Hodges v Rodney Wallace Rowe
[2007] NSWWCCPD 41
•8 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Hodges v Rodney Wallace Rowe and anor [2007] NSWWCCPD 41
APPELLANT: Yvonne Fay Hodges
FIRST RESPONDENT: Rodney Wallace Rowe
SECOND FIRST RESPONDENT: Ian Sweeney Trust t/as The Trustee for Ian Sweeney Family Trust
THIRD RESPONDENT: Ellimatta Aboriginal Housing Corporation
FIRST RESPONDENT’S INSURER: QBE Workers Compensation (NSW) Limited
SECOND RESPONDENT’S INSURER: Allianz Australia Workers Compensation (NSW) Limited
THIRD RESPONDENT’S INSURER GIO Australia
FILE NUMBER: WCC8695-05
DATE OF REGISTRAR’S DECISION: 30 September 2005
DATE OF APPEAL DECISION: 8 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; failure to consider relevant material; fees for an investigation report; attendance fees of agents; Items 4.08; 4.09; 4.10; 4.12; 9.01, 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
First Respondent: No appearance
Second and Third Respondent: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL: 1. Paragraphs two and four of the decision of the delegate dated 30 September 2005 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 $10,376.77.
(ii) The Second and Third Respondents are, therefore, to pay to the Applicant a total amount of $10,376.77 if those costs have not already been paid.”
2. Paragraph one of the delegate’s decision referring to the order for costs contained in the ‘Consent Orders’ and paragraph three of the delegate’s decision, allowing $250.00 for costs included in the total amount ordered to be paid are confirmed.
3. No order as to the costs of the appeal.
BACKGROUND
Prior proceedings
Yvonne Hodges (‘Ms Hodges’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC 19070-04). Ms Hodges named Rodney Wallace Rowe as the First Respondent, Ian Sweeney Trading as The Ian Sweeney Family Trust (‘the Sweeney Family Trust’) as the Second Respondent and Ellimatta Aboriginal Housing Corporation (‘Ellimatta’) as the Third Respondent. Ms Hodges claimed that she suffered an injury in the course of her employment and sought weekly benefits compensation pursuant to section 40 of the Workers CompensationAct 1987 (‘the 1987 Act’); lump sum compensation pursuant to section 66 and 67 and medical and related expenses in accordance with section 60 of the 1987 Act.
The dispute was resolved by consent at the hearing conducted on 4 April 2005 by a Commission arbitrator (‘the Arbitrator’). The Arbitrator issued a ‘Certificate of Determination – Consent Orders’ on 11 April 2005 ordering: the Sweeney Family Trust to pay Ms Hodges weekly compensation at the rate of $100.00 per week pursuant to section 40 of the 1987 Act from 1 July 2001 to date and continuing; the Respondent [sic the Sweeney Family Trust] to pay Ms Hodges’ expenses pursuant to Section 60 of the 1987 Act, and that the Sweeney Family Trust and Ellimatta pay Ms Hodges’ costs of the Application as agreed or assessed.
On 7 June 2005, Ms Hodges’ solicitor lodged an ‘Application for Assessment of Costs’ in which he named the Sweeney Family Trust as the ‘Respondent’ and Ellimatta as the ‘Third Respondent’. The solicitor for the Sweeney Family Trust and Ellimatta lodged submissions in reply on 7 July 2005.
The Registrar’s decision in relation to this application, by her delegate, a Commission Arbitrator, (‘the delegate’) was made on 30 September 2005. The delegate’s decision was accompanied by a ‘Statement of Reasons’. The delegate indicated at paragraph 7 of his Statement of Reasons that the substantive file was not in his possession at the time of making his decision. Whilst the absence of the substantive file is regrettable I see no error in the delegate’s determination of the application in the absence of the substantive file in circumstances where the events/activities undertaken in pursuit of the original claim that gave rise to the costs application were addressed by both parties in submissions and/or copies of the relevant documents were before the delegate and considered in compliance with Clause 103 of the Workers Compensation Regulation 2003 (‘the WC Regulation’). The decision is set out as follows:
“1.Pursuant to Consent Orders of the Commission of 11 April 2005 the First Respondent and Second Respondents (to the assessment as above) are 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 $11,287.57.
3.The Applicant’s costs of the assessment are allowed at $250.00 already included within the amount assessed in paragraph (2) above.
4.The First and Second Respondents (as above) are to pay the amount of $11,287.57 to the Applicant if those costs have not already been paid.”
Lodgement of the appeal
On 24 October 2005, Ms Hodges’ solicitor lodged an ‘Appeal from the Registrar’s Determination on Costs’.
On 24 November 2005 the solicitor for the Sweeney Family Trust and Ellimatta (‘the Respondents’) lodged submissions in reply to the Appeal. The Sweeney Family Trust’s insurer is Allianz Australia Workers Compensation (NSW) Limited and Ellimatta’s insurer is GIO Australia.
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.”
Neither party has made submissions in respect of the requirement for a formal hearing. I have considered the issue of the absence of the substantive file in proceeding before the delegate and in the appeal proceedings. In my view the delegate’s reasons provided the parties with notice of the absence of the substantive file and accordingly I am satisfied that the parties have been provided with an opportunity to address this issue on appeal. Neither party has identified any particular document which, had it been in evidence, would have altered the assessment conducted by the delegate or which is material on appeal. Notwithstanding the parties’ failure to identify any specific document relevant to the appeal I issued a Direction on 25 January 2007 which required Ms Hodges’ solicitor to confirm that the Factual and Liability Report (‘the Report’) attached to the submissions filed on behalf of the Respondents was that relied upon by Ms Hodges’ in the substantive proceedings. On 1 February 2007 Ms Hodges’ solicitor responded to this Direction asserting that the Report was attached to the ‘Application to Resolve a Dispute’ and extends over some 120 pages.
In my view, this response fails to comply with the Direction. In circumstances where Ms Hodges’ solicitor: is aware of the absence of the substantive file has been provided with an opportunity to file a copy of the Report on appeal, and was Directed to confirm that the Report is that filed by the Respondent, I am satisfied that he has been given sufficient opportunity to properly identify the Report. The Report filed by the Respondent is dated 26 March 2004 on the title page and 19 January 2004 on the following page; it contains an index which indicates that the Report and annexures extend over some 120 pages and all documents cited in the index with the exception of Ms Hodges’ original statement are annexed to the Report. On the evidence before me, I am satisfied on balance that the Report filed by the Respondent to the appeal is that filed in the substantive proceedings. 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 notwithstanding the absence of the substantive file, and that this is the appropriate course in the circumstances.
SUBMISSIONS
Ms Hodges’ solicitor’s submissions
Ms Hodges’ solicitor submits that the delegate erred in failing to take into account all relevant material being the substantive file. I have addressed this submission at paragraphs 4 and 8 of this decision and I do not propose to revisit this issue. Ms Hodges’ solicitor also submits that the delegate failed to adopt the correct approach to interpreting the Compensation Costs Table (‘the Table’) set out in Schedule 6 of the WC Regulation. The submissions in relation to the items claimed pursuant to the Table can be summarised as follows:
·the delegate’s finding that the maximum amount allowable under Item 4.08 is $500.00 demonstrates a failure to properly apply the authority provided by the Court of Appeal in its decision Orellana Fuentes v Standard Knitting Mills Pty Ltd & Anor [2003] NSWCA146 (‘Fuentes’). Schedule 6 of the WC Regulation should be constructed to allow a claim in the maximum for preparation of a conference and also preparation of a conciliation/arbitration;
·Items 4.09 and 4.11 of the Table should be construed to allow the payment of travel time for a solicitor to attend and participate in the conference. A failure to allow the travel time for country solicitors would be in “breach of the Anti-Discrimination Act NSW 1977”;
·the delegate’s finding that the decision in Fuentes restricts Item 4.12 of the Table to an allowance for two reports only is incorrect as an allowance should be made for reporting to the client in respect of the teleconference, the conciliation conference and the arbitral hearing. Further the delegate erred in finding that the outcome of the conciliation/arbitration was not known until 11 April 2005 as the outcome was known following the conciliation/arbitration conducted on 4 April 2005, and
·the maximum claimed under Item 9.01 of the Table should be allowed as the costs negotiations were complex. Accordingly the claim is maintained and a claim for a further $500.00 is made in respect of the costs of the appeal.
