Purtell v YSF Pty Ltd trading as Young Stock Feeds Pty Ltd
[2007] NSWWCCPD 69
•1 March 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN
RELATION TO COSTS
CITATION:Purtell v YSF Pty Ltd t/as Young Stock Feeds Pty Ltd [2007] NSWWCCPD 69
APPELLANT: Thomas James Purtell
RESPONDENT: YSF Pty Ltd t/as Young Stock Feeds Pty Ltd
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC5057-06
DATE OF REGISTRAR’S DECISION: 27 July 2006
DATE OF APPEAL DECISION: 1 March 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claim under Items 2.02, 2.03, 2.04, 2.05, 2.06, 4.08 and 4.12 of the Compensation Costs Table in Schedule 6 of the WorkersCompensation Regulation 2003; disbursements - investigator’s report, applicant’s and barrister’s travel expenses.
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL: 1. The Registrar’s determination of a Claim for Costs in this matter, dated 27 July 2006 is amended in accordance with these reasons.
2. No order as to costs of the appeal.
BACKGROUND
Substantive Proceedings
On 4 October 2005 Thomas James Purtell (‘Mr Purtell’) commenced proceedings in the Workers Compensation Commission (‘the Commission’) against YSF Pty Ltd t/as Young Stock Feeds Pty Ltd (‘Young Stock Feeds’) claiming weekly benefits compensation, medical and related expenses and lump sum compensation.
A teleconference was held with the parties on 13 December 2005 and as the matter was unable to be resolved it was set down for arbitration hearing in Young on 3 February 2006. On this occasion the dispute was resolved and a Certificate of Determination was issued on 9 February 2006 which included an order that Young Stock Feeds pay Mr Purtell’s “costs as agreed or assessed”.
The parties did not agree on costs and Mr Purtell’s solicitor lodged an Application for Assessment of Costs on 23 March 2006.
The costs were determined by the Registrar’s delegate, a Commission Arbitrator (‘the Delegate’) on 27 July 2006. The decision is as follows:
“1.Pursuant to Agreements and Order dated 9 February 2006 the Respondent employer is liable to pay the Applicant’s costs of the Application as agreed or assessed.
2.The Applicant’s costs of the proceedings assessed in the sum of $8,780.25 (inclusive of GST).
3.The Applicant’s costs of the assessment (inclusive of GST) are allowed in an amount of $250.00.
4.The Respondent is to pay the amount of $9,030.25 to the Applicant if those costs have not already been paid.”
On 11 August 2006 Mr Purtell lodged an appeal from the Delegate’s decision.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(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.”
Young Stock Feeds submit that the matter should be dealt with ‘on the papers’ whilst Mr Purtell is silent on this issue.
I have both the Commission file regarding the cost dispute and the appeal file. In addition I have the substantive file and 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.
ISSUES IN DISPUTE
Mr Purtell’s solicitor submits that the Delegate erred in relation to professional costs and claim under Item 2.02, Item 2.03, Item 2.04, Item 2.05, Item 2.06, Item 4.08 and Item 4.12.
Mr Purtell’s solicitor further submits that the Delegate erred in relation to the following disbursements:
·Private investigator’s report costs;
·Mr Purtell’s travel expenses, and
·Barrister’s travel expenses.
PRELIMINARY
Part 19 of the Workers Compensation Regulation 2003 (‘the Regulations’) govern both the procedure for assessment of costs and appeals against such an assessment.
Clause 119(1) of the Regulations limits the grounds on which an appeal may be made against the determination of the Registrar on an assessment of costs to a matter of law. As Deputy President Fleming stated in Berger v Moree Plains Shire Council [2005] NSWWCCPD 152 (‘Berger’s case’):
“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] NSWWCCPD 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] NSWWCCPD9).””
SUBMISSIONS, DISCUSSION AND FINDINGS
Professional costs
Item 2.02
Item 2.02 allows $20 per request, to a maximum of $40 (for any party), for ‘obtaining medical or other reports from insurer or requesting further information’. Mr Purtell’s solicitor in the bill of costs claimed $40. Young Stock Feeds submitted in response that no requests were made to the insurer for medical reports or other information, other than that contained in a letter dated 24 June 2005. This letter sent to Young Stock Feeds’ insurer by Mr Purtell’s solicitor enclosed a copy of the Draft Application to Resolve a Dispute and seeks copies of medical reports and requests further information.
Young Stock Feeds further submitted in response and the Delegate determined that the costs for this letter from Mr Purtell’s solicitor had already been claimed under Item 1.02 of the Table.
On reviewing the bill of costs it is clear that Mr Purtell’s solicitor successfully claimed $100 under Item 1.02 based on the same letter dated 24 June 2005.
On appeal Mr Purtell’s solicitor submits that the Table does not specifically state that separate letters have to be sent to the insurer in order to obtain the benefits for the Items. I do not accept this argument. To allow costs for the same letter twice “would exceed the maximum allowable and would be an error” (Dunn v Port Macquarie RSL Club Ltd [2004] NSWWCCPD33).
It is further submitted on appeal that the Delegate failed to provide adequate reason and this constitutes an error of law. I do not agree with this submission. As Deputy President Fleming stated in Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28 (‘Orr’s case’):
“In my view it is not necessary for the Registrar, or her delegate, to set out lengthy written reasons for a decision in order to comply with the Act and the Rules. To do so would be unreasonable and inconsistent with the objectives of the Commission in providing a speedy resolution to workers compensation disputes.”
I am satisfied that in the circumstances the Delegate provided adequate reasons for the decision.
Item 2.03
This Item allows $20 per referral, to a maximum of $40 for ‘referring insurer’s reports to a medical specialist or the claimant’s nominated treating doctor for review’. This Item comes under Part 2A of the Table which provides costs for ‘Certain events or activities on behalf of claimant until dispute referred or order sought’.
Mr Purtell’s solicitor sought $40 for referring the insurer’s reports to a medical specialist on 15 December 2005. The substantive proceedings, as stated above, were filed in the Commission on 4 October 2005.
The Delegate disallowed the claim as the work was done after proceedings were commenced in the Commission. On appeal Mr Purtell’s solicitor refers to Woodbury v Miles [2006] NSWWCCPD 55, a decision of Acting Deputy President Handley. It is submitted that this is authority for the proposition that work done in Item 2.03 after proceedings have been commenced is able to be claimed.
I reject this submission. What Acting Deputy President Handley stated is in fact a summary of the Items included in Part 2A of the Table:
“…this Part includes costs for various activities and events from the time the legal practitioner obtains instructions from the client to the time of agreeing terms of settlement with the insurer”.
What Mr Purtell’s solicitor has failed to recognize is that terms of settlement are often agreed with insurers prior to the commencement of proceedings.
Accordingly I see no error of law on the part of the Delegate in respect to this Item.
Item 2.04
I note that although Mr Purtell’s solicitor had stated at the commencement of his submissions on appeal that this Item was disputed, he now accepts the Delegate’s determination.
Item 2.05
Item 2.05 provides a maximum amount of $100 for ‘briefing a factual investigator or other investigator to obtain evidence other than witness statements (not including the investigator’s fee)’. Mr Purtell’s solicitor claimed the maximum amount and in submissions to the Delegate in the assessment of costs referred to other decisions by the Registrar in the Commission and asserted that it was necessary to brief a factual investigator because Young Stock Feeds had placed a number of matters in issue in the proceedings. It was also submitted in the assessment of costs that a factual investigation is necessary as there is limited time for the solicitor to deal with matters having regard to the costs Table.
The Delegate disallowed the claim stating that the factual investigation did no more than obtain statements and “do the job of the solicitor in obtaining instructions” for which the maximum amount had been allowed in Item 2.01.
On appeal Mr Purtell’s solicitor argued that the Delegate failed to provide adequate reasons. I reject this submission for the reasons stated in paragraph 17 above. I am satisfied that the Delegate’s reasons in the circumstances are adequate.
It is further submitted that the Delegate erred because he failed to consider the record of the Commission and in particular the private investigator’s report which was annexed to the Application to Resolve a Dispute. I do not accept this ground of appeal. Both parties prepared extensive submissions which were before the Delegate in the costs application. Mr Purtell’s solicitor’s submissions in relation to this Item were three and a half pages in length. It is for Mr Purtell’s solicitor to make out his case and highlight the relevant matters that he considers the Delegate should consider. Mr Purtell’s solicitor had enclosed with the Application for Assessment of Costs a copy of the invoice from the private investigator. This invoice is three and a half pages in length and sets out in great detail the activities and time spent in preparing the report.
I see no error of law or discretion on the part of the Delegate in relation to this Item. It is clear from the private investigator’s invoice that the main activity was the preparation of three witness statements. Item 2.05 specifically excludes briefing a factual investigator to obtain witness statements. The factual investigation into the injury appears to be a summary of the material provided by the witnesses in their statements. The balance of the work done in the investigation report appears to be routine work that would normally be performed by the solicitor.
Item 2.06
Item 2.06 allows a maximum amount of $500 (at the relevant time) for ‘requesting a review of the claim from the insurer, prior to referral of the matter to the Commission’. Mr Purtell’s claim is based on a letter sent to the insurer on 24 June 2005. This letter annexes a draft Application to Resolve a Dispute and sets out the claim made by Mr Purtell. The letter also seeks a review.
Young Stock Feeds objected and the Delegate disallowed the claim because it was not reasonable to seek a review of the claim at the same time and in the same letter which sets out the claim.
Mr Purtell’s solicitor again submits that the Delegate failed to provide adequate reasons. I reject this submission for the reasons stated above in paragraph 17. I am satisfied that the Delegate’s reasons, although brief, were adequate.
It is further submitted that Item 2.06 does not specifically state that a review cannot be sought at the same time as the claim is made. To do so at the same time is consistent with the objectives of the Commission to provide a cost effective and timely resolution of claims it is submitted. I do not accept this argument. As I stated in Fieldsend v Gail Geddes & Ian David Geddes t/as Warranboo Partnership [2007] NSWWCCPD 16:
“The word ‘review’ means a viewing again; a second or repeated view of something (The Macquarie Concise Dictionary).”
Finally it is submitted that the Delegate is “hostile” towards Mr Purtell’s solicitor. In support of this statement reference is made to the sale of a Law Firm by Mr Purtell’s solicitor. It is stated that an offer by the Law Firm where the Delegate then practiced was not “even entertained” by Mr Purtell’s solicitor. Reference is then made to a cost decision by the same Delegate involving another client of Mr Purtell’s solicitor. It is suggested that this decision was also unfavourable.
These assertions are serious. On considering the material before me this personal attack on the integrity of the Delegate is without justification. It is one thing to be upset with the decision of the Delegate, but to then attack his integrity as a consequence is improper. The Delegate has clearly done his best to determine the issues in accordance with the law and I can see no error of law or discretion.
Item 4.08
This Item provides a maximum amount of $500 (at the relevant time) for ‘preparing for a conference (including providing advice to client)’. Mr Purtell’s solicitor claimed $500 in respect of the teleconference on 13 December 2005 and a further $500 in regard to the arbitration hearing on 3 February 2006. The Delegate reduced the claim to $500 (plus GST) on the basis that the item can only be claimed once.
It is submitted on appeal that the Delegate failed to provide adequate reasons. I reject this argument for the reasons stated above in paragraph 17. Although brief I am satisfied that the reasons were adequate.
It is further submitted that it is an error of law to limit the costs recoverable to one conference to resolve a particular dispute when this is not provided for in the Regulations. I do not accept this argument. Deputy President Fleming in Orr’s case considered the maximum amount allowed for events and stated:
“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 that event heading.”
Having regard to the authority of Orr I see no error of law in the Delegate’s determination to allow the sum of $500 under this Item.
Item 4.12
This Item provides for a maximum amount of $190 (at the relevant time) for ‘reporting to the client on the outcome of a conference or arbitration’. Mr Purtell’s solicitor claimed the sum of $190 for reporting to the client after the teleconference on 13 December 2005 and a further $380 for two reports to the client after the arbitration hearing on 3 February 2006. The Delegate allowed the total amount of $380 for the reporting after the teleconference and one report after the arbitration hearing. In reaching this decision the Delegate referred to Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282 (‘Fuentes’ case).
On appeal it is submitted that the Delegate erred as there were two reports to the client on the day of the arbitration hearing. I reject this argument. In McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’ case) Deputy President Fleming followed Fuentes and determined that so far as Item 4.12 is concerned, the maximum amount of $190 may be allowed after the telephone conference and a further $190 allowed after the conciliation/arbitration. Deputy President Fleming further stated:
“I am of the view that only one amount is recoverable under Item 4.12 after a conciliation and arbitration conference held on the same day.”
Accordingly I find no error of law on the part of the Delegate in regard to this Item.
Disbursements
Private Investigator’s Fee
In the Application for Assessment of Costs, Mr Purtell’s solicitor claimed the sum of $2,634.79 as a disbursement to cover the cost of a Private Investigation Report.
The Delegate allowed the sum of $165 (inclusive of GST) having regard to Item 2.11A. This Item provides an allowance for the preparation of witness statements that are necessary for an insurer to defend the claim. Item 2.04A is the equivalent Item for claimants preparing witness statements. It is clear that the Delegate meant Item 2.04A and not Item 2.11A. The Delegate disallowed the remainder of the costs for the Private Investigation Report stating, “The Applicant cannot by the device of using an investigator recover more than that which would be allowable had the solicitor done the work”.
Firstly it is submitted that the Delegate failed to provide adequate reasons. I reject this submission and find that the reasons, although brief, were adequate. Although not raised by either party, the Delegate erred in allowing the costs of preparing witness statements pursuant to Item 2.11A [Item 2.04A]. As Deputy President Fleming stated in Berger’s case:
“142. The fee for an investigator’s report, whether to obtain witness statements or other factual investigations (including a statement from the worker), may be claimed pursuant to clause 82(b) of the WC Regulation. The test of whether such a report is claimable will, as discussed above, essentially be one of ‘reasonableness’. In most cases, it will not be reasonable to obtain witness statements by way of an investigator’s report, where the legal practitioner or agent has already obtained those statements, either at the time of taking instructions or at a later time, being before an application to the Commission is filed.”
The cost of obtaining a witness statement, including that of a worker, is normally covered under Item 2.01 or Item 2.04A of the Table. Mr Purtell’s solicitor did not claim the cost of obtaining witness statements under either of these Items.
The Private Investigation Report contains the following witness statements:
·Mr Purtell;
·Mrs Purtell;
·John Morrow, and
·Rodney John McLean.
In my view only Mr Purtell’s witness statement was reasonable. Both Mr Morrow and Mr McLean witnessed the initial injury on 24 December 1999 and have provided brief statements to that effect. This initial injury was never disputed by Young Stock Feeds. In the circumstances of this case I am not satisfied that the statement from Mrs Purtell was reasonable. It is 6 pages in length, the first 3 pages dealing with the injury on 24 December 1999.
The statement of Mr Purtell took 2 hours. I note that it was taken by an investigator who is not a legal practitioner. As a guide, Item 2.04A allowed (at the relevant time) $100 per hour for taking a witness statement up to a maximum of $150. I consider it reasonable to allow $150 (plus GST of $15) for the time taken in relation to Mr Purtell’s statement.
It is further submitted that the Private Investigation Report was a full and detailed factual investigation with regards to this claim and the disbursement should be allowed. I see no error of law or discretion on the part of the Delegate. The investigation report, as I stated above in paragraph 28, was mainly concerned with the taking of witness statements. The factual investigation was largely a summary of those witness statements and documents provided by the witnesses. As I stated above in paragraph 28 the invoice provided by the investigator itemizes charges for a great deal of routine work which would normally be done by the solicitor.
Mr Purtell’s travel costs and expenses
Mr Purtell claimed $552 for traveling from Young to Sydney and return in order to attend medical examinations. The claim consisted of the following:
Mileage = $357.00
Sustenance = $ 75.00
Accommodation = $120.00
$552.00
In the submissions before the Delegate in support of this disbursement, Mr Purtell’s solicitor referred to a similar costs assessment which was allowed. The submissions included a breakdown of this similar claim which totaled $454.56. The Delegate in his decision simply stated “these claims are reasonable” and in error allowed the sum of $454.56.
On appeal Mr Purtell correctly submits that the Delegate had misread the submissions.
Young Stock Feeds in their submissions before the Delegate did not dispute the accommodation expenses, but requested that they be substantiated by way of receipts. Enclosed with their submissions was a copy of a letter to Mr Purtell’s solicitor dated 20 March 2006 where they had asked for receipts for the accommodation.
In response to the appeal Young Stock Feeds submits again that the accommodation component of the claim should be disallowed as no invoices or receipts were provided by Mr Purtell.
The Delegate having erred it is necessary that I make such determination in relation to the application as in my opinion, should have been made by the Delegate (Clause 119 of the Regulations).
I agree with the submission by Young Stock Feeds that it is incumbent on Mr Purtell to provide substantiation of his claim for accommodation. This request had been made prior to the assessment before the Delegate without response. Accordingly I allow:
Mileage = $357.00
Sustenance = $ 75.00
$432.00
Barrister’s travel costs and expenses
In the submissions before the Delegate the following amount was claimed to attend the arbitration hearing at Young:
Mileage (Sydney/Young return) 850 kms @ $0.59 = $501.50
Accommodation = $120.00
$621.50
Young Stock Feeds submitted in response to the Delegate that the return trip to Young is 750 kilometres. It was further submitted that Item 10.02 of the Table requires a deduction of 100 kilometres and accordingly the correct mileage is 650 kilometres @ $0.59 which equals $383.50. Young Stock Feeds did not dispute the accommodation expenses claimed.
The Delegate accepted the submissions by Young Stock Feeds and reduced the claim to $503.50.
On appeal Mr Purtell’s solicitor submits that the barrister travelled from Wahroonga and has advised the distance travelled is 850 kilometres. It is further submitted that Item 10.02 states that only the first 50 kilometres should be deducted and not 100 kilometres.
In response to the appeal Young Stock Feeds submit that the Delegate was correct in his calculations.
Item 10.02 allows ‘$0.59 per km (except the first 50 kms)’ for ‘travelling for the purpose of attending at proceedings before the Commission…’.
I agree with the submission by Mr Purtell’s solicitor that the intent of Item 10.02 is that the first 50 kilometres is deducted from the journey to travel to attend the proceedings. In my opinion there are not two journeys to attend the proceedings, namely going there and returning. Accordingly the Delegate erred in deducting 100 kilometres from the journey.
Having consulted the return journey from Sydney to Young is 742.2 kilometres. Accordingly I agree with Young Stock Feeds’ submission that the appropriate mileage is 750 kilometres. In my opinion the appropriate departure point is Sydney and not Wahroonga as submitted by Mr Purtell’s solicitor. I note that this was the departure point referred to in the bill of costs and submissions before the Delegate. Accordingly I allow:
Mileage (750 kms less 50 kms) @ $0.59 = $413.00
Accommodation = $120.00
$533.00
The Delegate’s decision as to costs
The Delegate allowed Mr Purtell’s costs of the assessment in the sum of $250 (inclusive of GST).
On appeal Mr Purtell submits that the Delegate failed to consider his submissions and failed to provide adequate reasons.
I do not accept this submission. The Delegate exercised his discretion as Mr Purtell “was not successful on many of the items” and I see no error on the part of the Delegate. Of the ten professional items in dispute, Mr Purtell succeeded in three. There were four disbursements disputed and Mr Purtell was successful in two.
DECISION
As a result of my review the Delegate’s determination in relation to disbursements is amended as follows:
·Mr Purtell’s travel expenses; less $22.56 (inclusive of GST);
·Barrister’s travel expenses; plus $29.50 (inclusive of GST)
The Delegate’s determination of $9,030.25 is therefore increased by $6.95 to $9,037.20.
The Registrar’s determination of a Claim for Costs in this matter, dated 27 July 2006 is amended in accordance with these reasons.
COSTS
Mr Purtell has been largely unsuccessful in this appeal and in my opinion no order should be made as to costs.
I make no order as to the costs of the appeal.
Julian Martin
Acting Deputy President
1 March 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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