Burrell v Namoi Cotton Co-Operative Limited
[2007] NSWWCCPD 15
•17 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Burrell v Namoi Cotton Co-Operative Limited [2007] NSWWCCPD 15
APPELLANT: Rhonda Burrell
RESPONDENT: Namoi Cotton Co-Operative Limited
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC8817-05
DATE OF REGISTRAR’S DECISION: 8 November 2005
DATE OF APPEAL DECISION: 17 January 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claim under Items 1.01, 2.04, 2.06, 4.08, 4.09, 4.11, 4.12 and 10.01 of the Compensation Costs Table in Schedule 6 of the WorkersCompensation Regulation 2003; disbursements - investigator’s report, applicant’s and solicitor’s travel expenses.
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: 1. The Registrar’s determination of a Claim for Costs in this matter, dated 8 November 2005 is amended in accordance with these reasons.
2.No order as to costs of the appeal.
BACKGROUND
Substantive Proceedings
On 13 October 2004 Rhonda Burrell (‘Ms Burrell’) commenced proceedings in the Workers Compensation Commission (‘the Commission’) against Namoi Cotton Co-Operative Limited (‘Namoi Cotton’) claiming weekly benefits compensation, medical and related expenses and lump sum compensation.
A teleconference was held with the parties on 27 January 2005 and as the matter was unable to be resolved it was set down for conciliation/arbitration on 11 April 2005. On this occasion the parties reached agreement and a Certificate of Determination was issued on 26 April 2005 which included an order that Namoi Cotton pay Ms Burrell’s costs ‘as agreed or assessed’.
The parties did not agree on the costs and Ms Burrell’s solicitor lodged an Appeal for Assessment of Costs on 8 June 2005.
The costs were determined by the Registrar’s delegate, a Commission Arbitrator (‘the Delegate’) on 8 November 2005. The decision is as follows:
“1. Pursuant to an order for costs made on 26 April 2005, the Respondent is liable to pay the Applicant’s costs as agreed or assessed.
2.The Applicant’s costs of the substantive proceedings are assessed in the sum of $7,439.35.
3.No order as to the costs of the assessment.
4.The Respondent is, therefore, to pay to the Applicant a total amount of $7,439.35, if those costs have not already been paid.”
On 24 November 2005 Ms Burrell lodged an appeal from the Delegate’s decision.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(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.”
Namoi Cotton submit that the matter should be dealt with ‘on the papers’ whilst Ms Burrell is silent on this issue.
I have both the Commission file regarding the cost dispute and the appeal file. In addition I have the substantive file and 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.
ISSUES IN DISPUTE
Ms Burrell’s solicitor submits that the Delegate erred in relation to professional costs and claim under Item 1.01, Item 2.04, Item 2.06, Item 4.08, Items 4.09 and 4.11, Item 4.12 and Item 10.01.
Ms Burrell’s solicitor further submits that the Delegate erred in relation to the following disbursements:
·Private investigator’s report costs;
·Ms Burrell’s travel expenses, and
·Solicitor’s travel expenses
PRELIMINARY
Part 19 of the Workers Compensation Regulation 2003 (‘the Regulations’) govern both the procedure for assessment of costs and appeals against such an assessment.
Clause 119(1) of the Regulations limits the grounds on which an appeal may be made against the determination of the Registrar on an assessment of costs to a matter of law. As Deputy President Fleming stated in Berger v Moree Plains Shire Council [2005] NSWWCCPD152 (‘Berger’s case’):
“The determination of these questions by a costs assessor, is a matter of discretion and, as I said in Nebauer v Hunter Area Health Service [2004] NSWWCCPD 60 (at para 19):
“Only where the discretion can be said to have miscarried because it was exercised unfairly and unlawfully, taking into account the scope of the discretion, and the objects or purpose for which it is conferred, would it be an error of law (Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 758; R v Australian Broadcasting Tribunal; ex p 2HD Pty Ltd (1979) 144 CLR 45 at 49; Sheridan v David Anthony Clarke t/as Freestyle Marine Sports [2003] NSWWCCPD9).””