Ms Hodges’ solicitor also maintains his claim of 50% pursuant to Clause 5 of Schedule 6 the WC Regulation as multiple insurers were involved and the matter was complex (Pavin v Country Energy WCC 2431-02). Ms Hodges’ solicitor also disputes the delegate’s determination in relation to two disbursements: the private investigator fees and the Report provided by St George Registration & Investigation Service Pty Limited (‘SGRIS’). In respect of the fees it is submitted that Items 10.1 and 4.05 of the Table do not apply as Item 10.1 refers to solicitor’s writing to agents and requesting that they obtain copies of documents and 4.05 relates to a claim for reviewing documentation produced under Direction. In respect of the costs of the Report Ms Hodges’ solicitor submits that Item 2.01 of the Table “refers to instructions before commencement” (McLaren v Elyes Nominees Pty Ltd t/as Processors Forest Products 2005 NSWWCCC30) and therefore a statement is not envisaged under that item. Further, injury was in issue and therefore instructing an agent to obtain a statement should be allowed (Rose v Bilo Pty Limited [2005] NSWWCCC 32). It is also submitted that it would be inequitable not to allow the costs of briefing a factual investigator when an insurer has paid the costs in other matters before the Commission.
The Respondent’s solicitor’s submissions
In summary the Respondent’s solicitor submits that:
· the maximum under Item 4.08 was allowed and no further amount can be claimed;
· Item 4.09 relates to time spent attending and participating in a conference therefore travel time is irrelevant and the total amount allowed under Item 4.09 is fair and reasonable;
· in respect of Item 4.12 the conciliation/arbitration is not claimable more than once as this event is one activity under the WC Regulation;
· the delegate’s allowance of $250.00 under Item 9.01 is a fair and reasonable amount;
· the costs payable where multiple insurers are involved are to be calculated in accordance with the Table and as most items under the Table are time costed an increase is not justified and $1,000.00 is an appropriate amount to cover the extra time involved in this matter;
· there is no entitlement to recover the agent’s fee as a separate disbursement as the costs are encapsulated under Item 4.05, and
· it was not necessary to brief an investigator to obtain a statement from Ms Hodges and the miscellaneous fees contained in the investigator’s account are “not claimable under the current regulations”.
Issues in dispute
The issues raised on appeal are as follows:
·Did the delegate err in determining the costs of disbursements?
·Did the delegate err in determining Items 4.08; 4.09; 4.10; 4.12; 9.01 of the Table and Clause 5 of Schedule 6 of the WC Regulation?
DISCUSSION
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 recent decisions (Berger v Moree Plains Shire Council[2005] NSWWCCPD 152 (‘Berger’); Dunn v Port Macquarie RSL Club Limited [2004] NSWWCCPD33 (‘Dunn’); McManus v Gosford City Council [2004] NSWCCPD 61 (‘McManus’); Asimus v J.J. Walker, A.D. Walker & Temple Pty Ltd t/as Templemore Partners [2006] NSWWCCPD 113 (‘Asimus’); Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWCCPD 30 (‘Flegerbein’) and, Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28 (‘Orr’) and need not be canvassed again in this decision. In Woodbury v Miles [2006] NSWCCPD 55 (‘Woodbury’) the Commission considered the date at which the law is to be applied in determining an appeal against the Registrar’s assessment of costs and held that “the applicable law is that in effect at the time the Commission issued the Certificate of Determination, including the costs order [14]”. I adopt the reasoning applied in Woodbury.
Of particular reference to the matters raised on appeal are the following clauses of the WC Regulation: clause 84 which fixes the maximum costs recoverable by legal practitioners and agents to those set out in the Table; clause 110 which 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, and clause 119(1) which 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.
The cost of an investigator’s report is not regulated by Part 19 of the WC Regulation. Accordingly, when claimed as a disbursement as in the present case the investigators’ fee must be assessed pursuant to Legal Profession Regulation2002 (‘LP Regulation’) which was in force at the time of the issue of the ‘Certificate of Determination’, being 11 April 2005 (see Berger and Woodbury). Schedule 2, Pt 1, Item 10 of the LP Regulation provides:
“SCHEDULE 2 – Costs for legal services in workers compensation matters
(Clause 46)
Part 1 - Schedule of practitioners’ costs
10 Disbursements
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.” (Emphasis added)
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 the costs of disbursements?
Agency fees
Ms Hodges’ solicitor claimed $264.00 for agency fees associated with SGRIS filing inspecting and claiming legal professional privilege over documents under a table headed disbursements. The claim also appears to be made under Item 10.01 of the Table. The Respondents’ solicitor objected on the basis that the costs claimed are absorbed in Item 4.05 of the Table. The delegate reject the claim as a disbursement noting that an agent attending the Commission for the purpose of filing is not an agent as defined by section 356(6) of the 1998 Act and accordingly the fee cannot be claimed as a disbursement. Further the delegate found agency allowances to be more correctly incorporated under Item 4.05 which had been allowed in the maximum and for the same reasons the delegate rejected the claims for “photocopying and claiming “privilege”.
