Ryan v Depira Pty Limited

[2007] NSWWCCPD 48

WORKERS COMPENSATION COMMISSION

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

CITATION:Ryan v Depira Pty Limited [2007] NSWWCCPD 48

APPELLANT:  Marilyn Leonie Ryan

RESPONDENT:  Depira Pty Limited

INSURER:Employers Mutual Indemnity NSW Limited

FILE NUMBER:  WCC 13443-05

DATE OF REGISTRAR’S DECISION:             2 March 2006

DATE OF APPEAL DECISION:  13 February 2007

SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; adequacy of reasons; costs of proceedings; GST; denial of procedural fairness; costs of disbursements; Items 4.08; 4.09; and 4.12 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:   Edwards Michael Moroney Lawyers

ORDERS MADE ON APPEAL:  1. Paragraphs two and four of the decision of the delegate dated 2 March 2006 are revoked and the following orders are made in their place:

“(ii) The Applicant’s costs of the substantive proceedings are assessed in the sum of $15,872.70.
(iii) The Respondent is, therefore, to pay to the Applicant a total amount of $15,872.70 if those costs have not already been paid.”

2. Paragraphs one and three of the delegate’s decision are confirmed.

3. The Respondent Depira, pay the Appellant Ms Ryan, $275.00 inclusive of GST in respect of her costs in this appeal.

BACKGROUND

Prior proceedings

1. On 10 March 2003 Marilyn Leonie Ryan (‘Ms Ryan ’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’) matter number WCC 7838-03-04. An “Amended” Application in the same matter was lodged by Ms Ryan on 3 April 2003. Ms Ryan claimed to have suffered injuries to her back with associated left leg pain, and aggravated pain in the neck, and left shoulder on 5 November 2001 as a result of falling in the course of her employment as a labourer. Ms Ryan also claimed injury to her back, neck, left arm sexual organs and severe psychological injury as a result of the nature and conditions of her employment from 2 April 2001 to 11 November 2001. Ms Ryan named Depira Pty Limited (‘Depira’) as the Respondent employer and sought: on going payments of weekly compensation from 5 November 2001 and continuing; lump sum compensation totalling $38,400.00 pursuant to section 66 of the Workers CompensationAct 1987 (‘the 1987 Act’); compensation pursuant to section 67 totalling $15,000.00, and medical and related expenses pursuant to section 60 of the 1987 Act.

1. On 7 April 2003 Depira filed a Reply to the Application in which it disputed all aspects of the claim.

1. On my review of the Commission’s files, teleconferences were conducted on 24 July, 7 August and 1 September 2003 by a Commission arbitrator (‘the Arbitrator’). On 11 November 2003 the Arbitrator issued Procedural Directions regarding referral to an Approved Medical Specialist (‘AMS’). On 19 November 2003 the Arbitrator provided a referral to an orthopaedic and urological AMS. The Commission issued the medical assessment certificates on 6 August 2004. A fourth teleconference was conducted on 2 September 2004 and, as the dispute was not resolved the matter was set down for hearing on 15 October 2004.

1. The dispute was resolved by consent on that day. The Arbitrator issued a ‘Certificate of Determination – Consent Orders’ dated 1 November 2004 ordering Depira to pay Ms Ryan: weekly compensation pursuant to section 36 and 37 of the 1987 Act from 12 November 2001 and continuing; medical and related expenses pursuant to section 60, and the costs of the Application as agreed or assessed. The Orders also reflected the parties’ agreement for Depira to pay Ms Ryan a total of $54,800.00 pursuant to 66 and $20,000.00 pursuant to section 67 of the 1987 Act.

1. On 9 August 2005 Ms Ryan’s solicitor lodged an ‘Application for Assessment of Costs’. The solicitor for Depira lodged submissions in reply on 18 August 2005. Ms Ryan’s solicitor lodged further submissions on 2 September 2005.

1. The Registrar’s decision in relation to this application, by her delegate, a Commission Arbitrator, (‘the delegate’) was made on 2 March 2006. The delegate’s decision was accompanied by a ‘Statement of Reasons’.  The decision is set out as follows:

“1.         Pursuant to an order for costs dated 1 November 2004, the Respondent is liable to pay the Applicant’s costs as agreed or assessed.

2.The Applicant’s costs of the substantive proceedings are assessed in the sum of $15,302.70.

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 $15,302.70, if those costs have not already been paid.”

Lodgement of the appeal

1. On 22 March 2006 Ms Ryan’s solicitor lodged an ‘Appeal from the Registrar’s Determination on Costs’.

1. On 20 April 2006 the solicitor for Depira lodged submissions in reply to the Appeal.Depira is insured by Employers Mutual Indemnity NSW Limited.

ON THE PAPERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. 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

1. Ms Ryan’s solicitor submits that the delegate denied him natural justice by: not allowing his costs of the proceedings, and in determining the application of GST in the absence of submissions from the parties. It is further submitted that the delegate erred in determining 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. These submissions are set out below. Depira’s solicitor’s submissions are set out below.

1. 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 4.08; 4.09, and 4.12 of the Table;

·whether the delegate erred in determining the costs of disbursements;

·whether the delegate erred in determining the costs of proceedings, and

·whether the delegate erred in determining the application of GST.

The relevant legislation

1. The relevant legislation concerning appeals to the Commission against an assessment of costs contained in the 1998 Act and the WC Regulation has been considered in a number of 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’); Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWWCCPD 30 (‘Flegerbein’), and Chapman v Gosford City Council [2006] NSWWCCPD 4 (‘Chapman’)) and need not be canvassed again in this decision.  

1. I find that the WC Regulation and Legal Profession Regulation2002 (‘the LP Regulation’) apply as the order for the payment of costs was made on 1 November 2004 (see discussion in Woodbury v Miles [2006] NSWWCCPD 55). 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.

1. 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).

1. The claim for disbursements must be assessed pursuant to Schedule 2, Pt 1, Item 10 of the LP Regulation which provides that “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.” 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 4.08; 4.09; 4.10; 4.11, and 4.12 of the Table?

Item 4.08

1. As I understand the submissions before the delegate, Ms Ryan’s solicitor did not make a claim under item 4.08 for preparing for a conference as the claim had been agreed in the amount of $500.00. However the Application attached multiple annexures including a copy of Ms Ryan’s solicitor’s bill of costs dated 2 September 2004. In the bill, under this item Ms Ryan’s solicitor sought:

·$500.00 for a teleconference - 27 March 2003;

·$500.00 for a teleconference - 6 August 2003;

·$500.00 for a teleconference - 1 September 2003;

·$500.00 for a teleconference - 28 October 2003;

·$500.00 for a teleconference - 2 September 2004, and

·$500.00 for preparing for the conciliation conference conducted on 15 October 2004.

1. Also attached to the Application was correspondence dated 31 January 2005 to Messrs Nevill & Edwards which claimed a total of $2,500.00 under this item and correspondence dated 15 June 2005 to Depira’s solicitors agreeing on the amount of $500.00 under this item. In Reply Depira noted that the “Applicant does not press for multiple claims under item 4.08 as claimed in the initial assessment.” In further submissions in response Ms Ryan’s solicitor stated that his claim had been accepted by Depira.  The delegate’s statement of reasons dealt with the issues in dispute between the parties and simply noted that $500.00 was agreed between the parties under this item.

1. On appeal, Ms Ryan’s solicitor submits that the delegate erred in law in only allowing one activity under this item and relied upon the authority provided by the Court of Appeal in Fuentes. There is no evidence before me that the delegate relied upon only one activity. Following my review of the Commission’s files I am unable to reconcile all of the dates initially claimed with the activities/events undertaken. Whilst I am satisfied that four teleconferences and one conciliation conference took place (as set out at paragraph 3 of this decision) I find no error in the delegate’s determination that the maximum allowable under this item is $500.00 particularly in circumstances where the parties agreement on costs represented the maximum allowance (see discussion at paragraph 14 of this decision). Accordingly I reject this ground of appeal.

