McNamara v PR Partridge and CJ Partridge trading as Partridge MetalFab Moree
[2007] NSWWCCPD 4
•3 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:McNamara v PR Partridge and CJ Partridge trading as Partridge MetalFab Moree [2007] NSWWCCPD 4
APPELLANT: Peter David McNamara
RESPONDENT: Philip Roger Partridge and Christine Joan Partridge trading as Partridge MetalFab Moree
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC12318-05
DATE OF REGISTRAR’S DECISION: 12 January 2006
DATE OF APPEAL DECISION: 3 January 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; disbursements: medical reports; agency fees; fees for an investigation report; travel expenses and Lawpoint search. Items 2.02; 2.03; 2.05; 2.06; 4.04; 4.07; 4.08; 4.12; 7.01; 9.01 and 10.01 of Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER: Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: AO Allison & Co Solicitors
ORDERS MADE ON APPEAL: 1. Paragraphs two and four of the decision of the delegate dated 12 January 2006 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 $10,742.33.
(ii) The Respondent is to pay to the Applicant a total amount of $10,742.33 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 making no order for the costs of the assessment are confirmed.
3. The Respondent MetalFab to pay the Appellant Mr McNamara, $275.00 inclusive of GST in respect of his costs in this appeal
BACKGROUND
On 15 April 2003 Peter David McNamara (‘Mr McNamara’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC9072-03). Mr McNamara named Philip Roger Partridge and Christine Joan Partridge trading as Partridge MetalFab Moree (‘MetalFab’) as the Respondent employer. Mr McNamara claimed to have suffered frank injuries to his: left knee on 22 November 1993; back on 26 June 1997; face, neck and right shoulder on 1 March 2001 and back and legs on 1 March 2002. Mr McNamara also and claimed that as a result of the nature and conditions of his employment from 1992 to 21 December 2001 he suffered injuries to his back; right and left knee; neck and right shoulder and again as a result of the nature and conditions of his employment from 1 January 2002 to 13 November 2002 he suffered injuries to his back associated with leg pain; right and left knee; neck; right shoulder; right and left arm and “impairment to sexual activities”. Mr McNamara sought a total of $151,650.00 pursuant to section 66 and a total of $95,000.00 pursuant to section 67 together with a general order pursuant to section 60 of the Workers CompensationAct 1987 (‘the 1987 Act’).
MetalFab lodged a Late Reply to the application on 17 June 2003 in which it disputed all aspects of the claim.
Three teleconferences were conduced before a Commission Arbitrator (‘the Arbitrator’) at which time procedural directions were made. At the teleconference conducted on 12 September 2003 the Arbitrator referred Mr McNamara for assessment by two Approved Medical Specialists (‘AMSs’) in accordance with section 321 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The referral was to a urologist for assessment of Whole Person Impairment (‘WPI’) of sexual organs and an orthopaedic specialist for assessment of WPI and permanent loss of efficient use or impairment.
The urologist AMS assessed the loss of sexual organs as 0% WPI. The orthopaedic AMS made an assessment of the injuries referred and the Registrar issued a ‘Certificate of Determination’ dated 5 April 2004 in accordance with the Medical Assessment Certificate (‘MAC’) of the orthopaedic AMS. The Certificate of Determination did not contain an order pursuant to section 60 or 67 of the 1987 Act. However it did contain an order that MetalFab pay Mr McNamara a total of $23,500.00 pursuant to section 66 of the 1987 Act and that MetalFab pay Mr McNamara’s costs as agreed or assessed.
On 25 July 2005 Mr McNamara’s solicitor lodged an ‘Application for Assessment of Costs’. MetalFab’s solicitor lodged submissions in reply on 9 August 2005. The Registrar’s decision in relation to the application by her delegate, a Commission Arbitrator, (‘the delegate’) was made on 12 January 2006 and was accompanied by a ‘Statement of Reasons’. The determination is set out as follows:
“1.Pursuant to a Certificate of Determination of the Commission dated 5 April 2004, 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 $8678.40.
3.The Applicant’s costs of the assessment are not allowed.
4.The Respondent is to pay the amount of $8678.40 to the Applicant if those costs have not already been paid.”
On 30 January 2006 Mr McNamara filed an appeal against the Registrar’s assessment of costs in proceedings determined by her delegate.