The claim before the delegate and before me on appeal is in respect of filing, photocopying and claiming privilege over documents. These activities are encapsulated under Items 4.01 and 4.05 of the Table. Deputy President Fleming held in Dunn, at paragraph 41 that to allow the recovery of fees paid to an agent for inspection and photocopying of documents produced under direction fell within the type of activity envisaged under Item 4.05 of the Table and to allow the claim would lead to recovery of an amount exceeding the maximum allowable. I see no error in the delegate’s determination in circumstances where the claim under Items 4.05 and 4.01 were allowed in the maximum for these types of activities and I apply the reasoning set out in Dunn and Flegerbein in rejecting this ground of appeal.
The Report
Ms Hodges’ solicitor sought $2,209.62 for the Report provided by SGRIS. The Respondent’s solicitor objected. However in the interests of settling the dispute the Respondent conceded the claim in the reduced amount of $1,000.00.
The delegate’s reasons demonstrate that he considered the invoice provided by SGRIS and noted that a number of the activities were encapsulated under the Table and allowed at the Table maximums. The delegate determined that the costs claimed were discretionary and then considered if it was fair and reasonable to undertake the work. The delegate made an allowance of $990.00 for the costs of the Report.
The application of a test of ‘fair and reasonable’ by the delegate in determining the claim for the costs of the Report was more consistent with the terms of clause 110 of the WC Regulation than with an application of Schedule 2 of the LP Regulation (see discussion in Asimus). In applying clause 110 of the WC Regulation to the claim for the cost of the Report the delegate, in my view committed an error of law.
It is necessary 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’. Ms Hodges’ claim, against three respondents was for lump sum and weekly compensation together with medical and related expenses.
The Report contains an eight page factual and liability summary which set out the following information:
·names, addresses and contact details for Ms Hodges, the three employers and insurers (although I note the second respondent is incorrectly named) and Ms Hodges’ medical practitioners;
·details of Ms Hodges’: age; employment history and duties; history of injuries; condition; treatment; current symptoms, and activities, and
·commentary regarding Ms Hodges and the authenticity of the claim.
The following documents were annexed to the Report: two statements taken from Ms Hodges; her schedule of earnings and taxation return for the period 1 July 1999 to date (being 25 March 2004); a superannuation fund statement; copies of business names searches for the three employers; a statement from Mr Glen Paul Hodges; medical/rehabilitation reports (including those of Dr Doig, Ms Hodges’ surgeon) and correspondence from GIO Australia Limited.
Information relating to the contact details of the respondents and insurers; Ms Hodges age and medical practitioners cannot be considered to be ‘necessarily incurred’ when this material should be in the possession of Ms Hodges’ solicitor in circumstances where the delegate allowed his claim under Item 2.01 of the Table in the maximum and his claim under Item 2.04 for review of the medical report of Dr Doig was allowed. Further information relating to Ms Hodges, injuries; results of medical investigations and treatment; activities; employment history, and duties is contained in her 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 or commentary in respect of authenticity necessary to the claim. Therefore the cost of the Report in this respect is not allowed.
In respect of the statements obtained by SGRIS from Ms Hodges I note that Ms Hodges’ solicitor did not claim the taking of a statement under Item 2.01 or Item 2.04A of the Table. An applicant has been held to be a witness, and in the present circumstances I conclude that Ms Hodges’ claim could not be brought without her statement (see discussion in Asimus at 24-25). The interview was conducted by a non professional over one hour ten minutes for the first statement (a total of 11 typed pages) and fifteen minutes for the supplementary statement (approximately one typed page). In my view it is reasonable to allow the statement, and in applying the allowance for similar work under Item 2.04A I allow $150.00 plus GST being an amount of $165.00 for the costs of the statement.
The other statement filed in proceedings is that of Mr Hodges. I have considered the statement and in my view it does not further the claim. Accordingly, in my view it is not necessary in pursuit of the claim and I disallow the costs of the Report in respect of the witness statement as not necessarily incurred.
The remaining matter for consideration arising from the Report is the schedule of earnings and superannuation statement. The schedule of earnings commences from 1999. I note Ms Hodges claimed that her initial injury occurred in March 2001; from that time her earnings fluctuated and were referable to three employers. Given the period involved in the claim, number of employers and the fluctuation in earnings I am satisfied that the costs incurred in obtaining this information may on balance be relevant and necessarily incurred. Considering the claim and the memorandum of costs and disbursements which on my assessment total approximately $232.00 for all costs associated with these documents I allow the claim that amount, plus GST being a total of $255.20.
