Haidary v Wandella Pet Foods Limited & Ors
[2007] NSWWCCPD 60
•21 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Haidary v Wandella Pet Foods Limited & Ors [2007] NSWWCCPD 60
APPELLANT: Khodadad Haidary
RESPONDENT: Wandella Pet Foods Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC21340-05
DATE OF REGISTRAR’S DECISION: 3 October 2006
DATE OF APPEAL DECISION: 21 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; adequacy of reasons; costs of proceedings; costs of disbursements; Item 4.09 and clause 5 of Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER: Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Moray & Agnew Solicitors
ORDERS MADE ON APPEAL: 1. Paragraphs two and four of the decision of the delegate dated 3 October 2006 are revoked and the following orders are made in their place:
“(i) The Applicant’s costs of the substantive proceedings are assessed in the sum of $10,526.50.
(ii) The Respondent is to pay to the Applicant a total amount of $10,526.50 if those costs have not already been paid.”
2. Paragraphs one and three of the delegate’s decision not to award the costs of the assessment are confirmed.
3. The Respondent Wandella, pay the Appellant Mr Haidary, $275.00 inclusive of GST in respect of his costs in this appeal.
BACKGROUND
Prior proceedings
Khodadad Haidary (‘Mr Haidary’) lodged two ‘Applications to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’). The first application was lodged on 8 April 2004 (WCC 6253-04) seeking weekly benefits compensation and medical and related expenses pursuant to section 60 of the Workers CompensationAct 1987 (‘the 1987 Act’). Mr Haidary named Wandella Pet Foods Pty Limited (‘Wandella’) as the First Respondent; Dinamix Pty Limited (‘Dinamix’) as the Second Respondent and Burrangong Pet Foods Pty Limited (‘Burrangong’) as the Third Respondent employer. Mr Haidray was employed by all three respondents as an abattoir worker and claimed to have suffered injury to his back with associated pain in his left and right legs and impairment to sexual organs as a result of the nature and conditions of his employment with Wandella from 23 January 2002 to 2 July 2002. Injuries to the same body parts were also claimed in respect of the nature and conditions of his employment with Dinamix between 3 December 2002 and 30 June 2003. Against Burrangong Mr Haidray also claimed injuries to the same body parts as a result of the nature and conditions of his employment from 3 July 2002 to 15 July 2003 and as a result of frank injuries sustained on 16 June 2003 and 15 July 2003.
On my review of the Commission’s files I am satisfied that the second application was lodged on 30 June 2005 (WCC 10399-05). That application sought to rely on the previous Application in all respects with the exception of making a new claim for weekly benefits compensation from 15 June 2004 to 5 October 2004 against the three respondents. On this basis Mr Haidary’s solicitor lodged three pages varying the details provided in Part 4 of WCC 6253-04.
The three named respondents were insured by CGU Workers Compensation (NSW) Limited (‘the Insurer’) and jointly represented by Moray and Agnew Solicitors. On 10 May 2004 a Reply to WCC6253-04 was filed in which it was submitted that the proceedings were without proper justification as Mr Haidary’s correct weekly compensation and medical and related expenses were being paid. On 21 July 2005 a Reply to WCC10399-05 was filed on behalf of the three respondents.
On my review of the Commission’s files teleconferences were conducted on 28 July and 18 August 2004 by a Commission arbitrator (‘the Arbitrator’) in WCC6253-04. On 25 August 2004 the Arbitrator issued a ‘Certificate of Determination’ ordering that the matter be struck out and making no orders as to the costs of proceeding. This determination was appealed to a Deputy President of the Commission who issued a decision dated 18 February 2005 revoking the Arbitrator’s orders and ordering that the three respondents pay Mr Haidary weekly compensation from 24 September 2003 to 13 April 2004 pursuant to section 40 of the 1987 Act.
On 23 August 2005 the Registrar directed that WCC6253-04 be joined with WCC10399-05 to allow the calculation of the weekly entitlements in matter WCC6253-04 to be determined by the Arbitrator at the teleconference scheduled for 8 September 2005 in WCC10399-05.
