McCaffery v JG & DG Harris
[2006] NSWWCCPD 317
•22 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:McCaffery v JG & DG Harris [2006] NSWWCCPD 317
APPELLANT: Barry John McCaffery
RESPONDENT: JG & DG Harris
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC 8411-05
DATE OF REGISTRAR’S DECISION: 2 September 2005
DATE OF APPEAL DECISION: 22 November 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; fees for an investigation report; Items 4.08; 4.09; 4.11 and 4.12 of Schedule 6 of the Workers Compensation Regulation 2003; adequacy of reasons.
PRESIDENTIAL MEMBER: Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners
Respondent: QBE Workers Compensation (NSW) Limited
ORDERS MADE ON APPEAL: 1. Paragraphs two and four of the decision of the delegate dated 2 September 2005 are revoked and the following orders are made in their place:
“(i) The Applicant’s costs of the substantive proceedings are assessed in the sum of $8,082.85.
(ii) The Respondent is to pay to the Applicant a total amount of $8,357.85 if those costs have not already been paid.”
2. Paragraph one of the delegate’s decision referring to the order for costs contained in the ‘Certificate of Determination’ and paragraph three of the delegate’s decision, awarding costs of the assessment in the sum of $275.00 were not raised on appeal and are confirmed.
3. No order as to the costs of the appeal.
BACKGROUND
Prior proceedings
On 31 December 2004, Barry John McCaffery (‘Mr McCaffery’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC 21240-04). Mr McCaffery claimed that he had contracted degeneration and disease of his neck; back; left and right leg, and left and right arm by gradual process to which his employment as a garbage collector was a substantial contributing factor. Mr McCaffery also claimed a psychological injury and claimed that all injuries arose as a result of the nature and conditions of his employment with JG & DG Harris, the Respondent employer, from 9 April 2001 to 30 August 2001. Mr McCaffery sought weekly benefits compensation for the period 2 June 2004 to date and continuing; lump sum compensation payments in accordance with section 66 and 67 of the Workers CompensationAct 1987 (‘the 1987 Act’) and medical and related expenses in accordance with section 60 of the 1987 Act.
JG & DG Harris lodged a Reply to the application on 21 January 2005 to which it attached terms of settlement filed by Mr McCaffery and JG & DG Harris in the Compensation Court of New South Wales (‘the Court’) on 27 June 2003. The Terms of Settlement reflected the parties agreement in respect of Mr McCaffery’s claim for lump sum compensation as a result of injuries sustained on 3 August 2001 and the nature and conditions of his employment and awarded costs to Mr McCaffery. JG & DG Harris’ insurer is QBE Workers Compensation (NSW) Limited (‘the Insurer’).
On 22 March 2005, a teleconference was conducted before a Commission Arbitrator (‘the Arbitrator’).At the teleconference the Arbitrator directed that the dispute be set down for a conciliation/arbitration hearing on 12 April 2005.
The dispute proceeded to a conciliation/arbitration hearing and on 13 April 2005 the Arbitrator issued a ‘Certificate of Determination’ and an accompanying ‘Statement of Reasons for Decision’ ordering JG & DG Harris to pay: Mr McCaffery weekly compensation from 2 June 2004 to date and continuing; medical and related expenses and costs as agreed or assessed. The Arbitrator also referred Mr McCaffery to an Approved Medical Specialist (‘the AMS’) for assessment of his claims for permanent impairment and adjourned the remainder of the disputed issues until the issuing of the Medical Assessment Certificate.
On 27 May 2005 Mr McCaffery’s solicitor advised the Commission that Mr McCaffery’s claim against “the Motor Vehicle Accident insurer” had been settled. Therefore he requested that the referral to the AMS not proceed. Mr McCaffery’s solicitor also sought “a costs order in relation to the initial determination.” On 10 June 2005 the Arbitrator issued a ‘Certificate of Determination’ and an accompanying ‘Statement of Reasons for Decision’ which noted that there had been no objection lodged by JG & DG Harris to the request and ordered: that the “balance of these proceedings be discontinued”. The Arbitrator dispensed with the requirement to file a notice of discontinuance and ordered JG & DG Harris to pay Mr McCaffery’s costs as agreed or assessed.
On 1 June 2005, Mr McCaffery’s solicitor lodged an ‘Application for Assessment of Costs’ (‘the Application’). Mr McCaffery’s solicitor provided a copy of the bill of costs he forwarded to the Insurer on 15 April 2005 with the Application. The Insurer did not lodge a Reply to the Application.
The Registrar’s decision in relation to the Application, by her delegate, a Commission Arbitrator, (‘the delegate’) was made on 2 September 2005. The decision is set out as follows:
“1.Pursuant to a Certificate of Determination dated 10 June 2005, the Respondent is liable to pay the Applicant’s costs as agreed or assessed.
2.The Applicant’s costs of the substantive proceedings are assessed in the sum of $9,299.60.
3.The Respondent is to pay the Applicant’s costs of the assessment, assessed at $275.00
4.The Respondent is, therefore, to pay the Applicant a total amount of $9,574.60 if those costs have not already been paid.”
A ‘Statement of Reasons’ accompanied the delegate’s decision.
Lodgement of the appeal
On 28 September 2005 Mr McCaffery’s solicitor lodged an ‘Appeal from the Registrar’s Determination on Costs’ (‘the Appeal’). The Appeal was served on the Insurer on 4 October 2005 as confirmed by a Certificate of Service filed by Mr Mc McCaffery’s solicitor, dated 5 October 2005.
The Insurer has not lodged submissions in reply to the Appeal.
ON THE PAPERS
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.”
Following my review of the files I am satisfied that the Insurer has been provided with an opportunity to lodge submissions in reply and has failed to do so. Mr McCaffery’s solicitor has not made submissions in respect of the requirement for a formal hearing and has not sought to adduce fresh evidence. Having regard to the submissions, Practice Directions Numbers 1 and 6 and the documents that are before me 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
Mr McCaffery’s solicitor’s submissions
Mr McCaffery’s solicitor submits that the delegate erred in his assessment of the costs claimed pursuant to Items 4.08- 4.11 and 4.12 of the Compensation Costs Table (‘the Table’) contained in Schedule 6 of the Workers Compensation Regulation 2003 (‘the WC Regulation’) and further submits that the delegate erred in not allowing the full costs of a Factual and Liability Summary Report (‘the Report’) provided by St George Registration & Investigation Service Pty Limited (‘SGRIS’). The submissions may be summarised as including reference to authorities regarding the approach to be adopted in interpreting legislation; the requirement for the decision maker to take into account all relevant material (Minister for Aboriginal Affairs v Peko Wallsend Limited (1996) 162 CLR 24). Further, it is submitted that in circumstances where the respondent fails to file submissions in reply the delegate is required to make an order for all costs claimed (Denis Lewis v New England Health Service [2004] NSWWCCC 25).
The submissions in relation to the items claimed pursuant to the Table can be summarised as follows:
·Items 4.09 – 4.11 of the Table should be construed to allow the payment of travel time for a solicitor in addition to the travelling expenses under Items 10.2 and 10.3. A failure to allow the travel time for country solicitors would be in “breach of the Anti-Discrimination Act NSW 1977”and “the Applicant is more or less precluded from legal representation if the Applicant is from a country area and the matter is listed for determination in Sydney.”;
·the delegate’s finding that the maximum amount allowable under item 4.08 is $500.00 demonstrates a misunderstanding of the decision of Orellana Fuentes v Standard Knitting Mills Pty Ltd & Anor [2003] NSWCA146 (‘Fuentes’) as in applying the authority provided in that decision Schedule 6 of the WC Regulation should be constructed by reference to its own terms and the item claimed. Item 4.08 of the Table refers to “a” conference “a” client and “that type of activity” and therefore a solicitor is entitled to claim for preparation for a teleconference “he can charge out at $250.00 per hour or $500.00 maximum” for each of those activities;
·the matter was complex as it proceeded to arbitration and therefore the claim pursuant to Item 4.10 of the Table should be allowed, and
·the delegate’s finding that the decision in Fuentes restricts Item 4.12 of the Table to an allowance for two reports only is incorrect as Mr McCaffery’s solicitor provided reports to his client on three occasions as to the outcome of “two Conciliation’s and one Arbitration”. Further the delegate failed to provide any reasons for his finding that the claim should be allowed for only two reports.
Mr McCaffery’s solicitor submits that fees for investigators’ reports are not regulated by Part 19 of the WC Regulation (Nebauer v Hunter Area Health Service [2004] NSWWCCPD 60 (‘Nebauer’)) and ultimately it is for the Registrar to determine if the costs incurred are fair and reasonable in accordance with clauses 105 and 106 of the WC Regulation. Once the Registrar has determined that it was fair and reasonable to obtain a report then the Registrar must allow the fees charged. Mr McCaffery’s solicitor submits that the Report was required as the Table envisages the costs of briefing a factual investigator in between the legal activities under Items 2.01 and 2.06 of the Table to obtain the extensive information required in workers compensation proceedings. In support of the requirement to obtain the Report Mr McCaffery’s solicitor submits that Item 2.06 requires the “Applicant legal practitioner” to provide information in accordance with “Part 1 Rule 5.1 of the WorkCover NSW Guidelines, effective from 1 January 2002”. The extract provided under the heading “Criteria 1 – Minimum identifying information:” then sets out the information to be gathered by the insurer.
Mr McCaffery’s solicitor also submits that the delegate erred in disallowing the claim as it related to the costs of the investigator preparing a wages schedule and concluding that “…the preparation of an Applicant’s Schedule of Earnings is legal work, encapsulated and absorbed by items in the table.” As there is no item in the Table which allows for the preparation of an applicant’s schedule of earnings and it is reasonable to gather wage records and prepare a wages schedule. Therefore the costs should be allowed. Additionally the applicant is a witness and the costs of an investigator obtaining a statement from the applicant should be allowed (Caress Annasson v Interaction - The Hills Association for the Intellectually Disabled Limited [2004] NSWWCCC 23 and Rose v Bilo Pty Limited [2005] NSWWCCC 32). In the alternative the costs of the Report should be allowed in full as the matter was complex, novel and “extremely difficult”, the “quality of the work was extremely high and that the incident occurred in country NSW and therefore the costs are fair and reasonable.”
Issues in dispute
The issues raised on appeal are as follows:
·did the delegate err in not allowing the full costs claimed?
·did the delegate err in determining the costs of disbursements relating to the Report?
·did the delegate err in determining Items 4.08, 4.09 and 4.11 of the Table?
·did the delegate err in determining Item 4.12 of the Table and fail to provide adequate reasons for his decision?
DISCUSSION
The relevant legislation concerning appeals to the Commission against an assessment of costs contained in the 1998 Act and the WC Regulation has been considered in a number of recent decisions (Berger v Moree Plains Shire Council[2005] NSWWCCPD 152 (‘Berger’); McManus v Gosford City Council [2004] NSWCCPD 61 (‘McManus’); Asimus v J.J. Walker, A.D. Walker & Temple Pty Ltd t/as Templemore Partners [2006] NSWWCCPD 113 (‘Asimus’); Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWCCPD 30 (‘Flegerbein’); Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCCPD 28 (‘Orr’); Canham v Kenna Investments Pty Limited[2006] NSWWCCPD 202 (‘Canham’) and Green v Chris Mc Leod Cotton Picking Pty Ltd [2006] NSWWCCPD 51 and need not be canvassed again in this decision. In Woodbury v Miles [2006] NSWCCPD 5 (‘Woodbury’) the Commission considered the date at which the law is to be applied in determining an appeal against the Registrar’s assessment of costs and held that “the applicable law is that in effect at the time the Commission issued the Certificate of Determination, including the costs order [14]”. I adopt the reasoning applied in Woodbury.
The matters raised on appeal require reference to clauses 82, 84, 99, 110, 119(1) of the WC Regulation and as the cost of an investigator’s report are not regulated by Part 19 of the WC Regulations it is necessary to consider clause 46 of the Legal Profession Regulation2002 (‘LP Regulation’) which was in force at the time of the issue of the ‘Certificate of Determination’, being 10 June 2005 (see Berger and Woodbury).
Clause 84 of the WC Regulation fixes the maximum costs recoverable by legal practitioners and agents to those set out in the Table contained at Schedule 6 except where otherwise provided in Part 19.
Clause 99 of the WC Regulation establishes the entitlement of a person to apply for an assessment of party/party costs and clauses 102, 103, 105 and 106 provide guidance as to how those applications are to be dealt with by the Registrar. Pursuant to clause 110 of the WC Regulation the Registrar has discretion to determine whether or not it was reasonable to carry out the work to which the costs relate, and what is a fair and reasonable amount of costs for the work concerned.
