Blain v Burrangong Pet Foods Pty Limited
[2006] NSWWCCPD 200
•24 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Blain v Burrangong Pet Foods Pty Limited [2006] NSWWCCPD 200
APPELLANT: Matthew Brian Blain
RESPONDENT: Burrangong Pet Foods Pty Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC19155-03
DATE OF REGISTRAR’S DECISION: 17 May 2005
DATE OF APPEAL DECISION: 24 August 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; date at which law is to be applied; fees for investigation report; travel and accommodation; Items 1.01, 2.05, 2.06, 4.08 and 10.01 of Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER: Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Moray & Agnew
ORDERS MADE ON APPEAL: 1. Paragraphs two and four of the decision of the Registrar’s delegate dated 17 May 2005 are revoked and the following orders made in their place:
“2. The Applicant’s costs of the proceedings are assessed at $4860.50.
4. The Respondent is to pay the amount of $4860.50 to the Applicant if those costs have not already been paid.”
2. No order as to costs of the appeal.
BACKGROUND
Prior proceedings
On 8 December 2003, Matthew Brian Blain (‘Mr Blain’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (matter number WCC19155-03). Mr Blain sought lump sum compensation pursuant to section 66 and medical expenses pursuant to section 60 of the Workers CompensationAct 1987 (‘the 1987 Act’) as a result of an injury to his right hand sustained in the course of his employment on 29 August 2002.
Mr Blain named Burrangong Pet Foods Pty Limited (‘Burrangong’) as the Respondent employer. Burrangong lodged a Reply to the application in which it disputed the degree of permanent impairment claimed.
On 5 April 2004, a teleconference was conducted before a Commission Arbitrator who referred Mr Blain to an Approved Medical Specialist (‘AMS’) for assessment in accordance with sections 322 and 323 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The Commission issued the AMS’s assessment contained in a Medical Assessment Certificate (‘MAC’) to the parties on 13 August 2004.
On 1 September 2004 Burrangong’s solicitor advised the Commission, and Mr Blain’s solicitor, that it accepted the AMS’s assessment and requested the cancellation of the teleconference scheduled for 9 September 2004.
On 17 November 2004, the Registrar issued a ‘Certificate of Determination’ ordering Burrangong to pay $1,250.00 to Mr Blain in respect of 1% whole person impairment, as assessed by the AMS and also ordering Burrangong pay Mr Blain’s costs as agreed or assessed.
On 2 December 2004, Mr Blain’s solicitor lodged an ‘Application for Assessment of Costs’ and on 20 December 2004 Burrangong lodged submissions in Reply.
The Registrar’s decision in relation to this application, by her delegate, a Commission Arbitrator, (‘the delegate’) was made on 17 May 2005. The decision is set out as follows:
“1.Pursuant to [sic] Certificate of Determination dated 17 November 2004, the Respondent employer 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 $4555.50
3.The Applicant’s costs of the assessment are not allowed.
4.The Respondent is to pay the amount of $4555.50 to the Applicant if those costs have not already been paid.”
The delegate’s decision was accompanied by a ‘Statement of Reasons’ which provided a “brief concluding analysis, and determination(s)” in respect of each Item claimed in table format containing three headings, “Item”, “Conclusion” and “Amount Allowed”.
Lodgement of the appeal
On 1 June 2005, Mr Blain lodged an ‘Appeal from the Registrar’s Determination on Costs’.
Burrangong lodged a Notice of Opposition with the Commission on 17 June 2005. Burrangong’s insurer is CGU Workers Compensation (NSW) Limited.
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties, 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. Neither party sought to adduce fresh evidence.
SUBMISSIONS
Mr Blain’s submissions
Mr Blain’s solicitor submitted that in “earlier proceedings” Mr Blain provided the Commission with authority to access all of the documents relating to the matter. Mr Blain’s solicitor submitted that the delegate’s failure to request additional documents constitutes a denial of procedural fairness amounting to an error of law. Clements v Independent Indigenous Advisory Committee (2003) 37 AAR at 309 is cited as authority that “As a result of the administrative error by the Administrative Appeals Tribunal, the Applicant was denied procedural fairness.”
Further submissions are provided by Mr Blain’s solicitor in relation to each Item claimed. These submissions appear, in part to adopt the table format of the delegate. However, no headings are provided and this omission creates practical difficulties in fully understanding the submissions. Items 1.02, 2.01, 2.02, 2.04, 4.01, 4.02, 4.03, 4.03A, 4.07, 4.09, 4.12; and those listed under disbursements at “a)” as “medical reports’ are contested by Mr Blain’s solicitor. However these items were allowed by the delegate in the amount claimed. Additionally Mr Blain’s solicitor’s submissions in relation to the claim for $56.00 conduct money are lengthy. However again, the amount was allowed by the delegate in the amount claimed and dealt with under the more correct reference of Item 4.03B.
Burrangong’s submissions
Burrangong submitted that they repeat and adopt their earlier submissions and a copy of the previous submissions was attached to the present submissions.
Burrangong also submitted that:
· the grounds set out in the appeal add nothing of any relevance to Mr Blain’s solicitor’s previous submissions but “add many submissions which are incomprehensible and/or totally irrelevant”;
· the sole basis for appeal is limited to a matter of law and Mr Blain’s solicitor does not submit that the decision by the Registrar was affected by legal error, and
· the appeal should be dismissed.
Issues in dispute
In my assessment of the submissions the Items listed at paragraph 14 are not in issue on appeal. Rather, the Items on appeal are limited to those contained in the table provided by Mr Bain’s solicitor for which the claim was not allowed in part, or in its entirety. These items are as follows:
·Items 1.01, 2.05, 2.06, 4.08, 10.01 in accordance with the Workers CompensationRegulation 2003 (‘the WC Regulation’)
·Disbursements - “b) Private Investigators Report” being the Private Investigator’s Report (the ‘Report’) from St George Registration and Investigation Services (‘SGRIS’); and “c) Applicant’s travel”
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 WC 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 (‘Chapman’); Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWCCPD 30 (‘Flegerbein’); Moore v PM & JH Turner [2006] NSWWCCPD 110; and Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCCPD 28 (‘Orr’)) 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 clauses 84, 110, 119(1) and 82 of the WC Regulation and, as the cost of an investigator’s report and the travel costs and expenses claimed are not regulated by Part 19 of the WC Regulations it is necessary to consider clauses 46 and 48 of the Legal Profession Regulation2002 (‘LP Regulation’) which was in force at the time of the issue of the Certificate of Determination, being 17 November 2004 (see Woodbury and Berger).
In summary the provisions relevant to the determination of the issues raised on appeal are as follows.
Clause 84 of the WC Regulation fixes the maximum costs recoverable by legal practitioners and agents to those set out in Schedule 6, which provides a Compensation Costs Table (‘the Table’), except where otherwise provided in Part 19.
Pursuant to clause 110 of the WC 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 (emphasis added) of costs for the work concerned.
Of particular relevance to this matter is clause 119(1) of the WC 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.
Clause 82 of the WC Regulation provides:
“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), (emphasis added) |
| (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, (emphasis added) |
| (j) | witness expenses at a court or the Commission.” |
In respect of the fee claimed for the Report this cost is claimed as a disbursement. Schedule 2 of the LP Regulation provides:
“SCHEDULE 2 – Costs for legal services in workers compensation matters
(Clause 46)
Part 1 - Schedule of practitioners’ costs
| 10 Disbursements |
| Any disbursement necessarily incurred is to be allowed except in so far as any such disbursement is of an unreasonable amount or has been unreasonably incurred and any doubts which the taxing officer/costs assessor may have as to whether any disbursement was reasonably incurred or was reasonable in amount are to be resolved in favour of the receiving party.” (Emphasis added) |
Clause 48 the LP Regulation contains the prescribed costs for non-legal services in workers compensation matters. The provision is set out below.
“48 Prescribed costs for non-legal services in workers compensation matters: section 196 (1) (c)
(1) This clause applies to costs for a matter that is not a legal service but is related to proceedings in any workers compensation matter.
(2) The amount of costs fixed for a service specified in Schedule 4 is the amount specified in relation to that service in that Schedule, calculated in accordance with that Schedule.
Note: Section 208O (2) of the Act requires an assessment of costs for a non-legal service to be made having regard to the costs fixed by this clause. (Section 196 (2) of the Act does not regulate the amount that a barrister or solicitor may charge a client for such a non-legal service.)”
Schedule 4 details the amount allowable for travelling and other allowances 4 (b) is applicable to the amount claimed by Mr Blain as the travel concerned was a distance exceeding 80 kilometers. 4(b) provides that “the reasonable costs of traveling plus the costs of reasonable accommodation, meals and parking” is allowable.
Did the delegate deny Mr Blain procedural fairness?
Mr Blain submits that the failure of the delegate to call for, or obtain further documents in determining the application was a denial of procedural fairness amounting to an error of law.
The application of procedural fairness in costs assessments was considered by the Commission in 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 Bar Beach the Commission held that the Registrar’s delegate (who determined the Application for Assessment of Costs) failed to address the application of section 263(1) of the 1998 Act which was raised in submissions. The Commission held that this failure amounted to an error of law as the Appellant’s submissions were not considered and accordingly the Appellant was denied procedural fairness (emphasis added) [at paragraph 22].
As observed by Brennan J in Kioa v West (1985) 159 CLR 550 the statute determines whether the exercise of the power is conditioned on the observance of the principles of natural justice.
Accordingly I have regard to the WC Regulation which provides for:
· the manner in which an application may be made (clause 100);
· the requirement for the Registrar to give notice of the application for assessment of costs to “any legal practitioner, agent or client concerned or any other person whom the Registrar thinks it appropriate to notify.” (clause 101), and
· the power to require a person to produce relevant documents (clause 102).
Of particular relevance, clause 103 of the WC 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 statutory regime under which a costs assessment is conducted by the Registrar codifies the requirements for the decision maker to provide a party with an opportunity to make submissions and to conduct a fair hearing. Accordingly my view accords with that expressed in Bar Beach that the principles of procedural fairness apply to the assessment of costs by the Registrar.
Mr Blain’s solicitor relies upon the decision in Clements. In that case the Appellant was denied the opportunity to be heard because he did not receive the relevant notice of hearing and the Tribunal proceeded on the erroneous assumption that the notice had been served. On appeal the Federal Court held at paragraph 42 that:
“There can be no doubt that the error in the present case deprived the applicant of a fair opportunity to obtain a favourable decision of the Tribunal. It deprived him of the chance to place evidence before the Tribunal and to make submissions as to why the decision of the Committee should be set aside. In an affidavit filed in the Court, the applicant set out evidence that he would have been able to give to the Tribunal if he had been able to attend a hearing.”
In considering Mr Blain’s solicitor’s submissions regarding a denial of procedural fairness I must consider the proceedings in relation to the assessment of costs. The Registrar’s practice is to deal with an ‘Application for Assessment of Costs’ ‘on the papers’. In my view Mr Blain’s solicitor’s correspondence dated 3 November 2004 attached to his application confirmed his consent to the Registrar determining the application on the papers. Mr Blain’s solicitor’s correspondence concluded “It would be appreciated if you could proceed to assessment of our Applicant’s [sic] for costs and disbursements.” The legal representatives received notice of the assessment dated 18 January 2005 and provided submissions regarding the costs claimed. These submissions were exchanged between the parties. Accordingly both parties in the proceedings were, or ought to be, well aware of the substantive issues in dispute between them. I am satisfied that the issues in dispute were well known to the legal representatives. I am also satisfied that the representatives were provided with an opportunity to make further submissions and neither representative did so. As distinct from the facts in Clements, Mr Blain’s solicitor does not refer to any specific document(s) which, had it been in evidence, would have altered the assessment conducted by the delegate. In these circumstances I am unable to identify any error made by the delegate in failing to request additional material.
Accordingly, I do not accept Mr Blain’s solicitor’s submission that the delegate erred in failing to obtain further documents and this ground of appeal must fail.
Did the delegate err in disallowing the costs of disbursements relating to the investigation report?
Mr Blain’s solicitor sought $1,882.21 for the report provided by SGRIS. Mr Blain’s solicitor referred to his previous submissions that the workers compensation costs regime is more generous to augment the “front end loaded” system adopted by the Commission (Orellana Fuentes v Standard Knitting Mills Pty Limited & ors, Carey v Blasdom Pty Limited t/as Ascot Freightliners & Ors (2003) NSWCA 146). Mr Blain’s solicitor also submitted that the matter was not a “straightforward matter” and referred to another claim (Maxwell George Farrance v Gundar Pty Limited t/as Belah Creek Pastoral Company (a claim number is provided but no citation)) stating that in this matter the insurer paid the costs of a factual investigation report and in the present matter the same approach should be adopted.
Burrangong’s solicitor referred to earlier submissions that the matter was “very simple” and no evidence obtained by the investigator was relied upon by Mr Blain.
The Registrar’s delegate rejected the claim as it was not fair and reasonable (emphasis added) in the circumstances because, in summary:
·the matter was relatively simple, although quantum was disputed until assessed by the AMS;
·the Report appeared substantively to be the taking of an Applicant statement that occupied the interviewer for approximately 1 hour;
·other material contained in the Report such as wage loss/taxation and related information did not appear to be pertinent, and
·substantively the investigation material fell within the parameter of usual instructional/advisory work and a number of allowances in this area had already been allowed including Item 2.01 – obtaining instructions.
As set out, it is necessary to have regard to the LP Regulation clause 46 with reference to Schedule 2. The relevant provision is contained in Schedule 2 Item 10 which provides the test to be applied in determining the claim for the disbursement. In accordance with this provision any disbursement ‘necessarily incurred’ is to be allowed.
Accordingly, the Report must be considered as a disbursement ‘necessarily incurred’ in order that the claim be allowed. The meaning of ‘necessarily incurred’ was considered by the Commission in the matter Asimus at paragraph 19.
“The New Shorter Oxford Dictionary defines ‘necessarily’ to mean “by force of necessity; unavoidably; indispensably; in accordance with a necessary law or operative principle”. And ‘necessary’ is defined as “that which is indispensable; an essential, a requisite; a basic requirement of life, as food, warmth, etc” and “that which is required for a given situation”.
As was determined in Asimus, the application of a test of ‘fair and reasonable’ by the Registrar’s delegate in determining the claim for the costs of the Report was more consistent with the terms of clause 110 of the WC Regulation than with an application of Schedule 3 of the LP Regulation. In applying clause 110 of the WC Regulation to the claim for the cost of the Report the Registrar’s delegate, in my view committed an error of law.
Having found that the decision was infected by an error of law I am entitled to determine the application as, in my opinion, it should have been determined by the Registrar’s delegate (clause 119 (3)(a) of the WC Regulation).
The Report on file is comprised of 59 pages and includes:
· a factual and liability summary;
· an undated and un-witnessed statement by Mr Blain;
· a business name search;
· copies of reports of Dr Conrad dated 31.01.03 x 3 (all addressed to Mr Blain’s solicitor), and
· Mr Blain’s schedule of earnings and taxation information.
Although the index to the Report referred to original statements “for your file”, signed authorities and original taxation information, these documents are not contained in either copy of the Report on the Commission’s files.
In the present case, the injury and liability were not disputed rather the “degree of permanent impairment” was disputed by Burrangong on the basis of Dr Davis’ assessment. Accordingly, in my view there was no need for investigators to be engaged to make general enquiries into the circumstances of the injury, conduct a business name search or investigate Mr Blain’s weekly wage rate when no claim for weekly compensation was made by Mr Blain. Further, the Report at page 3 discussed whether “the employer was negligent” in respect of the actions taken by fellow workers or the meat inspector employed by Burrangong. Again, this aspect of the Report cannot be considered to have been necessary to support the claim.