On 24 February 2006 MetalFab lodged a reply to the appeal. MetalFab’s insurer is Allianz Australia Workers Compensation (NSW) Limited (‘the Insurer’).
ON THE PAPERS
Section 354(6) of 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.”
Neither Mr McNamara’s solicitor nor MetalFab’s solicitor made submissions addressing the requirement for a formal hearing. 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 McNamara’s solicitor in relation to the Items claimed pursuant to the Compensation Costs Table (‘the Table’) set out in Schedule 6 of the Workers Compensation Regulation 2003 (‘the WC Regulation’) and the disbursements claimed can be summarised as follows:
·Item 2.02 of the Table should be allowed in the maximum as the delegate failed to refer to Mr McNamara’s solicitor’s correspondence dated 18 August 2005 which was attached to the Application to Resolve a Dispute which evidenced a request for medical reports;
·Item 2.03 of the Table should be allowed in the maximum as Mr McNamara’s solicitor forwarded medical reports to MetalFab’s solicitor and the delegate’s failure to consider “the record of the Workers Compensation Commission is a Legal Error which should be corrected on Appeal”;
·Item 2.05 of the Table should be allowed in the maximum as MetalFab’s solicitor agreed to the claim and therefore Mr McNamara’s solicitor did not make any further submissions and the delegate could not make a reliable determination based on accounts and submissions without viewing a copy of the factual investigation report (‘the Report’);
·Item 2.06 of the Table should be allowed in the maximum as the delegate erred in his determination that the costing under this Item is an amount based allowance, “and is paid per letter.” as the Item is a time based allowance. Further the delegate failed to refer Mr McNamara’s solicitor’s correspondence dated 18 August 2005 and the delegate’s failure to consider “the record of the Workers Compensation Commission is a Legal Error which should be corrected on Appeal”;
·Item 4.04 of the Table should be allowed in the amount claimed, being $60.00 as a claim for legal professional privilege was made and the delegate’s failure to consider “the record of the Workers Compensation Commission is a Legal Error which should be corrected on Appeal”;
·Item 4.07 of the Table should be allowed in the maximum as the delegate incorrectly stated that the maximum amount was $100.00 and then disallowed the claim and the delegate erred in disallowing the claim as the ‘review of the approved medical specialist reports’ was required twice;
·Item 4.08 of the Table should be allowed in the amount claimed, being $1,500.00 as Mr McNamara’s solicitor prepared for the three teleconferences claimed and in applying the authority provided in Orellana Fuentes v Standard Knitting Mills Pty Ltd & Anor [2003] NSWCA146 (‘Fuentes’) Item 4.08 should be constructed by reference to its own terms and the Item claimed;
·Item 4.12 of the Table should be allowed in the amount claimed, being $570.00 as Mr McNamara’s solicitor reported to his client at the end of each telephone conference. The Commission must determine whether multiple telephone conferences are allowable and there “is no provision in the Commission Rules or Regulations for dispute resolution to be only determined after a single conference.” It is an error of law to limit the costs recoverable to one conference;
·Item 7.01 of the Table should be allowed in the maximum as all work associated with registering the agreement involves obtaining instructions from the client and this work was undertaken;
·Item 9.01 of the Table should be allowed in the maximum as “the proceedings in this matter occurred when the Arbitrator requested the parties to prepare written submissions in regards to the Applicant’s claim”. Additionally, as I understand the submissions, Mr McNamara’s solicitor claims a further $625.00 for the costs of preparing submissions and lodging the appeal;
·Item 10.01 of the Table should be allowed in the maximum as in the absence of information or objections the amount claimed should be allowed and as Mr McNamara’s solicitor was not requested to provide further information the delegate’s determination amounts to a denial of procedural fairness;
·the medical reports claimed as disbursements should be allowed in the amount claimed being $3,129.00 as the costs of the medical reports were broken down in Mr McNamara’s solicitor’s original bill of costs dated 21 June 2005;
·the agency fees claimed as disbursements should be allowed in the amount claimed being $242.00 as the agency fees had been agreed and there was no reason to make any further submissions;
·the private investigator fees claimed as disbursements should be allowed in the amount claimed being $1,840.85 as the delegate failed to consider the Report and this failure “is a Legal Error which should be corrected on Appeal”;
·the travel expenses claimed as disbursements should be allowed in the total amount claimed for the three occasions of travel. The delegate erred in allowing only one amount for travel and not the three amounts claimed, and
·the Lawpoint fees claimed as disbursements should be allowed in the amount claimed being $20.13 as this claim was agreed by the parties and there was no reason for Mr McNamara’s solicitor to make any further submissions. Further it is submitted that the delegate did not have the file before him and therefore erred in law in failing to consider relevant material.
MetalFab’s solicitor relies upon its previous reply to the application and the decision of the delegate in submitting that Mr McNamara’s solicitor has not shown sufficient grounds to succeed on the current appeal as no error of fact, law or discretion by the delegate has been demonstrated on appeal. Further MetalFab’s solicitor relies upon the authority provided in Berger v Moree Plains Shire Council[2005] NSWWCCPD 152 (‘Berger’) in support of its submissions.
ISSUES IN DISPUTE
The issues raised on appeal are as follows:
·whether the delegate erred in determining Items 2.02; 2.03; 2.05; 2.06; 4.04; 4.07; 4.08; 4.12; 7.01; 9.01and 10.01 of the Table, and
·whether the delegate erred in determining the costs of disbursements.
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; 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 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, 110 and 119(1) of the WC Regulation and as the cost of disbursements 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 5 April 2004 (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. The maximum permissible under the Table has been considered by the Commission in a number of decisions including Berger, Woodbury and Orr. These decisions set out the Commission’s reasoning and application of the authority provided in Fuentes in respect of the maximum amount permissible under the Table being the amount set out in Column 4.
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. An error of law arises only where the discretion can be said to have miscarried because it has been exercised unfairly and unlawfully (see discussion in Flegerbein at paragraphs 27 – 29).
Clause 82 of the WC Regulation provides:
“82 Costs not regulated by this Part
Costs referred to in this Part do not include any of the following:
(a) …
(b) fees for investigators’ reports or for other material produced or obtained by investigators (such as witness statements or other evidence),
(c) …
(d) …
(e) fees for reports from health service providers,
(f) fees for other professional reports relating to treatment or rehabilitation (for example, architects’ reports concerning house modifications),
(g) …
(h) …(i) travel costs and expenses of the claimant in the matter for attendance at medical examinations, a court or the Commission,
(j) ...”
Accordingly, the claim for disbursement 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).
The delegate noted in his Statement of Reasons that the matter was not declared to be complex and:
“A number of parts of the Applicant’s submissions appear to make detailed references to ‘weekly benefits’ and ‘medical expenses’, including [sic] in asserted investigatory claims, which is curious submissions content given that the dispute did not appear to involve, certainly as ultimately determined, any claims for weekly benefits or medical expenses (or if so, were or had been resolved separately), and appear not to be part of the proceedings substantively, or at all. Further, it is noted that the claim for s67 pain and suffering appeared not to resolve in any favourable determination to the Applicant within the issued Commission Certificate.”
The issues raised on appeal by Mr McNamara’s solicitor regarding the delegate’s failure to consider the Commission’s file cannot be substantiated in light of the delegate’s reasons which expressly refer to the claim made pursuant to section 67 of the 1987 Act and the absence of any such award in the Certificate of Determination. In my view the delegate’s reasons demonstrate that he considered the substantive proceedings. Likewise Mr McNamara’s solicitor’s submissions that the delegate failed to consider his submissions of 18 August 2005 cannot be substantiated on review of the decision of the delegate and the file in its entirety. In particular the delegate referred to both the submissions and the annexure attached to the submissions in determining the claim under Item 9.01. Further, to demonstrate that the delegate’s failure to consider the documents filed in the original proceedings gives rise to an error of law Mr McNamara’s solicitor would be required to show that he was denied “…a fair opportunity to obtain a favourable decision of the [delegate] and deprived …the chance to place evidence before the [delegate] and to make submissions…” (Clements v Independent Indigenous Advisory Committee (2003) 37 AAR at 42). Mr McNamara was provided with the opportunity to make submissions to the delegate and availed himself of that opportunity in his application dated 25 July 2005 and in further submissions dated 18 August 2005. If Mr McNamara’s solicitor considered any documents filed in the substantive proceedings relevant to the delegate’s determination of costs I am satisfied that he has been provided with the opportunity to file those documents or to refer to them in submissions, therefore no error can arise from the delegate’s failure to consider material not before him in the present circumstances. Accordingly I do not propose to entertain further the submissions as they relate to this issue.
Item 2.02
Mr McNamara’s solicitor claimed $40.00 pursuant to this Item and referred to his correspondence attached to the Application to Resolve a Dispute and dated 10 May 2002 (two reports) and 16 January 2003 (two reports) for “obtaining medical reports/other reports from insurer or requested information.” MetalFab’s solicitor objected and contended that it had no knowledge of the reports claimed. The delegate allowed the claim in the sum of $20.00 with reference to correspondence dated 16 January 2003 and noted that this correspondence qualifies as a “singular request only”.
The correspondence dated 16 January 2003 is addressed to “The Claims Manager, Allianz Australia Workers Compensation NSW Limited” and to the Respondent employer. The information requested in this correspondence is expressed in substantially identical terms over 11 questions which all relate to the provision of a medical opinion and specifically requests information regarding future medical treatment; pre-existing disease/condition; diagnosis and stabilisation. In my view neither recipient was in a position to provide an answer to the questions posed and it was not reasonable to carry out the work to which the costs relate. In respect of the correspondence dated 10 May 2002 again the information was requested of “The Claims Manager, Allianz Australia Workers Compensation NSW Limited” and the Respondent employer, again the correspondence was expressed in substantially identical terms. In my view given the content of this correspondence and the information requested relating to the claim it is fair and reasonable to allow the claim for one request only. Accordingly whilst I find error in the delegate’s determination of the claim as it related to the correspondence dated 16 January 2003 I agreed with his determination in respect of a “singular request only”. Therefore I allow the claim in the amount of $20.00 only.
Item 2.03
Mr McNamara’s solicitor claimed $40.00 for referring insurer’s reports to a specialist pursuant to this Item and referred to his correspondence to Dr Patrick dated 29 July 2002. MetalFab’s solicitor objected and contended that it had no knowledge of the reports claimed. The delegate disallowed the claim as the reports claimed to have been referred to Dr Patrick were not ‘insurer’s reports’ as required pursuant to this Item and because the claim made was “all relative to a much earlier chronology during a treatment period of the Applicant, and is not consistently relative to Reports inherently of the insurer as to qualify under this Item.”
Following my review of the report of Dr Patrick I am satisfied on reviewing Dr Patrick’s report that he did review the report of Dr Loeve who at the Insurer’s request assessed Mr McNamara and provided a report. Therefore I find that the delegate erred in his determination that the report was not an insurer’s report and I allow the claim in the sum of $20.00 for the referral of that report to Dr Patrick. However I note that a copy of the request claimed was not before the delegate or before me on appeal and Mr McNamara’s solicitor failure to provide this evidence may in part have lead to the delegate’s error.
Item 2.05
Mr McNamara’s solicitor claimed $100.00 pursuant to Item 2.05 for the costs of briefing a factual investigator on 13 February 2003. MetalFab’s solicitor did not raise an objection to the claim. The delegate noted that whilst no objection was raised MetalFab disputed the costs of the Report claimed as a disbursement. The delegate considered the nature of the proceedings and the content of the Report and provided lengthy written reasons which I do not propose to repeat here in disallowing the claim.
On appeal Mr McNamara’s solicitor submits that the delegate failed to review the file and consider the Report as required. Further, it is submitted that in the absence of submission from MetalFab the claim should be allowed. I have reviewed the file in its entirety and the Report. The claim was confined to lump sum compensation and notwithstanding the separate injuries claimed the matter was relatively straightforward. In my view it was not reasonable to carry out the work to which the costs relate. I find no error in the delegate’s determination in this regard. Therefore I reject this ground of appeal.
Item 2.06
Mr McNamara’s solicitor claimed $500.00 for requesting a review from the insurer prior to referral of the matter to the Commission and referred to his correspondence dated 16 January 2003 and 10 May 2002 (as set out at paragraph 23 of this decision) and asserted that $500.00 was a fair and reasonable amount. MetalFab’s solicitor objected and contended that it had no knowledge of the review. However it asserted that if a review was sought no more than the costs of one hours work would be entailed. The delegate determined that the correspondence of 10 May 2002 “could not possibly be a review request communication, as distinct from injury and potential claim notification”. The delegate allowed $250.00 for the correspondence dated 16 January 2003 as a fair and reasonable amount for the work performed.
