Piening-Cochrane v PL & MR Wilde t/as Wilde Earthmoving

[2006] NSWWCCPD 340

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Piening-Cochrane v PL & MR Wilde t/as Wilde Earthmoving [2006] NSWWCCPD 340

APPELLANT:  Terence Piening-Cochrane

RESPONDENT:  PL & MR Wilde t/as Wilde Earthmoving

INSURER:Cambridge Integrated Services Australia Pty Ltd

FILE NUMBER:  WCC19445-05

DATE OF REGISTRAR’S DECISION:             7 April 2006

DATE OF APPEAL DECISION:  8 December 2006

SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claims under Items 2.06, 4.07, 4.12 and 10.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003.

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: McCabe Partners Lawyers

Respondent: Moray & Agnew Solicitors

ORDERS MADE ON APPEAL:  The Registrar’s determination of Mr Piening-Cochrane’s costs in this matter, dated 7 April 2006, is amended in accordance with these reasons.

The Respondent, PL & MR Wilde t/as Wilde Earthmoving is to pay the Appellant, Mr Piening-Cochrane $605.00 inclusive of GST in respect of his costs in this appeal.

BACKGROUND TO THE APPEAL

1. On 3 May 2006, Terence Piening-Cochrane filed an appeal against a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 7 April 2006. The Respondent to the appeal is PL & MR Wilde t/as Wilde Earthmoving. The Wilde’s workers compensation insurer is Cambridge Integrated Services Australia Pty Ltd (‘Cambridge’), formerly Vero Workers Compensation (NSW) Ltd (‘Vero’). On 30 May 2006, Cambridge filed their ‘Notice of Opposition’ to the appeal.

1. Mr Piening-Cochrane was born on 13 October 1970 and is aged 36. He claims to have injured his back, right shoulder and right hip while working for the Wildes between 2001 and 9 March 2004. On 23 August 2004, the Commission registered Mr Piening-Cochrane’s ‘Application to Resolve a Dispute’ in respect of his claim for compensation for permanent impairment and pain and suffering. On 13 September 2004, Vero filed a ‘Reply’. Following a teleconference with an Arbitrator on 5 November 2004, Mr Piening-Cochrane was referred to an Approved Medical Specialist (‘AMS’) for assessment of his injuries. On 24 May 2005, the Commission issued the AMS’s Medical Assessment Certificate. At a further teleconference with the parties on 30 June 2005, the Arbitrator assisted the parties in reaching a resolution of their dispute and, on 1 July 2005, the Commission issued a Certificate of Determination in the following terms:

“1. That the Respondent pay the Applicant as lump-sum compensation under s 66 of the Workers Compensation Act 1987 as follows (for injuries on and from 01.01.02), $7,500.00 in respect of 6% whole person permanent [sic].

2. That the Respondent pay the Applicant’s costs as agreed or assessed.”

1. On 9 November 2005, the parties having failed to agree on the costs payable, Mr Piening-Cochrane’s solicitors lodged an ‘Application for Assessment of Costs’ with the Commission in respect of their Bill of Costs dated 1 July 2005. On 7 December 2005, Vero filed its submissions in reply.

1. The Registrar delegated the assessment of costs to a Commission Arbitrator (‘the Delegate’) who made a determination dated 7 April 2006. The Certificate of Determination stated:

“1. Pursuant to a Certificate of Determination dated 1 July 2005, the Respondent is liable to pay the Applicant’s costs as agreed or assessed, in respect of a claim for permanent impairment.
2. The Applicant’s costs of the substantive proceedings are assessed in the sum of $7,749.60.
3. The Respondent is to pay the Applicant’s costs of the assessment in the sum of $550.00.
4. The Respondent is, therefore, to pay to the Applicant a total amount of $8,299.60 if those costs have not already been paid.”

1. The relevant parts of the Delegate’s Statement of Reasons for her decision are referred to below.

ISSUES IN DISPUTE

1. Mr Piening-Cochrane’s solicitors submit that the Delegate made errors of law by not allowing their costs claimed under Items 2.06, 4.07, 4.12 and 10.01. Their submissions and Cambridge’s response are discussed below.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submission by Cambridge that the matter can be dealt with ‘on the papers’, Mr Piening-Cochrane’s solicitors having not made any submission on this issue, 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. 

1. No application to adduce fresh evidence was made.

SUBMISSIONS, DISCUSSION AND FINDINGS

1. The relevant legislation concerning appeals to the Commission against an assessment of costs, set out in the 1998 Act and the Workers Compensation Regulation 2003 (‘the 2003 Regulation’), was discussed by Deputy President Fleming in Berger v Moree Plains Shire Council [2005] NSWWCCPD 152 (‘Berger’). I note, in particular, that clause 119(1) of the 2003 Regulation 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 to determine the costs application. Where the exercise of the Registrar’s or her delegate’s discretion in determining what is fair and reasonable is challenged, only where that discretion has miscarried because it has been exercised unfairly or unlawfully would this constitute an error of law: Nebauer v Hunter Area Health Service [2004] NSWWCCPD 60, at paragraph 19; Berger, at paragraph 136.

1. Clause 84 of the 2003 Regulation fixes the maximum costs recoverable by legal practitioners and agents at those set out in Schedule 6, except where otherwise provided in Part 19. Schedule 6 sets out the maximum costs recoverable in workers compensation matters by reference to the Compensation Costs Table (‘the Table’) at the end of the Schedule. The Table identifies particular activities or events with an item number. It is these item numbers that are referred to below.

1. Mr Piening-Cochrane’s solicitors’ submissions and those of Cambridge are considered below in relation to the specific Items in respect of which there is a disputed claim.

Item 2.06

1. Item 2.06 is described in column 2 of the Table as “requesting a review of the claim from the insurer, prior to referral of the matter to the Commission”. The Delegate disallowed Mr Piening-Cochrane’s solicitors’ claim for $500 under this Item on the ground that there was no evidence of a review having been requested. Mr Piening-Cochrane’s solicitors maintain their claim stating that they requested a review from Vero by their letter dated 25 May 2004, a similar letter being sent to the Wildes on the same date. I note these letters, which included a draft ‘Application to Resolve a Dispute’, were attached to the Application registered by the Commission on 23 August 2004.

1. Cambridge concedes that if a review was requested from the insurer, then some allowance under this Item is warranted. However, it submits that an allowance of $550 is excessive.

1. I am satisfied that Mr Piening-Cochrane’s solicitors did request a review from the insurer and, in my view, an allowance of two hours for the work undertaken is fair and reasonable. The Delegate should therefore have allowed the $500 claimed under this Item (plus GST of $50).

Item 4.07

1. Item 4.07 is described in column 2 of the Table as “Applying to refer a matter to an approved medical specialist, or responding to such an application...”. The Arbitrator disallowed Mr Piening-Cochrane’s solicitors’ claim for $100 under this Item, relying on the decision in Berger, on the ground that all the work relating to the referral to the AMS was performed by the Commission and not by Mr Piening-Cochrane’s solicitors. In Berger, at paragraph 108, Deputy President Fleming said:

“The first point to make about Item 4.07 is that the activity it describes must in fact be undertaken by the legal representative in order to claim the cost. When an application to refer a matter to an AMS is made in the course of a telephone conference, without any evidence of other activity by the legal representative, then Item 4.07 is effectively subsumed into Item 4.09 [“Attending and participating in a conference with an Arbitrator...”]. It is not intended that Item 4.07 be claimable regardless of whether the discrete activity it describes was carried out or not.”

1. Mr Piening-Cochrane’s solicitors maintain their claim and submit that referral of the applicant to an AMS requires the applicant’s solicitor to notify the applicant of the medical appointment, request pre-payment of the applicant’s travelling costs for doing so and, where necessary, arrange transport. Item 4.07 also includes the cost of reviewing the report of the AMS. Cambridge submits that it is clear from the decision in Berger that the Delegate properly disallowed the claim.

1. I note that in this case the referral to an AMS was made by the Arbitrator, following a teleconference with the parties on 5 November 2004, and the AMS was selected by the Registrar. I also note the description of the activity/event in Item 4.07 includes costs associated with the review of the report of the AMS. In their Bill of Costs dated 1 July 2005, Mr Piening-Cochrane’s solicitors’ claim under Item 4.07 included their costs for reviewing the AMS’ report. In my view, it is fair and reasonable to allow them $50 (plus $5 GST) under this Item.

Item 4.12

1. This Item is described in the Table as: “Reporting to the client on the outcome of a conference or arbitration...”. The maximum total for the type of activity/event at the relevant time was $190. While the general principle is that only the maximum total for an activity/event type may be claimed regardless of the number of individual activities that may take place under the event heading, in Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282 (‘Fuentes’), the NSW Court of Appeal recognised an exception in respect of Item 4.12 where the column 4 maximum of $190 may be allowed in respect of each conference or conciliation/arbitration. (See also McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’), especially at paragraph 24.) Thus, following Fuentes, the column 4 maximum of $190 may be allowed in respect of each conference or conciliation/arbitration.

1. Mr Piening-Cochrane’s solicitors claimed $190 under this Item in respect of reporting to their client on each of the teleconferences on 5 November 2004 and 30 June 2005. The Delegate disallowed the claim for the second teleconference on the basis of:

“the decisions in Fuentes case and McManus’ case which held that only two amounts are allowable under this Item, i.e. one after a conference and a second after an arbitration hearing. There was no arbitration hearing in this matter.”

In its submissions on the appeal, Cambridge relies on the Delegate’s interpretation of those decisions.

1. In my view, the Delegate has misinterpreted those decisions. Generally, a solicitor needs to report to the client after each teleconference or conciliation/arbitration. It is clear from Deputy President Fleming’s discussion of this in McManus, at paragraphs 22 to 28, that the claim is not limited to one teleconference or one conciliation/arbitration. On occasion there may be more than one of each. Thus, the Delegate should have allowed a further $190 (plus $19 GST) under this Item in respect of the teleconference on 30 June 2005.

Item 10.01

1. Item 10.01 is described in column 2 of the Table as “All work associated with instructing an agent to act on the claim or a matter relating to the claim”. The Arbitrator disallowed Mr Piening-Cochrane’s solicitors’ claim for $187.50 under this Item for “All work associated with instructing an agent to act on re: claim”, on the basis that the Item “does not include an agent engaged to perform an administrative function, such as attending to file documents or to photocopy”.

1. In its submissions on the appeal, Cambridge supports the Delegate’s decision. In their submissions, Mr Piening-Cochrane’s solicitors state:

“In this matter the Applicant’s solicitor wrote to the agent on the 30 July 2004, 25 August 2004, 11 January 2005 requesting documents to be filed with the Workers Compensation Commission. Then on the 8 October 2004, the Applicant’s solicitor forwarded a letter to the agent and requested them to inspect and copy documents produced by Dr Sheehy with the Workers Compensation Commission in Sydney.

Therefore, the Applicant maintains that he is entitled to the costs of writing to the agent to lodge and inspect these documents.”

1. I note Mr Piening-Cochrane’s solicitors’ claim is in respect of instructing the agent (St George Registration & Investigation Services Pty Ltd) to file, seal and return documents on three occasions and inspect and photocopy documents on one occasion. In my view, there is no reason why the documents could not have been filed and served through the post or via DX, and I do not therefore consider the instructions in respect of filing to be reasonably necessary.

1. The inspection and photocopying of documents produced by Dr Sheehy is covered under Item 4.05 (“Reviewing documentation produced under a direction of the Commission...”). I note that Mr Piening-Cochrane’s solicitors have claimed and been allowed the maximum amount permitted under Item 4.05. In Dunn v Port Macquarie RSL Club Ltd [2004] NSWWCCPD 33, at paragraph 41, Deputy President Fleming held that to allow the recovery of fees paid to an agent for inspection and photocopying of documents produced under a direction would be to allow recovery of an amount exceeding the maximum allowable under Schedule 6 and would be an error. She confirmed this in McManus, at paragraph 30, where for similar reasons, she disallowed a claim for instructing an agent under Item 10.01. See also Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWWCCPD 30, a matter involving agency fees claimed for filing and inspection and photocopying of documents.

1. Thus, I am not persuaded that the Delegate made any error in disallowing the claim under Item 10.01. I therefore reject this ground of appeal.

Summary

1. The outcome of my review of the Delegate’s decision is as follows:

• Item 2.06: the Delegate should have allowed $500.00.
• Item 4.07: the Delegate should have allowed $50.00.
• Item 4.12: the Delegate should have allowed $380 rather than $190.
• Item 10.01: the Delegate’s decision is confirmed.

1. The Delegate’s determination of $8,299.60 should therefore be increased by $814.00 ($740.00 plus $74.00 GST) to $9,113.60.

DECISION

1. The Registrar’s determination of Mr Piening-Cochrane’s costs in this matter, dated 7 April 2006, is amended in accordance with these reasons.

COSTS

1. Mr Piening-Cochrane’s solicitors have been largely successful in this appeal. In my view, it is appropriate to order that the Wildes pay Mr Piening-Cochrane’s costs in this appeal in the sum of $605 inclusive of GST, representing the equivalent of approximately two hours of work. The appropriate order, therefore, is: “The Respondent, PL & MR Wilde t/as Wilde Earthmoving is to pay the Appellant, Mr Piening-Cochrane $605.00 inclusive of GST in respect of his costs in this appeal.”

Robin Handley

Acting Deputy President  

8 December 2006

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

ASSOCIATE