Kurzman v Clyde Agriculture Limited
[2007] NSWWCCPD 23
•25 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Kurzman v Clyde Agriculture Limited [2007] NSWWCCPD 23
APPELLANT: Lawrence James Kurzman
RESPONDENT: Clyde Agriculture Limited
INSURERS:(a) Allianz Australia Workers Compensation (NSW) Limited
(b)Cambridge Integrated Services Australia Pty Limited (formerly Vero Workers Compensation Limited)
FILE NUMBER: WCC17853-05
DATE OF REGISTRAR’S DECISION: 16 May 2006
DATE OF APPEAL DECISION: 25 January 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s Assessment of Costs; various Items in Schedule 6 of the Workers Compensation Regulation 2003; disbursements and costs.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners, Lawyers
Respondent: Hunt & Hunt, Solicitors
ORDERS MADE ON APPEAL: 1. The Registrar’s determination of Mr Kurzman’s claim for costs in this matter, dated 16 May 2006, is amended in accordance with these reasons.
2. The Respondent, Clyde Agriculture Limited in the interest of Cambridge Integrated Services Australia Pty Limited (formerly Vero Workers Compensation Limited) is to pay the Appellant, Mr Kurzman, $385.00 inclusive of GST in respect of his costs in this appeal.
BACKGROUND TO THE APPEAL
On 6 June 2006, Lawrence James Kurzman (‘Mr Kurzman’) filed an ‘Appeal Against a Costs Determination’ made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 16 May 2006. The Respondent to the appeal is Clyde Agriculture Limited (‘Clyde’). Clyde’s insurers were firstly Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) and secondly, Cambridge Integrated Services Australia Pty Limited (formerly Vero Workers Compensation Limited) (‘Vero’).
On 30 June 2006 Clyde in the interests of Vero filed submissions in opposition to the appeal. On 22 August 2006 Mr Kurzman filed further submissions in reply.
Mr Kurzman commenced proceedings in the Commission on 13 September 2004 against Clyde and its two insurers.
A ‘Certificate of Determination’ was issued on 28 February 2004 in relation to Mr Kurzman’s claim for weekly compensation and medical expenses. That certificate noted that liability was apportioned 90% to Vero and 10% to Allianz pursuant to sections 22 and 22A of the Workers Compensation Act 1987 (‘the 1987 Act’).
The certificate also noted: “That the Respondent pay the Applicant’s costs as agreed or assessed.”
Following a Telephone conference on 8 September 2005 where, with the assistance of the Arbitrator, the parties were able to come to an agreed resolution of Mr Kurzman’s claim for benefits pursuant to section 66 and 67 of the 1987 Act, a further ‘Certificate of Determination – Consent Orders’ noted: “That the Respondent pay the Applicant’s costs as agreed or assessed.”
The Arbitrator further stated: “I certify that this is a complex matter for the purposes of the costs regulations 4.10 and 9.01, because this application has been the subject of a determination of the Commission in February 2004, and involved relatively complex legal, factual and medical issues.”
On 19 October 2005, the parties having failed to agree on the costs payable, Mr Kurzman’s solicitors filed an ‘Application for Assessment of Costs’ with the Commission in respect of their Bill of Costs dated 14 September 2005. Clyde in the interests of Vero filed submissions on 28 February 2006.
The Registrar delegated the Assessment of Costs to a Commission Arbitrator (‘the Delegate’) who made a determination dated 16 May 2006. The ‘Certificate of Determination’ was in the following terms:
“1.Pursuant to an order of the Commission of 12 September 2005, 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 $14,167.88.
3. The Applicant’s costs of the assessment are not allowed.
4. The Respondent is to pay the amount of $14,167.88 to the Applicant if those costs have not already been paid.”
The relevant aspects of the Delegate’s ‘Statement of Reasons’ for his decision will be dealt with below.
ON THE PAPERS REVIEW
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.”
Having regard to Practice Directions Numbers 1 and 6 and the documents before me, neither party having made any submission on this issue, 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, DISCUSSIONS AND FINDINGS
Mr Kurzman’s solicitors submit that the Delegate made errors of law in his interpretation of clauses 82 and 84 of the Workers Compensation Regulation (2003) (‘the 2003 Regulation’), and in his Assessment of Costs by reference to the Compensation Costs Table (‘the Table’) set out in Schedule 6 of the 2003 Regulation.
The following Items have been identified as being in dispute, each of which I will deal with in turn:
Professional Costs
Item Amount Allowed Amount Sought
________________________________________________________
Item 2.05 $ Nil $100.00
Item 4.02 $ 80.00 $100.00
Item 4.03 $ 60.00 $220.00
Item 4.03A $ 40.00 $220.00
Item 4.03B $ 28.00 $168.00
Item 4.04 $ Nil $120.00
Item 4.07 $ Nil $200.00
Item 4.08 $500.00 $1500.00
Item 4.10 $750.00 $1500.00
Item 4.12 $380.00 $760.00
Item 9.01 $ Nil $625.00
Item 10.01 $ Nil $187.50
Mr Kurzman’s solicitor also sought an ‘uplift’ in fees in accordance with Clause 5 of Schedule 6 of the 2003 Regulation. It makes provisions for payment of costs where multiple insurers are party to a claim. It is in the following terms:
“5. 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 cost 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.
That amount can only be calculated once the total amount of costs payable is determined.
Disbursements
Description Amount Allowed Amount Sought
______________________________________________________________
Dr Lamplugh $ Nil $264.00
Agency Fees $ Nil $473.00
Private Investigator’s Report $ Nil $2446.95
Solicitor’s travel on 10.1.2004 $ Nil $696.50
Accountant’s fees $ Nil $ 61.38
Item 2.05
This is described in column 2 of the Table as “briefing a factual investigator or other investigator to obtain evidence other than witness statements (not including the investigator’s fee).”
The Delegate disallowed the claim on the basis that the investigator’s report contained “… a ‘statement’ (singular) with no special or particular or ‘investigatory’ elements apart from a ‘factual and liability summary’”. The Delegate further noted that:
“Much of the submissions content of the Applicant under this Item appear to be cast academically, somewhat in a rote format, and do not appear to have special pertinence, including factually, to these proceedings. The Item qualifies only where the ‘investigation’ briefing is to obtain evidence other than witness statements …”.
It is now well established that Item 2.05 does not encompass briefing a factual investigator to take a statement from a Worker/Applicant. The costs involved in obtaining a worker’s statement are encapsulated and absorbed by Item 2.01 (see Harvey v JJC Group Pty Limited [2005] NSWWCCPD 329 (‘Harvey’).
Nothing in the St George Registration and Investigation Services Pty Limited (‘St George’) memorandum of costs and disbursements dated 10 April 2003 indicates that any investigatory tasks were undertaken. Much of the account relates to typing and photocopying. There is a reference to “research factual and liability summary” but no indication as to the nature of that apparent task.
Mr Kurzman’s submissions both before the Delegate and on appeal essentially merely address the nature of the relief sought by Mr Kurzman and matters put in issue by Clyde and its insurers. Nothing in that material indicates that any particular “investigatory” activity was required from an independent source such as St George.
Mr Kurzman’s solicitors quote from the decision of Mitchell v Pet Trading Pty Limited [2004] NSWWCCPD C30 where the Arbitrator stated: “In principle, an Applicant is entitled to recover costs for briefing an investigator under Item 2.05 and the investigator’s fees under clause 82(v) of the Workers Compensation Regulations 2003.” Whilst I agree with this statement, it must be applied to the facts of each particular case. In the present case, as I have said, I do not consider that it was warranted. Indeed, the content of the St George account suggests that no particular activities were undertaken to address many of the matters raised by Mr Kurzman’s solicitors in their submissions, other than the taking of a statement from Mr Kurzman.
In these circumstances, I concur with the Delegate’s views and disallow the Item.
Item 4.02
This is described in the Table as “service of material in relation to Item 4.01 on the other parties to the dispute.” Mr Kurzman’s solicitors claimed $100.00 in respect of service upon four parties. As noted by the Delegate, only three parties were involved in the dispute claimed by Mr Kurzman. Accordingly, the Delegate’s assessment is correct. I should add that no submissions are made on appeal by Mr Kurzman’s solicitors on this issue.
The decision of the Delegate in respect of this Item is confirmed.
Item 4.03
This is described in the Table as “requesting the Commission to give directions for the production of documents”. $60.00 is allowed for the initial direction, then $40.00 for each additional direction up to $220.00
Mr Kurzman’s solicitor submits that directions to produce documents were served on seven entities. Vero claims that: “The only record we have of directions issued by the Applicant’s solicitor in these proceedings (14028–04) was that on Royal & SunAlliance.”
Vero goes on to note that directions for three parties were issued in previous proceedings No 10197-03 which were apparently discontinued at a Telephone conference on 8 September 2003 with no order as to costs. Vero submits that Mr Kurzman can only recover costs of the present proceedings.
Mr Kurzman submits that to disallow the amount sought would be contrary to the objectives of the Commission as set out in section 367 of the 1998 Act in particular the requirement for the Commission “to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Act.”
Mr Kurzman’s solicitor submits that:
“We believe that if we had issued further directions in matter number 14028-04, this would have been an abusive process, as all the documents were already provided to [the Commission] in the earlier matter.”
I agree with Mr Kurzman’s submissions on this point. The 1998 Act provides a right of discontinuance, but it seems to me that the issue of further directions would not only be a duplication of the activity already undertaken in the earlier proceedings but something of a farce if documents had already been produced.
Vero maintains that only one direction was issued in the present proceedings and three in the earlier proceedings. No reference is made in its submissions to an apparent direction issued on Allianz. In all the circumstances, I would allow the amount sought by Mr Kurzman given the facts of this particular case.
Items 4.03A and 4.03B
It follows from my determination in relation to Item 4.03 that a further allowance ought to be made.
Mr Kurzman sought the sum of $220.00 for Item 4.03A. A maximum of $200.00 is allowed, and I would allow that amount.
Similarly, in respect of the payment of conduct money pursuant to Item 4.03B. Mr Kurzman sought $168.00 in respect of conduct money paid to six entities. For the reasons stated above, I would allow that amount.
Item 4.04
This Item is described in the Table as: “Lodging an objection to a request for a direction for the production of documents. $60.00 per objection is allowed up to a maximum of $120.00.”
Mr Kurzman claimed $120.00 in respect of doctors Lamplugh and Bentivoglio. The Item was disallowed by the Delegate since “… There is no reliable material before me evidencing any formal objection activity or processes resisting Production Directions …”
The Respondent submits that it “… Made an application at the Teleconference on 29 November 2004 to issue late directions and leave was granted. Therefore, delete as there was no need for objections in writing.”
Mr Kurzman submits that making a claim for privilege over documents falls within the ambit of this Item, and refers to an unreported earlier cost decision where a sum was allowed for claiming privilege over solicitors letters to doctors.
Whilst I see some merit in this argument, in my view the terms of the Item are clear. Reference is made to lodging an objection to a request for a direction.
In these circumstances, I concur with the Delegate’s decision and disallow this claim.
Item 4.07
This Item is described in the Table as:
“Applying to refer a matter to an ‘approved medical specialist’ or responding to such an application (including costs associated with agreeing on the improved medical specialist and review of the report by the approved medical specialist).”An amount of $100.00 is allowed for this activity.
Mr Kurzman claimed the sum of $200.00. The Delegate noted that this exceeded the Table maximum of $100.00. In submissions before the Delegate, Vero said: “Reduce to $100.00 being the maximum amount allowed under this Item.” On appeal, Vero states: “Agree Applicant is not entitled to this Item in this matter as per Arbitrator’s decision.”
The Delegate disallowed the Item since: “… There appears to be no reliable material before me evidencing that this activity occurred outside the ambit of Teleconferencing, as for instance, in a separate or discrete referral or request. I do not regard the Item as properly claimable in this matter (Berger v Moree Plains Shire Council [2005] NSWWCCPD 152).”
There have been a number of decisions confirming that Item 4.07 is not claimable where referral occurred at a Teleconference. (See Norris v Frank Whiddon Masonic Homes of NSW [2006] NSWWCCPD 357).
The Delegate’s decision is in line with these decisions and I can see no error by him in this regard.
Item 4.08
Item 4.08 is described in the Table as: “Preparing for a conference (including providing advice to client).” Mr Kurzman’s solicitors claimed $1500.00 in respect of conferences on 29 November 2004, 8 September 2005 and a conciliation/arbitration on 10 January 2005.
The Delegate allowed $500.00 for the conference on 29 November 2004 but disallowed the claims in respect of the other two occasions, since the maximum had been allowed for the conference on 29 November 2004.
This Item was also considered in some detail by ADP Handley in Harvey where he said:
“In Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28 (‘Orr’), Deputy President Fleming discussed the application of column 4 of the Table in Schedule 6. Column 4 bears the heading “Maximum total for type of activity/event”. With reference to clause 1(2) of Schedule 6, the heading for column 4, and the NSW Court of Appeal decision in Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282 (‘Fuentes’), the Deputy President said, at paragraph 38:
“The monetary values set out in Column 4 of the Table, are the maximum total for an event type in any particular claim, regardless of the number of individual activities that may take place under the event heading.”
Thus, in respect of Items 4.08, the legal practitioner may not be allowed more than the column 4 maximum regardless of the number activities/events of that type. (However, as Deputy President Fleming recognised in McManus, there is an exception in respect of Item 4.12 where, following Fuentes, the column 4 maximum of $190 may be allowed in respect of each conference or conciliation/arbitration.)”
In these circumstances, Mr Kurzman’s claim for a total of $1500.00 is disallowed, and the Delegate’s decision confirmed.
Item 4.10
Mr Kurzman claimed $1,500.00 in respect of the conciliation/arbitration hearing which took place on 10 January 2005.
Item 4.10 is described in the Table as: “Attending and participating in a conference with an Arbitrator where the Arbitrator determines that the matter is complex and the matter proceeds directly to arbitration.” Payment is allowed at the rate of $250.00 per hour up to a maximum of $1500.00.
The Delegate allowed $750.00 stating as follows:
“This qualifies the Item for a claim here at 4.10. It does not qualify the Item for a claim beyond the time actually spent. The Respondent objects on the latter basis in that its duration was three hours and the claim should be $750.00. The Applicant has not answered this objection. It is allowed at $750.00.”
In submissions on appeal, Mr Kurzman’s solicitor makes reference to the time he spent in travelling to the conciliation and preparation for the conference. He concedes that the Conciliation/Arbitration was listed for hearing from 2:00pm through to 5:00pm.
Mr Kurzman’s submissions are incorrect and the time for travel is not claimable under this Item. In the circumstances, the Delegate’s decision is confirmed.
Item 4.12
This Item is described in the Table as: “Reporting to the client on the outcome of a conference or arbitration ...” The maximum total at the relevant time for this activity was $190.00. As ADP Handley noted in Harvey:
“... There is an exception to the general principle in relation to the column 4 maximum total in respect of Item 4.12, following Fuentes (Orellana Fuentes v Standard Knitting Mills Pty Limited & Anor [2003] NSWC 16) so that the maximum of $190.00 may be allowed in respect of each conference or conciliation/arbitration.”
The Delegate allowed a total of $380.00 for reporting to the client following a conference on 29 November 2004 and the conciliation/arbitration on 10 January 2005. Mr Kurzman’s claim under this Item on appeal is not easy to decipher. He apparently claims a total of $760.00 being for reporting on 29 November 2004, 11 September 2005 and apparently twice on 10 January 2005.
The files confirm that the parties attended a Teleconference on 12 September 2005. Mr Kurzman’s solicitors claimed they reported to their client on 11 September 2005. This was disallowed by the Delegate who stated as follows:
“Although more than one claim can theoretically be made under reference 4.12 (Orellana-Fuentes v Standard Knitting Mills Pty Limited & Anor [2003] NSWCA 146), it does not embrace the claiming of this same activity (emphasis mine) as to exceed the Table maximum for it (Orr). Fuentes and McManus v Gosford City Council [2004] NSWWCCPD 61 endorsed a separate claim being made for a separate activity of clients reporting with reference to a separate conciliation/arbitration, and occurs as a separate and discreet chronology from a Teleconference … Teleconference reporting has already been allowed at the Table maximum earlier. Further, it is noted that client reporting is later claimed for 10 January 2005 in consequence of the arbitration (and there allows). This Item is not claimable here. Disallowed.”
I have some difficulty in understanding the Delegate’s reasoning in respect of this Item. It may be a reflection of the apparent claim for $380.00 as opposed to $190.00, but it is not clear.
In line with the authorities to which the Delegate referred, I would allow this Item in respect of the Teleconference which took place on 8 September 2005.
Item 9.01
This Item is described in the Table as “conduct of any other proceedings before the Commission involving the determination of substantive legal issues, including preparatory work.” A maximum of $625.00 is payable for this Item.
Mr Kurzman claims $625.00 under this Item. The claim was not disputed by Vero.
In submissions on assessment, Mr Kurzman claimed: “The Applicant has filed lengthy submissions with regards to the ‘Approved Medical Specialist’ determination and therefore the Applicant is entitled to recover the amount of $625.00”. The Delegate disallowed the Item stating as follows:
“The Applicant contends for a claim of $625.00 under reference of this Item on the footing that submissions relative to the AMS determination qualify as a ‘substantive legal issue’. They do not. Any submissions preparation relative to an AMS or generally, do not qualify as the conduct of any other proceedings involving the determination of a substantive legal issue as to qualify for a claim under this Item. Although it appears that the Respondent did not dispute the inclusion of this Item, these proceedings now present for assessment, and this Item is not correctly allowable. Disallowed.”
In submissions on appeal, Mr Kurzman has expanded on his claim noting that, inter alia, a dispute involved apportionment. It is also noted that the Arbitrator, in his ‘Statement of Reasons’ dated 12 September 2005, certified the matter as complex: “… For the purposes of the costs regulations 4.10 and 9.01 …”.
In these circumstances, and since the Item was not in dispute by Vero on assessment, the Item should be allowed. The Delegate’s ‘Statement of Reasons’ appear to have overlooked the Arbitrator’s statement as to the complexity of the matter. Whilst it is fair to say that Mr Kurzman’s submissions in his application for assessment of costs was somewhat scant, the Delegate should have had recourse to the Arbitrator’s certification.
Item 10.01
This Item is described in the Table as: “All work associated with instructing an agent to act on the claim or a matter relating to the claim.” The maximum allowed is $187.50.
Mr Kurzman claimed the maximum amount under this Item. This Item was disputed by Vero and disallowed by the Delegate on the basis that: “The appropriate claim has already been made and allowed at the Table maximum at 4.05 earlier and the Table maximum cannot be exceeded for the activity claimed. (Dunn v Port Macquarie RSL Club Limited [2004] NSWWCCPD 33). Disallowed.”.
In McManus v Gosford City Council [2004] NSWWCCPD 61, Deputy President Fleming, in considering Item 10.01 said this:
“The issue of the agent’s fees was discussed in the matter of Dunn … Item 4.05 of the Compensation Costs Table has already been claimed, and allowed, at a maximum of $500.00. To also allow the claim under Item 10.01 is to effectively allow for the same activity, by a legal representative and an agent, to be claimed twice. This is not permitted by the Regulations.”
In line with these authorities, I see no error in the Delegate’s determination that this Item ought be disallowed.
Clause 5 – Costs in relation to two insurers
Clause 5 of Schedule 6 provides, relevantly, that if more than one insurer is a party to a claim or dispute or other matter in relation to a claim, the maximum costs in respect of the matter are the total of the costs calculated in accordance with the Table and 50% of the amount per party (other than the party who made the claim).
This issue was recently considered by ADP Handley in Harvey where he said as follows:
“In Dunn … at paragraph 35, Deputy President Fleming said, in relation to a claim for costs under clause 5, ‘the Registrar has an overriding discretion to award costs in accordance with what is fair and reasonable for the work performed.’ At paragraph 30, she emphasised that ‘An award of costs is relative to the work performed and not based upon the maximum award regardless of whether the activity or event had actually been carried out, or carried out to the full extent of the time that attracts the ‘maximum amount’ that may be awarded.”
The Delegate stated as follows:
“The Applicant claims for an accretion of 50% as an ‘entitlement’ under this heading with reference to multiple insurers. The Respondent objects to the quantum of the percentage claim. Clause 5 allows a 50% increment subject to the discretion of the Registrar based on case circumstances (Dunn). It is a discretionary allowance. It is not a mandate or any ‘entitlement’ as the Applicant asserts. The discretion is just that, a discretionary and subjective factor, and not removed from analysis of such factors as degree of difficulty and the actuality of increased or further work attendant directly upon the involvement of second insurer/employer Respondent. I am of the view and determine that an allowance of 25% is, within that discretion, a fairly and reasonably applied compensatory adjustment under this reference.”
Mr Kurzman in his submissions on appeal maintains that he ought be entitled to the maximum 50%. In his submissions, he distinguishes this case from the factual circumstances in Dunn where additional insurers were not nominated at the original application and less work was thus required. Mr Kurzman submits that in the present case, both insurers were joined and the Application was forwarded to both the named employer and two insurance companies. Mr Kurzman submits: “This required the photocopying of an additional amount of 750 photocopies … and then involved various correspondence with legal parties.” Mr Kurzman notes that there was continuing dispute between the insurers involving further correspondence and thus a claim for 50% is fair and reasonable.
Mr Kurzman also points out that: “The Applicant obtained a judgment against the first Respondent for a section 66 claim and obtained a judgment against the second insurer for another section 66 and section 67 claim. Therefore both parties had to be present.”
I note that the Arbitrator issued two determinations in relation to the claim, one on 28 February 2004 and the second on 12 September 2005. I also again note his certification that the matter was “complex”. Having regard to those matters, I am satisfied that it would be fair and reasonable to allow an additional 35% in respect of costs incurred in the proceedings relative to the additional insurer.
Disbursements
Dr Lamplugh
Dr Lamplugh provided a number of medical reports. Some were allowed. In relation to the account dated 28 June 2004 in the sum of $264.00 this was disallowed by the Delegate who stated as follows:
“The Respondent objects, contending that the report was not relied upon or served in the proceedings. It is noted to be a Medico-Legal Report. It is noted that the Respondent’s objection is as to its non service nor reliance upon in the proceedings that is not answered by the Applicant. It is regarded as not fairly nor reasonably claimed in the circumstances of the matter, and disallowed.”
Mr Kurzman claims that: “With regards to Dr Lamplugh’s account dated 28.06.2004 for $264.00, that was made by William Van Lill, a locum for Dr Lamplugh.” Mr Kurzman claims that the report was not a medico-legal report but rather a report by a treating doctor and as such was a “medical report provided by medical practitioner as part of or in the course of treatment of the injured worker by the medical practitioner” within the terms of Part 10 Regulation 45.
In submissions on appeal, Mr Kurzman has not addressed Vero’s objection on the basis that the report was neither served nor relied upon in the proceedings. This appeared to be the basis upon which it was rejected by the Delegate, regardless of the status of the report. In those circumstances, I can see no error in the Delegate’s determination disallowing this disbursement.
Agency Fees
Mr Kurzman’s solicitors claim a total of $473.00 for agency fees in respect of St George Registration and Investigation Services (St George). These fees comprised $44.00 for filing fees and $429.00 for inspection of documents.
The Delegate disallowed the Item again noting that:
“… An allowance has been made at Item 4.05 here. The appropriate reference for this category of claim is at Item 4.05. That Item has already been allowed at the Table maximum as claimed previously. It cannot be claimed twice … Disallowed.”
In accordance with the decision in Dunn to which I have referred previously, recovery of agency fees is not permitted because Mr Kurzman has already claimed and been allowed the maximum under Item 4.05. In these circumstances, I can see no error in the Delegate’s determination to disallow this disbursement.
Private Investigator’s Report
Mr Kurzman claimed $2,446.95 in respect of St George’s fees for preparing a factual and liability report. The Delegate disallowed the claim and provided extensive reasons for his decision. Briefly, he stated:
“Some of the Applicant’s submissions commentary here appear academic or, at least, not necessarily based on this case presentation. The Respondent objects. As stated, I cannot see the relevance of much of the Applicant’s submitted material here to these proceedings, much of which is academic commentary, in terms of justifying fairness or reasonableness of the claim.”
The Delegate noted that the Regulation applies a test of whether the disbursement was “reasonably incurred or was reasonable in amount”. The Delegate then stated:
“I have noted the content of the claim St George 10 April 2003 Invoice itself. Much of its content is of a house-keeping nature such as secretarial and dictation attendances, rather than ‘investigatory’.”
The Delegate then went on to analyse in some detail the content of the St George account.
The Delegate noted, comments he had already made in relation to the report under Item 2.05. Having considered the account dated 10 April 2003, I concur with the Delegate’s views. Nothing suggests that any true ‘investigatory’ activity took place. In the circumstances, the claim is disallowed.
Solicitor’s travel expenses
Mr Kurzman’s solicitor claims $696.50 in respect of his own travel on 10 January 2004. The Delegate disallowed the claim stating as follows:
“I am not satisfied that solicitor’s travel in fact or in reality occurred; or even if it did, that it is reasonably claimable where Counsel … appeared on this date … further especially in this circumstances, there are no verifying accounts or receipts. The claims totalling $696.50 are not reasonably or fairly claimed. They are disallowed”.
Mr Kurzman’s solicitor maintains this claim on appeal. In his submissions, he has made reference to a decision of Judge Walker of the former Compensation Court where His Honour apparently allowed a solicitor’s claim for travel expenses because, in that particular case, “the files were voluminous and difficult to access and in his view, a Sydney agent could not have been in a position to readily assist Counsel and the Court.”
Mr Kurzman goes on to note that in the present case: “… There were eight manilla folders. The Applicant resided in Bourke, the Applicant’s solicitor resided in Young.” Mr Kurzman then goes on to note the issues in dispute raised by the Respondent to the proceedings and again notes that the matter was certified complex.
Vero objected to the claim on the basis that Mr Kurzman was represented by Counsel on 10 January 2004. Since Counsel resided in Sydney, Vero maintains that no travel accommodation or sustenance should be payable. Vero also submits: “In any event, no accounts or receipts provided and therefore the Respondent disputes the claim at all or in the alternative, not reasonable.”
Item 10.02 of the Table makes provision for “travelling for the purpose of attending at proceedings before the Commission …” In this case, and in view of the complex nature of the proceedings as certified by the Arbitrator, I think it appropriate that some allowance for travel expenses be made. Mr Kurzman’s solicitor has not provided accounts or receipts for accommodation and sustenance. I think it appropriate to provide such material in relation to accommodation expenses. I would make some allowance for sustenance. Accordingly, I would allow the claim in respect of 850 kilometres travelled at 59c per kilometre (less the first 50 kilometres) totalling $472.00. I would disallow the claim for accommodation and make an allowance of $50.00 for sustenance.
Accountant’s fees
Mr Kurzman claims the sum of $61.38 in respect of a Tax Invoice from R O Wright & Company Accountants, for providing copies of tax returns. This claim was rejected by the Delegate who said as follows:
“The Respondent objects on the footing that this is essentially a photocopying attendance. I have seen the subject … invoice … which is with reference to collating copies of Tax Returns. Photocopying is not recoverable and this is the basis of the Respondent’s objection in fact. The Item is not allowable. Disallowed.”
The Delegate’s assessment of the Invoice is not entirely correct. The Invoice states: “Collate copies of … Tax Returns for the year 1996 to 1999 …” $50.00 was charged for this activity and an additional $5.80 for photocopying. GST was added to bring the total to $61.38.
As Mr Kurzman points out in his submissions, he “… had to obtain the financial documents because a claim for weekly compensation was made.” In these circumstances, I am inclined to agree, and consider the invoice fair and reasonable in the circumstances. I would accordingly allow this disbursement.
Summary
The outcome of my review of the Delegate’s determination in relation to Mr Kurzman’s costs and disbursements is as follows:
Professional Costs
Item 2.05: The Delegate’s disallowance of this claim is confirmed.
Item 4.02: The Delegate’s allowance of $80.00 (plus $8.00 GST) is confirmed.
Item 4.03: A claim for $160.00 (plus $16.00 GST) should be allowed.
Item 4.03A: A claim for $160.00 (plus $16.00 GST) should be allowed.
Item 4.03B: A claim for $140.00 should be allowed. No GST is payable on this Item.
Item 4.04: The Delegate’s disallowance of the claim is confirmed.
Item 4.07: The Delegate’s disallowance of this claim is confirmed.
Item 4.08: The Delegate’s allowance of $500.00 (plus GST of $50.00) is confirmed.
Item 4.10: The Delegate’s allowance of $750.00 (plus GST of $75.00) is confirmed.
Item 4.12: A claim for $190.00 (plus GST of $19.00) should be allowed.
Item 9.01: A claim for $625.00 (plus GST of $62.50) should be allowed.
Item 10.01: The Delegate’s disallowance of this claim is confirmed.
Additional Professional Costs of $1,275.00 (exclusive of GST) is allowed.
As to the clause 5 costs, the Delegate allowed $5,640.50 (exclusive of GST) for professional costs in respect of the named Respondent and an additional 25% ($1,410.12) in respect of the second insurer, a total of $7050.62.
I have determined that to the $5,640.50 must be added $1275.00, to give a total of $6915.05. An additional 35% of this amount ($2,420.42) should be allowed in respect of the second insurer, ie, a total of $9335.92.
The total professional costs then allowed are $9,335.92 plus GST of $919.59 (excluding GST on Item 4.03B), totalling $10,255.51. The Delegate allowed $7,752.88. Therefore a further $2,502.63 is payable.
Disbursements
Dr Lamplugh: The Delegate’s disallowance of this disbursement is confirmed.
Agency fees: The Delegate’s disallowance of this disbursement is confirmed.
Private Investigator’s Report: The Delegate’s disallowance of this disbursement is confirmed.
Solicitor’s travel (including sustenance): $522.00 should be allowed.
Accountant’s fees: $61.38 should be allowed.
Total additional disbursements allowed on the appeal = $583.38.
Total additional professional costs ($2,502.63) and disbursements ($583.38) = $3,086.01.
The Delegate’s determination of $14,167.88 should therefore be increased by $3086.01 to $17,253.89.
DECISION
The Delegate’s determination of Mr Kurzman’s claim for costs in this matter dated 16 May 2006 is amended in accordance with these reasons.
COSTS
Mr Kurzman claims costs of the assessment before the Delegate and of the appeal.
The Delegate stated as follows:
“The Respondent submitted that the Applicant should have no costs of assessment including on the basis that the Applicant filed the Application without giving any reasonable opportunity for the Respondent to negotiate. I have noted that submission and that there appears to be no meaningful response to it from the Applicant. In any event, it is noted that many of the claims submitted by the Applicant were not sustainable or to the extent claimed. In the circumstances of the overall presentation of the matter, I make no determination of costs of the assessment accordingly.”
In submissions on appeal, Mr Kurzman claimed that the solicitors for Vero were served with a copy of the Bill of Costs on 14 September 2005. The Application for Assessment of Costs was filed on 19 October 2005. Mr Kurzman submits: “The failure of [Vero’s solicitors] to make an offer would constitute an opening offer of nil and therefore if the Applicant beats that offer then the Applicant is entitled to the cost of the proceedings.”
In submissions before the Delegate, Vero stated as follows:
“The Applicant failed to serve/produce a Memorandum of Costs and Disbursements before lodging a Bill of Costs in the Workers Compensation Commission. Therefore the Respondent was not given the opportunity to negotiate and attempt to agree the Applicant’s costs and disbursements before incurring unnecessary costs. Accordingly, the Applicant should have no costs of assessment.”
In the Application for Assessment of Costs, Part 3 of that document discloses that the Bill of Costs was forwarded to “… The person liable to pay the costs …” on 14 September 2005.
There is no other material in the Commission that assists me in this regard. Given the conflicting statements by both parties and in the absence of confirmation from Mr Kurzman’s solicitor in his submission on appeal that Vero’s solicitors were in fact served with the ‘Bill of Costs’, I am not in a position to interfere with the Delegate’s determination in respect of costs of the assessment. Accordingly, the Delegate’s decision is confirmed.
Mr Kurzman’s solicitors have been partly successful on appeal and in my view, it is reasonable to order that Vero pay Mr Kurzman’s costs of the appeal in the sum of $385.00.
The appropriate order therefore is that the Respondent, Clyde Agriculture Limited, in the interests of Cambridge Integrated Services Australia Pty Limited (formerly Vero Workers Compensation Limited) is to pay the Appellant, Mr Kurzman, $385.00 inclusive of GST in respect of his costs in this appeal.
Deborah Moore
Acting Deputy President
25 January 2007
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
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