Berry v South Eastern Sydney and Illawarra Area Health Service
[2006] NSWWCCPD 256
•4 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Berry v South Eastern Sydney and Illawarra Area Health Service [2006] NSWWCCPD 256
APPELLANT: Alison Berry
RESPONDENT: South Eastern Sydney and Illawarra Area Health Service
INSURER:GIO General Limited
FILE NUMBER: WCC11240-05
DATE OF REGISTRAR’S DECISION: 20 September 2005
DATE OF APPEAL DECISION: 4 October 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; procedural fairness; adequacy of reasons; Item 2.01 of Schedule 6 of the Workers Compensation Regulation 2003
PRESIDENTIAL MEMBER: Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION: Appellant: Lee Peisley & Foley Lawyers
Respondent: Phillips Fox
ORDERS MADE ON APPEAL: 1. Paragraph one of the decision of the delegate, dated 20 September 2005, is revoked and the following order is made in its place:
“(i) Pursuant to a Recommendation of the Registrar dated 26 May 2005 and a bill of costs of the same date the Respondent is liable to pay the Applicant’s costs as agreed or assessed”.
2. Paragraphs two, three and four of the delegate’s decision are confirmed.
3. The Respondent to pay the Appellant, the amount of $275.00 (inclusive of GST) in respect of the costs of the appeal.
BACKGROUND
Prior Proceedings
On 24 March 2005, Alison Berry (‘Ms Berry’) lodged an ‘Application to Resolve a Workplace Injury Management Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC4615-05). Ms Berry claimed that South Eastern Sydney Area Health Service, the Respondent employer had failed to provide: an ‘injury management plan’; a ‘return-to-work program’, and ‘suitable duties’ in accordance with the requirements of Chapter 3 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The Respondent employer is now known as South Eastern Sydney and Illawarra Area Health Service (‘SESAIAHS’). SESAIAHS’s insurer is GIO General Limited.
On 26 May 2005, SESAIAHS lodged a Reply to the application in which it denied that it had failed to fulfil its obligations under Chapter 3 of the 1998 Act. SESAIAHS also submitted that it had not been served with a copy of the application. I note that Ms Berry’s solicitor asserts that he served SESAIAHS’s solicitors on 22 April and 3 May 2004.
On 26 May 2005, a delegate of the Registrar conducted a teleconference which was attended by all parties, and on the same day the Registrar issued a Recommendation as follows:
1.“That the insurer engage the workers [sic] nominated rehabilitation provider within the next seven days to prepare an injury management plan for the worker;
2.That it is recommended that the worker’s solicitor is entitled to costs as agreed or assessed.”
The ‘Application for Assessment of Costs’
On 8 July 2005, Ms Berry lodged an ‘Application for Assessment of Costs’ (WCC11240-05).
On 28 July 2005 the Commission corresponded with SESAIAHS’s solicitor requesting that written submissions in reply to the application be filed within 14 days of the date of the correspondence. A copy of the correspondence was forwarded to Ms Berry’s solicitor on the same day. The correspondence also contained the following information:
“Kindly note the following:-
· Your written submissions must be served on the Applicant at the same time as, or prior to, filing with the Commission.
· Please advise the Commission of the date and mode of service.
· In all correspondence, please quote the Costs Assessment file number not the substantive file number.
The Applicant will be given a further 7 days after service of the Respondent’s written submissions to file and serve written submissions in reply.”
On 9 August 2005, SESAIAHS lodged submissions in reply. These submissions identified the relevant matter number as WCC11240-05. However the submissions identified the Respondent employer as “Department of Corrective Services”. I have reviewed the submissions and notwithstanding the naming of an incorrect respondent I am satisfied the submissions relate to proceedings against SESAIAHS as they specify the amount claimed by Ms Berry’s solicitor in these proceedings.
In reply, SESAIAHS’s solicitor referred to its correspondence addressed to Ms Berry’s solicitor dated 27 July 2005 in which it advised that it was prepared to recommend the payment of costs and disbursements in the sum of $2,084.50 as opposed to the sum of $2,359.50 claimed. The submissions concluded that a copy of the correspondence was attached.
