Gardiner v Jugarama Shearing Pty Limited
[2007] NSWWCCPD 79
•8 March 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Gardiner v Jugarama Shearing Pty Limited [2007] NSWWCCPD 79
APPELLANT: Daniel Gardiner
RESPONDENT: Jugarama Shearing Pty Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC6874-06
DATE OF REGISTRAR’S DECISION: 15 August 2006
DATE OF APPEAL DECISION: 8 March 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs – claim under Items 4.08, 4.11 and 4.12 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003; disbursement – private investigator’s report.
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL: 1. The Registrar’s determination of a Claim for Costs in this matter, dated 15 August 2006 is amended in accordance with these reasons.
2.No order as to costs of the appeal.
BACKGROUND
Substantive Proceedings
On 17 February 2004 Daniel Gardiner (‘Mr Gardiner’) commenced proceedings in the Workers Compensation Commission (‘the Commission’) against Jugarama Shearing Pty Limited (‘Jugarama Shearing’) claiming weekly benefits compensation and medical and related expenses.
A teleconference was held with the parties on 14 December 2004 and as the matter was unable to be resolved it was set down for conciliation/arbitration hearing on 1 February 2005. The matter resolved on this date and a Certificate of Determination was issued on 22 March 2005 which included an order that Jugarama Shearing pay Mr Gardiner’s “costs as agreed or assessed”.
The parties did not agree on costs and Mr Gardiner’s solicitor lodged an Application for Assessment of Costs on 3 May 2006.
The costs were determined by the Registrar’s delegate, a Commission Arbitrator (‘the Delegate’) on 15 August 2006. The decision is as follows:
“1.Pursuant to Agreements and Order dated 22 March 2005 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 $10,624.60 (inclusive of GST) are determined as fair and reasonable.
3.The Applicant’s costs of the assessment (inclusive of GST) are allowed in an amount of 302.75 [sic].
4.The Respondent is to pay the amount of $10,927.35 to the Applicant if those costs have not already been paid.”
On 14 September 2006 Mr Gardiner 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.”
Neither party has made submissions on whether the matter should be dealt with on the papers.
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 Gardiner’s solicitor submits that the Delegate erred in relation to professional costs and claim under Item 4.08, Item 4.11 and Item 4.12.
Mr Gardiner’s solicitor further submits that the Delegate erred in relation to the costs of the Private investigator’s report.
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.
The Regulations were amended by the Workers Compensation Amendment (Costs in Compensation Matters)Regulation 2006 which came into operation on 17 March 2006 and increased the amounts for various Items in Schedule 6 of the Regulations. The increased rates apply in those matters where Certificates of Determination in the substantive proceedings were issued after 17 March 2006 (Woodbury v Miles [2006] NSWWCCPD 55). As noted above the Certificate of Determination in the substantive proceedings in this matter was issued on 22 March 2005 and accordingly the increased rates do not apply.
Mr Gardiner’s solicitor in his submissions on appeal has listed the Items and disbursements in dispute. The submissions also set out the various Items and disbursements allowed by the Delegate.
The Delegate in his decision specifically allowed Items 2.01, 2.06, 4.05, 4.08 and 4.09 at the amount (plus GST) regulated prior to the Amendments of 17 March 2006. Jugarama Shearing has submitted that Mr Gardiner’s solicitor has misread the decision by stating that the Delegate allowed these Items at the increased amount regulated on 17 March 2006.
I agree with the submissions by Jugarama Shearing that the Delegate has clearly and correctly stated that Items 2.01, 2.06, 4.05, 4.08 and 4.09 are allowed at the rate regulated before the Amendments of 17 March 2006.
SUBMISSIONS, DISCUSSION AND FINDINGS
Professional costs
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 Gardiner’s solicitor claimed a total of $1,100 plus GST in respect of both the teleconference and the conciliation/arbitration hearing. The Delegate reduced the claim to $550 inclusive of GST stating that this is “the maximum that can be claimed”.
On appeal Mr Gardiner’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.
I see no error of law on the part of the Delegate. As Deputy President Fleming said in Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28 (‘Orr’s case’):
“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.”
It is further submitted that the decision of Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282 (‘Fuentes’ case’) is authority for exceeding the maximum total for an event type in Column 4 of the Table. I do not agree with this submission. Fuentes was considered by Deputy President Fleming in McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus case’) where she stated:
“The construction of 4.12 given by the Court in Fuentes, turned on the specific words of 4.12, in particular, ‘conference or arbitration’…
The approach to Item 4.12 set out by Justice Ipp in Fuentes appears to turn on the precise words of that Item. In my view it is not intended that the “maximum total for type or activity/event” in Column 4 be exceeded for the Items set out in Column 1 of the Compensation Costs Table.”
Item 4.11
Item 4.11 allows a maximum of $250 (at the relevant time) for ‘attending and participating in an arbitration hearing (other than where Item 4.10 applies),…”. Item 4.10 only applies where the Arbitrator determines that the matter is complex and no such determination was made in Mr Gardiner’s matter.
Mr Gardiner’s solicitor claimed the maximum for this Item, which the Delegate disallowed as the “matter did not proceed to arbitration”.
On appeal it is submitted that the Delegate erred having regard to the authority of Fuentes. I reject this submission. The Delegate allowed Mr Gardiner’s solicitor the maximum amount under Item 4.09 for attending and participating in the conference. As the matter resolved during the conciliation stage (conference) and did not proceed to arbitration hearing, I see no error of law or discretion on the part of the Delegate.
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 Gardiner’s solicitor claimed $190 for the teleconference and $380 for two reports to the client after the conciliation/arbitration hearing.
The Delegate allowed the sum of $190 (plus GST) for reporting after the teleconference and a further $190 (plus GST) for one report after the conciliation/arbitration hearing.
On appeal Mr Gardiner’s solicitor argues that on the authority of Fuentes the Delegate erred. I reject this submission. In McManus Deputy President Fleming followed 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. However, Deputy President Fleming stated:
“I am of the view that only one amount is recoverable under Item 4.12 after a conciliation and arbitration conference held on the same day.”
Jugarama Shearing in reply to the submissions on appeal submit that the Delegate erred in allowing two reports when the matter settled at the conciliation phase prior to the arbitration hearing. I see no error on the part of the Delegate having regard to the authority of McManus.
Disbursements
Private Investigator’s Fee
In the Application for Assessment of Costs, Mr Gardiner’s solicitor claimed the sum of $1,760.00 as a disbursement to cover the cost of a Private Investigation Report.
The Delegate reduced the claim to $165.00 for the work of obtaining statements pursuant to Item 4.08A. This Item provides the maximum of $250.00 for preparing for a conference. I assume that the Delegate meant Item 2.04A which allows a maximum of $150 for preparing witness statements.
The Delegate disallowed the balance of the Private Investigator’s Fee because it was not reasonable. On appeal Mr Gardiner’s solicitor argued that he is unable to understand the Delegate’s determination and as such this constitutes a failure to provide adequate reasons.
Jugarama Shearing submit in reply that the Delegate did not err in his determination on this disbursement.
I agree with the submission by Mr Gardiner’s solicitor that it is difficult to understand the Delegate’s determination. Not only has the Delegate referred to the wrong Item as I indicated in paragraph 29 above, but in explaining his reasons his phrasing is jumbled and as such difficult to understand. Accordingly it is appropriate that I make such determination in relation to the application as in my opinion, should have been made by the Delegate (Clause 119 of the Regulations).
Clause 82(b) of the Regulations excludes fees for investigator’s reports from Part 19 of the Regulations. This being the situation the costs of an investigation report must be assessed in accordance with the Legal Profession Act 2004 (‘the LP Act’), the Legal Profession Regulation 2005 (‘the LP Regulation’) and Berger v Moree Plains Shire Council [2005] NSWWCCPD 152 (Berger’s case). Deputy President Fleming in Berger’s case stated:
“142. The fee for an investigator’s report, whether to obtain witness statements or other factual investigations (including a statement from the worker), may be claimed pursuant to clause 82(b) of the WC Regulation. The test of whether such a report is claimable will, as discussed above, essentially be one of ‘reasonableness’. In most cases, it will not be reasonable to obtain witness statements by way of an investigator’s report, where the legal practitioner or agent has already obtained those statements, either at the time of taking instructions or at a later time, being before an application to the Commission is filed.”
The Private Investigator’s Report is made up of the following:
·Statement by Mr Gardiner;
·Statement by Mr Gardiner’s defacto, Lisa Stewart;
·Table of available work positions for Mr Gardiner;
·Business name search;
·Wage schedule and copies of taxation returns, and
·Short factual report that appears to be a summary of Mr Gardiner’s statement.
Mr Gardiner’s solicitor argues that it was necessary to obtain a factual investigation report because Jugarama Shearing had placed a number of matters in issue in the substantive proceedings including injury and substantial contributing factor. It is further submitted that the material contained in the factual investigation report was necessary for the proper determination of the matter.
Other than the witness statement of Mr Gardiner I am not satisfied that it was reasonable for Mr Gardiner’s solicitor to obtain the Private Investigator’s Report. The injury suffered by Mr Gardiner occurred in October 2001. The matter proceeded to a hearing in the then Compensation Court in March 2003 when Mr Gardiner was awarded lump sum compensation pursuant to Sections 66 and 67 of the 1987 Act. The proceedings before the Commission were based on the same injury and as stated above were in relation to weekly benefits compensation and medical expenses. Clearly liability was not seriously in issue.
The cost of obtaining a witness statement, including that of the worker, is normally covered under Item 2.01 or Item 2.04A of the Regulations. In the Application for Assessment of Costs, the claim under Item 2.01 did not include the cost of witness statements, and as Mr Gardiner’s statement was taken by an investigator it was not able to be claimed under Item 2.04A.
The statement of Mr Gardiner was taken by phone and took one hour. As a guide, Item 2.04A allowed (at the relevant time) $100 per hour for taking a witness statement up to a maximum of $150. Having regard to the circumstances of the case including:
·Liability was not seriously in issue;
·The investigator is not a legal practitioner, and
·The time taken for the interview
I consider it reasonable to allow the additional sum of $100 (plus GST of $10) for the time taken in relation to Mr Gardiner’s statement.
I make no allowance for the statement of Lisa Stewart as in my opinion it was not reasonable to obtain this statement having regard to the issue of liability.
Item 10.01
Jugarama Shearing in their submissions in opposition to the appeal have stated that the Delegate erred in allowing the sum of $187.50 in relation to Item 10.01. This is in effect an attempt by Jugarama Shearing to appeal the Delegate’s determination in regard to this Item which was not challenged by Mr Gardiner.
Appeals against an assessment of costs are governed by Part 19 of the Regulations. Clause 119(1) of the Regulations 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.”
There were no provisions in the Workers Compensation Commission Rules 2003 (now repealed) concerning appeals on costs pursuant to Clause 119 of the Regulations.
Clause 119(2) sets out the manner in which an appeal is to be lodged in the Commission. Clearly this procedure is to be followed in order that the Respondent to the appeal can then file a Notice of Opposition and supporting documentation.
Jugarama Shearing have not filed an appeal in the approved form and there is no Notice of Opposition and supporting submissions from Mr Gardiner in regard to Item 10.01. Accordingly I decline to consider this Item.
DECISION
As a result of my review the Delegate’s determination in relation to disbursements is amended as follows:
·Private Investigator’s fee; less $55.00 (inclusive of GST);
The Delegate’s determination of $10,927.35 is therefore reduced by $55.00 to $10,872.35.
The Registrar’s determination of a Claim for Costs in this matter, dated 15 August 2006 is amended in accordance with these reasons.
COSTS
I make no order as to the costs of the appeal.
Julian Martin
Acting Deputy President
8 March 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.
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