Justcorp Pty Ltd trading as House & Garden Tweed Mall

[2007] NSWWCCPD 61

WORKERS COMPENSATION COMMISSION

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

CITATION:Justcorp Pty Ltd t/as House & Garden Tweed Mall v Mani [2007] NSWWCCPD 61

APPELLANT:  Justcorp Pty Ltd t/as House & Garden Tweed Mall

RESPONDENT:  Tania Maree Mani

INSURER:CGU Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC6290-06

DATE OF REGISTRAR’S DECISION:             10 August 2006

DATE OF APPEAL DECISION:  22 February 2007

SUBJECT MATTER OF DECISION:                Calculation of costs and disbursements

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant:      Sparke Helmore Lawyers

Respondent:   Attwood Marshall Lawyers

ORDERS MADE ON APPEAL:  The matter is remitted to the Registrar for re-determination in accordance with these reasons.

There is no order as to the costs of this appeal. 

BACKGROUND

1. On 22 September 2006, Justcorp Pty Ltd t/as House & Garden Tweed Mall (‘Justcorp’) filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator. The Respondent to the appeal is Tania Mani. Justcorp’s workers compensation insurer is CGU Workers Compensation (NSW) Ltd (‘CGU’). On 17 October 2006, Ms Mani’s solicitors filed a ‘Notice of Opposition’ to the appeal, together with their submissions.

1. Ms Mani was born on 24 March 1966 and is aged 40. On 8 April 2002, she injured her right arm and shoulder in an accident at work. On 25 February 2005, the Commission registered Ms Mani’s ‘Application to Resolve a Dispute’. Justcorp filed a ‘Reply’ on 16 March 2005.  At a teleconference, an Arbitrator assisted the parties in reaching an agreed resolution of the issues in dispute and, on 30 January 2006, the Arbitrator issued a Certificate of Determination in the following terms:

“1. That the Respondent pay to the Applicant the following:

(a) $21,500.00 for a 16% Whole Person Impairment under section 66.
(b) $14,500 under section 67.

2. That the Respondent pay the Applicant’s section 60 expenses to an amount of $1,345.00 on production of accounts or receipts.
3. Proceedings number 3027-05 be discontinued and the need to file an Agreement to Discontinue be dispensed with.
4. That the Respondent pay the costs of the Applicant as agreed or assessed in proceedings 13996-03 and the costs in proceedings number 3027-05 limited to the issuing of Directions and obtaining evidence that was not filed in proceedings 13996-03.”

1. On 24 April 2006, the parties having failed to agree on the costs payable, Ms Mani’s solicitors lodged an ‘Application for Assessment of Costs’ with the Commission. CGU filed its submissions in reply on 23 May 2006. On 5 June 2006, Ms Mani’s solicitors lodged submissions in response. The Registrar delegated the assessment of costs to an Arbitrator (‘the Delegate’) who made a determination dated 10 August 2006. The Certificate of Determination stated:

“1. Pursuant to Agreement and Order dated 30 January 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 substantive proceedings assessed in the sum of $9,295.00 (inclusive of GST) are determined as fair and reasonable.
3. The Applicant’s costs of the assessment (inclusive of GST) are allowed in an amount of $605.00.
4. The Respondent is to pay the amount of $9,900.00 to the Applicant if those costs have not already been paid.”

1. The relevant parts of the Delegate’s Statement of Reasons for his decision are referred to below under the heading ‘Submissions, Discussion and Findings’.

1. By letter dated 11 August 2006, CGU submitted that the Delegate’s calculations were incorrect and requested an amended Certificate of Determination. Ms Mani’s solicitors responded by letter dated 21 August 2006 that the Registrar was ‘functus officio’ and, in any event, there was no error in the Delegate’s calculations. The Delegate reviewed the documentation and, on 4 September 2006, decided not to amend the Certificate of Determination and Statement of Reasons.

ISSUES IN DISPUTE

1. CGU submits the Delegate incorrectly calculated the amount of costs and disbursements payable to Ms Mani’s solicitors. The parties’ submissions on these issues are considered below.

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, the documents before me, and the submissions of the parties that the matter can be dealt with ‘on the papers’, 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

1. The relevant legislation concerning appeals to the Commission against an assessment of costs, set out in the 1998 Act and the Workers Compensation Regulation 2003 (‘the 2003 Regulation’) applicable at the time of the Delegate’s assessment, was discussed by Deputy President Fleming in Berger v Moree Plains Shire Council [2005] NSWWCCPD 152 (‘Berger’). I note, in particular, that clause 119(1) of the 2003 Regulation 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 to determine the costs application.

1. Clause 84 of the 2003 Regulation fixes the maximum costs recoverable by legal practitioners and agents at those set out in Schedule 6, except where otherwise provided in Part 19. Schedule 6 sets out the maximum costs recoverable in workers compensation matters by reference to the Compensation Costs Table (‘the Table’) at the end of the Schedule. The Table identifies particular activities or events with an item number. It is these item numbers that are referred to below.

1. As stated above, CGU submits the Delegate incorrectly calculated the amount of costs and disbursements payable to the Applicant. CGU notes that in its submissions to the Delegate dated 22 May 2006, it pointed out that the only Items in issue were Items 2.06 and 10.01 in matter no 13996-03, and Items 4.05 and 4.09 in matter no 3027-05. The Delegate allowed the amounts claimed in respect of all four items.

1. In their submissions on the appeal, Ms Mani’s solicitors submit, firstly, that the appeal should be rejected because it was filed out of time. However, I note there is no limit on the time within which an appeal against a costs determination by the Registrar may be made pursuant to clause 119 of the 2003 Regulation. The time limit on appeals provided for in section 352(4) of the 1998 Act only applies in respect of appeals against a decision of the Commission constituted by an Arbitrator.

1. Secondly, Ms Mani’s solicitors submit that CGU have not identified any error of law by the Delegate, which is the proper basis for an appeal under clause 119. They submit that any concessions made by the Applicant in the course of negotiation are not binding on the Delegate, who retains the authority to make a fair and reasonable determination of the worker’s costs having regard to the work performed and the Items in respect of which there may properly be recovery in the matter.

1. I note that in a letter to CGU’s solicitors dated 10 April 2006, Ms Mani’s solicitors agreed in relation to their claims under Item 4.03B that in matter no 13996-03 they would accept the amount of $94.00 (rather than the $200 claimed) and in matter no 3027-05 they would accept the amount of $104.00 (rather than the $200 claimed). The adjusted amounts seem to be referable to the conduct money actually paid. The total amount conceded by Ms Mani’s solicitors under Item 4.03B was therefore $202. This was not addressed by the Delegate in his Statement of Reasons and he does not seem to have taken this concession into account in adjusting the $10,871.43 originally claimed by Ms Mani’s solicitors in the letter setting out their costs and disbursements dated 30 January 2006. Thus, the Delegate’s calculations appear to be incorrect in not recognising the concession of $202.

1. In their letter dated 10 April 2006, Ms Mani’s solicitors also refer to a disbursement claimed in respect of a fee of $440 for a report by Dr Boyce dated 18 August 2003 paid on 17 December 2003, which they press, since they maintain this was filed in relation to the earlier proceedings in matter no 13996-03. I can find no evidence of any resolution between the parties on this disbursement or of Ms Mani’s solicitors conceding this disbursement. Yet CGU do not include the disbursement in their calculations included in their submissions on the appeal. I note the Delegate did not include this disbursement in calculating the adjustment of $1,576.36 agreed by the parties. Thus, the Delegate appears to have assumed that CGU had conceded the disbursement since CGU did not identify the claim in respect of the disbursement as being in dispute. On this basis, CGU’s calculations are therefore incorrect in not taking account of the disbursement of $440.

1. It appears CGU’s calculation are also incorrect in that they fail to recognise that in their letter dated 30 January 2006, Ms Mani’s solicitors made two claims under Item 4.05, one in respect of each of the two proceedings. The Delegate’s determination allowing $550 under Item 4.05 appears to have been in respect of Ms Mani’s solicitors claim related to the later proceedings (matter no 3027-05), and the Delegate seems to have assumed that the parties were not in dispute about the claim under Item 4.05 in respect of the earlier proceedings (matter no 13996-03) since this was not identified by CGU as being in dispute. If I am correct in so assuming, and noting the terms of the costs order contained in the Certificate of Determination dated 30 January 2006 - allowing for the recovery of limited costs in respect of the later proceedings, then CGU’s calculations have underestimated the award in this respect by $550 (including GST).

1. Pursuant to clause 115 of the 2003 Regulation, the Registrar is required to provide a statement of reasons for her determination.  In Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28, at paragraph 48, Deputy President Fleming held:

“In my 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. Nevertheless, there is an expectation that the Registrar or her delegate will provide a sufficient explanation for the decision to enable the parties to understand the basis on which the decision has been made – referring to the relevant facts and law – and to enable the parties to make an informed decision on whether or not to appeal against the decision. Failure to provide an adequate statement of reasons is an error of law. To succeed on an appeal, the inadequacy of the reasons must be such as to demonstrate that the Registrar or her delegate failed to exercise the duties delegated to him or her fairly or lawfully.

1. In my view, the Delegate has not provided an adequate statement of reasons for his decision and has thereby made an error of law. He fails to refer to the negotiations between the parties and the concessions that were made, and in doing so appears to have made an error in his calculations by taking the amount of costs and disbursements originally claimed, failing to recognise the concession made in respect of the claims under Item 4.03B, and thereby allowing $202 in excess of that agreed between the parties in relation to Ms Mani’s solicitors’ claims under that Item. He has also neither properly explained about the two claims under Item 4.05, nor confirmed that he has treated the disbursement for the fee for the second report by Dr Boyce as being agreed between the parties, even though a review of the correspondence provides no evidence of this. It is evident from CGU’s submissions on the appeal that it has failed to understand this part of the Delegate’s determination. I am therefore not satisfied that the Delegate has performed his duties fairly in making his decision.

1. In my view, the appropriate outcome is to remit the matter to the Registrar pursuant to clause 119(3)(b) of the 2003 Regulation for re-determination in accordance with these reasons – in particular, so that the Delegate can check the understanding of the parties on Items 4.03B and 4.05, and on the claim for the disbursement in respect of Dr Boyce’s second report.

DECISION

1. The matter is remitted to the Registrar for re-determination in accordance with these reasons.

COSTS

1. There is no order as to the costs of this appeal.

Robin Handley

Acting Deputy President

22 February 2007

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