On 22 August 2005, the Commission corresponded with the parties and advised that the matter had been referred to a costs assessor for determination.
The Registrar’s decision in relation to this application, by her delegate, a Commission Arbitrator, (‘the delegate’) was made on 20 September 2005. The decision is set out as follows:
“1. Pursuant to an Order [sic] dated 26 May 2005, the Respondent employer is liable to pay the Applicant’s costs of the Application as agreed or assessed.
2. The Applicant’s costs of the proceedings assessed in the sum of $2,084.50 (inclusive of GST) are determined as fair and reasonable.
3. The Applicant’s costs of the assessment are not allowed.
4. The Respondent is to pay the amount of $2,084.50 to the Applicant if those cost have not already been paid.”
The delegate’s decision was accompanied by a ‘Statement of Reasons’ which provided a summary of the background to the application in which the delegate noted that “It was agreed and the Commission ordered that the Respondent pay the costs of the Applicant as agreed or assessed.” The delegate also found that the Application was made pursuant to “Regulation 99 of the Workers Compensation Regulation 2003” (‘the 2003 Regulation’). The ‘Statement of Reasons’ identified the only issue in dispute as the claim under Item 2.01 of the Compensation Costs Table (‘the Table’) as set out in the 2003 Regulation.
Lodgement of the appeal
On 4 November 2005 Ms Berry’s solicitor, lodged an ‘Appeal from the Registrar’s Determination on Costs’.
On 16 November 2005 the Registrar issued a Direction to both parties as follows:
“(1)By 28 November 2005 the Appellant [sic] file with the Commission and serve on the Respondent to the Appeal submissions identifying the issues the Appellant was not given an opportunity to address in response to the Respondent’s objections to the Application for Assessment of Costs and a Certificate of Service certifying service of the submissions on the Respondent.
(2)By 5 December 2005 the Respondent [sic] file with the Commission and serve on the Appellant submissions in reply.”
Pursuant to that Direction, Ms Berry’s solicitor filed a ‘Certificate of Service’ dated 28 November 2005.
On 5 December 2005, SESAIAHS’s solicitor lodged submissions in reply. However there is no evidence of file that SESAIAHS’s solicitor served a copy of these submissions on Ms Berry’s solicitor. Accordingly, the Registrar issued a further Direction on 31 August 2006 requiring SESAIAHS’s solicitor to serve its submissions on Ms Berry’s solicitor by 5 September 2006 and to file a ‘Certificate of Service’ by 7 September 2006. The Direction also required Ms Berry’s solicitor to file its reply to those submissions and a ‘Certificate of Service’ by 18 September 2006.
On review, I can find no evidence that SESAIAHS’s solicitor complied with the Direction set out above. However, in accordance with the Direction, Ms Berry’s solicitor filed further submissions and a ‘Certificate of Service’ on 18 September 2006.
ON THE PAPERS
Section 354(6) of the 1998 Act states:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
In determining whether a conference or formal hearing is required I note that neither party has made submissions in relation to this issue. I also have regard to the Direction issued by the Registrar on 31 August 2006 and the ‘Certificate of Service’ dated 18 September 2006 filed by Ms Berry’s solicitor which confirms that SESAIAHS’s solicitor has been served with his additional submissions. I am satisfied that SESAIAHS’s solicitor has been provided with an opportunity to respond to the additional submissions and to provide “full and final submissions” regarding the issues raised on appeal. In my view, the parties are, or ought to be aware of the substantive issues in dispute between them; the issues in contention on appeal, and the risks in relation to an adverse finding inherent in the issues raised on appeal. The scope of the appeal falls within a relatively small compass. Having considered these factors, the delegate’s reasons and all of the evidence before the delegate, and before me I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Directions 1 and 6 to proceed ‘on the papers’ without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
SUBMISSIONS
Ms Berry’s submissions
Ms Berry’s solicitor submits that it did not receive any submissions or any offer from SESAIAHS’s solicitor in relation to the ‘Application for Assessment of Costs’. Rather, the Commission provided Ms Berry’s solicitor with a copy of SESAIAHS’s solicitor’s submissions at the same time as it provided a copy of the delegate’s decision. Further, Ms Berry’s solicitor submits that the delegate relied upon those submissions, in circumstances where the delegate failed to ensure that it was provided with an opportunity to respond to the submissions.
Ms Berry’s solicitor also submits that the delegate “has not calculated the correct amount for fees and disbursements…” and, SESAIAHS has not paid the amount awarded. Ms Berry’s solicitor seeks costs and interest.
SESAIAHS’s submissions
SESAIAHS’s solicitor submits that Ms Berry’s solicitor’s submissions fail to enumerate the questions of law upon which the appeal is based and therefore leave to appeal ought to be refused. However, in the event that the appeal is allowed to proceed it is submitted that:
· SESAIAHS’s solicitor forwarded its submissions to Ms Berry’s solicitor on 19 September 2005;
· in the event that these submissions were not received, SESAIAHS notes that Ms Berry’s solicitor received a copy of these submissions forwarded by the Commission. Accordingly, SESAIAHS’s solicitor’s submissions were received by Ms Berry’s solicitor and therefore Ms Berry’s solicitor’s submissions regarding non-receipt are immaterial and have no bearing on any issue in dispute;
· Ms Berry’s solicitor was afforded every opportunity to file and serve submissions in support of the application;
· Ms Berry’s solicitor’s failure to file submissions in full support of its application is not the fault of the SESAIAHS’s solicitor and therefore it should not be prejudiced by Ms Berry’s solicitor’s inaction;
· the delegate was in possession of the application and therefore Ms Berry’s solicitor “has erroneously asserted that the registrar based its costs assessment solely upon the Respondent’s submissions”, and
· Ms Berry’s solicitor has failed to identify the delegate’s incorrect calculation and, having reviewed the assessment SESAIAHS’s solicitor has been unable to identify any error. However until “full and final submissions” are provided by Ms Berry’s solicitor on this issue it is unable to provide “full and final submissions”.
Issues in dispute
In my assessment of the submissions and the file in its entirety the issues raised on appeal are as follows:
· Did the delegate deny Ms Berry’s solicitor procedural fairness?
· Did the delegate err in calculating the amount claimed for fees and disbursements?
DISCUSSION AND ANALYSIS
The relevant legislation
The relevant legislation concerning appeals to the Commission against an assessment of costs contained in the 1998 Act and the 2003 Regulation has been considered in a number of recent decisions (Berger v Moree Plains Shire Council[2005] NSWWCCPD 152 (‘Berger’); Chapman v Gosford City Council [2006] NSWWCCPD 4; Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWCCPD 30; Moore v PM & JH Turner [2006] NSWWCCPD 110; Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28 (‘Orr’)), and Mayne Group Ltd v Gallager [2006] NSWWCCPD 6 (‘Mayne Group’)), and need not be canvassed again in this decision.
In Woodbury v Miles [2006] NSWCCPD 5 (‘Woodbury’) the Commission considered the date at which the law is to be applied in determining an appeal against the Registrar’s assessment of costs and held that “the applicable law is that in effect at the time the Commission issued the Certificate of Determination, including the costs order” [paragraph 14]. I adopt the reasoning applied in Woodbury.
The matters raised on appeal require reference to clause 84, 98, 99, 103, 110 and 119(1) of the 2003 Regulation.
Clause 84 of the 2003 Regulation fixes the maximum costs recoverable by legal practitioners and agents to those set out in Schedule 6, which provides a Compensation Costs Table, except where otherwise provided in Part 19.
In accordance with Schedule 6, clause 1(2)(k) columns three and four of the Table must be applied to the costs incurred in relation to a dispute relating to ‘suitable duties’.
