Ryan v Bourke and District Mulitpurpose Child Care Centre Co-operative Limited trading as Bourke Child Care Centre
[2007] NSWWCCPD 52
•15 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Ryan v Bourke and District Multipurpose Child Care Centre Co-operative Limited trading as Bourke Child Care Centre [2007] NSWWCCPD 52
APPELLANT: Ann Maria Ryan
RESPONDENT: Bourke and District Multipurpose Child Care Centre Co-operative Limited trading as Bourke Child Care Centre
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC14223-05
DATE OF REGISTRAR’S DECISION: 27 March 2006
DATE OF APPEAL DECISION: 15 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; costs of disbursements; Items 2.03; 2.04A; 2.05; 2.06; 4.08; 4.09; 4.10; 4.11; 4.12; 9.01 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: Moray & Agnew Solicitors
ORDERS MADE ON APPEAL: 1. Paragraphs one, two and four of the decision of the delegate dated 27 March 2006 are revoked and the following orders are made in their place:
“(i) Pursuant to the Applicant’s Bill of Costs, 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 $10,986.89.(iii) The Respondent is, therefore, to pay to the Applicant a total amount of $10,986.89 if those costs have not already been paid.”
2. Paragraph three of the delegate’s decision disallowing the costs of proceedings is confirmed.
3. The Respondent Bourke Child Care, pay the Appellant Ms Ryan, $275.00 inclusive of GST in respect of her costs in this appeal.
BACKGROUND
Prior proceedings
On 22 September 2004 Ann Maria Ryan (‘Ms Ryan ’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’) matter WCC 15565-04. Ms Ryan claimed to have suffered an injury to her back with associated leg pain and loss of sexual organs on 19 February 1998 whilst lifting a child in the course of her employment as a childcare worker. Ms Ryan named Bourke and District Multipurpose Child Care Centre Co-Operative Limited trading as Bourke Child Care Centre (‘Bourke Child Care’) as the Respondent employer and sought on going payments of weekly compensation; lump sum compensation totalling $47,750.00 pursuant to section 66 of the Workers CompensationAct 1987 (‘the 1987 Act’); compensation pursuant to section 67 totalling $40,000.00, and medical and related expenses pursuant to section 60 of the 1987 Act.
On 20 October 2004 Bourke Child Care filed a Reply to the Application in which it disputed injury; incapacity and Ms Ryan’s weekly earnings.
On my review of the Commission’s files teleconferences were scheduled to be conducted on 16 December 2004; 22 December 2004 and 9 February 2005. However as a result of what appears to be administrative errors these teleconferences did not take place. Ultimately a teleconference was conducted by a Commission arbitrator (‘the Arbitrator’) on 17 March 2005 and as the dispute was not resolved the matter was set down for hearing on 11 April 2005.
The dispute was resolved by consent on that day. The Arbitrator issued a ‘Certificate of Determination – Consent Orders’ dated 14 April 2005 confirming the parties agreement that the Applicant file a Notice of Discontinuance within 7 days and the parties file a “s66A Agreement in relation to s66/67 of the [1987 Act] with the Registry within 7 days of [sic or] the proceedings will be dismissed.”
On 12 April 2005 Bourke Child Care’s solicitor filed: an ‘Application for Registration of Agreement Under S66A’ dated 11 April 2005 in which it agreed to pay Ms Ryan $38,750.00 pursuant to section 66 and $32,850.00 pursuant to section 67 of the 1987 Act and the costs of Ms Ryan’s proceedings as agreed or assessed; together with an ‘Agreement to Discontinue Proceedings’ dated 11 April 2005 which set out the parties terms for discontinuance of proceedings which included that the Respondent pay the Applicant’s costs as agreed or assessed.
On 23 August 2005 Ms Ryan’s solicitor lodged an ‘Application for Assessment of Costs’. The solicitor for Bourke Child Care lodged submissions in reply on 19 October 2005. Ms Ryan’s solicitor lodged further submissions on 1 November 2005.
The Registrar’s decision in relation to this application, by her delegate, a Commission Arbitrator, (‘the delegate’) was made on 27 March 2006. The delegate’s decision was accompanied by a ‘Statement of Reasons’ which refers to the parties’ terms of agreement of 11 April 2005. The decision is set out as follows:
“1. Pursuant to a Determination of 14 April 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 in the sum of $10,087.64.
3.The Applicant’s costs of the assessment are not allowed.
4.The Respondent is to pay the amount of $10,087.64 to the Applicant if those costs have not already been paid.”
Lodgement of the appeal
On 6 April 2006 Ms Ryan’s solicitor lodged an ‘Appeal from the Registrar’s Determination on Costs’.
On 27 April 2006 the solicitor for Bourke Child Care lodged submissions in reply to the Appeal. Bourke Child Care is insured by CGU Workers Compensation (NSW) Limited.
ON THE PAPERS
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.”
Neither party has made submissions in respect of the requirement for a formal hearing. Neither party has sought to adduce fresh evidence. 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
Ms Ryan’s solicitor’s 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’) and disbursements are set out below. Bourke Child Care’s solicitor repeats and adopts its earlier submissions and submits that the appeal should be dismissed as many of the submissions made by Ms Ryan’s solicitor are irrelevant and do not support a finding that the delegate erred in the exercise of his discretion.
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 Items 2.03; 2.04A; 2.05; 2.06; 4.08; 4.09; 4.10; 4.11; 4.12; 9.01 and 10.01 of the Table, and
·whether the delegate erred in determining the costs of disbursements.
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 am satisfied on the evidence before me that Ms Ryan’s solicitor provided Bourke Child Care’s solicitor with a bill of costs and that following his receipt of a reply dated 11 August 2005 Ms Ryan’s solicitor lodged the application for assessment of costs. In my view the application for assessment of costs was properly entertained pursuant to clause 98 of the WC Regulation and not as is implied in the delegate’s reasons clause 99. Clause 98 requires a period of 30 days to have passed since the bill of costs was given. A copy of the bill of costs issued by Ms Ryan’s solicitor to Bourke Child Care’s solicitor is not in evidence. However I am satisfied on the evidence before me that Bourke Child Care’s solicitor responded to the bill in correspondence dated 11 August 2005. Contained in that correspondence was an apology for the delay in responding. The Application for Assessment of Costs refers to the bill of costs being issued on 15 April 2005. Accordingly I am satisfied on the evidence before me that the requirements of clause 98(2)(b) have been met.
I find that the WC Regulation and Legal Profession Regulation2002 (‘the LP Regulation’) apply as the bill of costs was issued on 15 April 2005 pursuant to an agreement to pay costs filed on 11 April 2005 (see discussion in Woodbury v Miles [2006] NSWWCCPD 55 (‘Woodbury’)). 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. 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 Items 2.03; 2.04A; 2.05; 2.06; 4.08; 4.09; 4.10; 4.11; 4.12; 9.01 and 10.01 of the Table?
Item 2.03
Ms Ryan’s solicitor claimed $40.00 pursuant to Item 2.03 for the costs of referring insurer’s reports to a medical specialist. In later submissions Ms Ryan’s solicitor relied upon referral of the reports of Dr Bodel and Dr Matheson to Dr Patrick on 18 March 2005. Bourke Child Care’s solicitor objected to the claim as there was no evidence that a separate referral to any doctor and no reports were obtained by the respondent or insurer. The delegate’s reasons state that the application was lodged on 29 September 2004 “long before the Applicant’s” correspondence of 18 March 2005 and as the Item permits an allowance only until “the dispute referred or order sought” no allowance was permissible.
On appeal Ms Ryan’s solicitor concedes that he did not provide the referral until after lodgement of the Application. However he submits that the referral was provided prior to settlement and relies upon the Commission’s decision in the matter of Woodbury in submitting that the date of finalisation of the dispute is relevant not the time at which the event occurred. This decision considered the date upon which the relevant law applied in respect of an assessment of costs generally and does not in my view provide the statement of authority asserted by Ms Ryan’s solicitor. A similar claim under Item 2.04 of the Table was dealt with by the Commission on appeal in the matter of Williams v Moree Livestock Selling Agents Association Pty Ltd [2007] NSWWCCPD 25 in which the Acting Deputy President confirmed (at paragraph 17) the delegate’s application of the authority provided in Berger in that “a claim may only be made in respect of medical reports under Item 1.01 if the obtaining and reviewing of medical reports occurred prior to the making of the claim for permanent impairment compensation or pain and suffering [at paragraph 14]” (emphasis added).
In Berger the Commission confirmed the application of the categorisation of the activities/events referable to the headings provided by the WC Regulation and found at paragraphs 95 and 96 that:
“It appears that there has been some ambiguity in this matter in relation to the maximum amounts claimed under Item 1.01 and 2.04 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”. Item 1.01 reports must also be in relation to a claim for permanent impairment and lump sum compensation, not in relation to a claim for some other entitlement, for example, weekly benefits compensation.
96. In relation to claims for permanent impairment compensation, 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. Item 2.04 also applies to medical reports not subject to a fee pursuant to Item 1.01. In other words, it is not permissible to claim costs under Item 1.01 and 2.04 for “obtaining and reviewing” the same medical reports.” (Emphasis added)
Further at paragraph 110 the Deputy President held that:
“The Compensation Costs Table divides the dispute resolution process in the Commission into stages and then into discrete events or activities. This allows for costs to be claimed in relation to events as the matter progresses through the Commission’s processes.”
Applying this authority I find Ms Ryan’s solicitor’s submissions to be misconceived. Item 2.03 appears under the same stage of activity as Item 2.04. The referral for review claimed under Item 2.03 of the Table took place after the dispute was lodged in the Commission not prior to its referral as required by the Table and I see no error in the delegate’s disallowance of the claim. I therefore reject this ground of appeal.
Item 2.04A
Ms Ryan’s solicitor claimed $150.00 pursuant to Item 2.04A for the costs of preparing a statement from a witness being Ann Ryan. Bourke Child Care’s solicitor objected to the claim as the worker’s statement was obtained by the factual investigator and the report of the factual investigator (‘the Report’) was the subject of a claim under disbursements. Ms Ryan’s solicitor submits that the statement was obtained by Ms Ryan’s former solicitors and it “cannot be excluded from consideration as being reasonable and necessary, merely because it had [sic had not] actually been filed.” The delegate disallowed the claim as the maximum permissible had been allowed under Item 2.01 of the Table and because the same element of the “activity” had been claimed as a disbursement claim.
On appeal Ms Ryan’s solicitor submits that he is “claiming costs on behalf of the Applicant’s previous Solicitors, Messrs Cheney & Wilson” who took a statement from Ms Ryan and on the evidence that statement was not returned to that firm. These submissions do not in my view further Ms Ryan’s solicitor’s claim for the costs he incurred in the proceedings. On my assessment there was one statement from Ms Ryan filed in proceedings, it was taken by “Nicholas Hall of St George Registration and Investigation Services Pty Limited” (‘SGRIS’) on 15 September 2003 and is annexed to the Report from SGRIS filed in proceedings. I therefore confirm the delegate’s finding in this regard. Further I have no evidence before me that Ms Ryan’s solicitor undertook the legal activities claimed under this item and I therefore reject this ground of appeal. The statement as it relates to the claim for the Report is dealt with below.
Item 2.05
Ms Ryan’s solicitor claimed $100.00 pursuant to Item 2.05 for the costs of briefing a factual investigator to prepare the Report. Bourke Child Care’s solicitor conceded the claim. The delegate disallowed the claim on the grounds that the Report was unhelpful and “contains no contended work or other ‘Description’ detail at all” and in respect of the three witness statements this activity “is specifically, in fact, within the exclusions of Item 2.05.”
On appeal Ms Ryan’s solicitor submits that he was denied natural justice as the delegate failed to consider the record of the Commission and a review of the Report demonstrates that it provided assistance to the solicitor acting for Ms Ryan.
The application claimed injuries arising in the course of employment in 1998 and the Report reveals significantly that the factual investigator ascertained that the Respondent employer had “lost or abbreviated” Ms Ryan’s personnel file which contained information relevant to the proceedings. Accordingly in my view, the delegate erred in his determination which appears to be based on his consideration of whether the Report was “helpful” and not whether in the circumstances it was fair and reasonable to instruct an agent to obtain evidence.
I have considered the application and the issues in dispute between the parties which involve injuries dating back to 1998 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 2.06
Ms Ryan’s solicitor claimed $500.00 as a fair and reasonable amount for requesting a review of the claim from the insurer prior to referral of the matter to the Commission with reference to his correspondence dated 16 January 2004. Bourke Child Care’s solicitor objected and contended that no request was ever specifically made and that the work described is covered by allowances under Items 2.01 and/or 1.01 and/or 4.05 of the Table. The delegate determined that the correspondence relied upon did not constitute a request for “review” notwithstanding the insertion of the word “review” into the correspondence as the correspondence was more properly construed as an initial letter of claim or initial claim demand. The delegate therefore disallowed the claim.