In my view the correspondence dated 16 January 2003 could not be viewed as a request for review as the questions posed relate to the provision of a medical opinion (as set out at paragraph 23). Accordingly, I have formed the view that the delegate erred in law in this regard. In considering the correspondence dated 10 May 2002 addressed to the Insurer I note that the detailed particulars sought may have caused the insurer to review the claim and I allow the amount of $250.00 (as permitted by the delegate) as fair and reasonable for the work performed.
Item 4.04
Mr McNamara’s solicitor claimed $60.00 for lodging an objection to the report of Dr Bilton as a claim for legal professional privilege was made over a letter from Dr Bilton to McCabe Partners Lawyers. MetalFab’s solicitor objected and contended that it was unaware of any objection being lodged. The delegate determined that there was no reliable material before him of an objection being lodged to qualify under this Item and disallowed the claim.
I have reviewed the file and located the access order granted in respect of Dr Bilton’s reports to the parties to the proceedings. However I have not located any objection ‘lodged’ by Mr McNamara’s solicitor to substantiate the claim. Further, I find no evidence that the Arbitrator determined any such objection ‘lodged’ by Mr McNamara and I note that Mr McNamara’s solicitor applied to admit the report of Dr Bilton into proceedings on 8 September 2003. As stated I am satisfied that Mr McNamara’s solicitor has been provided with an opportunity to provide submissions and documents to support the claim made. I find no error in the delegate’s determination. Therefore I reject this ground of appeal.
Item 4.07
Mr McNamara’s solicitor claimed $200.00 for applying to refer a matter to the AMSs. MetalFab’s solicitor objected and contended that as the referrals we both made at the one teleconference the sum of $100.00 was reasonable. The delegate determined that Item 4.07 is effectively subsumed into Item 4.09, as there is no discrete activity when the referral takes place at a teleconference and disallowed the claim relying on the authority provided in Berger at paragraphs 105-112.
In my assessment Mr McNamara did not ‘apply’ to have the matter referred to an AMS nor was he required to respond to such an application as required to substantial the claim. Rather Mr McNamara’s solicitor lodged an ‘Application to Resolve a Dispute’ and as found by the delegate the referral was made by the Arbitrator at the teleconference. Two reports were provided by AMSs and this Item of the Table does include an allowance for ‘review of the report by the [AMS]’. However as found by the delegate the activity is effectively subsumed into Item 4.09 when a teleconference takes place after the issuing of the MAC. I am satisfied that this was not the case here as no further teleconference was conducted following the issuing of the MACs. I am persuaded that the delegate erred in determining the claim. In my view it is fair and reasonable to allow the claim in maximum of $100.00.
Item 4.08
Mr McNamara’s solicitor claimed a total of $1500.00 for the costs of preparing for the three teleconferences conducted in this matter. MetalFab’s solicitor conceded the claim in the maximum of $500.00. The delegate applied the authority provided in Berger and allowed the claim in the maximum. As set out at paragraph 15 of this decision the maximum amount permissible under the Table has been determined to be the amount set out in Column 4, that is $500.00 and I see no error in the delegate’s determination of this claim. Therefore I reject this ground of appeal.
Item 4.12
Mr McNamara’s solicitor claimed a total of $570.00 for the costs of reporting to the client following the three teleconferences conducted in this matter. MetalFab’s solicitor’s submissions were silent in respect of the claim. The delegate determined that there was only one activity and allowed the claim in the amount of $190.00.
In the present case there were three teleconferences and no conciliation/arbitration hearing. In McManus the Commission held that an allowance can be made for reporting to a client after both ‘a’ teleconference and ‘a’ conciliation/arbitration conducted on the same day. In doing so the Commission applied the obiter view expressed by Ipp JA in Fuentes to the Commissions procedures (see discussion in McManus paragraphs 22-29). The decision in Fuentes was also considered by the Commission in Harvey v JJC Group Pty Limited[2006] NSWWCCPD 329 in which ADP Handley noted:
“... 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.”
Whilst the Commission’s procedures allow for one teleconference I am satisfied that the delegate convened three teleconferences in this matter which ultimately did not require determination at an arbitration hearing. I accept the reasoning applied by ADP Handley in Piening-Cochrane v PL & MR Wilde t/as Wilde Earthmoving[2006] NSWWCCPD 340 that a solicitor needs to report to the client after each teleconference or conciliation/arbitration and on occasion there may be more than one of each. In these unique circumstances I am satisfied that the activities took place and an allowance for three activities is not at odds with the authority provided in Fuentes. Accordingly I find that the delegate erred in his determination not to allow the claim. I allow the claim in the amount of $570.00.
Item 7.01
Mr McNamara’s solicitor claimed $120.00 for all work associated with registering an Agreement and relied on their correspondence to MetalFab’s solicitor dated 12 April 2005. MetalFab’s solicitor objected and contended that it was unaware of any agreement being registered. The delegate determined that the Applicant did not respond to the objection satisfactorily and disallowed the claim as there was no evidence of an agreement having been registered.
I have reviewed the file and all submission. However I have not located any evidence that an agreement was registered and therefore I find no evidence of ‘work associated’ with such an agreement to substantiate the claim and I see no error in the delegate’s determination of this claim. Therefore I reject this ground of appeal.
Item 9.01
Mr McNamara’s solicitor claimed $625.00 for preparing submissions which involved substantive legal issues including preparatory work which was performed on 29 September 2003 when, pursuant to the Arbitrator’s direction to clarify the issues in dispute Mr McNamara filed “a five detailed page letter”. A copy of the correspondence was attached to the submissions dated 18 August 2005. MetalFab’s solicitor objected and submitted that he was unaware of any submissions that fall within the terms of this Item. The delegate determined that the correspondence did not qualify under the Item. The delegate also considered Mr McNamara’s solicitor’s submissions that he was put to unnecessary objections and these activities gave rise to a costs claim for submissions. The delegate found that neither claim qualified under the Item and disallowed the claim.
I have considered the correspondence and can find no ‘substantive legal issues’ addressed therein. Rather the correspondence provides particulars and clarifies the claim lodged in the Commission. Further I note that Mr McNamara’s solicitor’s claims were largely unsuccessful before the delegate. The delegate reduced the claim by $7,169.23 and awarded $8,678.40.
Costs are covered by section 341 of the 1998 Act. Section 341(2) provides the Commission with full power to determine by whom, to whom and to what extent costs are to be paid. Applying the authority provided in McManus at paragraph 20 I am not satisfied, on the evidence before me that the delegate’s discretion not to award costs can be said to have miscarried because it was exercised unfairly and unlawfully. I therefore reject this ground of appeal. I will consider Mr McNamara’s solicitor’s submissions regarding the costs of the appeal below.
Item 10.01
Mr McNamara’s solicitor claimed $187.50 for all work associated with instructing an agent to act. Whilst MetalFab’s solicitor’s objections in respect of the claim appear ambiguous as at paragraph 4 they concede the sum of $187.50 under this Item in my view they raise objection to the claim for inspection of documents as the costs appeared to relate to photocopying. MetalFab did not contest the fees for filing of documents. The delegate noted MetalFab’s solicitor’s objections which were dealt with separately and then determined that filing is not an agency activity allowance and noted that filing is not an activity that necessitates the intervention of a filing agent. The delegate disallowed the claim.
On appeal Mr McNamara’s solicitor submits that the agency fees were claimed in respect of filing and inspecting documents and claiming privilege. I have dealt with the claim as it relates to the claiming of privilege at paragraph 31 of this decision and I do not propose to revisit this claim. In respect of inspecting documents Deputy President Fleming held in Dunn v Port Macquarie RSL Club Limited [2004] NSWWCCPD 33 (‘Dunn’), at paragraph 41 that to allow the recovery of fees paid to an agent for inspection and photocopying of documents produced under direction fell within the type of activity envisaged under Item 4.05 of the Table and to allow the claim would lead to recovery of an amount exceeding the maximum allowable. I see no error in the delegate’s determination in circumstances where the claim under Item 4.05 was allowed in the maximum. I apply the reasoning set out in Dunn and Flegerbein in rejecting this ground of appeal.
Did the delegate err in determining the costs of disbursements?
Agency fees
Mr McNamara’s solicitor claimed a total of $242.50 with regards to agency fees under Item 10.01 in his submissions filed on 25 July 2005. The delegate noted that he had dealt with the claim under Item 10.01 and referred to the decision in McManus in disallowing the claim as it related to the remaining issue of photocopying.
