Levett v Young Mining Company Pty Ltd

[2007] NSWWCCPD 28

WORKERS COMPENSATION COMMISSION

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

CITATION:Levett v Young Mining Company Pty Ltd [2007] NSWWCCPD 28

APPELLANT:  John Levett

RESPONDENT:  Young Mining Company Pty Ltd

INSURER:GIO General Ltd

FILE NUMBER:  WCC9025-05

DATE OF REGISTRAR’S DECISION:             2 March 2006

DATE OF APPEAL DECISION:  30 January 2007

SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claims under Items 2.05, 4.04, 9.01 and 10.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003; whether maximum costs specified in the Table before 17 March 2006 are inclusive of GST; disbursements – fee for clinical notes, medical consultation fee, agency fees, fee for private investigator’s report, and applicant’s travelling expenses.

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant:      McCabe Partners Lawyers

Respondent:   Sparke Helmore Lawyers

ORDERS MADE ON APPEAL:  Clause 8 of the Registrar’s decision dated 2 March 2006 is revoked and the following clause is substituted:

“The Respondent is to pay the amount of $7,037.00 to the Applicant if those costs have not already been paid.”

The Registrar’s decision dated 2 March 2006 is otherwise confirmed.

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

BACKGROUND

1. On 21 March 2006, John Levett filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator. The Respondent to the appeal is Young Mining Company Pty Ltd (‘YMC’). YMC’s workers compensation insurer is GIO General Ltd (‘GIO’). On 18 April 2006, YMC lodged a ‘Notice of Opposition to the Appeal’ and submissions.

1. Mr Levett was born on 2 October 1951 and is aged 55. On 23 November 2001, Mr Levett made a claim for workers compensation for injuries to his right and left arms/wrists arising out of the nature and conditions of his employment by YMC between 1 July 1987 and 23 November 2001. On 22 September 2004, the Commission registered Mr Levett’s ‘Application to Resolve a Dispute’ in respect of his claim for (1) medical, hospital or related expenses, and (2) compensation for permanent impairment and pain and suffering. On 12 October 2004, YMC filed a ‘Reply’.

1. An Arbitrator conducted teleconferences with the parties on 8 December 2004 and 2 May 2005 in the course of which the parties came to an agreed resolution of the issues in dispute. On 3 May 2005, the Arbitrator issued a Certificate of Determination in the following terms:

“1. That the Applicant is to discontinue his claim after the appropriate section 66A Agreement is lodged with the Workers Compensation Commission. The requirement for the Applicant to lodge a Notice of Discontinuance is dispensed with.

2. That the Respondent pay the Applicant’s costs as agreed or assessed, including preparation of 1 hour and attendance at the teleconference on 2 May 2005.

Whilst not a determination of the Commission, I note that the parties have agreed to lodge a section 66A Agreement for the total of $31,750 made up as follows:

15% permanent impairment of the right arm below the elbow   $11,250
15% permanent impairment of the left arm below the elbow   $10,500
Pain and suffering  $10,000

I also note that the Respondent agreed at the teleconference on 2 May 2005 that paragraph 3 of Annexure ‘A’ to the section 66A Agreement, signed by the Applicant on 4 April 2005, is to be deleted.”

1. On 10 June 2005, the parties having failed to agree on the costs payable, Mr Levett’s solicitors lodged an ‘Application for Assessment of Costs’ with the Commission. YMC lodged its submissions in reply on 4 July 2005. The Registrar delegated the assessment of costs to an Arbitrator (‘the Delegate’) who made a determination dated 2 March 2006. The Certificate of Determination stated:

“5. Pursuant to an Agreement and Order dated 3 May 2005 the Respondent employer is liable to pay the Applicant’s costs of the Application as agreed or assessed.
6. The Applicant’s costs of the proceedings assessed in the sum of $7,906.00 (inclusive of GST) are determined as fair and reasonable.
7. The Applicant’s costs of the assessment (inclusive of GST) are allowed in the amount of $500.00.
8. The Respondent is to pay the amount of $8,406.00 to the Applicant if those costs have not already been paid.”

It is not clear why these clauses are numbered 5 to 8 rather than 1 to 4.

