Norris v Frank Whiddon Masonic Homes of NSW
[2006] NSWWCCPD 357
•20 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Norris v Frank Whiddon Masonic Homes of NSW [2006] NSWWCCPD 357
APPELLANT: Sandra Norris
RESPONDENT: Frank Whiddon Masonic Homes of NSW
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC19394-05
DATE OF REGISTRAR’S DECISION: 12 April 2006
DATE OF APPEAL DECISION: 20 December 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s Assessment of Costs; various Items in Schedule 6 of the Workers Compensation Regulation 2003; disbursements – agency fees, fee for private investigator’s report, travel expenses, and medical report fees.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners, Solicitors
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: 1. The Registrar’s determination of Ms Norris’ claim for costs in this matter, dated 29 May 2006, is amended in accordance with these reasons.
2. The Respondent, Frank Whiddon Masonic Homes of NSW, is to pay the Appellant, Ms Norris, $275.00 inclusive of GST in respect of her costs of this appeal.
.
BACKGROUND TO THE APPEAL
On 4 May 2006, Sandra Norris (‘Ms Norris’) filed an ‘Appeal Against a Costs Determination’ made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 12 April 2006. The Respondent to the appeal is Frank Whiddon Masonic Homes of NSW (‘the Respondent’), although there has been some dispute as to the correct identity of the Respondent to which I will refer later.
On 30 May 2006 the Respondent filed submissions in opposition to the appeal. On 19 June 2006 Ms Norris filed further submissions in reply.
Ms Norris commenced proceedings in the Commission on 9 December 2003 against four Respondents, effectively various ‘guises’ of the Frank Whiddon Masonic Homes.
The issue of the correct identity of the Respondent was dealt with by an Arbitrator’s determination on 29 April 2004 where the correct Respondent was stated to be “Frank Whiddon Masonic Homes of NSW”. That decision went on appeal to a Presidential Member and was dismissed on 27 September 2004 (see Norris v Frank Whiddon Masonic Homes [2004] NSWWCCPD 68).
The parties ultimately attended a Teleconference on 10 June 2005 where, with the assistance of the Arbitrator, they were able to reach an agreed resolution of the issues in dispute. On 15 June 2005 the Arbitrator issued a ‘Certificate of Determination – Consent Orders’ in the following terms:
“1. That the parties file an S.66A Agreement with respect to S.66/67 of the Workers Compensation Act 1987 with the Registrar within 14 days or the proceedings will be dismissed.
2. An award for the Respondent with respect to the Applicant’s claim for weekly payments of compensation up to 10 June 2005.
3. An award for the Respondent with respect to the Applicant’s claim for medical expenses under s.60 of the Workers Compensation Act 1987 up to 10 June 2005.
4. That the Respondent, Frank Whiddon Masonic Homes NSW, pay the Applicant’s costs as agreed or assessed.”
On 11 November 2005, the parties having failed to agree on the costs payable, Ms Norris’ solicitors filed an ‘Application for Assessment of Costs’ with the Commission in respect of their Bill of Costs dated 10 October 2005. The Respondent filed submissions on 28 November 2005.
The Registrar delegated the Assessment of Costs to a Commission Arbitrator (‘the Delegate’) who made a determination dated 12 April 2006. The ‘Certificate of Determination’ stated as follows:
“1. Pursuant to Consent Orders of 15 June 2005 the Respondent Employer is liable to pay the Applicant’s costs of the proceedings as agreed or assessed.
2. The Applicant’s cost of the proceedings are assessed at $10,240.62.
3. The Applicant’s costs of the assessment are not allowed.
4. The Respondent is to pay the amount of $10,240.62 to the Applicant if those costs have not already been paid.”
The relevant aspects of the Delegate’s ‘Statement of Reasons’ for this decision will be dealt with below.
ON THE PAPERS REVIEW
No submissions have been made by the Appellant on this issue. The Respondent submits that the matter is suitable for a determination ‘on the papers’.
I have before me the Commission files in both the substantive matter and the cost dispute together with the parties’ submissions on appeal.
Having carefully read this material, I am satisfied that I have sufficient information to proceed ‘on the papers’ in accordance with the provisions of section 354 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and Practice Direction No. 1, and that this is the appropriate course in the circumstances.
