Edwards v LT & MM Hanlon trading as Hanlon Shearing
[2007] NSWWCCPD 65
•27 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Edwards v LT & MM Hanlon t/as Hanlon Shearing [2007] NSWWCCPD 65
APPELLANT: Henry Charles Edwards
RESPONDENT: LT & MM Hanlon t/as Hanlon Shearing
INSURER:EMI Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC14478-05
DATE OF REGISTRAR’S DECISION: 23 January 2006
DATE OF APPEAL DECISION: 27 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; disbursements; Items 4.12; 9.01; 10.02, and 10.03 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER: Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners
Respondent: Arnold Lawyers
ORDERS MADE ON APPEAL: 1. Paragraph one, two and four of the decision of the delegate dated 23 January 2006 are revoked and the following orders are made in their place:
“(i) Pursuant to Orders dated 30 July 2004 the Respondent is liable to pay the Applicant’s costs of the Application as agreed or assessed.
(ii) The Applicant’s costs of the substantive proceedings are assessed in the sum of $10,829.39.
(iii) The Respondent is therefore, to pay to the Applicant a total amount of $10,829.39 if those costs have not already been paid.”
2. Paragraph three of the delegate’s decision disallowing the costs of the assessment is confirmed.
3. The Respondent, Hanlon is to pay the Appellant, Mr Edwards, $275.00 inclusive of GST in respect of his costs in this appeal.
BACKGROUND
Prior proceedings
On 28 January 2004 Mr Henry Charles Edwards (‘Mr Edwards’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC2225-04). Mr Edwards named LT & MM Hanlon t/as Hanlon Shearing (‘Hanlon’) as the Respondent employer. Mr Edwards claimed that on 6 April 2001 he suffered injuries suffered to his left ankle, back and right leg in the course of his employment as a shearer and sought: weekly benefits compensation pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) from 8 April 2001 and continuing, and medical and related expenses pursuant to section 60 of the 1987 Act. This was the second application Mr Hanlon had made in respect of the injuries claimed. In a previous application (WCC8783-03) lodged on 20 March 2003 Mr Edwards’ sought lump sum compensation pursuant to section 66 and 67 of the 1987 Act and the injuries to Mr Edwards’ back and right leg were referred to an Approved Medical Specialist (‘AMS’) for assessment on 1 August 2003. Therefore at the time of lodgement of WCC2225-04 the earlier proceedings had not been finalised.
On 3 March 2004 Hanlon lodged a Late Reply to the Application which put in issue incapacity and Mr Hanlon’s currently weekly wage rate.
A teleconference was conducted on 17 May 2004 and procedural orders were made that the two applications be consolidated.
A further teleconference conducted on 27 May 2004 and procedural directions were made by the Commission arbitrator (‘the Arbitrator’) that the matter be set down for a conciliation/arbitration on 5 July 2004. The parties were not able to reach agreement at the conciliation conference and the matter proceeded to arbitration on that day. On 30 July 2004 the Arbitrator issued orders finalising the dispute in relation to weekly payments of compensation with reference to WCC2225-04 only. The Arbitrator ordered that Hanlon pay Mr Edwards weekly compensation; medical and related expenses and costs as agreed or assessed.
The claim for lump sum compensation to Mr Edwards’ back, left leg and right leg was not dealt with by the Arbitrator at the hearing conducted on 5 July 2005 as the Medical Assessment Certificate issued on 27 January 2004 was under appeal. On 25 November 2004 the Arbitrator provided a further referral to an AMS to conduct an assessment of Mr Edwards’ left leg below the knee.
On 25 August 2005 Mr Edwards’ solicitor lodged an ‘Application for Assessment of Costs’ in relation to WCC2225-04 only presumably because at that time WCC 8783-03 was not finalised. Hanlon’s solicitor did not lodged submissions in reply.
The Registrar’s decision in relation to this application, by her delegate, a Commission Arbitrator, (‘the delegate’) was made on 23 January 2006. The delegate’s decision was accompanied by a ‘Statement of Reasons’ in which the delegate stated that he did not include reference to “any items that are not in dispute except those items where in my view the Applicant has claimed more than his entitlement under Schedule 6”. The delegate also noted that notwithstanding that proceedings were not concluded he was obliged to assess costs and that the “Respondent can refer to this assessment in any other claim for costs”. The decision is set out as follows:
“1.Pursuant to Agreements and Order dated 30 July 2004 the Respondent employer is are liable to pay the Applicant’s costs of the Application as agreed or assessed.
2.The Applicant’s costs of the proceedings are assessed in the sum of $10,111.39 (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 $10,111.39 to the Applicant if those costs have not already been paid.”
Lodgement of the appeal
On 21 February 2006 Mr Edwards’ solicitor lodged an ‘Appeal from the Registrar’s Determination on Costs’. Further submissions were lodged on 2 and 20 June 2006. Mr Edward’s solicitor served copies of these submissions on Hanlon’s solicitor on 15 February 2007.
On 10 March 2006 Hanlon’s solicitor lodged submissions in reply. Hanlon’s insurer is EMI Mutual Indemnity (Workers Compensation) Limited (‘the Insurer’).
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
In correspondence to the Commission received on 15 February 2007 Mr Edwards’ solicitor confirmed that his further submissions dated 31 May and 19 June 2006 were served on Hanlon’s solicitor. Further submissions in reply have not been received. However I am satisfied that Hanlon’s solicitor has been provided with an opportunity to respond to the further submissions. Neither party has made submissions in respect of the requirement for a formal hearing and neither party seeks to adduce fresh evidence. 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 Edwards’ solicitor lodged submissions as set out above and submits that in circumstances where the respondent fails to file a reply the delegate is required to make an order for all costs claimed (Rodney Swan v AF & JC Nunro t/as Norland Pastoral Pty Limited citation not provided) Mr Edwards, solicitor also submits that the delegate erred in failing to consider the record of the Commission. This submission does not identify any aspect of the delegate’s determination which is infected by error as a result of the alleged failure to consider the Commission’s record. Further Mr Edwards’ solicitor submits that the delegate erred in his determination of travel and accommodation costs; agency fees; the costs of a private investigator’s report (‘the Report’) and, items claimed pursuant to the Compensation Costs Table (‘the Table’) set out in Schedule 6 Clause 5 of Schedule 6 the Workers Compensation Regulation 2003 (‘the WC Regulation’). These submissions are summarised below. Hanlon’s solicitor submits that: submissions were not provide to the delegate as it is for the delegate to determine what is fair and reasonable in accordance with the WC Regulation; the delegate’s determination should remain unaltered, and the costs and disbursements claimed are grossly excessive.
Following consideration of the relevant legislation I will deal with each disputed item in turn. The following matters are in dispute:
·whether the delegate err in not allowing the full costs claimed;
·whether the delegate erred in determining Items 4.12 and 9.01 of the Table, and
·whether the delegate err in not allowing the costs of disbursements.
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 decisions: Orellana Fuentes v Standard Knitting Mills Pty Ltd & Anor [2003] NSWCA 146 (‘Fuentes’); Berger v Moree Plains Shire Council[2005] NSWWCCPD 152 (‘Berger’); Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCCPD 28 (‘Orr’); McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’); Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWWCCPD 30 (‘Flegerbein’), and Asimus v J.J. Walker, A.D. Walker & Temple Pty Ltd t/as Templemore Partners [2006] NSWWCCPD 113 (‘Asimus’) and need not be canvassed again in this decision.
I apply the reasoning in Woodbury v Miles [2006] NSWWCCPD 55 (‘Woodbury’) in finding that the WC Regulation and Legal Profession Regulation2002 (‘the LP Regulation’) apply as the Orders which gave rise to Hanlon’s obligation to pay costs were made on 30 July 2004. Whilst I note that the delegate’s Statement of Reasons refers to this obligation arising as a result of “Agreements and Order” in my view the obligation arose as a result of the orders set out at paragraph 3 of this decision. Accordingly the application was properly entertained pursuant to clause 99 of the WC Regulation. I note that all proceedings were not completed at the time of at the time of lodgement of the Application for Assessment of Costs. The delegate’s Statement of Reasons also notes the incomplete proceedings. Therefore the assessment must in my view be restricted to those activities/events which were subject to the order for costs.
Of particular relevance to the matters raised on appeal are Clause 4(1)(c) of Schedule 6 of the WC Regulation which states that “no costs are payable for any distance travelled in excess of the shortest practicable route (depending on the mode of travel used)” and the further restriction contained under Clause 84 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 and Orr. These decisions set out the Commission’s reasoning and application of the authority provided in Fuentes in respect of the maximum amount allowable under the Table being the maximum total for the type of activity/event set out in Column 4.
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).
In accordance with Clause 82 of the WC Regulation the claim for disbursements 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)
It is not reasonable to claim a cost as a disbursement that has already been the subject of a claim under Schedule 6 of the WC Regulation (Berger).
Did the delegate err in not allowing the full costs claimed?
The authorities relied upon by Mr Edwards’ solicitor do not, in my view provide any statement of authority establishing that in the absence of submissions in reply the delegate must issue an assessment in the full amount claimed. In my view, the WC Regulation requires the Registrar to conduct proceedings with regard to procedural fairness. Clause 110 sets out mandatory considerations to be applied by the Registrar when dealing with an application relating to the costs payable as a result of an order by a Court or the Commission. The Registrar is required to consider “whether or not it was reasonable to carry out the work” and “what is a fair and reasonable amount of costs for the work concerned”. I accept Hanlon’s solicitor’s submissions in this regard. The delegate’s Statement of Reasons refers to his application of the test provided in accordance with Clause 110. Mr Edwards’ solicitor’s submissions are not sustainable in the presence of a clear legislative regime which places an obligation on the Registrar to assess the costs claimed in accordance with mandatory considerations and also outlines additional factors to be taken into account by the Registrar pursuant to Clause 111. Further I note that the WC Regulation does not contain a default provision allowing an applicant to be entitled to all amounts claimed because of the absence of submissions in reply. Therefore I reject this ground of appeal.
Did the delegate err in determining Items 4.12 and 9.01 of the Table?
Item 4.12
On my assessment Mr Edwards’ solicitor claimed $190.00 for the costs of reporting to his client on the outcome of the teleconference conducted on 27 May 2004 (claimed as 31 May 2004) and a further $380.00 for reporting on the outcome of the conciliation conference and the arbitration both conducted on 5 July 2004. On my assessment Mr Hanlon’s solicitor did not make a claim for the teleconference conducted on 17 May 2004. The delegate disallowed the claim for reporting to his client between the conciliation and the arbitration phase of the conference and reduced the claim by $209.00 (including GST).
On appeal Mr Edwards’ solicitor submits that a proper interpretation of the decision in Fuentes permits two allowances one for the conciliation and a further for the arbitral hearing.
In McManus the Commission held that an allowance can be made for reporting to a client after both ‘a’ teleconference and ‘a’ conciliation/arbitration conducted on the same day. In doing so the Commission applied the obiter view expressed by Ipp JA in Fuentes to the Commissions procedures (see discussion in McManus paragraphs 22-29). The decision in Fuentes was also considered by the Commission in Harvey v JJC Group Pty Limited[2006] NSWWCCPD 329 in which ADP Handley noted:
“... There is an exception to the general principle in relation to the column 4 maximum total in respect of Item 4.12, following Fuentes (Orellana Fuentes v Standard Knitting Mills Pty Limited & Anor [2003] NSWC 16) so that the maximum of $190.00 may be allowed in respect of each conference or conciliation/arbitration.”
In my view, the delegate properly applied the authority provided in McManus in allowing the claim in respect of a report back following the teleconference claim and a further report following the conciliation/arbitration. Accordingly I reject this ground of appeal.
Item 9.01
Mr Edwards’ solicitor claimed $625.00 for the costs of filing “lengthy submissions with regards to the [AMS’s] determination”. The submissions do not provide further particulars of the claim. The delegate determined that the work described was part of the proceedings and not a separate substantive legal issue and disallowed the claim.
On appeal Mr Edwards’ solicitor does not seek to dispute the basis of the delegate’s determination as it relates to the claim for submissions to the AMS and on the evidence before me I am not satisfied that the delegate erred in his determination in this regard. I note in passing that if Mr Edwards’ solicitor’s submissions are in respect of a medical appeal they should properly be entertained under Item 5.01 and refer to the relevant file. Mr Edwards’ solicitor submits on appeal that Hanlon’s solicitor did not file submissions “and therefore it is submitted that the order should be that the Applicant [sic Respondent] pay the costs of proceedings”. Mr Edwards’ solicitor maintains the clam for $625.00 for preparing the costs “pursuant to Regulations 119, 120, 121 and 122 of the WCR 2003” in the amount of $625.00 (plus GST) and a further $625.00 “pursuant to Clause 142 of the Workers Compensation (General) Regulations 1995” in the amount of $625.00 (plus GST) for the costs of the appeal. Clause 142 of the Workers Compensation (General) Regulations 1995 was repealed on 1 September 2003 and is expressed in substantially similar terms to clause 119 of the WC Regulation. Accordingly I have interpreted Mr Edwards’ solicitor’s submissions as claiming the costs of the assessment and the costs of the appeal. I will deal with the costs of the appeal below.
The activity/event for which a claim may be made under Item 9.01 is described in Column 2 of the Table as “Conduct of any other proceedings before the Commission involving the determination of substantive legal issues, including preparatory work”. This includes a claim for the cost of a costs assessment (see discussion in Dixon v National Engineering Pty Ltd [2006] NSWWCCPD 300 at paragraph 19). On my assessment Mr Edwards’ solicitor claimed a total amount of $16,148.39 the delegate awarded a total amount of $10,111.39. I am not persuaded that the delegate erred in his discretion not to award costs. Particularly in circumstances where Hanlon’s solicitor attempted negotiations in correspondence dated 21 July 2004 and invited Mr Edwards’ solicitor to submit an amended claim at the conclusion of all of the Applicant’s proceedings, and where ultimately the claim greatly exceeded the delegate’s award (see also discussion in Norris v Frank Whiddon Masonic Homes of NSW[2006] NSWWCCPD 357 at paragraphs 107-116).
Did the delegate err in determining the costs of disbursements?
Agency fees
Mr Edwards’ solicitor claimed a total of $220.00 as a disbursement with regards to agency fees incurred in respect of filing, inspecting, photocopying and claiming legal professional privilege over documents. The submissions also provided a reference under Item 10.01. The delegate disallowed the claim and noted that the maximum amount had been claimed in relation to inspection of documents.
On appeal Mr Edwards’ solicitor submits that Items 10.01 and 2.05 have no application to this claim as they relate to work undertaken by a solicitor and it is necessary for a country solicitor to instruct an agent to inspect and photocopy documents located in Sydney. Therefore the claim should be allowed. I do not considered the costs incurred in the agent filing documents necessarily incurred particularly in circumstances where a less expensive means of filing and service is permitted and I note that the delegate allowed the claim under item 4.01 in the maximum. Further, 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. Additionally Items 4.02; 4.03A and 4.03B also relating to lodgement and service of documents were allowed as claimed. I apply the reasoning set out in Dunn and Flegerbein in rejecting this ground of appeal.
The Report
On my assessment Mr Edwards’ solicitor claimed a total of $3,206.50 for the costs of the Report. The delegate found that the work claimed amounted to the work that a solicitor could charge for taking instructions and as Mr Edwards’ had already claimed the maximum for item 2.01 he was not entitled to make a further claim. The delegate disallowed the claim in the amount of $3,106.50 [sic $3,206.50].
On appeal Mr Edwards’ solicitor claims $3,106.50 for the costs of the Report and submits that the delegate erred in failing to apply the test of ‘fair and reasonable’. Further it is submitted that as the respondent did not raise an objection and the Report was filed in proceedings therefore costs should allowed. I have dealt with these submissions at paragraph 21 of this decision and I do not propose to revisit this issue. In submissions dated 19 June 2006 Mr Edwards’ solicitor refers to WCC2225-04; WCC8783-03 and WCC460-06 in support of his submission that the Report was relied upon in proceedings. As stated at paragraph 6, the application before the delegate and before me on appeal is in respect of the costs incurred at the date of the Arbitrator’s order in respect of WCC2225-04.
In my view the delegate was required 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). The delegate’s disallowance of the claim on the basis the invoices supplied by the agent amount to the work that a solicitor “could” charge for taking instructions does accord with the application of the assessment required by the LP Regulation. Accordingly I find that the delegate erred in this regard. If I am wrong in my application of the legislation I also find that the delegate’s reasons are inadequate to sufficiently demonstrate that he applied the LP Regulation as required and exercised his statutory duty, to fairly and lawfully determine the application (Cargill Meat Processors Pty Limited v Clark[2005] NSWWCCPD 7).
The Report filed in WCC225-04 is dated 27 February 2003. The index to this report is at odds with the contents of the Report. Doing the best I can in reconciling the Report with the index I find that the Report extends over five pages and attaches a statement from Mr Edwards. I am not persuaded that the documents following the statement being: a list of claim payments; correspondence from Arnold Lawyers to McCabe Partners Lawyers; correspondence from McCabe Partners Lawyers to Arnold Lawyers and an unsigned schedule of earnings, form part of the Report. Further I do not consider these documents relevant to my determination of this claim.
In summary the Report contains: names, addresses and contact details for Mr Edwards; Hanlon; the Insurer; the Superannuation Company; Mr Edwards’ medical practitioners, and medico-legal consultant for the Insurer; a summary of injuries; a factual and liability summary and a description of the scene of “Alleged Injury” which sets out details of Mr Edwards’ duties and injury; observations regarding common law entitlements and commentary regarding the authenticity of the claim, and a summary of Dr Isbister’s report dated 13 January 2002. Information relating to Mr Edwards’ injury; Mr Edwards’ medical practitioners; address; employment and the Hanlon’s insurer; is contained in his statement. I find that the Report, in this respect, duplicates material filed in the proceedings and was not necessary to the claim (Berger; Asmimus and Flegerbein). Additionally I do not view the observations of the investigator in respect of authenticity or common law entitlements necessary to the claim. Further I note that Mr Edwards’ stated at paragraph 39 of the statement that he had been requested to see Dr Brearley by McCabe. Dr Brearley’s report to McCabe Partners is dated 12 July 2002 and is attached to the Application. It sets out many of the details contained in the Report. Accordingly the information contained in the Report cannot be considered to be ‘necessarily incurred’ in that it either duplicates material filed in proceedings or because the evidence leads to a conclusion that the material was in the possession of Mr Edwards’ solicitor prior to him providing instructions to the agent on 12 November 2002. Therefore the cost of the Report in this respect is not allowed.
Accordingly the remaining matter for consideration is Mr Edwards’ statement. I note that Mr Edwards’ 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 Edwards’ 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 45 minutes by a non professional and when typed it extends over approximately 5 pages. In my view it is reasonable to allow one hour for the costs of the statement including typing and in applying the allowance for similar work under Item 2.04A I allow the claim in the amount of $110.00 (including GST).
Travel
Mr Edwards’ solicitor claimed $501.50 for travel from Young to Sydney, $137.50 for accommodation and $75.00 for substance all to attend the conciliation/arbitration, being a total of $714.00. The delegate found that the total claim of $714.00 was “Not allowed under Schedule 6”.
On appeal Mr Edwards’ solicitor relies upon the authority provided by the Commission’s decision in Orr in support of his submission that the delegate failed to provide sufficient reasons for his decision and this failure gives rise to an error of law. It is also submitted that the delegate failed to have regard to the Commission’s file in making his determination and this failure to consider relevant material gives rise to an error of law. Mr Edward’s solicitor also refers to the Table in support of his claim.
The claims for Mr Edward’s solicitor’s travel and accommodation are encapsulated under Items 10.02 and 10.03 of the Table and I find error in the delegate’s determination not to consider these claims in accordance with Schedule 6 of the WC Regulation. I find the claim of $120.00 for accommodation incurred in relation to attending the conciliation/arbitration to be reasonable and in accordance with the allowance provided under Item 10.03 of the Table. For travel 850 kilometres is claimed at $0.59 per kilometre. The test of ‘fair and reasonable’ must be applied and having considered a similar claim in the matter of Dellar v Jim Morrissey Bricklaying Pty Limited trading as James Morrissey [2007] NSWWCCPD 11 I find the distance of approximately 700 kilometres (following the deduction of 50 kilometres) to be a reasonable allowance and I make an allowance of $413.00 under Item 10.02 of the Table. The subsistence claim is properly considered as a disbursement and I am satisfied that the claim of $75.00 for subsistence was ‘necessarily incurred’ and the amount claimed is in my view reasonable.Accordingly the total allowance made for travel, accommodation and subsistence is $608.00.
Summary
I have determined the professional costs challenged by Mr Edwards’ solicitor as follows:
Professional costs and disbursements
The delegate’s allowance under Item 4.12 is confirmed.
The delegate’s disallowance of the claim under Item 9.01 is confirmed.
The delegate’s disallowance of the costs of travel; accommodation and subsistence is revoked.
A total allowance of $608.00 is made for the costs of travel, accommodation and substance.
The delegate’s disallowance of the claim for agency fees claimed as disbursements is confirmed.
The delegate’s disallowance of the claim for the Report is revoked.
The costs of $110.00 (including GST) were necessarily incurred and are allowed.
The Delegate’s determination of $10,111.39 should therefore be increased by a total of $718.00 to $10,829.39.
DECISION
Paragraphs one, two and four of the decision of the delegate dated 23 January 2006 are revoked and the following orders are made in their place:
“(i) Pursuant to Orders dated 30 July 2004, the Respondent is liable to pay the Applicant’s costs of the Application as agreed or assessed.
(ii) The Applicant’s costs of the substantive proceedings are assessed in the sum of $10,829.39.
(iii) The Respondent is, therefore, to pay to the Applicant a total amount of $10,829.39 if those costs have not already been paid.”
Paragraph three of the delegate’s decision disallowing the costs of the assessment is confirmed.
COSTS
I have summarised Mr Edward’s solicitor’s claims in respect of the appeal at paragraph 27 of this decision. The Appellant has been in part successful on appeal.
The appropriate order is therefore that: “The Respondent Hanlon, pay the Appellant Mr Edwards, $275.00 inclusive of GST in respect of his costs in this appeal.”
Elizabeth Tydd
Acting Deputy President
27 February 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.
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