Ritchie v GrainCorp Operations Limited
[2007] NSWWCCPD 44
•12 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Ritchie v GrainCorp Operations Limited [2007] NSWWCCPD 44
APPELLANT: Joshua John Ritchie
RESPONDENT: GrainCorp Operations Limited
INSURER:Self-Insured
FILE NUMBER: WCC15137-05
DATE OF REGISTRAR’S DECISION: 19 December 2005
DATE OF APPEAL DECISION: 12 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; costs of disbursements; failure to consider relevant material; Items 2.05; 4.08; 4.09; 4.10; 4.11; 4.12; 9.01, and Clause 2 of Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER: Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners
Respondent: Goldbergs Lawyers
ORDERS MADE ON APPEAL: 1. Paragraphs one, two and four of the decision of the delegate dated 19 December 2005 are revoked and the following orders are made in their place:
“(i) Pursuant to Consent Orders dated 30 April 2005, the Respondent is liable to pay the Applicant’s costs as agreed or assessed.
(ii) The Applicant’s costs of the substantive proceedings are assessed in the sum of $10,008.30.
(iii) The Respondent is, therefore, to pay to the Applicant a total amount of $10,008.30 if those costs have not already been paid.”
2. Paragraph three of the delegate’s decision making no order for the costs of the assessment is confirmed.
3. The Respondent GrainCorp, to pay the Appellant, Mr Ritchie, $275.00 inclusive of GST in respect of his costs in this appeal.
BACKGROUND
Prior proceedings
Joshua John Ritchie (‘Mr Ritchie’) lodged two ‘Applications to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’). The first application was lodged on 16 May 2003 (WCC 9991-03) seeking provisional and ongoing payments of weekly compensation and the second application was lodged on 27 May 2003 (WCC 10446-03) seeking lump sum compensation totalling $44,700.00 pursuant to section 66 of the Workers CompensationAct 1987 (‘the 1987 Act’) and compensation pursuant to section 67 of the 1987 Act totalling $80,000.00. Mr Ritchie named GrainCorp Operations Limited (‘GrainCorp’) as the Respondent employer in both applications and claimed to have sustained frank injuries to his back, left and right legs in the course of his employment with GrainCorp on 16 May 2002 and 15 September 2002. Mr Ritchie also claimed that he sustained injuries to his back and left and right legs as a result of the nature and conditions of his employment from September 1999 to 31 December 2001 and from 1 January 2002 to 31 January 2003. Mr Ritchie also claimed loss of use of sexual organs as a result of the injuries claimed.
GrainCorp filed a Reply to the first application on 3 June 2003 and a Reply to the second application on 27 June 2003. GrainCorp is self insured.
Directions requiring GrainCorp to make interim payments pursuant to section 298(1) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) were made on 23 June and 8 September 2003 and again on 12 January 2004.
A teleconference was conducted by a Commission arbitrator (‘the Arbitrator’) on 28 August 2003. The Arbitrator made procedural directions which included that, following referral to two Approved Medical Specialists (‘AMSs’), the two applications be joined. On 5 February 2004 the Medical Assessment Certificates of the two AMSs were issued. Both the orthopaedic surgeon assessing Mr Ritchie’s back, left leg and right leg and the urologist assessing loss of sexual organs assessed Mr Ritchie as having 0% whole person impairment as a result of injuries claimed.
Mr Ritchie lodged an ‘Appeal Against Decision of Approved Medical Specialist’ on 19 February 2004 in relation to the assessment conducted by the orthopaedic surgeon. On 12 March 2004 GrainCorp lodged an ‘Application to Revoke an Interim Payment Direction’. A teleconference was conducted before an Arbitrator on 8 April 2004 at which time a Consent Order was made revoking the Direction which required GrainCorp to make interim payments of weekly compensation to Mr Ritchie and the dispute was set down for a conciliation/arbitration on 27 April 2004. The dispute was resolved by consent on that day. The Arbitrator issued a ‘Certificate of Determination – Consent Orders’ dated 30 April 2004 confirming the parties agreement that the matter be discontinued and that GrainCorp pay Mr Ritchie’s costs as agreed or assessed. The orders noted that GrainCorp had agreed to pay Mr Ritchie’s weekly wages to 27 April 2004 “on an ex gratia basis”.
