Bourke v State Rail Authority of NSW

[2007] NSWWCCPD 31

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Bourke v State Rail Authority of NSW Southern Meats Pty Limited trading as Harden Abattoirs and others [2007] NSWWCCPD 31

APPELLANT:  Errol Bourke

FIRST RESPONDENT:  State Rail Authority of NSW

SECOND RESPONDENT:  Southern Meats Pty Limited trading as Harden Abattoirs

THIRD RESPONDENT:  Spackman Enterprises Pty Limited

FOURTH RESPONDENT:  Edmonds Industries Pty Limited

INSURER (FIRST RESPONDENT):                  State Rail Authority of NSW

INSURER (SECOND THIRD, FOURTH

THIRD RESPONDENTS):  CGU Workers Compensation (NSW) Limited

CGU Workers Compensation (NSW) Limited

FILE NUMBER:  WCC12161-05

DATE OF REGISTRAR’S DECISION:             11 January 2006

DATE OF APPEAL DECISION:  31 January 2007

SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; adequacy of reasons; failure to consider relevant material; Items 4.07; 4.08; 4.09; 4.10; 4.12; 9.01, and Clause 5 of Schedule 6 of the Workers Compensation Regulation 2003.

PRESIDENTIAL MEMBER:  Acting Deputy President Tydd

HEARING:On the papers

REPRESENTATION:  Appellant:      McCabe Partners

First Respondent:      No appearance

Second, Third and

Fourth Respondents: Moray & Agnew

ORDERS MADE ON APPEAL:               1. Paragraphs two and four of the decision of the delegate dated 11 January 2006 are revoked and the following orders are made in their place:

“(i) The Applicant’s costs of the substantive proceedings are assessed in the sum of $16,723.00.
(ii) The First, Second and Third and Fourth Respondents are, therefore, to pay to the Applicant a total amount of $16,723.00 if those costs have not already been paid.”

2. Paragraph one of the delegate’s decision referring to the order for costs and paragraph three of the delegate’s decision disallowing the costs of proceedings are confirmed.

3. The First, Second and , TThird and Fourth Respondents, are to pay the Appellant, Mr Bourke, $275.00 inclusive of GST in respect of his costs in this appeal.

BACKGROUND

Prior proceedings

1. On 10 February 2003 Mr Errol Francis Bourke (‘Mr Bourke’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC6687-03). Mr Bourke named the State Rail Authority of NSW as the First Respondent (‘State Rail’), Southern Meats Pty Limited trading as Harden Abattoirs (‘Harden’) as the Second Respondent; Spackman Enterprises Pty Limited (‘Spackman’) as the Third Respondent and, Edmonds Industries Pty Limited (‘Edmonds’) as the Fourth Respondent. Mr Bourke claimed that he suffered an injury in the course of his employment and sought: weekly benefits compensation pursuant to section 40 of the Workers CompensationAct 1987 (‘the 1987 Act’) from 31 December 2001 and continuing; lump sum compensation pursuant to section 66 totalling $99, 750.00; compensation pursuant to section 67 totalling $33,330.00 and medical and related expenses pursuant to section 60 of the 1987 Act.

1. State Rail; Harden; Spackman and, Edmonds lodged replies to the Application on 25 February 2003. Harden; Spackman and, Edmonds were at the time of the prior proceedings and on this appeal represented by Moray & Agnew Solicitors.

1. Following three teleconferences and referral to two Approved Medical Specialists (‘AMSs’) the dispute was determined at the hearing on 24 September 2004 by a Commission arbitrator (‘the Arbitrator’) who provided extempore orders on that day. The Arbitrator issued a ‘Certificate of Determination’ dated 28 September 2004 confirming the orders made at hearing and entering an award for State Rail in respect of the claim for weekly compensation and ordering Harden, Spackman and Edmonds to pay weekly compensation from 10 March 2003 to 1 September 2004 and $5,300.00 pursuant to section 60 of the 1987 Act up to 1 September 2004. The Arbitrator also ordered: State Rail to pay Mr Bourke a total of $30,000.00 to pursuant to sections 66 and 67 of the 1987 Act; Harden to pay Mr Bourke $5,585.00 to pursuant to section 66; Spackman to pay Mr Bourke $31,285.00 pursuant to section 66 and 67, and Edmonds to pay Mr Bourke $43,180.00 pursuant to section 66 and 67. Harden, Spackman and Edmonds were ordered to pay Mr Bourke’s costs of the Application as agreed or assessed.

