Dellar v Jim Morrissey Bricklaying Pty Limited trading as James Morrissey
[2007] NSWWCCPD 11
•12 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Dellar v Jim Morrissey Bricklaying Pty Limited t/as James Morrissey [2007] NSWWCCPD 11
APPELLANT: Peter John Dellar
RESPONDENT: Jim Morrissey Bricklaying Pty Limited t/as James Morrissey
INSURER:CGU Workers Compensation (NSW)
FILE NUMBER: WCC11027-05
DATE OF REGISTRAR’S DECISION: 9 November 2005
DATE OF APPEAL DECISION: 12 January 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; disbursements: fees for an investigation report, medical reports and travel expenses. Items 2.04; 2.05; 2.06; 4.02; 4.07; 4.08; 4.09; 4.11; 4.12, 9.01 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: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL: 1. Paragraphs one, two and four of the decision of the Registrar, dated 9 November 2005, are revoked and the following decision is made in their place:
“(i) Pursuant to the consent orders dated 14 September 2005, the Respondent Morrissey is liable to pay the Applicant’s costs as agreed or assessed.”
(ii) The Applicant’s costs of the substantive proceedings are assessed in the sum of $10,187.40.(iii) The Respondent is, therefore, to pay to the Applicant a total amount of $10,187.40 if those costs have not already been paid.”
2. Paragraph three of the delegate’s decision, making no order for the costs of the assessment is confirmed.
3. The Respondent Morrissey pay the Appellant Mr Dellar, $275.00 inclusive of GST in respect of his costs in this appeal.
BACKGROUND
On 24 May 2004 Peter John Dellar (‘Mr Dellar’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC8210-04). Mr Dellar named Jim Morrissey Bricklaying Pty Limited t/as James Morrissey (‘Morrissey’) as the Respondent employer and claimed that as a result of the nature and conditions of his employment as a bricklayer from 29 July 2002 to 20 August 2002 he suffered an injury to his neck; back; right and left hand in the form of carpal tunnel syndrome and, sexual impairment. Mr Dellar also claim to have suffered a frank injury on 20 August 2002 to his back; neck; right and left arm and hands in the course of his employment. Mr Dellar claimed: weekly compensation from 5 June 2004 to date and continuing; a general order pursuant to section 60; $95,000.00 pursuant to section 66 and $40.000.00 pursuant to section 67 of the Workers CompensationAct 1987 (‘the 1987 Act’).
Morrissey lodged a Reply to the application on 11 June 2004 in which it disputed all aspects of the claim. Two teleconferences were conduced before a Commission Arbitrator (‘the Arbitrator’) prior to the matter proceeding to determination. At the teleconferences procedural directions were made. The conciliation/arbitral hearing was conducted on 14 October 2004. The Arbitrator reserved his decision and issued a Certificate of Determination dated 10 November 2004 in which he ordered Morrissey to pay Mr Dellar weekly compensation payments, medical expenses and costs. The Arbitrator also referred Mr Dellar for assessment by two Approved Medical Specialists (‘AMSs’) in accordance with section 321 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The referral was to an urologist for assessment of Whole Person Impairment (‘WPI’) of sexual organs and an orthopaedic specialist for assessment of WPI of the lumbar spine, cervical spine, and right and left upper extremities.
A third teleconference was conducted on 6 September 2005 following the issuing of the two Medical Assessment Certificates (MACs) by the AMSs. The AMS assessing sexual impairment issued a MAC in which he assessed Mr Dellar’s impairment of sexual organs as 0% WPI. On 14 September 2005 the Arbitrator issued Consent Orders noting the parties agreement that Morrissey pay Mr Dellar $20,000.00 representing 15% WPI as assessed by the orthopaedic AMS, pursuant to section 66 and $15,000.00 pursuant to section 67 of the 1987 Act. The Arbitrator also noted the parties agreement that Morrissey pay Mr Dellar’s costs as agreed or assessed.
On 7 July 2005 Mr Dellar’s solicitor lodged an ‘Application for Assessment of Costs’. Morrissey’s solicitor lodged submissions in reply on 28 July 2005. Further submissions, dated 7 September 2005 were lodged by Mr Dellar’s solicitor on 13 September 2005. Lodgement of the application took place prior to the finalisation of the substantive proceedings and on this basis Morrissey’s solicitor submitted that application should be struck out. The Registrar’s decision was made by her delegate a Commission Arbitrator, (‘the delegate’) on 9 November 2005 and was accompanied by a ‘Statement of Reasons’. The delegate considered the objection and in his reasons specified that he had considered all submissions, including those dated 7 September 2005 and noted that the substantive proceedings had been resolved some two months prior to his determination. The determination is set out as follows:
“1.Pursuant to an order for costs made on 10 November 2004, the Respondent is liable to pay the Applicant’s costs as agreed or assessed.