Accordingly I allow the costs of the Report in the total amount of $420.20 (including GST).
Did the delegate err in determining Items 4.08; 4.09; 4.10; 4.12 and 9.01 of the Table and Clause 5 of Schedule 6 of the WC Regulation?
Item 4.08
Ms Hodges’ solicitor claimed $500.00 for the costs of preparing for a conference on 20 February 2005 and a further $250.00 for preparing for the conference on 3 April 2005 [sic 4 April 2005] being the conciliation/arbitration. The Respondents’ solicitor conceded the maximum provided under the Table of $500.00. The delegate relied on the authority provided by the Commission’s decision in Orr and allowed the claim in the maximum.
On appeal Ms Hodges’ solicitor “maintains $500.00” and contends that the maximum permissible is allowable in respect of each conference. In my view the delegate’s decision demonstrates the proper application of the Table and the authorities. The delegate, having allowed the maximum permissible can make no further allowance under Item 4.08 of the Table. Therefore I reject this ground of appeal.
Items 4.09 and 4.10
Ms Hodges’ solicitor claimed $250.00 for the costs of attending and participating in the teleconference conducted on 20 February 2005 and a further $250.00 for attending and participating in the conciliation/arbitration hearing. However Ms Hodges’ solicitor also claimed $1,500.00 for the costs of conciliation/arbitration. The delegate allowed the claim in the reduced amount of $250.00 for the teleconference which was conducted over one hour. I see no error in respect of the delegate’s allowance for the teleconference and I note this amount is conceded by the Respondent’s solicitor on appeal.
However when dealing with the claim for the conciliation/arbitration under this item the delegate disallowed the claim; noted that the Respondent’s solicitor conceded the claim under 4.10 and, notwithstanding that the matter had not been declared to be complex the delegate allowed the claim in the amount of $750.00 under Item 4.10. In my view, the delegate erred in determining this claim with reference to Item 4.10. Item 4.10 of the Table has no application. The Arbitrator did not declare the matter complex and the evidence supports a finding that the matter did not proceed to arbitration. In my view, Ms Hodges’ solicitor’s submissions in this regard are misconceived.
On my assessment of the submissions made on appeal Ms Hodges’ solicitor claims $750.00 for participating in the conciliation/arbitration. In support of the claim he submits that travel time should be allowed under this item. The allowance under Item 4.09 item requires a time based calculation and the event/activity does not include “travel time” (see discussion in Beggs v W & D Stuart [2006] NSWWCCPD 308 at paragraph 40). The consent orders issued by the Arbitrator noted that a “Conarb” was conducted and the parties, assisted by the Arbitrator resolved their dispute. I am satisfied on the evidence that a conciliation conference was conducted and the dispute was resolved without arbitration. Ms Hodge’s solicitor submits that the matter was listed for 9 am to 12 pm for conciliation/arbitration. However at page 28 of his submissions to the delegate, Ms Hodge’s solicitor claimed $250.00 for the conference conducted between 9 am and 10 am. In the absence of a record of the duration of the conference I rely on the evidence provided by Ms Hodges’ solicitor that the conference took place over one hour. Accordingly I allow the claim in the amount of $250.00. Therefore the total allowance under Item 4.09 for participation in the teleconference and the conciliation conference is $500.00 (plus GST).
Item 4.12
Ms Hodges’ solicitor claimed $570.00 for the costs of reporting to the client on the outcome of three activities; the teleconference, the conciliation conference and the arbitration. The Respondent submitted that only $190.00 is permissible. The delegate relied upon Fuentes and McManus in determining that only one amount was payable and allowed the claim in reduced amount of $190.00 for the costs of reporting to Ms Hodges following the teleconference only. The delegate in my view erred in his application of the authority provided in Fuentes and McManus in disallowing the claim for the outcome of the conciliation/arbitration conference.
I am satisfied on the evidence before me that there were two activities of the type referred to under item 4.12 of the Table; the teleconference and the conciliation conference. The decision in McManus (at paragraphs 22-29) sets out the Commissions procedure for conducting the conciliation/arbitration on the same day and applies the obiter view expressed by Ipp JA in Fuentes to these procedures. The decision also confirms that an allowance is payable in respect of reporting for both the teleconference and the conciliation/arbitration hearing. In any event I am satisfied that the matter did not proceed to arbitration. I have considered Ms Hodges’ solicitor’s submissions regarding the time at which the outcome of the conciliation/arbitration proceedings were known to the parties and in my view they do not further his claim. I allow the claim in the sum of $380.00 (plus GST) for reporting on the outcome of the two activities.
