Quarmby v Motor Traders Association of NSW Group Apprenticeship Schemes

[2006] NSWWCCPD 324

WORKERS COMPENSATION COMMISSION

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

CITATION:Quarmby v Motor Traders Association of NSW Group Apprenticeship Schemes [2006] NSWWCCPD 324

APPELLANT:  Phillip James Quarmby

RESPONDENT:  Motor Traders Association of NSW Group Apprenticeship Schemes

INSURER:CGU Workers Compensation (NSW) Limited

FILE NUMBER:  WCC9794-05

DATE OF REGISTRAR’S DECISION:             26 August 2005

DATE OF APPEAL DECISION:  28 November 2006

SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; fees for an investigation report; attendance fees of agents; accountants fees; travel costs; Items 2.06; 4.08; 4.09; 4.10; 4.11; 4.12 and 10.01 of Schedule 6 of the Workers Compensation Regulation 2003.

PRESIDENTIAL MEMBER:  Acting Deputy President Tydd

HEARING:On the papers

REPRESENTATION:  Appellant:      McCabe Partners Lawyers

Respondent:     Sparke Helmore

ORDERS MADE ON APPEAL:  1. Paragraphs two and four of the decision of the delegate dated 26 August 2005 are revoked and the following orders are made in their place:

“(i) The Applicant’s costs of the substantive proceedings are assessed in the sum of $6,359.35.

(ii) The Respondent is to pay to the Applicant a total amount of $6,359.35 if those costs have not already been paid.”

2. Paragraph one of the delegate’s decision referring to the order for costs contained in the ‘Certificate of Determination’ and paragraph three of the delegate’s decision making no order for the costs of the assessment were not raised on appeal and are confirmed.

3. No order as to the costs of the appeal.

BACKGROUND

Prior proceedings

1. On 26 July 2004 Phillip James Quarmby (‘Mr Quarmby’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC 11464-04). Mr Quarmby claimed that he suffered an injury to his neck, right arm and impairment of his sexual organ on 11 January 2000 in the course of his employment as an area manager with the Motor Traders Association of NSW Group Apprenticeship (‘MTA’), the Respondent employer. Mr Quarmby sought weekly benefits compensation for the period 9 November 2003 to date and continuing and medical and related expenses pursuant to section 60 of the Workers CompensationAct 1987 (‘the 1987 Act’). The application noted the award of the Compensation Court of New South Wales (‘the Court’) made on 26 November 2002 which required MTA to pay Mr Quarmby compensation of $9,400.00 for permanent impairment of his neck and $11,200.00 for loss of use of his right arm pursuant to section 66 of the 1987 Act, and $25,000.00 pursuant to section 67.

1. MTA lodged a Reply to the application on 13 August 2004 in which it disputed the claim in respect of Mr Quarmby’s dependents; his incapacity and his capacity to earn. MTA’s insurer is CGU Workers Compensation (NSW) Limited (‘the Insurer’).

1. The dispute was not resolved at the teleconference conducted on 18 October 2004, before a Commission Arbitrator (‘the Arbitrator’) and was set down for conciliation/arbitration on 3 November 2004. The matter proceeded to conciliation/arbitration on that day.

1. On 7 December 2004 the Arbitrator issued a ‘Certificate of Determination’ ordering MTA to pay Mr Quarmby weekly compensation at the maximum statutory rate applicable to a worker with no dependents from 9 November 2003 to date and continuing and to pay Mr Quarmby’s costs as agreed or assessed.

1. On 23 June 2005 Mr Quarmby’s solicitor lodged an ‘Application for Assessment of Costs’. MTA’s solicitor lodged submissions in reply on 18 July 2005. The Registrar’s decision in relation to the application by her delegate, a Commission Arbitrator, (‘the delegate’) was made on 26 August 2005 and was accompanied by a ‘Statement of Reasons’. The determination is set out as follows:

“1.Pursuant to a Certificate of Determination dated 7 December 2004, 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 $7,359.35.

3.No order as to the costs of the assessment.

4.The Respondent is, therefore, to pay the Applicant a total amount of $7,359.35, if those costs have not already been paid.”

Lodgement of the appeal

1. On 15 September 2005, Mr Quarmby’s solicitor lodged an ‘Appeal from the Registrar’s Determination on Costs’ and on 12 October 2005 MTA’s solicitor lodged submissions in reply.