At page 4 of the Report, Dr Conrad’s report is summarized over five paragraphs and as stated above the reports of Dr Conrad form part of the Report. As was found in Flegerbein “The medical reports attached to the report simply duplicate material filed in the proceedings.” (at paragraph 18).
I find that the costs of the Report relating to the circumstances of the injury, Mr Blain’s wage rate, commentary regarding “Common Law” entitlements, summaries of Dr Conrad’s reports and copies of those reports were not necessarily incurred. The only remaining document requiring consideration in the Report is the statement taken from Mr Blain by SGRIS.
A statement from the injured worker is usually attached to the Application at the time of filing and the cost of obtaining a statement is usually claimed under item 2.01 or 2.04A of Schedule 6 of the WC Regulation (see McManus v Gosford City Council [2004] NSWCCPD 61 (‘McManus’)).
In this case, item 2.01 was allowed in the sum of $500.00, the maximum permitted at the relevant time. Mr Blain’s solicitor’s submissions do not indicate why the statement was not taken when obtaining instructions. However, the taking of a statement was not claimed under Item 2.01 hence the issue of duplication does not arise (See Berger at [141]). Whilst I am not satisfied that the matter was complex as submitted by Mr Blain’s solicitor I am satisfied that the cost was incurred as the statement was taken by SGRIS and lodged with the application. Further, in my view obtaining a statement from Mr Blain in support of the application was appropriate in circumstances where the medical assessments differed significantly and Mr Blain’s solicitor had sought review of the claim prior to lodging the application.
Accordingly, I am satisfied that the cost was necessarily incurred and in these circumstances the cost of taking a statement from the appellant worker is recoverable (see Asimus at paragraph 25).
The statement was taken by an investigator, not a legal practitioner, the statement indicates that the interview was conducted over one hour and there is no indication as to whether the interview took place by phone or in person. I have been guided by the costs allowable under item 2.04A which in November 2004 were $100.00 per hour for taking a witness statement up to a maximum of $150.00. In these circumstances I allow the sum of $110.00 (inclusive of GST) for the Report as it relates to the cost associated with taking a statement from Mr Blain.
Did the delegate err in disallowing the costs of disbursements relating to Mr Bain’s travel expenses?
Mr Blain’s solicitor sought $628.05 for Mr Bain’s travel to see Dr Conrad and submitted that it was reasonable for Mr Blain to travel to Sydney to see a medico-legal expert. Burrongong objected on the basis that there was no need for Mr Blain to see a Sydney doctor. The delegate allowed $336.00 of the claim for the costs of attending Dr Conrad as a disbursement. The delegate disallowed the other claims of wage loss, sustenance and accommodation under this heading as they did not fall within item 10.03 as costs of accommodation as that Item is relative only to travel for attendance at proceedings before the Commission. On appeal Mr Blain’s solicitor referred to section 125 of the 1998 Act as the basis for the claim in relation to costs of travel and sustenance.
The application of section 125 of the 1998 was considered by the Commission in Berger at paragraph 150 where it was held that:
“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.
In accordance with the decision in Berger, the operation of section 125 of the 1998 Act is clear and has no application to the present circumstances. Travel costs and other allowances in workers compensation matters are provided for in accordance with Clause 48 of the LP Regulation and these costs must be assessed in accordance with Schedule 4, Item 4(b) “Travelling and other allowances”. The matters in dispute are Mr Blain’s claims for “Sustenance” and for “Accommodation”. In accordance with Schedule 4 these expenses are allowable if the cost is ‘reasonable’. In my view, and in accordance with the authority provided in Berger, it is reasonable to expect that Mr Blain would incur expenses for ‘sustenance’ and ‘accommodation’ in traveling from Young to Sydney. The amounts claimed are reasonable ($75.00 for sustenance and $120.00 for accommodation) and should be allowed.
Item 1.01Obtaining and reviewing medical reports
Mr Blain’s solicitor claimed $600.00 for reviewing two medical reports, those of Drs Kwa and Carr, together with several WorkCover certificates of Dr Sullivan. Burrangong objected to the claim on the basis that the reports were not relevant. The delegate determined that the report of the operating surgeon, Dr Kwa was relevant and allowed $300.00. The certificates were declined by the delegate.
On appeal Mr Blain’s solicitor referred to the reports of Dr Kwa and certificates of Dr Sullivan only. Dr Sullivan did not provide reports, only WorkCover certificates. Mr Blain’s solicitor acknowledged this and submitted that in the absence of reports, certificates were relied upon and therefore they required review.
The Table does not envisage a certificate. It refers only to ‘obtaining and reviewing medical reports’ in relation to making a claim for ‘permanent impairment compensation or pain and suffering compensation’. The certificates provided by Dr Sullivan do not constitute reports which have any bearing on Mr Blain’s claim for permanent impairment. They do not provide an assessment nor do they provide an account or statement as to permanent impairment.
In my view, the claim for reviewing Dr Sullivan’s certificates is not allowable under the Table and I find no ‘matter of law’ arising from the delegate’s decision to award the item in the reduced amount of $300.00 referable to Dr Kwa’s reports only.
Item 2.05 Briefing a factual investigator
Mr Blain’s solicitor sought $100.00 in respect of a letter sent to SGRIS requiring them to prepare a factual investigation and submitted that the claim is maintained as “There is nothing in Item 2.05 about the service of a witness statement.” Burrangong objected, as no witness statement was served and that the Item is not recoverable for instructing an investigator to obtain one.
The delegate found that the Item did not encompass briefing a factual investigator to take a statement from the worker/applicant and this item is more properly encapsulated under Item 2.01; and having allowed the maximum under that Item the claim was disallowed (McManus and Nebauer v Hunter Area Health Service [2004] NSWWCCPD 60).
Item 2.05 provides that the maximum amount recoverable for “Briefing a factual investigator or other investigator to obtain evidence other than witness statements (emphasis added) (not including the investigator’s fee)” is $100.00.
In the present case the SGRIS was briefed by Mr Blain’s solicitor to obtain evidence. I have found that the Report was not necessary in the proceedings. Additionally, I have allowed part of the cost of the Report under clause 82(b) of the WC Regulation as it relates to the taking of Mr Blain’s statement only. The cost of briefing a factual investigator is only recoverable where the investigator is obtaining evidence “other than witness statements” (see Item 2,05 and discussion in Asimus). In accordance with the decision in Berger, I regard Mr Blain’s statement as a witness statement. Accordingly, in my view the costs of briefing SGRIS to obtain the Report cannot be claimed under Item 2.05 and I find no ‘matter of law’ arising from the delegate’s assessment.
Item 2.06 Requesting a review of the claim from the insurer prior to referral of the matter to the Commission
Mr Blain’s solicitor sought $500.00 in accordance with this Item as the “Applicant had to peruse all medical reports and other evidence before seeking the review by the insurer.” Burrangong objected as no work was undertaken, or could reasonably have been required to be undertaken, which could be covered by this Item and there was no evidence before the Commission of any such work having been undertaken. The delegate was satisfied that the activity occurred and on balance 1 hour was allowed, being $250.00.
On appeal, Mr Blain’s solicitor identified the minimum information required for the purpose of requesting a review by quoting “Part 1 Rule 5 of the WorkCover NSW Guidelines (effective from 1 January 2002)”. The quote provided by Mr Blain’s solicitor refers to the requirement for the Insurer to obtain this information at the initial notification (emphasis added) not the worker’s solicitor. Additionally, I have also considered whether Mr Blain’s solicitor may be referring to Part 1 Rule 5 of the Workers Compensation Commission Rules 2003 (‘the WC Rules’) which provide for the making of an application for directions and the Commission making directions of its own motion regarding the commencement of proceedings. I am unable to see how these submissions relate to Mr Blain’s solicitor requesting review by the insurer prior to referral of the matter to the Commission which is necessary in support of the claim made under Item 2.06.
