expenses’ of attendance on Dr Conrad, were for the purpose of the preparation of a medical report for filing in the Commission, were reasonably incurred. Dr Conrad’s report was foreshadowed in the ‘Application to Resolve a Dispute’ filed in August 2002. The Registrar does not state why the expenses related to sustenance and accommodation were “not allowable”. It seems to me that if Mr Berger was required to travel from Moree to Sydney for a medical examination, it is reasonable to expect that he would incur expenses for ‘sustenance’ and ‘accommodation’. The amounts claimed are modest ($125 and $100) and should be allowed.
GST
153.In its submissions dated 3 May 2005 the Appellant queries “whether the Cost Assessor has allowed the GST on the medical reports, which the Applicant has paid”. Fees for reports from health service providers may be claimed pursuant to clause 82(e) of the WC Regulation.
154.The Registrar allowed the following amounts for disbursements:
·Medical report of Dr Conrad, excluding GST.
·Medical Report of Dr Carroll excluding GST.
·“Hospital”, excluding GST
·St George Registration and Investigation Report, $550, including GST (discussed above)
·Applicant’s Travel at $836.62 for travel by car to Dr Conrad.
·Dr Dan $600
·Dr Black $450.
155.This Registrar awarded a total of $3326.62 to which he added $194 GST, without further explanation. I can understand the Appellant’s confusion as to what this amount of $194 refers to and whether it matches the totality of his claim for GST on the claimed disbursements. Looking at the Registrar’s reasons for the decision it appears that an amount of $89 GST was allowed on the “medical reports” (including Dr Conrad and Dr Carroll) and $105 was allowed on the total ‘White Barnes’ disbursements of $1050, being medical reports of Dr Dan ($600) and Dr Black ($450). Thus $89 plus $105 makes up the $194 GST awarded.
156.The 1998 Act and the WC Regulation are silent in relation to the power of an Assessor to increase the award of costs pursuant to the Compensation Costs Table by the amount of any GST payable. Costs regulated by Schedule 6 are expressed to be the ‘maximum costs that are recoverable’ (clause 84 of the WC Regulation). There is no provision that expressly allows GST to be awarded in addition to the ‘maximum costs’ allowable in the Table.
157.In contrast, the Regulation specifically provides for GST to be awarded in relation to a work injury damages claim (clause 123 of the WC Regulation).
158.GST on clause 82 costs, excluded from Part 19 and Schedule 6 of the WC Regulation, but regulated by the LP Act, may be added pursuant to clause 115 of the of the LP Regulation.
159.It was not necessary for the Registrar to separate the amount of GST claimed on each clause 82 item and then make a separate award of GST. To do so unnecessarily complicated the costs assessment. Where the bill identifies that GST has been charged then the whole of the amount, including GST, simply represents the cost claimed.
160.This appeal has resulted in a different assessment of allowable disbursements. Of necessity an examination of whether GST has been properly allowed in relation to each of the disbursements claimed also involves an examination as to whether the disbursement itself was permitted.
Dr Conrad
161.Dr Conrad is a Surgeon. The Appellant claims $528 (inclusive of GST) for reports of Dr Conrad, dated 12 August 2002 ($330) and 3 June 2003($150). The Respondent submitted to the Registrar that the only report served and tendered from Dr Conrad was dated 24 September 2002. This is the only report on the Commission file. No other report of Dr Conrad was filed in the Commission, nor was any report other than the 24 September 2002 report referred to the AMS.
162.The reports of Dr Conrad, dated 12 August 2002 and 3 June 2003, were not filed or admitted in the proceedings nor is there any evidence that they were ‘claims management phase reports’. The claim for costs in relation to them cannot be allowed, pursuant to clause 45 of the WC Regulation. The amount allowed for the reports of Dr Carroll, including GST is disallowed. The assessment should be reduced by the amount of $330, and $150, and GST of $33 and $15 (total $528).
Dr Carroll
163.Dr Carroll is an ear nose and throat specialist. He did not examine Mr Berger but commented on an audiogram of Mr Berger dated 11 July 2001. He reported on 17 September 2001. Mr Berger’s dispute before the Commission does not make any claim in relation to hearing impairment. The Respondent, correctly, objects to the cost of this report on the basis that no claim for hearing impairment has ever been made. Dr Carroll’s report is completely irrelevant to Mr Berger’s claim for injury to his legs, back and sexual organs. The costs of this report ($80) should not be allowed. GST was not in fact claimed on this report, but was allowed by the Registrar in a global calculation of GST on ‘medical reports’. Therefore the assessment should be reduce by the amount of $88.
Moree Hospital
164.The Appellant claims $30, plus $3 GST, for “ Moree Hospital” notes. The only Moree Hospital notes filed in the proceedings were those extracted by the Respondent from documents produced pursuant to a Direction to Dr Dan, issued by the Commission on 17 October 2002. The costs of ‘Moree Hospital’ plus GST is not allowed. The assessment should be reduced by $33.
Investigation Report
165.The costs of the investigation report have been dealt with above. No amount is allowed for this report. In any event the Registrar did not award GST on this disbursement.
Travel
166.The appellant’s travel costs have also been dealt with above. They are claimed in accordance with the LP Act. They appear to reflect actual costs, inclusive of GST.
Dr Black
167.The Appellant claimed an amount of $450 for the report of Dr Black. This was obtained by White Barnes and submitted by the Appellant as part of a “global amount of “$4,114” billed by that firm.
168.The report of Dr Black was served on the Insurer by White Barnes and filed in the Commission proceedings by the Respondent with the ‘Reply to the Application to Resolve a Dispute’. Indeed on 19 February 2004 the Appellant’s legal representative wrote to White Barnes stating that “ . . . the medical report you obtained by Dr Black was not in support of the Applicant’s claim and therefore we did not serve”. The letter then itemises the writer’s assessment of White Barnes costs, minus the cost of the report of Dr Black. On 12 March 2004 the Appellant’s legal representative wrote again to White Barnes stating that the Respondent had agreed to pay for Dr Black’s report.
169.Regardless of the Respondent’s apparent concession in this regard, the Appellant cannot recover the costs of Dr Black’s report, by operation of clause 45 of the WC Regulation. It was not admitted in the proceedings “on behalf of the party” (pursuant to clause 45 of the WC Regulation) who is claiming its costs. Nor is there any evidence to suggest that it is a ‘claims management phase report’. The amount of $450 plus GST of $45 should be deducted from the Registrar’s assessment.
Dr Dan
170.The Registrar stated that the “various medical reports are claimed (Drs Conrad & Carroll and Hospital)”. These are allowed in the correctly calculated sum of $890 (excluding GST)”. This is clearly an error. The ‘various medical reports’ claimed in the Appellant’s bill included the reports described above (Doctors Carroll and Conrad) plus a report of Dr Dan ($330 plus $30 GST) dated 31 May 2003.
171.There was no report of Dr Dan dated 31 May 2002 filed in the proceedings. A report of Dr Dan dated 23 May 2002 was filed with the ‘Application to Resolve a Dispute’ and was allowed by the Registrar ($600) as a separate disbursement. The Respondent submitted that this was the only report of Dr Dan served by the Appellant and the Commission file supports this assertion.
172.In February 2003 a three line report of Dr Dan, dated 23 January 2001 and a four line report of Dr Dan dated 7 September 2000, were filed in the Commission by the Respondent, having been discovered as a result of the issue of a ‘Direction to Produce’ to Dr Dan. On 13 June 2003 the Appellant also filed the 23 January 2001 report of Dr Dan. No ‘Certificate of Service’ was filed. A very brief report of Dr Dan, dated 26 November 2002 was filed under cover of the application for an assessment of costs.
173.In summary, the only report of Dr Dan filed and served by the Appellant in the substantive proceedings is that dated 23 May 2003. Assuming the reference in the bill to “31.05.03” is an error and refers to the report of 23 May, then the Registrar has awarded a sum for that report twice, i.e. $330 under ‘medical reports’ and $600 under ‘White Barnes’. Only one invoice from Dr Dan appears on the file and it is for $600. The Registrar allowed $600 for the report of Dr Dan, dated 23 May 2002 (invoice dated 17 May 2002) and obtained by White Barnes Solicitors (the Appellant’s former solicitors). This report was obtained prior to the issue of the Workplace Injury Management and Workers Compensation (Medical Examinations and Reports) Order 2003 (issued first on 4 November 2003). The fee for this report was therefore not regulated by the 1998 Act and falls to be determined by Schedule 3, Part 4 of the LP Act Item 6 “medical examinations and reports”. The maximum amount allowable for this report in the LP Regulation (at the relevant time) is $500.00 plus $50.00 GST. The assessment is thereby reduced by $110.00.
174.In summary, the only allowable claim pursuant to Clause 82(e) of the WC Regulation and the LP Regulation is for the report of Dr Dan, dated 23 May 2003, in the maximum sum of $500, plus GST of $50.
Summary of Amendment to the Assessment
175.In summary, the assessment of the claim for costs made by the Registrar in this matter should be amended as follows:
Compensation Costs Table Items
Item Amount Claimed Amount allowed by Registrar Amount Allowed on Appeal 1.01 $ 600.00 $ 600.00 $ 600.00 (Not in Issue) 1.02 $ 100.00 $ Nil $ Nil 2.01 $ 500.00 $ 500.00 $ 500.00 (Not in issue) 2.02 $ 40.00 $ 40.00 $ 40.00 (Not in issue) 2.03 $ 40.00 $ 40.00 $ 40.00 (Not in issue) 2.04 $ 1,100.00 $ 600.00 $ 150.00 2.04A $ 150.00 $ Nil $ Nil (Not in Issue) 2.05 $ 100.00 $ Nil $ Nil 2.06 $ 500.00 $ 250.00 $ 250.00 2.08 $ Nil $ Nil (Not in Issue) 4.01 $ 300.00 $ 300.00 (Not in Issue) 4.02 $ 60.00 $ 60.00 (Not in Issue) 4.03 $ 100.00 $ 100.00 $ 100.00 (Not in Issue) 4.03A $ 80.00 $ 80.00 $ 80.00 (Not in Issue) 4.03B $ 80.00 $ 80.00 $ 80.00 (Not in Issue) 4.05 $ 500.00 $ 500.00 $ 500.00 (Not in Issue) 4.07 $ 200.00 $ 100.00 $ Nil 4.08 Conference 1- 22 November 2002 - $500.00
Conference 2- 11 December 2002 -$500.00
Conference 3-11 February 2003-$500.00
Conference 4-24 February 2003-$500.00
Conference 5- 11 August 2003 $500.00$ 500.00
$ Nil
$ Nil
$ Nil
$ Nil
$ 500.00 4.09 Conference 1- 22 November 2002 - $250.00
Conference 2- 11 December 2002 -$250.00
Conference 3-11 February 2003-$250.00
Conference 4-24 February 2003-$125.00
Conference 5- 11 August 2003 $250.00$ Nil
$ 125.00
$ 250.00
$ Nil
$ Nil
$ Nil
$ 125.00
$ 250.00
$ 125.00
$ 250.00
4.12 Conference 1- 22 November 2002 - $190.00
Conference 2- 11 December 2002 $190.00
Conference 3-11 February 2003$190.00
Conference 4-24 February 2003$190.00
Conference 5- 11 August 2003 $190.00$ Nil
$ Nil
$ 190.00
$ Nil
$ Nil
$ 190.00
$ Nil
$ Nil
$ Nil
$ Nil
7.01 $120. $ 120.00 $ 120.00 (Not in Issue) Sub-Total $ 4,435.00 $ 4,260.00 GST $ 443.50 $Nil Total, Compensation Costs Table $ 4,878.50 $ 4,260.00 Disbursements:
Item Amount Claimed Amount allowed by Registrar Amount allowed on Appeal Fees for Reports from Health Service Providers (Clause 82(e) of the WC Regulation) $ 971.00 $ 890.00 $ 500.00 (Dr Dan 23 May 2003) Fees for Investigation Report (Clause 82(b) of the WC Regulation) $ 3,423.00
$ 550.00 $ Nil Agency Fees $ 244.20
$ Nil $ Nil
(Not in Issue)Applicant Travel Expenses Car travel ($836.62 including GST); Accommodation and Sustenance $225.00 $ 836.62
$ Nil
$ 836.62
$ 225.00
Miscellaneous Fees $ 550.00 $ Nil $ Nil White Barnes $ 4,114.00 $ 1,050.00 $ Nil Sub-Total Disbursements $ 3,326.62 $ 1,561.62 GST $ 194.00 $ 50.00 Total Clause 82 Costs $ 3,520.62 $ 1,611.62 176.In summary, the Applicant is entitled to the following:
Compensation Costs Table $ 4,260.00
Clause 82 WC Regulation $ 1,561.62
GST on Clause 82 Items $ 50.00
Total allowed on assessment $ 5,871.62
Decision
177.The Registrar’s ‘Determination of a Claim for Costs’ in this matter, dated 8 April 2005, is amended in accordance with these reasons and the Respondent is to pay the Appellant costs assessed at $ 5,871.62
Cost of the Appeal
178.The Appellant in this appeal has made a number of submissions that are either unsupported by his own documents, misguided, insufficient to address the legal issues, devoid of any reference to the relevant law or clearly wrong. It has been necessary to deal with all of them and they have prolonged the resolution of the appeal.
179.Ultimately the Appellant’s entitlement has been reduced.
180.The appropriate order is ‘No order as to Costs of the Appeal’.
Dr Gabriel Fleming
Deputy President
12 December 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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