ON THE PAPERS

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. Mr Quarmby’s solicitor did not make submissions addressing the requirement for a formal hearing.  MTA’s solicitor submits that the matter is capable of being determined on the papers. Having regard to the submissions, Practice Directions Numbers 1 and 6 and the documents that are before me 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.

SUBMISSIONS

Mr Quarmby’s solicitor’s submissions

1. It is submitted that in circumstances where the respondent fails to file submissions in reply all costs claimed should be allowed by the delegate (Denis Lewis v New England Health Service [2004] NSWWCCC 25). In my view this submission need not be canvassed as I am satisfied that submissions in reply were filed. The submissions in relation to the items claimed pursuant to the Compensation Costs Table (‘the Table’) set out in Schedule 6 of the Workers Compensation Regulation 2003 (‘the WC Regulation’) can be summarised as follows:

·The work undertaken in requesting a review under Item 2.06 of the Table was extensive and an allowance for two hours is appropriate;

·the proper construction of the maximum amount allowable under Item 4.08 and the proper application of Orellana Fuentes v Standard Knitting Mills Pty Ltd & Anor [2003] NSWCA146 (‘Fuentes’) allows a claim in the maximum for preparation of a conference and also for a conciliation conference;

·Items 4.09 and 4.11 of the Table should be construed to allow the payment of travel time for a solicitor to attend and participate in the conference as Item 4.09 is a time based allowance;

·an allowance should be made under Item 4.12 for reporting to the client in respect of the teleconference, the conciliation conference and the arbitration, and

·the maximum claimed under Item 10.01 of the Table should be allowed as the work involved in instructing the agent was significant.

1. Mr Quarmby’s solicitor’s submissions also challenge the delegate’s determination of disbursements. I see no issue in dispute in relation to the delegate’s determination to allow the medical reports and travelling expenses in the full amount claimed. The remaining submissions can be summarised as follows:

·the agency fees of St George Registration & Investigation Service Pty Limited (‘SGRIS’) should be allowed as they were incurred in attendance, inspection, photocopying and claiming legal professional privilege over documents produced under Direction and in determining the claim the delegate must consider that the instructions were received in Young; 

·the Factual and Liability Summary Report (‘the Report’) provided by SGRIS was necessary and an “Applicant’s Solicitor does not have time in Item 2.01 to obtain such detailed statements by the Applicant” who has been held to be a witness;

·the fees for the accounts’ report should be allowed as the report was relied upon and the matter was a “hotly contested dispute with regards to weekly entitlements”, and

·the cost of the barrister’s travel expenses should be allowed in addition to the solicitor’s travel expenses as in this case Mr Quarmby required his barrister and solicitor to be present.

MTA’s solicitor’s submissions

1. MTA’s solicitor relies upon its previous reply to the application for assessment of costs and the decision of the delegate in submitting that there is no basis for appeal and the matter should be struck out.

Issues in dispute

1. The issues raised on appeal are as follows:

·Did the delegate err in determining Items 2.06; 4.08; 4.09; 4.10; 4.11; 4.12; and

10.01 of the Table?

·Did the delegate err in determining the costs of disbursements?

DISCUSSION

1. The relevant legislation concerning appeals to the Commission against an assessment of costs contained in the 1998 Act and the WC Regulation has been considered in a number of recent decisions (Berger v Moree Plains Shire Council[2005] NSWWCCPD 152 (‘Berger’); McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’); Asimus v J.J. Walker, A.D. Walker & Temple Pty Ltd t/as Templemore Partners [2006] NSWWCCPD 113 (‘Asimus’); Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWWCCPD 30 (‘Flegerbein’); Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28 (‘Orr’); Canham v Kenna Investments Pty Limited[2006] NSWWCCPD 202 (‘Canham’), and Beggs v W & D Stuart [2006] NSWWCCPD 308 (‘Beggs’) and need not be canvassed again in this decision.  In Woodbury v Miles [2006] NSWWCCPD 5 (‘Woodbury’) the Commission considered the date at which the law is to be applied in determining an appeal against the Registrar’s assessment of costs and held that “the applicable law is that in effect at the time the Commission issued the Certificate of Determination, including the costs order [14]”. I adopt the reasoning applied in Woodbury.

1. Of particular reference to the matters raised on appeal are the following clauses of the WC Regulation: clause 84 which fixes the maximum costs recoverable by legal practitioners and agents to those set out in the Table; clause 110 which provides the Registrar with discretion to determine whether or not it was reasonable to carry out the work to which the costs relate, and what is a fair and reasonable amount of costs for the work concerned, and clause 119(1) which 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.

1. The cost of an investigator’s report is not regulated by Part 19 of the WC Regulations. Accordingly disbursements must be assessed pursuant to Legal Profession Regulation2002 (‘LP Regulation’) which was in force at the time of the issue of the ‘Certificate of Determination’, being 11 April 2005 (see Berger and Woodbury). Schedule 2, Pt 1, Item 10 of the LP Regulation provides:

“SCHEDULE 2 – Costs for legal services in workers compensation matters

(Clause 46)

Part 1 - Schedule of practitioners’ costs

10 Disbursements

Any disbursement necessarily incurred is to be allowed except in so far as any such disbursement is of an unreasonable amount or has been unreasonably incurred and any doubts which the taxing officer/costs assessor may have as to whether any disbursement was reasonably incurred or was reasonable in amount are to be resolved in favour of the receiving party.” (Emphasis added)

1. It is not reasonable to claim a cost as a disbursement that has already been the subject of a claim under Schedule 6 of the WC Regulation (Berger).

Did the delegate err in determining Items 2.06, 4.08; 4.09; 4.10; 4.11; 4.12 and 10.01 of the Table?

Item 2.06

1. Mr Quarmby’s solicitor claimed $500.00 for requesting a review of the claim and relied upon the minimum identifying information the WorkCover Guidelines require the insurer to obtain. MTA’s solicitor objected on the basis that a request for review does not apply in circumstances where the dispute is initiated by the insurer. The delegate rejected MTA’s submission and allowed the claim in the reduced amount of $125.00 to reflect the working involved in the preparation of “one short letter”. I have considered the claim, submissions and copies of correspondence annexed to the appeal requesting review of the claim and further details from the Insurer and MTA. In my view, the delegate’s allowance of $125.00 reflects a fair and reasonable cost for the work. I therefore reject this ground of appeal.

Item 4.08

1. Mr Quarmby’s solicitor claimed a total of $1000.00 for the costs of preparing for a conference and a conciliation/arbitration. The delegate allowed the claim in the maximum of $500.00. The maximum permissible under the Table has been confirmed as the maximum total for that type of activity/event as set out in Column 4 of the Table with the exception of Item 4.12 (Fuentes; Orr; Berger, and McManus). In my view the delegate’s decision demonstrates the proper application of the Table. Therefore I reject this ground of appeal.

Item 4.09

1. In his application Mr Quarmby’s solicitor claimed $250.00 for the costs of attending and participating in the teleconference conducted on 18 October 2004 and a further $1000.00 for attending and participating in the conciliation/arbitration hearing under Item 4.09 of the Table (including Counsel’s participation). In his further submissions dated 28 July 2005 Mr Quarmby’s solicitor stated that $250.00 for participation in the teleconference was agreed between the parties and he then claimed $1,500.00 pursuant to Item 4.10. MTA’s submissions do not address the claim under Item 4.09 for the teleconference.

1. The delegate correctly found that Item 4.10 of the Table had no application in the absence of a determination pursuant to that item by the Arbitrator. The delegate relied upon Fuentes as establishing the maximum allowances and determined “Items 4.09, 4.10 and 4.11” for the conciliation/arbitration hearing only in making a total allowance with reference the maximum monetary and time allowance. The Delegate found that the conciliation/arbitration hearing took place over three hours fifteen minutes and allowed $812.50 in total. Item 4.11 of the Table does not require this activity to be calculated with reference to an hourly rate. It provides a single maximum allowance. The dispute was not resolved in the conciliation conference and on the evidence before me I am satisfied that it proceeded to arbitration. Therefore Item 4.11 must be considered and in my view the delegate erred in calculating the allowance for Item 4.11 with reference to an hourly rate and in failing to consider the claim under Item 4.09 for participating in the teleconference. The delegate’s error may be founded, in part, on the inconsistency of the claim pursued by Mr Quarmby’s solicitor.