2.The Applicant’s costs of the substantive proceedings assessed in the sum of $9,689.40.
3.No order as to the costs of the assessment.
4.The Respondent is, therefore, to pay the Applicant a total amount of $9,689.40, if those costs have not already been paid.”
On 28 November 2005 Mr Dellar filed an appeal against the Registrar’s assessment of costs in proceedings determined by her delegate.
On 12 January 2006 Morrissey filed its Notice of Opposition to the appeal. Morrissey’s insurer is CGU Workers Compensation (NSW) (‘the Insurer’).
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.”
Mr Dellar’s solicitor did not make submissions addressing the requirement for a formal hearing. Morrissey’s solicitor submits that the matter is capable of being determined on the papers. 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
Mr Dellar’s solicitor has made submissions in relation to the items claimed pursuant to the Compensation Costs Table (‘the Table’) set out in Schedule 6 of the Workers Compensation Regulation 2003 (‘the WC Regulation’) and disbursements. Morrissey’s solicitor has made submission in reply and also challenged the delegate’s determination in respect of Item 2.05 of the Table and the costs allowed for medical reports claimed as a disbursement.
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 2.04; 2.05; 2.06; 4.02; 4.07; 4.08; 4.09; 4.11; 4.12; 9.01, and 10.01of the Table, and
·whether the delegate erred in determining the costs of disbursements being the costs of a factual and investigation report; medical reports and travel expenses.
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’); Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCCPD 28 (‘Orr’); McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’); Asimus v J.J. Walker, A.D. Walker & Temple Pty Ltd t/as Templemore Partners [2006] NSWWCCPD 113 (‘Asimus’); Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWWCCPD 30 (‘Flegerbein’), and Canham v Kenna Investments Pty Limited[2006] NSWWCCPD 202 (‘Canham’) 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]”. I adopt the reasoning applied in Woodbury.
The ‘Certificate of Determination’ referred to by the delegate in his Statement of Reasons is that dated 10 November 2004. However in my view the obligation to pay costs of the entire proceedings arises only in respect of the Consent Orders dated 14 September 2005 which finalised the dispute in its entirety. Accordingly I apply the reasoning in Woodbury to the Consent Orders dated 14 September 2005 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.
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).
It is also necessary to consider clause 46 of the LP Regulation. Clause 82(b) of the WC Regulation specifically excludes from the costs regulated by Part 19: “fees for investigators’ reports or for other material produced or obtained by investigators (such as witness statements or other evidence)”; fees for reports from health service providers; fees for other professional reports relating to treatment or rehabilitation, and the claimant’s travel costs and expenses for attending medical examinations or the Commission. Accordingly, the disbursements claimed must be assessed pursuant to Schedule 2, Pt 1, Item 10 of the LP Regulation which 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).
Item 2.04
Mr Dellar’s solicitor claimed $550.00 for the costs of obtaining and reviewing medical reports, which it is submitted can be ‘reviewed’ even if they are not admitted into proceedings. Morrissey’s solicitor conceded the claim in the amount of $400.00 and objected to the claim in respect of Dr Endrey-Walder’s report dated 10 February 2004 as the report was not a permissible update. A further objection was raised in respect of the two reports of Dr Liaw dated 17 September 2003 on the basis that they should be considered one report as the second report of the same date responded only to one question which should have been addressed in the first report. Therefore it is submitted that a second report was not necessary. The delegate was persuaded by both objections and allowed the claim in the reduced amount of $400.00.
On appeal Mr Dellar’s solicitor submits that that Item 2.04 should be allowed in the amount claimed as all of the reports were tendered and relied upon and the medical reports of Dr Liaw were obtained pursuant to “Part 19 Rule 82(E) or (F)” and these costs are not regulated by sections 105 and 106 of the WC Regulation. I note that the submissions also claim an entitlement to $600.00 under this item which I am unable to reconcile from the total costs of $550.00 as claimed. Accordingly I will determine the claim of $550.00. Morrissey’s solicitor reiterates its submissions that Dr Endrey-Walder’s report dated 10 February 2004 is not a permissible update in accordance with clause 44 of the WC Regulation and relies upon Ball e/b The Salvation Army (NSW) Property Trust Woodport Retirement Village WCCC6021-05 in support of its submission that Dr Liaw’s reports should be treated as a single report.