On 6 September 2005 Mr Ritchie’s solicitor lodged two ‘Applications for Assessment of Costs’ referring to matter number WCC 9991-03 in one application and matter WCC 10446-03 in the other. The solicitor for GrainCorp lodged submissions in reply on 11 October 2005. Mr Ritchie’s solicitor lodged further submissions addressing both applications on 25 October 2005.
The Registrar’s decision in relation to these applications, by her delegate, a Commission Arbitrator, (‘the delegate’) was made on 19 December 2005. The delegate’s decision was accompanied by a ‘Statement of Reasons’ which refer to the two applications; the Reply filed by GrainCorp and the further submissions from “the Applicant in reply.” The decision is set out as follows:
“1. Pursuant to Terms of Settlement, the Respondent is liable to pay the Applicant’s costs of the proceedings as agreed or assessed.
2.The Applicant’s costs of the proceedings are assessed in the sum of $9,5551.80 [sic $9,551.80].
3.No order as to the Applicant’s costs of the assessment.
4.The Respondent is, therefore to pay the Applicant a total amount of $9,551.80, if those costs have not already been paid.”
Lodgement of the appeal
On 24 January 2006 Mr Ritchie’s solicitor lodged an ‘Appeal from the Registrar’s Determination on Costs’.
On 23 February 2006 the solicitor for GrainCorp lodged submissions in reply to the Appeal.
ON THE PAPERS
Section 354(6) of 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.”
Neither party has made submissions in respect of the requirement for a formal hearing. 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, DISCUSSION AND FINDINGS
Issues in dispute
On my assessment of Mr Ritchie’s solicitor’s submissions it is put forward that the 1998 Act provides different regimes for the time between lodgement of the application and referral for resolution. Therefore a worker should not be forced to delay an application to seek the expeditious payment of weekly compensation until he is able to lodge a claim for lump sum compensation. It is also submitted that the Commission’s “procedures did not allow for the amendment” of the claim. On this basis it is submitted that there were two different disputes before the Commission which could not be lodged concurrently; GrainCorp used both sets of proceedings to settle Mr Ritchie’s claim and therefore Mr Ritchie’s solicitor is entitled to the costs of both applications. Mr Ritchie’s solicitor also submits that the “Terms of Consent Awards” makes the determination “outside the Arbitrator’s powers” as in WCC 9991-03 it was “determined” that GrainCorp pay Mr Ritchie’s costs and in WCC10046-2003 GrainCorp agreed to pay Mr Ritchie’s costs. Additionally, Mr Ritchie’s solicitor submits that the delegate erred in failing to consider relevant material; being his submissions dated 20 October 2005. This general submission fails to identify any individual item determined by the delegate. The submissions in relation to the delegate’s determination of 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’) are set out below. GrainCorp’s solicitor submits the total amount claimed by Mr Ritchie’s solicitor is grossly excessive and as both applications were made in respect of the same injury and lodged less than 12 months apart the applicant is not entitled to recover any claim twice and further there was no reason not to include both claims in one application. GrainCorp’s solicitor also repeats and adopts its earlier submissions in relation to the items set out under the Table.
Following consideration of the relevant legislation I will deal with each disputed item in turn. The following matters are in dispute:
·whether the delegate erred in determining Clause 2 of Schedule 6 of the WC Regulation and Items 2.05; 4.08; 4.09; 4.10; 4.11; 4.12; and 9.01 of the Table;
·whether the delegate erred in determining the costs of disbursements, and
·whether the delegate erred in failing to consider relevant material.
The relevant legislation
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 decisions: Orellana Fuentes v Standard Knitting Mills Pty Ltd & Anor [2003] NSWCA 146 (‘Fuentes’); Berger v Moree Plains Shire Council[2005] NSWWCCPD 152 (‘Berger’); Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCCPD 28 (‘Orr’); McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’), and Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWWCCPD 30 (‘Flegerbein’) and need not be canvassed again in this decision.
I apply the reasoning in Woodbury v Miles [2006] NSWWCCPD 55 in finding that the WC Regulation and Legal Profession Regulation2002 (‘the LP Regulation’) apply as the consent order which gave rise to GrainCorp’s obligation to pay costs was made on 30 April 2004. Whilst I note that the delegate’s Statement of Reasons refers to this obligation arising as a result of “Terms of Settlement” in my view the obligation arose as a result of the Consent Orders set out at paragraph 7 of this decision. Accordingly the application was properly entertained pursuant to clause 99 of the WC Regulation. Of particular relevance to the matters raised on appeal is clause 84 of the WC Regulation which fixes the maximum costs recoverable by legal practitioners and agents to those set out in the Table. In the present matter Clause 1(2)(a) of Schedule 6 of the WC Regulation applies in respect of the claim for lump sum compensation and Clause 1(2)(b)(ii) applies in respect of GrainCorp’s discontinuance of weekly payments. However both provisions limit the allowable amount to that specified in Column 4 of the Table. The maximum permissible under the Table has been considered by the Commission in a number of decisions including Berger and Orr. These decisions set out the Commission’s reasoning and application of the authority provided in Fuentes in respect of the maximum amount allowable under the Table being the maximum total for the type of activity/event set out in Column 4.
Clause 110 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.
Clause 119(1) 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. An error of law arises only where the discretion can be said to have miscarried because it has been exercised unfairly and unlawfully (see discussion in Flegerbein at paragraphs 27 – 29).
The claim for disbursements must be assessed pursuant to Schedule 2, Pt 1, Item 10 of the LP Regulation which 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)
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 Clause 2 of Schedule 6 of the WC Regulation and Items 2.05; 4.08; 4.09; 4.10; 4.11; 4.12; and 9.01 of the Table?
Clause 2 of Schedule 6
As set out Mr Ritchie’s solicitor made two applications for the assessment of costs and relied upon the “Terms of Settlement” in each separate application in submitting that the claims should not be assessed in accordance with Clause 2 of Schedule 6 of the WC Regulation. GrainCorp’s solicitor relied upon Clause 2 of Schedule 6 in submitting that the maximum set out under the Table should apply regardless of how many times the activity or event is carried out. The delegate considered the exceptions provided in Clause 2(2) which grant the Commission or the Registrar discretion to order that the claims be treated as separate claims for the purpose of calculating the costs. However the delegate was not satisfied that the exceptions had been made out in that the applications were lodged one week apart; the costs to be incurred could have been foreseen at the time the costs were first incurred; and the Arbitrator was not asked to make an order that the claims be treated separately. The delegate also found that at the time of lodgement in the first matter, Mr Ritchie’s solicitor had given notice of the claim for lump sum compensation. Further the delegate was not satisfied that the claims could not have been made together in a single application. Accordingly, the delegate was not satisfied that the activities/events should be treated separately in so deciding the delegate applied the maximum allowable in relation to each item of the Table.
The application of Clause 2 of Schedule 6 of the WC Regulation was considered by the Commission in Berger and is set out as follows:
“2 Multiple claims or disputes in respect of an injury to be treated as a single claim or dispute
(1) In the event that more than one claim is made in respect of a particular injury, or more than one dispute arises in respect of a claim, the maximum total costs for a type of activity or event in respect of the injury, regardless of how many times the activity or event is carried out, is the maximum set out in Column 4 of the table in relation to that type of activity or event.
(2) Subclause (1) does not apply if:
(a) a period of more than 12 months has elapsed between the making of the first claim in respect of the injury and the making of a subsequent claim (and the same applies to each claim subsequent to that claim), or
(b) a period of more than 12 months has elapsed between the notification of the first dispute in respect of the claim and the notification of a subsequent dispute (and the same applies to each dispute subsequent to that dispute), or
(c) the Commission or the Registrar orders that the claims or disputes are to be treated as separate claims or disputes for the purposes of the calculation or assessment of costs.
(3) The Registrar may, on application, order that subclause (1) does not apply to costs incurred in respect of a claim or dispute if satisfied that the need for the costs to be incurred could not have been foreseen at the time that costs for the type of activity or event concerned were first incurred in connection with the injury.
(4) No costs are payable or recoverable in respect of an application for the purpose of subclause (3).”Mr Ritchie’s solicitor submits that the Commission’s ‘Procedures’ do not allow amendment of an application. This issue was dealt with in Berger at paragraph 81 and I adopt the reasoning set out in that decision in finding that Rule 17 of the Workers Compensation Rules 2003, in force at the relevant time, allows for the amendment of documents filed in the Commission on the application of any party. Accordingly, I reject Mr Ritchie’s solicitor’s submission in this regard. In relation to the submissions that the delegate acted “outside” his powers in determining the claims which were both resolved by the party’s Terms of Settlement as set out at paragraph 15 of this decision, I am satisfied that the obligation to pay costs in relation to both proceedings arose in relation to the Consent Orders dated 30 September 2004. Whilst the orders do not refer to both file numbers they post date the procedural direction made on 28 August 2003 that the two applications be joined and the orders refer to the claims made in both applications. Therefore in my view the delegate was empowered to entertain the application pursuant to Clause 99 of the WC Regulation.
I am satisfied that the exceptions set out in Clause 2(2)(a), (b) and (c) of Schedule 6 of the WC Regulation do not apply. Following my review of the documents filed in both the original proceedings and having regard to Mr Ritchie’s solicitor’s notice of the claim made pursuant to section 66 ad 67 of the 1987 Act dated 18 March 2003 I see no reason why the second application should be treated as a separate dispute for the purpose of the assessment of costs. Further as distinct from the facts before the Commission in the matter of Bar Beach Bowling Club Ltd v McGill [2006] NSWWCCPD 2, I am satisfied that the injuries arose from the same incident. Additionally, following my consideration of the requirements of Clause 2 of Schedule 6 Mr Ritchie’s solicitor’s submissions regarding GrainCorp’s reliance upon the two sets of proceedings have no application and are misconceived. Accordingly I am satisfied that the delegate properly considered the two separate claims and the requirements of Clause 2 of Schedule 6 of the WC Regulation in determining the applications. Therefore I reject this ground of appeal.
Item 2.05
Mr Ritchie’s solicitor claimed $100.00 pursuant to Item 2.05 for the costs of briefing a factual investigator. GrainCorp’s solicitor objected to the claim as there was no evidence obtained other than the worker’s statement which is covered under Item 2.01. The delegate’s reasons simply state that he was “not satisfied that it was reasonable to retain and brief an investigator”.
On appeal Mr Ritchie’s solicitor submits that GrainCorp “put everything in issue” and given the separate claims made and the basis of GrainCorp’s termination of weekly payments it was necessary to brief a factual investigator.I have considered the applications and the issues in dispute between the parties which involve injuries dating back to 1999 and on balance I am satisfied that it was fair and reasonable to instruct an agent and I allow the claim in the amount of $110.00 (including GST).
Item 4.08
Mr Ritchie’s solicitor claimed $1500.00 for the costs of preparing for two telephone conferences and for preparing for the conciliation/arbitration. GrainCorp’s solicitor conceded the maximum provided under the Table of $500.00. The delegate relied on the authority provided by the decision in Orr and allowed the claim in the maximum.
On appeal Mr Ritchie’s solicitor maintains his claim and contends that the maximum permissible is allowable in respect of each conference as the Table refers to “a” conference. I have considered the file of the substantive proceedings and whilst I am satisfied that two teleconferences and a conciliation/arbitration took place I find no error in the delegate’s determination that the maximum allowable under this item is $500.00 and his reliance on the authority provided by the Commission’s decision in Orr. Accordingly I reject this ground of appeal.
Item 4.09; 4.10 and 4.11
Mr Ritchie’s solicitor claimed $250.00 for the costs of attending and participating in the teleconference conducted on 28 March 2003, $250.00 for the teleconference conducted on 8 April 2004, and $1,000.00 for attending and participating in the conciliation/arbitration hearing conducted on 27 April 2004. GrainCorp’s solicitor conceded the claim in the maximum of $1,000.00 under Item 4.09. However GrainCorp’s solicitor objected to the claim made under Item 4.10 on the basis that the matter was settled at conciliation did not proceed to arbitration and further submitted that the matter was not determined to be ‘complex’ by the Arbitrator. The delegate allowed the claim in the amount of $250.00 for each of the teleconferences. The delegate was satisfied that the conciliation conference was conducted over four hours and applied the maximum in allowing $1,000.00. The delegate made no allowance for the arbitration hearing.
On appeal Mr Ritchie’s solicitor maintains his claim and refers to the costs of travel and attending conferences with Counsel in support of the claim for $1,500.00 pursuant to Item 4.09 and a further $250.00 under Item 4.11 as “It does not make any difference whether the matter settles at Conciliation or Arbitration”. The submissions also make reference to a claim under item 4.10.
Item 4.10 has no application in circumstances where the matter was resolved by consent (see discussion in McCaffery v JG Harris [2006] NSWWCCPD 317) and accordingly I reject this ground of appeal. In relation to the claim under Item 4.09 as set out at paragraph 14 of this decision the maximum amount permissible under the Table has been determined to be the amount set out in Column 4, and for this event\activity that amount is $1,000.00. GrainCorp conceded the amount in the maximum and I find no evidence on appeal that either of the teleconferences or the conciliation conference were conducted over a lesser time than that found by the delegate. Accordingly I see no error in the delegate’s determination to allow the claim in the maximum. Therefore I reject this ground of appeal.
I am not satisfied on the evidence before me that the matter proceeded to arbitration. Item 4.11 applies only in relation to the costs incurred in “Attending and participating in an arbitration hearing” and I find no error in the delegate’s determination in this regard. Therefore I reject this ground of appeal.
Item 4.12
In his application for assessment of costs referable to WCC 9991-03 Mr Ritchie’s solicitor did not make a claim under Item 4.12. However in his application referable to WCC 10466-03 he claimed a total of $570.00 for the costs of three reports to his client. In further submissions dated 20 October 2005 Mr Ritchie’s solicitor referred to four events being the two teleconferences and both the conciliation conference and arbitral hearing conducted in this matter. GrainCorp’s solicitor conceded an allowance of $190.00 for one event. The delegate referred the decision in Fuentes as authority that only two reports were permissible and allowed the claim in the amount of $380.00.
In the present case there were two teleconferences and a conciliation conference. In McManus the Commission held that an allowance can be made for reporting to a client after both ‘a’ teleconference and ‘a’ conciliation/arbitration conducted on the same day. In doing so the Commission applied the obiter view expressed by Ipp JA in Fuentes to the Commissions procedures (see discussion in McManus paragraphs 22-29). The decision in Fuentes was also considered by the Commission in Harvey v JJC Group Pty Limited[2006] NSWWCCPD 329 in which ADP Handley noted:
“... There is an exception to the general principle in relation to the column 4 maximum total in respect of Item 4.12, following Fuentes (Orellana Fuentes v Standard Knitting Mills Pty Limited & Anor [2003] NSWC 16) so that the maximum of $190.00 may be allowed in respect of each conference or conciliation/arbitration.”
Whilst the Commission’s procedures allow for one teleconference I am satisfied that the Commission scheduled three teleconferences. However only two were conducted by an Arbitrator. A solicitor needs to report to the client after each teleconference or conciliation/arbitration and on occasion there may be more than one of each (Piening-Cochrane v PL & MR Wilde t/as Wilde Earthmoving[2006] NSWWCCPD 340). I am satisfied that three activities took place and an allowance for three activities is not at odds with the authority provided in Fuentes. Accordingly I find that the delegate erred in his determination to allow the amount of $380.00. I allow the claim in the amount of $570.00.
Item 9.01
In his application made in respect of WCC10466-03 Mr Ritchie’s solicitor claimed a total of $625.00 under Item 9.01 in respect of the submissions “with regards to the [AMS’s] determination”. However his later submissions refer to a claim for the costs of preparation of the bill and preparation of a reply to the “Respondent’s notice of objection” and a claim of $625.00 “in regards to both items”. GrainCorp’s solicitor objected. In respect of costs of the assessment, GrainCorp’s solicitor submits that the cost claimed will greatly exceed the allowance and it follows that the “Applicant is liable for the Respondent’s and the Registrar’s costs in relation to the assessment of costs.” The delegate determined that Item 9.01 does not cover the claim for submissions regarding the AMS’s determination and disallowed the claim.
On appeal Mr Ritchie’s solicitor maintains the clam for $625.00 under Item 9.01 as “the Arbitrator requested the parties to prepare written submissions in regards to the Applicant’s claim”.
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. Mr Ritchie’s claim under this Item is in respect of submissions to the AMS and “as requested by the Arbitrator”. I have reviewed the Commission’s files and contrary to Mr Ritchie’s solicitor’s submissions I can find no evidence that the Arbitrator directed the parties to make submissions. Accordingly I reject this ground of appeal. I find no error in the delegate’s determination that Item 9.01 does not cover the claim in respect of submissions regarding the AMS’s assessment in circumstances where Mr Ritchie’s solicitor lodged an ‘Appeal Against Decision of Approved Medical Specialist’ on 17 February 2004 which was accompanied by submissions and this activity is encapsulated under Item 5.01 of the Table.
Mr Ritchie’s solicitor did not make a claim under Item 5.01 before the delegate. However he seeks to do so on appeal and also makes a new claim under Item 5.02 of the Table. As set out at paragraph 17 of this decision, clause 119(1) 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. These claims were not before the delegate and accordingly no matter of law can be said to arise in relation to the exercise of discretion by the delegate to enliven clause 119 of the WC Regulation. In my view, Mr Ritchie’s submissions in this regard are misconceived.
Did the delegate err in determining the costs of disbursements and fail to consider relevant material?
The Private Investigator’s Report (‘the Report’)
Mr Ritchie’s solicitor claimed $1,034.00 (including GST) for the costs of the Report and submits that as there are no items in the Table covering the requirement to gather wage records and prepare a wages schedule the costs should be considered to be fair and reasonable. GrainCorp’s solicitor objected on the grounds that the work undertaken is encapsulated under item 2.01 and the administrative work and phone charges claimed are not recoverable. The delegate applied the test of ‘fair and reasonable’ and determined that the only work undertaken by the investigator was to obtain a statement from Mr Ritchie “but that is excluded” as it is absorbed under Item 2.01. On appeal Mr Ritchie’s solicitor relies on the authority provided in the decision in Berger that a worker is included in the term ‘witness’ in the Table.
In applying the reasoning set out in Asimus at paragraph 19, I find the application of the test of ‘fair and reasonable’ by the delegate to be in error as the LP Regulation requires consideration of whether the disbursement was necessarily incurred, as set out at paragraph 18 of this decision. In applying the LP Regulation I must consider the nature of the claim and the issues in dispute. I have reviewed the files and I am unable to locate any report from a factual investigator filed in proceedings. However I have identified an undated statement by Mr Ritchie taken by Kelly Slater of St George Registration and Investigations which is referred to as being “First Typed: 21 October 2002” and a Wages Schedule dated 13 April 2003 prepared by Mr Ritchie’s solicitor. As this claim relates to disbursements incurred as a result of briefing an agent I am not satisfied that the wages schedule prepared by Mr Ritchie’s solicitor is capable of being considered under this claim. However, on balance I am satisfied that the statement was prepared by a factual investigator and it the present circumstances the statement may be claimed as a disbursement.
I accept Mr Ritchie’s solicitor’s submissions that an applicant has been held to be a witness. Given the issues raised in the applications I conclude that Mr Ritchie’s claim could not be brought without his statement (see discussion in Asimus at 24-25). I am satisfied that the work was performed. The interview was conducted over approximately one hour by a non professional and extends over six pages. In my view it is reasonable to allow one hour and fifteen ten minutes for the costs of the statement including typing and in applying the allowance for similar work under Item 2.04A I allow the claim in the amount of $137.50 (including GST).
I also note that Mr Ritchie’s solicitor made a claim for the taking of a ‘witness’ statement under Item 2.04A of the Table in WCC10446-03 and as this claim was disputed it was withdrawn by Mr Ritchie’s solicitor in his submissions dated 20 October 2005. The delegate’s determination refers to the withdrawal of this claim. Accordingly, on the evidence before me I am not persuaded by Mr Ritchie’s solicitor’s submissions that the delegate failed to consider his submissions dated 20 October 2005 in circumstances where the delegate’s decision clearly reflects the content of these submissions (see discussion in Bourke v State Rail Authority of NSW and others [2007] NSWWCCPD 31 at paragraph 40). I therefore reject this ground of appeal.
Costs of the Assessment
The delegate disallowed the costs of the assessment on the basis that the Applicant was unsuccessful. In proceedings before the delegate Mr Ritchie’s solicitor reduced his original claim, to claim a total amount of $17,229.20. GrainCorp’s solicitor’s objected to the original amount of $19,663.55 in a total amount of $12,365.20, therefore conceding $7,298.35. The delegate allowed $9,551.80. On my assessment Mr Ritchie’s solicitor was largely unsuccessful in the costs assessment and I am not satisfied from the submissions on the appeal that there is any proper basis for interfering with the exercise of the delegate’s discretion (see discussion in Arakelian v Freeman Adams Pty Ltd[2007] NSWWCCPD 26). I therefore reject this ground of appeal.
Summary
I have determined the disbursements and professional costs challenged by Mr Ritchie’s solicitor as follows:
Professional Costs
The delegate’s determination in relation to Clause 2 of Schedule 6 of the WC Regulation is confirmed.
The delegate’s disallowance of Item 2.05 is revoked. It is fair and reasonable to allow $110.00 (inclusive of GST) for briefing a factual investigator under Item 2.05.
The delegate’s allowance of the maximum of $500.00 (plus GST) for the claim under Item 4.08 is confirmed.
The delegate’s allowance of the maximum of $1000.00 (plus GST) for the claim under Item 4.09 is confirmed.
The delegate’s disallowance of the claim under Item 4.10 is confirmed.
The delegate’s disallowance of the claim under Item 4.11 is confirmed.
The delegate’s allowance of $380.00 (plus GST being an amount of $418.00) for the claim under Item 4.12 is revoked.
It is fair and reasonable to allow $570.00 (plus GST being an amount of $627.00) for reporting to the client following the two teleconferences and one conciliation/arbitration hearing under Item 4.12 of the Table.
The delegate’s disallowance of the claim for Item 9.01 is confirmed.
The delegate’s disallowance of the claim for the costs of the assessment is confirmed.Disbursements
The delegate’s disallowance of the costs of the disbursement claimed as a Report is revoked.
The costs of $137.50 (including GST) for the statement obtained by the factual investigator were necessarily incurred and are allowed.I therefore increase the delegate’s assessment of costs by $456.50 to a total
amount of $10,008.30.
DECISION
Paragraphs one, two and four of the decision of the delegate dated 19 December 2005 are revoked and the following orders are made in their place:
“(i) Pursuant to Consent Orders dated 30 April 2005, the Respondent is liable to pay the Applicant’s costs as agreed or assessed.
(ii) The Applicant’s costs of the substantive proceedings are assessed in the sum of $10, 008.30.
(iii) The Respondent is, therefore, to pay to the Applicant a total amount of $10,008.30 if those costs have not already been paid.”
Paragraph three of the delegate’s decision making no order for the costs of the assessment is confirmed.
COSTS
On appeal Mr Ritchie’s solicitor seeks costs “pursuant to Regulation 119, 120, 121 and 122 of the WC Regulation” in the amount of $625.00 (plus GST). The provisions referred to by Mr Ritchie deal with appeal proceedings. However Mr Ritchie’s solicitor also claims costs of the appeal “under clause 142 of the Workers Compensation (General) Regulations 1995” in the amount of $625.00 (plus GST). Clause 142 of the Workers Compensation (General) Regulations 1995 was repealed on 1 September 2003 and is expressed in substantially similar terms to clause 119 of the WC Regulation. Accordingly I have interpreted Mr Ritchie’s solicitor’s submissions as claiming the costs of the appeal.
The Appellant has been in part successful on appeal.
The appropriate order is therefore that: “The Respondent GrainCorp pay the Appellant Mr Ritchie, $275.00 inclusive of GST in respect of his costs in this appeal.”
Elizabeth Tydd
Acting Deputy President
12 February 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ELIZABETH TYDD, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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