Item 4.09

1. Under Item 4.09 Ms Ryan’s solicitor confirmed the parties’ agreement under this item in the amount of $875.00 for attending/participating in a conference. However he claimed a further $250.00 for the costs of attending and participating in the “4^th” conference conducted on 13 November 2003.  In reply Depira submitted that it agreed to the “Costs Agreed” as detailed by the Applicant and it also agreed to pay a further amount of $125.00 under Item 4.09.  However Depira’s solicitor also contended that no teleconference took place on 13 November 2003.  In later submissions Ms Ryan’s solicitor maintained his claim. The delegate determined that Ms Ryan’s representatives participated in five teleconferences and one conciliation conferencing. I find no evidence in support of the delegate’s finding that a fifth teleconference was conducted on 13 November 2003. 

1. On appeal Ms Ryan’s solicitor submits that the delegate erred in law in stating that “it is not permissible to claim more than once for a particular activity or event and the maximum is to apply irrespective of the number of conferences involved.”.  Ms Ryan’s solicitor relies upon the authority provided by the Court of Appeal in Fuentes in this regard and refers to the Courts allowance of multiple activities under Item 4.12 of the Table.

1. In relation to the claim under Item 4.09 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. The only exception provided in relation to the maximum is Item 4.12 (see discussion in Fuentes and McManus) Depira’s solicitor conceded the amount in the maximum.  I have considered the parties participation in the four teleconferences and the conciliation conference. I confirm the delegate’s finding that the teleconference of 2 September 2004 was conducted over two hours and that the conciliation conference was conducted over less than one hour.  On balance, I conclude that an allowance in the maximum is not at odds either on the evidence before the delegate or before me on appeal. Accordingly I reject this ground of appeal.

1. As I understand the submissions before the delegate, Ms Ryan’s solicitor did not make a claim under Item 4.10 for participating in a conference where the Arbitrator determined the matter to be complex and so certified. However Ms Ryan’s solicitor’s bill of costs attached to the Application made a claim of $1,500.00 under this item. The delegate determined that in the circumstances Item 4.10 was irrelevant to the assessment.

1. On my review of the submission on appeal the claim under this item is not pressed. However, in passing I find that the delegate properly determined that this item had no application as the matter did not proceed to arbitration and in those circumstances Item 4.11 also has no application.

Item 4.12

1. In his bill of costs Ms Ryan’s solicitor claimed a total of $1330.00 for the costs of seven reports to his client being five teleconferences, the conciliation conference and the arbitral hearing.  As I understand the further submissions Ms Ryan’s solicitor accepted Depira’s solicitor’s concession of three reports but maintained his original claim. In its submissions Depira conceded a further claim in respect of the conciliation conference. The delegate relied upon the decision in Fuentes and allowed two reports only.

1. On appeal Ms Ryan’s solicitor maintains his claim and Depira’s solicitor concedes only $380.00. 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. 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 circumstances I am satisfied that there were four teleconferences and a conciliation conference. I am satisfied that the claim has been made out in respect of five activities. An allowance for five 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 $950.00.

Did the delegate err in determining the costs of disbursements and fail to provide adequate reasons?

Agency Fees

1. In his bill of costs Ms Ryan’s solicitor also claimed $326.50 as a disbursement but with reference to Item 10.01 for the costs incurred by his agent filing and photocopying documents. On my assessment Depira’s solicitor conceded the claim.  The delegate determined that filing, inspecting and photocopying of documents cannot be claimed as a disbursement over and above the allowances under Items 4.01 and 4.05 of the Table. 

1. On appeal Ms Ryan’s solicitor submits that the delegate erred in law in his determination and failed to provide adequate reasons for his decision and this failure amounts to an error of law. Depira’s solicitor submits that the Commission has held that agent’s fees are not claimable for copying material (McManus); instructing an agent entails a liability for a letter of instruction only and photocopying is not allowable.

1. In respect of filing I note that Depira’s solicitor conceded the claim under Item 4.01 for lodging documents with the Commission in the maximum. I do not consider the recovery of fees paid to an agent for filing documents ‘necessarily incurred’ particularly in circumstances where a less expensive means of filing is permitted (see discussion in Quarmby v Motor Traders Association of NSW Group Apprenticeship Schemes [2006] NSWWCCPD 324).

1. In respect of photocopying documents I note that Depira’s solicitor concede the claim in the maximum. Deputy President Fleming dealt a similar claim 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. I accept that the delegate’s reasons in relation to this item are brief. However, in my view the delegate properly referred to the allowances made under the relevant items and provided a clear basis for his disallowance of the claim. Therefore I am not satisfied on the evidence before me that the delegate’s reasons are inadequate and that their inadequacy sufficiently demonstrates that the delegate failed to exercise his statutory duty, to fairly and lawfully determine the application (Cargill Meat Processors Pty Limited v Clark[2005] NSWWCCPD 7). Therefore I reject this ground of appeal.

Did the delegate err in determining GST?

1. In disallowing Ms Ryan’s solicitor’s claim for GST on the items claimed under the Table the delegate referred to the Commission’s decision in Berger as authority that GST on such items is not allowable.

1. On appeal Ms Ryan’s solicitor submits that he was denied procedural fairness by the delegate who determined the issue in the absence of submissions from the parties. In my view the legal representatives were or should be aware of the issues arising in relation to the assessment. They were provided with the opportunity to make submissions and availed themselves of that opportunity. The applicable law was, or should be well known to the legal representatives. Accordingly I see no error in the delegate’s determination of this issue in the absence of specific submissions.

1. The application of GST has been considered by the Commission in a number of decisions including Chapman at paragraphs 14-18 and Willis v SPL Group Ltd [2007] NSWWCCPD 32 at paragraphs 32-36. The WC Regulations have been 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”. (Clause 123(1). The amendment took effect from 17 March 2006.

1. The work was performed and the delegate assessed the costs before the relevant amendment took effect. I find no error in the delegate’s determination in this regard.  

Costs of proceedings

1. Ms Ryan’s solicitor claimed the costs of “the Applicant’s bill and all of the submissions” in the amount of $625.00 in his submissions dated 2 September 2005.  Depira’s solicitor’s submissions predate this claim.  The delegate found that the Applicant had not succeeded in the assessment and exercised his discretion not to award the costs of the assessment.

1. As I understand the submissions on appeal Ms Ryan’s solicitor submits that he “was forced to file proceedings” and repeats his earlier claim.  Ms Ryan’s solicitor also submits that “the current costs system” is not complying with section 367 of the 1998 Act. In my view, this submission does not further Ms Ryan’s solicitor’s claim that the delegate erred in law in his assessment and accordingly I do not propose to entertain this submission further.

1. Ms Ryan’s solicitor issued a bill of costs totalling $27,428.68.  In proceedings before the delegate he submitted that $8,215.35 had been conceded and that a further $13,846.18 for costs and disbursement was claimed and disputed by Depira’s solicitor.  The total award made by the delegate was $15,302.70. 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.

Summary

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

Professional Costs

The delegate’s allowance of the maximum of $500.00 for the claim under Item 4.08 is confirmed.
The delegate’s allowance of the maximum of $1000.00 for the claim under Item 4.09 is confirmed.
The delegate’s allowance of $380.00 for the claim under Item 4.12 is revoked.
It is fair and reasonable to allow $950.00 for reporting to the client following the four teleconferences and one conciliation/arbitration hearing under Item 4.12 of the Table.

Disbursements

The delegate’s disallowance of the costs of agency fees claimed as a disbursement is confirmed.
The delegate’s disallowance of GST is confirmed.

The delegate’s determination not to award the costs of proceedings is confirmed.

I therefore increase the delegate’s assessment of costs by $570.00 to a total
amount of $15,872.70.

DECISION

1. Paragraphs two and four of the decision of the delegate dated 2 March 2006 are revoked and the following orders are made in their place:

“(ii) The Applicant’s costs of the substantive proceedings are assessed in the sum of $15,872.70.
(iii) The Respondent is, therefore, to pay to the Applicant a total amount of $15,872.70 if those costs have not already been paid.”

1. Paragraphs, one and three of the delegate’s decision are confirmed.

COSTS

1. The Appellant has been in part successful on appeal.

1. The appropriate order is therefore that: “The Respondent Depira pay the Appellant Ms Ryan, $275.00 inclusive of GST in respect of her costs in this appeal.”

Elizabeth Tydd

Acting Deputy President

13 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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