SUBMISSIONS, DISCUSSION AND FINDINGS
Professional costs
Item 1.01
Item 1.01 provides for a maximum amount of $600 (at the relevant time) for ‘obtaining and reviewing medical reports’. Ms Burrell’s solicitor claimed $600 under this Item in respect of 5 reports. Namoi Cotton objected on the basis that there was no evidence to identify when the reports referred to by Ms Burrell’s solicitor were obtained and reviewed. The Delegate disallowed the claim because Ms Burrell’s solicitor refused to provide details in relation to the reports and accordingly he was not satisfied “that it was fair and reasonable to obtain and consider the reports in question”.
In the submissions on appeal, Ms Burrell’s solicitor states that one of the medical reports in respect of those claimed was provided to Namoi Cotton in an Application to Admit Late Documents and that 7 other reports were attached to documents produced in the proceedings. It is further submitted that the Delegate should have requested copies of documentation from Ms Burrell’s solicitor and/or referred to the Commission’s substantive file in the proceedings which would have contained the various medical reports.
I do not agree with this submission as the responsibility for making out an entitlement to the costs Item rests with Ms Burrell’s solicitor. I agree with the Delegate that Ms Burrell’s solicitor’s position was unreasonable as Namoi Cotton’s solicitor had requested particulars (7 days after receiving the bill of costs) asking when the medical reports referred to in Item 1.01 were obtained and reviewed. There was no response from Ms Burrell’s solicitor other than the filing of the ‘Application for Assessment of Costs’ in the Commission. Namoi Cotton’s solicitor then filed submissions in response to the Application pointing out that Ms Burrell’s solicitor had declined to provide particulars of when the medical reports were obtained and reviewed. Ms Burrell’s solicitor then filed submissions in reply and again provided no particulars.
In the submissions on appeal Ms Burrell’s solicitor has now provided particulars of the medical reports obtained and reviewed and has also stated that copies of those reports are annexed to the submissions (those reports do not appear to be annexed). There is no explanation as to why this information (and copies of the medical reports) is provided at this late stage. In my view this effectively represents an attempt to introduce fresh evidence.
As stated above, Clause 119 of the Regulations provides that an appeal against an assessment of costs is on a matter of law only. There is no provision for the admission of fresh evidence, unless the Presidential Member “remits its decision on the question to the Registrar and orders the Registrar to re-determine the application”. Clause 119(4) then provides:
“(4) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.”
I disallow this fresh evidence. For the reasons stated above I am not satisfied there was any error on the part of the Delegate, as he determined the matter on the available evidence.
Item 2.06
Item 2.06 allows a maximum amount of $500 (at the relevant time) for ‘requesting a review of the claim from the insurer, prior to referral of the matter to the Commission’. Ms Burrell’s solicitor claimed the sum of $500 in the bill of costs. Namoi Cotton objected to the claim on the basis that the insurer’s file contained no request for review and the claim should not be allowed until the correspondence is sighted. The Delegate disallowed the claim as Ms Burrell provided no evidence in support.
On 29 July 2005 Ms Burrell’s solicitor filed submissions in reply to Namoi Cotton’s submissions and annexed copies of the correspondence to the insurer and Namoi Cotton seeking a review. This material was included in the file that was before the Delegate when he determined the matter, however it appears to have been overlooked.
In their submissions in response to the appeal, Namoi Cotton state that the Delegate correctly determined the matter on the available evidence, however they appear to have also overlooked the annexures contained in Ms Burrell’s solicitor’s submissions in reply of 29 July 2005 which I have referred to above.
Failing to consider the material provided by Ms Burrell’s solicitor in the submissions in reply was an error of fact and should be reviewed. The correspondence sent to both the insurer and Namoi Cotton is 3 pages in length and dated 11 June 2004. The claim is in fact made for the first time in the correspondence. It sets out the claim made and attaches a Draft Application to Resolve a Dispute. Although Ms Burrell’s solicitor has requested a review of the claim in this correspondence, clearly there is no claim to be reviewed other than that contained in the same correspondence. I am not satisfied that a reasonable request to review the claim was made and therefore disallow the amount sought under this Item.
Item 4.08
This Item provides a maximum amount of $500 (at the relevant time) for ‘preparing for a conference (including providing advice to client)’. Ms Burrell’s solicitor claimed a total of $750 in respect of both the teleconference and the conciliation/arbitration. The Delegate reduced the claim to $500 on the authority of Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28 (‘Orr’). In this matter Deputy President Fleming considered the maximum amount allowed for events 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 that event heading.”
In his submissions on appeal Ms Burrell’s solicitor has increased the claim under this Item from $750 to $1,000. It is submitted that it is an error of law to limit the costs recoverable to one conference to resolve a particular dispute when that is not provided for in the Regulations. Having regard to the authority of Orr I see no error of law in the Delegate’s determination to allow the sum of $500 under this Item.
Items 4.09 and 4.11
Item 4.09 allows $250 per hour, up to a maximum of $1,000, for ‘attending and participating in a conference with an Arbitrator (other than an arbitration hearing or where Item 4.10 applies)’.
Item 4.11 provides for a maximum of $250 for attending and participating in an arbitration hearing (other than where Item 4.10 applies). Item 4.10 only applies where the Arbitrator determines the matter is complex and no such determination was made in Ms Burrell’s matter.
Ms Burrell’s solicitor claimed a total of $1,500 under Items 4.09 and 4.11. $250 was claimed for the teleconference and $1,250.00 in respect of the conciliation/arbitration. The Delegate allowed the sum of $687.50 based on a teleconference of 1 hour and the conciliation/arbitration proceeding for 1 hour 45 minutes. In determining the matter the Delegate noted the entitlement under both Items is assessed on the basis of time spent.
In his submissions on appeal Ms Burrell’s solicitor concedes the Delegate was correct in allowing $250 for the teleconference. In regards to the conciliation/arbitration, it is submitted that because Ms Burrell’s solicitor is located in the country, travel time to attend and participate in the conciliation/arbitration should be taken into account when calculating the time spent. It is not submitted that the time spent at the conciliation/arbitration itself was any longer than the 1 hour 45 minutes allowed by the Delegate.
Namoi Cotton submit in reply that the Delegate was correct in determining the entitlement in accordance with the actual time spent at the conciliation/arbitration. I agree with the submission by Namoi Cotton as the Table at Items 4.09 and 4.11 specifically refers to the activity of ‘attending and participating’ in a conference/arbitration hearing. “Travelling time is not identified as an activity and is provided for under Item 10.02 of the Table” (Fenton v PD & GM Gardiner trading as V6 Conversions [2006] NSWWCCPD 325). Accordingly I see no error or law or discretion in the determination of the Delegate in regard to these Items.
Item 4.12
This Item provides for a maximum amount of $190 (at the relevant time) for ‘reporting to the client on the outcome of a conference or arbitration’. Ms Burrell’s solicitor claimed the sum of $570 in respect of three reports to the client and the Delegate allowed the amount of $380 on the authority of Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282 (‘Fuentes’).
In McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’ case) Deputy President Fleming followed Fuentes and determined that so far as Item 4.12 is concerned, the maximum amount of $190 may be allowed after the telephone conference and a further $190 allowed after the conciliation/arbitration. However, Deputy President Fleming stated:
“I am of the view that only one amount is recoverable under Item 4.12 after a conciliation and arbitration conference held on the same day.
Ms Burrell’s solicitor submits that he is entitled to $190 for the teleconference, $190 for the conciliation and a further $190 for the arbitration. The conciliation and arbitration were in fact one event held on the same day. Accordingly I reject his submission and see no error of law on the part of the Delegate in regard to this Item.
Item 10.01
The Table (at the relevant time) allowed a maximum amount of $187.50 under this Item for ‘all work associated with instructing an agent to act on the claim or a matter relating to the claim’.
Ms Burrell’s solicitor claimed $187.50 for instructing an agent to file documents at the Commission and to inspect and photocopy documents. The Delegate disallowed the claim stating that documents can be filed at the Commission by mail and the activity of filing comes under Item 4.01, for which Ms Burrell’s solicitor has recovered the maximum amount. The Delegate also stated that the inspection and photocopying of documents cannot be claimed as a disbursement over and above the allowance under Item 4.05.
In his submissions on appeal Ms Burrell’s solicitor states that he forwarded letters to St George Registration & Investigation Services Pty Limited (‘St George’) asking them to file documents in the Commission on 30 September 2004, 15 October 2004 and 31 January 2005. St George was also instructed to inspect documents produced in the Commission.
In his submissions on appeal Ms Burrell’s solicitor states that the Delegate erred in his decision because Item 4.01 deals with the preparation of the Application to Resolve a Dispute and the sealing of that document by the Commission. I do not accept this submission as this Item specifically relates to, among other things, the lodging of an Application to Resolve a Dispute.
It is further submitted that Item 4.05 refers to work done by the solicitor and not to any costs incurred by the agent in inspecting documents produced in the Commission. Again, I do not accept this submission as Item 4.05 specifically refers to, among other things, reviewing documentation produced under direction of the Commission. To allow Ms Burrell’s solicitor to recover fees paid to an agent for the inspection and photocopying of documents in addition to costs under Item 4.05 would involve recovery of an amount exceeding the maximum (Dunn v Port Macquarie RSL Club Ltd [2004] NSWWCCPD 33).
For the above reasons I am not satisfied that there was any error of law or discretion on the part of the Delegate under this Item.
Disbursements
Private Investigator’s Fee
In the Application for Assessment of Costs, Ms Burrell’s solicitor claimed the sum of $4,486.34 as a disbursement to cover the cost of a Private Investigation Report.
The Delegate reduced the claim to $1,100.00 inclusive of GST and in his Reasons stated that “fees for an investigator are claimable under Clause 82(b) of the Workers Compensation Regulation 2003”.
It is submitted by Ms Burrell’s solicitor that as Clause 82(b) of the Regulations specifically excludes fees for investigator’s reports from Part 19 of the Regulations, there is no limit on the fees associated with an investigator’s report. It is further submitted that the Delegate erred because he determined $1,100.00 as a fair and reasonable amount and this suggests the Delegate considered the matter under Rules 105 and 106 of Part 19 of the Regulation.
Namoi Cotton submits that in assessing the entitlement of $1,100.00, the Delegate did not err in the exercise of his discretion.
Although I agree with the submission that Clause 82(b) of the Regulations does exclude investigator’s fees from Part 19, I do not accept the further submissions. The costs of an investigation report must be assessed in accordance with the Legal Profession Act 2004 (‘the LP Act’) and the Legal Profession Regulation 2005 (‘the LP Regulation’) (Berger’s case). Deputy President Fleming in Berger’s case stated the test in the LP Regulation is as follows:
“The correct test is whether the disbursement was ‘reasonably incurred or was reasonable in amount’ and whether the total amount allowed was a ‘fair and reasonable’ amount in relation to the value of the service provided.”
As I stated in Chakti v H & B Construction Services Pty Limited [2006] NSWWCCPD 358 I see no error in the Delegate’s use of the terminology ‘fair and reasonable amount’ having regard to the test as referred to above in Berger’s case.
The Delegate, after correctly stating that fees for an investigator are claimable under Clause 82(b) of the Regulation further stated:
“It is not appropriate to claim for work performed by an investigator that was in fact legal work covered by and encapsulated in the events and activities set out in the Table.
Thus, for example, the costs involved in obtaining a worker’s statement are encapsulated and absorbed by Item 2.01: Nebauer v Hunter Area Health Service [2004] NSWWCCPD 60 at [18] [Nebauer’s case]. Similarly, advising the Applicant on the legislation or merits of the claim is legal work recoverable only by the solicitors under the items in the Table. On the other hand, it is legitimate to retain an investigator to gather other information not otherwise obtainable from the employer or the Applicant.”
The Delegate then disallowed the statement of Ms Burrell which was prepared by the investigator.
Deputy President Fleming in Berger’s case took the “opportunity to revisit” her decision in Nebauer where she disallowed a worker’s statement prepared by an investigator on the basis that it was encompassed by Item 2.01. In Berger’s case the Deputy President said:
“The reasoning in Nebauer as to whether the worker is to be considered a ‘witness’ for the purpose of 2.05 is not correct when the costs regime of Items 2.01, 2.04A and 2.05 is considered together. The better view is that the worker is included in the term ‘witness’ in the table…
The fee for an investigator’s report, whether to obtain witness statements or other factual investigations (including a statement from the worker), may be claimed pursuant to clause 82(b) of the WC Regulation. The test of whether such a report is claimable will, as discussed above, essentially be one of ‘reasonableness’. In most cases, it will not be reasonable to obtain witness statements by way of an investigator’s report, where the legal practitioner or agent has already obtained those statements, either at the time of taking instructions or at a later time, being before an application to the Commission is filed.”
The cost of obtaining a witness statement, including that of the worker, is normally covered under Item 2.01 or Item 2.04A of the Regulations. In the Application for Assessment of Costs, the claim under Item 2.01 did not include the cost of witness statements, and no claim was made under Item 2.04A. As Ms Burrell’s statement was taken by an investigator it could not be claimed under Item 2.04A.
Although not raised by either party, it was an error of law for the Delegate to disallow the worker’s statement prepared by the investigator and accordingly it is appropriate that I make such determination in relation to the application as in my opinion, should have been made by the Delegate (Clause 119 of the Regulation).
The statement of Ms Burrell was taken over the phone by an investigator and took 2 hours 15 minutes. As a guide, Item 2.04A (at the relevant time) allowed $100 per hour for taking a witness statement up to a maximum of $150. Having regard to the circumstances of the case including:
·Liability was in issue;
·The investigator is not a legal practitioner;
·The conference was conducted by phone;
·The time taken for the statement, and
·The issues dealt with in the phone conference which had or should have been dealt with by the solicitor when taking initial instructions.
I consider it reasonable to allow the additional sum of $150 (plus GST of $15) for the time taken in relation to Ms Burrell’s statement.
Except for Ms Burrell’s statement I am of the view that the Delegate exercised his discretion both fairly and lawfully in awarding the sum of $1,100.00 inclusive of GST. The Delegate considered that was a “fair and reasonable amount” for the investigator’s report which included a business name search and the investigation of employment and wages matters.
Applicant’s travel costs and expenses
Ms Burrell claims $620 for costs and expenses incurred in order to attend a medical examination in Sydney which was arranged by her solicitor. The claim consisted of the following:
$420.00 Travel expenses
$80.00 Sustenance
$120.00 Accommodation
$620.00
The Delegate allowed the sum of $420 for the travel expenses but refused the other expenses as he was not satisfied as to that part of the claim.
The Delegate stated that Namoi Cotton had requested accounts for the sustenance and accommodation but Ms Burrell’s solicitor replied “There is no requirement to provide the …sustenance and accommodation, it is similar to a loading”. The Delegate did not agree with this assertion by Ms Burrell’s solicitor.
In the submissions on appeal Ms Burrell’s solicitor states that such travel costs are excluded from the Regulations pursuant to Clause 82(i) and accordingly they are not subject to determination by the Delegate pursuant to Rule 110 of the Regulations.
I agree with this submission, however Clause 113 of the LP Regulations applies to the assessment of costs for the worker’s travel expenses. “The determination of the total amount must be a ‘fair and reasonable’ value for the service provided” (Berger’s case).
As stated above, the Delegate was not satisfied in regards to the claim for sustenance and accommodation. It is incumbent on Ms Burrell to make out her entitlement in this regard. As referred to in paragraph 12 above, the appeal is on a question of law. The Delegate exercised his discretion having regard to the material before him and I am not satisfied that this was done either unfairly or unlawfully.
Solicitor’s travel costs and expenses
Solicitor’s travel expenses are claimed under Item 10.02 and the costs of accommodation under Item 10.03. At the relevant time travelling expenses were allowed at $0.59 per km except for the first 50kms and accommodation allowed at $120 for each night. There is no allowance for sustenance.
Ms Burrell’s solicitor claimed the following amount to travel from Young to Sydney and return in order to attend the conciliation/arbitration:
Travel costs = $501.50
Accommodation = $120.00
Sustenance = $ 75.00
$696.50
The Delegate reduced the claim to $501.50 because he was not satisfied in regards to the claim for accommodation. Again Namoi Cotton had sought particulars of the claim and Ms Burrell’s solicitor had refused to provide such particulars stating that it is not a requirement, being similar to a loading.
On appeal Ms Burrell’s solicitor submits that Item 10.03 is an amount based allowance and therefore he is entitled to $120 for each night’s accommodation regardless of whether he stays in the Hilton or a caravan park.
Again it was incumbent on Ms Burrell’s solicitor to make out an entitlement in regard to this Item. I am not satisfied that the Delegate erred in the exercise of his discretion.
Item 2.04
In the ‘Application for Assessment of Costs’ Ms Burrell’s solicitor sought the sum of $300 in respect of ‘obtaining and reviewing medical reports’. In their submissions in Reply Namoi Cotton did not dispute this claim and accordingly the matter was not dealt with by the Delegate.
Item 2.04 allows for a maximum amount of $600 and Ms Burrell’s solicitor now claims a further $300 in the submissions on appeal. The further claim is based on recent decisions of the Registrar which Ms Burrell’s solicitor is now aware.
I will not allow this further claim as the matter was not determined by the Delegate and as such there is no error of law.
The Delegate’s decision not to allow costs
The Delegate gave the following reasons for not ordering Namoi Cotton to pay Ms Burrell’s costs:
“The Applicant was less than co-operative in supplying the Respondent with requested information as to the costs claimed. The Respondent had no choice but to force the dispute to assessment. In those circumstances I consider the Respondent should not be required to pay the Applicant’s costs of the assessment.”
In his submissions on appeal Ms Burrell’s solicitor seeks costs of the initial proceedings and refers to various decisions of the Registrar where the worker succeeded in obtaining a costs order.
Having read the correspondence and the various submissions in this matter I can well understand the Delegate’s determination in relation to costs. I have referred to some of those submissions and correspondence above and I see no error in the exercise of the Delegate’s discretion in this regard.
DECISION
As a result of my review the Delegate’s determination in relation to disbursements is increased as follows:
·Private investigator’s fee; an additional $165 (inclusive of GST)
The Delegate’s determination of $7,439.35 should therefore be increased by $165 to $7,604.35.
The Registrar’s determination of a Claim for Costs in this matter, dated 8 November 2005 is amended in accordance with these reasons.
COSTS
Namoi Cotton seeks costs in the appeal on the basis that Ms Burrell’s solicitor “has delayed the finalisation of this matter and has wasted both the Commission’s and the Respondent’s time in providing lengthy and irrelevant submissions”.
Ms Burrell has been largely unsuccessful in this appeal and in my opinion no order should be made as to costs.
I make no order as to the costs of the appeal.
Julian Martin
Acting Deputy President
17 January 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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