| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MASCARENHAS -v- WESTERN MINING CORPORATION - NICKEL DIVISION [2002] WADC 250 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 21 NOVEMBER 2002 DELIVERED : 3 DECEMBER 2002 FILE NO/S : CIV 2756 of 2000 BETWEEN : JOSE SOCORRO MASCARENHAS Plaintiff
AND
WESTERN MINING CORPORATION - NICKEL DIVISION
Defendant
Catchwords: Practice and procedure - Western Australia - Taxation objections - Cost of reports used in proceedings in the Conciliation and Review Directorate
Legislation: Workers' Compensation and Rehabilitation Act 1981
Result: Objection disallowed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr S V Forbes
Defendant : Mr H Hastwell
Solicitors:
Plaintiff : S C Nigam & Co
Defendant : McAuliffe Williams & Partners
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 DEPUTY REGISTRAR HEWITT: On 26 September 2002 I taxed the plaintiff's bill of costs for taxation filed pursuant to consent orders dated 31 July 2002.
2 Within the bill was a claim for the reports of Dr J Bell, Dr R Goodheart and Dr A Harper, all of which I disallowed, and a further report of Dr F Ng in respect of which I deferred consideration until being informed whether that report had been presented to the review officer at the Directorate of Conciliation and Review in support of an application for a determination of percentage of disability. 3 I am now informed that the report was in fact presented and that the objecting plaintiff wishes me to deal with that item on the basis that it was disallowed on the original taxation and forms part of the review process today. 4 The defendant agrees with that process which I adopt. 5 The plaintiff in these proceedings was an employee of the defendant and he alleged that he was injured on 2 November 1994 in the course of his employment with the defendant. 6 As the Workers' Compensation legislation stood at the relevant time, it was necessary for this plaintiff to obtain a determination of a degree of disability from the Conciliation and Review Directorate that his degree of disability equalled or exceeded certain nominated percentages as a precondition of his right to receive damages at Common Law. 7 This plaintiff commenced that proceeding by application to the Department and in the course of that application he presented the four reports, the costs of which were claimed as a disbursement in the present proceeding and which I have disallowed. 8 In order to obtain a determination certain criteria must be met, but in effect what is required is a diagnosis, a prognosis (in order to identify the disability as permanent) and a calculation of a degree of disability. In order to achieve that process each of the doctors in question obtained relevant documentation from the plaintiff's solicitors together with a request for an assessment. Although there was some variations between letters of request of the individual doctors, in general they followed the following formula: "We would be pleased if you would forward to this office your medical report on our client pertaining to the following:-
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1. the nature of injuries sustained by our client in the said accidents; 2. whether our client's present functional disability is caused by the injuries sustained by him in the said accidents; 3. whether our client's present medical condition has stabilised to a degree where assessment of his disability can take place and, if so, please indicate your assessment of our client's disability in percentage terms in relation to the right shoulder and left shoulder injuries; 4. whether our client will require medication, medical treatment, hospitalisation and medical reviews in the future; 5. your prognosis." 9 Although not mirroring the requirements of the Workers' Compensation legislation, the tasks which were required of each medical practitioner were broadly the tasks which were necessarily to undertake in order for each medical practitioner to produce a useful report for submission to the Directorate. 10 I now turn to the grounds of objections. The first objection is: "The Taxing Officer erred in principle in finding that no allowance at all should be made in respect of these disbursements on the basis that the reports were obtained by the plaintiff for the purpose of the preliminary Workcover proceedings, in respect of which the plaintiff was not entitled to recover costs, even though the reports were discovered in the District Court proceedings and the reports were relied upon by the plaintiff in those proceedings." 11 I first note that it was in fact my finding that the reports were obtained for the purposes of the preliminary proceedings, additionally I did find that the plaintiff was not entitled to recover costs in the Directorate. In that regard I relied on s 87ZL of the Workers' Compensation and Rehabilitation Act 1981 which provides that unless a review officer orders otherwise, each party to a proceeding bears its own costs.
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12 As to the discovery point the documents were relevant, they had been provided in the Workers' Compensation forum and a claim of privilege would have been pointless and therefore discovery of those documents was no more than a recognition of the plaintiff's obligations under the rules for discovery in the District Court.
13 It is common ground that the reports were relied upon by the plaintiff in the Workers' Compensation jurisdiction and having reviewed the reports and the letters requisitioning them, I am of the view that those reports should be properly characterised as costs incurred in the process of applying to obtain a determination in Workcover. 14 Since there are specific provision concerning the costs of proceeding in that jurisdiction, I think it would be an error in principle to, in effect, overrule that that legislative provision and allow a plaintiff to recover costs which might have been, but were not, ordered to be paid in the Workers' Compensation forum in the District Court. 15 For those reasons I am of the view that my disallowance of the relevant reports was appropriate and I am not persuaded on review to change my decision in that respect. I fix the costs of the objections at $150 to be deducted from the taxed sum and I shall therefore sign my certificate in the sum of $25,643.50 on the issue of these reasons. The time for appeal shall be 14 days from the date of delivery of the reasons.
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