Fieldsend v Gail Geddes and Ian David Geddes trading as Warranboo Partnership
[2007] NSWWCCPD 16
•17 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Fieldsend v Gail Geddes & Ian David Geddes t/as Warranboo Partnership [2007] NSWWCCPD 16
APPELLANT: Bruce Ian Fieldsend
RESPONDENT: Gail Geddes & Ian David Geddes t/as Warranboo Partnership
INSURER:Gallagher Bassett Services (formerly Allianz Australia Workers Compensation (NSW) Limited)
FILE NUMBER: WCC12421-05
DATE OF REGISTRAR’S DECISION: 20 December 2005
DATE OF APPEAL DECISION: 17 January 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claim under Items 2.05, 2.06, 4.04, 4.08 and 4.12 of the Compensation Costs Table in Schedule 6 of the WorkersCompensation Regulation 2003; disbursements - investigator’s report.
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Goldbergs Lawyers
ORDERS MADE ON APPEAL: 1. The decision of the Registrar dated 20 December 2005 is confirmed.
2.No order as to costs of the appeal.
BACKGROUND
Substantive Proceedings
On 10 December 2004 Bruce Ian Fieldsend (‘Mr Fieldsend’) commenced proceedings in the Workers Compensation Commission (‘the Commission’) against Gail Geddes & Ian David Geddes t/as Warranboo Partnership (‘Warranboo Partnership’) claiming medical and related expenses and lump sum compensation.
A teleconference was held with the parties on 28 June 2005 when the matter resolved. A Certificate of Determination was issued on 29 June 2005 which included an order that Warranboo Partnership pay Mr Fieldsend’s “costs as agreed or assessed”.
The parties did not agree on costs and Mr Fieldsend’s solicitor lodged an Application for Assessment of Costs on 26 July 2005.
The costs were determined by the Registrar’s delegate, a Commission Arbitrator (‘the Delegate’) on 20 December 2005. The decision is as follows:
“1. Pursuant to An Order 29 June 2005 the Respondent employer is liable to pay the Applicant’s costs of the proceedings as agreed or assessed.
2.The Applicant’s costs of the proceedings are assessed at $6,206.00.
3.The Applicant’s costs of the assessment are not allowed.
4.The Respondent is to pay the amount of $6,206.00 to the Applicant if those costs have not already been paid.”
On 23 January 2006 Mr Fieldsend lodged an appeal from the Delegate’s decision.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Warranboo Partnership submit that the matter should be dealt with ‘on the papers’ whilst Mr Fieldsend is silent on this issue.
I have both the Commission file regarding the cost dispute and the appeal file. In addition I have the substantive file and am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
Mr Fieldsend’s solicitor submits that the Delegate erred in relation to professional costs and claim under Item 2.05, Item 2.06, Item 4.04, Item 4.08 and Item 4.12.
Mr Fieldsend’s solicitor further submits that the Delegate erred in relation to the costs of a private investigator’s report which is a disbursement.
PRELIMINARY
Part 19 of the Workers Compensation Regulation 2003 (‘the Regulations’) govern both the procedure for assessment of costs and appeals against such an assessment.
Clause 119(1) of the Regulations limits the grounds on which an appeal may be made against the determination of the Registrar on an assessment of costs to a matter of law. As Deputy President Fleming stated in Berger v Moree Plains Shire Council [2005] NSWWCCPD152 (‘Berger’s case’):
“The determination of these questions by a costs assessor, is a matter of discretion and, as I said in Nebauer v Hunter Area Health Service [2004] NSWWCCPD 60 (at para 19):
“Only where the discretion can be said to have miscarried because it was exercised unfairly and unlawfully, taking into account the scope of the discretion, and the objects or purpose for which it is conferred, would it be an error of law (Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 758; R v Australian Broadcasting Tribunal; ex p 2HD Pty Ltd (1979) 144 CLR 45 at 49; Sheridan v David Anthony Clarke t/as Freestyle Marine Sports [2003] NSWWCCPD9).””
Warranboo Partnership submit that Mr Fieldsend failed to lodge the appeal against the Delegate’s determination within 28 days in accordance with Section 352(4) of the 1998 Act (the appeal was lodged 3 days outside the 28 day period, although I note there were public holidays in the period). This Section only applies to appeals from an Arbitrator in ‘connection with a claim for compensation’. It does not apply to appeals from the determination of the Registrar on an assessment of costs which as stated above are governed by Part 19 of the Regulations. There is no strict time limit on appeals from an assessment of costs.
SUBMISSIONS, DISCUSSION AND FINDINGS
Professional costs
Item 2.05
Item 2.05 provides a maximum amount of $100 for ‘briefing a factual investigator or other investigator to obtain evidence other than witness statements (not including the investigator’s fee)’. Mr Fieldsend’s solicitor claimed the maximum amount and submitted to the Delegate in the assessment of costs that, among other things, injury and substantial contributing factor were in issue and therefore it was reasonably necessary to brief a factual investigator.
In reply, Warranboo Partnership submitted to the Delegate that as Mr Fieldsend was in receipt of voluntary payments of weekly compensation, the only real issue was quantum of the lump sum compensation and that accordingly it was not necessary to brief a factual investigator.
The Delegate disallowed the claim as “in the circumstances of this matter, the claim is not reasonably made here”.
On appeal Mr Fieldsend’s solicitor submits that the Delegate erred at law because he had no evidence to formulate such view and failed to consider the record of the Commission. It is further submitted that an investigator’s report assists the worker’s solicitor because he has limited time allowed under Item 2.01. It is again submitted that quantum was not the only issue and in support of this submission a copy of a letter from Warranboo Partnership’s solicitor to Mr Fieldsend’s solicitor is annexed. This letter dated 18 October 2004 requests Mr Fieldsend’s solicitor to provide full particulars of employers in the 12 month period before injury. What is not annexed is a copy of Mr Fieldsend’s solicitor’s correspondence in reply dated 1 December 2004 where he states he is not paid to gather this information but will instruct a factual investigator to do so if required. I have not sighted any later correspondence on this issue in the files before me.
I am not satisfied that the Delegate erred at law or in the exercise of his discretion. Although the Reply to the Application to Resolve a Dispute did put a number of matters in issue, including injury and substantial contributing factor, the matter was clearly a straightforward lump sum claim. Mr Fieldsend was in receipt of voluntary payments of weekly compensation and the matter resolved at the teleconference after the issue of the Medical Assessment Certificate of Permanent Impairment.
Item 2.06
Item 2.06 allows a maximum amount of $500 (at the relevant time) for ‘requesting a review of the claim from the insurer, prior to referral of the matter to the Commission’. Mr Fieldsend’s solicitor’s claim is based on a letter sent to the insurer on 13 September 2004. This letter annexes a draft Application to Resolve a Dispute and sets out the claim made by Mr Fieldsend. The letter also seeks a review.
Warranboo Partnership objected and the Delegate disallowed the claim because it was not reasonable to seek a review of the claim at the same time and in the same letter which sets out the claim.
Mr Fieldsend’s solicitor submits that Item 2.06 is time based and does not state that “the insurer has to be put on notice of the claim and then later on a request is made for the insurer to review the claim”. I fail to understand this argument. The word ‘review’ means a viewing again; a second or repeated view of something (The Macquarie Concise Dictionary).
I see no error of law or discretion on the part of the Delegate.
Item 4.04
Item 4.04 allows (at the relevant time) $60 per objection, up to a maximum of $120, for ‘lodging an objection to a request for a direction for the production of documents’.
Mr Fieldsend’s solicitor claimed $60 for an agent to attend the Commission to review documents of Dr Jude and claim privilege. Warranboo Partnership objected and the Delegate disallowed the claim because the Item specifically relates to the lodging of an objection to a request for a direction for the production of documents, which is not the same as reviewing documents in order to consider privilege.
Mr Fieldsend’s solicitor has put forward the same submission on appeal. Having regard to the wording of the Item I see no error on the part of the Delegate.
Item 4.08
This Item provides a maximum amount of $500 (at the relevant time) for ‘preparing for a conference (including providing advice to client)’. Mr Fieldsend’s solicitor claimed $500 in respect of the first teleconference on 18 February 2005 and a further $500 in regard to the second teleconference on 28 June 2005. The Delegate reduced the claim to $500 on the authority of Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28 (‘Orr’). In this matter Deputy President Fleming considered the maximum amount allowed for events and stated:
“The monetary values set out in Column 4 of the Table, are the maximum total for an event type in any particular claim, regardless of the number of individual activities that may take place under that event heading.”
Mr Fieldsend’s solicitor submits that it is an error of law to limit the costs recoverable to one conference (or two) to resolve a particular dispute when that is not provided for in the Regulations. Having regard to the authority of Orr I see no error of law in the Delegate’s determination to allow the sum of $500 under this Item.
Item 4.12
This Item provides for a maximum amount of $190 (at the relevant time) for ‘reporting to the client on the outcome of a conference or arbitration’. Mr Fieldsend’s solicitor claimed the sum of $190 for reporting to the client after the first teleconference on 18 February 2005 and a further $190 for reporting to the client after the second teleconference on 28 June 2005. The Delegate allowed only $190 on the authority of McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’).
In McManus Deputy President Fleming followed Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282 (‘Fuentes’) and determined that so far as Item 4.12 is concerned, the maximum amount of $190 may be allowed after the telephone conference and a further $190 allowed after the conciliation/arbitration.
There was no conciliation/arbitration in this matter which as I stated above resolved after the second teleconference. In accordance with the decision of McManus I can see no error of law or discretion on the part of the Delegate.
Disbursements
Private Investigator’s Fee
In the Application for Assessment of Costs, Mr Fieldsend’s solicitor claimed the sum of $1,611.61 as a disbursement to cover the cost of a Private Investigation Report.
The Delegate disallowed the claim having regard to the nature of the proceedings which involved a lump sum claim and the ultimate determination “effectively 5% whole person impairment at $6,250 under S.66 of the 1987 Act”. The Delegate stated that he was “not satisfied that there is any reasonable basis for this claimed disbursement”.
Mr Fieldsend’s solicitor submits on appeal the Delegate erred because he only considered the Invoice for the investigator’s report and has not had access to the record in the Commission. It is further submitted that as Clause 82(b) of the Regulations specifically excludes fees for investigator’s reports from Part 19 of the Regulations, there is no limit on the fees associated with an investigator’s report. It is also submitted that the Delegate erred because of the use of the words “fair and reasonable amount” and this suggests the Delegate considered the matter under Rule 110 of the Regulations.
Although I agree with the submission that Clause 82(b) of the Regulations does exclude investigator’s fees from Part 19, I do not accept the further submissions. The costs of an investigation report must be assessed in accordance with the Legal Profession Act 2004 (‘the LP Act’) and the Legal Profession Regulation 2005 (‘the LP Regulation’) (Berger’s case). Deputy President Fleming in Berger’s case stated the test in the LP Regulation is as follows:
“The correct test is whether the disbursement was ‘reasonably incurred or was reasonable in amount’ and whether the total amount allowed was a ‘fair and reasonable’ amount in relation to the value of the service provided.”
As I stated in Chakti v H & B Construction Services Pty Limited [2006] NSWWCCPD 358 I see no error in the Delegate’s use of the terminology ‘fair and reasonable amount’ having regard to the test as referred to above in Berger’s case.
In my opinion the Delegate did not exercise his discretion unfairly or unlawfully having regard to the issues and amount involved in the substantive proceedings.
The Delegate’s decision not to allow costs
The Delegate made no order as to costs which Mr Fieldsend’s solicitor has challenged on appeal. I see no error in the Delegate’s discretion as Mr Fieldsend’s solicitor was unsuccessful in all 5 professional Items in dispute whilst succeeding in 2 of the 3 disbursements disputed.
DECISION
The Decision of the Registrar dated 20 December 2005 is confirmed.
COSTS
I make no order as to the costs of the appeal.
Julian Martin
Acting Deputy President
17 January 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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