I have considered the reports of Dr Endrey-Walder. The second report, that dated 10 February 2004 was not provided more than six months after the original report nor did it provide evidence of a further material change in the worker’s condition as required by clause 44 of the WC Regulation. I accept Mr Dellar’s solicitor’s submissions that the report was admitted into proceedings by the Arbitrator. However I do not accept that it was ‘reasonable’ to carry out the work of obtaining this report given that it was not a permissible medical report. Therefore this ground of appeal must fail. In considering the report of Dr Liaw dated 17 September 2003 I note it provides an answer to question 9 only whilst the other report of the same date provides answers to questions 5, 6, 7 and 10. Again I do not accept that it was ‘reasonable’ to carry out the work of obtaining this report given that the questions could have been answered in one report only. Further I do not accept Mr Dellar’s solicitor’s submissions that clauses 105 and 106 of the WC Regulation have no application in the assessment of costs (see discussion in Berger). I find no error of law in the delegate’s determination of this item. I therefore reject this ground of appeal.
Item 2.06
Mr Dellar’s solicitor claimed $500.00 for the costs of requesting a review from the Insurer prior to referral of the matter to the Commission and relied upon correspondence dated 2 February 2004 and the work associated with preparing that correspondence in support of the claim. Morrissey’s solicitor objected and submitted that there is no evidence of the correspondence which it is submitted was also claimed under Item 1.02. Further if the claim under Item 1.02 is allowed then the claim under 2.06 should fail as the single piece of correspondence should be allowed only once under the WC Regulation. The delegate referred to the lack of evidence to support the claim and disallowed the claim.
On appeal Mr Dellar’s solicitor submits that that a copy of the correspondence was attached to their correspondence dated 7 September 2005. The correspondence dated 2 February 2004 is addressed to the Insurer and attached a “Draft Application to Resolve a Dispute”. The correspondence requested a review of the claim and reply within two months. Morrissey’s solicitor submits that the correspondence relied upon does not satisfy the requirements of Item 2.06 as no request for review was made or implied. I have reviewed the additional submissions provided by Mr Dellar’s solicitor dated 7 September 2005 which are referred to in the delegate’s reasons. Attached to these submissions are copies of the correspondence dated 2 February 2004 in which a review is requested and also a copy of prior correspondence to the Insurer dated 20 August 2003 indicating that a claim had been made by Mr Dellar and seeking further information. On balance I accept that prior correspondence had been issued by Mr Dellar’s solicitor dated 20 August 2003 which could found the claim and allowance for the work performed pursuant to Item 1.02 of the Table. I am persuaded that the delegate erred in determining this claim as I am satisfied that a copy of the correspondence dated 2 February 2004 seeking a review was provided and I allow the claim in the amount of $500.00.
Item 4.02
Mr Dellar’s solicitor claimed $100.00 for the costs of serving material in relation to Item 4.01 on the other parties to the dispute being the Insurer. Morrissey’s solicitor objected and submitted that the Applicant was entitled to no more than $40.00 as the Application to Resolve a Dispute was served on the Respondent only. Whilst Mr Dellar’s solicitors later submissions in relation to this Item conclude “Therefore, agreed $40.00” they also appear to dispute Morrissey’s submissions that the Application was not served on the Insurer. The delegate determined that there was no basis for an allowance of in excess of $40.00 as the insurer was not an additional party. Accordingly the claim was allowed in the amount of $40.00.
On appeal Mr Dellar’s solicitor submits that the delegate failed to consider his additional submissions in which he conceded the amount of $40.00 and seeks to have the award of $40.00 confirmed. Morrissey’s solicitor submits that the delegate properly determined the claim. I confirm the delegate’s allowance.
Item 4.07
In his submission dated 7 September 2005 Mr Dellar’s solicitor claimed $200.00 for the costs of the referral to the two AMSs. These submissions were received following Morrissey’s submissions. On appeal Morrissey’s solicitor submits that she did not receive a copy of these submissions and Mr Dellar’s solicitor has not submitted any claim for the additional costs claimed. In the present circumstances I am satisfied that clause 99 of the WC Regulation applies and accordingly the delegate had jurisdiction to consider the additional claims. I find no evidence in the Statement of Reasons that the delegate considered this claim and I find that the delegate erred in this regard.
