Nebauer v Hunter Area Health Service

[2004] NSWWCCPD 60

WORKERS COMPENSATION COMMISSION

APPEAL FROM REGISTRAR’S DETERMINATION ON COSTS

CITATION:Nebauer v Hunter Area Health Service [2004] NSW WCC PD 60

APPELLANT:  Maxine Nebauer

RESPONDENT:  Hunter Area Health Service

INSURER:Treasury Managed Fund Workers Compensation

FILE NUMBER:  WCC4100-2004

DATE OF REGISTRAR’S DECISION:               17 May 2004

DATE OF APPEAL DECISION:  30 August 2004

SUBJECT MATTER OF DECISION: Part 2A Item 2.05 of Schedule 6 of the Workers Compensation Regulation 2003, Exercise of Discretion by Registrar.

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming

HEARING:On the papers

REPRESENTATION:  Appellant:  Whitelaw McDonald Solicitors & Attorneys

Respondent: Sparke Helmore Solicitors

ORDERS MADE ON APPEAL:  The decision of the Registrar is affirmed.

THE APPEAL

1. On 9 June 2004 Maxine Nebauer (‘the Appellant’) sought leave to bring an ‘Appeal from Registrar’s Determination on Costs’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 May 2004.

1. The Respondent to the Appeal is Hunter Area Health Service (‘the Respondent’). The relevant insurer, for the purposes of the appeal, is Treasury Managed Fund Workers Compensation.

1. The Registrar delegated the assessment of costs to an Arbitrator pursuant to section 371(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The Certificate of Determination of Applicant’s Costs, dated 28 May 2004, records the Registrar’s orders as follows:

“By agreement the Respondent employer is liable to pay the Applicant’s costs of the Application as agreed or assessed.

Assessment

The costs are assessed as follows:

1.   The Applicant’s costs of the proceedings are assessed at $3,451.50.

2.   The Applicant’s costs of the Assessment are assessed at $Nil.

Determination

It is further determined that:

3.The Respondent is to pay the amount of $3,451.50 to the Applicant if those costs have not already been paid.”

1. The Appellant seeks to have the decision of the Registrar’s Delegate revoked on the basis that his determination in respect of Item 2.05 of Schedule 6 of the Workers Compensation Regulation 2003 (‘the Regulation’) is incorrect.

1. The Respondent submits that the Registrar’s Delegate has not made an error of law and his decision should be upheld.

1. The appeal was referred to me on 23 August 2004.

1. I am satisfied that I have sufficient information to determine the appeal ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances (section 354(6) of the 1998 Act).

JURISDICTION

1. Part 19 of the Regulation (made pursuant to section 347 of the 1998 Act) provides for the determination of ‘costs’ in matters before the Commission. The process for the assessment of costs, by the Registrar, is set out at Division 4 of Part 19. Subdivision 5 of Division 4, Clause 119 provides as follows:

“119Appeal against decision of Registrar as to matter of law

(1)A party to an application who is dissatisfied with a decision of the Registrar as to a matter of law arising in the proceedings to determine the application may, in accordance with the Rules of the Commission, appeal to the Commission constituted by a Presidential member against the decision.

(2)The appeal is to be in the form approved by the Commission and be accompanied by the fee approved by the Commission from time to time.

(3)After deciding the question the subject of the appeal, the Commission constituted by a Presidential member may, unless it affirms the Registrar’s decision:

(a)make such determination in relation to the application as, in its opinion should have been made by the Registrar, or

(b)remit its decision on the question to the Registrar and order the Registrar to re-determine the application.

(4)On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.”

1. The Appellant challenges the Registrar Delegate’s findings under Item 2.05 of Part 2A ‘Certain events or activities on behalf of claimant until dispute referred or order sought’ (in Schedule 6 of the Regulation). Part 2A is in a tabulated format with columns that lists individual ‘item numbers’ in column 1, individual ‘activities or events’, described in column 2, that come under that ‘event/activity’, described in column 3 and must not exceed the maximum total for the ‘type’, as prescribed in column 4.  (See Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCC PD 28).

1. In this particular case, Item 2.05 in Part 2A of Schedule 6 provides that “Briefing a factual investigator or other investigator to obtain evidence other than witness statements (not including the investigator’s fee)” has a maximum amount for individual activities or events and the maximum total for type of activity or event as $100.00.

1. The Registrar’s Delegate’s reasons for disallowing Item 2.05, which encompasses both obtaining the investigator’s report as well as reducing the costs claimable for the report itself to $Nil, is as follows:

   “I find below that the investigators account is not a disbursement and disallow it.  It follows that the costs of obtaining the report are also not allowed …

SUBMISSIONS

1. The Appellant (who was the Applicant in the original proceedings) submits that the Registrar’s Delegate was wrong in his interpretation of Schedule 6 of the Regulation in two respects, namely:

● That a factual investigation report is not a claimable disbursement pursuant to Schedule 6, and

● That the cost of qualifying a factual investigator is not a claimable disbursement pursuant to Item 2.05 of Schedule 6.

1. The Appellant claims that Part 19 Clause 82 of the Regulation “clearly indicates that certain costs including fees for Investigator’s reports or other material produced or obtained by Investigators is not regulated by Schedule 6”. The Appellant submits that the factual investigator in this case “attended upon the Respondent gathering all relevant materials applicable in this claim. A copy of same along with a statement from the Applicant was then returned to the offices of [the Applicant’s solicitor]”. The Appellant submits that “the Applicant is not correctly characterised as a witness as defined under Item 2.05”.

1. The Respondent submits that the “Rules specifically disallow the costs of obtaining an investigation report if it relates to obtaining witness statements”.  The Respondent further submits that the cost of the report was not reasonably incurred given the limited issues in the matter, along with the Delegate’s finding that the Appellant had already charged the maximum allowable in relation to obtaining instructions.  In any event, the Respondent argues that the report was not reasonably necessary for the claim to be lodged.

THE RELEVANT LAW

1. Clause 82 of the Regulation prescribes the costs that are not regulated by Part 19, as follows:

“82Costs not regulated by this Part

Costs referred to in this Part do not include any of the following:

(a)costs for legal services provided for an appeal under section 353 (Appeal against decision of Commission constituted by Presidential member) of the 1998 Act,

(b)fees for investigators’ reports or for other material produced or obtained by investigators (such as witness statements or other evidence),

(c)   fees for accident reconstruction reports,

(d)  fees for accountants’ reports,

(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)  fees for interpreter or translation services,

(h)  fees imposed by a court or the Commission,

(i)travel costs and expenses of the claimant in the matter for attendance at medical examinations, a court or the Commission,

(j)   witness expenses at a court or the Commission.”

1. Clause 105 and Clause 106 of the Regulations directs the Registrar as to how an assessment of costs is to be made, as follows:

   “105Assessment of bills generally

   (1)When considering an application relating to a bill of costs, the Registrar must consider:

   (a)  whether or not it was reasonable to carry out the work to which the costs relate, and

   (b) whether or not the work was carried out in a reasonable manner, and

   (c)  the fairness and reasonableness of the amount of the costs in relation to that work.

   (2)The Registrar is to determine the application by confirming the bill of costs or, if the Registrar is satisfied that the disputed costs are unfair or unreasonable, by substituting for the amount of the costs an amount that, in his or her opinion, is a fair and reasonable amount.

   (3)Any amount substituted for the amount of the costs may include an allowance for any fee paid or payable for the application by the applicant.

   (4)If a legal practitioner is liable under section 182 (3) of the Legal Profession Act 1987 to pay the costs of the costs assessment (including the costs of the Registrar), the Registrar is to determine the amount of those costs. The costs incurred by the client are to be deducted from the amount payable under the bill of costs and the costs of the Registrar are to be paid to the Commission.

   (5)The Registrar may not determine that any part of a bill of costs that is not the subject of an application is unfair or unreasonable.”

   “106Additional matters to be considered in assessing bills of costs

   In assessing what is a fair and reasonable amount of costs, the Registrar may have regard to any or all of the following matters:

   (a)whether the legal practitioner or agent complied with any relevant regulation, barristers rule, solicitors rule or joint rule,

   (b)in the case of a legal practitioner—whether the legal practitioner disclosed the basis of the costs or an estimate of the costs under Division 2 of Part 11 of the Legal Profession Act 1987 and any disclosures made,

   (c)any relevant costs agreement (subject to clause 107),

   (d)the skill, labour and responsibility displayed on the part of the legal practitioner or agent responsible for the matter,

   (e)the instructions and whether the work done was within the scope of the instructions,

   (f)the complexity, novelty or difficulty of the matter,

   (g)the quality of the work done,

   (h)the place where and circumstances in which the legal services were provided,

   (i)the time within which the work was required to be done.”

DISCUSSION AND FINDINGS

1. The Registrar’s Delegate determined that the “factual investigation fees” should be deducted from the total bill because:

   “All the investigator was doing was obtaining a statement from the Applicant.  The Applicant has already claimed the maximum amount for obtaining instructions and the task of drafting a statement of the Applicant is included in this allowance.  The scale specifically excludes the cost of briefing investigators to obtain ‘witness statements’”. 

1. In this matter, the Delegate was satisfied that the purpose of the investigative report was to obtain a statement from the worker.  I accept the Appellant’s submission that the worker should not be considered to be a ‘witness’ for the purpose of Item 2.05.  However, the events prescribed in Part 2A of the Compensation Costs Table, follow the natural progression of preparation of a matter.  In my view the costs involved in obtaining a worker’s statement are encapsulated and absorbed by Item 2.01, “Obtaining instructions from client” which provides for a maximum total of $500, as was allowed by the Delegate in this matter.

1. Clause 82(b) of the Regulation provides that “fees for investigators report” or for other material produced or obtained by investigators (such as witness statements or other evidence) are not regulated by Part 19 of the Regulations. Ultimately it will be a matter for the Registrar, or her Delegate, to determine whether a disputed amount of costs claimed for such a report is fair and reasonable in the circumstances of the particular case, pursuant to Clauses 105 and 106. This is clearly a matter for the Delegate’s discretion. Only where the discretion can be said to have miscarried because it has been exercised unfairly and unlawfully, taking into account the scope of the discretion, and the objects or purpose for which it is conferred, would it be an error of law (Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 758; R v Australian Broadcasting Tribunal; ex p 2HD Pty Ltd (1979) 144 CLR 45 at 49; Sheridan v David Anthony Clarke t/as Freestyle Marine Sports [2003] NSW WCC PD 9). I am not satisfied that the Registrar’s Delegate has erred in the exercise of his discretion in this matter.

DECISION

1. The Registrar’s Delegate has made no error of law in the exercise of his discretion.  The decision of the Registrar is affirmed.

Dr Gabriel Fleming

Deputy President  

30 August 2004

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE