Greenaway v HJ, VP & DH Pahlow trading as Adavale Pastoral Co

[2006] NSWWCCPD 353

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Greenaway v HJ, VP & DH Pahlow t/as Adavale Pastoral Co. [2006] NSWWCCPD 353

APPELLANT:  Henry Louis Greenaway

RESPONDENT:  HJ, VP & DH Pahlow t/as Adavale Pastoral Co.

INSURER:C G U Workers Compensation (NSW) Limited

FILE NUMBER:  WCC8808-05

DATE OF REGISTRAR’S DECISION:             1 November 2005

DATE OF APPEAL DECISION:  19 December 2006

SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; Items 1.01, 2.04, 2.05, 2.06 and 10.01of the Compensation Costs Table to Schedule 6 of the WorkersCompensationRegulation 2003; disbursements - investigator’s report.

PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy

HEARING:11 December 2006

REPRESENTATION:  Appellant:      McCabe Partners, Lawyers

Respondent:   Lyons Barnett Kennedy, Solicitors

ORDERS MADE ON APPEAL:  Paragraphs 2 and 4 of the decision of the Registrar’s delegate made on 1 November 2005 are revoked and the following decision is made in their place:

“2.  The Applicant’s costs of the proceedings are assessed at $6,030.75.

4.  The Respondent is to pay the amount of $6,030.75 to the Applicant if those costs have not already been paid.”

No order as to costs of the appeal.

BACKGROUND

1. On 22 November 2005 Henry Louis Greenaway (‘the worker’) filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator.

1. The respondents to the Appeal are HJ, VP & DH Pahlow trading as Adavale Pastoral Co. (‘the employer’).

1. The Registrar’s decision (by her delegate, a Commission Arbitrator) (‘the delegate’) made on 1 November 2005, is as follows:

   “1.Pursuant to Determination Consent Orders of 3 March 2005 of the Commission 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 $5,590.75.

   3.There is no order as to costs of assessment.

   4.The Respondent is to pay the amount of $5,590.75 to the Applicant if those costs have not already been paid.”

2. The worker was a shearer who worked for the employer on a day in February 1998 which was either the 5^th or 6^th. This was, it appears, the last day on which he did shearing. There were proceedings in the Compensation Court, No. 49573 of 1998 against the employer and another respondent, which were settled by commutation in accordance with Short Minutes dated 3 November 1999. Excluded from the settlement, however, was any claim for industrial deafness. Such claim was made on 28 October 2002. On 7 July 2004 an ‘Application to Resolve a Dispute’ was registered in the Workers Compensation Commission (‘the Commission’). There was a teleconference on 8 October 2004 at which the question as to the extent of the worker’s binaural deafness was referred to an Approved Medical Specialist, Dr Carroll. He saw the worker and reported on 13 December 2004 assessing this. At a teleconference on 25 February 2005 the matter was noted to be settled in accordance with an agreement under section 66A of the WorkersCompensationAct 1987 (‘the 1987 Act’) which was registered on 14 April 2005.

3. As part of the settlement the employer agreed to pay the worker’s costs as agreed or assessed. The parties entered into correspondence as to these costs and substantial agreement was reached apart from four or so items. An ‘Application for Assessment of Costs’ was lodged with the Commission on 8 June 2005 stating that costs and disbursements which were not in dispute totalled $5,596.35. The four items said to be in dispute were Items 1.01 and 10.01 of the Table to Schedule 6 of the WorkersCompensationRegulation 2003 (‘the WC Regulation’), together with disbursements relating to clinical notes and private investigator’s fees. Submissions were made by both parties confined to these matters. The delegate proceeded to assess all of the costs without regard to the agreement said to have been reached with the result set out in paragraph 3 above. The Appeal from the Registrar’s Determination on Costs is in relation to six matters in all, namely: Items 1.01, 2.04, 2.05, 2.06 and 10.01, together with the private investigator’s fees. The delegate allowed the disbursement relating to the clinical notes, however it is apparent that costs in relation to Items 2.04, 2.05 and 2.06 were reduced or disallowed by the delegate although not the subject of a request to assess them and in respect of which no submissions had been made to the delegate by the parties.

HEARING

1. On 11 December 2006 a teleconference was held with a view to clarifying which items had been agreed and in what amount prior to referral to the delegate. These matters remained unclear on the written submissions made.

SUBMISSIONS

Professional Costs

Item 1.01

1. This Item relates to “obtaining and reviewing medical reports”. Originally the sum of $600.00, the maximum prescribed in column 4 of the Table to Schedule 6 of the WC Regulation was claimed. The Arbitrator allowed $400.00 in relation to this Item. At the teleconference the worker’s solicitor agreed to accept the amount allowed by the delegate and this matter on appeal was accordingly not pressed.

   Item 2.04 

2. The worker’s solicitor had originally claimed $675.00 in respect of this Item.  However, it was stated that agreement had been reached with the employer’s solicitor that the sum of $300.00 would be accepted.  This was confirmed at the teleconference.  The delegate allowed nothing and said the following:

   “Claimed for ‘Referring Applicant to medical practitioner’ (five (5) separate doctors listed) at $675.00.  There is no such table item by this description.  Further, Table Item 2.04 has a limit maximum of $600.00 (quite aside from there being no foundation for a claim by this description). It is disallowed.”

3. The employer’s solicitor relies on what was said in Berger v Moree Plains Shire Council [2005] NSWWCCPD 152 (‘Berger’) as follows:

   “The Commission’s broad statutory power to determine ‘by whom, to whom and to what extent’ costs are to be paid in the Commission (Section 341 of the 1998 Act) is sufficient to enable the Delegate (who is a member of the Commission by virtue of section 368 of the 1998 Act) to assess the whole of the costs which are subject to an order in Commission proceedings.  Accordingly, the costs assessor had the power to assess all the costs payable including disallowing this item.”[sic]

   The submission appears to be that notwithstanding any agreement the delegate may determine all of the costs.

   The worker’s solicitor simply submits that Berger was wrongly decided.

   Item 2.05

4. This Item relates to briefing a factual investigator to obtain evidence other than witness statements.  The maximum sum allowed is $100.00.  The worker’s solicitor submits that agreement was reached with the employer’s solicitors as to this Item. This was not disputed.

5. In relation to this, the delegate has said the following:

   “Claimed for ‘Briefing Factual Investigator – St George’ at $100.00.  It is disallowed.  Refer commentary as to investigator at disbursements”.

   The employer’s solicitor makes the same submission in relation to this as in relation to Item 2.04.

   Item 2.06

6. This Item relates to ‘Requesting a review of the claim from the insurer, prior to referral of the matter to the Commission’. The amount for an individual activity or event is $250.00 per hour while the maximum total for all events is $500.00. The amount claimed by the worker’s solicitor was $500.00 and in relation to this it appears there was no agreement reached but the employer’s solicitor had sought copies of correspondence requesting the review. The worker’s solicitor state that the employer did not put in issue Item 2.06 and it was assumed by the worker’s solicitor that the employer had received confirmation from the insurer as to this correspondence. The submission made is that it was not open to the delegate to substitute a different view of the amount given in Schedule 6, apart from the maximum sum, unless the delegate has evidence to the contrary. In respect to this Item, the delegate allowed the sum of $250.00 rather than the $500.00 claimed. He said the following:

   “Claimed for requesting insurer review at Table maximum of $500.00 on 31 October 2003.  This represents a contended two (2) ‘hours work’ requesting a review.  The matter appears to have had a spasmodic history up to this (e.g., Dr Forrest Report almost five (5) years earlier in November 1998).  That may reflect the nature of the industrial deafness history.  Nonetheless, there is no satisfactory reasonably supportive material before the assessment indicative of a two-hour ‘referral’ activity and claimed at that component is determined as not fair or reasonable in this matter.  It is allowed at one (1) hour at $250.00”.

7. In relation to this Item, it is submitted on behalf of the employer that the delegate in his discretion has determined that costs are not fair and reasonable pursuant to clause 105 of the WC Regulation. It is submitted that the Registrar’s delegate had made no error in the exercise of his discretion and the worker did not provide copies of the relevant correspondence in relation to the alleged requests for review and in the absence of that evidence the delegate was entitled to disallow the Item (Berger).