Item 9.01
Ms Hodges’ solicitor claimed $500.00 for the costs of the application. On my assessment the Respondent’s submissions did not address this claim. The delegate determined that costs are a discretionary matter and allowed $250.00. On appeal Ms Hodges’ solicitor maintains the claim for $500.00 and now seeks to recover an additional $500.00 for the costs of the appeal. The Respondent concedes the $250.00 allowed. The costs claimed total $12, 458.32 and the delegate allowed $11,287.57 on assessment. In my view the delegate’s allowance of $250.00 for one hours work is a fair and reasonable amount for the work performed and I see no error in the delegate’s allowance of the claim in that amount. Ms Hodges’ solicitor’s claim for the costs of the appeal is dealt with below.
Clause 5 of Schedule 6
Ms Hodges’ solicitor claimed “50% of costs for the 2nd Respondent” pursuant to clause 5 of Schedule 6 of the WC Regulations being an amount of $3,775.25. The Respondents’ solicitor submitted that an increase of $1,000.00 is appropriate to cover the costs of the additional respondent in the proceedings. The delegate noted that there were three respondents named in the substantive proceedings and determined that an allowance of an additional $1,000.00 was a fair and reasonable amount for the costs of the additional work performed with reference to the “maximum” allowable. On appeal Ms Hodges’ solicitor submits that the delegate erred in his determination as additional photocopying, legal work and negotiations were all required to resolve the claim and only in exceptional cases should the delegate “move away from allowing the 50% for each additional Respondent.”
Clause 5 Schedule 6 has been considered by the Commission in a number of recent decisions and I adopt the reasoning set out in Dring v Kurmala Nursing 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.
The claim was resolved by consent. The Arbitrator’s notations reflect the party’s agreement that Ms Hodges’ condition had not stabilised and therefore the additional activities associated with referral to an Approved Medical Specialist could not occur. Accordingly the issues resolved were weekly benefits, medical expenses and costs. I am not persuaded by Ms Hodges’ solicitor’s submissions that the circumstances demand an allowance in the maximum. In my view, the delegate properly considered the additional work required with reference to the activities undertaken and the costs incurred and applied the correct test in accordance with Clause 110 of the WC Regulation in allowing $1,000.00 pursuant to clause 5 Schedule 6 and I see nothing to disturb the delegate’s determination. I therefore reject this ground of appeal.
Summary
I have determined the disbursements and professional costs challenged by Ms Hodges’ solicitor as follows:
Disbursements
The delegate’s disallowance of the claim for agency fees for filing, attendance, inspection and claiming privilege over documents is confirmed.
The delegate’s allowance for the costs of the Report in the reduced amount of $990.00 (including GST) is revoked.
I consider the cost of the Report in the amount of $420.20 (including GST) to be necessarily incurred.Professional Costs
The delegate’s allowance for the claim under Item 4.08 is confirmed.
The delegate’s total allowance of $250.00 (plus GST being a total of $275.00) under Item 4.09 is revoked.
It is fair and reasonable to allow a total of $500.00 (plus GST being an amount of $550.00) for participating in the teleconference and the conciliation conference under Item 4.09 of the Table.
Item 4.10 has no application and I revoke the delegate’s allowance of $750.00 (plus GST being a total of $825.00).
The delegate’s allowance of $190.00 (plus GST being $209.00) for Item 4.12 is revoked.
It is fair and reasonable to allow $380.00 (plus GST being a total of $418.00) for reporting to Ms Hodges following the teleconference and the conciliation conference.
The delegate’s allowance under Item 9.01 is confirmed.
The delegate’s allowance under Clause 5 of Schedule 6 of the WC Regulation is confirmed.
The Delegate’s determination of $11,287.57 should therefore be decreased by $910.80 to $10,376.77.
DECISION
Paragraphs two and four of the decision of the delegate dated 30 September 2005 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 $10,376.77.
(ii) The Second and Third Respondents are, therefore, to pay to the Applicant a total amount of $10,376.77 if those costs have not already been paid.”
Paragraph one of the delegate’s decision referring to the order for costs contained in the ‘Consent Orders’ and paragraph three of the delegate’s decision, allowing $250.00 for costs already included in the total amount ordered to be paid are confirmed.
COSTS
The Appellant has been largely unsuccessful on appeal. I make no order as to costs of the appeal.
Elizabeth Tydd
Acting Deputy President
8 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.
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