Nott v Fletcher International Exports Pty Limited - [2007] NSWWCCPD 20

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Nott v Fletcher International Exports Pty Limited [2007] NSWWCCPD 20
APPELLANT:  Matthew Nott
RESPONDENT:  Fletcher International Exports Pty Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC9287-05
DATE OF REGISTRAR’S DECISION:             21 September 2005
DATE OF APPEAL DECISION:  23 January 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs: Items 2.04, 2.06, 4.08, 4.09 to 4.11, 4.12, 10.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003; clause 5 of Schedule 6; disbursements: medical reports, agency fees, travel costs, investigator’s reports
No order as to costs of the appeal.

PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondent:   Sparke Helmore Lawyers

ORDERS MADE ON APPEAL: Paragraphs 2 and 4 of the Registrar’s decision dated 21 September 2005 are revoked and the following decision is made in their place:
“2.The Applicant’s costs of the substantive proceedings are assessed in the sum of $9,042.10.
4.The Respondent is therefore to pay to the Applicant a total amount of $9,042.10 to the extent that those costs have not already been paid.”

No order as to costs of the appeal.

BACKGROUND

On 19 October 2005 Matthew Nott (‘the worker’) filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator.
The respondent to the Appeal is Fletchers International Pty Limited (‘the employer’).
The Registrar’s decision (by her delegate, a Commission Arbitrator) made on 21 September 2005, is as follows:
“1.Pursuant to an order for costs, the Respondent is liable to pay the Applicant’s costs as agreed or assessed..
2.The Applicant’s costs of the substantive proceedings are assessed in the sum of $8,217.10.
3.No order as to the costs of the assessment.
4.The Respondent is, therefore, to pay to the Applicant a total amount of $8,217.10 to the extent that those costs have not already been paid.”
The worker was employed as a labourer and received injury to his right hand on 21 August 1999 as well as suffering low back pain on 20 January 2000. He also claimed to have suffered injuries by reason of the nature and conditions of his employment, namely repetitive bending and lifting of heavy weights. The employer had workers compensation insurance with CGU Workers Compensation (NSW) Limited (‘CGU’) up to September or October 1999 and then became self-insured.
Dr W.G.E. Patrick, surgeon, saw the worker at the request of his solicitors on 26 November 2003 and his report is dated 1 March 2004. In that report Dr Patrick made an assessment as to loss of use of the worker’s right hand, right arm, right leg, left leg, back, neck and sexual organs.
The worker’s solicitor wrote to CGU on 23 March 2004 enclosing a draft Application to Resolve a Dispute dated 8 March 2004 and making an offer of settlement in relation to the lump sum compensation. In that letter a request was made that the insurer review the claim prior to the referral to the Commission. A similar letter was sent by the worker’s solicitor on 9 July 2004.
On 10 September 2004 an ‘Application to Resolve a Dispute’ was registered in the Commission. A teleconference was held on 13 January 2005 and a conciliation/arbitration hearing at Dubbo on 24 February 2005. During the conciliation phase agreement was reached between the parties and the Arbitrator to whom the matter had been allocated recorded that agreement. The Arbitrator noted that a common law settlement had been agreed in the sum of $10,000.00, otherwise there were to be awards for the employer in respect of injuries after 31 August 1999. It was noted that the parties had resolved their dispute concerning the lump sum compensation claim and would file an agreement pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’). The Arbitrator noted that CGU would pay the worker’s costs as agreed or assessed. The parties were unable to agree on these costs and, accordingly, an Application for Assessment of Costs was lodged with the Commission on 16 June 2005. Submissions were made by CGU in relation this on 26 July 2005 and the worker’s solicitor made submissions which were dated 23 August 2005.
As I have earlier indicated, the delegate assessed the costs on 21 September 2005. It is against this determination of costs that the worker’s solicitor now appeals by Appeal from Registrar’s Determination on Costs lodged on 19 October 2005.

ON THE PAPERS

No submissions have been made on behalf of the worker as to this. The employer 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 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 that this is the appropriate course in the circumstances.