1. The relevant parts of the Delegate’s Statement of Reasons for his decision are referred to below.

ISSUES IN DISPUTE

1. Mr Levett’s solicitors complain that the Delegate’s calculations are difficult to follow. They submit the Delegate erred in his determination of their claims in respect of Items 2.05 and 4.04, and in disallowing their claim for disbursements in respect of clinical notes, agency fees and the fee for the private investigator’s report. They also submit he erred by failing to allow recovery of an additional amount in respect of GST payable on their professional costs. YMC rejects these submissions and responds that that the Delegate erred in his determination of Mr Levett’s solicitors’ claim under Items 9.01 and 10.01, and in allowing a disbursement in respect of the applicant’s travelling expenses in the amount of $740. YMC also notes the Delegate failed to make any assessment of a disbursement in respect of a consultation fee for Dr Brook which YMC says should be disallowed. 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 submission by YMC that the matter can be dealt with ‘on the papers’, Mr Levett’s solicitors not 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. 

1. No application to adduce fresh evidence was made, and although YMC indicated in its ‘Notice of Opposition’ that it sought to do so’, I assume this was in error since no fresh evidence was identified.

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. Where the exercise of the Registrar’s or her delegate’s discretion in determining what is fair and reasonable is challenged, only where that discretion has miscarried because it has been exercised unfairly or unlawfully would this constitute an error of law: Nebauer v Hunter Area Health Service [2004] NSWWCCPD 60 (‘Nebauer’), at paragraph 19; Berger, at paragraph 136.

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.

1. The parties identify a number of professional costs and disbursements as being in dispute, together with the issue of whether an additional amount in respect of GST payable on the professional costs should be allowed. These costs Items and disbursements are considered below.

Professional Costs

Item 2.05

1. Item 2.05 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)”. Mr Levett’s solicitors’ claimed for the maximum of $100 permitted under this Item in respect of briefing St George Registration and Investigation Services Pty Ltd (‘St George’) to prepare a factual and liability summary report. YMC submitted that the claim should be disallowed on the basis of the affiliation of St George with Mr Levett’s solicitors, and the fact that there had been no factual investigation, the apparent purpose of St George’s involvement being to obtain a statement from the Applicant which is encapsulated and absorbed by Item 2.01.

1. The Delegate disallowed the claim, relying on the decision in Berger, and found that the work done by St George was to take instructions. He said clause 82 of the 2003 Regulation “allows investigator’s fees for obtaining evidence, not taking instructions”; the Applicant’s statement could have been taken when instructions were obtained by his solicitors.

1. Mr Levett’s solicitors maintain their claim for $100 and submit it was necessary to brief St George to obtain evidence from the worker: a number of issues were in dispute and obtaining instructions from the client takes in excess of two hours. Disallowance of this claim would result in claims not being properly investigated.

1. In its submissions on the appeal, YMC reiterates that no factual investigation was undertaken and the only purpose of briefing St George was to obtain a detailed statement from the Applicant and his wife, which is expressly disallowed by the description of the activity/event for Item 2.05. Gathering information for the purpose of drawing a statement falls under either Items 2.01 or 4.05 and it is not reasonably necessary to brief an investigator for this purpose.

1. I have examined the Factual Investigation Report prepared by St George and attached to the ‘Application to Resolve a Dispute’. This comprises a six page summary in the form of a letter dated 18 August 2003, together with a statement from Mr Levett. The summary comprises information of a kind one would expect to be gathered on the occasion of taking instructions from a client, much of which appears to be set out in a different form in Mr Levett’s statement.

1. I note what Deputy President Fleming said in McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’), at paragraph 21:

“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, “Obtaining instructions from client ...”

She confirmed this in Berger at paragraph 141, where she said:

“Item 2.05 does not permit a claim for briefing a factual investigator to obtain witness statements, which includes a statement from the worker.”

1. I am not, therefore, satisfied that the briefing of a factual investigator was reasonably necessary for the obtaining of evidence of a kind which could not ordinarily have been obtained on the occasion of taking instructions. I agree with YMC that the principal focus of briefing St George appears to have been the taking of a detailed statement from Mr Levett and the drawing of his statement. Item 2.05 specifically excludes this. Thus, I reject this ground of appeal.

Item 4.04

1. Item 4.04 is described in column 2 of the Table as “Lodging an objection to a request for a direction for the production of documents”. Mr Levett’s solicitors claimed $60 under this Item for St George claiming legal professional privilege on their behalf in respect of four letters produced under direction by Dr Sevier. The Delegate disallowed this claim, stating “[c]laiming privilege is not lodging an objection”.

1. In its submissions on the appeal, Mr Levett’s solicitors submit the Delegate has failed to provide adequate reasons for his determination on this claim. They maintain their claim and refer to the decision of the Registrar in Douglas v In-Store Merchandising Services Ltd [2005] NSWWCC C82, where at paragraph 16 of his Statement of Reasons, the Arbitrator said:

“The Applicant claimed $60.00 under this item. The Respondent objected on the basis that no objection was received to any Direction for Production. The Applicant says that privilege was claimed over letters from Dr Meagher. I am satisfied that such activity falls within the item.”

1. YMC submits:

“It is clear that claiming privilege over a document that has been produced is not an ‘objection to a request for a direction for production of documents’ as required by the Regulations. It is also clear from the Regulations that any such objection for a direction for production of documents is made upon receipt of such a direction, or at least prior to any documents being produced to the Commission.”

1. I have reviewed the 2003 Rules in effect at the time of the Delegate’s decision. A party to proceedings before the Commission could object to a direction to production prior to production (Rule 55) or after production (Rule 56). In the case of the latter, Rule 56(1) stated:

“(1) A party to proceedings who is entitled to first access to documents produced to the Commission in accordance with a direction for production may object to another party accessing those documents.”

1. The Rule then set out the procedure to be followed. In my view, an objection under Rule 56 could be made on the ground of legal professional privilege. Thus, I am satisfied that Mr Levett’s solicitors’ claim under Item 4.04 is within the description of the activity/event for that Item and the Delegate made an error of law by disallowing that claim. I therefore allow a claim for $60 under Item 4.04.

Item 9.01

1. The activity/event for which a claim may be made under Item 9.01 is described in column 2 of the Table as “Conduct of any other proceedings before the Commission involving the determination of substantive legal issues, including preparatory work”. This includes a claim for the cost of a costs assessment. The Delegate allowed Mr Levett’s solicitors $500 (inclusive of GST) for their costs of the assessment on the ground that Mr Levett’s solicitors “recovered more than the Respondent’s best offer” but “made the process much more complex than was necessary”.

1. YMC submits the Delegate “was incorrect in allowing the costs of the initial assessment given that it was considered that the Appellant was not successful in the initial costs application, which was filed by the Respondent”. It is not clear to what YMC are referring in this submission. I note there was a dispute between the parties concerning the payment of interest on costs following what appears to have been thought to be a settlement arrived at following the first teleconference on 8 December 2005. There is a reference in the Arbitrator’s notes to files having gone missing.

1. Having reviewed the Delegate’s decision and the extent to which Mr Levett’s solicitors were successful in the assessment of disputed Items and disbursements, in my view Mr Levett’s solicitors were partially successful and I am not satisfied that I should interfere with the exercise of the Delegate’s discretion. I therefore reject this ground of appeal.

Item 10.01

1. Item 10.01 is described in column 2 of the Table as “All work associated with instructing an agent to act on the claim or a matter relating to the claim”. The Delegate allowed Mr Levett’s solicitors’ claim for $187.50 under this Item for “All work associated with instructing an agent to act on re: claim”:

“I allow this fee for briefing the agent to inspect the documents. As the maximum has been claimed for the activity of inspecting the documents I do not allow the agent’s fees.”

This appears to be a reference to Mr Levett’s solicitors’ claim for $250 under Item 4.05 for “Reviewing documentation produced under direction ...”.

1. YMC submits the Delegate erred in allowing costs under Item 10.01 for instructing an agent to file documents in the Commission: it is not reasonably necessary to instruct an agent to file documents in the Commission when they can be filed via mail or by document exchange (DX).

1. I note the disbursement of $121 claimed in respect of agency fees for St George comprises $22 for filing on 11 November 2004 (including GST) and $99 (including GST) for inspection and photocopying of documents on 24 November 2004 and 1 December 2004. With regard to the latter activity, Mr Levett’s solicitors state St George investigates the documents produced by inspecting them, claims privilege [where appropriate] and then obtains copies of the material produced.

1. The inspection and photocopying of documents is covered under Item 4.05 (“Reviewing documentation produced under a direction of the Commission...”). I note that Mr Levett’s solicitors have claimed and been allowed $250 under Item 4.05. In Dunn, at paragraph 41, Deputy President Fleming held that to allow the recovery of fees paid to an agent for inspection and photocopying of documents produced under a direction would be to allow recovery of an amount exceeding the maximum allowable under Schedule 6 and would be an error. She confirmed this in McManus at paragraph 30, where for similar reasons, she disallowed a claim for instructing an agent under Item 10.01. See also Flegerbein, a matter involving agency fees claimed for filing and inspection and photocopying of documents.

1. I have already allowed Mr Levett’s solicitors’ claim for claiming privilege in respect of lodging an objection to production under Item 4.04. In my view, they cannot also claim for instructing an agent to undertake this activity when it is already encompassed under Items 4.04 and 4.05.

1. With respect to the instructions on filing, in my view, there is no reason why the documents could not have been filed through the post or via DX, and I do not therefore consider the instructions in respect of filing to be reasonably necessary.

1. Thus, in my view, the Delegate made an error of law in not disallowing the claim for $187.50 under Item 10.01.

Disbursements

Agency Fees

1. As stated above, Mr Levett’s solicitors claimed agency fees of $121 for work undertaken by St George, comprising filing fees of $22 and fees of $99 for inspection and photocopying of documents. The Delegate disallowed these fees on the ground that “[t]hese are not costs that are allowed under the Schedule”. In relation to Item 10.01, he stated “[a]s the maximum has been claimed for the activity of inspecting the documents I do not allow the agent’s fees”.

1. In their submissions on the appeal, Mr Levett’s solicitors submit the Delegate failed to give adequate reasons for his decision, and contend that permitting agents to perform such work is particularly necessary for country solicitors. YMC submits that such fees are not recoverable and, furthermore, instructing agents to file documents with the Commission is not reasonably necessary.

1. As I stated above in relation to Item 10.01, the inspection and copying of documents is covered under Item 4.05, and I agree with YMC that the filing of documents by agents is not reasonably necessary when this can be done through the post or by DX. With regard to the Delegate’s reasons, in my view, when read in conjunction with his reasons in relation to Item 10.01, they are adequate in terms of the obligation to provide a statement of reasons set out in clause 115 of the 2003 Regulation: lengthy written reasons are not required – Orr v Direct Couriers (Australia) Ltd [2004] NSWWCCPD 28, at paragraph 48.

1. Thus, I reject Mr Levett’s solicitors’ appeal in relation to agency fees.

Clinical Notes

1. Mr Levett’s solicitors claimed a disbursement in respect of a fee of $22 paid for copying and production of the clinical notes of Dr Martin Jude, Neurologist (invoice dated 15 August 2003). YMC submitted that such a disbursement, which was not as a result of a Direction for Production, was not claimable under the 2003 Regulation. The Delegate disallowed this claim on the ground that this was “not for the provision of a report”.

1. In their submissions on the appeal, Mr Levett’s solicitors maintain their claim on the basis that such notes are often an essential element in court proceedings because they comprise a contemporaneous record. YMC reiterates its submission that such fees are not claimable.

1. In my view, YMC is correct. Clause 82 of the 2003 Regulation then in effect allowed for fees from health service providers; it did not allow for fees for the copying and production of clinical notes. I therefore reject this ground of appeal.

Dr Brook’s Consultation Fee

1. YMC states the Delegate failed to make a determination on a disbursement claimed by Mr Levett’s solicitors and disputed by YMC, namely a fee of $210 for an initial consultation by Dr Andrew Brook, Rheumatologist, on 2 March 2004 on a referral from Dr Paul Sevier, Mr Levett’s general practitioner. YMC submits Mr Levett’s solicitors are not entitled to recover the fee for Dr Brook’s consultation on that date. I agree that the consultation on 2 March 2004 appears not to have been for the purpose of Dr Brook preparing his medical report dated 28 June 2004, which followed a second examination on 15 June 2004. I therefore disallow the fee of $210 but confirm a disbursement of $440 in respect of Dr Brook’s fees for the medical report.

Fee for Private Investigator’s Report

1. Ms Levett’s solicitors claimed $2,374.29 in respect of the fee charged by St George for preparing a factual and liability summary report. In its submission on the assessment, YMC submitted that this should be disallowed because “it was not necessary to brief an investigator to obtain a statement from the Applicant, and any such cost ... is to be encapsulated and absorbed by item 2.01”. The Delegate disallowed the claim. He stated:

“I have examined the work done by the investigator. The work was to take instructions. The solicitor has claimed the maximum amount under this item in the Table [Item 2.01]. Regulation 82 allows investigator’s fees for obtaining evidence, not obtaining instructions. The statement of the Applicant that the investigator took is one that could have been taken when instructions were obtained. The matter of Berger above deals with this issue.”

1. In their submissions on the appeal, Mr Levett’s solicitors referred to their earlier comments in relation to Item 2.05. YMC submits the Delegate was correct in stating that no factual investigation took place, and in disallowing the claim for this disbursement.

1. I have reviewed St George’s invoice dated 1 September 2003. The invoice includes fees for a client service agreement ($140), for “Perusal of correspondence from McCabe Partners Lawyers” (a total of $105), for a one and a half hour “Conference with client” ($225), for dictating and typing of a statement ($262.50), for “Perusal of documents from client” ($570), for researching, dictating and typing of the factual and liability summary report (a total of $225), and for a letter to a barrister ($20) and the copying of the report for him ($70).

1. I have already commented on my review of St George’s report in relation to Item 2.05. For the reasons stated there, I am not satisfied that a report from a private investigator was reasonably necessary for obtaining evidence of a kind that would ordinarily have been obtained on the occasion of the solicitor’s taking instructions from the client.

1. In Berger, at paragraph 142, Deputy President Fleming, recognising that the fee for an investigator’s report may be claimed pursuant to clause 82(b) of the 2003 Regulation, noted:

   “The test of whether such a report is claimable will, as discussed above, essentially be one of ‘reasonableness’. In most cases, it will not be reasonable to obtain witness statements by way of an investigator’s report, where the legal practitioner or agent has already obtained such statements, either at the time of taking instructions or at a later time, but before an application to the Commission is filed.”

1. The Deputy President confirmed that where an activity may be claimed as a cost for which provision is made in the Table, a separately claimed disbursement in respect of that activity by a private investigator would not be considered reasonable. In McManus, at paragraph 21, Deputy President Fleming noted that “the costs involved in obtaining a worker’s statement are encapsulated and absorbed by Item 2.01”, where the activity/event is described as “Obtaining instructions from a client”.

1. Thus, no disbursement may be claimed in respect of the statement from Mr Levett, which one would ordinarily have expected to see prepared by his solicitor subsequent to the taking of instructions. I am not satisfied on the basis of the other evidence provided that the report was reasonably necessary. Thus, I am also not satisfied that the Delegate made any error in disallowing the claim and this ground of appeal is, therefore, rejected.

Applicant’s Travelling Expenses

1. Mr Levett’s solicitors claimed a disbursement of $740 in respect of the Applicant’s travelling expenses for attending a medical examination by Dr Endrey-Walder in Sydney on 19 August 2003, comprising $357 for travelling 850 kms (Young to Sydney return) at $0.42 per km, $75 for sustenance and $308 for accommodation. The Delegate allowed this disbursement on the ground that the expenses were “fair and reasonable”.

1. In its submissions on the appeal, YMC reiterates its submission to the Delegate that the amount claimed is excessive, unreasonable and unnecessary. It relies on the determination in the matter of Stephen Harris v Lowtan Engineering Pty Ltd (WCC 12170-03, 26 August 2004), where the Delegate of the Registrar held, having reviewed the relevant law, that in accordance with section 341 of the 1998 Act, the applicant’s travelling expenses are reviewable by the Registrar, who may determine whether the expenses claimed are fair and reasonable. The Delegate took into account that the applicant could have attended a specialist in Newcastle rather than Sydney, and reduced the travelling expenses allowed accordingly.

1. In the case of Mr Levett, YMC submits he could have attended for medical examination by a specialist in Orange, and that only the Applicant’s expenses of travelling from his residence to Orange return should be allowed (336 kms), together with a meal allowance of $10, a total of $141.20. In the alternative, if accommodation and meal expenses are found to be necessary, no more than one night’s accommodation at $120 should be allowed.

1. I note reports dated 19 August 2003 (based on an examination on that day, including assessment of permanent impairment) and 22 June 2004 (commenting on other medical reports) from Dr P Endrey-Walder, Surgeon and Commission Approved Medical Specialist, are included with Mr Levett’s ‘Application to Resolve a Dispute’ registered on 22 September 2004. In my view, it was not unreasonable for Mr Levett’s solicitors to arrange a medico-legal appointment for him in Sydney rather than Orange. Newcastle is the second largest city in NSW and much larger and with many more medical specialists than Orange. Subject to the overriding qualification of reasonableness, his solicitors are entitled to prepare his case as they see fit and it is not the role of the Commission to dictate how they should do this. Thus, Mr Levett’s travelling expenses from Young to Sydney return should be allowed and an allowance of $60 for sustenance is reasonable. However, in my view, only one night’s accommodation at $120 should be permitted, comparable to the maximum permitted under Item 10.03 at the time. I therefore reduce the disbursement allowed in respect of the Applicant’s travelling expenses from $740 to $537 (comprising $357 + $60 + $120).

GST

1. Mr Levett’s solicitors also claimed GST in respect of their professional costs claimed under Items in the Table. The Delegate disallowed any additional amount in respect of GST, relying on the decision in Berger.

1. Deputy President Fleming stated in Berger, at paragraph 156:

“The 1998 Act and the WC Regulation are silent in relation to the power of an Assessor to increase the award of costs pursuant to the Compensation Costs Table by the amount of any GST payable. Costs regulated by Schedule 6 are expressed to be the ‘maximum costs that are recoverable’ (clause 84 of the WC Regulation). There is no provision that expressly allows GST to be awarded in addition to the ‘maximum costs’ allowed in the Table.”

1. However, I note that since this decision, with effect from 17 March 2006, clause 123(1) of the 2003 Regulation has been specifically amended to permit costs recoverable in compensation matters to be increased “by the amount of any GST payable in respect of the service to which the cost relates, and the cost as so increased is taken to be the cost fixed by this part”.

1. In the current matter, the services were performed and the Delegate’s assessment was made before the above amendment took effect, and the Delegate was therefore correct in disallowing a claim for GST to be added to the costs claimed in respect of Items in the Table.

The Delegate’s Calculations

1. As noted above, Mr Levett’s solicitors complain that the Delegate’s calculations are difficult to follow. I agree that it is difficult to understand how the Delegate calculated the total amount of costs payable. For the purpose of clarifying the costs allowed, these are set out below, including the determinations made by me in this review:

Professional Costs

Item 1.01: $600 not disputed

Item 1.02: $100 disallowed
Item 2.01: $500 not disputed
Item 2.02: $40 not disputed
Item 2.03: $40 allowed
Item 2.04: $600 not disputed
Item 2.05: disallowed, confirmed on appeal
Item 2.06: $500 allowed
Item 4.01: $300 not disputed
Item 4.02: $60 allowed
Item 4.03: $80 not disputed
Item 4.03A: $80 not disputed
Item 4.03B: $56 not disputed
Item 4.04: $60 allowed on appeal
Item 4.05: $250 not disputed
Item 4.08: $250 not disputed
Item 4.09: $250 allowed
Item 4.12: $190 not disputed
Item 7.01: $120 not disputed
[Item 9.01: $500 allowed by Delegate for costs of the assessment, confirmed on appeal]
Item 10.01: $187.50 allowed by the Delegate, but disallowed on appeal

Total professional costs: $4,476

Disbursements

Medical reports not disputed: $2,024 (according to appeal submission by YMC – Mr Levett’s solicitors nominate $2,234 but this includes Dr Brook’s consultation fee, as to which see below)

Dr Brook’s fee of $210 for 2 March 2004: disallowed on appeal

Dr Jude’s fee of $22: disallowed, confirmed on appeal

Agency fees: disallowed, confirmed on appeal

Private investigator’s report fee: disallowed, confirmed on appeal

Applicant’s travel expenses: $537 allowed (reduced from $740) on appeal

Total disbursements allowed: $2,561.00

Total professional costs and disbursements: $7,037.00

DECISION

1. Clause 8 of the Registrar’s decision dated 2 March 2006 is revoked and the following clause is substituted:

“The Respondent is to pay the amount of $7,037.00 to the Applicant if those costs have not already been paid.”

The Registrar’s decision dated 2 March 2006 is otherwise confirmed.

COSTS

1. Mr Levett’s solicitors have been largely unsuccessful in this appeal and, therefore, it is not appropriate for me to order costs in favour of the Appellant.

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

Robin Handley

Acting Deputy President

30 January 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