Hutchins v NSW Police Service

[2006] NSWWCCPD 171

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Hutchins v NSW Police Service [2006] NSWWCCPD 171

APPELLANT:  Anthony James Hutchins

RESPONDENT:  NSW Police Service

INSURER:TMF Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC 3000-05

DATE OF REGISTRAR’S DECISION:             26 August 2005

DATE OF APPEAL DECISION:  2 August 2006

SUBJECT MATTER OF DECISION: Appeal against Registrar’s decision in respect of costs; claim under Item 10.01 of Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Jones Staff & Co, Lawyers

Respondent: Sparke Helmore, Solicitors

ORDERS MADE ON APPEAL: That part of the Registrar’s determination with regard to Item 10.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003 is set aside and in substitution Mr Hutchins’ costs of $66.00 inclusive of GST in respect of this Item are allowed.

The Respondent, the NSW Police Service is to pay Mr Hutchins’ costs in this appeal.

BACKGROUND TO THE APPEAL

1. On 7 September 2005, Anthony Hutchins filed an appeal against a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) dated 26 August 2005. The Respondent to the appeal is the NSW Police Service, and its workers compensation insurer is TMF Workers Compensation (NSW) Ltd.

1. The dispute to which the costs determination relates was finalised in the Commission by the filing of an agreement between the parties pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’). The parties’ terms of settlement dated 6 August 2004 included an agreement that the NSW Police Service pay Mr Hutchins’ costs as agreed or assessed.

1. The parties having failed to come to an agreement as to costs, on 28 February 2005, Mr Hutchins applied to the Registrar for an assessment of costs. The Registrar delegated the assessment to a Commission Arbitrator who made a determination dated 26 August 2005. The Certificate of Determination stated:

“1. Pursuant to the registration of a section 66A Agreement 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 $3,478.75 inclusive of GST.
3. The Applicant’s costs of the assessment are assessed at $412.50 inclusive of GST.
4. The Respondent is to pay the amount of $3,891.25 inclusive of GST to the Applicant if those costs have not already been paid.”

1. Mr Hutchins’ appeal is against the Arbitrator’s determination in relation to Mr Hutchins’ claim in respect of Item 10.01 of the Compensation Costs Table (‘the Table’) in Schedule 6 of the Workers Compensation Regulation 2003 (‘the 2003 Regulation’). Mr Hutchins does not dispute the Arbitrator’s determination in relation to his claims with respect to other Items in the Table.

1. In his ‘Statement of Reasons for Decision’, the Arbitrator states under the heading “Item 10.01”:

“The Applicant has claimed the maximum pursuant to Item 4.05 of the Table. In those circumstances no claim is allowed pursuant to Item 10.01 as the Agent would be undertaking the same activity: see Dunn v Port Macquarie RSL Club [2004] NSW WCC PD 33.”

ON THE PAPERS REVIEW

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6 and the documents 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. 

DISCUSSION

1. In their Bill of Costs dated 23 September 2004, Mr Hutchins’ lawyers claimed $500.00 (plus $50.00 GST) in respect of Item 4.05 for “Particulars and inspection of documents produced by hospital and Dr Williams and further instructions”, and $60.00 (plus 6.00 GST) in respect of Item 10.01 for “accessing documents produced”.

1. The NSW Police Service objected to the claim under Item 10.01 on the ground that a disbursement for instructing an agent to inspect and copy documents should not be allowed under Item 10.01 in accordance with the decision of the Arbitrator in Maxine Nebauer v Hunter Area Health Service WCC 4100-04 (‘Nebauer’).

1. In their response, Mr Hutchins’ lawyers sought to distinguish Nebauer on the facts, submitting that in that case the fee in dispute was the agent’s fee that was incurred as a disbursement, whereas in the present matter the fee claimed in respect of Item 10.01 is for all work associated with instructing an agent rather than for what the agent did. Drawing such a distinction is consistent with event based costing and a literal and purposive approach to the interpretation of this Item in the Table. Mr Hutchins’ lawyers stated:

“In this matter, the agent was given written instructions by me to access the documents produced and was given specific written instructions in relation to documents which may have been produced about which a claim for privilege might arise. It is submitted the fee is payable for the instructions.”

1. The Arbitrator allowed the claim in respect of Item 4.05, but disallowed that in respect of Item 10.01 for the reason stated in paragraph 5 above.

1. The grounds of appeal stated by Mr Hutchins’ lawyers are failure to give any or adequate reasons, erroneous construction of the Table and, in particular, Item 10.01, and erroneous reliance on Dunn v Port Macquarie RSL Club [2004] NSW WCC PD 33 (‘Dunn’). In a subsequent letter dated 14 November 2005, Mr Hutchins’ lawyers referred to the decision of Barbara Beadle v Department of Community Services WCC 9454-04 in support of their appeal.

1. Neither a reply to the appeal nor any submissions have been lodged by the NSW Police Service.

1. I note the relevant Items in the Table are described in Column 2 as follows:

Item 4.05: “Reviewing documentation produced under a direction of the Commission, exchanging information with the other parties and obtaining further instructions from the client”
Item 10.01: “All work associated with instructing an agent to act on the claim or a matter relating to the claim”

1. The word “agent” is defined in section 356(6) of the 1998 Act as including “(d) a person employed by a solicitor or incorporated legal practice”.

1. It is clear from the decision in Dunn, at paragraphs 38 to 39, that agents’ fees may be claimed under Item 4.05 subject to the maximum total for all activities or events coming within that Item. In my view, it is also clear from the ordinary meaning of the description of the Item 10.01 activity or event in Column 2 of the Table that a claim can be made under that Item for instructions to an agent to inspect documents produced in response to a Direction for Production issued by the Registrar in relation to proceedings before the Commission. This is subject, of course, to the rider that the cost claimed must be reasonable. 

1. I note that Mr Hutchins’ lawyers’ description of the activity or event in respect of which the Item 10.01 claim was made in their Bill of Costs, namely “accessing documents produced”, is less than clear and could be interpreted as a claim in respect of the fees charged by the agent for accessing the documents produced. If this were the case, then in accordance with the decision in Dunn, such a claim for an agent’s fees should be made under Item 4.05. However, Mr Hutchins’ lawyers’ response to the NSW Police Service’s submissions to the Arbitrator state that the activity in respect of which the claim was made is the giving of instructions to the agent. In my view, therefore, the Arbitrator made an error of law by disallowing Mr Hutchins’ lawyers’ claim in respect of Item 10.01.

1. Mr Hutchins’ lawyers’ also submit that the Arbitrator failed to give adequate reasons for his decision in relation to Item 10.01. In Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCC PD 28, at paragraphs 45 to 48, Deputy President Fleming discussed the Registrar’s obligation to provide reasons for a costs determination pursuant to the common law and clause 115 of the 2003 Regulation. While recognising that failure to provide adequate reasons constitutes an error of law and may be a ground for setting aside the Registrar’s determination, the Deputy President said that to succeed on this ground an appellant must also demonstrate that the Registrar has failed to exercise his or her statutory duty to fairly and lawfully determine the application and that a different decision would otherwise have been made. She said, at paragraph 48, that in her view:

“it is not necessary for the Registrar, or her delegate, to set out lengthy written reasons for a decision in order to comply with the Act and the Rules. To do so would be unreasonable and inconsistent with the objectives of the Commission in providing a speedy resolution to workers compensation disputes.”

1. Were it not for the error of law made by the Arbitrator in disallowing Mr Hutchins’ lawyers’ claim under Item 10.01, I would not otherwise be satisfied that the Arbitrator’s statement of reasons was inadequate.

DECISION

1. That part of the Registrar’s determination with regard to Item 10.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003 is set aside and in substitution Mr Hutchins’ costs of $66.00 inclusive of GST in respect of this Item are allowed.

COSTS

1. The Respondent, the NSW Police Service is to pay Mr Hutchins’ costs in this appeal.

Robin Handley

Acting Deputy President  

2 August 2006

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

ASSOCIATE