On appeal Mr McNamara’s solicitor submits that as the amount was agreed the delegate should have allowed the claim. On my review of the submissions the claim was not conceded and, for reasons set out at paragraph 44 of this decision I find no error of law in the delegate’s determination of this issue. Therefore I reject this ground of appeal.
The report
Mr McNamara’s solicitor sought $1,840.85 for the Report. MetalFab’s solicitor objected on the basis that they did not have access to the Report and as there was nothing in the bill provided that assisted in considering the claim. Further, it was submitted that the work appears to be a duplication of work already performed and the costs charged for typing, photocopying and dictating were challenged. The delegate provided lengthy written reasons for disallowing the claim and noted the ‘curiosity’ of the claim with reference to: the Report being admitted into proceedings as claimed; the claim that witness statements were filed whereas the invoice referred to a witness statement, and the costs of obtain wage information in circumstances where the claim did not concern weekly compensation payments. The delegate considered the nature of the claim, the objections, the invoices supplied in support of the claim and determined that there was nothing reliable to suggest any reasonable need for the Report and that the costs were not reasonably incurred.
I note that the Report dated 7 July 2003 was filed under an Application to Admit Late Documents on 8 September 2003 notwithstanding the direction of the Arbitrator dated 22 August 2003 requiring the Report to be filed and served by 25 August 2003. The Report comprises 11 pages in total plus attachments, these being statements of Mr McNamara and Kerrie Ann McNamara together with medical reports already filed in proceedings with the exception of the report of Dr Dalton dated 10 December 2002. I also note the typographical error contained in the index concerning the date of Dr Conrad’s three reports. In her Directions made at the teleconference conducted on 12 September 2003 the Arbitrator noted the parties’ agreement that pages 3 to 11 of the Report not be sent to the AMSs. This is effectively the Report as filed as page one is a title page and page two is the index to the Report. The Report contains: names, addresses and contact details for Mr McNamara; MetalFab; the Insurer; Mr McNamara’s medical practitioners; medico-legal consultant’s for the Insurer and Mr McNamara; a summary of injuries; a factual and liability summary which sets out details of Mr McNamara’s employment history; current employment and duties; injury; medical history; condition; treatment; symptoms, and observations regarding authenticity and common law entitlements. None of this information can be considered to be ‘necessarily incurred’ when this material should be in the possession of Mr McNamara’s solicitor and the evidence leads to a conclusion that it was as it duplicates much of the information contained in the Application to Resolve a Dispute. Further information relating to Mr McNamara’s injury and employment is contained in his statement. I find that the Report, in this respect, duplicates material filed in the proceedings and was not necessary to the claim (Berger, Asimus and Flegerbein). Additionally I do not view the observations of the investigator in respect of authenticity necessary to the claim nor do I view the statement of Kerrie Ann McNamara necessary to the claim pursued. Therefore the cost of the Report in this respect is not allowed.
Accordingly the remaining matter for consideration is the statement of Mr McNamara. I note that Mr McNamara’s solicitor did not claim the taking of a statement under Item 2.01 or 2.04A of the Table. An applicant has been held to be a witness and in the present circumstances I conclude that Mr McNamara’s claim could not be brought without his statement (see discussion in Asimus at 24-25). I am satisfied that the work was performed. The interview was conducted over 45 minutes by a non professional. In my view it is reasonable to allow one hour for the costs of the statement including typing and in applying the allowance for similar work under Item 2.04A I allow the claim in the amount of $110.00 (including GST).
Medical reports
Mr McNamara’s solicitor sought $3,129.00 for the costs of medical reports. MetalFab’s solicitor raised only one objection to the claim. That being the costs of $60.00 for attendance upon Dr Aitkins. The delegate noted that apart from Dr Bilton the claims did not reconcile with the range of treating medical reports as set out by Mr McNamara’s solicitor under Item 1.01. The delegate allowed the claim with the exception of the $60.00 charge for Dr Aitkins.
On appeal Mr McNamara’s solicitor submits that Dr Atkins is an eye specialist who saw Mr McNamara on 20 January 2003 prepared a report and charged $225.00 including GST. However I note that the charge includes $60.00 for professional attendance and I find no error in the delegate’s determination to disallow this claim which is not for the provision of a ‘report’. Therefore I reject this ground of appeal.