PRELIMINARY

Clause 119 (1) of the Workers Compensation Regulation 2003 (‘the WC Regulation 2003’) is as follows:
“ 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.”(emphasis added)
In Berger v Moree Plains Shire Council [2004] NSWWCCPD 152 (‘Berger’) Deputy President Fleming said the following at [136] in relation to costs:
“The determination of these questions by a costs assessor, is a matter of discretion and, as I said in Nebauer v Hunter Area Health Service [2004] NSW WCC PD 60 (at para 19):
‘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 (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) ‘”

SUBMISSIONS AND DISCUSSION

The worker’s solicitor submits that the delegate, made an error of law in respect of the following items, namely: 2.04, 2.06, 4.08, 4.09 to 4.11, 4.12 ,10.01 of the Compensation Costs Table, clause 5 Schedule 6 of the WC Regulation 2003 and the following disbursements, namely:
·           applicant’s medical reports;
·           agency fees;
·           travel costs –lawyers;
·           investigator’s report.
I will take these in order with the worker’s submissions in relation to each item first and then the submissions on behalf of the employer. I will then state my conclusion on each of these.
The worker’s solicitor refers to a number of cases relating to what is and what is not an error of law in a general sense. Some cases cited deal with the failure to take into account written submissions made by or on behalf of a party. There are also references to other cases however their relevance to the decisions made by the delegate is obscure.

Item 2.04

This item relates to obtaining and reviewing medical reports other than where item 1.01 applies. The scale prescribed is $150.00 per report for the first two medical reports, $100.00 per report for subsequent medical reports, and $75.00 per report for a supplementary report. The worker’s solicitor claimed $575.00 and the costs assessor allowed $500.00. The difference between what the Arbitrator allowed and the claim made is in respect of Dr Patrick’s report of 31 January 2005. Item 2.04 appears in Part 2A of the table to Schedule 6 of the Workers Compensation Regulation 2003. It is headed “Certain events or activities on behalf of claimant until dispute referred or orders sought”. In Berger Deputy President Fleming said this:
“95.It appears that there has been some ambiguity in this matter in relation to the maximum amount claimed under item 1.01 and 2.04 for ‘obtaining and reviewing medical reports’. Item 1.01 may only be claimed for this activity where it occurs prior to ‘Making claim for permanent impairment compensation or pain and suffering compensation’. Item 1.01 reports must also be in relation to a claim for permanent impairment and lump sum compensation, not in relation to a claim for some other entitlement, for example, weekly benefits compensation.
96.In relation to claims for permanent impairment compensation, Item 2.04 may only be claimed for this activity when it occurs following the making of a claim and prior to referring a dispute to the Commission. Item 2.04 also applies to medical reports not subject to a fee pursuant to item 1.01. In other words, it is not permissible to claim costs under item 1.01 and 2.04 for ‘obtaining and reviewing’ the same medical reports.” (emphasis added)
The delegate said this: “The Respondent concedes the first report of Dr Patrick, but disputes the second as it was obtained after the commencement of proceedings. I agree with the Respondent’s submission.”
I am not persuaded that the delegate, erred as a matter of law in relation this item

Item 2.06

This item relates to requesting a review of the claim from the insurer, prior to referral of the matter to the Commission. The rate is $250.00 per hour with a maximum of $500.00. As I have earlier indicated, there were two requests to review made as a matter of course when forwarding draft Applications to Resolve a Dispute. The worker’s solicitor claimed $500.00 in relation to this item and the delegate allowed nothing. The delegate found that the letter of 9 July 2004 did not satisfy the requirements of Item 2.06. The employer submitted that the correspondence relied on was clearly making a claim for compensation, being the first notice of such a claim. It is submitted that it was unreasonable to request the employer to review a claim for permanent impairment and/or pain and suffering without first making a claim and allowing a reasonable amount of time to pass before requesting a review of that claim. The employer submits that the delegate was correct in allowing a nil amount as the correspondence relied on by the worker’s solicitor did not satisfy the requirements of item 2.06 and there was no request for a review made or implied. I am not persuaded that the delegate erred as a matter of law in relation to this item.

Item 4.08

This item is in relation to preparing for a conference (including providing advice to client). The prescribed rate is $250.00 an hour with a maximum of $500.00. The worker’s solicitor claimed $1,000.00 being the costs of preparing for the conference of 13 January 2005 and also the conciliation/arbitration of 24 February 2005. It was said by the worker’s solicitor that each conference may attract the allowance of the maximum amount specified, namely $500.00 and reliance was placed on what was said by Ipp JA in Orellana-Fuentes v Standard Knitting Mill Pty Limited & Anor [2003] NSWCA 146 (‘Fuentes’). The delegate agreed with the employer’s submission that the maximum amount under this item is $500.00 irrespective of the number of conferences. Accordingly, the claim was reduced to $500.00 I again gratefully adopt what was said by the Deputy President in Berger, at [110]:

“110. In any event the Compensation Costs Table does not permit an item to be claimed more than once for a particular activity/event or for a sum greater than the maximum for that activity/event to be awarded. Schedule 6 of the WC Regulation sets out the maximum costs that may be recovered in a compensation matter brought under the 1987 Act and the 1998 Act). The Compensation Costs Table divides the dispute resolution process in the Commission into stages and then into discrete events or activities. This allows for costs to be claimed in relation to events as the matter progresses through the Commission’s processes. Clause 1(2) of Schedule 6 provides, inter alia, that ‘t]he maximum costs for an activity or event described in a Part of the table and carried out in or in relation to a claim made or to be made in respect of a particular injury are as’ set out in subclauses (2)(a)– (i), which follow.
111. It is not intended that the ‘maximum total for type of activity/event’ in `Column 4 of the Compensation Costs Table be exceeded for the Items set out in Column 1. As I stated in Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCC PD 28:
‘All individual “activities or events”, described in column 2 of the Table, that come under the event/activity, described in column 3 of the Table, must not exceed the maximum total for the “ type”, as prescribed in column 4 of the Table, not merely the totals for the individual “events”, as the Appellant suggests. The words of sub-clause 1(2) are critical, “the maximum costs for an activity or event described in a Part of the Table and carried out in or in relation to a claim made or to be made in respect of a particular injury”. Maximum costs attach to the event /activity in the Table for a “claim” made in respect of a particular injury, not, as the Appellant suggests, for each time the event or activity is claimed’.”

I do not find that the Registrar erred in allowing $500.00 under this item. Were it possible to claim for more than the maximum prescribed in column 4 of the Table, which I doubt, then in my view no greater allowance would be warranted in the circumstances of the case. I note that the dates of the teleconference and the conciliation arbitration were close to one another and I am of the view that preparation done prior to the first would not except to a very small extent need to be repeated for the second.

Items 4.09 to 4.11

The amount claimed by the worker’s solicitor was $1,687.50 while the delegate allowed the sum of $1,000.00. On the appeal in relation to this matter, the sum of $1,437.50 is claimed as follows:
Item 4.09$ 187.50
Item 4.10$1,000.00
Item 4.11$ 250.00
In relation to this the delegate said this: “I agree with the respondent that neither Item 4.10 or 4.11 applies. The matter was not determined to be complex and was resolved at the conciliation conference before any arbitration. The claim falls under Item 4.09 and is to be determined according to the time involved, up to a maximum of $1,000.00. The respondent concedes $1,000.00. I therefore reduce the claim to $1,000.00.” The worker’s solicitor submits that the worker is entitled to $250.00 per hour up to a maximum of $1,000.00 for participating in a conference. Reliance is again placed on what was said in the Court of Appeal in Fuentes in relation to Item 4.12 which was concerned with reporting to a client on the outcome of both a conference and arbitration. It was submitted that a country solicitor has to travel a substantial distance to attend a conciliation/arbitration and is therefore entitled to the full amount of costs allowed in Item 4.09 and 4.11. The solicitor was said to be away from his office for twelve hours and the barrister away from his chambers for fourteen hours. However, the worker was only entitled to a maximum amount under Items 4.09 and 4.11. It is said that the worker’s solicitor is entitled under Items 4.09 and 4.11 to the sum of $1,250.00 in respect of the conciliation and arbitration hearing on 24 February 2005 in addition to $187.50 in relation to the telephone conference of 13 January 2005. The employer submits that there is no entitlement to costs under Item 4.11 as it relates to attending and participating at an arbitration hearing. The matter did not proceed to arbitration. I agree that the maximum amount recoverable in relation to attending and participating in a conference is $1,000.00 which has been allowed by the delegate. I also agree that Item 4.11 has no application. The delegate did not err in my view in relation to this.

Item 4.12

This item is in relation to “reporting to the client on the outcome of a conference or arbitration hearing …”. The maximum amount for the activity is $190.00 and the maximum total is also $190.00. The worker submits that the delegate failed to apply the correct interpretation of the Court of Appeal in Fuentes. In relation to this, the delegate held as follows:
“The applicant claimed $380.00 in respect of two reports. I disallowed the second claim on the basis that the second report is only available if the matter proceeds to arbitration: I rely on Fuentes v Standard Knitting Mills Pty Limited & Anor [2003] NSWCA 146.”
The employer submits that the second amount is only liable if the matter proceeds to arbitration which did not happen in this case and it relies upon Fuentes also.
There was no arbitration and in my opinion the delegate was correct in allowing only the sum of $190.00 in relation to this item. Although initially the sum of $380.00 had been claimed in relation to this item, upon appeal, the claim made was for $570.00 in relation to three reports.

Item 10.01

This item relates to “all work associated with instructing agent to act on the claim or a matter relating to the claim”. The delegate disallowed this item and the related disbursement. In relation to this, the worker’s solicitor says that the delegate failed to refer to submissions contained in the letter of 23 August 2005. The delegate said the following:
“The Applicant claimed $187.50 under this item for instructing agent to file documents at the Commission. He also claimed $110.00 for agent’s fees. The Respondent objected, submitting that documents can be filed at the Commission by mail. I agree, and in any event the activity of filing was covered by item 4.01 for which the Applicant has recovered the maximum.”
The letter of 23 August 2005 to which the worker’s solicitor refers makes a submission based, in part, upon the decision of another costs assessor in the matter of Hemphill v Agriculture Limited where it appears the costs of instructing agent to file documents was allowed. I have taken account of that submission and am not satisfied that the delegate erred as to a matter of law in deciding as he did.

Clause 5 Schedule 6

That clause is as follows:
“If more than one insurer (or any combination of insurers) is a party to a claim or a dispute or other matter in relation to a claim, the maximum costs in respect of the matter are the total of the following:
(a) the costs for the matter calculated in accordance with the table,
(b) 50% of that amount per party (other than the party who made the claim),
and the payment of the costs is to be shared equally among the insurers who are parties to the matter.” (emphasis added)
The worker’s solicitor claimed 50% additional costs. In relation to this the Arbitrator said the following:
“35.     The Respondent objected, relying on Dunn v Port Macquarie RSL Club Ltd [2004] NSWWCCPD 33. The decision in Dunn makes it clear that clause 5 of Schedule 6 is a mechanism for increasing the maximum total of an Applicant’s costs as calculated under the Table, in cases where there is more than one insurer. The multiplier merely serves to establish the ceiling for costs. An Applicant is still required to establish that additional costs have been incurred, and if so what the additional work was. Having established what the additional work was, the next step is to determine a fair and reasonable amount of that additional work, to be paid in addition to the costs calculated in accordance with the Table.
36.     The evidence as to precisely what additional work was occasioned by the involvement of the additional insurers was not very specific. It was of a general generic nature.
37.     The Respondent conceded $1,000.00 or four hours for any additional work occasioned. This is more than I would have allowed.
38. Accordingly I determined an additional cost to be allowed by reason of clause 5 of Schedule 6 at $1,000.00.”

The worker’s solicitor points out that in this case there were said to be two insurers. In fact there was one insurer, and the employer had become self-insured at some stage. It is submitted that the worker’s solicitors should be allowed the full increase in costs of 50% except where it is demonstrated that that percentage should be reduced. This is, I think, contrary to what was decided in Dunn which has been followed in other cases and with which I agree.
The employer points out that the expression used in clause 5 of Schedule 6 is that the maximum amount allowable is 50% for the additional work incurred when there is more than one insurer. The claim is said to be unsubstantiated. I am not prepared to hold that the Arbitrator erred as a matter of law in allowing only an increase in costs of $1,000.00 or that there is any prima facie entitlement to 50% additional costs as is asserted.

DISBURSEMENTS

Medical Reports

A claim was made in the sum of $1,210.00. This was made up as follows:
Central Medical Practice $55.00
Dr Patrick 1.03.2004 $880.00
31.01.2005$275.00
This was disputed by the employer on the basis that the report of 31 January 2005 was not admitted in the proceedings. The delegate relied on clause 45 of the WC Regulation 2003 and held that no fees are allowable unless the reports are Claims Management Phase Reports. The delegate reduced the claim to $55.00.
It is submitted on behalf of the worker that Dr Patrick’s report of 1 March 2004 was annexed to the Application to Resolve a Dispute and his report of 31 January 2005 was annexed to an Application to Admit Late Documents dated 3 February 2005.
Clause 45 of the WC Regulation 2003 is in the following terms:
“(1)A party to proceedings on a claim is not entitled to be paid for or recover the cost of a medical report in connection with the claim unless:
(a)the report has been admitted into those proceedings on behalf of the party, or
(b)the report has been disclosed to an approved medical specialist.
(2)A party to a claim when no proceedings have been taken is not entitled to be paid for or recover the cost of a medical report in connection with the claim unless the report has been served on another party, and:
(a)the report would be admissible in proceedings on behalf of the party, or
(b)the report could be disclosed to an approved medical specialist.
(3)In this clause:
(a)a reference to a claim is a reference to initial notification of injury (as defined in Part 3 of Chapter 7 of the 1998 Act), and
(b)a reference to proceedings on a claim includes a reference to proceedings in respect of the payment of provisional weekly payments of compensation under the 1998 Act.
(4)In this clause: approved medical specialist has the same meaning as in section 319 of the 1998 Act.”
It is clear from these submissions originally made by the employer to the delegate that the report of Dr Patrick of 31 January 2005 was the only one to which objection was taken. The delegate has, it appears, misunderstood the employer’s submission. In respect of the report of 1 March 2004 the employer conceded this but only in accordance with the Workplace Injury Management & Workers Compensation (Medical Examinations and Reports) Order 2003 in the sum of $750.00. To that sum is to be added the appropriate amount in respect of GST making a total of $825.00, since the fees set by the Order are exclusive of GST.
The first of Dr Patrick’s reports was attached to the Application to Resolve a Dispute. The second report, however, dated 31 January 2005, was attached to an Application to Admit Late Documents dated 3 February 2005. In that later report Dr Patrick stated that he had perused X-rays and CT scan of the lumbar spine dated 10 December 2003. He expressed the opinion that there was an error in the radiologist’s report. This relates to whether the bulge noted on the CT scan was to the right or the left. There was reference to both at various parts of the radiologist’s report. When Dr Patrick saw the worker on 26 November 2003 he said there was no clinical evidence for lower limb radiculopathy but the disc lesion described in the later CT report would have the potential for such radiculopathy. He thought that the assessment of permanent impairment to the back should be increased to at least 18% in comparison to a most extreme case [sic]. The assessment by Dr Patrick of impairment of the back following examination of 26 November 2003 (report 1 March 2004) was 12%.
The WC Regulation 2003 relevantly provides at clause 43 that:
“In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings. …”
Clause 43AA is as follows:
“(1)Despite clauses 43 and 43A, a medical report other than the original report, (a supplementary report) may be admitted if:
(a)it has the purpose of clarifying the original report, for example, where it can be shown that there has been some omission in relation to the material originally provided that could lead to an opinion in the original report being expressed on the basis of inaccurate or incomplete information, and
(b)it does not go outside the parameters of the original report, but merely confirms, modifies or retracts an opinion expressed in the original report.
…”
When Dr Patrick originally saw the worker on 26 November 2003 he did not have any radiological investigations available to him and the worker told Dr Patrick that he was having imaging studies performed on the Friday following that examination. There was a delay of over three months in Dr Patrick forwarding his report during which time radiological investigations subsequently carried out could have been forwarded to him in order that he might take such investigations into account.
I think in the circumstances the delegate was entitled to take the view that the second report had not been admitted in evidence and accordingly he was correct in disallowing its cost, although, as I have earlier indicated, I consider that the cost of the first report of Dr Patrick ought, as a matter of law, had been allowed but only in the amount specified in the Order of 4 November 2003 to which I have earlier referred. Accordingly, the worker is entitled to an additional sum of $825.00 in respect of medical reports.

Travel Expenses - Lawyers

These are claimed in the total sum of $1,036.50 and are made up as follows:
Solicitor’s travel expenses $444.50
Barrister’s travel expenses $592.00
In relation to this the delegate said the following:
“48.       The first objection was to the barrister’s fees on the basis of duplication. I agree. The Applicant is entitled to be represented by one legal representative. It was not found reasonable in the context of this dispute to have both.
49.        The respondent also objected to the claim by the solicitor for accommodation and sustenance. Sustenance cannot be recovered under Item 10.02. The only issue is whether accommodation was required. The solicitor was required to drive from Young to Dubbo a distance of 600 kilometres, or six hours. The solicitor was reasonably engaged in the conciliation and conferences for in excess of four hours. I consider it was fair and reasonable for the solicitor to stay overnight and not drive home on the same day. The claim was otherwise fair and reasonable in the amount of $444.50 as ultimately conceded.
50.        I therefore reduced the claim by the barrister and solicitor for travel to $444.50.”
The worker’s solicitor submits that he is entitled to both sets of travel expenses.
In this matter I am not persuaded that the delegate erred as a matter of law in allowing solicitor’s travel expenses only.

The Investigator’s Report

The worker claimed $2,646.98 for these and the delegate allowed the sum of $825.00. In relation to this the delegate said the following:
“52. Fees for an investigator are claimable under clause 82(b) of the Workers Compensation Regulation 2003. There is no monetary limit as the amount recoverable, as there is for items in the Table.
53. It is necessary, firstly, to examine the work performed [sic] the investigator, and to ascertain whether any of that work falls outside Clause 82(b), and is therefore not recoverable. A large part of the work performed by the investigator falls outside Clause 82(b).
54. Secondly, in respect of any work that falls within Clause 82(b), it is necessary to consider whether it was fair and reasonable for that work to be undertaken, and whether the time taken and the amount charged was fair and reasonable.
55. In the first instance it is not appropriate to claim for work performed by an investigator that was in fact legal work covered by and encapsulated in the events and activities set out in the Table. Thus, for example, the costs involved in obtaining a worker’s statement are encapsulated and absorbed by Item 2.01: Nebauer v Hunter Area Health Service [2004] NSWWCCPD 60 at [18].
56. On the other hand, it is an legitimate to retain the investigator to gather wage records and information, not otherwise obtainable from the employer.
57. The work performed by the investigator in this matter that might fall within Clause 82(b) relates to the following:
– gathering of wages and related employment information,
– statement of the witness Krystle.
On this basis I allowed $825.00 which I considered a fair and reasonable allowance for that purpose.”
It is submitted on behalf of the worker that the only decision which the delegate had to make was whether the report was required and whether it could be seen to be “fair and reasonable” in the circumstances of the particular case. It is submitted on behalf of the worker that it was necessary to address section 106 [sic] headed “additional matters to be considered in assessing Bills of Costs”. The reference made is to Clause 106 of the WC Regulation 2003. It was submitted that the matter was complex, novel, extremely difficult, the quality of the work extremely high and the incident had occurred in country New South Wales.
The worker’s solicitor then sets out the work done under Item 2.01 entitling him to the maximum of $500.00 under that item. This was said to justify the use of the private investigator to perform additional work beyond that allowed in Item 2.01.
On behalf of the employer it is submitted that the delegate was incorrect in allowing anything for the investigator’s fees. However, no appeal has been lodged by the employer in relation to this or any other item. The employer similarly objects to the allowance by the Arbitrator of $100.00 under Item 2.05. However, the employer also makes submissions which are relevant in relation to the quantum of the investigator’s fees. It is said that the briefing of the investigator to obtain a statement from the worker and his wife was expressly disallowed as shown by description for Item 2.05. That item is as follows: “Briefing a factual investigator to obtain evidence other than witness statements (not including the investigator’s fee).”
The investigator’s report of 6 January 2004 is of 7 pages with attached statement by the worker of 15 pages, a statement by the worker’s wife of 2 pages, two attached medical certificates, and a Schedule of Earnings dated 30 April 2004 with copies of Notices of Assessment in relation to the worker for the financial years ended 30 June 1996 to 2003.
The report itself sets out in detail the name, address and phone number of the worker, employer and insurer, a summary of injuries, details of medical practitioners seen, details of the employer’s medical reports. There is then a factual and liability summary which in part summarises what is contained in the worker’s statement of 1 April 2004 (although the statement of the worker was said to have been typed on 13 November 2003, it bears the later date).
There is a statement from the worker’s wife also dated 1 April 2004 (a short statement which deals with an observed change in personality, as well as sexual difficulties). To a large extent this statement merely confirms the complaints made by the worker.
The submissions made on behalf of the worker in connection with this item are somewhat difficult to follow. However, it does appear to amount to a submission that the delegate was obliged to allow the investigator’s fees in full if the report was required and could be said to be fair and reasonable in the circumstances of the case.
The Arbitrator in this case considered whether the work which fell within clause 82(b) of the WC Regulation 2003 was fair and reasonable and that the time taken and amount charged was fair and reasonable. As has been established in a number of cases which I listed at [31] in Greenaway v HJ ,VP & DH Pahlow t/as Adavale Pastoral Co. [2006] NSWWCCPD 353, the appropriate provision is the Legal Profession Regulation 2005.
Since the date of assessment of costs in this matter was 21 September 2005 and the Legal Profession Regulation 2005 did not commence until 1 October 2005, the appropriate provision is contained in the Legal Profession Regulation 2002. The terms of the provision in relation to disbursements is, however, identical in both Regulations and is as follows:
“Any disbursement necessarily incurred is to be allowed except insofar as such disbursement is of an unreasonable amount or has been unreasonably incurred and any doubts which the taxing officer/costs assessor may have had as to whether any disbursement was reasonably incurred or was reasonable in amount are to be resolved in favour of the receiving party.”
The delegate in this case did not refer to the Legal Profession Regulation 2002 and simply asked whether it was fair and reasonable for the work to be undertaken and whether the time taken and the amount charged was fair and reasonable. I do not consider that the delegate has erred in a significant respect in failing to ask whether the disbursement was necessarily incurred. The delegate, it seems, answered this question favourably to the worker in relation to part of the cost of the investigation report and I am not persuaded that he erred in allowing that part in the sum of $825.00. This is a matter for the exercise of discretion on the part of the delegate and he did not err as a matter of law in relation to this.

Agency Fees

I have dealt with this at [23] and [24] under Item 10.01. The delegate did likewise. For reasons which I have given the appeal fails in relation to this.

DECISION

Paragraphs 2 and 4 of the delegate’s decision dated 21 September 2005 are revoked and the following decision is made in their placed:
“2.The Applicant’s costs of the substantive proceedings are assessed in the sum of $9,042.10.
4.The Respondent is therefore to pay to the Applicant a total amount of $9,042.10 to the extent that those costs have not already been paid.”

COSTS

Although the appeal has succeeded in respect of one matter, it has substantially failed. Accordingly, I do not think it appropriate to make any order as to the costs of the appeal.

Anthony Candy

Acting Deputy President
23 January 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT] OF THE WORKERS COMPENSATION COMMISSION.

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