I am satisfied that teleconferences were conducted on 8 and 15 September 2005 in WCC10399-05. The dispute was not resolved and was set down for conciliation/arbitration on 17 October 2005.
The dispute proceeded to arbitration on that day. The Arbitrator issued a ‘Certificate of Determination’ dated 6 December 2005 noting Burrangong’s agreement to pay Mr Haidary: additional weekly compensation pursuant to section 40 of the 1987 Act for the period 24 September 2003 to 13 April 2004; medical and related expenses, and continuing weekly compensation pursuant to section 40 of the 1987 Act to make up earnings to an amount of $759.21 per week. The Arbitrator ordered that: credit be given to Burrangong for any additional payments made in respect of the period 24 September 2003 to 13 April 2004; Burrangong pay Mr Haidary interest on the arrears of weekly payments in accordance with the Commission’s Direction dated 18 February 2004; Burrangong to pay Mr Haidary’s costs as agreed or assessed, and that Mr Haidary be referred to an Approved Medical Specialist (‘AMS’) for assessment of the injuries claimed. The Arbitrator certified the matter as complex for the purposes of the assessment of costs.
In accordance with the Orders made on 6 December 2005 the assessment of injuries suffered by Mr Haidary was referred to two AMSs. On 1 August 2006 the Commission issued the Medical Assessment Certificates and a further teleconference was scheduled for 6 September 2006. The Arbitrator issued a ‘Certificate of Determination – Consent orders’ dated 8 September 2006 ordering Wandella to pay Mr Haidary: $52,500.00 pursuant to section 66; $30,000.00 pursuant to section 67 of the 1987 Act, and the costs of proceedings as agreed or assessed. The Arbitrator also noted that all issues on dispute in the “amalgamated Applications are now resolved.”
On 15 December 2005 Mr Haidary’s solicitor lodged an ‘Application for Assessment of Costs’ and referred to WCC6253-04 only notwithstanding that the proceedings were not finalised. However the submissions did note that the costs after the date that proceedings were joined were in matter WCC10399-05. In his submissions dated 18 January 2006 he referred to the orders made by the Arbitrator on 6 December 2005 that Burrangong pay the Applicant’s costs as agreed or assessed. The solicitor for Burrangong lodged submissions in reply on 23 January 2006. Mr Haidary’s solicitor lodged further submissions on 18 January; 9 March and 14 September 2006.
The Registrar’s decision in relation to this application, by her delegate, a Commission Arbitrator, (‘the delegate’) was made on 3 October 2006 following the finalisation of all outstanding issues in dispute. Pursuant to the final orders made on 8 September 2006 the delegate named Wandella as the Respondent employer for the purposes of the assessment of costs. I am satisfied that Wandella had notice of the proceedings and final order as at all times the three respondents were jointly represented. The decision was accompanied by a ‘Statement of Reasons’ which refers to the costs of proceedings in both applications. The decision is set out as follows:
“1.Pursuant to an Agreement and Order dated 8 September 2006, 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 $9,931.50 (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 $9,931.50 to the Applicant if those costs have not already been paid.”
Lodgement of the appeal
On 26 October 2006 Mr Haidary’s solicitor lodged an ‘Appeal from the Registrar’s Determination on Costs’.
On 24 November 2004 Wandella’s solicitor lodged submissions in reply to the Appeal.
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.”
Wandella’s solicitor submits that the matter is capable of being determined ‘on the papers’. Mr Haidary’s solicitor’s submissions are silent on this issue. Neither party has sought 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 Haidary’s solicitor submits that he is unable to discern form the statement of reasons how the delegate arrived at his determination in respect of Item 4.09 of the Compensation Costs Table (‘the Table’) set out in Schedule 6 of the Workers Compensation Regulation 2003 (‘the WC Regulation’); clause 5 of Schedule 6 of the WC Regulation, and disbursements being the factual investigation report (‘the Report’). Mr Haidary’s solicitor claims that the delegate erred in not allowing the costs of the assessment proceedings. These submissions in relation to each item in dispute are set out below. Wandella’s solicitor’s repeats and adopts its earlier submissions made on behalf of Burrangong and submits that the delegate’s statement of reasons are adequate to disclose his reasons for decision. Further the appeal should be dismissed as Mr Haidary’s solicitor’s submissions do not disclose any matter of law upon which to found an appeal. For ease of reference I will refer to all of the respondent’s submissions as being made by Wandella.