In my assessment Mr Dellar’s solicitor did not ‘apply’ to have the matter referred to an AMS nor was he required to respond to such an application as required to substantiate the claim. Rather Mr Dellar’s solicitor lodged an ‘Application to Resolve a Dispute’ and the referral was made by the Arbitrator at the teleconference. Two reports were provided by AMSs and this Item of the Table does include an allowance for ‘review of the report by the [AMS]’. However in my view the activity is effectively subsumed into Item 4.09 when a teleconference takes place after the issuing of the MAC and accordingly I reject Mr Dellar’s solicitor’s submissions in that regard. I am satisfied that this was the case here as a further teleconference was conducted following the issuing of the MACs. Therefore I disallow the claim under this item. I will deal with Item 4.09 in turn.
Item 4.08
Mr Dellar’s solicitor claimed $1500.00 for the costs of the two teleconferences and the conciliation conference. In later submissions Mr Dellar’s solicitor claimed that the matter was complex. However the submissions also, on my assessment appear to concede an allowance of $125.00 with the reference to the second teleconference, that conducted on 23 September 2004 and they also make a claim in respect of the third teleconference conducted on 6 September 2005. Morrissey’s solicitor submitted that the maximum allowance of $500.00 was permissible. The delegate relied on the authority provided in Orr and allowed only $500.00.
On appeal Mr Dellar’s solicitor restated his original claim for $1500.00 and refers to the authority provided in Orellana Fuentes v Standard Knitting Mills Pty Ltd & Anor [2003] NSWCA 146 (‘Fuentes’). Mr Dellar’s solicitor also submits that the delegate failed to refer to the Applicant’s submissions in his determination and in doing so he committed an error of law.
As set out at paragraph four the delegate’s reasons demonstrate that he had regard to the later submissions filed by Mr Dellar’s solicitor and whilst the delegate’s reasons do not adequately demonstrate that he had regard to the third teleconference I am not satisfied that the delegate erred in allowing the claim in the maximum permissible. As set out at paragraph twelve of this decision the maximum amount permissible under the Table has been determined to be the amount set out in Column 4, that is $500.00 in respect of this Item. Further the decision in Fuentes was also considered by the Commission in Harvey v JJC Group Pty Limited[2006] NSWWCCPD 329 in which ADP Handley referred to the only exception to the general principle in relation to the column 4 maximum total which applies in respect of Item 4.12 of the Table. The delegate’s determination of this claim is consistent with these authorities and I see no error in respect of his determination. Therefore I reject this ground of appeal.
Items 4.09, 4.10 and 4.11
In my assessment of the submissions Mr Dellar’s solicitor initially claimed $1500.00 for the costs of participating in the two teleconferences and conciliation conference/arbitral hearing. The submissions are framed in alternatives, “matter not complex” and “matter was complex”. Morrissey’s solicitor submitted that the amount of $125.00 is permissible under this item as the duration of the teleconference conducted on 23 September was 22 minutes only and in total the maximum allowable was conceded. In further submissions Mr Dellar’s solicitor claimed $1000.00 pursuant to this item. However in conclusion he claimed a further $125.00 pursuant to Item 4.09, the claim did not specify the date upon which this teleconference was conducted. The delegate correctly noted that the claims pursuant to Item 4.10 were irrelevant as the matter was not certified as complex and allowed $1000.00 pursuant to item 4.09 being the maximum permissible and a further $250.00 for the costs of participating in the arbitral hearing pursuant to Item 4.11.
On appeal Mr Dellar’s solicitor claimed a total of $1625.00 pursuant to Items 4.09 – 4.11. Mr Dellar’s submissions refer to his requirement to travel to attend and participate in the conciliation conference/arbitral hearing. On my assessment of the submissions Mr Dellar’s total claim includes the third teleconference was conducted on 6 September 2005 notwithstanding that this activity is not clearly identified. Morrissey’s solicitor submits that the delegate was correct in allowing no more than the maximum pursuant to Item 4.09.