Mr Blain’s solicitor’s submissions also refer to a request for review by the insurer being contained in correspondence dated 23 February 2003 to the insurer and to Burrangong dated 23 September 2003. The correspondence dated 23 February 2003 in which Mr Blain’s solicitor requested a review of the claim attached a copy of a draft Application to Resolve a Dispute (dated 23 September 2003 [sic]), medical reports of Dr Conrad and a copy of correspondence to Burrangong dated 23 September 2003 [sic]. The correspondence also requested particulars. Accordingly I am satisfied that Mr Blain’s solicitor did request a review by the insurer. Mr Blain’s solicitor submitted that it was necessary to review all medical reports prior to preparing the request. However, review of the medical reports of Dr Conrad was claimed under Item 2.04 and allowed by the Registrar’s delegate. The WC Regulation does not permit the claim to be made twice for the same activity (see discussion in Berger, Orr and McManus).
I am not satisfied that the request to review demonstrated that a high level of skill was required or that the request to review was complex or difficult warranting the maximum amount allowable. In my view the amount of $250.00 is ‘fair and reasonable’ for the costs of the work concerned.
Accordingly I see no ‘matter of law’ arising from the delegate’s assessment.
Item 4.08 Preparing for a conference
Mr Blain’s solicitor claimed $500.00 pursuant to this Item. Burrangong objected to the claim but conceded that $250.00 was reasonable. The delegate determined that the extent of quantum was in dispute but beyond that nothing more demanding or complex, as to advice or instructions and allowed 1 hour, that is, $250.00.
Mr Blain’s solicitor submitted that the matter was not simple and “the Applicant’s previous solicitor…had a file note reviewing the file and preparing for a teleconference, 2 hours.”
Quantum was the only issue disputed by Burrangong. Mr Blain’s claim was based upon the medical assessment of Dr Conrad and Burrangong disputed the quantum claimed, relying on Dr Davis’ assessment. The matter proceeded from a teleconference to assessment by an AMS. Upon receipt of the MAC Burrangong agreed to pay Mr Blain compensation and requested the cancellation of the proposed further teleconference. No other issues arose. In my view, the delegate’s assessment of complexity accords with the progress of the matter from a preliminary teleconference (which necessitated the review of a limited number of documents and the provision of advice regarding the limited issues in dispute) to finalisation in accordance with the assessment by the AMS.
I find no ‘matter of law’ arising from the delegate’s decision in this regard.
Item 10.01 All work associated with instructing an agent to act on the claim or a matter relating to the claim.
Mr Blain’s solicitor claimed $187.50 for instructing an agent to act on the claim in relation to the lodgement of Directions for Production and ‘to appear’ if documents were produced. Burrongong objected on the basis of lack of clarity and, if the claim related to filing fees it was not recoverable as the Commission accepts documents by DX or mail.
The delegate determined that the attendances were for filing only and filing could occur by mail or DX. The claim was found not ‘reasonable’ and not allowed.
Mr Blain’s solicitor submitted on appeal that it was reasonable to ask SGRIS to file and seal the Application to Resolve a Dispute; to file and serve Directions for Production and to file the Certificate of Service.
These submissions specifically limit this claim to fees incurred as a result of Mr Blain’s solicitor’s decision to engage SGIS to attend the Commission for the purposes of filing and serving documents. In my view, there is no reason why this could not have occurred by the other, less costly means of filing or service permitted in accordance with Rule 19 of the WC Rules. Accordingly, in my view, the incurring of these costs when an alternative and less costly means of filing and service was readily available was not ‘reasonable’.
I find no ‘matter of law’ arising from the delegate’s decision in this regard.
DECISION
Paragraphs two and four of the decision of the delegate dated 17 May 2005 are revoked and the following orders made in there place:
“2. The Applicant’s costs of the proceedings are assessed at $4860.50.
4. The Respondent is to pay the amount of $4860.50 to the Applicant if those costs have not already been paid.”
COSTS
Mr Blain’s solicitor has failed to demonstrate error in the delegate’s decision in respect of the majority of the matters raised on appeal. Accordingly I make no order as to costs of the appeal.
Elizabeth Tydd
Acting Deputy President
24 August 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
1
8
0