Quinn v Burpeen Pty Ltd trading as Tempo Services Ltd
[2007] NSWWCCPD 42
•8 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Quinn v Burpeen Pty Ltd t/as Tempo Services Ltd [2007] NSWWCCPD 42
APPELLANT: Pamela Ivera Quinn
RESPONDENT: Burpeen Pty Ltd t/as Tempo Services Ltd
INSURER:Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER: WCC17933-05
DATE OF REGISTRAR’S DECISION: 3 March 2006
DATE OF APPEAL DECISION: 8 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claims under Items 2.05, 2.06, 4.07, 4.08, 9.01 and 10.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003; whether maximum costs specified in the Table before 17 March 2006 are inclusive of GST; disbursements – agency fees, accountant’s fees, and fee for private investigator’s report.
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Ellison Tillyard Callanan Solicitors
ORDERS MADE ON APPEAL: The decision of the Registrar dated 3 March 2006 is confirmed.
There is no order as to the costs of this appeal.
BACKGROUND
On 23 March 2006, Pamela Quinn filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator. The Respondent to the appeal is Burpeen Pty Ltd t/as Tempo Services Ltd (‘Tempo’). Tempo’s workers compensation insurer is Allianz Australia Workers’ Compensation (NSW) Ltd (‘Allianz’).
Ms Quinn was born on 31 March 1948 and is aged 58. She has two adult children aged 37 and 35, is separated from her husband and living with Christopher Paterson. She claimed workers compensation for injuries to her back, both legs and sexual organs as a result of the nature and conditions of her employment with Tempo as a cleaner from 29 January 1999 to 31 December 2001. On 12 February 2004, the Commission registered her ‘Application to Resolve a Dispute’ in respect of her claim for medical, hospital or related benefits, and for compensation for permanent impairment and pain and suffering. On 4 March 2004, Tempo lodged a ‘Reply’.
On 1 June 2004, an Arbitrator conducted a teleconference with the parties following which the Registrar referred Ms Quinn to two Approved Medical Specialists (‘AMSs’) for examination and assessment. Following this, and the issue of Medical Assessment Certificates, on 20 April 2005, the Arbitrator conducted a further teleconference with the parties during the course of which they came to an agreed resolution of the issues in dispute. On 29 April 2005, the Arbitrator 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 of [sic] $9,000 in respect of 15% permanent loss of efficient use of the Applicant’s back, $3,750 in respect of 5% permanent loss of the Applicant’s right leg at or above the knee and $14,100 in respect of 30% permanent loss of use of the Applicant’s sexual organs making a total of $26,850.00.
2. That the Respondent pay the Applicant, as lump sum compensation under s 67 of the Workers Compensation Act 1987 $13,150 in respect of pain and suffering.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”
On 20 October 2005, the parties having failed to agree on the costs payable, Ms Quinn’s solicitors lodged an ‘Application for Assessment of Costs’ with the Commission. Tempo lodged its submissions in reply on 3 November 2005. The Registrar delegated the assessment of costs to an Arbitrator (‘the Delegate’) who made a determination dated 3 March 2006. The Certificate of Determination stated:
“1. Pursuant to a Certificate of Determination dated 29 April 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 $10,187.66.
3. The Applicant’s costs of the assessment are not allowed.
4. The Respondent is, therefore, to pay to the Applicant a total amount of $10,187.66, if those costs have not already been paid.”
The relevant parts of the Delegate’s Statement of Reasons for her decision are referred to below under the heading ‘Submissions, Discussion and Findings’.
ISSUES IN DISPUTE
Ms Quinn’s solicitors submit the Delegate erred in her determination of their claims in respect of Items 2.05, 2.06, 4.07, 4.08, 9.01 and 10.01, and in disallowing their claim for disbursements in respect of agency fees, an accountant’s fees and a fee for a private investigator’s report. They also submit she erred by failing to allow recovery of an additional amount in respect of GST payable on their professional costs. The parties’ submissions on these issues are considered below.
ON THE PAPERS REVIEW
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.”
Having regard to Practice Directions Numbers 1 and 6, and the documents before me, neither party having 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.
No application to adduce fresh evidence was made.
SUBMISSIONS, DISCUSSION AND FINDINGS
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’) applicable at the time of the Delegate’s assessment, 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 (‘Nebauer’), at paragraph 19; Berger, at paragraph 136.
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.
Ms Quinn’s solicitors identify a number of professional costs Items and disbursements as being in dispute, each of which I will deal with in turn, together with the issue of whether an additional amount in respect of GST payable on their professional costs should be allowed.
Professional Costs
Item 2.05
Item 2.05 is described in column 2 of the Table as “Briefing a factual investigator or other investigator to obtain evidence other than witness statements (not including the investigator’s fee)”. Ms Quinn’s solicitors claimed the maximum of $100 permitted under this Item in respect of briefing St George Registration and Investigation Services Pty Ltd (‘St George’) to prepare a factual and liability summary report. Allianz submitted there was no need for any factual investigation to be carried out.
The Delegate disallowed the claim. She stated it was not clear whether liability was ever in dispute and, having reviewed the report prepared by St George:
“a very large proportion of the work performed involved obtaining statements from the Applicant and one Christopher Paterson. Any factual investigation and reporting to the solicitors for the Applicant were minimal.”
The Delegate said:
“It is clear from the Respondent’s Reply in the substantive proceedings that liability was not in issue here and, in that sense, I accept the Respondent’s submission that the report was not necessary as held in Berger’s case.”
In their submissions on the appeal, Ms Quinn’s solicitors state that Allianz disputed the extent of the permanent loss and impairment claimed and the permanency of any such loss or impairment, raised the issue of whether the degree of permanent impairment was due to a prior injury or a pre-existing condition, and disputed the compensation claimed for pain and suffering. Allianz submits the Delegate exercised her discretion properly, there was no error of law, and the determination should be confirmed.
I have examined the Factual and Liability Summary Report prepared by St George dated 18 January 2003 and the Supplementary Report dated 2 October 2003, which were attached to the ‘Application to Resolve a Dispute’. I agree with the Delegate’s comment that the principal work undertaken appears to have involved taking a statement from Ms Quinn and her boyfriend Mr Paterson and that other factual investigation and reporting was minimal. I am not satisfied that there is any evidence to suggest that the Delegate exercised her discretion unfairly or unlawfully in disallowing Ms Quinn’s solicitors’ claim under Item 2.05.
I note what Deputy President Fleming said in McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’), at paragraph 21:
“Item 2.05 does not encompass briefing a factual investigator to take a statement from a worker/applicant. The costs involved in obtaining a worker’s statement are encapsulated and absorbed by Item 2.01, “Obtaining instructions from client ...”
She confirmed this in Berger at paragraph 141, where she said:
“Item 2.05 does not permit a claim for briefing a factual investigator to obtain witness statements, which includes a statement from the worker.”
I therefore reject this ground of appeal.
Item 2.06
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”. At the relevant time, the amount that could be claimed was $250 per hour subject to a maximum of two hours. Ms Quinn’s solicitors claimed $500 under this Item and relied on letters dated 18 December 2002 and 17 January 2003. Allianz stated that it had sought but not been supplied with copies of these letters and had difficulty accepting that two hours would be spent on this Item. It submitted that, at most, $250 should be allowed.
The Delegate noted that copies of the letters had been attached to Ms Quinn’s solicitors’ submissions in reply. She considered it fair and reasonable to allow the Applicant one hour ($250), commenting that the maximum of $500 would have been fair and reasonable had liability been in issue and had the dispute involved claims for weekly compensation and medical expenses. However, this was not the case here.
In submissions on the appeal, Ms Quinn’s solicitors submit it makes no difference whether liability was in dispute and what the nature of the entitlements claimed was. All the work had to be prepared in order to request a review by the insurer.
I have reviewed the letters dated 18 December 2002 and 17 January 2003. The first is essentially a letter of claim while the second requests a review. Obtaining and reviewing medical reports and lodging a claim with the insurer are covered by Items 1.01 and 1.02 in respect of which Ms Quinn’s solicitors claimed the maximum allowed. I note that the letter of claim referred to in relation to Item 1.02 is dated 3 December 2003, later in time than the letters nominated as requesting a review from the insurer.
In the circumstances, I am not satisfied that there is anything to suggest that the Delegate did not exercise her discretion fairly and lawfully, and I therefore reject this ground of appeal.
Item 4.07
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...”. Ms Quinn’s solicitors claimed $200 under this Item in respect of referrals to the AMSs Dr Bodel and Dr Breslin, “including receiving in letters [sic] from the Workers Compensation Commission, advising the client of the medical appointment, requesting the Applicant’s travelling expenses and finally reviewing the report of the AMS”. Allianz suggested a payment of $100 because referral to an AMS “is a simple procedure carried out at a teleconference and just because there are a number of specialties we submit that the Applicant is still restricted to the $100.00 maximum”. In their submissions in reply, Ms Quinn’s solicitors referred to the NSW Court of Appeal decision in Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282 (‘Fuentes’) in support of their claim that the Applicant is entitled to the payment of two amounts under Item 4.07 because of the two AMSs to whom Ms Quinn was referred.
The Delegate disallowed the claim for $200 under this Item, relying on the decision in Berger, where Deputy President Fleming held, at paragraphs 108 - 109:
“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 ... It was the Commission that copied all the relevant material to go to the AMS, corresponded with the parties and disseminated the Medical Assessment Certificates.”
The Delegate said the referral to the AMS “has not resulted in any additional activity” (Berger at paragraph 109) for the Applicant’s legal representatives at all.
In their submissions on the appeal, Ms Quinn’s solicitors point to the work undertaken by them in notifying the Applicant of the medical appointment and, where necessary, requesting prepayment of expenses and making transport arrangements.
I note that Deputy President Fleming said in Berger, at paragraph 108 (quoting the relevant passage in full):
“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.”
This was what happened in Ms Quinn’s case. The referral took place following a teleconference, when the Arbitrator directed that Ms Quinn be referred to an AMS for assessment. Thus, following Berger, Ms Quinn’s solicitors’ costs in this regard are subsumed into Item 4.09 in respect of which the Delegate allowed the $250 claimed.
With regard to whether the maximum under Item 4.07 may be claimed for more than one activity/event, in Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28 (‘Orr’), Deputy President Fleming discussed the application of column 4 of the Table in Schedule 6. Column 4 bears the heading “Maximum total for type of activity/event”. With reference to clause 1(2) of Schedule 6, the heading for column 4, and the NSW Court of Appeal decision in Fuentes, the Deputy President said, at paragraph 38:
“the monetary values set out in Column 4 of the Table, are the maximum total for an event type in any particular claim, regardless of the number of individual activities that may take place under the event heading.”
Thus, in respect of Item 4.07, the legal practitioner may not be allowed more than the column 4 maximum regardless of the number of AMS referrals. (The only exception to the general principle, as Deputy President Fleming recognised in McManus, is in respect of Item 4.12 where, following Fuentes, the column 4 maximum of $190 may be allowed in respect of each conference or conciliation/arbitration.)
The Delegate’s disallowance of Ms Quinn’s solicitors’ claim under this Item is therefore confirmed.
Item 4.08
Item 4.08 is described in the Table as “Preparing for a conference (including providing advice to client”. At the relevant time, the maximum total for that type of activity or event was $500. In their Bill of Costs, Ms Quinn’s solicitors listed two conferences (1 June 2004 and 20 April 2005), and claimed $500 in respect of each. Allianz objected that the maximum allowable under Item 4.08 is $500 regardless of the number of conferences. The Delegate agreed and held that the Applicant could not claim more than the maximum of $500, irrespective of the number of conferences.
In their submissions on the appeal, Ms Quinn’s solicitors rely on the decision in Fuentes. However, in my view, they appear to have misinterpreted Justice Ipp’s judgment. As stated above, the column 4 maximum is the maximum total that may be claimed for an event type in any particular claim, regardless of the number of individual activities that may take place under the event heading. The exception recognised in Fuentes was only in relation to Item 4.12. Thus, in respect of Item 4.08, the Delegate was correct in disallowing Ms Quinn’s solicitors’ claim for an additional $500, and the appeal in respect of this Item must be rejected.
Item 9.01
The activity/event for which a claim may be made under Item 9.01 is described in column 2 of the Table as “Conduct of any other proceedings before the Commission involving the determination of substantive legal issues, including preparatory work”. This includes a claim for the cost of a costs assessment. Ms Quinn’s solicitors claimed $625 under this Item in respect of their costs of the assessment. The Delegate found that “[t]he Applicant was unsuccessful in this Application”, and made no order as to the costs of the assessment.
In their submissions on the appeal, Ms Quinn’s solicitors maintain their claim for the costs of the assessment because Allianz’s solicitors were only prepared to negotiate on the basis that they would make recommendations for payment to their client: it therefore had to be assumed that the Respondent’s offer in relation to costs was nil, so that the Delegate’s assessment clearly “beat that offer”.
I do not accept this argument. It appears that the parties were in dispute over five costs Items and a significant sum in respect of disbursements. The total costs and disbursements claimed amounted to $16,759.18; the Delegate allowed $10,187.66, either disallowing or reducing the costs and disbursements in dispute. The Delegate’s statement that the Applicant was unsuccessful in the assessment was, therefore, essentially, accurate and I am not satisfied that she exercised her discretion unfairly or unlawfully in making no order as to the costs of the assessment. Thus, I reject this ground of appeal.
Item 10.01
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”. Allianz responded that despite having requested details of the claim, they were unaware of the basis of the claim, which should, therefore, be disallowed. In their reply, Ms Quinn’s solicitors stated that they wrote to St George on four occasions requesting that they file documents and, on three other occasions wrote to St George asking them to photocopy documents.
The Delegate disallowed Ms Quinn’s solicitors’ claim on the basis that “[t]here is no cost Item in the schedule for filing documents in the Commission nor any cost Item allowing for photocopies or the act of photocopying”. Moreover, the Delegate said, referring to the definition of ‘agent’ in section 356(6) of the 1998 Act, Item 10.01 “does not include an agent engaged to perform an administrative function such as attending to file documents or to photocopy”.
In their submissions on the appeal, Ms Quinn’s solicitors submit the definition of agent in section 356(6) does not apply to ‘agents’ contemplated under Item 10.01.
Section 356 is concerned with representation before the Commission and the definition of agent is limited by the words “In this section, agent means ...”. If Item 10.01 contemplates instructing an agent in the representation of a client, then clearly Ms Quinn’s solicitors’ claim, being in respect of instructions given to file documents and photocopy, is outside the scope of the Item. To my knowledge, this is not an issue that has been determined, and in my view, it is not necessary for me to do so. Reviews of claims made under Item 10.01 have tended to focus on the type of work undertaken and whether it was reasonable to instruct an agent to perform such work. In this case, for example, there is no reason why the documents could not have been filed through the post or via DX, and I do not therefore consider the instructions in respect of filing to be reasonably necessary.
Moreover, the inspection and photocopying of documents is covered under Item 4.05 (“Reviewing documentation produced under a direction of the Commission...”). I note that Ms Quinn’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.
Thus, I am not persuaded that the Delegate made any error in disallowing the claim under Item 10.01, and I therefore reject this ground of appeal.
Disbursements
Agency Fees
Ms Quinn’s solicitors claimed agency fees of $286 for work undertaken by St George, comprising filing fees of $88 (for filing on four occasions, at $22, including GST, on each occasion) and fees of $198 for “Inspection of documents, to claim legal professional privilege over and photocopying documents” (on three occasions, at $66, including GST, per occasion). While not objecting to some agency fees, Allianz submitted that the filing on 4 March and 19 March 2003 did not relate to these proceedings and should not be allowed and, similarly, the inspection of documents on 9 May 2003.
The Delegate reiterated that there is no cost Item in the Schedule allowing for the filing of documents in the Commission nor for photocopying. She relied on the decision in Dunn that the inspection and photocopying of documents is encompassed under Item 4.05.
In their submissions on the appeal, Ms Quinn’s solicitors state that the Applicant does not seek to recover the costs of the photocopying the documents produced, but rather the cost of attending the Commission and claiming legal professional privilege. Because Ms Quinn’s solicitors are located in Young, they contend it is necessary to instruct an agent to undertake this work.
As Deputy President Fleming pointed out in Flegerbein, at paragraph 34:
“the costs referred to in clause 82 [of the 2003 Regulation], and therefore not regulated by Part 19 and Schedule 6, are specifically listed in sub-clauses (a) to (j) as, for example, is ‘fees for an investigator’s report’. All other costs that are not recoverable by legal practitioners and agents in Commission matters are regulated by Schedule 6 (clause 84 of the WC Regulation). The fees claimed here are not for an investigator’s report (clause 82(b)). They are for photocopying and for other activities already covered and claimed, under the Compensation Costs Table in Schedule 6 of the WC Regulation.”
In this case, as noted above, Ms Quinn’s solicitors have already claimed and been allowed the maximum amount permitted under Item 4.05 for reviewing documentation produced under direction. As in Dunn, to allow this claim twice in relation to the same activity would be an error. In particular, I note that claiming legal professional privilege is a legal service that can only be recovered if provided for pursuant to Schedule 6.
With regard to the filing of documents, as I stated above, there is no reason why the documents could not have been filed through the post or via DX. I also note that the filing on 4 March 2003 and 19 March 2003 appears to have taken place before the commencement of proceedings in the Commission (the ‘Application to Resolve a Dispute’ was registered on 12 February 2004) (as did the inspection of documents on 9 May 2003). I do not therefore consider the fees claimed in respect of filing to be fair and reasonable.
Thus, I reject Ms Quinn’s solicitors appeal in relation to agency fees.
Accountant’s Fees
Ms Quinn’s solicitors claimed a disbursement of $198 (including GST) in respect of fees paid to an accountant “for photocopying of 1994 to 2002 returns”. Allianz submitted this fee was not allowable because it is merely for photocopying. In their reply, Ms Quinn’s solicitors stated that fees “are not items which the Act applies to and therefore the Applicant is entitled to be recompensed”. The Delegate disallowed the claim on the ground that there is “no cost item in the Schedule that allows for photocopying”.
In their submissions on the appeal, Ms Quinn’s solicitors submit that these fees fall under clause 82 (d) of the 2003 Regulation. In my view, this is incorrect. Clause 82(d) refers to “fees for accountant’s reports”. There was no such report in this case. The fee was purely in respect of photocopying, and I agree with the Delegate that there is no provision for recovery of such a disbursement in the Schedule, nor in clause 82. I therefore reject this ground of appeal.
Fee for Private Investigator’s Report
Ms Quinn’s solicitors claimed $3,667.45 in respect of St George’s fees for preparing a factual and liability summary report dated 3 July 2003 and a supplementary report dated 6 November 2003. Allianz submitted that a factual investigation was not required and that a claim under Item 2.01 (“Obtaining instructions from client”) had been allowed. Moreover, part of the fees charged by St George “appear to relate to prior instructions”. The Delegate disallowed the claim. She reiterated:
“it is clear to me that a very large proportion of the work performed involved obtaining statements from the Applicant and one Christopher Paterson, which has already been allowed under Item 2.01. Any factual investigation and reporting to the solicitors for the Applicant were minimal.”
In their submissions on the appeal, Ms Quinn’s solicitors submit that Item 2.01 does not provide adequate remuneration for the costs of obtaining statements from the Applicant and a witness, Christopher Paterson. It is legitimate to retain an investigator to obtain witness statements and gather other information. Here the investigator obtained supplementary statements from the Applicant and Mr Paterson. Thus, Ms Quinn’s solicitors contend that the fee for the investigator’s services was fair and reasonable.
As stated above, I have reviewed St George’s reports and its invoices dated 3 July 2003 and 6 November 2003. The first invoice (for $1,934.62) includes fees for a client service agreement ($140), for “Perusal of correspondence from McCabe Partners Lawyers” ($390.00), for “Telephone conference with claimant” ($155.00), for “Secretary typing statement” ($200.00), for “Research Factual and Liability Summary” ($150.00), for “Dictating letter to McCabe Partners” ($150.00), for “Letter to McCabe Partners Lawyers” ($113.00,) and “Telephone conference with Mr Paterson” ($65.00) and “Secretary typing statement” ($38.00). It is not clear whether any of the work undertaken related to prior instructions. The second invoice (for $962.83) includes further fees for “Perusal of correspondence from McCabe Partners” ($135.00), fees connected with obtaining supplementary statements (a total of $387.00), and fees connected with preparing a further factual and liability summary report, and dictating, typing copying and sending this to McCabe Partners with a covering letter ($252.50).
In Berger, at paragraph 142, Deputy President Fleming, recognising that the fee for an investigator’s report may be claimed pursuant to clause 82(b) of the 2003 Regulation, noted:
“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 such statements, either at the time of taking instructions or at a later time, but before an application to the Commission is filed.”
The Deputy President confirmed that where an activity may be claimed as a cost for which provision is made in the Table, a separately claimed disbursement in respect of that activity by a private investigator would not be considered reasonable. In McManus, at paragraph 21, Deputy President Fleming noted that “the costs involved in obtaining a worker’s statement are encapsulated and absorbed by Item 2.01”, where the activity/event is described as “Obtaining instructions from a client”.
Thus, no disbursement may be claimed in respect of the statement from Ms Quinn, which one would expect to see prepared by her solicitor subsequent to taking instructions from him. In my view, other disbursements, for example in respect of a client service agreement, do not fall within clause 82(b) of the 2003 Regulation, or are not fair and reasonable - for example, the total of $525.00 claimed for perusal of correspondence, and the fees connected with the taking of statements.
Noting my comments at paragraph 17 above, in relation to Item 2.05, I am not satisfied that the Delegate exercised her discretion unlawfully or unfairly in disallowing the claim, and I therefore reject this ground of appeal.
GST
Ms Quinn’s solicitors also claimed GST in respect of their professional costs claimed under Items in the Table. The Delegate disallowed their claim relying on the decision in Berger that “makes it clear that GST on professional costs is not an allowable item”. In their submissions on the appeal, Ms Quinn’s solicitors submit the Delegate denied them natural justice by not inviting them to make submissions on this issue, which was not an issue in dispute between the parties.
Whether the maximum costs specified in the Table are inclusive of GST is an issue I addressed in Chapman v Gosford City Council [2006] NSWWCCPD 4, at paragraphs 14 to 18. I concluded there that the maximum amount allowable for a particular activity or event in the Table must be interpreted as being inclusive of GST. I remain of that view. I note, in particular, Deputy President Fleming’s statement in Berger, at paragraph 156:
“The 1998 Act and the WC Regulation are silent in relation to the power of an Assessor to increase the award of costs pursuant to the Compensation Costs Table by the amount of any GST payable. Costs regulated by Schedule 6 are expressed to be the ‘maximum costs that are recoverable’ (clause 84 of the WC Regulation). There is no provision that expressly allows GST to be awarded in addition to the ‘maximum costs’ allowed in the Table.”
Since this decision, with effect from 17 March 2006, clause 123(1) of the 2003 Regulation has been specifically amended to permit costs recoverable in compensation matters to be increased “by the amount of any GST payable in respect of the service to which the cost relates, and the cost as so increased is taken to be the cost fixed by this part”.
In the current matter, the services were performed and the Delegate’s assessment was made before the above amendment took effect, and the Delegate was therefore correct in disallowing a claim for GST to be added to the costs claimed in respect of Items in the Table. Thus, while I am sympathetic to Ms Quinn’s solicitors’ complaint that the Delegate did not afford them an opportunity to make submissions on this issue, it not having been in dispute between the parties, I am, nevertheless, satisfied that the Delegate’s determination on this issue was correct. The parties having now had an opportunity to make submissions on this issue, I confirm the Delegate’s determination and reject the ground of appeal.
DECISION
I have rejected all Ms Quinn’s solicitors' grounds of appeal and, consequently, confirm the Delegate’s decision. The decision of the Registrar dated 3 March 2006 is confirmed.
COSTS
There is no order as the costs of this appeal.
Robin Handley
Acting Deputy President
8 February 2007
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.
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