Following consideration of the relevant legislation I will deal with each disputed item in turn. The following matters are in dispute:
·whether the delegate erred in determining Item 4.09 of the Table;
·whether the delegate erred in determining the costs of disbursements;
·whether the delegate erred in determining the allowance pursuant to clause 5 of Schedule 6 of the WC Regulations;
·whether the delegate failed to provide adequate reasons for his decision, and
·whether the delegate erred in determining the costs of proceedings.
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’); Asimus v J.J. Walker, A.D. Walker & Temple Pty Ltd t/as Templemore Partners [2006] NSWWCCPD 113 (‘Asimus’), and Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWWCCPD 30 (‘Flegerbein’), and need not be canvassed again in this decision.
I find that the WC Regulation (and the amendment to those regulations which allows the costs to be increased by the amount of GST from 17 March 2006 (Clause 123(1)) and Legal Profession Regulation2005 (‘the LP Regulation’) apply as the order for the payment of costs was made on 8 September 2006 and the determination of the delegate was made on 3 October 2006 (see discussion in Woodbury v Miles [2006] NSWWCCPD 55). Of particular relevance to the matters raised on appeal is clause 84 of the WC Regulation 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).
The claim for disbursements must be assessed pursuant to Schedule 3, Pt 1, Item 10 of the LP Regulation which provides that “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 reasonable in the amount are to be resolved in favour of the receiving party.” 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 determining Item 4.09 of the Table?
For attending/participating in a conference under Item 4.09 of the Table Mr Haidary’s solicitor sought $375.00 for a conference conducted on 28 July 2004 and $250.00 for a conference conducted on 18 August 2004. Wandella conceded the claim in the amount of $812.50 with reference to the duration of the two teleconferences conducted on 18 February 2005 (being 11 minutes) and 24 March 2005 (being three hours). I am unable to reconcile these dates with Mr Haidary’s solicitor’s claims or the teleconferences conducted as set out at paragraphs 4-6 of this decision. In submissions dated 14 September Mr Haidary’s solicitor indicated that Item 4.09 was agreed in the sum of $375.00 (at page 10). However in the same correspondence Mr Haidary’s solicitor claimed $375.00 under this item for the conference conducted on 28 July 2004 and $250.00 for that conducted on 18 August 2004 and submitted that Wandella’s solicitor’s opposition to the claim is not based on the correct duration of the telephone conferences. Mr Haidary’s solicitor contended that the conference conducted on 18 August 2004 was conducted over 55 minutes and that conducted on 28 July was listed for 4 pm, it commenced at 4:15 pm and was conducted over 1 hour and fifteen minutes.The delegate determined that “The Applicant has satisfied me that the time taken in conferences on 18 August and 28 July 2004” and allowed the claim in the amount of $687.50.
On appeal Mr Haidary’s solicitor submits that the delegate erred in law in finding that “the Applicant has satisfied me that the time taken in conference on the 18.08.2004 and 28.07.2004” and making a total allowance of $687.50 as, in his earlier submissions dated 14 September 2006 he advised that the parties had agreed on the amount of $750.00 under this item. As I understand the submissions Mr Haidary’s solicitor seeks a further $125.00 plus GST.
I have reviewed the file and note that the Arbitrator confirmed the commencement time of the conference conducted on 28 July as 4:20 pm notwithstanding that it was scheduled to commence at 4 pm. There is no explanation as to whether the Arbitrator or the parties late attendance resulted in the delay and on balance I am persuaded that the scheduled time of 4 pm should be applied to the calculations. A review of the Commission’s files does not reveal the duration of this conference or the duration of that conducted on 18 August 2004. In the absence of evidence to the contrary I accept Mr Haidary’s solicitor’s submissions that the conference was finalised at 5:30 pm and an allowance of one hour thirty minutes should be made for that conference plus a further hour for that conducted on 18 August 2004. Therefore a calculation of two and a half hours gives rise to an allowance of $625.00 plus GST being a total amount of $687.50. Whilst I have difficulty reconciling all of the submissions with the grounds of appeal. I am satisfied that the delegate made the correct allowance based on the duration of the teleconferences and I am not satisfied that Mr Haidary’s solicitor has demonstrated that a ‘matter of law’ arises from the delegate’s determination of this issue. Additionally I am not satisfied that the delegate’s reasons are inadequate to convey the basis upon which he assessed the claim (see discussion at paragraph 25 of this decision). Accordingly I reject this ground of appeal.
Did the delegate err in determining the costs of disbursements and fail to provide adequate reasons?
Mr Haidary’s solicitor claimed $1,612.87 for the factual investigation report dated 18 January 2003 and $1,217.70 for the ‘report’ dated 23 June 2004 being a total of $2830.57 for these documents (‘the Report’).Wandella’s solicitor disputed the claim on the basis that it was not reasonably necessary for an investigator to be instructed to carry out a factual investigation and the amounts claimed are grossly excessive and include charges more in the nature of legal work. Mr Haidary’s solicitor pressed the claim as the matter was complex and the disbursement was necessarily incurred. The delegate found that “There was nothing that the investigator did that could not have been done by the solicitor in obtaining instructions.” and relied upon the decision in Berger in this regard.
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 that there was nothing that the investigator did that “could” not have been done by the solicitor in obtaining instructions does not accord with the assessment required by the LP Regulation (see discussion at paragraph 20 of this decision). 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 WCC6253-04 is dated 5 November 2003 and not 18 January 2003 as submitted. The index to this report is at odds with the contents of the Report in that the original statement and signed authorities are not annexed to the Report. In summary the Report contains: names, addresses and contact details for Mr Haidary, the three named respondents; the Insurer; Mr Haidary’s medical practitioner; a summary of injuries; a factual and liability summary and a description of the scene of “alleged injury and circumstances of injury” and describes the frank injuries claimed together with details of Mr Haidary’s duties and symptoms; observations regarding common law entitlements and commentary regarding the authenticity of the claim. Annexed to the Report is a statement by Mr Haidray; a wages schedule dated 31 October 2003 which commencing 23 January 2002 and continues to 16 July 2003 to date; taxation returns from 2001 to 30 June 2003 and correspondence from the Insurer to Mr Haidary including an injury management plan.The ‘report’ dated 23 June 2004 relied upon is an amended schedule of earnings from 3 December 2002 to 27 April 2004 prepared by Janelle Brown; a summary of wages owing and copies of Mr Haidary’s pay records. This information was filed on 9 July 2004.
Information relating to Mr Haidary’s injuries; medical treatment; address; employment and duties; employers and the 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; Asimus and Flegerbein). Additionally I do not view the observations of the investigator in respect of authenticity or common law entitlements necessary to the claim.
Accordingly the remaining matters for consideration are Mr Haidary’s statement and the information relevant to his earnings. I note that Mr Haidary’s solicitor did not claim the taking of a statement under Item 2.01. However he did make a claim under 2.04A of the Table for “Preparing witness statements”. This was conceded by Wandella’s solicitors and on my review of the delegate’s reasons he did not vary this concession.An applicant has been held to be a witness and in reviewing the Commission’s files I have not located any other statement taken for the purposes of these proceedings by Mr Haidary’s solicitor. I have located an Affidavit for the purposes of proceedings in the Compensation Court of New South Wales. On balance I am satisfied that the “witness” statement claimed by Mr Haidary’s solicitor relates to Mr Haidary’s statement and in circumstances where that claim was allowed by the delegate a further allowance is not permitted (Berger).
In relation to the information concerning Mr Haidary’s earnings I am satisfied on balance that the costs of instructing an agent to obtain this information was ‘necessarily incurred’ in circumstances where Mr Haidray required the services of a Dari interpreter; the payments made to Mr Haidray were in dispute as confirmed in Wandella’s solicitor’s submissions (and as distinct from the facts in Norris v Frank Whiddon Masonic Homes Pty Limited [2006] NSWWCCPD 357); the history of injuries date back to 2002; the claim for payments of weekly compensation dates back to 2003, and the claim was made against three respondent employers. On my assessment a total of approximately $400.00 was charged by the investigator to obtain this information. In my view this in an ‘unreasonable amount’ for the work performed. The work was undertaken by a non professional and in my view $200.00 is a ‘reasonable amount’ for obtaining and preparing the information contained in both reports. Accordingly I allow the claim in the amount of $220.00 (inclusive of GST).
Did the delegate err in determining the allowance pursuant to clause 5 of Schedule 6 of the WC Regulations?
Mr Haidary’s solicitor claimed 50% of costs against two ‘additional parties’ pursuant to clause 5 of Schedule 6 of the WC Regulations. In later submissions Mr Haidary’s solicitor repeated his claim “to take into account the first two Respondents’s you should add 100% onto the costs, which are assessed against Burrangong Pet Foods Pty Limited.” on the basis that the Arbitrator stated at paragraph 31 of his decision dated 6 December 2005 that:
“In all the circumstances I am of the opinion that the Applicant was entitled to commence proceedings against all three Respondents and the costs of joining the additional Respondents are to be agreed or assessed.”
I have considered the delegate’s statement of reasons and I can find no reference to the claim made pursuant to clause 5 of Schedule 6 or his determination of that claim. Accordingly I find that the delegate failed to provide adequate reasons for his decision in this regard (see discussion at paragraph 25 this decision).
On appeal Mr Haidary’s solicitor submits that the delegate erred in his determination as he failed to take into consideration the Arbitrator’s decision in relation to the three named respondent employers.
Clause 5 of Schedule 6 provides:
“5 Costs where multiple insurers party to claim
If more than one insurer (or any combination of insurers) is a party to a claim or a dispute or other matter in relation to a claim, the maximum costs in respect of the matter are the total of the following:(a) the costs for the matter calculated in accordance with the table,
(b) 50% of that amount per party (other than the party who made the claim),
and payment of the costs is to be shared equally among the insurers who are parties to the matter.
Note. Clause 81 provides that in Part 19 (Costs) and Schedules 6 and 7, the term insurer includes an employer.”
I have considered the principles to be applied in multiparty claims as discussed in Dunn v Direct Couriers (Australia) Pty Limited [2004] NSWWCCPD 33 (‘Dunn’) at paragraphs 34-35.
“To claim that the total of the costs claimed by the Appellant be multiplied by four also ignores the fact that, as the Registrar’s delegate notes in the reasons, the matter was not overly complicated by joining the further three insurers to the claim as each insurer was on risk for a different period, but with the same employer/Respondent.
In my view the Registrar has an overriding discretion to award costs in accordance with what is fair and reasonable for the work performed. When considering the application of Clause 5 of Schedule 6 of the Regulation the ramifications for the costs incurred, in joining multiple insurers, must be taken into account.”
The reasoning applied in Dunn has been adopted by the Commission in a number of recent decisions and I adopt the reasoning set out in Dring v Kurmala Home and anor [2006] NSWWCCPD 250 in finding that the reference to 50% “per party” in Clause 5 is a reference to the “maximum costs in respect of the matter” and it is not a percentage that is allowed automatically regardless of the nature of the claim or the reasonableness of the costs incurred.
In my view the proceedings were not entirely straight forward given the number of teleconferences conducted, the appeal against the Arbitrator’s determination to strike out proceedings; the joining of proceedings and the dispute over the amount of compensation payments. However, in my view these factors were not referable to the three respondents named in the proceedings as they were jointly represented and only one insurer was involved in proceedings. The Arbitrator’s reasons do not reflect any degree of complexity that arose as a result of the naming of three employers. Rather the certification of ‘complex’ by the Arbitrator, in my view reflected the requirement to determine the matter as resolution by consent was not possible for reasons which included the difficulty in establishing current weekly earnings. However as found by the Arbitrator the circumstances entitled Mr Haidary’s solicitor to commence proceedings against three respondents. Notwithstanding Mr Haidary’s solicitor’s failure to provide details of the additional costs he incurred in order to support his application pursuant to clause 5 of Schedule 6 I am satisfied that some limited additional costs would be incurred in commencing these proceedings and serving documentation (see discussion in Hristovski v Menzies Business Services Pty Limited & Ors [2007] NSWWCCPD 30 at paragraph 27). I have considered the activities undertaken; the proceedings in their entirety; the final assessment of professional cost noting that the maximum allowance was either conceded or permitted by the delegate in respect of the majority of the items claimed, and in the absence of specific submissions from either party I am satisfied that a total global allowance of $375.00 is a fair and reasonable amount pursuant to clause 5 of Schedule 6 of the WC Regulations.
Costs of proceedings
Mr Haidary’s solicitor claimed the costs of the assessment in the amount of $687.50. Wandella’s solicitor submitted that the costs claimed were excessive are therefore an order for the respondent to pay the applicant’s costs should not be made. The delegate found that the Applicant “had its costs significantly reduced” and did not appear to have made any reasonable attempt to resolve the issue of costs. Accordingly the delegate exercised his discretion not to award the costs of the assessment.
On appeal Mr Haidary’s solicitor submits that he recovered $9,931.50 and relies on the decision in Green v Chris McLeod Cotton Picking Pty Ltd [2006] NSWWCCPD 51 as authority that in circumstances where the applicant recovers an amount “significantly greater” than that conceded by the respondent costs should be allowed. I have considered this decision and in my view it does not provide the general statement of authority proposed by Mr Haidary’s solicitor. Further I note that the facts of that case are clearly distinguishable from those presented in this matter as the costs claimed by Mr Haidary’s solicitor are significantly greater than those allowed by the delegate.
Mr Haidary’s solicitor issued a bill of costs totalling $18,276.50. In proceedings before the delegate he submitted that $2,375.00 had been conceded and that a further $11,388.31 for costs and disbursement was claimed and disputed. The total award made by the delegate was $9,931.50. On my assessment Mr Haidary’s solicitor was unsuccessful in a substantial amount of the costs claimed and disputed. Further I am not satisfied from the submissions on the appeal that there is any proper basis for interfering with the exercise of the delegate’s discretion (see discussion in Arakelian v Freeman Adams Pty Ltd[2007] NSWWCCPD 26). I therefore reject this ground of appeal.
Summary
I have determined the disbursements and professional costs challenged by Mr Haidary’s solicitor as follows:
Professional Costs
The delegate’s allowance of $687.50 (inclusive of GST) for the claim under Item 4.09 is confirmed.
Disbursements
The delegate’s disallowance of the costs of the Reports claimed as a disbursement is revoked.
The costs of $220.00 (including GST) for the wages information obtained by the factual investigator were necessarily incurred and are allowed.
I allow a total global sum of $375.00 as a fair and reasonable amount under Clause 5 of Schedule 6 of the WC Regulation.
The delegate’s determination not to award the costs of proceedings is confirmed.
I therefore increase the delegate’s assessment of costs by $595.00.00 to a total
amount of $10,526.50.
DECISION
Paragraphs two and four of the decision of the delegate dated 3 October 2006 are revoked and the following orders are made in their place:
“(i) The Applicant’s costs of the substantive proceedings are assessed in the sum of $10,526.50.
(ii) The Respondent is to pay to the Applicant a total amount of $10,526.50 if those costs have not already been paid.”
Paragraphs, one and three of the delegate’s decision not to award the costs of the assessment are confirmed.
COSTS
The Appellant has been in part successful on appeal.
The appropriate order is therefore that: “The Respondent Wandella pay the Appellant Mr Haidary, $275.00 inclusive of GST in respect of his costs in this appeal.”
Elizabeth Tydd
Acting Deputy President
21 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.
ASSOCIATE
0
12
0