1. I am satisfied, on the evidence before me that the teleconference occurred and that the parties agreed on the sum of $250.00 for that claim and I allow this amount. I have considered the application of Fuentes and the Workers Compensation Commission Guidelines for the Conciliation/Arbitration Process in McCaffery v JG & DG Harris [2006] NSWWCCPD 317 and I adopt the reasoning set out at paragraph 45-46 in respect of the claim under Item 4.09 of the Table for participating in the conciliation /arbitration hearing. Mr Quarmby’s solicitor claimed $250.00 for the conciliation conference. However in further submissions Mr Quarmby’s solicitor stated that there was “no attempt by the Respondent to Conciliate this matter at all” and the matter proceeded direct to arbitration. This submission is at odds with the application and the ‘Reasons for Decision’ which confirm that the parties engaged in a formal mediation process with the Arbitrator’s assistance and were unable to reach an agreement. On balance I am satisfied that a conciliation conference took place and the only evidence I have before me regarding the duration of the conference is Mr Quarmby’s solicitor’s claim for one hour pursuant to this item. Accordingly in the absence of evidence to the contrary I allow the amount of $250.00 for participation in this conference as a fair and reasonable amount. I have considered Mr Quarmby’s solicitor’s submissions that travel time should be included in the costs of Items 4.09 – 4.11 and I adopt the reasoning set out in Berger and in Beggs at paragraph 40 in rejecting this submission. Therefore the total allowance under Item 4.09 for participation in the teleconference and the conciliation conference is $500.00.

Item 4.11

1. As stated the matter proceeded to arbitration. Following my consideration of the evidence I allow the claim under Item 4.11 of the Table for participating in the arbitration hearing in the maximum allowable, $250.00.

Item 4.12

1. Mr Quarmby’s solicitor claimed $570.00 for the costs of reporting to the client on the outcome of three activities; the teleconference, the conciliation conference and the arbitration. The delegate relied upon Fuentes in allowing the claim in reduced amount of $380.00 for the costs of reporting to Mr Quarmby following the teleconference and again following the conciliation/arbitration. I am satisfied on the evidence before me that there were two activities of the type referred to under item 4.12 of the Table; the teleconference and the conciliation/arbitration hearing. The decision in McManus (at paragraphs 22-29) sets out the Commissions procedure for conducting the conciliation/arbitration on the same day and applies the obiter view expressed by Ipp JA in Fuentes to these procedures. In my view the delegate correctly determined the claim. Therefore I reject this ground of appeal.

Item 10.01

1. In his application Mr Quarmby’s solicitor claimed $187.50 for the costs of instructing an agent to act. However he also claimed a further $423.50 pursuant to Item 10.1 under a table headed “Disbursements” for the cost of SGRIS attending, filing, inspecting, claiming legal professional privilege and photocopying documents. In further submissions Mr Quarmby’s solicitor claimed $187.50 as the disputed amount under this item and, in my assessment these submissions did not pursue the claim for the agency fees set out above as a disbursement.  The delegate agreed with MTA’s submission that the Commission accepts documents by mail and disallowed the claim noting that the filing of documents is not recoverable as it is covered under Item 4.01 of the Table.

1. I note on appeal Mr Quarmby’s solicitor now claims $187.50 pursuant to Item 10.01 and $423.50 in respect of agency fees under the heading “Disbursements” and the submissions essentially replicate those made under Item 10.01. Deputy President Fleming held in Dunn v Port Macquarie RSL Club Limited [2004] NSWWCCPD 33 (‘Dunn’), at paragraph 41 that to allow the recovery of fees paid to an agent for inspection and photocopying of documents produced under direction fell within the type of activity envisaged under Item 4.05 of the Table and to allow the claim would lead to recovery of an amount exceeding the maximum allowable. I see no error in the delegate’s determination in circumstances where the claim under Item 4.05 was allowed in the maximum. Additionally Items 4.01, 4.02; 4.03A; 4.03B and 4.04 all relating to lodgement and service of documents were allowed as claimed.  I apply the reasoning set out in Dunn and Flegerbein in rejecting this ground of appeal.

Did the delegate err in determining the costs of disbursements?

Agency fees

1. As set out Mr Quarmby’s solicitor claimed $423.50 for agency fees. MTA objected to the claim as 4.05 had been allowed in the maximum. The delegate relied on Dunn in rejecting the claim for inspection and photocopying of documents and noted that filing documents is not recoverable as a disbursement. For the reasons set out at paragraph 25 and in applying the authority contained in Berger I do not considered the costs incurred in the agent filing, attending and inspecting documents necessarily incurred particularly in circumstances where a less expensive means of filing and service is permitted. Additionally one of the types of activity refer to under Item 4.05 is the exchange of information, this process necessitates photocopying. I am not persuaded that the costs were necessarily incurred and I reject this ground of appeal. 

The Report

1. Mr Quarmby’s solicitor claimed $2,119.98 for the Report provided by SGRIS.  MTA’s solicitor objected as the facts were no different from those in the prior proceedings before the Court and liability was never in issue in this matter. The delegate’s reasons demonstrate that he considered if it was fair and reasonable to undertake the work and allowed the claim for the costs of the Report in the reduced amount of $1,150.00 for the cost of taking Mr Quarmby’s statement; taking a statement from Mrs Quarmby; obtaining a wages schedule and preparing a factual report. The application of a test of ‘fair and reasonable’ by the delegate in determining the claim for the costs of the Report was not consistent with an application of Schedule 2 of the LP Regulation (Asimus) and in applying this test the delegate committed an error of law.

1. It is necessary to consider the contents of the Report, the nature of the claim and the issues in dispute in determining whether the cost of the Report was ‘necessarily incurred’ (Asimus and Canham). Mr Quarmby’s claim was for weekly compensation payments from 9 November 2003 to date and continuing together with medical and related expenses. Injury was not in issue in circumstances where the Court made a prior award for much the same injury against MTA and the Insurer continued to pay section 60 expenses. Further in correspondence dated 8 June 2004 the Insurer confirmed that it had paid Mr Quarmby up until 25 January 2004 in accordance with the certificates he provided. MTA disputed the quantum of weekly compensation.

1. The Report dated 3 May 2004 contains: names, addresses and contact details for Mr Quarmby and his wife (who is described as a dependent notwithstanding that Mr Quarmby’s statement is at odds with this assertion); MTA; the Insurer; Mr Quarmby’s medical practitioners; medico-legal consultant’s for the Insurer and Mr Quarmby; a summary of injuries; a factual and liability summary which sets out details of Mr Quarmby’s employment history; current employment and duties; injury; medical history; condition; treatment; symptoms; the award of the Court, and observations regarding authenticity and extracts of medical reports filed in proceedings. Annexed to the Report are: statements by Mr Quarmby and Lynette Marie Quarmby; a business names search of the MTA; copies for medical reports/certificates filed in proceedings (with the exception of the supplementary report of Dr Canaris dated 14 February 2004 and addressed to McCabe Partners), and a schedule of earnings from 1 July 1999 to 3 May 2004.

1. The contact details; Court award; medical information, and description of injury contained in the Report cannot be considered to be ‘necessarily incurred’ when this material should be in the possession of Mr Quarmby’s solicitor particularly as the evidence leads to a conclusion that he acted in the prior proceedings. Further Mr Quarmby’s solicitor was awarded the maximum under Item 2.01 of the Table together with his claim, in full, under Item 2.04 for review of the medical reports annex to the Report and lodged with the application. Further information relating to Mr Quarmby’s injury; employment; spouse and her financial independence is contained in his statement. I find that the Report, in this respect, duplicates material filed in the proceedings and was not necessary to the claim (Berger; Asmimus and Flegerbein). Additionally I do not view the observations of the investigator in respect of authenticity necessary to the claim. Therefore the cost of the Report in this respect is not allowed.

1. In respect of the statement obtained by SGRIS from Mr Quarmby I note that Mr Quarmby’s solicitor did not claim the taking of a statement under Item 2.01 or 2.04A of the Table (McManus). An applicant has been held to be a witness and in the present circumstances I conclude that Mr Quarmby’s claim could not be brought without his statement (see discussion in Asimus at 24-25). The interview was conducted by phone over one hour by a non professional and a further one and a half hours was charged for the cost of the investigator typing the statement. I consider the cost of $225.00 for typing the statement unreasonable. In my view it is reasonable to allow one hour and fifteen minutes for the costs of the statement and in applying the allowance for similar work under Item 2.04A I allow the claim in the amount of $137.50 (including GST).

1. I have considered the statement of Lynette Quarmby and in my view it does not further the claim nor could it be regarded as necessarily incurred in pursuit of the claim. I disallow the costs of the Report in respect of the witness statement as not necessarily incurred.

1. The remaining matter for consideration arising from the Report is the schedule of earnings. The schedule of earnings commences from 1 July 1999 and continues to 3 May 2004. In my view Mr Quarmby’s statement and the medical/rehabilitation reports contain the necessary details regarding his earnings and the schedule is unnecessary and duplicates material filed in proceedings. Accordingly I disallow the costs of the preparing the schedule as not necessarily incurred in pursuit of the claim.

Accountants’ fees

1. Mr Quarmby’s solicitor claimed $5,335.00 for the costs of an accountants’ report. MTA objected as: the report, dated 30 April 2002 and invoiced on 17 May 2002 had been served by Mr Quarmby’s solicitor and relied upon in proceedings before the Court, and weekly compensation is subject to prescribed statutory rates and instructing an accountant in the matter was unreasonable.  The delegate found the submissions regarding prior proceedings “nonsensical” as the report could only be relevant to the claim for weekly compensation. The delegate applied the test of fair and reasonable in finding that the report had little or nothing to do with the claim and was clearly prepared for the purposes of a common law claim for damages. The delegate disallowed the claim.

1. Application of the test of fair and reasonable is inconsistent with the LP Regulations. However I agree with the delegate’s disallowance of the claim for reasons that the costs associated with calculating future losses were not necessarily incurred in pursuit of the claim. Further the cost of the report was unreasonable in circumstances where evidence in support of the claim was readily available from Mr Quarmby at a reasonable cost.

Travel

1. In his application Mr Quarmby’s solicitor set out “Barristers Fees” under disbursements which included reference to travel. However Mr Quarmby stated that he did “not claim the cost of the Barrister’s fee in regards to these proceedings.” Mr Quarmby did not claim these costs in his further submissions. The delegate noted that the claim was withdrawn. I see no error of law in the delegate’s determination. On appeal Mr Quarmby’s solicitor asserts that he claimed $610.00 for “Barrister travel” as a disbursement and the delegate made no allowance. As stated the submissions do not accord with this assertion. I rely on Fuentes [at 100-109] and clause 119 of the WC Regulation in rejecting this ground of appeal.

Summary

1. I have determined the disbursements and professional costs challenged by Mr Quarmby’s solicitor as follows:

Professional Costs
The delegate’s allowance of $125.00 for Item 2.06 is confirmed.
The delegate’s allowance of the maximum of $500.00 for the claim under Item 4.08 is confirmed.
The delegate’s total allowance of $812.50 (plus GST being a total of $893.75) under Items 4.09, 4.10 and 4.11 is revoked.
It is fair and reasonable to allow $250.00 (plus GST being an amount of $275.00) for participating in the teleconference under Item 4.09 of the Table.
It is fair and reasonable to allow $250.00 (plus GST being an amount of $275.00) for participating in the conciliation conference under Item 4.09.
Item 4.10 has no application and I disallow the claim.
It is fair and reasonable to allow $250.00 (plus GST being an amount of $275.00) for participating in the arbitration under Item 4.11.
The delegate’s allowance of $380.00 for Item 4.12 is confirmed.
The delegate’s disallowance of the claim for Item 10.01 is confirmed.

Disbursements
The delegate’s disallowance of the claim for agency fees is confirmed.
The delegate’s allowance for the costs of the Report in the reduced amount of $1,150.00 (including GST) is revoked.
I consider the cost of the Report in the amount of $137.50 (including GST) to be necessarily incurred.
The delegate’s disallowance of the costs for the accountant’s report is confirmed.
The delegate’s notation that the Barrister’s fee was withdrawn is confirmed.

1. The Delegate’s determination of $7,359.35 should therefore be decreased by $1,000.00 to $6,359.35.

DECISION

1. Paragraphs two and four of the decision of the delegate dated 26 August 2005 are revoked and the following orders are made in their place:

“(i) The Applicant’s costs of the substantive proceedings are assessed in the sum of $6,359.35.
(ii) The Respondent is, therefore, to pay to the Applicant a total amount of $6,359.35 if those costs have not already been paid.”

1. Paragraph one of the delegate’s decision referring to the order for costs contained in the ‘Certificate of Determination’ and paragraph three of the delegate’s decision, making no order for the costs of the assessment were not raised on appeal and are confirmed.

COSTS

1. The Appellant has been largely unsuccessful on appeal. I make no order as to costs of the appeal.

E Tydd

Acting Deputy President

28 November 2006

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

ASSOCIATE