Duncan v Miyay Youth Service Incorporated
[2006] NSWWCCPD 354
•19 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Duncan v Miyay Birray Youth Service Incorporated [2006] NSWWCCPD 354
APPELLANT: Patricia Rose Duncan
RESPONDENT: Miyay Birray Youth Service Incorporated
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC11158-05
DATE OF REGISTRAR’S DECISION: 17 January 2006
DATE OF APPEAL DECISION: 19 December 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; fees for an investigation report; Items 2.04, 2.05 and 9.01 of Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER: Acting Deputy President Elizabeth Tydd
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Moray & Agnew Solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Registrar dated 17 January 2006 is confirmed.
2. No order as to costs of the appeal.
BACKGROUND
On 16 December 2002 Patricia Rose Duncan (‘Ms Duncan’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC5295-02). Ms Duncan named Miyay Birray Youth Service Incorporated (‘Miyay Birray’) as the Respondent employer and claimed that as a result of the nature and conditions of her employment as a secretary/book keeper from 22 July 1992 to 6 August 2002 she suffered an injury to her right arm; neck; back, and left arm. Ms Duncan claimed $40,000.00 pursuant to section 66 and $30.000 pursuant to section 67 of the Workers CompensationAct 1987 (‘the 1987 Act’).
Miyay Birray lodged a Late Reply to the application on 4 March 2003 in which it disputed all aspects of the claim. A Commission Arbitrator (‘the Arbitrator’) made orders on 2 April 2003 which noted the filing of the Application and the Late Reply and granted the parties leave to provide additional submissions regarding the admission of the Later Reply and determination of admission of the Late Reply on the papers. The Arbitrator also ordered that the matter be referred to an Arbitrator for determination. Ms Duncan’s solicitor made submissions dated 20 March 2003 in which he confirmed that the Application had been served on 18 December 2002. The submissions were silent in respect of a determination on the papers. On 7 April 2003 Miyay Birray’s solicitor filed submissions in which it confirmed that the matter was capable of being determined on the papers. The matter was determined on the papers and the Reply was admitted into proceedings by order of the Arbitrator dated 24 April 2003.
In correspondence dated 7 March 2003 the Registrar invited the parties to agree upon an Approved Medical Specialist (‘the AMS’). Ms Duncan’s solicitor nominated three AMSs in his submissions dated 20 March 2003. However an agreement was not reached and the Registrar referred the dispute for assessment of Whole Person Impairment (‘WPI’) in accordance with section 321 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The AMS issued a Medical Assessment Certificate (‘MAC’) which was forwarded to the parties on 16 December 2003.
On 29 January 2004 a teleconference was conducted before the Arbitrator and the dispute was resolved by consent. The Arbitrator issued a ‘Certificate of Determination’ dated 26 February 2004 noting the parties acceptance of the AMS’s assessment of WPI and agreement for Miyay Birray to pay Ms Duncan $12,500.00 pursuant to section 66 and $10,000.00 pursuant to section 67 of the 1987 Act. The Arbitrator ordered Miyay Birray to pay Ms Duncan’s costs as agreed or assessed. The parties filed an agreement pursuant to section 66A of the 1987 Act which was registered on 1 April 2004.
On 8 July 2005 Ms Duncan’s solicitor lodged an ‘Application for Assessment of Costs’. Miyay Birray’s solicitor lodged submissions in reply on 26 July 2005. The Registrar’s decision in relation to the application by her delegate, a Commission Arbitrator, (‘the delegate’) was made on 17 January 2006 and was accompanied by a ‘Statement of Reasons’. The determination is set out as follows:
“1.Pursuant to an Agreement and Order dated 1 April 2004 [sic 26 February 2004], the Respondent employer is liable to pay the Applicant’s costs of the Application as agreed or assessed.
2.The Applicant’s costs of the proceedings assessed in the sum of $6,911.05 (inclusive of GST) are determined as fair and reasonable.
3.The Applicant’s costs of the assessment are not allowed.
4.The Respondent is to pay the amount of $6,911.05 to the Applicant if those costs have not already been paid.”
On 30 January 2006 Ms Duncan (‘the Appellant Worker’) filed an appeal against the Registrar’s assessment of costs in proceedings determined by her delegate.
The Respondent to the Appeal is Miyay Birray (‘the Respondent Employer’). Miyay Birray’s insurer is GIO Workers Compensation (NSW) Limited (‘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.”
Ms Duncan’s solicitor did not make submissions addressing the requirement for a formal hearing. Miyay Birray’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
Ms Duncan’s solicitor’s submissions
The 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 the disbursements claimed can be summarised as follows:
·Item 2.04 should be allowed in the statutory maximum of $600.00. The delegate allowed only $330.00 (inclusive of GST) and it is submitted that the delegate had not been provided with a copy of correspondence from Ms Duncan’s solicitor dated 28 June 2005 and the delegate’s failure to consider “the record of the Workers Compensation Commission is a Legal Error”. Further Ms Duncan’s solicitor did not make submissions addressing this Item in proceedings before the delegate as he believed that the costs of this item had been agreed between the parties;
·Item 2.05 should be allowed in the sum of $100.00 as Miyay Birray disputed all aspects of the claim and contrary to the delegate’s finding that “None of the material prepared or discovered by the investigator was used or filed in the Proceedings” the factual investigation report (‘the Report’) was filed with the “1st Amended Application to Resolve a Dispute”. The cost of the Report was $1,927.04 and the Report assisted in the early settlement of the dispute. Additionally it is necessary for the delegate to consider evidence prior to coming to a concluded view as to whether a particular event occurred or not and the “Registrar has no evidence in his assessment to formulate any such view” this omission gives rise to a matter of law, and
·on appeal Ms Duncan’s solicitor claims $1,375.00 (inclusive of GST) pursuant to Item 9.01. On my assessment of the submissions the claim appears to be based on two grounds. Firstly that the “Respondent should have sought instructions from their client” prior to recommending payment of some of the amounts claimed in the bill of costs and secondly Ms Duncan’s solicitor is entitled to $625.00 for the costs of preparing submissions and lodging the appeal.
Miyay Birray’s solicitor’s submissions
Miyay Birray’s solicitor relies upon its previous reply to the application and the decision of the delegate in submitting that Ms Duncan’s solicitor has not shown sufficient grounds to succeed on the current appeal.
Issues in dispute
The issues raised on appeal are as follows:
·whether the delegate erred in determining Items 2.04, 2.05 and 9.01of the Table, and
·whether the delegate erred in determining the costs of disbursements.
DISCUSSION
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’); Green v Chris McLeod Cotton Picking Pty Ltd [2006] NSWWCCPD 51 (‘Green’); 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’ is dated 26 February 2004 and in applying the reasoning in Woodbury the WC Regulation and Legal Profession Regulation2002 (‘LP Regulation’) must be applied. Of particular relevance to the matters raised on appeal are the following clauses of the WC Regulation: clause 84 which fixes the maximum costs recoverable by legal practitioners and agents to those set out in the Table; clause 110 which 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, and clause 119(1) which 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)”. Accordingly, when claimed as a disbursement as in the present case the investigators’ fee 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)
Did the delegate err in determining Items 2.04, 2.05 and 9.01 of the Table?
In his statement of reasons the delegate noted that in order to identify the real issues in dispute he was required to consider Miyay Birray’s position as detailed in its submissions dated 25 July 2005. The delegate noted that the application and submissions contained an amount of verbiage, and that “The practice of offering repetitive and inconsistent letters or submissions that seek to summarise ‘agreements’ is not helpful.” On appeal I have considered all of the submissions and correspondence and observe that there are inconsistencies in the claim pursued. The approach adopted by the delegate, in my view assisted in the fair and lawful determination of the issues in dispute. Further I confirm that, on my assessment Ms Duncan’s solicitor’s correspondence dated 28 June 2005 was forwarded to the delegate and the delegate’s commentary regarding the inconsistencies and reference to Miyay Birray’s agreements are reflective of the variation in the claim made under Items 1.01 and 2.04 in submissions dated 11 February 2004, 15 November 2005 and 28 June 2005.