On appeal Ms Ryan’s solicitor referred to determinations of costs assessors in which a claim for review had been allowed. The correspondence relied upon requests “Photostat copy of any claim for compensation made by the worker”. In my view the delegate’s determination that the correspondence relied upon does not constitute a request for review as it is more properly construed as a notification does not give rise to any error of law (see also discussion in Norris v Frank Whiddon Masonic Homes Pty Limited [2006] NSWWCCPD 357 (‘Norris’)). I therefore reject this ground of appeal.
Item 4.08
Ms Ryan’s solicitor claimed $500.00 for the costs of preparing for a telephone conference scheduled to take place on 16 December 2004; $500.00 for the teleconference scheduled for 9 February 2005; $500.00 for a teleconference on 17 March 2005 and $250.00 for preparing for the conference conducted on 11 April 2005. A claim for the teleconference scheduled for 22 December 2004 was not made. In later submissions the total amount claimed is $2000.00. Bourke Child care’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 representing a total of two hours plus GST being a total amount of $550.00.
On appeal Ms Ryan’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 and notwithstanding that some of the conferences did not proceed he was not notified and accordingly still prepared for these conferences. I have considered the file of the substantive proceedings and on balance, I accept Ms Ryan’s solicitor’s submissions that he was not notified of the rescheduling of the teleconferences. However whilst I am satisfied that the teleconferences claimed were scheduled 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.
Items 4.09; 4.10 and 4.11
Under Item 4.09 Ms Ryan’s solicitor claimed: $250.00 for the costs of attending and participating in the teleconference scheduled for 16 December 2004; $62.50 for that scheduled for 9 February 2005; $250.00 for that conducted on 17 March 2005 and $250.00 for the conciliation conference conducted on 10 April 2005, and a further $1500.00 under Item 4.10 for attending and participating in the conciliation/arbitration. On my assessment of the later submissions Ms Ryan’s solicitor appears to withdraw his claim under Item 4.10 and instead seeks $250.00 pursuant to item 4.11 claiming that arbitration took place. Bourke Child Care’s solicitor conceded the claim in the maximum of $1,000.00 under Item 4.09 and objected to the claim made under Item 4.10 as the matter was settled at conciliation and was not determined to be ‘complex’ by the Arbitrator. The delegate disallowed the claim in respect of the teleconferences scheduled for 16 December 2004 and 9 February 2005, as an arbitrator did not ‘attend’ these conferences. I see no error in the delegate’s determination in this respect (see also discussion in Bourke v State Rail Authority of NSW and others [2007] NSWWCCPD 31 [at paragraph 21]). The delegate made an allowance of one hour for the conference conducted on 17 March 2005 and allowed the claim in the amount of three hours bringing the total allowance to the maximum permissible under Item 4.09. The delegate disallowed the claim under Item 4.10 as there was no arbitral hearing.
On appeal Ms Ryan’s solicitor maintains his claim and refers to the requirement for an arbitrator to determine the most expedient manner of resolving a dispute and a proper application of the decision in Berger demands consideration of “a” conference. Therefore the maximum is allowable in respect of each claim.
In relation to the claim under Item 4.09 as set out at paragraph 16 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. Bourke Child Care’s solicitor conceded the amount in the maximum and I find no evidence on appeal that the teleconference 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.
Item 4.10 has no application in circumstances where the matter was resolved by consent (see discussion in McCaffery v JG & DG Harris [2006] NSWWCCPD 317) and accordingly I reject this ground of appeal.
The matter did not proceed 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
Ms Ryan’s solicitor claimed a total of $950.00 for the costs of five reports to his client being the three teleconferences; the conciliation conference and the arbitral hearing. As I understand the further submissions, Ms Ryan’s solicitor accepted Bourke Child Care’s solicitor’s concession of four reports but maintained the claim in respect of the arbitral hearing conducted in this matter. The delegate disallowed the claim for the two aborted teleconferences as in his view there was no requirement to report to the client. The delegate allowed the claim in respect of the teleconference which took place, and relied upon the decisions in Fuentes and McManus as authority that only one report was permissible following a conciliation/arbitration hearing. The delegate therefore allowed the total amount of $380.00 plus GST.
On appeal Ms Ryan’s solicitor maintains his claim. 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). Accordingly Item 4.12 provides an exception to the general principle in relation to the column 4 maximum total (Harvey v JJC Group Pty Limited[2006] NSWWCCPD 329) and the maximum of $190.00 may be allowed in respect of each conference or conciliation/arbitration. Further 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). In the present case the claim is for three scheduled teleconferences and a conciliation conference. An arbitral hearing was not conducted. On my review of the file I am not persuaded that both parties received notification from the Commission of the two aborted teleconferences claimed prior to their phone attendance on the scheduled days. Notwithstanding that the reports to the client may be brief in relation to the aborted teleconferences I am satisfied that the claim has been made out in respect of four activities. An allowance for four 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 total amount of $760.00.
Item 9.01
Ms Ryan’s solicitor claimed the costs of the proceedings in the amount of $625.00 as the matter proceeded to assessment because Bourke Child Care’s solicitor did not negotiate and, if the Applicant beats the Respondent’s offer (assumed in these circumstances to be nil), then he is entitled to the costs of the assessment. Bourke Child Care’s solicitor objected as the costs claimed are excessive and the Applicant refused to negotiate. The delegate stated that he was not impressed by the Applicant’s submissions in relation to the necessity for assessment filing in the circumstances or in the assessment outcome. The delegate exercised his discretion not to make an order as to the costs of the assessment.
As I understand the submissions on appeal Ms Ryan’s solicitor claims $625.00 under Item 9.01 in respect of the filing of the application for assessment of costs and a further $625.00 under this item for the costs of the appeal. I will deal with Ms Ryan’s solicitor’s claim for the costs of the appeal below.
In proceedings before the delegate Ms Ryan’s solicitor reduced his original claim from $19,751.24 to claim a total amount of $17,727.24. Bourke Child Care’s solicitor responded to Ms Ryan’s solicitor’s bill of costs in correspondence dated 11 August 2005 stating that the costs claimed were excessive and urging Ms Ryan’s solicitor to lodge an assessment without delay. However, in my view the correspondence should properly be construed as an attempt to illicit further negotiations as it concludes that the Respondent remains available to discuss the claim in the event that Ms Ryan’s solicitor is prepared to review his approach to the question of costs in light of the increasing number of decisions by the Commission. Mr Ryan’s solicitor did not seek to further negotiate and lodged his application for assessment of costs on 23 August 2005. In proceedings before the delegate Bourke Child Care conceded the claim in the amount of $10,751.04.The delegate allowed $10,087.64. On my assessment Ms Ryan’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.
Item 10.01
Ms Ryan’s solicitor claimed $187.50 for the costs of instructing an agent to act in proceedings. Bourke Child Care’s solicitor conceded the claim under Item 10.01. The delegate found that the claim was “apparently relative to agency attendance at the Commission for photocopying documents and the like” and as this activity does not qualify as an agency activity. Further the delegate determined that as the appropriate allowance had been made under Item 4.05 no further allowance was permissible.
On appeal Ms Ryan solicitor submits that the claim under Item 10.01 was agreed between the parties. A review of the activities undertaken by the agent indicates that Ms Ryan’s solicitor engaged the agent to prepare a report and to undertake various other activities. In my view the delegate erred in his determination that the activities were solely referable to attendance, photocopying and the like. This error may in part have arisen as a result of Ms Ryan’s solicitor’s failure to provide the details required to conduct the assessment.
I note Bourke Child Care’s solicitor’s concession of the amount claimed and in the present circumstances I am satisfied that it was fair and reasonable to instruct an agent to act (see discussion in Norris at paragraphs 70-80). I allow the item in the amount claimed being $187.50 plus GST.
Did the delegate err in determining the costs of disbursements?
Agency Fees
Ms Ryan’s solicitor also claimed $88.00 as a disbursement but with reference to Item 10.01 for the costs incurred in his agent filing, photocopying documents and claiming legal professional privilege. Bourke Child Care’s solicitor objected to the claim. The delegate determined that the claim was properly made under Item 4.05 and having been allowed the claim under that item the claim could not be duplicated and the claim in respect of filing was, in the delegate’s view unreasonable.
On appeal Ms Ryan’s solicitor repeats and adopts his earlier submissions and refers to other matters dealing with similar claims determined by the Commission.
Deputy President Fleming dealt with this issue in Dunn at paragraph 41 and held 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 apply this authority in finding that the delegate did not err in his determination in circumstances where the claim under Item 4.05 was allowed in the maximum. Additionally I note that an Items 4.01, 4.02; 4.03A, and 4.03B (relating to lodgement and service of documents) were all allowed in either the amount claimed or the maximum permissible. I apply the reasoning set out in Dunn and Flegerbein in rejecting this ground of appeal.