Clause 119(1) of the WC Regulation is of particular relevance to this matter as it specifically 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.
Clause 82(b) of the WC Regulation specifically excludes from the costs regulated by Part 19 “fees for investigators’ reports or for other material produced or obtained by investigators (such as witness statements or other evidence)”. Accordingly, when claimed as a disbursement as in the present case the investigators’ fee must be assessed pursuant to Schedule 2, Pt 1, Item 10 of the LP Regulation which provides:
“SCHEDULE 2 – Costs for legal services in workers compensation matters
(Clause 46)
Part 1 - Schedule of practitioners’ costs
10 Disbursements
Any disbursement necessarily incurred is to be allowed except in so far as any such disbursement is of an unreasonable amount or has been unreasonably incurred and any doubts which the taxing officer/costs assessor may have as to whether any disbursement was reasonably incurred or was reasonable in amount are to be resolved in favour of the receiving party.” (Emphasis added).
It is not reasonable to claim a cost as a disbursement that has already been the subject of a claim under Schedule 6 of the WC Regulation (Berger).
Did the delegate err in not allowing the full costs claimed?
I have considered Mr McCaffery’s solicitor’s submissions that, in the absence of submissions opposing the claim the delegate should allow the full costs claimed. The authorities relied upon by Mr McCaffery’s solicitor do not, in my view provide any statement of authority or principle establishing that the absence of submissions in reply must result in a default award for the applicant. In my view, the WC Regulation requires the Registrar to conduct proceedings with regard to procedural fairness and clause 110 sets out mandatory considerations to be applied by the Registrar when dealing with an application relating to the costs payable as a result of an order by a Court or the Commission. The Registrar is required to consider “whether or not it was reasonable to carry out the work” and “what is a fair and reasonable amount of costs for the work concerned”. Mr McCaffery’s submissions are not sustainable in the presence of a clear legislative regime which places an obligation on the Registrar to assess the costs claimed in accordance with mandatory considerations and also outlines additional factors to be taken into account by the Registrar pursuant to clause 111. Further I note that the WC Regulation does not contain a default provision allowing an applicant to be entitled to all amounts claimed because of the absence of submissions in reply. Therefore I reject this ground of appeal.
Did the delegate err in determining the costs of disbursements relating to the Report?
Mr McCaffery’s solicitor claimed $2,108.15 for the Report provided by SGRIS.
The delegate’s reasons demonstrate that he determined it necessary to examine the work performed by SGRIS to ascertain if that work fell outside Clause 82(b) of the WC Regulations. The delegate then considered if it was fair and reasonable to undertake the work which fell within Clause 82(b) before considering whether the time taken and the amount charged for that work was fair and reasonable.
In determining the costs of the Report the delegate referred to a “Supplementary Memorandum of Costs and Disbursements Re:Barry John McCaffery” dated 13 September 2004 which itemised the costs of each separate activity undertaken in preparing the Report and two invoices from SGRIS, one dated 9 February 2005 for $22.00 and another dated 17 December 2004 again for $22.00. Both invoices were for filing in the Commission. The delegate allowed the claim for the costs of the Report in the reduced amount of $1,009.25 (including GST) for the activities he considered fell within clause 82(b) of the WC Regulation. These activities were:
·perusal of correspondence;
·letter to client;
·conference with client;
·factual and liability summary;
·vocational assessment, and
·letter.
As set out clause 46 of the LP Regulations requires consideration of the cost of any disbursement as ‘necessarily incurred’. The application of a test of ‘fair and reasonable’ by the Registrar’s delegate in determining the claim for the costs of the Report was more consistent with the terms of clause 110 of the WC Regulation than with an application of Schedule 2 of the LP Regulation (see discussion in Asimus). In applying clause 110 of the WC Regulation to the claim for the cost of the Report, the delegate, in my view committed an error of law.
Having found that the decision was infected by an error of law I am entitled to determine the application as, in my opinion, it should have been determined by the delegate (clause 119 (3)(a) of the WC Regulation).
It is necessary to consider the contents of the Report, the nature of the claim and the issues in dispute in determining whether the cost of the Report was ‘necessarily incurred’ (Asimus and Canham). The Report under cover of an SGRIS title page is dated 9 September 2004. The index refers to: a factual and liability summary; statements from Mr McCaffery; copies of medical reports from Dr Hamilton-Gibbs dated 12 August 2002; Dr P Minter dated 18 December 2001 and 23 May 2002; Dr WGD Patrick dated 24 September 2001, 8 January 2002 and 7 May 2003 (x2); Dr P Klug dated 13 November 2001; a vocational assessment report dated 6 September 2004; Mr McCaffery’s schedule of earnings “including tax 1999 to 2004”; original signed statements from Barry John McCaffery, and original signed authorities. The Report sets out the following information:
·names, addresses and contact details for Mr McCaffery, JG & DG Harris, the Insurer, Mr McCaffery’s medical practitioners and those used for medico-legal purposes, and
·details of Mr McCaffery’s age; prior workers compensation claim determined by the Court and a summary of the award of the Court; employment history and duties; educational history; medical history; condition; treatment; current symptoms, prior personal hobbies/activities, and the investigator’s observations of Mr McCaffery.
Notwithstanding the documents described in the index only one statement, dated 30 August 2004 was attached to the Report. Likewise the Report did not attach the original signed statement or the original signed authorities.
Mr McCaffery’s claim was for weekly compensation, lump sum compensation and medical and related expenses. The application contained a number of attachments including correspondence to the Insurer, all of the medical reports set out above and an additional report of Dr WGD Patrick dated 15 November 2004; an undated work history and two statements provided by Mr McCaffery dated 6 September 2001 and 22 July 2002; an undated statement from Mr Paul Rickets, witness; a copy of the Report; Mr McCaffery’s wages schedule; transport industry and waste collection recycling state award and correspondence to JG & DG Harris.
In my view the provision of further copies of medical reports already filed in proceedings and commentary regarding Mr McCaffery’s medical history, treatment and symptoms duplicates the material filed in proceedings and accordingly the costs associated with the preparation of this material was not ‘necessarily incurred’ (see discussion in Berger; Asmimus and Flegerbein). Additionally information relating to the contact details of Mr McCaffery, JG & DG Harris, the Insurer; Mr McCaffery’s medical practitioners, medico legal consultants and prior award of the Court cannot be considered to be ‘necessarily incurred’ when this material should be in the possession of Mr McCaffery’s solicitor. Further information relating to Mr McCaffery’s age, educational history, personal interests/hobbies, employment history and duties is contained in his statements and work history. Therefore I find that the Report duplicates material filed in the proceedings and was not necessary to the claim. Therefore the cost of the Report in this respect is not allowed.
Mr McCaffery’s solicitor claimed the taking of two statements from Mr McCaffery under Item 2.04A of the Table. The claim was allowed by the delegate at the maximum permissible under the Table.
I have considered the updated statement of Mr McCaffery dated 30 August 2004 contained in the Report and I note that it does contain additional information not contained in the prior statements filed by Mr McCaffery’s solicitor. However this is primarily because the most recent statement claimed by Mr McCaffery’s solicitor (other than that taken by the investigator) is dated 22 July 2002, that is nearly two and a half years prior to the lodgment of the application. Additionally the additional material contained in the statement obtained by the investigator is largely a duplication of the material contained in other documents such as the award of the Court and matters set out in the medical evidence and the remaining information is, in my view irrelevant to the claim. In these circumstances incurring costs associated with briefing a factual investigator to obtain an updated statement was a cost ‘unreasonably incurred’ and I disallow the claim for the Report as it relates to the cost of preparing Mr McCaffery’s statement (Berger; Flegerbein and McManus).
In relation to the costs of the vocational report provided by SGRIS and prepared by Janelle Brown, licensed investigator, I do not consider that the cost of such a report was necessarily incurred in pursuit of the claim. Section 40A of the 1987 Act clearly envisages the Insurer conducting an assessment of the worker’s ability to earn and in the present case Mr McCaffery had provided a statement addressing his work history together with statements describing his current symptoms and restrictions. Further I am not persuaded that it is “reasonable” to incur costs in obtaining such a report from a licensed investigator and not a professional with skills, expertise and qualifications in an occupational health related area such as a therapist, psychologist or physician. Accordingly I disallow the claim as it relates to the costs of the vocational report.
The remaining matter for consideration arising from the Report is the schedule of earnings. The claim required consideration of section 40 of the 1987 Act from 2 June 2004 and continuing. The schedule and attached taxation records cover the period 1998 to 2004. I am not satisfied, on balance, that briefing a factual investigator to obtain the information relevant to Mr McCaffery’s earnings during this period was a cost that was ‘reasonably incurred’ particularly in circumstances where weekly compensation payments had been paid by the Insurer up until 1 June 2004 and Mr McCaffery’s statements and the records provided confirm that he was not at the time of the claim engaged in paid employment and had not been since 2002. Accordingly I disallow the claim as it relates to the costs of preparing a wages schedule.
Following my consideration of the Report in totality I disallow the claim as the costs were not, in my view ‘necessarily incurred’.
Did the delegate err in determining Items 4.08, 4.09 and 4.11 of the Table?
Mr McCaffery’s solicitor claimed $500.00 for the costs of preparing for the teleconference conducted on 21 March 2005 and a further $250.00 for the costs of preparing for a conference (being the conciliation/arbitration hearing conducted on 12 April 2005) under Item 4.08 of the Table. The delegate allowed the claim in the reduced amount of $500.00 as the maximum recoverable.
The maximum permissible under the Table has been considered in a number of decisions including Woodbury and Orr. These decisions set out the Commission’s reasoning in respect of the maximum amount permissible under the Table being the amount set out in Column 4. In my view the delegate’s decision demonstrates the proper application of the Table in respect of Item 4.08. Therefore I reject this ground of appeal.
Mr McCaffery’s solicitor claimed $250.00 for the costs of attending and participating in the teleconference conducted on 21 March 2005 and a further $250.00 for attending and participating in the conciliation/arbitration hearing under Item 4.09 of the Table. The delegate allowed the claim in the reduced amount of $250.00 for the duration of the teleconference being one hour and in respect of the claim for the teleconference I find no error in the delegate’s determination.
However in respect of the claim under Item 4.09 for the conciliation/arbitration hearing the delegate determined “Items 4.08-4.11 Con/Arb” of the Table and made a total allowance with reference to the time (two and a half hours) involved in attending and participating in the conciliation/arbitration hearing being the amount of $625.00. Item 4.11 of the Table does not require this activity to be calculated with reference to an hourly rate. It provides a single maximum allowance. The dispute was not resolved at the conciliation/arbitration hearing by consent and it proceeded to arbitration. Therefore Item 4.11 must be considered and in my view the delegate erred in calculating the allowance for Item 4.11 with reference to an hourly rate. The delegate’s error in this regard may, in part be founded on Mr McCaffery’s solicitor’s erroneous claim pursuant to Item 4.10 of the Table which, as found by the delegate has no application.
Having found error I will now proceed to determine the allowance for Items 4.09 and 4.11of the Table with reference to the conciliation/arbitration hearing.
In circumstances where an arbitral hearing occurs a charge can be made for the costs recoverable for the activities under Item 4.11 as well as under Item 4.09 of the Table and there is no double recovery in those circumstances (Fuentes at paragraph 65). Mr McCaffery’s solicitor’s summary of professional costs confirm that the “conference”, which is capable of including an “arbitral hearing” (Fuentes), took place over 1 hour. I have regard to the maximum total for the type of activity as set out in the Table (Fuentes; Orr, and Woodbury) which has not been exceeded and accordingly the claim under Item 4.09 for participating in the conciliation conference for one hour is allowed in the amount of $250.00.
If I am wrong in my application of the authorities I also have regard to the Registrar’s Guideline for the Conciliation/Arbitration Process issued in April 2002 and the updated Guideline issued in November 2006. Both guidelines distinguish between the telephone conference, the conciliation conference and the arbitral hearing and both recognise that the conciliation conference and arbitration hearing will take place on the same day. In my view the Commission’s Guidelines distinguish these activities and clearly refer to the conciliation phase of the conciliation/arbitration hearing as a ‘conciliation conference’. In my view the correct application of these Guidelines to the circumstances of this case leads to an allowance for a teleconference and a conciliation conference under Item 4.09 of the Table.
As stated the matter proceeded to arbitration. Following my consideration of the circumstances of the case I allow the claim under Item 4.11 of the Table for participating in the arbitration hearing in the maximum allowable, $250.00.
I have considered Mr McCaffery’s solicitor’s submissions regarding the cost of travel in relation to claims under items 4.09 – 4.11 of the Table and I adopt the reasoning applied in Beggs at paragraph 40 in rejecting this ground of appeal.
Did the delegate err in determining Item 4.12 of the Table and fail to provide adequate reasons for his decision?
Mr McCaffery’s solicitor claimed $570.00 for the costs of reporting to the client on the outcome of two conferences and one arbitration. The delegate determined that the proper application of the decision in Fuentes to the case led to an allowance for two reports to Mr McCaffery. The delegate allowed the claim in the reduced amount of $380.00.
I have regard to the circumstances of the conciliation/arbitration being conducted on the same day and in this case Mr McCaffery’s solicitor’s bill of costs specifies that the conciliation concluded at 10:30 am and the arbitration commenced at 10:30 am as such a single report to Mr McCaffery for this event plus an allowance for the teleconference is fair and reasonable. Additionally I refer to the authority provided by McManus at paragraphs 22-29 in finding that the delegate correctly determined the claim in the reduced amount. I therefore reject this ground of appeal.
In considering the adequacy of the delegate’s reasons for his determination of Item 4.12 I note that the reasons are brief. However reasons must be considered relative to the nature of the decision and the decision maker (Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6). The delegate was required to assess a claim for $570.00 and in the context of the Commission, where proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. In these circumstances lengthy written reasons will not generally be necessary to clearly and concisely convey to the parties, who are familiar with the case, the reasons for the decision. The decision, when considered in its entirety provides a background to the proceedings; briefly refers to the claims made; sets out an assessment of each claim, and of significance, clearly demonstrates that the delegate applied the mandatory considerations required of him in accordance with clause 110 of the 2003 Regulation. At paragraph 17 the delegate stated his reliance upon Fuentes in allowing only two reports to Mr McCaffery. Therefore I am not persuaded that the delegate’s reasons are inadequate and that their inadequacy sufficiently demonstrates that the delegate failed to exercise his statutory duty, to fairly and lawfully determine the application (Cargill Meat Processors Pty Limited v Clark[2005] NSWWCCPD 7). Accordingly I find no ‘matter of law’ arising in relation to the adequacy of the delegate’s reasons.
Summary
I have determined the professional costs and disbursements challenged by Mr McCaffery’s solicitor as follows:
Professional Costs
Teleconference
Item 4.08: the delegate’s allowance of the maximum of $500.00 for the claim under this Item is confirmed.
Item 4.09: the delegate’s allowance of $250.00 for the claim under this Item is confirmedConciliation Conference/Arbitration Hearing
Items 4.08 - 4.11 the delegate’s total allowance of $625.00 (plus $62.50 GST being a total of $687.50) under these items for the conciliation arbitration is revoked.
Item 4.08 has been allowed in the maximum for the teleconference and no further allowance is permitted.
It is fair and reasonable to allow $250.00 for participating in the conciliation conference (plus GST of $25.00; being a total of $275.00) under Item 4.09.
It is fair and reasonable to allow $250.00 (plus GST of $25.00; being a total of $275.00) under Item 4.11.
The delegate’s allowance of $380.00 for Item 4.12 is confirmed.Disbursements
The delegate’s allowance for the costs of the Report in the reduced amount of $1,009.25 is revoked.
I disallow the claim in respect of the costs of the Report.
The Delegate’s determination of $9,229.60 should therefore be decreased by $1146.75 to $8,082.85.
DECISION
Paragraphs two and four of the decision of the delegate dated 2 September 2005 are revoked and the following orders are made in their place:
“(i) The Applicant’s costs of the substantive proceedings are assessed in the sum of $8,082.85
(ii) The Respondent is, therefore, to pay to the Applicant a total amount of $8,357.85 if those costs have not already been paid.”
Paragraph one of the delegate’s decision referring to the order for costs contained in the ‘Certificate of Determination’ and paragraph three of the delegate’s decision, awarding costs of the assessment in the sum of $275.00 were not raised on appeal and are confirmed.
COSTS
The Appellant has been largely unsuccessful on appeal. I make no order as to costs of the appeal.
E Tydd
Acting Deputy President
22 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF E TYDD ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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