Ms Duncan’s solicitor claimed $600.00 under Item 2.04 for the costs of “Referring Applicant to medical practitioner” being Dr Conrad, Dr Puxty, and Dr Dan. Ms Duncan’s solicitor also claimed $600.00 for “Obtaining and reviewing medical reports” under Item 1.01 with reference to Dr Puxty, Dr Grobbelaar; CRS Australia, and Dr Dan. However in submissions dated 28 June 2005 annexed to the Application Ms Duncan’s solicitor also referred to a claim for two reports of Dr Hughes. Miyay Birray’s solicitor submitted that the sum claimed under Item 1.01 or the sum claimed under Item 2.04 should be deleted and relied upon the decision of the Commission in the matter of Romilio v Trustees of the Roman Catholic Church of Lismore (2004) NSWWCC 10.
The delegate allowed $330.00 (inclusive of GST) under Item 2.04 for the reports of Drs Grobbelaar and Hughes. The delegate found that “The reports of Dr Grobbelaar and Dr Hughes were obtained after the Application to Resolve a Dispute was obtained [sic] and are allowable under this item. This item does not allow the Applicant to claim twice for reviewing reports that are claimed in item 1.01 above”. I note that the delegate allowed the reports of Dr Puxty, Dr Conrad, Dr Dan and the CRS report under Item 1.01 at the maximum total for this type of activity/event.
Item 2.04 refers to “obtaining and reviewing medical reports”. It applies other than where Item 1.01 applies and limits the recovery of the costs of obtaining medical reports that are not admitted in proceedings or is a claims management phase report (clause 45(1)(a) and (b) of the WC Regulation). On my assessment, the submissions made by Ms Duncan’s solicitor referred to the reports of Drs Hughes and Grobbelaar as claims management phase reports. Having reviewed the file and finding no evidence that copies of the reports of Dr Grobbelaar and Dr Hughes were filed in proceedings before the Arbitrator, the delegate or before me on appeal I conclude in the absence of submissions to the contrary that they were claims management phase reports. Accordingly I see no error in the delegate’s decision to allow the cost of the two reports at $300.00 plus GST in circumstances where the other reports claimed under this Item (those of Drs Puxty and Dan) had been allowed by the delegate under Item 1.01 and no double recovery is permissible (Orellana-Fuentes v Standard Knitting Mill Pty Limited & Anor; Carey v Blasdom Pty Limited T/as Ascot Freightlines & Anor [2003] NSWCA 146 at paragraph 64 and McManus at paragraph 30).
Ms Duncan’s solicitor claimed $100.00 pursuant to Item 2.05 for the costs of briefing a factual investigator. Miyay Birray’s solicitor objected on the basis that briefing a factual investigator was unnecessary given that liability was accepted by the Insurer and the worker’s claim was confined to lump sum benefits. The delegate determined that there was no need to brief a factual investigator, particularly given that the factual investigator was briefed after the application was lodged and none of the material prepared or discovered by the investigator was used or filed in proceedings. The delegate disallowed the claim and in doing so relied upon the authority provided in the decision of Berger at paragraph 14 and following.
Ms Duncan’s solicitor submits that the delegate erred in law as there was no evidence to formulate his view. As I understand the submissions they refer to the absence of the factual investigation report which it is submitted was filed with an amended application. I have reviewed the file in its entirety and I am unable to identify any amended application. As set out in paragraph two of this decision the Arbitrator confirmed service of the Application received by the Commission on 16 December 2002 and provided an opportunity for the parties to file further submissions. Whilst Ms Duncan’s solicitor corresponded with the Commission in response to the order he did not, at that time lodge an amended application. Additionally the application for assessment of costs did not attach a copy of the Report or the amended application. Further, in lodging the appeal Ms Duncan’s solicitor was provided with an opportunity to provide evidence in support of his claim that an amended application was filed and to provide a copy of the Report he submits was “of assistance” in resolving the dispute. Accordingly I am satisfied Ms Duncan’s solicitor has been provided with opportunities to provide evidence in support of his claim and has failed to avail himself of this opportunity to do so.
I have no evidence before me to persuade me that the costs of briefing a factual investigator were reasonable or necessary and in my view given the relatively straightforward nature of the claim, I am not persuaded that briefing a factual investigator was reasonable as required by clause 110 of the WC Regulation. I find no error in the delegate’s determination of this item. I therefore reject this ground of appeal.
In correspondence dated 28 June 2005 Ms Duncan’s solicitor claimed “costs of these proceedings pursuant to item 9.01 in respect of professional costs.” I note in passing this claim was not made in submissions and correspondence dated 11 February 2004, 2 November 2004, 22 August 2005, and 15 November 2005. The delegate determined that the “Applicant had been largely unsuccessful in regard to the items in dispute.” and made on order as to the costs of the assessment. I am unable to identify any submissions addressing “substantial legal issues” as required to found a claim under Item 9.01 of the Table (see discussion in Dixon at paragraph 19 and Harvey v JJC Group Pty Ltd[2006] NSWWCCPD 329 at paragraphs 33-37) and accordingly I see no error in the delegate’s consideration of the claim in relation to the costs of the application only.
In considering the costs order made by the delegate I note that Ms Duncan’s solicitor claimed a total of $10,759.64, and of the items in dispute Ms Duncan’s solicitor was largely unsuccessful. The delegate reduced the claim by $3,848.59 and awarded $6,911.05. The facts of this case are distinguishable from those before the Commission in Green where the applicant was found to be largely successful in the amount awarded. Accordingly I see no error in the delegate’s determination in relation to the costs of assessment. I therefore reject this ground of appeal. I will consider Ms Duncan’s solicitor’s submissions regarding the costs of the appeal below.
Did the delegate err in determining the costs of disbursements?
Ms Duncan’s solicitor sought $1,927.04 for the Report. Miyay Birray’s solicitor objected on the basis that there was no requirement to obtain a report when liability was accepted and the claim was for lump sum benefits and therefore the work was unnecessary.
The delegate’s reasons referred to the decision in Berger and his determination of the claim under Item 2.05 in which he found that there was no need to brief a factual investigator to obtain a report. On appeal Ms Duncan referred to “The proposed 1st Amended Application to Resolve a Dispute dated 29.01.2003, [which] was served on Messrs Hunt and Hunt on the 03.02.2003 and proceedings were only commenced on 17.12.2002.” As I understand these submissions they refer to Ms Duncan’s solicitor’s service of a claim on Hunt and Hunt Lawyers as it was assumed that they acted for Miyay Birray. However I am satisfied on my review of the file that Miyay Birray’s solicitors (Moray & Agnew Solicitors) informed Ms Duncan’s solicitor of their instructions to act the matter in correspondence dated 10 October 2002. Therefore Ms Duncan’s solicitor has known or ought to have known the identity of Miyay Birray’s legal representatives since October 2002. Therefore they acted in error in serving a claim on Hunt and Hunt Solicitors. Further as set out at paragraph 21 in my review of the file in its entirety I can find no evidence of any amended claim filed in the Commission in these proceedings or any factual investigation report.
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’ (Asimus and Canham). As set out, I can find no evidence that the Report was filed to substantiate the claim. However if it was filed and by some omission it is not contained on the Commission’s file I am satisfied, for the reasons set out above, that Ms Duncan’s solicitor has been provided with sufficient opportunity to provide a copy of the report and has failed to do so. In the absence of the Report I turn to the claim. The claim was relatively straightforward and was referred to an AMS for assessment without holding a teleconference. Ms Duncan’s solicitor did not object to this course of action. Notwithstanding Miyay Birray’s initial dispute of the claim they did not object to the referral to an AMS for binding assessment of impairment. Considering all of the circumstances I find that the delegate’s determination to disallow the claim because it was not ‘necessary’ and rely on the authority provided in Berger to be a proper application of the LP Regulation. Therefore I reject this ground of appeal.
Summary
I have determined the disbursements and professional costs challenged by Ms Duncan’s solicitor as follows:
Professional Costs
The delegate’s allowance of $330.00 (including GST) for Item 2.04 is confirmed.
The delegate’s disallowance of the claim for Item 2.05 is confirmed.
The delegate’s disallowance of the claim for Item 9.01 is confirmedDisbursements
The delegate’s disallowance of the claim for the costs of the Report is confirmed.
DECISION
The decision of the delegate dated 17 January 2006 is confirmed.
COSTS
Ms Duncan’s solicitor claims that he is entitled to $625.00 for the costs of preparing submissions and lodging the appeal. Miyay Birray’s solicitor’s submissions were silent in respect of the costs of the appeal. The Appellant has been unsuccessful on appeal. In my view, it is appropriate that I make no order as to costs of the appeal.
E Tydd
Acting Deputy President
19 December 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF E TYDD, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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