SUBMISSIONS, DISCUSSION AND FINDINGS
Ms Norris’ solicitors submit that the Delegate made errors of law in his interpretation of clauses 82 and 84 of the Workers Compensation Regulation 2003 (‘the 2003 Regulation’), and in his assessment of costs by reference to the Compensation Costs Table (‘the Table’) set out in Schedule 6 of the 2003 Regulation.
Ms Norris further submits that the Delegate made a determination without access to “the Applicant’s file” and as a consequence, erred in law in failing to address the evidence relevant to his assessment.
I think this is a somewhat speculative assertion by Ms Norris. The Delegate’s determination and reasons therefore was thorough and detailed. He stated “I have considered the Application and all written materials and submissions received” and further noted, at paragraph 7 of his assessment, the background to the proceedings. It seems to me that the Delegate had adequate evidence to support his findings. As he further stated at paragraph 7:
“The fashion of presentation of the costs statement by the Applicant, as to the larger bulk of its descriptive content, is purely generic in format, and much of it not especially applicable to these particular proceedings. There are numerous instances of this and I do not propose to traverse all of them. Illustratively, the proceedings were not declared, in any fashion, context [sic] or at any stage to be complex.”
The following Items have been identified as being in dispute, each of which I will deal with in turn:
Professional Costs
Item 2.04A - $150.00
Item 2.05 - $100.00
Item 2.06 - $500.00
Item 4.03 - $160.00
Item 4.03A - $160.00
Item 4.03B - $112.00
Item 4.04 - $120.00
Item 4.07 - $100.00
Item 4.08 - $500.00 (re 29/04/2004)
Item 4.12 - $190.00 (re 03/05/2004)
Item 10.01 - $187.50
Item 9.01 – Form 15 - $625.00
Item 9.01 – Form 16 - $625.00
Disbursements
Dr Parmegiani - $319.00
Agency Fees - $308.00
Private Investigator’s Report - $2896.19
Ms Norris’ travel expenses - $953.00
Item 2.04A
This is described in Column 2 of the Table as: “Where a claim cannot be brought without a witness statement, preparing witness statements.” The maximum entitlement is $150.00.
The Delegate disallowed this claim stating:
“I do not accept, in the presentation of this matter, any reasonable foundation whatever for, what amounts to effectively, a contended duplicity of activity in obtaining a ‘witness statement’ at 2.04A where the maximum allowance has already been conceded and awarded in this assessment at 2.01 for activity encompassing what is claimed at 2.04A.”
The Respondent disputed the Item claimed on the basis that the only “witness statement” was from Ms Norris such that the claim was encapsulated and already conceded by the Respondent at the maximum under Item 2.01. The Respondent claimed that Ms Norris’ solicitors engaged a private investigator to prepare this statement and it should be disallowed, the activity not in fact having been performed by the Applicant’s solicitors.
The Delegate quoted at length from the decisions of Deputy President Fleming in Berger v Moree Plains Shire Council [2005] NSWWCCPD 152 (‘Berger’) and Nebauer v Hunter Area Health Service [2004] NSWWCCPD 60 noting that it is possible for a worker’s statement to be taken either at the time of taking instructions (for which two hours is the allowed maximum at Item 2.01) or at some later time (Item 2.04A). The activity cannot be claimed twice.
The Delegate went on to note that Ms Norris’ bill, at 2.01, referred to taking instructions for two hours on 25 February 2002. He stated:
“The ‘investigation’ report (which I have closely examined in totality) bears a much later date of 11 June 2003. Its opening line refers to the Applicant’s solicitor’s letter of 4 February 2003, a date nearly one year after the solicitor contends for having taken … instructions from the client on 25 February 2002 …”
Ms Norris submits that the two hours was taken in taking instructions in conference and that after the conference a seven page typed statement was prepared.
I note the Respondent maintains that any such statement by the worker apparently obtained in February 2002 was, “… Never admitted into the proceedings …”. This is correct and in my view reinforces the Delegate’s determination to disallow the Item. . A worker’s statement cannot be claimed under both Item 2.01 and Item 2.04A. As Deputy President Fleming said in McManus v Gosford City Council [2004] NSWWCCPD 61, costs involved in obtaining a worker’s statement are “encapsulated and absorbed by Item 2.01.”
I am of the view that the Delegate’s reasoning process was correct and that it was appropriate for him to disallow this Item.
Item 2.05
This is described in column 2 of the Table as “briefing a factual investigator or other investigator to obtain evidence other than witness statements (not including the investigator’s fee).”