In relation to Item 2.01, the Table provided at the relevant time:
“Compensation Costs Table
| Column 1 | Column 2 | Column 3 | Column 4 |
| Item No | Activity or event | Maximum amount for individual activity/event | Maximum total for type of activity/event |
| 2.01 | Obtaining instructions from client | $250 per hour | $500” |
Clause 99 of the 2003 Regulation provides:
“Application for assessment of party/party costs
(1) 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 the 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.
(2) A court or the Commission may direct the Registrar to assess costs payable as a result of an order made by the court or the Commission. Any such direction is taken to be an application for assessment duly made under this Division.”
Pursuant to clause 110 of the 2003 Regulation the Registrar has discretion to determine whether or not it was reasonable to carry out the work to which the costs relate, and what is a fair and reasonable amount of costs for the work concerned.
Of particular relevance to this matter is clause 119(1) of the 2003 Regulation. Clause 119(1) specifically limits the grounds on which an appeal may be made against the decision of the Registrar on an assessment of costs ‘to a matter of law’ arising in the proceedings.
The delegate found that SESAIAHS’s solicitor’s obligation to pay costs arose pursuant to “an Order dated 26 May 2005”. On appeal, neither party has sought to challenge the delegate’s determination in the regard. In my view, the recommendation of the delegate set out at paragraph four does not constitute an order of the Commission for the purposes of Clause 99 of the 2003 Regulation. The force of a recommendation is clearly distinguishable to the force of an agreement registered in accordance with section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’) (see discussion in Berger at [24]) as section 308 of the 1998 Act provides that a ‘recommendation’ must either be complied with or, upon request, be referred by the Registrar to the Commission ‘for determination’. Further, the penalty for non compliance with a recommendation of the Registrar is distinct from the offence provisions operating in respect of the non-compliance with an order or direction of the Commission (see sections 300; 357; 358; 359, and 360 of the 1998 Act). Notwithstanding this error, I apply the reasoning set out in Mayne Group at paragraph 13, in finding that the delegate had jurisdiction to entertain the application which was made pursuant to clause 98 of the 2003 Regulation. Clause 98 allows for an application to be made, and for the Registrar to entertain, an assessment of costs in the absence of an order for the payment of costs and in circumstances where the bill of costs fulfils the requirements set out. In this matter neither party requested that the recommendation be referred for ‘determination’. Therefore I am satisfied that the recommendation, including the recommendation that SESAIAHS pay Ms Berry’s costs was accepted. The bill of costs issued by Ms Berry’s solicitor was dated 26 May 2005. In applying the date of the bill of costs or applying the date of the recommendation the costs are determined in accordance with the regulations in force at that time, as set out in paragraph 24.
Did the delegate deny Ms Berry’s solicitor procedural fairness?
The application of procedural fairness in costs assessments was considered by the Commission in a number of decisions including Asimus v J.J. Walker, A.D. Walker & Temple Pty Ltd t/as Templemore Partners [2006] NSWWCCPD 113 (‘Asimus’) and Bar Beach Bowling Club Ltd v McGill [2006] NSWWCCPD 2 (‘Bar Beach’). In Blain v Burrangong Pet Food Pty Limited NSWWCCPD 200 I confirmed my view that the 2003 Regulation dictates that the exercise of the delegate’s power is conditioned on the observance of the principles of natural justice (Kioa v West (1985) 159 CLR 550 (‘Kioa’)). The Registrar (or her delegate) exercises these powers as a member of the Commission (section 368(1)(a) of the 1998 Act).
Of particular relevance, clause 103 of the 2003 Regulation provides that:
“103 Consideration of applications
(1) The Registrar must not determine an application for assessment unless the Registrar:
(a) has given both the applicant and any legal practitioner, agent, client or other person concerned a reasonable opportunity to make written submissions to the Registrar in relation to the application, and
(b) has given due consideration to any submissions so made. (Emphasis added)
(2) In considering an application, the Registrar is not bound by rules of evidence and may inform himself or herself on any matter in such manner as he or she thinks fit.