Lawpoint
Mr McNamara’s solicitor sought $20.13 for the costs of a Lawpoint search. MetalFab’s solicitor did not raise an objection to the claim. The delegate noted that there was no material to evidence what the search was for and determined that it was not reasonably claimable.
On appeal Mr McNamara’s solicitor submits that the delegate failed to review the file and in the absence of submissions from MetalFab the claim should be allowed. I have reviewed the file and I note that the invoice attached does disclose that the information relating to the search is limited. However it does confirm that a search was conducted in respect of Mr McNamara’s claim. I find the delegate erred in this respect. On balance I am satisfied that there is sufficient evidence to substantiate the claim and that the cost was necessarily incurred. Therefore I allow the amount of $20.13 as claimed.
Travel
Mr McNamara’s solicitor sought a total of $2047.20 for the costs of three return trips to Sydney to attend medical examinations conducted on 18 February 2002 (Dr Patrick), 11 December 2002 (Dr Conrad) and 6 February 2003 (Dr Lowy). MetalFab’s solicitor did not raise an objection to the claim. The delegate noted the three separate amounts claimed and whilst he considered them examinable on balance he allowed the claimed. However the allowance made by the delegate is reflective of only one claim and the amount of $682.40 was allowed.
On appeal Mr McNamara’s solicitor submits that the delegate failed to properly consider the claim. In my view the attendances took place as claimed and delegate’s decision represents an error which is readily corrected. I allow the costs of the three attendances in the amount claimed.
Summary
I have determined the disbursements and professional costs challenged by Mr McNamara’s solicitor as follows:
Professional Costs
The delegate’s allowance of $20.00 for Item 2.02 is confirmed.
The delegate’s disallowance of Item 2.03 is revoked.
It is fair and reasonable to allow $20.00 (plus GST being an amount of $22.00) for referring reports for review under Item 2.03 of the Table.
The delegate’s disallowance of Item 2.05 is confirmed.
The delegate’s allowance of Item 2.06 is confirmed.
The delegate’s disallowance of Item 4.04 is confirmed.
The delegate’s disallowance of Item 4.07 is revoked.
It is fair and reasonable to allow $100.00 (plus GST) being an amount of $110.00 for reviewing the reports of the AMS’s.
The delegate’s allowance of the maximum of $500.00 for the claim under Item 4.08 is confirmed.
The delegate’s allowance of $190.00 for the claim under Item 4.12 is revoked.
It is fair and reasonable to allow $570.00 (plus GST being an amount of $627.00) for reporting to the client following the three teleconferences under Item 4.12 of the Table.
The delegate’s disallowance of the claim under Item 7.01 is confirmed.
The delegate’s disallowance of the claim for Item 9.01 is confirmed.
The delegate’s disallowance of the claim for Item 10.01 is confirmed.Disbursements
The delegate’s disallowance of the claim for the costs of agency fees is confirmed.
The delegate’s disallowance of the claim for the costs of the Report is revoked.
The costs of $110.00 (including GST) for obtaining Mr McNamara’s statement were necessarily incurred and are allowed.
The delegate’s allowance of the claim for medical reports is confirmed.
The delegate’s disallowance of the claim for the costs of the Lawpoint search is revoked.
The costs of $20.13 for the Lawpoint search were necessarily incurred and are allowed.
The delegate’s allowance of $682.40 for travel is revoked. The costs of $2047.20 for travel were necessarily incurred and are allowed.
I therefore increase the delegate’s assessment of costs by $2,063.93 to a total amount of $10,742.33.
DECISION
Paragraphs two and four of the decision of the delegate dated 12 January 2006 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 $10,742.33.
(ii) The Respondent is, therefore, to pay to the Applicant a total amount of $10,742.33 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, making no order for the costs of the assessment are confirmed.
COSTS
Mr McNamara’s solicitor claims that he is entitled to $625.00 for the costs of preparing submissions and lodging the appeal. MetalFab’s solicitor’s submissions were silent in respect of the costs of the appeal. The Appellant has been in part successful on appeal.
The appropriate order is therefore that: “The Respondent MetalFab pay the Appellant Mr McNamara, $275.00 inclusive of GST in respect of his costs in this appeal.”
Elizabeth Tydd
Acting Deputy President
3 January 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ELIZABETH TYDD, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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