Rong Fang v Alex Perry Pty Ltd
[2006] NSWWCCPD 184
•14 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Rong Fang v Alex Perry Pty Ltd [2006] NSWWCCPD 184
APPELLANT: Rong Fang
RESPONDENT: Alex Perry Pty Ltd
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC14798-04
DATE OF REGISTRAR’S DECISION: 23 August 2005
DATE OF APPEAL DECISION: 14 August 2006
SUBJECT MATTER OF DECISION: Costs
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Lexes Lawyers
Respondent: Rankin Natham Lawyers
ORDERS MADE ON APPEAL:
1.The Registrar’s determination of a Claim for Costs in this matter, dated 23 August 2005, is amended in accordance with these reasons.
2.Alex Perry Pty Ltd is to pay Rong Fang $550 inclusive of GST in respect of her costs of the Appeal.
BACKGROUND
On 21 September 2004 Rong Fang (‘Ms Fang’) commenced proceedings against Alex Perry Pty Ltd (‘Alex Perry) in the Workers Compensation Commission (‘the Commission’) seeking lump sum compensation and medical expenses.
The matter was resolved between the parties during a telephone conference and a Certificate of Determination dated 7 February 2005 was issued. The Certificate included an order that the Respondent (‘Alex Perry’) pay the Applicant’s (‘Ms Fang’) costs as agreed or assessed.
On 27 May 2005 Ms Fang filed an Application for Assessment of Costs (‘the Application’) and annexed amongst other things the bill of costs. In Part 1 of the Application the fee payable was stated to be $897.50.
On 20 June 2005 Alex Perry filed submissions in response to the Application which specifically stated:
“The issues in dispute between the Respondent and the Applicant are the following items:-
(a)Item 2.05 in the sum of $100
(b)Disbursement of Mercantile Claim Services in the sum of $797.50.”
On 22 June 2005 Ms Fang filed submissions in support of the Application and stated:
“This application is for the assessment of the Applicant’s costs under Item 2.05 in the sum of $100 and the disbursement of Mercantile Claim Services in the sum of $797.50.”
On 23 August 2005 the Registrar by her delegate, a Commission Arbitrator, made a Determination assessing the whole of Ms Fang’s costs.
THE REGISTRAR’S DECISION
The Registrar’s decision by her delegate, a Commission Arbitrator, made on 23 August 2005 is as follows:
“1. Pursuant to an Order dated 7 February 2005 the Respondent employer 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 at $5,917.25.
3. There is no order as to costs of assessment.
4. The Respondent is to pay the amount of $5,917.25 to the Applicant if those costs have not already been paid.”
ON THE PAPERS
Alex Perry submits that the matter should be dealt with ‘on the papers’, whilst Ms Fang is silent on this issue.
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
I have both the Commission file regarding the costs dispute and the appeal file which contains submissions on appeal from both Ms Fang and Alex Perry. In addition I have the substantive file and am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
PRELIMINARY
Clause 99(1) of the Workers Compensation Regulations 2003 (‘the Regulations’) provides:
“(1)A person who has paid or is liable to pay, or who is entitled to receive or who has received, costs as a result of an order for the payment of an unspecified amount of costs made by a court or the Commission may apply to the Registrar for an assessment of the whole of, or any part of, those costs.”
Clause 105 of the Regulations provides for the “Assessment of bills generally”. Clause 105(5) of the Regulations states:
“(5)The Registrar may not determine that any part of a bill of costs that is not the subject of an application is unfair or unreasonable.”
SUBMISSIONS AND FINDINGS
As I stated above the Registrar determined the whole of Ms Fang’s costs and in so doing reduced the amount claimed at Item 4.09 and disallowed the sum of $264 claimed as a disbursement (interpreting fees for a medico-legal examination) as “this invoice has no reasonable nor fair, nor any appropriate basis, in the circumstances of this matter”. Both Item 4.09 and the disbursement of $264 were not disputed by Alex Perry and accordingly were not included in the Application for Assessment of Costs.
Ms Fang submits that the Registrar “by determining the whole of the Applicant Worker’s bill of costs…exceeded her power under Clause 99 of the Regulations”.
Alex Perry submitted in reply that “while the Respondent and the Applicant placed in issue Item 2.05 and the disbursement of Mercantile Claim Services”, this does not preclude the Registrar from assessing and determining the whole of the costs and disbursements and that the Registrar acted within her discretion.
I agree with Ms Fang’s submissions, as the Application for Assessment of Costs was clearly for assessment of part of the costs only and as such the Registrar was bound by Clause 105(5) of the Regulations. It was an error of law to determine that a part of the bill of costs that was not the subject of an application was unfair or unreasonable.
There being an error of law, in accordance with Clause 119 of the Regulations, I am entitled to make such determination in relation to the Application, as in my opinion, should have been made by the Registrar. Accordingly I shall assess the part of the costs that were in dispute.
Item 2.05
Item 2.05 provides a maximum amount of $100 for briefing a factual investigator or other investigator to obtain evidence other than witness statements (not including the investigator’s fee).
Ms Fang’s solicitor in the bill of costs claimed $100 for “briefing a factual investigator or other investigator to obtain evidence from the client”. The solicitor submits that it was necessary to brief a factual investigator to interview Ms Fang, because she had limited English and therefore it would be extremely time consuming if the solicitor was to take the statement.
Ms Fang relies on the authority of Nebauer v Hunter Area Health Service [2004] NSWWCCPD60 (‘Nebauer’s case’), where Deputy President Fleming stated “I accept the Appellant’s submission that the worker should not be considered to be a ‘witness’ for the purpose of Item 2.05”.
In Berger v Moree Plains Shire Council [2005] NSWWCCPD152 (‘Berger’s case’) Deputy President Fleming took the opportunity to revisit Nebauer’s case and stated:
“The reasoning in Nebauer’s as to whether the worker is to be considered a ‘witness’ for the purpose of 2.05 is not correct when the costs regime of Items 2.01, 2.04A and 2.05 is considered together”.
Deputy President Fleming continued in Berger’s case:
“Item 2.05 does not permit a claim for briefing a factual investigator to obtain witness statements, which includes a statement from a worker”.
For the reasons expressed in Berger’s case, I disallow the claim for briefing a factual investigator to obtain a statement from Ms Fang.
Private Investigator’s Fee
Clause 82 of the Regulations excludes certain costs, including investigator’s reports and witness statements or other evidence obtained by investigators, from Part 19 of the Regulations. These items must be assessed in accordance with the Legal Profession Act 2004 (‘the LP Act’) and the Legal Profession Regulation 2005 (‘the LP Regulation’). As Deputy President Fleming stated in Berger’s case:
“The correct test is whether the disbursement was ‘reasonably incurred or was reasonable in amount’ and whether the total amount allowed was a ‘fair and reasonable’ amount in relation to the value of the service provided.”
Ms Fang’s solicitor claimed the sum of $797.50 to interview and obtain a statement from Ms Fang. The statement is three pages long and includes the basic information necessary in a claim where liability is not seriously in issue. Mercantile Claim Services have provided their tax invoice for “…the factual investigation interview with a statement” of Ms Fang. The invoice claims $675 for 4 hours and 35 minutes @ $150 per hour. A further $50 is claimed for travel, telephone and sundry.
Ms Fang’s solicitor submitted in the Application that they were incapable of conducting the interview because Ms Fang speaks very little English and further that the factual investigation interview and statement was necessary because it was alleged that in addition to a frank injury to Ms Fang’s left foot, the nature and conditions of her employment caused injury to her right knee.
Alex Perry submit in response that as Ms Fang’s claim was for lump sum compensation and medical expenses, injury and liability not being in issue, it was not necessary to commission a factual investigation statement.
The cost of obtaining a witness statement, including that of the worker, is normally covered under Item 2.01 or Item 2.04A of the Regulations. In the Application for Assessment of Costs, the claim under Item 2.01 did not include the cost of witness statements, and as Ms Fang’s statement was taken by an investigator it was not allowed under Item 2.04A.
The test of whether an investigator’s report, whether to obtain witness statements or other factual investigations (including a statement from the worker), is claimable will “…essentially be one of ‘reasonableness’.” (Berger’s case).
The investigator’s tax invoice claims 4 hours 35 minutes for the taking of the statement. As I stated above this document is 3 pages in length and includes the basic information necessary in a claim where liability is not seriously in issue. The document does not identify the person asking the questions, but is witnessed by J J Yan and Ms Fang has acknowledged that the contents were read and explained to her in her own language.
I fail to understand how this statement, even if an interpreter was assisting, took 4 hours 35 minutes. Having regard to the fact that liability was not in issue and the investigator is not a legal practitioner I allow the sum of $150 (plus GST of $15) for the investigator’s report to allow for the reasonable time taken in relation to Ms Fang’s statement. As a guide I have considered Item 2.04A which allowed (at the relevant time) $100 per hour for taking a witness statement up to a maximum of $150.
Item 2.04
In the bill of costs annexed to the Application for Assessment of Costs, Ms Fang did not make a claim for Item 2.04 and accordingly the Registrar made no determination in respect of this item.
On 20 June 2005 Ms Fang’s solicitors forwarded an Amended bill of costs to Alex Perry that included a claim for $600 under Item 2.04 for “obtaining and reviewing more than five medical reports (other than where Item 1.01 applies).” A copy of this Amended bill of costs was not sent to the Registrar because Ms Fang had applied for an assessment of part of the costs only and also because she believed that Alex Perry would agree to pay the amount claimed for the item.
The parties unfortunately did not reach agreement on Item 2.04 and Ms Fang submits that the matter should be remitted to the Registrar pursuant to Clause 119(3) of the Regulations which provide that the Presidential Member may:
“(3)…
(a) make such determination in relation to the application as, in its opinion, should have been made by the Registrar, or
(b)remit its decision on the question to the Registrar and order the Registrar to re-determine the matter.”
Alex Perry do not dispute that the Commission may re-determine the outstanding issue of Item 2.04 and that the matter is capable of being determined on the papers.
Clause 119 of the Regulations provides that an appeal against an Assessment of Costs is on a matter of law only. As the matter was not before the Registrar, no determination on Item 2.04 was made and accordingly I am of the opinion that there is no error of law. This being the situation I am not in a position to make a determination on the matter or remit the matter to the Registrar for re-determination.
If I am wrong in my conclusion I will now consider Item 2.04.
Item 1.01 and Item 2.04 both provide costs for obtaining and reviewing medical reports. “Item 1.01 may only be claimed for this activity when it occurs prior to ‘making claim for permanent impairment compensation or pain and suffering compensation’.” (Berger’s case)
Item 2.04 “…may only be claimed for this activity when it occurs following the making of a claim and prior to referring a dispute to the Commission…it is not permissible to claim costs under Item 1.01 and 2.04 for ‘obtaining and reviewing’ the same medical reports.” (Berger’s case)
The claim for permanent impairment compensation was made on 31 May 2004 (see Application for Registration of Agreement Under Section 66A). The dispute was referred to the Commission on 21 September 2004.
The parties have agreed on the maximum amount of $600 for Item 1.01 and as such is not in dispute. Alex Perry submits that Ms Fang’s solicitors have received payment under Item 1.01 for obtaining and reviewing medical reports and as they have failed to itemise Item 2.04 there is no entitlement under this Item. This is not entirely correct as the Amended bill of costs referred to the following medical reports in Item 1.01:
Dr Conrad - 14/3/03, 21/5/04 (2 reports)
Dr Mahony - 21/7/04 (2 reports)
Dr Vote - 2/8/04
Dr I J Smith - 20/8/04
The medical reports Ms Fang relies on under Item 2.04 are those annexed to the Amended Application to Resolve a Dispute:
Dr Mahony - 21/7/04
Dr Scamps - 12/4/02
Dr Almosawi - 17/5/02
Dr Collis - 3/1/03
Dr Arulventhan - 6/7/04
Dr Elliot - 12/4/02, 24/4/02, 11/12/04
Medical Certificates - various
Return to Work Plan - 6/6/02
Dr Mahony’s report has already been claimed under Item 1.01 and Dr Elliot’s last report was prepared after the dispute was referred to the Commission. That leaves 6 medical reports and accordingly I allow the maximum of $600 under Item 2.04.
DECISION
The Registrar’s determination of a Claim for Costs in this matter, dated 23 August 2005, is amended in accordance with these reasons.
COSTS
Ms Fang has been partially successful in this appeal and in my opinion it is appropriate that Alex Perry pay Ms Fang’s costs in the appeal in the sum of $550 inclusive of GST, being approximately two hours work.
Alex Perry Pty Ltd are to pay Rong Fang $550 inclusive of GST in respect of her costs of the Appeal.
Julian Martin
Acting Deputy President
14 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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