Jafar v Tower Square Real Estate Pty Limited

[2006] NSWWCCPD 99

WORKERS COMPENSATION COMMISSION

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

CITATION:Jafar v Tower Square Real Estate Pty Limited [2006] NSWWCCPD 99

APPELLANT:  Danya Jafar

RESPONDENT:              Tower Square Real Estate Pty Limited

INSURER:QBE Workers Compensation (NSW) Limited

FILE NUMBER:  WCC10360-04

DATE OF REGISTRAR’S DECISION:             16 November 2004

DATE OF APPEAL DECISION:  29 May 2006

SUBJECT MATTER OF DECISION: Allowable items pursuant to schedule 6 of the Workers Compensation Regulation 2003 where two sets of solicitors.

PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore

HEARING:On the papers

REPRESENTATION:  Appellant:      S Moran & Co, Solicitors

Respondent:   QBE In-House Legal

ORDERS MADE ON APPEAL:  1.        The decision of the Registrar dated 16 

November 2004 is set aside and the following decision is made in its place:

(i)The Respondent is to pay the total sum of $2,662.00 inclusive of GST to the Appellant.

(ii)       The Respondent is to pay to the   Appellant the costs of the   assessment in the sum of   $625.00.

2.        The Respondent is to pay the   costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 4 February 2005, Danya Jafar (‘the Appellant’) filed an appeal against the Registrar’s assessment of costs in relation to proceedings previously determined by a Commission Arbitrator.

1. The Respondent to the appeal is Tower Square Real Estate Pty Limited (‘the Respondent’). The relevant workers compensation insurer is QBE Workers Compensation (NSW) Limited (‘QBE’). Neither the Respondent nor insurer has filed an appearance or any submissions in the appeal. A ‘Certificate of Service’ filed by the Appellant on 10 March 2005 indicated that the appeal was served on QBE on 15 February 2005.

1. The Registrar’s decision (by her delegate, a Commission Arbitrator) made on 16 November 2004, is as follows:

“1.      Pursuant to the Certificate of Determination dated 18 July 2003 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 assessment are not allowed.

3.        The Respondent is to pay the amount of $803.00 to the Applicant if those   costs have not already been paid.”

1. In making an assessment of costs, the Registrar determined that a number of Items set out in Schedule 6 of the Workers Compensation Regulation 2003 (‘the Regulation’) claimed by the Appellant’s former solicitors had already been paid to her later solicitors such that those former solicitors did not have an entitlement to costs for those Items.

1. This appeal is brought by the Appellant’s former solicitors. The Appellant maintains that the Items at issue which she seeks to claim were not included in the assessment of costs agreed upon between the later solicitors and QBE. Accordingly, the Appellant seeks to have the decision of the Registrar revoked and a new decision made in its place awarding her $4,190.00 in costs under the Compensation Costs Table.

1. The Appellant’s former solicitors commenced conduct of the proceedings prior to the filing of an ‘Application to Resolve a Dispute’ on 4 April 2003, and continued until shortly after a Teleconference on 16 May 2003. They advised the Commission on 21 May 2003 that they were no longer instructed to act for the Appellant. The subsequent solicitors advised the Commission of their instructions to take over conduct of the matter on 22 May 2003.  The matter proceeded to arbitration hearing with those subsequent solicitors on 2 June 2003.

1. The Appellant’s former solicitors submit that they are entitled to their costs of acting for the Appellant from prior to the filing of the Application to shortly after the Teleconference.

ON THE PAPERS REVIEW

1. Neither the Appellant nor Respondent have made any submissions as to whether the matter may be determined ‘on the papers’ in accordance with the provisions of section 354 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and Practice Direction No 1. It is noted that the Registrar is a member of the Commission (section 368 of the 1998 Act).

1. I have before me the Commission files in both the substantive matter and the costs dispute together with the Appellant’s submissions on appeal.

1. Having carefully read this material, I am satisfied that I have sufficient information to proceed ‘on the papers’ and that this is the appropriate course in the circumstances.

THE GROUNDS OF APPEAL

1. The Appellant initially purported to bring her application pursuant to Clause 117 of the Regulation by again referring the matter to the Registrar under cover of a letter dated 25 November 2004.

1. Clause 117(1) provides as follows:

“(1)     At any time after making a determination, the Registrar may, for the   purpose of correcting an inadvertent error in the determination:

(a)       Make a new determination in substitution for the previous   determination, and

(b)       Issue a certificate under clause 114 that sets out the new   determination.”

Its purpose then is essentially to correct any “inadvertent” error.

1. Clause 119 of the Regulation sets out the procedure for an appeal on the question of costs to the Commission constituted by a Presidential Member. It provides as follows:

“(1)     A party to an application who is dissatisfied with a decision of the Registrar   as to a matter of law arising in the proceedings to determine the application   may, in accordance with the Rules of the Commission, appeal to the   Commission constituted by a Presidential member against the decision.

(2)       The appeal is to be in the form approved by the Commission and be   accompanied by the fee approved by the Commission from time to time.

(3)       After deciding the question the subject of the appeal, the Commission   constituted by a Presidential member may, unless it affirms the Registrar’s   decision:

(a)       Make such determination in relation to the application as, in its   opinion, should have been made by the Registrar, or

(b)       Remit its decision on the question to the Registrar and order the   Registrar to re-determine the application.

(4)       On a re-determination of an application, fresh evidence, or evidence in   addition to or in substitution for the evidence received at the original   proceedings, may be given.”

1. Whilst the Appellant’s letter of 25 November 2004 does not set out with any clarity specific errors of law, the thrust of her submissions are that the Registrar, by her delegate, erred in law in failing to determine all relevant items of costs as permitted by Schedule 6 of the Regulation. The issue then was not as to whether the incurring of the cost was fair and reasonable as such, but rather that the award of costs wrongly assumed that certain Items had been incurred by the Appellant’s later solicitors, not the former.

RELEVANT LAW

1. Costs in the Commission are governed by the 1998 Act and the Regulation. Relevantly to this claim, Clause 3 of Schedule 6 provides as follows:

“3.Restrictions on costs

(1)       Costs specified in a Part of the table (other than Part 2A, 2B or 10)   are payable only for an activity or event that is carried out in the   period commencing when the first activity or event specified in that    Part is commenced and concluding on either the completion of the   last activity or event specified in that Part or finalisation of the   matter (whichever occurs first).

(2)       Costs specified in Part 2A or 2B of the table are payable only for an   activity or event that is carried out in the period commencing when   the first activity or event specified in that Part is commenced and    concluding on:

(a)       The referral of a dispute in respect of the claim to the   Commission, or the seeking of an order from the   Commission, or

(b)       The completion of the last activity or event specified in that   Part, or

(c)Finalisation of the matter, whichever occurs first.

(3)       If costs specified in Part 3 of the table are payable in relation to a   matter, costs specified in Parts 2A, 2B and 4 of the table are payable   only in respect of the matter if the matter is subsequently referred for    determination after the conduct of an expedited assessment by the    Registrar.”

THE ISSUES IN DISPUTE

1. Claims made in relation to Items 2.04, 2.06, 3.01, 4.01, 4.02, 4.03, 4.08, 4.09 and 4.12 are in dispute in this matter. Those Items are set out in the Table as follows:

Compensation Costs Table

Column 1 Item No 2.04 2.06 3.01 4.01 4.02 4.03 4.08 4.09 4.12 Column 2
Activity or event Obtaining and reviewing medical reports Requesting a review of the claim from the insurer, prior to referral of the matter to the Commission. Applying for expedited assessment to the Commission Lodging an Application for Resolution of a Dispute Service of material in relation to Item 4.01 Requesting the Commission to give directions for the production of documents. Preparing for a conference (including providing advice to client) Attending and participating in a conference with an Arbitrator (other than an arbitration hearing) Reporting to the client on the outcome of a conference or arbitration Column 3
Maximum
amount for
individual
activity/event $150 per report for the first two medical reports, $100 per report for subsequent medical reports … $250 $200 or Nil $300 $40.00 for the first party then $20 for each additional party $60 for the initial direction, $40 for each additional direction $250 per hour $250 per hour $190 Column 4
Maximum total
for type of
activity/event $ $500 $200 $300 $100 $220 $500 $1000 $190

1. The Appellant forwarded a Schedule of Costs and Disbursements to QBE on 30 July 2003. QBE replied on 1 September 2003 that the costs sought should be forwarded to the later solicitors. It was noted that the costs sought were not itemised in accordance with the Regulation.

1. What transpired between the former and later solicitors is unclear. However, on 19 April 2004 QBE wrote to the Appellant’s former solicitors requesting a “… full copy of your costs and disbursements in this matter.” The solicitors appear to have provided that on 19 May 2004.

1. On 1 June 2004 QBE wrote advising that Items 2.01 ($500) 2.02 ($40) and 2.03 ($40) would be accepted, and Item 2.04 reduced to $150, a total of $730, plus GST of $73 totalling $803.

1. On 1 July 2004, QBE again wrote to the Appellant’s former solicitors advising that the later solicitors “… took on this matter and met it to completion and their costs have been paid in respect of all events they have undertaken.” After referring to a number of other items, QBE advised:

“In respect of Item 4.01, we note you did not lodge an ‘Application to Resolve a   Dispute’ and, as such, this is not an allowable disbursement. This was an activity or   event undertaken by [the later solicitors]. Finally, it follows that Items 4.02, 4.03,   4.08 … 4.09 and 4.12 also are nil allowable as these were not activities or events   engaged by you…”

1. In his ‘Statement of Reasons’, the Arbitrator to whom the Registrar had issued a delegation to assess the Appellant’s costs, stated at paragraph 7 that:

“The Applicant claims Items 2.01, 2.06, 3.01, 4.01, 401 [sic], 4.03, 4.08 and 4.12.   The Respondent has paid [the later solicitors] for all events undertaken by those   Solicitors and in those circumstances the Applicant does not have an entitlement to   costs for those Items.”

1. Whilst there are some errors in this statement as to the Items claimed, the disputed costs were then set out by the Arbitrator in a Schedule in paragraph 8 of the ‘Statement of Reasons’. That Schedule essentially reflected the offer made by QBE in its letter of 1 June 2004.

THE SUBMISSIONS AND FINDINGS

1. The Appellant submits that the costs determination:

“… followed the Respondent’s submissions ‘chapter and verse’ and in effect   mirrored the Respondent’s letter of 1 June 2004 excepting a notation in the   ‘reasons’ column regarding item 2.04 which, curiously at the end notes the   following: ‘There are no submissions by the Applicant on this issue’. The above   statement would appear to be incorrect as this office traversed this issue in the reply   of 3 August 2004 …”

1. The Appellant had provided lengthy submissions to the Commission under cover of a letter dated 3 August 2004. No reference is made to this material by the Arbitrator.

Item 2.04

1. The Appellant submits that “… the work undertaken was reviewing medical reports in a matter that was not a simple matter. Liability appeared to be in issue. The Applicant was also a difficult client and therefore great care was needed in considering the material for the purposes of advising the client.”

1. There is some merit in this submission. The claim was one for medical expenses and weekly benefits compensation for incapacity said to result from alleged victimisation and racism by the employer. There was considerable correspondence from the employer to the Appellant raising section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’) prior to the filing of the ‘Application to Resolve a Dispute’.

1. The Arbitrator’s ‘Certificate of Determination’ and accompanying ‘Statement of Reasons’ dated 18 July 2003 in the substantive proceedings, recorded at paragraph 7 of those Reasons: “… it was quite clear there were strong allegations between the parties which would bring into consideration various sections of the Act, including section 11A.” He went on to note at paragraph 12 “… serious allegations are made of racial and religious discrimination …” At paragraph 13, he noted, “the Applicant was asked to begin her oral evidence. The Applicant appeared unable to give her evidence in a manner which would enable the issues between the parties to be properly addressed …”

Some time later, the parties ultimately resolved the claim.

1. Notwithstanding the Appellant’s submissions and the matters referred to in the preceding paragraph, the medical evidence attached to the Application included a number of medical certificates and one short (1 page) report from the treating psychiatrist. In those circumstances, the sum of $150 is all that is permitted under Item 2.04 of Schedule 6.

Item 2.06

1. The Appellant submits that: “This work was done and a submission made to the insurer, from our recollection. We shall forward verification of this once it is received from [the later solicitors].”

1. No further material has been provided. There is nothing in the substantive file to indicate that a request was made to the insurer to review the claim prior to referral of the matter to the Commission. In those circumstances, and in the absence of verification, whilst making no adverse findings as to the solicitors “recollection”, this Item cannot be allowed.

Item 3.01

1. The Appellant submits that: “Submissions were forwarded to the Commission seeking expedition. Again, verification will need to be obtained from our file which is with [the later solicitors].”

1. Again, no further material has been provided and in the circumstances, for the reasons set out in the preceding paragraph, this Item cannot be allowed. It is noted that QBE in its letter of 1 July 2004 advised the Appellant’s former solicitors that it had no record of either a review being requested or of an expedited assessment.

Item 4.01

1. It is quite clear from the substantive file that the Appellant’s former solicitors did in fact file the ‘Application to Resolve a Dispute’ on 4 April 2003. Moreover, it is similarly clear that the costs claimed by the later solicitors in their schedule (annexed to the Appellant’s submissions) did not include this Item. This Item should therefore be allowed.

Item 4.02

1. The Application was clearly served by the Appellant’s former solicitors on the employer and on QBE. Again, it is an Item not included in the later solicitor’s schedule, and accordingly, should be allowed in the sum of $60.

Item 4.03

1. Again, the substantive file reveals that Commission directions were sought by the Appellant’s former solicitors for production of documents by three parties such that this Item also ought be allowed. It was also not included in the later solicitor’s costs claim. It should however only be allowed at the relevant rate, namely $140.00.

Item 4.08

1. The Appellant submits that this Item refers “… to the preparation for the Teleconference with the Arbitrator … on 16 May 2004.”

1. The substantive file records that the Appellant’s former solicitor did attend that Teleconference. It is also noted that the later solicitors did not take over conduct of the matter until 22 May 2003. This Item should therefore be allowed.

1. Given the earlier remarks as to the complex nature of the claim, the issues in dispute and the apparent difficulties with the Appellant to which the Arbitrator referred, the claim for two hours preparation is reasonable.

Item 4.09

1. As I said in the preceding paragraph, the Appellant’s former solicitor attended the Teleconference on 16 May 2004. Again, no claim is made by the later solicitors for this Item, and it should be allowed.

1. There is no clear information in the substantive file as to the duration of that conference. It was scheduled for 9:30am. A file note suggests that the outcome was reported to the Commission by the Arbitrator at approximately 11:30am. A claim for two hours attendance should therefore be allowed.

Item 4.12

1. This Item is described in Schedule 6 of the Regulation as “reporting to the client on the outcome of a conference or Arbitration …”

1. Clearly, the Appellant’s former solicitors had not participated in the Arbitration hearing. They had however participated in the Teleconference. That is a conference within the meaning of Item 4.12. It is noted that subsequent to that conference, the later solicitors took over conduct of the matter on 22 May 2003. The Appellant submits that: “Correspondence was forwarded to the Applicant and a conference was held on 20 May 2004.” File notes in respect of that conference were attached to the Appellant’s submissions.

1. In the circumstances, that Item is reasonable and allowable.

CONCLUSION

1. 1. Clause 115 of the Regulation requires the Registrar to ensure that a ‘Certificate as to a Determination of Costs’ pursuant to Clause 114 must be accompanied by a ‘Statement of Reasons’ for the Registrar’s determination.

2,        In the present case, the “reasons” were simply that QBE had already paid the later   solicitors “… for all events undertaken …” such as to disentitle the Appellant’s   solicitors to costs.

3.        It seems clear that the Registrar, by her Delegate, failed to heed the Appellant’s   submissions nor indeed the Items claimed in the later solicitor’s ‘Schedule of   Costs’ which clearly incorporate the Items claimed by the Appellant.

4.QBE was either misinformed or careless in its submissions as to costs since, given its involvement in the substantive claim, perusal of its own file would reveal that most of the Items claimed by the Appellant’s former solicitors were properly incurred by them during the period that they had conduct of the Appellant’s claim.

DECISION

1. The decision of the Registrar dated 16 November 2004 is set aside and the following decision is made it is place:

1.        The amount awarded by the Registrar for Items 2.01, 2.02, 2.03 and 2.04 totalling   $730 is confirmed.

2.        GST in the sum of $73 on the amount referred to in paragraph 1 is confirmed.

3.        The claim for Items 2.06 and 3.01 is disallowed.

4.        The claim for Items 4.01, 4.02, 4.03, 4.08, 4.09 and 4.12 is allowed in the amount   set out in the Schedule below:

Item No 4.01 4.02 4.03 4.08 4.09 4.12 TOTAL 01 02 Claim $300 $100 $220 $500 $1000 $190 $2310 Allowed $300 $60 $140 $500 $500 $190 $1690

5.        GST on the sum of $1,690 totalling $169 is allowed.

6.        The total costs awarded to the Appellant inclusive of GST are $2,662.00.

ORDERS

1. 1.        The decision of the Registrar dated 16 November 2004 is set aside and the following decision is made in its place:

   (i)The Respondent is to pay the total sum of $2,662.00 inclusive of GST to the Appellant.

   (ii)The Respondent is to pay to the Appellant the costs of the assessment in the sum of $625.00.

   2.        The Respondent is to pay the costs of the appeal.

COSTS

1. 1.        The Respondent is to pay the costs of the assessment. The amount allowed under                Item 9.01 for a costs assessment is determined relative to the amount involved in    preparing the application for assessment and the maximum amount allowed under    the Item. (See Farnoosh v Macquarie University [2005] NSWWCC C20).

2.        In the present case, considerable work was done by the Appellant in relation to her   claim for costs including extensive correspondence with QBE and the Commission.   The submissions were extensive. Most of the Items sought have been allowed. In   the circumstances, and in light of these reasons, I see no reason to decrease the   amount from $625 as is provided for in Item 9.01.

3.        The Respondent is to pay the costs of the appeal.

Deborah Moore

Acting Deputy President

29 May 2006

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

ASSOCIATE