In relation to Item 4.09 the duration of the teleconference conducted on 20 August 2004 was conceded to be one hour and accordingly the allowance of $250.00 by the delegate is correct and I find no error in the delegate’s determination. The duration of the teleconference conducted on 23 September 2004 was confirmed by the parties to be 22 minutes and accordingly the allowance of $125.00 by the delegate is correct and I find no error in the delegate’s determination. The conciliation conference/arbitral hearing last three and a half hours. However no distinction between the conciliation conference and the arbitral hearing was made by the parties and nor can such a distinction be drawn in my review of the evidence. In my view the delegate’s allowance of the maximum permissible under this item being $1000.00 represents a further two and a half hours for the conciliation phase. The delegate’s determination does not expressly refer to the claim for participating in the teleconference conducted on 6 September 2005. However as Mr Dellar’s solicitor failed to provide specific details of the claim I accept that the delegate’s reasons when viewed as a whole are sufficient to convey to the parties, who are familiar with the case that he exercised his discretion fairly and lawfully (Cargill Meat Processors Pty Limited v Clark[2005] NSWWCCPD 7). Further I do not accept Mr Dellar’s submissions that an allowance exceeding the maximum permissible should be made for the reasons sets out at paragraph twelve of this decision and I do not accept that travelling time is encapsulated under this item. Therefore I reject this ground of appeal.
The delegate allowed $250.00, again the maximum for the arbitral hearing pursuant to Item 4.11. Morrissey’s solicitor challenged the delegate’s allowance on the basis that the WC Regulation “expressly states the item is claimable in the case of a claim for compensation under Section 66 or 67 of the 1987 Act to any Rule of the Commission relating of [sic] offers of compromise or settlement.” The claim was for weekly compensation, medical expenses and lump sum compensation. I am satisfied that both parties participated in the conciliation/arbitral hearing which was conducted on 14 October 2004 and resulted in the Arbitrator issuing a Certificate of Determination in which he ordered Morrissey to pay Mr Dellar weekly compensation payments, medical expenses and costs. Whilst I accept Morrissey’s submission that the arbitration did not resolve the lump sum compensation components of the claim the submissions that Item 4.11 has no application are not sustainable in light of the totality of the issues in dispute and the determination by the Arbitrator. Accordingly I see no error in the delegate’s allowance of $250.00 pursuant to Item 4.11.
Item 4.12
Mr Dellar’s solicitor claimed $760.00 for the costs of four reports to his client. It appears from the later submissions that Mr Dellar’s solicitor made a further claim under this item notwithstanding that the item is identified as “Item 41.2”. However no identifying activity is provided. In considering the submissions in totality I am satisfied that this claim is referable to the third teleconference conducted on 6 September 2005. Morrissey’s solicitor submitted that the amount of $380.00 only is permissible under this item. The delegate allowed the amount of $380.00 and relied upon the authority provided in Fuentes that only two reports are permissible under this item.
On appeal Mr Dellar’s solicitor maintains the claim and relies upon the authority provided in Fuentes. Morrissey’s solicitor reiterates her earlier submissions.
I note that whilst the Commission’s procedures allow for one teleconference I am satisfied that the delegate convened two teleconferences prior to determining the weekly compensation claim at an arbitration hearing. A third teleconference was convened after the issuing of the MACs. 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. In these unique circumstances I am satisfied that four activities took place and an allowance for four activities is not at odds with the authority provided 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 $760.00.
Item 9.01
On my assessment Mr Dellar’s solicitor did not make submissions relating to costs of proceedings before the delegate. The delegate’s reasons state that neither party was completely successful and accordingly the Respondent should not be required to pay the Applicant’s costs.
On appeal Mr Dellar’s solicitor submits that he was successful in his application and costs of $625.00 should be allowed. Morrissey’s solicitor submits that the delegate was correct in his determination.
I note that Mr Dellar’s solicitor’s claims were largely unsuccessful before the delegate. The delegate reduced the claim by $8,3048.81 and awarded $9,689.40.
Costs are covered by section 341 of the 1998 Act. Section 341(2) provides the Commission with full power to determine by whom, to whom and to what extent costs are to be paid. Applying the authority provided in McManus at paragraph 20 I am not satisfied, on the evidence before me that the delegate’s discretion not to award costs can be said to have miscarried because it was exercised unfairly and unlawfully. I therefore reject this ground of appeal. I will consider Mr Dellar’s solicitor’s submissions regarding the costs of the appeal below.
Item 10.01
Mr Dellar’s solicitor claimed $187.50 for the costs of instructing an agent to act on the claim to file and inspect documents. Morrissey’s solicitor submitted that the claim was not allowable as documents are able to be filed with the Commission via mail or Australian Document Exchange and because the costs or inspecting, photocopying and claiming privilege are encapsulated under Item 4.05. The delegate accepted the objections and disallowed the claim
On appeal the claim is maintained and it is submitted by Mr Dellar’s solicitor that because of the strict timeframes imposed by the Commission it is necessary to instruct and agent. The submissions failed to identify any specific claim for legal professional privilege and in these circumstances I am not required to consider this ground further. In relation to the claim for filing documents I note the amount was allowed in the maximum as agreed by the parties under Item 4.01 and I also accept, as did the delegate, the submissions made by Morrissey’s solicitor in this regard. In respect of inspecting documents Deputy President Fleming held in Dunn v Port Macquarie RSL Club Limited [2004] NSWWCCPD 33 (‘Dunn’), at paragraph 41 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 see no error in the delegate’s determination in circumstances where the claim under Item 4.05 was allowed in the maximum. I find no error in the delegate’s determination and I also apply the reasoning set out in Dunn and Flegerbein in rejecting this ground of appeal.
Did the delegate err in determining the costs of disbursements?
The factual investigation report
Mr Dellar’s solicitor sought $2,368.13 for the Report. Morrissey’s solicitor objected on the basis that there was no requirement to obtain statements from the Applicant or his wife and these costs are properly absorbed under Item 2.01. Additionally no relevant factual investigation reports were admitted in the proceedings. Further the investigation company is affiliated with Mr Dellar’s solicitor’s firm and the claim is grossly excessive. The delegate applied the test of ‘fair and reasonable’ and concluded that a number of recoverable matters of an investigatory nature were undertaken, including a business name search, investigation of employment and wages matters and a statement from the Applicant’s wife. The delegate determined that $750.00 was a reasonable sum for the work performed. In applying the reasoning set out in Asimus at paragraph 19 I find the application of the test of ‘fair and reasonable’ by the delegate to be in error as the LP Regulation requires consideration of whether the disbursement was necessarily incurred as set out at paragraph 14 of this decision.
On appeal the full costs of the Report are maintained by Mr Dellar’s solicitor and Morrissey’s solicitor disputes the claim. It is necessary to consider the contents of the Report, the nature of the claim and the issues in dispute in determining whether the cost of the Report was ‘necessarily incurred’ (see discussion in Asimus and Canham).
Mr Dellar’s claim was for weekly and lump sum compensation together with medical expenses. The application contained attachments including the medical reports of treating doctors which predate the Report.
The Report, dated 14 November 2003 contains the following information. Names, addresses and contact details for Mr Dellar, Morrissey, the Insurer and Mr Dellar’s medical practitioners. I am not satisfied that the costs of the report as it relates to this information can be considered necessarily incurred when this information should readily be available to Mr Dellar’s solicitor. Particularly in circumstances where Mr Dellar’s solicitor corresponded with the Insurer on 20 August 2003. However I note that Mr Dellar’s solicitor did not identify Morrissey correctly and in the absence of evidence to the contrary I find the costs of the Report as it relates to the business names search necessarily incurred. I consider the amount of $22.00 (including GST) to be ‘reasonable’ in the absence of specific details of the costs of obtaining and reviewing this information. In making this allowance I have regard to the fact that the work was undertaken by a non-professional and the allowance for similar work contained under Item 2.02 of the Table.
The factual and liability summary contained in the Report details Mr Dellar’s age, marital status, prior claim, employment history and duties; medical history, condition, treatment and current symptoms and commentary regarding authenticity of the claim. In my view the provision of commentary regarding Mr Dellar’s personal details and symptoms duplicates the material filed in proceedings and accordingly the costs associated with the preparation of this material was not ‘necessarily incurred’ (see discussion in Berger; Asimus and Flegerbein). Further I do not consider the costs of obtaining commentary from a private investigator regarding the authenticity of the claim to be ‘necessarily incurred’. The remaining issues for determination arising from the Report are the statements, the schedule of earnings and copies of taxation returns from 1999 to 2000 and 2003.
In relation to the statement obtained from Mr Dellar I note that Mr Dellar’s solicitor did not claim the taking of a statement under Item 2.01 or 2.04A of the Table. An applicant has been held to be a witness and in the present circumstances I conclude that Mr Dellar’s claim could not be brought without his statement (see discussion in Asimus at 24-25). I am satisfied that the work was performed. The interview was conducted over 50 minutes by a non professional. In my view it is reasonable to allow one hour for the costs of the statement including typing the six and a half page statement and in applying the allowance for similar work under Item 2.04A I allow the claim in the amount of $110.00 (including GST).
I do not view the statement of Leanne Fay Dellar necessary to the claim pursued when the details provided therein are repeated in Mr Dellar’s statement and/or the medical reports.
The claim for weekly benefits was from 5 July 2004. However the schedule of earnings provides information regarding earning in 1999 to establish weekly earnings as Mr Dellar did not receive income from employment between 1999 and 2002. On balance I am prepared to allow the costs of obtaining the wages information as necessarily incurred and I consider an allowance of $110.00 referable to one hours work by a non-professional including GST to be ‘reasonable’ for the work performed.
Accordingly I am prepared to allow a total $242.00 for the costs of the Report. In doing so I also have regard to Morrissey’s solicitor’s submissions that the claim for briefing a factual investigator should not be allowed. Having found that aspects of the Report were necessary and that it was reasonable to obtain the Report in this regard I also confirm the delegate’s allowance of $100.00 pursuant to Item 2.05.
The costs of medical reports
Mr Dellar’s solicitor sought a total of $2,277.00 for the costs of obtaining medical reports from Drs Lee, Liaw, Lowy and Endrey-Walder. Morrissey’s solicitor objected on the basis that no report from Dr Lee dated 10 February 2004 was admitted and or served in proceedings. In further submissions Mr Dellar’s solicitor acknowledged that the report was incorrectly referred to as it is correctly identified as dated 26 February 2003. The delegate determined that as Dr Lee was a treating doctor the cost of the report is recoverable if it was reasonable that it be obtained and allowed the amount as claimed.
On appeal the claim is maintained and Morrissey maintains its objection on the basis that there is no evidence that the report is a claims management phase report and relies upon the authority provided in Berger.
The reports are claimed as disbursements and the test of ‘necessarily incurred’ applies. The report of Dr Lee dated 26 February 2003 details the history, clinical findings, diagnosis, results of investigations treatment and future recommended treatment. In my view the report satisfies the requirements of clause 45(2)(c) of the WC Regulation and the costs of obtaining the report were necessarily incurred given the nature of the claim. Further the amount claimed is not, in my view an ‘unreasonable amount’. Accordingly I find no error in the delegate’s determination in relation to the costs of medical reports.
Travel Costs
Initially Mr Dellar’s solicitor sought $1,650.00 for travel costs for the applicant, the applicant’s solicitor and whilst the submissions indicate that barristers fees are not part of the claim they do, on my assessment form part the total claim. However in further submissions Mr Dellar’s solicitor confirmed the total amount claimed in travel expenses as $1,551.12 being a total of $909.12 for the applicant’s travel, accommodation and sustenance to an appointment with Dr Endrey-Walder and Dr Lowy on 8 December 2003 and the hearing on 14 October 2004 and a further $642.00 for his solicitor’s travel, accommodation and sustenance. Morrissey’s solicitor objected on the basis that: the Applicant’s meal expenses in the amount of $75.00 were excessive and no more than $50.00 should be allowed; the claim for the Applicant’s travel should only be allowed at the rate of $0.42 per kilometre and the claim should not be allowed as no receipts in support of meal and accommodation expenses were supplied; Mr Dellar’s solicitor’s travel should not be allowed as the Applicant was represented by Counsel, and in the event that the expenses are allowed it is submitted that the amount claimed is excessive in circumstances where the Applicant’s solicitor has an office in South Hurstville. In the alternative it was submitted that if it is found that travel from Young was required the round trip is 742 kilometres and with the deduction of 50 kilometres per trip prescribed in the WC Regulations the distance claimable equates to 642 kilometres and applying the rate of $0.59 per kilometres only $378.78 should be allowed. Finally, it was submitted that the accommodation and meal expenses were excessive and a total of $170.00 should be allowed for meals and accommodation.
The delegate accepted Morrissey’s submissions in relation to the applicable rate for travel, rejected the submissions in relation to a reduction of meal and accommodation expenses and allowed the claim in the amount of $909.12 for the Applicant. In respect of the claim for the solicitor’s travel costs and expenses the delegate applied the test of fair and reasonable and determined that it was fair and reasonable for the solicitor with carriage of the matter to advise the Applicant at the conciliation/arbitral hearing. The delegate stated that he did not read Item 10.02 as requiring a deduction of 50 kilometres both ways. The delegate calculated the distance as 692 kilometres (following the deduction of 50 kilometres) and made an allowance of $408.28. The delegate then determined that accommodation one night was fair and reasonable and allowed the claim in the amount of $120.00. In total the delegate allowed $528.28 for Mr Dellar’s solicitor’s travel costs and expenses.