The Private Investigator’s Report
Ms Ryan’s solicitor claimed $3,470.60 (including GST) for the costs of the Report and submitted that the work required of a solicitor in proceedings in which all aspects of the claim were in dispute cannot be completed in the two hours allowable under Item 2.01 and it would be inequitable not to allow the claim. Bourke Child Care’s solicitor objected to the claim and submitted that no more than $750.00 should be allowed. The delegate referred to the invoice provided by SGRIS which is “completed blank” in respect of the activities undertaken. The delegate then applied the test of ‘reasonableness’ and disallowed the claim.
In applying the reasoning set out in the Commission’s decision in Asimus at paragraph 19, I find the application of the test of ‘reasonableness’ 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.
The index to the Report is at odds with the Report filed with the Application. The Report contains: names, addresses and contact details for Ms Ryan; Bourke Child Care; the Insurer; Ms Ryan’s medical practitioners; a summary of injuries; a factual and liability summary which sets out details of Ms Ryan’s employment history and duties; injury; medical history; condition; treatment; symptoms, and observations regarding authenticity and common law entitlements. None of this information can be considered to be ‘necessarily incurred’ when this material should be in the possession of Ms Ryan’s solicitor and the evidence leads to a conclusion that it was as it duplicates much of the information contained in reports to Ms Ryan’s solicitor which predate the Report. Further information relating to Ms Ryan’s injury and employment is contained in her statement. I find that the Report, in this respect, duplicates material filed in the proceedings and was not necessary to the claim (Berger; Asimus and Flegerbein). Additionally I do not view the observations of the investigator in respect of authenticity necessary to the claim nor do I view the statement of Nancy Susan Dorrington or Michelle Louise Collins necessary to the claim pursued. These statements confirm that Ms Ryan advised her fellow workers that she injured her back and completed an incident report. However this information is also contained in Ms Ryan’s statement and I do not view the costs incurred in obtaining these corroborative statements to be necessarily incurred prior to the lodgment of the Application particularly in circumstances where an ‘Employee’s Accident Report’ dated 19 February 1998 was lodged with the Application. Therefore the cost of the Report in this respect is not allowed.
Accordingly the remaining matter for consideration is the statement of Ms Ryan and I note that this statement was claimed by Ms Ryan’s solicitor under Item 2.04A of the Table. However as set out at paragraph 25 of this decision the claim was later amended to purportedly make a claim on behalf of Ms Ryan’s former solicitors. That claim has been disallowed. I conclude that Ms Ryan’s claim could not be brought without her statement (see discussion in Asimus at 24-25) and on balance, I am prepared to entertain the claim for this statement as a disbursement. It was taken by a non professional over two hours and totals approximately 16 pages. However, in my view given the content and length of the statement I consider the costs incurred in obtaining the statement over a period of two hours to be unreasonably incurred. In my view it is reasonable to allow one and a half hours 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 $165.00 (including GST).
Summary
I have determined the disbursements and professional costs challenged by Ms Ryan’s solicitor as follows:
Professional Costs
The delegate’s disallowance of the claim under Item 2.03 is confirmed.
The delegate’s disallowance of the claim under Item 2.04A 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 disallowance of the claim under Item 2.06 is confirmed.
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 $760.00 (plus GST being an amount of $836.00) for reporting to the client following the three teleconferences claimed and one conciliation/arbitration hearing under Item 4.12 of the Table.
The delegate’s disallowance of the claim under Item 9.01 is confirmed.
The delegate’s disallowance of the claim under Item 10.01 is revoked.
It is fair and reasonable to allow $187.50 (plus GST being an amount of $206.25) for the costs of instructing an agent to act.Disbursements
The delegate’s disallowance of the costs of agency fees claimed as a disbursement is confirmed.
The delegate’s disallowance of the costs of the Report claimed as a disbursement is revoked.
The costs of $165.00 (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 $899.25 to a total
amount of $10,986.89.
DECISION
Paragraphs one, two and four of the decision of the delegate dated 27 March 2006 are revoked and the following orders are made in their place:
“(i) Pursuant to the Applicant’s Bill of Costs, 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 $10,986.89.
(iii) The Respondent is, therefore, to pay to the Applicant a total amount of $10,986.89 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
The Appellant has been in part successful on appeal.
The appropriate order is therefore that: “The Respondent Bourke Child Care pay the Appellant Ms Ryan, $275.00 inclusive of GST in respect of her costs in this appeal.”
Elizabeth Tydd
Acting Deputy President
15 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.
ASSOCIATE
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