The Delegate disallowed the claim on the basis that the investigator’s report contained little more than a statement from Ms Norris and a number of Items described by the Delegate as “… internal or house keeping-type entries, such as secretarial typing … copying … and the like”. He noted that the investigator’s report referred to the “theoretical” prospect of whether any further statements from other witnesses might be obtained, but there was no evidence that any such statements had in fact been obtained.
This issue was recently dealt with by ADP Handley in Harvey v JJC Group Pty Limited [2006] NSWWCCPD 329 (‘Harvey’) where he stated at paragraph 16 as follows:
“I note that in McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’), at paragraph 21, Deputy President Fleming said:
“Item 2.05 does not encompass briefing a factual investigator to take a statement from a worker/applicant. The costs involved in obtaining a worker’s statement are encapsulated and absorbed by Item 2.01, “Obtaining instructions from client ...”
She confirmed this in Berger v Moree Plains Shire Council [2005] NSWWCCPD 152 (‘Berger’) at paragraph 141:
“Item 2.05 does not permit a claim for briefing a factual investigator to obtain witness statements, which includes a statement from the worker.”
In Moore v PM & JH Turner [2006] NSWWCCPD 110, I disallowed the claim for this Item on the basis that the investigator’s report “… is no more than a ‘statement from the worker’”
However, in the present case, the investigator’s report, whilst primarily involving the taking of a statement from Ms Norris also included obtaining a business name search and a schedule of earnings. As to the latter activity, it does not appear to be included in the investigator’s fee to which I will refer later in my review of the disbursements claimed.
Given the apparent difficulties with the correct identity of the Respondent, I am inclined to the view that in the circumstances of this particular case, there was some merit in briefing a factual investigator such that I would allow the costs claimed in Item 2.05.
Item 2.06
This is described in the Table as “requesting a review of the claim from the insurer, prior to referral of the matter to the Commission”.
Ms Norris’ solicitors claim $500.00 for requesting such a review.
The Delegate disallowed this Item stating as follows:
“This is a curious claim. It seems totally generically put and with no reference whatsoever to these proceedings. It bears a date of 9 October 2003 and then … proceeds with a completely academic submission on the concept of requesting a review from insurer generally. None of it founds any basis whatsoever to support a claim here … The Respondent objects on the basis that Item 2.06 only qualifies if there is in fact a request for a review to the insurer, not for any asserted research. There are no particulars to support this claim. For all of these reasons, it is disallowed”.
I dealt with this issue recently in Wilson v PJ & BM Kennedy [2006] NSWWCCPD 345 (‘Wilson’) where I determined that a letter effectively ‘duly making a claim’ does not constitute a request for a “review” by an insurer prior to referral of the matter to the Commission particularly where no insurer had been identified.
In the present case, Ms Norris has annexed to her appeal application a letter dated 9 October 2003 addressed to “Noel Warren Masonic Homes, Gloster Road, Temora NSW 2666”. The letter is in similar terms to that which I addressed in Wilson. It similarly requests the recipient to provide us with “the name of your Workers Compensation Insurer” and a request for further particulars. The letter goes on to advise the recipient of the obligation under the Workers Compensation Act 1987 (‘the 1987 Act’) to provide information as to the relevant insurer within 21 days.
The appeal application also had annexed to it an apparent response from Allianz dated 21 November 2003 stating: “We refer to your client’s claim for workers compensation benefits …” and thereafter advised of a medical appointment arranged for 9 December 2003.
Again, in my view, this letter could not in any way be regarded as a request for “review” by the insurer, again unidentified at the time of the correspondence. The response by the insurer dated 21 November 2003 did not address liability at all but simply gave details of a medical examination the insurer had arranged for 9 December 2003.
As the Respondent rightly pointed out in its submissions to the Delegate, “the Appellant’s submissions dated 11 November 2005 failed to provide particulars of the actual work performed in this regard.”
Even if I were to now accept the letter of 9 October 2003 as “fresh evidence”, I remain of the view that the Delegate’s determination to disallow the Item was appropriate since nothing in that letter constitutes a “review” within the meaning of Item 2.06.
The claim for this Item was therefore disallowed.
Item 4.03
This is described in the Table as “requesting the Commission to give directions for the production of documents”. $60.00 is allowed for the initial direction, then $40.00 for each additional direction up to $220.00.
Ms Norris claimed the sum of $160.00 for requesting the Commission to issue four Directions. Ms Norris submits that:
“The Respondent had numerous names and entities which existed from 1 July 1992 up until 6 June 2002 … as follows:
1. The Frank Whiddon Masonic Homes Foundation Limited.
2. The Frank Whiddon Nominees Pty Limited.
3. The Frank Whiddon Masonic Homes of NSW.”
Four Respondent’s were named in Ms Norris’ ‘Application to Resolve a Dispute’ filed on 10 December 2003, all, as I said earlier, various ‘guises’ of Frank Whiddon Masonic Homes.
As I said earlier, on 29 April 2004, an Arbitrator determined that the single entity “Frank Whiddon Masonic Homes of NSW” was the correct Respondent. This was confirmed on appeal on 27 September 2004.
A request for directions for production was filed on 10 December 2003. At that stage, it seems to me that it was appropriate for Ms Norris to ensure that directions were served on all parties. In those circumstances, a claim for this Item in the sum of $160.00 ought be allowed.
The Delegate determined that there was only one Respondent and insurer and allowed $100.00 under this Item.
Ms Norris only claims the sum of $160.00 despite having requested the issuing of four directions which would theoretically entitle her to the sum of $180.00, but I do not consider it appropriate on appeal to challenge the amount sought by Ms Norris in her ‘Bill of Costs’.
Items 4.03A and 4.03B
It follows from my determination in relation to Item 4.03 that a further allowance ought to be made. Ms Norris sought the sum of $160.00 for Item 4.03A. The Delegate allowed $80.00 for Item 4.03A. In the circumstances, I would allow the $160.00 sought by Ms Norris.
Ms Norris sought $112.00 pursuant to Item 4.03B in respect of the payment of conduct money to the person served with the direction. An amount of $56.00 was allowed by the Arbitrator representing $28.00 per entity. Again, I would allow the $112.00 sought by Ms Norris for the reasons stated above.
Item 4.04
This Item is described in the Table as: “Lodging an objection to a request for a direction for the production of documents. $60.00 per objection is allowed up to a maximum of $120.00.
Ms Norris claimed $120.00 in respect of Doctors Nichols and Thatcher. The Item was disallowed by the Delegate. He said this:
“The Respondent objects on the basis that the Applicant was requested by letter dated 21 October 2005 to provide particulars of any such ‘objection’. I note that the Applicant has not discharged its onus to satisfy the basis for the Item by any requisite particulars including as to whether, indeed or at all, any such ‘objection’ was made to any subpoena issue (if any). There is no reliable material before this assessment to establish the activity occurred, and further, to enable the assessment to consider whether any such occurrence was reasonable in the circumstances. Disallowed.”
In her ‘Bill of Costs’, Ms Norris simply stated this:
“Lodging objection to subpoena.
·Dr Nichols
·Dr Thatcher”.
In submissions on appeal, Ms Norris maintains that a claim of legal professional privilege was made over some documents produced by Doctors Nichols and Thatcher. In support of that assertion, Ms Norris has attached a copy of a letter from St George Registration Investigation Services Pty Limited (‘St George’) which reported to Ms Norris’ solicitor that privilege was claimed over a number of Items following access and inspection of the documents referred to.
The Respondent submits that:
“The Appellant did not provide copies of the correspondence, which amounts to fresh evidence, now referred to in her initial application for costs and should be disentitled for relying on same as it was available at the time of the assessment.”
There is some merit in this submission. In her supplementary submissions filed on 19 June 2006 Ms Norris submits that the Delegate’s decision “… not to refer to the workers compensation file amounted to a Legal Error …”
In my view, where the parties are unable to reach agreement on costs, and a costs assessment is sought, it is encumbant upon the worker to properly substantiate any claim.
The Respondent wrote to Ms Norris’ solicitors on 21 October 2005 acknowledging receipt of the Bill of Costs and disbursements dated 10 October 2005. Payment was recommended “subject to the following amendments …” The Respondent then sought amendments in respect of a number of Items. In respect of Item 4.04 the Respondent said this: “Please provide us with copies of the Objection filed by you in respect of the Directions on Dr Nichols and Dr Thatcher.” This, the Respondent maintains, did not occur.
In all the circumstances, I am not satisfied that Ms Norris adequately satisfied the basis for claiming the Item. There is no explanation as to why what the Respondent describes as “fresh evidence” being the letter from St George dated 2 May 2004 should now be admitted. Deputy President Fleming in Department of Corrective Services v Evans [2005] NSWWCCPD 58 considered whether a party on appeal should be allowed to raise issues not argued before the Arbitrator and held that in only the most exceptional circumstances can a party raise on appeal an issue not argued before the Arbitrator.
I am inclined to think that the same principle ought apply here. Ms Norris ought to have been aware of her obligation, on an assessment of costs, to justify the Items claimed. This was simply not done.
Item 4.07
This Item is described in the Table as:
“Applying to refer a matter to an ‘approved medical specialist’ or responding to such an application (including costs associated with agreeing on the improved medical specialist and review of the report by the approved medical specialist).”
An amount of $100.00 is allowed for this activity.
Ms Norris claimed the sum of $100.00. It was disallowed by the Delegate on the basis that the referral was made during a Teleconference on 29 April 2004 and could not properly be described as an ‘Application’ to refer the matter. The Delegate said:
“An AMS that is a consequence (amongst other matters) of the dynamics of the Teleconference does not properly comprise any form of separate ‘application’, as a discreet or separate activity, to justify such a claim (Ellis v Inghams Enterprises Pty Limited [2004] NSWWCCC 6187. Disallowed.”
The Respondent has referred to a number of authorities which demonstrate that Item 4.07 is not claimable where referral occurred at a Teleconference including the decision referred to by the Delegate and Berger to which I have referred previously.
The Delegate’s decision is in line with these decisions and I can see no error by him in this regard.
Item 4.08
Item 4.08 is described in the Table as: “Preparing for a conference (including providing advice to client).” Ms Norris’ solicitors claimed $500.00 in respect of the conference on 8 April 2004 and a further $500.00 for a conference on 29 April 2004. The Delegate allowed $550.00 (pursuant to the amending regulation) in respect to the conference on 8 April 2004. The claim for a conference on 29 April 2004 was disallowed by the Delegate since the maximum had been allowed for the conference on 8 April 2004.
This Item was also considered in some detail by ADP Handley in Harvey where he said:
“In Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28 (‘Orr’), Deputy President Fleming discussed the application of column 4 of the Table in Schedule 6. Column 4 bears the heading “Maximum total for type of activity/event”. With reference to clause 1(2) of Schedule 6, the heading for column 4, and the NSW Court of Appeal decision in Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282 (‘Fuentes’), the Deputy President said, at paragraph 38:
“The monetary values set out in Column 4 of the Table, are the maximum total for an event type in any particular claim, regardless of the number of individual activities that may take place under the event heading.”
Thus, in respect of Items 4.08, the legal practitioner may not be allowed more than the column 4 maximum regardless of the number activities/events of that type. (However, as Deputy President Fleming recognised in McManus, there is an exception in respect of Item 4.12 where, following Fuentes, the column 4 maximum of $190 may be allowed in respect of each conference or conciliation/arbitration.)”
In these circumstances, Ms Norris’ claim for $1000.00 is disallowed, and the Delegate’s decision confirmed.
Item 4.12
This Item is described in the Table as: “Reporting to the client on the outcome of a conference or arbitration …” The maximum total at the relevant time for this activity was $190.00. As ADP Handley noted in Harvey:
“… 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.”
The Delegate allowed $190.00 for reporting to the client apparently on 15 April 2004 following the conference on 8 April 2004. Ms Norris’ solicitors claimed an additional $190.00 for reporting to the client on 3 May 2004 following a conference on 29 April 2004.
Notes in the substantive file seem to confirm that a Teleconference took place on Thursday 29 April 2004 which was described in correspondence from the Commission as a second Teleconference. It appears that at a Teleconference on 8 April 2004 the Arbitrator noted: “This matter has been adjourned for further telephone conference on 29 April …”.
It is not clear from the substantive file just what occurred on both 8 April and 29 April 2004. If an ‘adjournment’ occurred, it seems to me that the Item should only be allowed once. Having made an allowance following the conference on 8 April 2004, I disallow any subsequent claim.
Item 10.01
This Item is described in the Table as: “All work associated with instructing an agent to act on the claim or a matter relating to the claim.”
In her ‘Bill of Costs’, Ms Norris claimed this Item simply stating: “All work associated with instructing an agent to act on re: claim.” No further particulars were provided.
The Delegate disallowed the claim stating as follows:
“These agency fees appear singularly to relate to the filing and photocopying attendances (St George) also under reference 10.01 within the disbursements. This is not agency activity qualifying within clause 9 of the (Workers Compensation Regulation 2003) under Schedule 6, nor agency representation within s.356(6) of the 1998 Act. Further, the reviewing of documentation has already been allowed at Item 4.05 including the Table’s maximum and conceded by the Respondent. It is impermissible to claim for the same activity twice (Dunn v Port Macquarie RSL Club Limited [2004] NSWWCCPD 33). Disallowed.”
I considered this issue in Wilson in the context of agency fees claimed in this matter. In that case, the Delegate disallowed the agency fees but allowed a claim under Item 10.01 in the sum of $187.50 stating that: “It was reasonable and fair for the agent to be instructed to inspect the documents”.
In that case, as in this, the maximum had been claimed and allowed under Item 4.05 for reviewing documents produced under directions.
In Dunn v Port Macquarie RSL Club Limited [2004] NSWWCCPD 33 Deputy President Fleming stated (paragraph 41):
“To allow the Appellant in this matter to claim Item 4.05 twice, in relation to the work of a legal representative and of an agent, would amount to exceeding the maximum allowable, and the Items allowable, under the Regulation. This would be an error.”
This was confirmed by Deputy President Fleming in McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’) where she again disallowed a claim for instructing an agent under Item 10.01.
In the present case, I note that Ms Norris resides in Cootamundra and her solicitor in Young. Documents were produced to the Commission in Sydney.
I accept Ms Norris’ solicitor’s submission that, since instructions and “legal services” were provided in Young, and the documents produced to the Commission in Sydney, the Delegate’s allowance under Item 10.01 is appropriate. Whilst it can certainly be argued that this activity is “encapsulated” in Item 4.05, the “review” of documentation referred to in that Item, and indeed the exchange of information and obtaining further instructions also referred to in that Item, is the ultimate responsibility of a solicitor with conduct of the matter.
In my view, the purpose of Item 10.01 is to provide assistance to litigants and their legal representatives who are located outside of the Sydney area.
Accordingly, in the circumstances of this case, I would allow the sum of $187.50 in Item 10.01.
Disbursements
A. Dr Parmegiani
Ms Norris claimed the sum of $1320.00 ($1200.00 plus GST) in respect of a medical report prepared by Dr Parmegiani, psychiatrist. The Delegate disallowed that amount and determined that $910.00 plus GST was the appropriate amount by reference to the Schedule of Rates for Independent Medical Examination.
On appeal, Ms Norris submits that Dr Parmegiani’s fee, since he is a “consultant and forensic psychiatrist” should be allowed under the Schedule 3 Rates for ‘Approved Medical Specialist’ in the sum of $1550.00.
Costs of medical examinations are covered by the Workplace Injury Management and Workers Compensation (Medical Examinations and Reports) Order 2005. (‘the Order’). The Order commenced on 16 March 2005. In this case, the report of Dr Parmegiani was prepared on 1 October 2003, prior to the commencement of the Order.
Thus in this case, there is no order applicable, such that I am required to determine what is a “fair and reasonable” amount.
In all the circumstances, I consider that Dr Parmegiani’s fee ought be allowed. It effectively ‘falls between’ the rate allowed by the Delegate and the amount sought on appeal such that I consider it a fair and reasonable amount.
B. Agency Fees
Ms Norris’ solicitors claimed $44.00 for filing fees charged by St George and an additional $264.00 for “inspection and photocopying” by that organisation.
As I said earlier, Item 4.05 of the Table provides for the reviewing of documentation produced under direction. Ms Norris’ solicitors claimed the maximum amount under this Item which was allowed. I have also allowed a claim under Item 10.01 in the sum of $187.50.
The Delegate disallowed the claim. In my view, his decision is correct in line with a number of authorities to which I have referred previously.
C. The Private Investigator’s Report
Ms Norris’ solicitors claimed $2896.19 in respect of St George’s fees for preparing a “factual and liability summary report”. Those costs were itemised as follows:
Factual and Liability Summary Report $2175.80 (incl GST)
Lawpoint Search $ 60.39
Miscellaneous Fees $110.00 (incl GST)
Barrister’s fees $ 550.00 (incl GST)
The Delegate disallowed the whole of this claim and gave lengthy reasons in respect of his determination. I do not propose to repeat these in full, however, pertinent remarks are as follows:
“The Respondent objects essentially on the basis that any such ‘investigation’ was not reasonable nor necessary where liability was not disputed, no investigations to this extent were required, that the amount claimed in any event is not reasonable, that miscellaneous expenses are not allowable under the Table in any event …”
The Delegate went on to note that an investigator’s report is not regulated by Part 19 of the Regulations and its allowance is a discretionary matter in the circumstances of each individual case. He noted that any such report must be considered by reference to Schedule 3 Part 1, Item 10 “disbursements” under the Legal Profession Regulation 2005. He then stated:
“This applies a test of whether the disbursement was ‘reasonably incurred or was reasonable in amount’. Further, any determination of any amount must represent ‘fair and reasonable’ value for the service provided (Berger). The Applicant has been afforded … a number of Table activity Items including at Table maximums … The submissions of the Respondent, to a large extent, are accurate, including as to liability not being essentially in dispute and as to, putting it broadly, the unreasonableness of the intrusion of an ‘investigation’ into this matter in its circumstances. I am not satisfied that the engagement or activity of an ‘investigator’ was reasonably incurred or undertaken in this matter and the disbursement is accordingly disallowed.”
The Memorandum of Costs and Disbursements from St George dated 16 July 2003 is essentially in respect of obtaining a statement from Ms Norris which formed the basis of the claimed “Factual and Liability Summary Report”. As the Delegate rightly pointed out, many of the Items claimed, for example barrister’s fees, are not allowable Items. As I said earlier, the factual report did contain a Wage Schedule which disclosed no apparent wage loss until a period commencing 1 July 2001. A loss was then assessed at $37.12 per week but thereafter was unable to be completed since, as was stated: “It will depend on the gross wages paid to the Claimant from 1 July 2002 to date to determine whether there is an ongoing wage loss.”
Curiously, there is no claim in the memorandum from St George dated 16 July 2003 for preparation of a Wage Schedule. There is only a claim for “letter to client re tax returns”.
Ultimately, the only issue really in dispute between the parties appeared to be in relation to a claim for non-economic loss compensation. It is noted that there was an award in favour of the Respondent in respect of any claim for wage loss up until June 2005.
In all the circumstances, I am not persuaded that the activities carried out by St George were “fair and reasonable”. However, I am mindful of the somewhat complex structure of the Respondent and the requirement to name four Respondents in the initial proceedings before a determination was made on this issue in 2004. I am therefore satisfied that it was appropriate for a Lawpoint search to be obtained, and I would allow the sum of $60.39 for that activity.
Accordingly, the decision of Delegate is confirmed save for the sum of $60.39.
D. Travel and Related Expenses
Ms Norris claimed for her travel and associated expenses a total of $1,877.00. In brief, that sum included travel to medical examinations, accommodation, sustenance and loss of wages.
The Delegate allowed the sum of $924.00 noting that the Respondent had requested particulars of the claims made for sustenance, loss of wages and accommodation which had not been provided by Ms Norris. The Delegate allowed each of the travel expenses claimed and disallowed all claims for sustenance, accommodation and loss of wages on all three occasions.
In her submissions on appeal, Ms Norris quoted from a decision of an Arbitrator in Peter Dellar v Jim Morrissey Bricklaying Pty Limited, costs matter No. 11027-05 (‘Dellar’) where again a claim was apparently made for $75.00 for “sustenance”. The Respondent in Dellar submitted that the sum of $50.00 should be allowed and the Arbitrator apparently stated:
“True it is that no details of the claim are provided, but I note that he was required to travel to Sydney and return to Toorumbee Creek. In my view, the Respondent’s approach in this day and age is unduly curmudgeonly. I allow the claim.”
I have not had access to that particular decision but in principle, I agree with the Arbitrator’s view. Ms Norris was required to travel from Temora to Sydney, a distance of 900 kilometres return. I do not consider it reasonable for a worker to be required to itemise every snack, drink or meal consumed given the length of the trip.
Accordingly, I would allow the claim for $75.00 for sustenance in respect of each trip (3).
As to the claims for accommodation and loss of wages, I consider that it is reasonable for the Respondent to require substantiation. In its letter to Ms Norris’ solicitors dated 21 October 2005, accounts were sought in relation to those expenses but not provided. I think it is inappropriate for Ms Norris’ solicitor to submit that:
“… It would have been far easier for the Respondent’s solicitor to check with the Respondent whether the Applicant was at work on [the relevant dates] … and whether she lost income as a result of attending the medical examinations.”
It seems to me an equally easy task for Ms Norris’ solicitor to make the same enquiry of her.
In the circumstances, I uphold the Delegate’s decision to disallow the claims for accommodation and loss of wages.
Costs in Preparing the Application for Assessment of Costs.
The Delegate disallowed any costs of the assessment “in the circumstances of this matter”. I have previously referred to his comments to the effect that much of the material contained in the Bill of Costs was “… purely generic in format, and much of it not especially applicable to these particular proceedings.”
Ms Norris’ solicitor sought costs pursuant to Item 9.01 of preparing the assessment of costs in the sum of $625.00.
In submissions before the Delegate, the Respondent argued that no costs should be allowed since Ms Norris was “unwilling to negotiate in order to reach an agreement regarding … costs and disbursements” and that “there was never a genuine dispute over costs, the Applicant applied for assessment prior to reaching such a stage.” The Respondent further submitted that “the Applicant’s application caused delay in reaching an agreement” and that “the submissions prepared by the Applicant appear to be generic submissions with little or no relevance at some points to the law as it stands and its application to the circumstances in question.”
Similar submissions are made by the Respondent on appeal, noting that the Respondent incurred significant time considering both the submissions before the Delegate and preparing a Notice of Opposition to the appeal.
I note that the Respondent wrote to Ms Norris’ solicitors on 21 October 2005 in the following terms: “We refer to your assessment of costs and disbursements dated 10 October 2005. We are prepared to recommend payment subject to the following amendments …” Thereafter the Respondent set out Items that it disputed, Items in which it was prepared to pay a lesser amount with particulars as to the basis upon which that reduction was made and requests for accounts etc in relation to travel expenses.
Ms Norris’ solicitors did not respond to that letter and simply filed an Application for Assessment of Costs.
I consider that there is merit in many of the submissions made by the Respondent. In its submissions on appeal, Ms Norris claims that:
“… The offer by the Respondent on 21 October 2005 would have to be constituted as nil because it was made on a ‘we are prepared to recommend payment’ basis and therefore the Applicant significantly beat the Respondent’s offer of nil.”
It is on this basis that Ms Norris submits that she is entitled to costs of the assessment.
I disagree. It seems to me that many of the Items apparently in dispute could have been resolved by negotiation with the Respondent. Moreover, it is quite clear from the 36 page Bill of Costs submitted by Ms Norris that many of her submissions are indeed “generic” and bore little relation to the particular circumstances of her claim.
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.
Thus costs are at the discretion of the Commission. As Deputy President Fleming said in McManus at paragraph 20:
“Only where the discretion can be said to have miscarried because it was 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 …”
I am not satisfied that Ms Norris has demonstrated any instance in which the Delegate could be said to be have exercised his discretion unfairly or unlawfully such that his determination on this issue is confirmed.
SUMMARY
The Delegate’s determination is amended in accordance with my reasons stated above. The following amounts are allowed:
Item 2.05 $100.00
Item 4.03 $60.00 (in addition to the $100.00 allowed by the Delegate)
Item 4.03A $80.00 (in addition to the $80.00 allowed by the Delegate)
Item 4.03B $56.00 (in addition to the $56.00 allowed by the Delegate)
Item 10.01 $187.50.
Total allowed: $483.50
Additional professional costs of $531.85 inclusive of GST is allowed.
As to the disbursements, the Delegate’s disallowance of agency fees and the bulk of the private investigator’s report is confirmed, but the following amounts are allowed:
Dr Parmegiani $319.00 (incl GST)
Lawpoint search $60.39
Ms Norris’ travel costs $225.00
Additional disbursements of $604.39 are allowed.
Total additional professional costs ($531.85) and disbursements ($604.39) total ($1,136.24).
The Delegate’s determination of $10,240.62 should, therefore, be increased by $1,136.24 to $11,376.86.
DECISION
The Registrar’s determination of Ms Norris’ claim for costs in this matter, dated 12 April 2006 is amended in accordance with these reasons.
COSTS
Ms Norris’ solicitors have been partly successful in this appeal although it must be said in a limited way. In my view, it is reasonable to order that the Respondent pay Ms Norris’ costs in the appeal in the sum of $275.00 inclusive of GST.
The appropriate order therefore is: “The Respondent, Frank Whiddon Masonic Homes of NSW, is to pay the Appellant, Ms Norris, $275.00 inclusive of GST in respect of his costs in this appeal.”
Deborah Moore
Acting Deputy President
20 December 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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