On appeal Mr Dellar’s solicitor challenged the delegate’s finding in respect of his travel expenses only and claims an allowance of 800 kilometres at $0.59 per kilometre being $472.00 plus $120.00 for accommodation. Accordingly the difference between the delegate’s allowance and that claimed on appeal is a further $63.72 referable to an additional approximately 100 kilometres between Young and Sydney which it is submitted should not be calculated with reference to a computer programme calculating distances, as subsistence diversions are required. Morrissey’s solicitor reiterates her earlier submissions. I accept the delegate’s assessment that Mr Dellar’s solicitor’s attendance was reasonable in the circumstances and I find no error in the delegate’s determination in that regard.
The remaining dispute arises over the distance travelled. I am required to consider if the delegate decision gives rise to a ‘matter of law’. Whilst Mr Dellar’s solicitor submits that additional travel was required for the purpose of obtaining sustenance he provided no evidence in support of this assertion which would satisfactorily explain the significant additional kilometres claimed. I note that a similar claim has been accepted by the Commission in the matter of Smith v Wandella Pet Foods Pty Ltd [2006] NSWWCCPD 312. However following my review of that decision I am satisfied that the facts and objections before the Commission are distinguishable. I am not satisfied on the evidence before me that Mr Dellar’s solicitor has demonstrated that the delegate’s determination gives rise to a matter of law.
Summary
I have determined the disbursements and professional costs challenged by Mr Dellar’s solicitor as follows:
Professional Costs
The delegate’s allowance of $400.00 for Item 2.04 is confirmed.
The delegate’s allowance of $100.00 for Item 2.05 is confirmed.
The delegate’s disallowance of Item 2.06 is revoked.
It is fair and reasonable to allow $500.00 (plus GST being an amount of $550.00) for requesting a review of the claim under Item 2.06 of the Table.
The delegate’s allowance of $40.00 under Item 4.02 is confirmed.
The claim under Item 4.07 was not determined by the delegate. I disallow the claim under Item 4.07 of the Table.
The delegate’s allowance of the maximum of $500.00 for the claim under Item 4.08 is confirmed.
The delegate’s allowance of the maximum of $1000.00 for the claim under Item 4.09 is confirmed.
The delegate’s disallowance of the claim under Item 4.10 is confirmed.
The delegate’s allowance of the claim under Item 4.11 is confirmed
The delegate’s allowance of $380.00 for the claim under Item 4.12 is revoked.
It is fair and reasonable to allow $760.00 (plus GST being an amount of $836.00) for reporting to the client following the three teleconferences and one conciliation/arbitration hearing under Item 4.12 of the Table.
The delegate’s disallowance of the claim for Item 9.01 is confirmed.
The delegate’s disallowance of the claim for Item 10.01 is confirmed.Disbursements
The delegate’s allowance of $750.00 for the costs of the Report is revoked.
The costs of $242.00 (including GST) for the Report were necessarily incurred and are allowed.
The delegate’s allowance of the claim for medical reports is confirmed.
The delegate’s total allowance of $1,437.40 for travel is confirmed.
I therefore increase the delegate’s assessment of costs by $498.00 to a total amount of $10,187.40.
DECISION
Paragraphs one, two and four of the decision of the delegate dated 9 November 2005 are revoked and the following orders are made in their place:
“(i) Pursuant to the consent orders dated 14 September 2005, the Respondent Morrissey is liable to pay the Applicant’s costs as agreed or assessed.”
(ii) The Applicant’s costs of the substantive proceedings are assessed in the sum of $10,187.40(iii) The Respondent is, therefore, to pay to the Applicant a total amount of $10,187.40 if those costs have not already been paid.”
Paragraph three of the delegate’s decision making no order for the costs of the assessment is confirmed.
COSTS
Mr Dellar’s solicitor claims that he is entitled to $625.00 for the costs of preparing submissions and lodging the appeal. Morrissey’s solicitor submits that there is no basis for appeal and the Appellant should pay the Respondents costs of the appeal. The Appellant has been in part successful on appeal.
The appropriate order is therefore that: “The Respondent Morrissey pay the Appellant Mr Dellar, $275.00 inclusive of GST in respect of his costs in this appeal.”
Elizabeth Tydd
Acting Deputy President
12 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
12
0