   Item 10.01

8. This Item relates to “All work associated with instructing an agent to act on the claim or a matter relating to the claim”.  The amount claimed is the maximum allowable namely $187.50 which represents three-quarters of an hour’s work at the rate of $250.00 per hour.  The worker’s solicitor refers to the statement of Ipp JA in Orellana- Fuentes v Standard Knitting Mill Pty Limited & Anor [2003] NSWCA 146 at [60] (‘Fuentes’):

   “By reason of lack of certainty in the information so given to the court, it is necessary to construe Schedule 6 substantially by reference to its own terms and not by reference to any longstanding or accepted practice adopted in proceedings before the Commission”.

   In relation to this, the delegate in disallowing the claim completely said the following:

   “Claimed for work associated with instructing agent at $187.50, the Table maximum.  The Respondent objects essentially on the basis that the activity does not properly qualify under this Item, that it is an unnecessary expense for agency intervention when documents can be filed by DX or post, and in any event the amount is excessive.  The Applicant presses this Item.  The activity essentially of filing and photocopying as substantively here does not qualify under this Item.  Further, Item 4.05 has already been claimed and allowed at the Table maximum of $500.00 and essentially amounts to a dual activity claim which is not allowed (Dunn v Port Macquarie RSL Club Limited [2004]).”

9. The employer’s submissions say that a claim under Item 10.01 depends on the nature and extent of the work for which the sum is claimed and the case relied on by the worker, namely Theo Carydis v Qantas Airways Ltd [2004] NSWWCC C2 (Carydis’) was not authority supporting this claim.

Disbursements

Private Investigators Fees

1. These are claimed in the sum of $2,011.02.  In the submissions in relation to the appeal reliance is placed on the matters raised by the employer in the reply, which are six in number, including that the claim was statute barred, noise levels were not sufficient to create a loss of hearing, the employment with railways was responsible for the loss of hearing and relating to the joinder of prior employers.  It is submitted that it was ultra vires for the Registrar to consider whether it was necessary to obtain the investigation and what was a fair and reasonable amount of cost for that work.  It is said that the Registrar does not have power to disallow or modify such a claim.  Cases are cited where investigator’s fees were allowed, including the cost of obtaining a statement from a worker. It was claimed that the matter was complex by reason of the issues raised in the reply justifying the investigation report.

1. The delegate disallowed this item in its entirety and gave lengthy reasons for doing so, which I will attempt to summarise. He noted that under clause 82(b) of the WC Regulation investigating reportage was not regulated. He noted that it was contended on behalf of the worker that the matter had some complexity, liability was in dispute and the employer could have objected to the investigation report at the conciliation phase. The delegate was of the view that this submission was not of any substance as conciliation was not “an exercise devoted to the resolution of the solicitor’s costs”. The delegate noted that the employer objected to the disbursement on the basis that the investigative element was substantively statements from the worker and his wife with a business name search. These were said to be activities which the worker’s representatives could or should have undertaken at the time of the initial instructions and the employment of the investigator’s services was not warranted in the proceedings and, in any event, the cost was grossly excessive. The delegate noted the nature of the proceedings, all of the submissions and the invoice in relation to this disbursement. He noted that miscellaneous fees in the sum of $100 were not allowable in any circumstances. Much of the invoice content reflected activity which, even as between solicitor and client, would not have foundation such as administrative tasks which are set out at length by the delegate. These matters and reference to a letter to a “barrister” he said were “illustrative of a systemic introduction of investigatory activity into proceedings and to disbursement claims of this type”. The delegate considered that, to the extent that the proceedings warranted advisory elements they were more properly encapsulated than the maximum allowance already given at Item 2.01 without more. The claim was determined as being without fair or reasonable basis and was disallowed.

1. On behalf of the employer it is conceded that the worker was a “witness” within the meaning of clause 82(b) of the Act [sic]. The employer submits that the main focus of the investigatory report was to obtain a statement from the worker which was encapsulated and absorbed by Item 2.01 in respect of which the maximum sum had already been claimed. The obtaining of a business name search was such as it is said the solicitor’s secretary or assistant would have been more than capable of carrying out. The factual and liability report is said to be a “rehash” of the statements provided by the worker and his wife. It also provides a general statement about commonly known things within the shearing industry.

DISCUSSION

Preliminary

1. An appeal from the decision of the Registrar, by her delegate, is pursuant to clause 119 of the WC Regulation. This provides:

   “(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, in accordance with the Rules of the Commission, appeal to the Commission constituted by a Presidential member against the decision. [emphasis added]

   (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 questions subject to the appeal, the Commission constituted by a Presidential member may, unless it affirms the Registrar’s order;

   (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.”

2. Extensive submissions have been made on behalf of the worker to show that errors of law were involved in the decisions made by the delegate in this matter.  A number of well-known cases are cited, however, their precise relevance to the matters determined by the delegate in this matter is obscure.  It is however said that the delegate did not refer to the worker’s submissions in determining the claim for costs.  The reply on behalf of the employer is that there was no evidence that the delegate did not consider the worker’s written submissions, even though he may not have referred to them in his determination.

Item 2.04

1. As I have earlier indicated, the delegate awarded nothing in respect of this Item, notwithstanding the agreement between the parties in the sum of $300.00.  The action by the delegate in so doing is said to be justified by the reasoning of Deputy President Fleming in Berger.  The passage in Berger which is relied on by the employer occurs at [68] and on my reading of it relates to the power of the Registrar or her delegate to assess costs including costs which may be payable under the Legal Profession Act 2004 and LegalProfessionRegulation 2005. It is not clear to me that the passage cited is authority for the proposition that upon the Registrar, or the delegate, being asked to determine certain aspects of costs as to which no agreement has been reached, the items on which agreement has been reached are also to be determined by the Registrar or the delegate. There may be a situation where in costs negotiations agreement is reached as to certain items and, in the event of failure to reach agreement on other items, it is expressly provided that the whole of the costs are then to be assessed rather than those on which agreement has not been reached. This is not such a case. Were it so, I would have expected the employer’s solicitor to have placed the relevant correspondence before the delegate and before me, however this has not occurred. The delegate was not required to assess costs in relation to Item 2.04 as this had been agreed between the parties. Accordingly, in my view, the delegate erred in so doing and the allowance under Item 2.04 should be the sum agreed, namely $300.00.

   Item 2.05

2. This, like the preceding matter was the subject of agreement in the sum of $100.00, yet the delegate allowed nothing.  For the same reasons as I have given in relation to Item 2.05, the delegate erred as a matter of law in so doing and accordingly the allowance under this Item should be $100.00.  It is puzzling that the employer agreed to this Item yet did not agree to the disbursement in relation to the investigator.

   Item 2.06

3. This was said to be a request for a review from the insurer prior to referral of the matter to Commission and was said to have taken place on 31 October 2003.  The sum of $500.00 was claimed in relation to this and the delegate allowed $250.00.  This was a matter in which no agreement had been reached since the employer’s solicitor had sought copies of the relevant correspondence so as to assess whether this item was allowable and if so in what sum. The worker’s solicitor did not include it in the original application to assess costs on the incorrect understanding that it had been agreed.  It appears that the parties were not ad idem in relation to this matter.    The letter in question is a three-page letter enclosing a draft Application to Resolve a Dispute. Section 66 permanent impairment, section 67 pain and suffering and section 60 medical expenses were sought. Two pages of the letter make standard requests for information from the employer.  The letter does use the word ‘review’ as follows:

   “Further, we request that your insurance company review the claim of the Applicant prior to the referral of the matter to the Commission.”

4. In the draft Application to Resolve a Dispute there is a statement that an offer of settlement and accompanying medical reports were forwarded to the employer on 28 October 2002. Prima facie, the worker’s solicitor has an entitlement in relation to this request for a review from the insurer. The delegate allowed the sum of $250.00 for the reasons which I have set out in paragraph [12]. The quantification of such a claim seems to me is a matter for the exercise of discretion on the part of the delegate.

1. As Deputy President Fleming said in Nebauer v Hunter Area Health Service [2004] NSWWCCPD 60 (‘Nebauer’) at [19]:

   “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, would it be an error of law (Swan Law 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 Clark t/as Freestyle Marine Sports [2003] NSWWCCPD 9).

2. I am not satisfied that the delegate has erred in the exercise of his discretion in relation to the quantum of this claim.  In my opinion no error of law has been demonstrated in relation to the allowance made in respect of this Item.

   Item 10.01

3. The maximum sum under this Item was claimed, namely $187.50, in relation to instructing an agent. I have set out the reasons given by the delegate for allowing nothing in relation to this Item.  In oral submissions the worker’s solicitor urged that it was necessary for a country practitioner such as himself to engage a city agent to ensure that documents are properly filed and objections by Registry staff dealt with expeditiously.  No amount was allowed in relation to the sums claimed under the heading “agency fees” and there is no appeal in relation to that disallowance.  Details of those agency fees appearing in the assessment for costs are as follows:

   “14.7.03         Filing

   15.6.04          Filing
    18.8.04          Filing”

   The Application to Resolve a Dispute was filed on 7 July 2004.  It was registered on 7 July 2004.  The Direction for Production addressed to the insurer has been stamped received at the Commission on 21 June 2004 and a Direction for Production addressed to the employer bears the same date.  A Certificate of Service was filed on 22 July 2004.  The only Direction for Production lodged on behalf of the employer is addressed to the worker and this was lodged on 28 July 2004.  I note that the maximum sum has been allowed under Item 4.01 , lodging of application for resolution of dispute with the Commission and also under Item 4.03 requesting the Commission to give directions for the production of documents.  The delegated noted that maximum allowance had also been made under Item 4.05.  I am not satisfied that the delegate has erred as a matter of law in disallowing this Item.  Were I to determine the matter afresh, which is not my function, I would come to the same conclusion.  I agree with the delegate’s reference to this being a duplication of costs previously allowed, as to which, see Dunn v Port Macquarie RSL Club Limited [2000] NSWWCCPD 33. That decision dealt in part with agent’s fees to inspect documents produced under direction, in particular, Item 4.05. Deputy President Fleming observed that: “To allow the Appellant [worker] in this matter to claim Item 4.05 twice, in relation to the work of a legal representative and of an agent would amount to exceeding the maximum allowable, and the items allowable, under the Regulation. This would be an error.”

   Private Investigator’s fees

4. There was a claim in the sum of $2,011.02 in relation to this disbursement.  According to the assessment of costs the factual investigator was briefed on 31 October 2003.  An investigation report dated 16 December 2003 was lodged with the Application to Resolve a Dispute.  The investigation report runs to 23 pages of which four are cover sheets describing what follows thereunder.  There is a brief index on a separate page; there is a statement of the worker of four or so pages and a statement from his wife which is three pages long.  Four pages are extracts from public records relating to the employer under the Business Names Act and its ABN status.  The investigation report itself is of just over 5 pages.  It takes the first page to set out the name and address of the worker and the name and address of the employer.  There follows the name and address of the insurer, a summary of the injuries claimed, details of the worker’s doctors, details of the employer’s medicals, and then a factual and liability summary.  In part, this factual and liability summary is almost word-for-word in accordance with the statement of the worker.  This is true to a lesser extent in relation to the statement of the wife.  The investigator makes the observation that, as a result of interviewing the worker by telephone, the investigator has come to the conclusion that he was having difficulty hearing. Dr Scoppa, an ear, nose and throat specialist, who saw the worker at his solicitor’s request on 10 September 2002 was of a similar view.  The investigator expresses the view that the shearing industry can be extremely noisy and the worker’s group certificates indicated that the employer was the last noisy employer.

5. Under the heading “Authenticity of Claim”, the investigator expresses satisfaction that on 5 or 6 February 1998 the worker was employed by the employer as a shearer and was exposed to loud industrial noise.  Comment is made on the worker’s binaural hearing loss having a significant effect on his ability to hear in the workplace and the negative affect on his career, friendships and relationship with his spouse.

6. In oral submissions it was urged that the investigation was required in order to meet the many matters raised by the employer in its reply.  It need hardly be said that the reply was not filed until seven months after the date of the investigation report, on 28 July 2004.  The worker’s solicitor’s response to this is that he had had anticipated the matters which would be raised by the employer and had arranged the investigation report in order to meet them.  The flaw which I see in relation to this is that the investigation report in no way assists the worker in relation to the matters raised by the employer in its reply.  The expression of opinion by the investigator that shearing is noisy would have of course carried no weight whatsoever in the absence of proof that an qualified person had carried out appropriate noise measurements.  This has not taken place.

7. As to the worker’s solicitors’ submission that it is ultra vires for the Registrar to reduce or disallow a disbursement which is in relation to the investigator’s report, this matter has been comprehensively dealt with in Presidential decisions over a considerable period of time.  See Asimus v J J Walker, A D Walker & Temple Pty Ltd t/as Templemore Partners [2006] NSWWCCPD 113 (‘Asimus’); Berger; Blain v Burrangong Pet Food Pty Limited [2006] NSWWCCPD 200; Calleja v Real Foods Pty Limited [2006] NSWWCCPD 175; Canham v Kenna Investments Pty Limited [2006] NSWWCCPD 202; De Jesus v Sargents Pty Ltd [2006] NSWWCCPD 328; Fenton v PD & GM Gardner t/as V6 Conversions [2006] NSWWCCPD 325; Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWWCCPD 30; Harvey v J J C  Group Pty Ltd [2006] NSWWCCPD 329; Lorkovic v Goulburn Wool Scour Pty Limited [2006] NSWWCCPD 185; McCaffery v J G & D G  Harris [2006] NSWWCCPD 317; McCrae v K T  Hine [2006] NSWWCCPD 305; McManus v Gosford City Council [2004] NSWWCCPD 61; Nebauer; Quarmby v Motor Traders Association of NSW Group Apprenticeship Schemes [2006] NSWWCCPD 324; Smith v Wandella Pet Foods Pty Ltd [2006] NSWWCCPD 312. From these cases may be gleaned the following principles:

   ·Item 2.05 does not permit a claim to brief a factual investigator to obtain witness statements.

   ·The applicable provision in relation to investigator’s fees is clause 113 and Schedule 3 Part 1 Item 10 of the Legal Profession Regulation 2005. Item 10 provides:

   “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”.

   ·The cost of obtaining a statement from an injured worker is usually claimed under Item 2.01 or 2.4A of Schedule 6 of the WC Regulation.

   ·The application of clause 105 of the WC Regulation to the investigator’s fees is an error of law.

   ·Fees for an investigator’s report are not regulated by Part 19 of the WC Regulation.

   ·In the case of the exercise of discretion by a delegate, in order to find an error of law, it is necessary to demonstrate that the delegate exercised his or her discretion unfairly or unlawfully.

8. I have already dealt with the content of the investigator’s report in some detail at [28 ]. Having regard to the relatively simple nature of this claim and failure of the investigator’s report to serve the purpose which is claimed for it, namely to meet the various defences raised by the employer, I am of opinion that this disbursement cannot be said to have been necessarily incurred within the expression used in Schedule 3 Part 1 Item 10 of the LegalProfessionRegulation 2005. Insofar as the Arbitrator has applied a different test to that provided in the Item referred to, this amounts to an error of law. However, upon my consideration of the matter afresh , I consider that the cost of the investigator’s report is not recoverable. Although the Arbitrator may have applied the wrong legal test, in my opinion he did not err in disallowing this disbursement in its entirety.

DECISION

1. Pursuant to the decision which I have reached in relation to two items which total $400 plus GST the costs allowed by the delegate are increased by that sum, namely $440. 

   Paragraphs 2 and 4 of the decision of the Registrar’s delegate dated 1 November 2005 are revoked and the following orders made in their place:

   “2.      The Applicant’s costs of the proceedings are assessed at $6,030.75.

   4.The Respondent is to pay the amount of $6,030.75 to the Applicant if those costs have not already been paid.”

COSTS

1. Although the appellant worker has been successful in relation to two items, the appeal has been largely unsuccessful.  Most of the submissions were concerned with items and disbursements in respect of which the appeal was not allowed.  Accordingly, I consider that it is not appropriate to make an order for costs.

Anthony Candy

Acting Deputy President

19 December 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE