Sands v Barriekneal Housing & Community Ltd
[2007] NSWWCCPD 29
•31 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Sands v Barriekneal Housing & Community Ltd and anor [2007] NSWWCCPD 29
APPELLANT: Ernest George Sands
FIRST RESPONDENT: Barriekneal Housing & Community Ltd
SECOND RESPONDENT: Walginnam Employment & Training Aboriginal Corporation
FIRST RESPONDENT’S INSURER: Allianz Australia Workers Compensation (NSW) Limited
SECOND RESPONDENT’S INSURER: Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC14156-05
DATE OF REGISTRAR’S DECISION: 17 January 2006
DATE OF APPEAL DECISION: 31 January 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claim under Items 2.05, 2.06, 4.12, 10.01, Clause 5 of Schedule 6 and whether maximum costs specified in the Compensation Costs Table in Schedule 6 of the WorkersCompensation Regulation 2003 are inclusive of GST; disbursements - medical reports, agency fees, investigator’s report and applicant’s travel expenses.
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
First Respondent: Goldbergs Lawyers
Second Respondent: Goldbergs Lawyers
ORDERS MADE ON APPEAL: 1. The decision of the Registrar dated 17 January 2006 is confirmed.
2.No order as to costs of the appeal.
BACKGROUND
Substantive Proceedings
On 12 May 2004 Ernest George Sands (‘Mr Sands’) commenced proceedings in the Workers Compensation Commission (‘the Commission’) against Walginnam Employment & Training Aboriginal Corporation (‘Walginnam’) claiming weekly benefits compensation, medical and related expenses and lump sum compensation.
On 31 August 2004 a teleconference was held between the parties. It was agreed that the matter would be referred to an Approved Medical Specialist.
On 19 January 2005 formal application was received by the Commission from Mr Sands to join Barriekneal Housing & Community Ltd (‘Barriekneal’) as a party to the proceedings.
On 4 July 2005 a further teleconference took place after receipt of the Certificate from the Approved Medical Specialist. The matter was resolved and a Certificate of Determination was issued on 6 July 2005 which included an order that Barriekneal and Walginnam pay Mr Sands’ “costs as agreed or assessed”.
The parties did not agree on costs and Mr Sands’ solicitor lodged an Application for Assessment of Costs on 22 August 2005.
The costs were determined by the Registrar’s delegate, a Commission Arbitrator (‘the Delegate’) on 17 January 2006. The decision is as follows:
“1. Pursuant to Consent Orders of 6 July 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 $6,690.44.
3.The Applicant’s costs of the assessment are not allowed.
4.The Respondent is to pay the amount of $6,690.44 to the Applicant if those costs have not already been paid.”
On 13 February 2006 Mr Sands lodged an appeal from the Delegate’s decision.
ON THE PAPERS
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.”
Both Barriekneal and Walginnam submit that the matter should be dealt with ‘on the papers’ whilst Mr Sands is silent on this issue.
Having before me the Commission files in this matter, 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.
ISSUES IN DISPUTE
Mr Sands’ solicitor submits that the Delegate erred in relation to professional costs and claim under Item 2.05, Item 2.06, Item 4.12, Item 10.01, Clause 5 of Schedule 6 and whether maximum costs specified in the Compensation Costs Table are inclusive of GST.
Mr Sands’ solicitor further submits that the Delegate erred in relation to the following disbursements:
·Medical reports;
·Agency fees;
·Private investigator’s report costs; and
·Mr Sands’ travel expenses.
PRELIMINARY
Part 19 of the Workers Compensation Regulation 2003 (‘the Regulations’) govern both the procedure for assessment of costs and appeals against such an assessment.
Clause 119(1) of the Regulations limits the grounds on which an appeal may be made against the determination of the Registrar on an assessment of costs to a matter of law. As Deputy President Fleming stated in Berger v Moree Plains Shire Council [2005] NSWWCCPD152 (‘Berger’s case’):
“The determination of these questions by a costs assessor, is a matter of discretion and, as I said in Nebauer v Hunter Area Health Service [2004] NSWWCCPD 60 (at para 19):
“Only where the discretion can be said to have miscarried because it was exercised unfairly and unlawfully, taking into account the scope of the discretion, and the objects or purpose for which it is conferred, would it be an error of law (Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 758; R v Australian Broadcasting Tribunal; ex p 2HD Pty Ltd (1979) 144 CLR 45 at 49; Sheridan v David Anthony Clarke t/as Freestyle Marine Sports [2003] NSWWCCPD9).””
SUBMISSIONS, DISCUSSION AND FINDINGS
Professional costs
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)’. Mr Sands’ solicitor claimed the maximum and submitted to the Delegate in the Application for Assessment of Costs, that an investigator’s report is necessary because of the complex issues involved and the time allowed for other Items in the Table is insufficient. It was further submitted that a number of matters were put in issue by the solicitor for both Barriekneal and Walginnam thereby requiring a factual investigation.
The Delegate disallowed the claim after noting the matter was not certified complex by the Arbitrator and the invoice provided by the investigator was largely for “rote or automated process involvement”.
On appeal Mr Sands’ solicitor submits that because “everything was in dispute” he was entitled to brief a factual investigator.
I am not satisfied that the Delegate erred at law or in the exercise of his discretion. Although a number of matters were placed in issue by the solicitor for Barriekneal and Walginnam, the proceedings were resolved at the teleconference after the issue of the Medical Assessment Certificate of Permanent Impairment. The factual investigation did include the preparation of a Schedule of Earnings, however there was considerable time spent in the preparation of two witness statements and “rote or automated process”. As the Delegate correctly noted, Item 2.05 specifically excludes the briefing of a factual investigator to obtain witness statements. I further note the claim for weekly benefits compensation was discontinued at the final teleconference.
Item 2.06
Item 2.06 allows a maximum amount of $500 (at the relevant time) for ‘requesting a review of the claim from the insurer, prior to referral of the matter to the Commission’. Mr Sands’ solicitor’s claim is based on a letter sent to the insurer on 13 January 2004. This letter annexes a draft Application to Resolve a Dispute and sets out the claim made by Mr Sands. The letter also seeks a review.
Barriekneal and Walginnam objected and the Delegate disallowed the claim because it was not reasonable to seek a review of the claim at the same time and in the same letter which sets out the claim.
Mr Sands’ solicitor submits that Item 2.06 is “time based” and involves him in reading the file in order to put an “opening offer” to Barriekneal and Walginnam’s insurer.
I see no error by the Delegate. The Item clearly refers to requesting a review of the claim.
Item 4.12
This Item provides for a maximum amount of $190 (at the relevant time) for ‘reporting to the client on the outcome of a conference or arbitration’. Mr Sands’ solicitor claimed the sum of $190 for reporting to the client after the first teleconference on 31 August 2004 and a further $190 after the second teleconference on 4 July 2005. The Delegate allowed $190 for only one report on the authority of Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28 and McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’).
Mr Sands’ solicitor submits on appeal that the Delegate erred in not taking into account the decision of Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282 (‘Fuentes’).
I see no error of law on the part of the Delegate. Fuentes was considered by Deputy President Fleming in McManus where she stated:
“The construction of 4.12 given by the Court in Fuentes, turned on the specific words of 4.12, in particular, ‘conference or arbitration’….
The approach to Item 4.12 set out by Justice Ipp in Fuentes appears to turn on the precise words of that Item. In my view it is not intended that the “maximum total for type or activity/event” in Column 4 be exceeded for the Items set out in Column 1 of the Compensation Costs Table. As I stated in Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCC PD 28:
“All individual ‘activities or events’, described in Column 2 of the Table, that come under that event/activity, described in Column 3 of the Table, must not exceed the maximum total for the ‘type’, as prescribed in Column 4 of the Table, not merely the totals for the individual ‘events’, as the Appellant suggests. The words of Clause 1(2) are critical, “the maximum costs for an activity or event described in a Part of the Table and carried out in or in relation to a claim made or to be made in respect of a particular injury” (emphasis added). Maximum costs attach to the event/activity in the Table for a ‘claim’ made in respect of a particular injury, not, as the Appellant suggests, for each time the event or activity is claimed.”
Item 10.01
The Table (at the relevant time) allowed a maximum amount of $187.50 under this Item for ‘all work associated with instructing an agent to act on the claim or a matter relating to the claim’.
Mr Sands’ solicitor claimed $187.50 for work associated with instructing an agent to file, photocopy and inspect documents. The Delegate disallowed the claim stating:
“…these are attendances more properly claimable at Item 4.05, which has already been claimed and allowed at the Table maximum (Dunn v Port Macquarie RSL Club Ltd [2004] NSWWCCPD33) [‘Dunn’s case’].”
Mr Sands’ solicitor submits on appeal that the Delegate erred because Item 4.05 “refers to work done by the solicitor, not to any costs incurred by the agent”.
I do not accept this submission because “To…allow the claim under Item 10.01 is to effectively allow for the same activity, by a legal representative and an agent, to be claimed twice. This is not permitted by the Regulations” (McManus’ case).
Clause 5 of Schedule 6
This clause provides:
“5 Costs where multiple insurers party to claim
If more than one insurer (or any combination of insurers) is a party to a claim or a dispute or other matter in relation to a claim, the maximum costs in respect of the matter are the total of the following:
(a)the costs for the matter calculated in accordance with the table,
(b)50% of that amount per party (other than the party who made the claim),
and payment of the costs is to be shared equally among the insurers who are parties to the matter.
Note. Clause 81 provides that in Part 19 (Costs) and Schedules 6 and 7, the term insurer includes an employer.”
Mr Sands’ solicitor claimed an additional 50% because the proceedings were against two employers. The Delegate allowed a 25% increment for the additional party “to reflect fairness and reasonableness in this presentation”.
On appeal Mr Sands’ solicitor submits the Delegate erred “because a lot of work went into establishing” Mr Sands’ entitlements. It is further submitted that only in exceptional cases should a reduction from the 50% apply. I do not accept this submission. As Acting Deputy President Roche (as he then was) stated in Dring v Kurmala Home and anor [2006] NSWWCCPD 250:
“Clause 5 of Schedule 6 does not require that because of the presence of multiple parties the increase in costs must be 50%. The reference to 50% “per party” in Clause 5 is a reference to the “maximum costs in respect of the matter”. It is not a percentage that is allowed automatically regardless of the nature of the claim or the reasonableness of the costs incurred.”
I see no error of law or discretion here. As stated above, formal application to join the second party was made to the Commission on 19 January 2005 and leave granted at the second teleconference, when the matter was resolved.
GST on professional costs
Mr Sands’ solicitor claimed GST on the total claim for Items in the Table. The Delegate disallowed the claim on the authority of Berger’s case where Deputy President Fleming stated:
“The 1998 Act and the WC Regulation are silent in relation to the power of an Assessor to increase the award of costs pursuant to the Compensation Costs Table by the amount of any GST payable. Costs regulated by Schedule 6 are expressed to be the ‘maximum costs that are recoverable’ (clause 84 of the WC Regulation). There is no provision that expressly allows GST to be awarded in addition to the ‘maximum costs’ allowable in the Table.”
On appeal it is submitted that Berger is under appeal in the Supreme Court and therefore the claim is maintained. Leave to appeal in Berger has now been refused.
It is further submitted that if the 1998 Act and the Regulations are silent on GST, then the Legal Profession Act 2004 applies. I reject this submission as “the 1998 Act and the WC Regulation govern the award and assessment of costs in the Commission unless otherwise excluded”. (Berger’s case).
The 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)).
Clause 123(1) of the Regulations took effect from 17 March 2006. As the Delegate’s assessment of costs was determined on 17 January 2006, there was no error in disallowing the claim for GST.
Disbursements
Medical Reports
Mr Sands’ solicitor claimed $913.00 for the following medical reports:
·Dr Patrick - $880 (inclusive of GST)
·Dubbo Base Hospital - $33 (inclusive of GST)
The Delegate allowed $880 for Dr Patrick but disallowed the $33 as “the notes of Dubbo Base Hospital do not comprise a claimable report…”.
On appeal it is submitted the Delegate erred because the clinical notes are a report. I see no error on the part of the Delegate. The maximum fees for reports of health service providers are fixed by the Authority pursuant to Section 339 of the 1998 Act. Section 332 of the 1998 Act provides the following definition of a medical report:
“medical report includes a medical certificate and medical opinion”
As Deputy President Fleming stated in Berger’s case (paragraph 99):
“…however in my view the ‘clinical notes’ of a medical practitioner and ‘Moree Hospital Notes’ are not within the ordinary meaning of the term ‘medical reports’. Clinical notes are existing records not a report reached after a considered review of a worker’s medical status.”
Agency Fees
Mr Sands’ solicitor sought the sum of $209 for St George Registration & Investigation Services P/L (‘St George’) to attend the Commission for the purpose of both filing and inspecting/photocopying documents. The Delegate disallowed the claim.
It is submitted on appeal that agency fees fall within Clause 82(b) of the Regulations and therefore should be allowed. I do not agree with this submission. As Deputy President Fleming stated in Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWWCCPD 30 (‘Flegerbein’s case’):
“However the costs referred to in clause 82, and therefore not regulated by Part 19 and Schedule 6, are specifically listed in sub-clauses (a) to (j) as, for example, is “fees for an investigator’s report”. All other costs that are recoverable by legal practitioners and agents in Commission matters are regulated by Schedule 6 (clause 84 of the WC Regulation). The fees claimed here are not for an investigator’s report (clause 82(b)). They are for photocopying and for other activities already covered, and claimed, under the Compensation Costs table in Schedule 6 of the WC Regulation.”
In this matter Mr Sands’ solicitor was allowed the maximum under Items 4.01 and 4.05 and as Deputy President Fleming said in Flegerbein’s case:
“To allow this claim twice in relation to the work of a legal representative and of an agent would exceed the maximum allowable and would be an error (Dunn v Port Macquarie RSL Club Ltd [2004] NSWWCCPD 33).”
Private Investigator’s Fee
In the Application for Assessment of Costs, Mr Sands’ solicitor claimed the sum of $2,931.23 being the Private Investigator’s fee.
The Delegate disallowed the claim having regard to the nature of the proceedings which resolved at the second teleconference after the issue of the Certificate from the Approved Medical Specialist. In disallowing the claim the Delegate stated:
“I am not satisfied that the asserted ‘services’ satisfy the primary test, including in the exercise of assessment discretion, that the disbursement was reasonably incurred or reasonable in amount.”
It is submitted on appeal that the Delegate did not consider the records of the Commission and therefore erred at law.
I see no error of law by the Delegate. He considered the matter having regard to the test as stated in Berger’s case. I am not satisfied that the Delegate’s determination was either unfair or unlawful and in my opinion he properly considered the material before him. Further, I agree with his determination that the matter was relatively straightforward and did not warrant the services of a private investigator.
Mr Sands’ travel costs
Mr Sands claimed $780.44 for costs and expenses incurred in order to attend a medical examination in Sydney arranged by his solicitor. The claim consisted of the following:
·$580.44 Mileage
·$80.00 Sustenance
·$120.00 Accommodation
The Delegate allowed the sum of $580.44 for mileage. He refused the other expenses because Mr Sands’ solicitor did not provide “receipts or verification” to Barriekneal and Walginnam’s solicitor.
On appeal Mr Sands’ solicitor submits there is no requirement to keep receipts of accommodation and sustenance and it is only a question of what is fair and reasonable.
As stated above the appeal is on a question of law only. The Delegate exercised his discretion having regard to the evidence before him and I am not satisfied that this was done either unfairly or unlawfully.
The Delegate’s decision not to allow costs
The Delegate gave the following reasons for not ordering Walginnam and Barriekneal to pay Mr Sands’ costs:
“The applicant submitted for costs of assessment including by reference to Item 9.01 and to which the Respondent objected. It is pertinent here that the Applicant has made almost no concession (in fact one only) in the entirety of the assessment Items claimed and pursued. In the outcome of assessment, I make no determination of any costs of the assessment to the Applicant in this matter.”
In his submissions on appeal Mr Sands’ solicitor states he should have been awarded costs because he beat Barriekneal and Walginnam’s offer.
I see no error in the exercise of the Delegate’s discretion on costs. In the costs application before the Delegate Mr Sands’ solicitor was successful in only two of the nine disputed professional costs Items. He succeeded in one of the three disbursements disputed.
DECISION
The decision of the Registrar dated 17 January 2006 is confirmed.
COSTS
I make no order as to the costs of the appeal.
Julian Martin
Acting Deputy President
31 January 2007
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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