(3)…”
In my view, the 2003 Regulation does not require the Registrar to serve copies of submissions on parties to proceedings and such a requirement is inconsistent with the Workers Compensation Commission Rules 2003 (‘the Rules’) (see in particular Rules 23; 38, and 39) and the objectives of the Commission pursuant to section 367 of the 1998 Act.
However, as set out at paragraph 17, prior to determining a matter on the papers the Commission ‘must be satisfied that sufficient information has been supplied’ pursuant to section 354(6) of the 1998 Act.
Further, Rule 71 requires the Commission to take such measures as are reasonably practicable to:
“(c) ensure that the parties have the fullest opportunity practicable to have their case in the proceedings considered without compromising the objectives of the Commission, and
(d) ensure that the parties have the opportunity to explore settlement in the proceedings.”
The facts of this case require consideration of whether the delegate was satisfied that he had:
· “sufficient information…in connection with the proceedings… to exercise...[his] functions ...without holding any conference or formal hearing”;
· provided ‘both’ Ms Berry’s solicitor and SESAIAHS’s solicitor “a reasonable opportunity to make written submissions in relation to the application”, and
· provided the parties with “the fullest opportunity practicable to have their case in proceedings considered without compromising the objectives of the Commission”.
SESAIAHS’s solicitor submits that Ms Berry’s solicitor was provided with an opportunity to make submissions upon lodgement of the application. That is correct. However the issues raised on appeal turn on Ms Berry’s solicitor’s opportunity to make further submissions once SESAIAHS’s solicitor’s submission in reply were filed and served. I am satisfied that the Registrar attempted to ensure that her obligations in accordance with clause 103 of the 2003 Regulation and Rule 77, were fulfilled by her correspondence of 28 July 2005 which required SESAIAHS’s solicitor to served its submissions in reply and provided Ms Berry’s solicitor with the opportunity to make further submissions. The Registrar’s correspondence also required SESAIAHS’s solicitor to advise the Commission of the date and mode of service. Following my review I am unable to identify any confirmation of service as requested. If received, that advice would have been sufficient to satisfy the delegate that the obligations imposed by clause 103; Rule 77 and section 354(6) of the 1998 Act had been fulfilled.
SESAIAHS’s solicitor also submits that it provided Ms Berry’s solicitor with a copy of its submissions dated 1 August 2005 and at “annexure A” was a copy of its letter to Ms Berry’s solicitor recommending payment in the sum of $2,084.50. Following my review, I am unable to identify any document attached to SESAIAHS’s solicitor’s submissions. Accordingly, I am not persuaded that “annexure A” was attached the submissions. Nor am I persuaded that the attachment was forwarded to Ms Berry’s solicitor. Further, in the absence of confirmation of service I am not satisfied that SESAIAHS’s solicitor served its submission in reply as requested.
Following my review, I accept Ms Berry’s solicitor’s submissions that the Commission forwarded him a copy of SESAIAHS’s solicitor’s submissions under correspondence dated 26 September 2005. Accordingly, I am persuaded that Ms Berry’s solicitor received a copy of the submissions following the delegate’s determination of the application on 20 September 2005.
In my view, the Registrar’s correspondence dated 28 July 2005, had the potential to create an expectation that the matter would not proceed to determination until SESAIAHS’s solicitor’s submissions had been filed and served upon Ms Berry’s solicitor, and it either accepted or, by omission declined the opportunity to reply within seven days of receipt of SESAIAHS’s solicitor’s submissions. However, as observed by Brennan J in Kioa “It is not the state of mind of the individual but the interests which an exercise of power is apt to affect that is relevant to the construction of the statute [618]”. In this case the interests affected by the exercise of power were pecuniary. The practice of the Commission is to determine ‘Applications for Assessment of Costs’ on the papers and the statute and the Rules enshrine the observance of procedural fairness in the Registrar’s (or her delegate’s) determination of these disputes.
The delegate determined the ‘Application for Assessment of Costs’ following receipt of the application and accompanying submissions filed by Ms Berry’s solicitor and submissions in reply from SESAIAHS’s solicitor. However, as set out I can find no evidence of SESAIAHS’s solicitor’s compliance with the Registrar’s request to serve those submissions on Ms Berry’s solicitor. Further, the decision of the delegate does not satisfy me that the delegate considered SESAIAHS’s failure to provide advice to the Commission as to the date and mode of service, and the consequences of this omission upon both Ms Berry’s solicitor’s right to be heard, and upon the supply of ‘sufficient information’ necessary to enable him to determine the application. In my view, the delegate’s failure to consider the absence of evidence of service and the resultant effects upon the supply of ‘sufficient information’ resulted in Ms Berry’s solicitor being denied the opportunity to properly present his case in circumstances where the exercise of power by the delegate may destroy, defeat or prejudice its rights (see Ainsworth and Another v Criminal Justice Commission (1992) 175 CLR 564 paragraph 24). Accordingly I find that Ms Berry’s solicitor was denied procedural fairness sufficient to give rise to an error of law. A denial of procedural fairness is an error of law going to jurisdiction (Minister for Immigration and Multicultural Affairs v Bhardwaj[2002] HCA 11; Western Suburbs Leagues Club (Campbelltown) Limited v Bates[2006] NSWWCCPD 48).
If I am wrong in my finding that the delegate denied Ms Berry’s solicitor procedural fairness I turn to the adequacy of the delegate’s reasons.
In accordance with clause 115 of the 2003 Regulation the Registrar, or her delegate, has an obligation to provide reasons for a determination as to the costs payable in compensation proceedings before the Commission. However, what amounts to ‘adequate’ reasons depends upon the context of the decision maker and the nature of the decision. The Commission is not a court and proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits.
In this matter the amount at issue encompassed $550.00. However the determination was conducted on the papers and as set out, the delegate had a statutory duty to be satisfied that he had ‘sufficient information’ prior to exercising his powers. At paragraph 9 of his ‘Statement of Reasons For Decision’ the delegate concluded that he was “satisfied that the documents supplied are sufficient for a determination on the papers without holding a conference or formal hearing.” In my view, this reference is inadequate to demonstrate that the delegate properly considered the absence of confirmation of service and this inadequacy sufficiently demonstrates that the delegate failed to exercise his statutory duty to fairly and lawfully determine the application (see Cargill Meat Processors Pty Limited v Clark[2005] NSWWCCPD 7). Accordingly I find that the delegate erred in law in failing to provide adequate reasons.
Having found that the decision was infected by an error of law I am entitled to determine the application as, in my opinion, it should have been determined by the Registrar’s delegate (clause 119 (3)(a) of the WC Regulation).
Did the delegate err in calculating the amount claimed for fees and disbursements?
Ms Berry’s solicitor claimed costs totalling $2,359.50. SESAIAHS’s solicitor disputed only Item 2.01 of the Table on the basis that the claim of $550.00 (inclusive of GST) was unreasonable in circumstances where “the Applicant has filed no less than 8 separate litigated proceedings…” SESAIAHS’s solicitor relied upon the decision in Hopper v NSW Parks and Wildlife Services (2005) NSWWCCC2 as authority that the assessor must take into account the number of opportunities and occasions an applicant’s solicitor has had to obtain instructions as this work may have been duplicated or could have been performed in previous proceedings. Ms Berry’s solicitor did not address these submissions on appeal. Rather, Ms Berry’s solicitor referred to the incorrect calculation applied by the delegate. SESAIAHS’s solicitor submits that it is unable to detect the delegate’s error of calculation.
The delegate considered that the matter was an application in relation to an injury management dispute and Ms Berry had filed “at least seven other applications in relation to the same injury and no doubt instructions were sought in relation to each of those [applications].” The delegate also referred to the relevant legislation and the decision in Orr in determining that “The Applicant cannot recover more than the maximum amount set out in the Table for the same activity or event…” In view of the multiple applications the delegate determined that one hour was a ‘fair and reasonable’ time and awarded $265.00 (inclusive of GST). The delegate’s reasons state that he “adjusted the bill for the items in dispute” with reference to an award of $265.00 for Item 2.01 of the Table.
There is a minor error in calculation in the delegate’s decision. The Table provides that $250.00 per hour applied at the relevant time. Applying this hourly rate gives rise to an award for Ms Berry’s solicitor in relation to Item 2.01 of the Table of $275.00 (inclusive of GST) and not the sum of $265.00 awarded by the delegate. However, in adjusting the bill of costs the delegate appears to have applied the correct sum of $275.00 to make the correct assessment of $2084.50.
Notwithstanding the opportunity afforded to both parties neither Ms Berry’s solicitor nor SESAIAHS’s solicitor have raised issues in relation to the delegate’s determination of Item 2.01 of the Table save for the calculation error. In my view, the delegate properly considered the relevant authorities and Clause 2 of Schedule 6 of the 2003 Regulation in arriving at his determination and, save for the error of calculation I see no reason to disturb the delegate’s decision in this regard.
Interest
Ms Berry’s solicitor makes a claim for “costs and interest”. It is unclear whether the claim is one pursuant to section 109 (‘Interest before order for payment’), or 110 (‘Interest after order for payment’) of the 1998 Act. The operation of these provisions was considered by the Commission in Canham v Kenna Investrments Pty Limited [2006] NSWWCCPD 202 (‘Canham’) and need not be canvassed again here. As found in Canham there was no claim for interest in the ‘Application for Assessment of Costs’ lodged by Ms Berry’s solicitor and in these circumstances the delegate had no jurisdiction to award interest. Accordingly, no order was made by the delegate.
As no order was made and the payment of interest was not agreed by the parties, I consider that the claim may be one made pursuant to section 110 of the 1998 Act which provides that interest runs as of right, unless the costs are paid within 21 days of assessment (section 110(3)(b)). The material filed by Ms Berry’s solicitor indicates that SESAIAHS’s solicitor “…still has not paid the awarded amount…” If I am correct in my assessment of the claim Ms Berry’s solicitor seeks interest from the date of the delegate’s decision.
In Bowden v BHC Stokes and Workcover Authority [2001] NSWCC 185 (‘Bowen’) Walker J awarded interest on the outstanding costs from the date of the original decision in circumstances where the order for costs was not the subject of the review. However, as distinct from the facts in Bowen the costs order was appealed by Ms Berry’s solicitor. In my view, section 120 of the 1998 Act confirms that an appeal against the decision of the delegate may result in the suspension of ‘the operation of the determination or decision’. I have no evidence before me that the Registrar applied her powers to suspend in accordance with section 120 of the 1998 Act. However both parties were, or ought to be aware of the effect of the appeal on the decision of the delegate. Accordingly, in my view it is inappropriate that I make an order for interest from the date of the delegate’s decision when the delegate’s decision was under appeal. Further, as discussed in ‘Canham’ section 110 of the 1998 Act ensures that interest runs as of right from the date of my assessment subject to section 110(3).
DECISION
Paragraph one of the decision of the delegate dated 20 September 2005 is revoked and the following orders are made in its place:
“(i) Pursuant to a Recommendation of the Registrar dated 26 May 2005 and a bill of costs of the same date the Respondent is liable to pay the Applicant’s costs as agreed or assessed.”
Paragraphs two, three and four of the delegate’s decision are confirmed.
COSTS
The Appellant seeks costs. The Appellant has been successful on appeal. Having regard to the circumstances of the case and the relevant legislation (section 341(4) and section 354(5) of the 1998 Act) in my view, it is appropriate that I make an order for the Respondent to pay the Appellant’s costs of the appeal.
I order the Respondent to pay the Appellant, the amount of $275.00 (inclusive GST) in respect of the costs of the appeal.
Elizabeth Tydd
Acting Deputy President
4 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF E TYDD, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
2
14
0