Flegerbein v Tom B Blackburn Pty Ltd
[2006] NSWWCCPD 30
•28 February 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWWCCPD 30
APPELLANT: James Flegerbein
RESPONDENT: Tom B Blackburn Pty Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC9214-04
DATE OF REGISTRAR’S DECISION: 11 October 2004
DATE OF APPEAL DECISION: 28 February 2006
SUBJECT MATTER OF DECISION: Appeal against Registrar’s assessment of costs; Fees for Investigation Report; Agency Fees; Photocopying; Item 2.06 of Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Vandervords Solicitors
ORDERS MADE ON APPEAL: The decision of the Registrar is confirmed.
BACKGROUND
On 1 November 2004 James Flegerbein filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator.
The Respondent to the appeal is Mr Flegerbein’s employer, Tom B Blackburn Pty Ltd (‘Blackburn’). Allianz Australia Workers Compensation (NSW) Ltd is the relevant workers compensation insurer and acted for and on behalf of Blackburn.
The Registrar’s decision (by her delegate, a Commission Arbitrator) made on 11 October 2004, is as follows:
“1.Pursuant to a Certificate of Determination dated 12 September, 2003 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 $6,957.31.
3.The Applicant’s costs of the assessment are not allowed.”
Blackburn submits there has been no error of law and the determination should be upheld.
I have before me the submissions that were made to the Registrar and both parties’ written submissions on appeal. 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.
The costs regime in the Commission is discussed at length in the recent determination of Berger v Moree Plains Shire Council [2005] NSW WCC PD 152 (‘Berger’). Appeals are governed by clause 119 of the Workers Compensation Regulation 2003 (‘the WC Regulation’), which provides as follows:
“119 Appeal against decision of Registrar as to matter of law
1.A party to an application who is dissatisfied with a decision of the Registrar as to a matter of law arising in the proceedings to determine the application may, in accordance with the Rules of the Commission, appeal to the Commission constituted by a Presidential member against the decision.
2.The appeal is to be in the form approved by the Commission and be accompanied by the fee approved by the Commission from time to time.
3.After deciding the question the subject of the appeal, the Commission constituted by a Presidential member may, unless it affirms the Registrar’s decision:
(a) make such determination in relation to the application as, in its opinion, should have been made by the Registrar, or
(b) remit its decision on the question to the Registrar and order the Registrar to re-determine the application.
4.On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.”
Mr Flegerbein argues that the Registrar erred in: disallowing disbursements relating to an investigation report; reducing the costs allowable for professional work under Item 2.06 of Schedule 6 of the WC Regulation, and disallowing disbursements arising out of an agent inspecting, filing and photocopying documents.
Where these alleged ‘errors’ concern a misinterpretation of the relevant law in relation to the assessment of costs in Commission proceedings, they will be “as to a matter of law”. An ‘error’ concerning only the exercise of the Registrar’s discretion as to the quantum of costs for a particular item in the WC Regulation does not constitute “a matter of law”.
ANALYSIS
Did the Registrar err in disallowing the costs of disbursements relating to an investigation
report?
Mr Flegerbein claimed $3,564.22 for a ‘Factual and Liability Summary Report’ or ‘Private Investigator’s Report’ (referred to as an investigator’s report in this determination) from St George Registration and Investigation Services (‘SGRIS’).
The Registrar rejected the claim (along with two other claims for disbursements) stating:
“These Items are not recoverable as a Disbursement. See Clause 82 of the Workers Compensation Regulation 2003 and the Decision of Dr Gabriel Fleming in Nebauer v Hunter Area Health Service [2004] NSW WCC PD 60.”
I have considered the submissions of both parties in relation to the claim for this fee.
A similar claim arose in the matter of Berger. In that matter I decided that clause 113 of the Legal Profession Regulation 2005 (‘the LP Regulation’) (not Part 19 of the WC Regulation) applies to the assessment of costs for an investigation report claimed as a disbursement. The relevant test for a disbursement claimed under Schedule 3, Part 1, Item 10 (‘Disbursements’) of the LP Regulation is whether the disbursement was “reasonably incurred or was reasonable in amount”. As I noted in Berger, 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.
The SGRIS report contains the following items:
1.A document summarizing material in the matter headed ‘Factual and Liability Summary Report’. This gives a short summary of the history of the injury and then refers (with four dot points) to ‘negligence’ issues.
2.A statement by Mr Flegerbein, dated 26 February 2003, which should have been filed with the original application (in accordance with the Commission’s Rules).
3. Copies of medical reports filed by Mr Flegerbein with his Application.
4.Copies of the medical reports and other medical documentation filed by Blackburn in the Reply.
5.Further medical documentation namely, a compensation claim form, the employer’s report of injury form, various medical certificates, a return to work form and documents relating to fitness training fees at the Moree Police and Citizens Youth Club.
The amount claimed for the SGRIS report is $3,564.22 which includes:
·a telephone conference with Mr Flegerbein;
·time for an investigator to dictate a statement and for a secretary to type a statement;
·the preparation of the factual and legal summary; and
·sending the brief to a barrister, Mr Rob Taylor.
As Blackburn submit, the proceedings were commenced by the filing of an ‘Application to Resolve a Dispute’ on 28 April 2003 and a Reply was filed on 26 May 2003. However, the investigator’s report was filed on 31 July 2003 under an ‘Application to Admit Late Documents’. The issues in dispute were apparent from the filing of the Reply and it is not clear why a report as to liability was required when liability was not in dispute.
Issues of duplication arise in relation to the preparation of the statement of Mr Flegerbein by the investigator. Mr Flegerbein’s solicitor has claimed the maximum amount of $500 in relation to Item 2.01 of Schedule 6 and $150 in relation to Item 2.04A of Schedule 6. These cover obtaining instructions and preparing a witness statement. These items clearly relate to Mr Flegerbein as he is the only witness who filed a statement in the proceedings. It is not reasonable for a claim to also be made for an investigator to undertake this task.
Items 2.01 (in relation to obtaining instructions from Mr Flegerbein), 2.04 (obtaining and reviewing medical reports) and 2.05 (briefing an investigator to obtain instructions) have been claimed and awarded at the maximum rate.
The medical reports attached to the investigator’s report simply duplicate material filed in the proceedings. The various claim forms and certificates are items that should have been filed with the original application.
The sum of $3,546.22 is claimed for the investigator’s report as a disbursement. The matters covered by the report largely relate to legal work already covered by Schedule 6.
In my view the cost of the investigator’s report was not “reasonably incurred or reasonable in amount” and the assessment should be $nil.
Did the Registrar err in reducing the costs allowable for professional work under Item 2.06 of Schedule 6?
Item 2.06 of Schedule 6 of the WC Regulation, relates to:
“[r]equesting a review of the claim from the insurer, prior to referral of the matter to the Commission”.
The Registrar allowed a half-hour attendance under Item 2.06 based on a statement by Mr Flegerbein’s solicitor that a request was made for a review on 4 March 2003.
Mr Flegerbein’s solicitor has claimed the maximum statutory rate of $500 comprising two hours work at $250 per hour under Item 2.06 of Schedule 6 of the WC Regulation. This amount incorporates work in reviewing the file and the claim before then requesting the insurer to review the claim (‘Application for Assessment of Costs’ at Annexure ‘E’, letter of 26 May 2004). He submits that allowing only half an hour for Item 2.06 is inequitable and “may constitute an error of Law in that there has been a miscarriage of the discretion in that it has been exercised unfairly and/or unlawfully”.
Blackburn argue that Item 2.06 of Schedule 6 of the WC Regulation does not include any allowance for perusal of a file or review of a file and only relates to the costs of drafting and settling the letter requesting the review (‘Written Submissions in Reply to Applicant’s Application for Assessment of Costs’, page 3).
Mr Flegerbein submits that the solicitor has perused a number of medical reports - I note this activity is already claimed and met under Item 2.04. He also claims this item covers his activity drafting the ‘Application to Resolve a Dispute’. This is covered in Item 4.01, which has been claimed and met in full. He also claims that Item 2.06 covers drafting letters to Blackburn and Blackburn’s insurance company. The latter activity is a legitimate part of Item 2.06 if it relates to a request for review.
Additionally, although irrelevant, he submits the solicitor’s secretary has photocopied everything twice.
The Arbitrator had a discretion as to the amount to assess under Item 2.06. An error of law arises only where the discretion can be said to have miscarried because it has been exercised unfairly and unlawfully, taking into account the scope of the discretion, and the objects or purpose for which it is conferred.
I note that Mr Flegerbein refers, under the claim for Item 2.06 of Schedule 6, to three letters written in January 2003, to each of the employer, insurer and insurer’s solicitor. These letters are virtually identical. They annex medical reports and request particulars. None of the letters refer to a request to the insurer to review the claim, nor do they refer to the insurer’s statutory obligation to do so.
I am of the view that the Registrar did not err in exercising the discretion to determine the costs allowable under Item 2.06 of Schedule 6 of the WC Regulation. An amount has been allowed for half an hour (referring to a letter of 4 March 2003), which is fair and reasonable.
Did the Registrar err in disallowing the costs of disbursements arising out of an agent
inspecting, filing and photocopying documents?
Mr Flegerbein claimed:
·$223.85 – Fees to Kerry Nicholson Consultancy (‘KNC’) relating to photocopying documents produced under Direction by Dr Puxty and Dr Isaacs in June and July 2002 and attending a Mention on 23 July 2002. I note that proceedings were only commenced in the Commission on 28 April 2003.
·$726.60 – Fees to SGRIS relating to filing in 2002 (pre-dating the Commission proceedings) and 2003, inspection and photocopying and the preparation of costs and disbursements.
The Registrar reduced the assessment to $nil for these claims on the basis that they were not items recoverable as disbursements (clause 82 of the WC Regulation) nor were they items recoverable under the Costs Table (Schedule 6 of the WC Regulation).
It was not argued that KNC or SGRIS are ‘agents’ as defined in section 356 of the 1998 Act. They are therefore precluded from directly recovering any costs, by operation of clause 9 of Schedule 6 of the WC Regulation.
Mr Flegerbein submits the disbursements fall within clause 82 of the WC Regulation and are therefore not regulated by Part 19, Schedule 6 of the WC Regulation. As such, the submissions appear to assert that the Registrar’s reasons disclose an error of law because he did not consider the claim beyond indicating that it fell within clause 82.
However the costs referred to in clause 82, and therefore not regulated by Part 19 and Schedule 6, are specifically listed in sub-clauses (a) to (j) as, for example, is “fees for an investigator’s report”. All other costs that are recoverable by legal practitioners and agents in Commission matters are regulated by Schedule 6 (clause 84 of the WC Regulation). The fees claimed here are not for an investigator’s report (clause 82(b)). They are for photocopying and for other activities already covered, and claimed, under the Compensation Costs table in Schedule 6 of the WC Regulation. With respect to the claim for KNC fees relating to the inspection of the doctors’ reports, I note that $500 has already been claimed by Mr Flegerbein’s solicitor under Item 4.05 for reviewing that documentation. To allow this claim twice in relation to the work of a legal representative and of an agent would exceed the maximum allowable and would be an error (Dunn v Port Macquarie RSL Club Ltd [2004] NSW WCC PD 33).
These costs are not permitted.
DECISION
The decision of the Registrar is confirmed.
Dr Gabriel Fleming
Deputy President
28 February 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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