1. On 21 July 2004 Mr Bourke’s solicitor lodged an ‘Application for Assessment of Costs’ naming State Rail, Harden; Spackman, and Edmonds as Respondents. In accordance with the Arbitrator’s orders State Rail was not liable to pay costs. State Rail did not lodge a reply. The solicitor for Harden; Spackman, and Edmonds (‘the Respondents’) lodged submissions in reply on 10 August 2005.

1. The Registrar’s decision in relation to this application, by her delegate, a Commission Arbitrator, (‘the delegate’) was made on 11 January 2006. The delegate’s decision was accompanied by a ‘Statement of Reasons’. The decision is set out as follows:

“1.Pursuant to an Order of 24 September 2004 the 2^nd, 3^rd, and 4th Respondents as employers are 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 $14,926.75.

3.The Applicant’s costs of the assessment are not allowed.

4.The Respondent is [sic Respondents are] to pay the amount of $14,926.75 to the Applicant if those costs have not already been paid.”

Lodgement of the appeal

1. On 3 February 2006 Mr Bourke’s solicitor lodged an ‘Appeal from the Registrar’s Determination on Costs’. Mr Bourke’s solicitor again named State Rail, Harden; Spackman, and Edmonds as Respondents.

1. On 15 February 2006 the solicitor for the Respondents lodged submissions in reply to the Appeal. The Respondents are each insured by CGU Workers Compensation (NSW) Limited (‘the Insurer’).  State Rail did not lodge a reply.   

ON THE PAPERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”

1. Neither party has made submissions in respect of the requirement for a formal hearing.  Having regard to the submissions, Practice Directions Numbers 1 and 6 and the documents that are before me 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.

SUBMISSIONS, DISCUSSION AND FINDINGS

Issues in dispute

1. Mr Bourke’s solicitor submits that the delegate erred in failing to consider relevant material; being his submissions dated 24 August 2005 and the substantive file, and further erred in failing to provide adequate reasons for his decision. Mr Bourke’s solicitor also submits that the delegate erred in his determination of the claim made pursuant to Clause 5 of Schedule 6 the Workers Compensation Regulation 2003 (‘the WC Regulation’) as multiple insurers were involved and the matter was complex. Mr Bourke’s solicitor’s submissions in relation to the delegate’s determination of the items claimed pursuant to the Compensation Costs Table (‘the Table’) set out in Schedule 6 of the WC Regulation are summarised below. The Respondents’ solicitor submits that many of the submissions made by Mr Bourke’s solicitor are incomprehensible and/or irrelevant and the appeal does not disclose an error of law. The Respondents’ solicitor also repeats and adopts its earlier submissions.

1. Following consideration of the relevant legislation I will deal with each disputed item in turn. The following matters are in dispute:

·whether the delegate erred in determining Items 4.07; 4.08; 4.09; 4.10; 4.12; 9.01, and 10.01 of the Table, and Clause 5 of Schedule 6 of the WC Regulation;

·whether the delegate erred in failing to consider relevant material, and

·whether the delegate erred in failing to provide adequate reasons for his decision.

The relevant legislation

1. 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 decisions: Orellana Fuentes v Standard Knitting Mills Pty Ltd & Anor [2003] NSWCA 146 (‘Fuentes’); Berger v Moree Plains Shire Council[2005] NSWWCCPD 152 (‘Berger’); Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCCPD 28 (‘Orr’); McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’); Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWWCCPD 30 (‘Flegerbein’), and Dring v Kurmala Home and anor [2006] NSWWCCPD 250 (‘Dring’) and need not be canvassed again in this decision. In Woodbury v Miles [2006] NSWWCCPD 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 [14]”.

1. The order referred to by the delegate in his Statement of Reasons was made on 24 September 2004. Accordingly I apply the reasoning in Woodbury and find that the WC Regulation and Legal Profession Regulation2002 (‘LP Regulation’) apply. Of particular relevance to the matters raised on appeal is clause 84 of the WC Regulation which fixes the maximum costs recoverable by legal practitioners and agents to those set out in the Table. The maximum permissible under the Table has been considered by the Commission in a number of decisions including Berger, Woodbury and Orr. These decisions set out the Commission’s reasoning and application of the authority provided in Fuentes in respect of the maximum amount permissible under the Table being the amount set out in Column 4.

1. Additionally clause 110 provides the Registrar with 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. Clause 119(1) 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. An error of law arises only where the discretion can be said to have miscarried because it has been exercised unfairly and unlawfully (see discussion in Flegerbein at paragraphs 27 – 29).

Did the delegate err in determining Items 4.07; 4.08; 4.09; 4.10; 4.12; 9.01 and 10.01 of the Table and Clause 5 of Schedule 6 of the WC Regulation?

Item 4.07

1. Mr Bourke’s solicitor claimed $200.00 for applying to refer a matter to the two AMSs. The Respondent’s solicitor conceded the claim. The delegate determined that the fact that two referrals took place does not negate the principle that the Table maximums cannot be exceeded and allowed the claim in the maximum of $100.00.

1. On appeal Mr Bourke’s solicitor maintains the claim on the basis that the Table refers to “an” AMS. I rely on the authority provided in Orr in which Deputy President Fleming referred to Clause 1(2) of Schedule 6, the heading for column 4, and the NSW Court of Appeal decision in Fuentes, and stated:

“the monetary values set out in Column 4 of the Table, are the maximum total for an event type in any particular claim, regardless of the number of individual activities that may take place under the event heading [paragraph 38]”.

1. I am satisfied that the Commission issued a Direction dated 2 October 2003 which provided a referral to two AMSs.However in my view the delegate’s reasons demonstrate a proper application of the WC Regulation and I see no ‘matter of law’ arising from the delegate’s determination to allow only the maximum permissible in respect of the claim under Item 4.07 of the Table.

Item 4.08

1. Mr Bourke’s solicitor claimed $500.00 for the costs of preparing for a telephone conference on 12 June 2003; $250.00 for a telephone conference on 8 July 2003; $250.00 for preparing for the telephone conference on 18 July 2003, and as I understand the submissions a further $500.00 for preparing for the conciliation/arbitration conducted on 24 September 2004. The Respondents’ solicitor conceded the maximum provided under the Table of $500.00 and submitted that Mr Bourke’s solicitor incorrectly identified the dates of the events/activities claimed. The delegate relied on the authority provided by the decision in Orr and allowed the claim in the maximum.

1. On appeal Mr Bourke’s solicitor maintains his claim and contends that the maximum permissible is allowable in respect of each conference as the Table refers to “a” conference. Mr Bourke’s solicitor also submits that the delegate erred in failing to consider the Commission’s file in respect of the number of conferences which took place. I have considered the file of the substantive proceedings and whilst I am satisfied that three teleconferences took place and a further teleconference scheduled for 8 July 2003 was aborted, as the Commission Arbitrator was not contactable. I accept the Respondents’ solicitor’s submission that the teleconference conducted on 19 August 2004 was not referred to by Mr Bourke’s solicitor. I also note that a conciliation/arbitration conference was conducted. Accordingly I accept that the matter required more than one teleconference. However, for the reasons set out at paragraph 16 of this decision in my view, the delegate’s decision demonstrates the proper application of the Table and the authorities. The delegate, having allowed the maximum permissible can make no further allowance under Item 4.08 of the Table irrespective of the number of activities that took place. Therefore I reject this ground of appeal.

Items 4.09 and 4.10

1. Mr Bourke’s solicitor claimed $250.00 for the costs of attending and participating in the teleconference conducted on 12 June 2003; $62.50 referable to 15 minutes waiting time for the aborted teleconference scheduled for 8 July 2003; $250.00 for the teleconference conducted 18 July 2004 (sic 2003) and as I understand the submissions a further $1,000.00 for attending and participating in the conciliation/arbitration hearing conducted on 24 September 2004. The Respondents’ solicitor conceded the claim in the maximum of $1,000.00. However the Respondents’ solicitor also noted the claim under Item 4.10 and submitted that Item 4.10 has no application as the matter was not determined to be ‘complex’ by the Arbitrator. The delegate allowed the claim in the amount of $250.00 for the teleconference conducted on 12 June 2003; $62.50 for the aborted teleconference on 8 July 2003 and, $250.00 for the teleconference conducted on 18 July 2003. The delegate considered the submissions in relation to Item 4.10 and disallowed the claim as the matter was not declared to be complex by the Arbitrator.

1. On appeal Mr Bourke’s solicitor maintains his claims. The Respondents’ solicitor confirms that three teleconferences took place on 12 June 2003; 18 July 2003 and 19 August 2004 and Mr Bourke’s solicitor’s failure to make a claim for the teleconference conducted on 19 August 2004. It is not in contention on appeal that the teleconference scheduled for 8 July 2003 was aborted as the Arbitrator was not in attendance. Item 4.09 permits an allowance for “Attending and participating in a conference with an Arbitrator…” (Emphasis added). I am satisfied on the evidence before me that the Arbitrator did not attend the conference as a result of an administrative error. Accordingly, in my view the delegate erred in determining that an allowance should be made for the costs of participating in the aborted teleconference which was not attended by the Arbitrator. 

1. As set out above I am satisfied that three teleconferences were conducted in this matter before Commission arbitrators and the allowance to be made pursuant to this item is referable to an hourly rate. On balance I am satisfied on the evidence before me that the duration of each of these teleconferences would be in the order of one hour and for the three teleconferences I allow the total amount of $750.00. In making this allowance I note the Respondents’ submissions that Mr Bourke’s solicitor “overlooked” the teleconference conducted on 19 August 2004. However I also have regard to the Respondents’ concession of an allowance of $190.00 for this activity. For the reasons set out above I make no allowance for the aborted teleconference. In relation to the claim for participation in the conciliation/arbitration I have regard to the Arbitrator’s Statement of Reasons which record that the Arbitrator used his best endeavours to bring the parties to “an agreed resolution”. Accordingly I am satisfied that the matter did not proceed directly to arbitration. In circumstances where an arbitral hearing occurs a charge can be made for the costs recoverable for the activities under Item 4.11 as well as under Item 4.09 of the Table and there is no double recovery in those circumstances (Fuentes at paragraph 65). I have regard to the maximum total for the type of activity as set out in the Table which has not been exceeded and accordingly the claim under Item 4.09 for participating in the conciliation conference is allowed in the amount of $250.00. Therefore I make a total allowance of $1,000.00 pursuant to Item 4.09 of the Table.

1. I see no error in the delegate’s determination in relation to Item 4.10 in circumstances where conciliation took place and the matter was not declared to be complex by the Arbitrator (see discussion in Ahmed v Transfield Constructions Pty Ltd[2006] NSWWCCPD 318 at paragraphs 25-26). Further I note in passing that the delegate made an allowance of $250.00 pursuant to Item 4.11 for participation in the arbitral hearing conducted on 24 September 2004 which is not raise on appeal. I see no reason to disturb the delegate’s allowance under Item 4.11 of the Table.

Item 4.12

1. On my assessment Mr Bourke’s solicitor claimed a total of $950.00 for the costs of reporting to the client on the outcome of five activities; these being three teleconferences, the conciliation conference and the arbitration. The Respondents’ solicitor submitted that the claim should be allowed for the four teleconferences convened by the arbitrators. However the submissions are silent in respect of the conciliation/arbitration hearing. The delegate determined that only one amount was permissible and allowed the claim in reduced amount of $190.00 for the costs of reporting to Mr Bourke. The delegate, in my view erred in his application of the authority provided in Fuentes and McManus in disallowing the claim for the additional claims.

1. I note that whilst the Commission’s procedures allow for one teleconference. I am satisfied that the arbitrators convened four teleconferences and participated in three teleconferences prior to determining the weekly compensation claim. I accept the reasoning applied by ADP Handley in Piening-Cochrane v PL & MR Wilde t/as Wilde Earthmoving[2006] NSWWCCPD 340 that a solicitor needs to report to the client after each teleconference or conciliation/arbitration and on occasion there may be more than one of each. I also apply the reasoning set out in McManus at paragraphs 22-29 in relation to the Commissions practice of conducting a conciliation conference/arbitral hearing on one day and in doing so I reject the claim that two allowances should be made for this activity which took place on the same day. Accordingly only one allowance should be made. In respect of the aborted teleconference whilst I am not persuaded that the report back to the client would require extensive legal work I am persuaded that the conference was convened, the parties attended and a report back to Mr Bourke was required and on balance I allow the claim. In these unique circumstances I am satisfied that five activities took place which each required a report back to Mr Bourke. In my view more than one allowance for the activities undertaken pursuant to Item 4.12 accords with the exception to the maximum allowance recognised by the Court of Appeal in Fuentes. Accordingly I find that the delegate erred in his determination not to allow the claim. I allow the claim in the amount of $950.00 for a report to Mr Bourke following five activities.

Item 9.01

1. Mr Bourke’s solicitor claimed $625.00 for the costs of the application. Mr Bourke’s solicitor submitted that the dispute related to apportionment of liability and lump sum entitlements between four respondents and therefore the claim should be allowed in the maximum. In further submissions Mr Bourke’s solicitor claim that as the Arbitrator requested that all parties prepare submissions and therefore a legal step was undertaken and the claim should be allowed in the maximum.  The Respondents’ solicitor submitted that no allowance should be made as the item has application to “other proceedings” and there were no “other proceedings”. In respect of costs of the assessment the Respondents’ solicitor submits that the cost claimed are excessive and it follows that the Respondents should not be ordered to pay the applicants cost’s of the assessment.  The delegate determined that there “were the main proceedings here and no other” and as no separate activity or event took place the claim was disallowed. The delegate exercised his discretion in determining that there should be no order for the costs of the assessment.

1. On appeal Mr Bourke’s solicitor maintains the clam for $625.00 and submits that the Respondents’ representative did not provide a response to their memorandum of costs and disbursements and therefore it is assumed that their offer was nil and as he was successful in his application for costs and the costs of the proceedings should be allowed. Mr Bourke’s solicitor also seeks to recover an additional $625.00 (plus GST) for the costs of the appeal. These submissions also make a further claim for costs of $625.00 (plus GST) under the heading “costs”.

1. Item 9.01 of the Table has been considered by the Commission in a number of recent decisions and held to be applicable to the costs of the assessment (see discussion in Chapman v Gosford City Council [2006] NSWWCCPD 4 [ at paragraph 21] and Dixon v National Engineering Pty Ltd [2006] NSWWCCPD 300 [at pagrahraph19]). The facts of the present matter are distinguishable for those before the Commission in Norris v Frank Whiddon Masonic Homes of NSW[2006] NSWWCCPD 357 in which the delegate’s determination not to award the costs of the assessment pursuant to Item 9.01 was confirmed on appeal as it was found that negotiations had been attempted by the respondent. In the present matter there is no evidence or submissions before me that the Respondents’ solicitor attempted negotiations. Rather the facts of the present matter are more closely aligned with those before the Commission in the matter of Green v Chris McLeod Cotton Picking Pty Ltd [2006] NSWWCCPD 51 [at paragraph 30]. However as distinct from the facts present in that case Mr Bourke’s solicitor’s claim was not awarded in an amount significantly greater than that conceded by the Respondents’ solicitor. On my assessment Mr Bourke’s solicitor initially claimed $34,464.05 and in later submissions claimed $32,126.75. The Respondents’ solicitor conceded $15,088.00 and the delegate awarded $14,926.75. Whilst I accept Mr Bourke’s solicitor’s submissions that there is no evidence that the Respondents attempted to negotiate a settlement I am not persuaded that the delegate erred in his discretion not to award costs in circumstances where the claim greatly exceeded the award and the Respondent conceded an amount greater than that ultimately awarded by the delegate.

1. Mr Bourke’s solicitor’s claim for the costs of the appeal is dealt with below.

Item 10.01

1. Mr Bourke’s solicitor claimed $187.50 for the costs of instructing an agent to act in proceedings and the activities referred to are filing, photocopying documents and claims for legal professional privilege. The Respondents’ solicitor submitted that no entitlement arises in relation to inspecting/copying documents and filing by mail or document exchange is permissible. The delegate relied upon the authority provided by the decision in Dunn in disallowing the claim.

1. On appeal Mr Bourke’s solicitor submits that he was required to forward numerous letters to the agent and the claim should be allowed in full. Deputy President Fleming dealt with this issue in Dunn at paragraph 41 and held that to allow the recovery of fees paid to an agent for inspection and photocopying of documents produced under direction fell within the type of activity envisaged under Item 4.05 of the Table and to allow the claim would lead to recovery of an amount exceeding the maximum allowable. I apply this authority in finding that the delegate did not err in his determination in circumstances where the claim under Item 4.05 was allowed in the maximum. Additionally I note that an Items 4.01, 4.02; 4.03A, and 4.03B (relating to lodgement and service of documents) were all allowed in either the amount claimed or the maximum permissible. I apply the reasoning set out in Dunn and Flegerbein in rejecting this ground of appeal.

Clause 5 of Schedule 6

1. Mr Bourke’s solicitor claimed 50% of costs against the First, Second, and Third and Fourth Respondents pursuant to clause 5 of Schedule 6 of the WC Regulations, being a total of 150% as there were four respondents to the substantive proceedings. In later submissions provided in response to the Respondents’ submissions Mr Bourke’s solicitor repeated his claim of “150% (3 additional Respondent’s)” and submitted that the matter involved four respondents in total (and therefore 50% is claimed for each additional party). It was also submitted by Mr Bourke’s solicitor that the employment was not related to one employment situation; it was complex and different representatives and insurers were involved. The Respondents’ solicitor submitted that an increase of 50% should be made in respect of Items 1.02 and 4.01 only as it is appropriate to identify those items which involved additional work because of there being more than one insurer and allow the appropriate percentage. Further the employers, insurers and representatives were effectively the same. The delegate noted that there were only three respondents subject to the order for the payment of costs and that they were effectively a single employer with a singular insurer and representative. However the delegate stated that he was “prepared to take into account the historical inheritance by NRMA from FAI of the Respondent insurance obligations (as submitted by Mr Bourke’s solicitor in submissions dated 24 August 2005) and that the substantive proceedings were not entirely straightforward”. Accordingly the delegate exercised his discretion to allow a 50% increment in the overall profit costs allowed being a total of $2,840.25.

1. On appeal Mr Bourke’s solicitor submits that the delegate erred in his determination as the Second Respondent is a separate identity to the Third and Fourth Respondents and the additional work required in proceeding against four respondents should be reflected in the allowance. Further the delegate erred in not considering the substantive file which provides relevant evidence of the substantive proceedings.

1. Clause 5 Schedule 6 has been considered by the Commission in a number of recent decisions and I adopt the reasoning set out in Dring in finding that the reference to 50% “per party” in Clause 5 is a reference to the “maximum costs in respect of the matter” and it is not a percentage that is allowed automatically regardless of the nature of the claim or the reasonableness of the costs incurred.

1. In considering Mr Bourke’s solicitor’s submissions that the delegate erred in the exercise of his discretion I apply the authority provided in McManus at paragraph 20 that:

   “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...”

2. I agree with the delegate’s assessment that the proceedings were not entirely straight forward given the number of teleconferences conducted, the number of respondents named and the referral to two AMSs. Further I accept the delegate’s finding that the Second, Third and Four Respondents who were ordered to pay Mr Bourke’s cost were jointly represented in proceedings and that these three respondents are liable for the costs of the proceedings as ordered by the Arbitrator. I also note that the delegate observed the number of insurers involved in proceedings and following his consideration of all of these factors he exercised his discretion to award an additional 50% of the global costs for the activities undertaken. I also note in passing that on appeal CGU Workers Compensation (NSW) Ltd is named as the Respondents’ insurer.

1. On my assessment the delegate correctly considered the issue of multiple parties as required by Clause 5 of Schedule 6 of the WC Regulation and correctly referred to the number of insurers involved in proceedings. Accordingly I am not persuaded that the delegate erred in applying his discretion. In my view he considered all of the relevant factors and determined to allow an amount less than the maximum permissible and, whilst I accept that the matter involved a degree of complexity I am not persuaded that the degree of complexity warranted an allowance in the maximum permissible. I therefore reject this ground of appeal.

Did the delegate err in failing to consider relevant material?

1. Mr Bourke’s solicitor submits that the delegate failed to consider his submissions dated 24 August 2005 and the Commission’s substantive file and this constitutes an error of law.

1. The delegate’s reasons refer to “various submissions” made by the parties and as discussed at paragraph 32 of this decision the delegate considered Mr Bourke’s additional submissions dated 24 August 2004 in his reasons for decision.

1. In the matter of Bar Beach Bowling Club Ltd v McGill [2006] NSWWCCPD 2 (‘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 [at paragraph 22] 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. As distinct from the facts before the Commission in Bar Beach I am not persuaded, for the reasons set out above that the delegate failed to consider the Mr Bourke’s solicitor’s additional submissions. I therefore reject this ground of appeal.

1. In relation to Mr Bourke’s solicitor’s submissions that the delegate erred in not considering the Commission’s record of the substantive proceedings I see no error in the delegate’s determination of the application in circumstances where the events/activities undertaken in pursuit of the original claim giving rise to the costs application were addressed by both parties in submissions. Further, Mr Bourke’s solicitor has failed to identify any document which would materially alter the outcome of proceedings before the delegate. On my assessment copies of the relevant documents were before the delegate and considered by the delegate in compliance with Clause 103 of the WC Regulation. I therefore reject this ground of appeal.

Did the delegate err in failing to provide adequate reasons for his decision?

1. Mr Bourke’s solicitor submits that the delegate failed to provide adequate reasons for his decision. The submissions do not identify any specific aspect of the decision in support of this ground of appeal.

1. The adequacy of reasons must be considered relative to the nature of the decision and the decision maker (Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6). The delegate was required to assess a claim for in excess of $30,000.00 and in the context of the Commission, where proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. In these circumstances lengthy written reasons will not generally be necessary to clearly and concisely convey to the parties, who are familiar with the case, the reasons for the decision. The decision extends over some twelve pages, provides references to the authorities relied upon and clearly demonstrates that the delegate applied the mandatory considerations required of him in accordance with the WC Regulation. In my view the delegate’s reasons for decision in relation to Clause 5 of Schedule 6 of the WC Regulation contained at paragraphs 7 to 11 and again at pages 8 to 10 clearly refer to the submissions and provide a cogent basis for the allowance made by the delegate.

1. Therefore I am not persuaded that the delegate’s reasons are inadequate and that their inadequacy sufficiently demonstrates that the delegate failed to exercise his statutory duty, to fairly and lawfully determine the application (Cargill Meat Processors Pty Limited v Clark[2005] NSWWCCPD 7). Accordingly I find no ‘matter of law’ arising in relation to the adequacy of the delegate’s reasons.

Summary

1. I note in passing that the delegate disallowed the claim for GST and whilst this is not raised on appeal I confirm the delegate’s determination in this regard as ‘the services were performed before the amendment to the WC Regulation which took effect’ (see discussion in Albarracin v Pirelli Cables Australia Ltd [2006] NSWWCCPD 351 at paragraph 17) and the amendments took effect after the date of ‘assessment’ by the delegate from 17 March 2006. I have determined the professional costs challenged by Mr Bourke’s solicitor as follows:

The delegate’s allowance of the maximum of $100.00 for the claim under Item 4.07 is confirmed.
The delegate’s allowance of the maximum of $500.00 for the claim under Item 4.08 is confirmed.
The delegate’s total allowance of $562.50 under Item 4.09 is revoked.
It is fair and reasonable to allow a total of $1,000.00 for participating in the teleconferences and the conciliation conference under Item 4.09 of the Table.
Item 4.10 has no application and I confirm the delegate’s disallowance of the claim.
The delegate’s allowance of $190.00 for Item 4.12 is revoked.
It is fair and reasonable to allow $950.00 for reporting to Mr Bourke following the four teleconferences and the conciliation conference.
The delegate’s disallowance of the claim under Item 9.01 is confirmed.
The delegate’s disallowance of the claim under Item 10.01 is confirmed.
The delegate’s allowance of 50% of the costs of the professional costs under Clause 5 of Schedule 6 of the WC Regulation is confirmed. However given that I have increased the professional costs I must therefore increase the award under Clause 5. I have increased the delegate’s award by $1,197.50 in respect of professional costs and therefore I allow a further 50% of this amount being $598.75. Accordingly I award a further $598.75 under Clause 5 of Schedule 6 of the WC Regulation.

1. The Delegate’s determination of $14,926.75 should therefore be increased by a total of $1,796.25 to $16,723.00.

DECISION

1. Paragraphs two and four of the decision of the delegate dated 11 January 2006 are revoked and the following orders are made in their place:

“(i) The Applicant’s costs of the substantive proceedings are assessed in the sum of $16,723.00.
(ii) The First, Second and, Third and Fourth Respondents are, therefore, to pay to the Applicant a total amount of $16,723.00 if those costs have not already been paid.”

1. Paragraph one of the delegate’s decision referring to the order for costs and paragraph three of the delegate’s decision disallowing the costs of proceedings are confirmed.

COSTS

1. The Appellant has been, in part successful on appeal. In my view, it is reasonable to order that the First, Second ,and Third and Fourth Respondents pay Mr Bourke’s costs in the appeal in the sum of $275.00 inclusive of GST.

1. The appropriate order therefore is: “The First, Second, and Third and Fourth Respondents, are to pay the Appellant, Mr Bourke, $275.00 inclusive of GST in respect of his costs in this appeal.”

Elizabeth Tydd

Acting Deputy President

31 January 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ELIZABETH TYDD ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE