Smith v Kalamazoo Pty Limited

[2007] NSWWCCPD 115

WORKERS COMPENSATION COMMISSION

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

CITATION:Smith v Kalamazoo Pty Limited [2007] NSWWCCPD 115

APPELLANT:  Alan Smith

RESPONDENT:  Kalamazoo Pty Limited

INSURER:Allianz Australia Workers Compensation (NSW) Limited

FILE NUMBER:  WCC8063-06

DATE OF REGISTRAR’S DECISION:             6 September 2006

DATE OF APPEAL DECISION:  21 May 2007

SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claim under Item 4.07 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003.

PRESIDENTIAL MEMBER:  Acting Deputy President Julian Martin

HEARING:On the papers

REPRESENTATION:  Appellant:      Gerard Malouf and Partners

Respondent:   Hicksons Lawyers

ORDERS MADE ON APPEAL:  1.          The decision of the Registrar dated 6 September 2006 is confirmed.

2.No order as to costs of the appeal.

BACKGROUND

Substantive Proceedings

1. On 3 December 2003 Alan Smith (‘Mr Smith’) commenced proceedings in the Workers Compensation Commission (‘the Commission’) against Kalamazoo Pty Limited (‘Kalamazoo’) claiming lump sum compensation and medical and related expenses.

1. A teleconference was held with the parties on 13 April 2004 when the matter was referred to an Approved Medical Specialist.  After the issue of the Medical Assessment Certificate a further teleconference was held on 9 November 2004 when the matter was resolved. 

1. A Certificate of Determination was issued on 12 November 2004 which included an order that Kalamazoo pay Mr Smith’s costs “as agreed or assessed”.

1. The parties did not agree on costs and Mr Smith’s solicitor lodged an Application for Assessment of Costs on 25 May 2006.  As a result of agreement between the parties, the only disputed matter to be determined was Item 4.07 of the Compensation Costs Table.

1. The costs were determined by the Registrar’s delegate, a Commission Arbitrator (‘the Delegate’) on 6 September 2006.  The decision is as follows:

“1.Pursuant to a Certificate of Determination - Consent Orders made on 12 November 2004, the Respondent is to pay the Applicant’s costs as agreed or assessed.

2.The Respondent is to pay the Applicant’s costs of the assessment in the sum of $4,388.52.

3.The Applicant’s costs of the assessment are not allowed.

4.The Respondent is, therefore, to pay to the Applicant a total amount of $4,388.52 if those costs have not already been paid.”

1. On 21 September 2006 Mr Smith lodged an appeal from the Delegate’s decision.

ON THE PAPERS

1. 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.”

1. Kalamazoo submit that the matter should be dealt with ‘on the papers’ whilst Mr Smith is silent on this issue.

1. I have both the Commission file regarding the cost dispute and the appeal file.  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.

ISSUES IN DISPUTE

1. Mr Smith’s solicitor submits that the Delegate erred in relation to Item 4.07 of the Compensation Costs Table.

PRELIMINARY

1. Part 19 of the Workers Compensation Regulation 2003 (‘the Regulations’) govern both the procedure for assessment of costs and appeals against such an assessment.

1. 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] NSWWCCPD 152 (‘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] NSWWCCPD 9).””

SUBMISSIONS, DISCUSSION AND FINDINGS

Item 4.07

1. This Item allows a maximum amount of $100 for ‘applying to refer a matter to an approved medical specialist, or responding to such an application (including costs associated with agreeing on the approved medical specialist and review of the report by the approved medical specialist)’. 

1. Mr Smith’s solicitor claimed the sum of $110 (inclusive of GST) under this Item.  It was common ground between the parties that Mr Smith was referred to an Approved Medical Specialist in the course of a teleconference.

1. The Delegate disallowed the claim under this item having regard to paragraph 108 of Berger’s case which he quoted in his decision:

“The first point to make about Item 4.07 is that the activity it describes must in fact be undertaken by the legal representative in order to claim the cost.  Where an application to refer a matter to an AMS is made in the course of a telephone conference, without any evidence of other activity by the legal representative, then Item 4.07 is effectively subsumed into Item 4.09.  It is not intended that Item 4.07 be claimable regardless of whether the discrete activity it describes was carried out or not…”

1. On appeal Mr Smith submits that the Delegate erred in failing to properly apply the principals in Shipp v Fletcher International Exports Pty Ltd [2004] NSWWCCC 21 (‘Shipp’).  This matter was determined by the Registrar, who stated in paragraph 38:

“I considered that the item applied, and that it was not necessary that there be a separate application.  For Item 4.07 to apply, it is sufficient that the referral occurs during a conference.  I had particular regard to the fact that the item encompasses the review of the report of the approved medical specialist, there being no separate item for that activity.”

1. Clearly the Delegate was correct in following the decision of Berger, which was determined by Deputy President Fleming after the Registrar’s determination in Shipp.

1. It is apparent when looking at the two decisions, that there is a fundamental difference when the Registrar in Shipp states “…it is sufficient that the referral occurs during a conference”.  In my opinion the Delegate did not err when Berger clearly states “…that the activity it describes must in fact be undertaken by the legal representative in order to claim the cost” (emphasis added).  The activity described is applying to refer a matter to an approved medical specialist, or responding to such an application.  As stated above this activity was undertaken by the Arbitrator during a teleconference.

1. It is further submitted that the Delegate erred in failing to distinguish Berger from the facts of the present case.  In support of this submission Mr Smith refers to the wording of the second sentence in the quote from Berger which I have set out in paragraph 15 above.  In particular reference is made to the phrase “other activities”.  In the current matter Mr Smith’s solicitor states he attended to the following “other activities”:

·advising Mr Smith of the appointment with the Approved Medical Specialist (‘AMS’);

·forwarding further reports to the AMS;

·reading the report of the AMS;

·advising Mr Smith of the decision of the AMS, and

·seeking Mr Smith’s instructions on a possible appeal from the AMS.

1. In response Kalamazoo submit that the facts of the present case are almost identical to those in Berger.  In support of this submission Kalamazoo refer to the following events in Mr Smith’s case:

·the matter was referred to an AMS at the teleconference of 13 April 2004;

·there was no agreement as to the identity of the AMS;

·Mr Smith was present at the teleconference and was aware of the procedure involved in the referral to the AMS;

·the initial appointment with the AMS was changed and both parties were advised by letter, and

·the appointment with the AMS was again changed and the parties were advised of this by the Commission.

1. Kalamazoo then refer to paragraph 109 of Berger where Deputy President Fleming stated:

“Mr Berger was referred to Dr Middleton and Dr Breslin, Approved Medical Specialists, for assessment of the degree of permanent impairment he suffered as a result of his injury.  The Commission chose these AMSs’, in the absence of the party’s agreement.  It was the Commission that copied all of the relevant material to go to the AMS, arranged the appointment, corresponded with the parties and disseminated the Medical Assessment Certificates.  Mr Berger’s legal representative submits that this involved the additional “activities” of receiving notice of the appointment from the Commission and advising Mr Berger of same, and requesting travel expenses.  The Commission file records the correspondence sent in relation to this matter.  The Commission advised Mr Berger personally, and his legal representative, of the appointment with the two AMS’s, in one letter dated 7 April 2003.  Mr Berger personally rang the Commission and requested a change of date, which was duly notified to the parties by the Commission by letter on 16 April 2003.  The date was again changed, at the request of the Insurer, and the Commission notified the parties.  These notifications from the Commission all included advice that expenses associated with the appointment were to be met by the employer or insurer.  In my view the fact that Mr Berger was referred to two AMSs has not resulted in any additional activity for Mr Berger’s legal representative at all, but rather for Commission staff.”

Although not identical, I agree with Kalamazoo that the facts in Berger are similar to those in Mr Smith’s case.

1. I see no error of law on the part of the Delegate.  He correctly followed the decision of Berger, which at the risk of repeating myself specifically states “…the activity it describes must in fact be undertaken by the legal representative in order to claim the cost”.  As I stated above the activity was undertaken by the Arbitrator. In my view the “other activities” that Mr Smith’s solicitor attended to (set out in paragraph 19 above) are “subsumed into Item 4.09”. This Item covers the cost of attending and participating in a conference with an Arbitrator.

1. Mr Smith further submits on appeal that the Delegate failed to provide proper and detailed reasons for the decision.  I do not agree with this submission.  As Deputy President Fleming stated in Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28:

“In my view it is not necessary for the Registrar, or her delegate, to set out lengthy written reasons for a decision in order to comply with the Act and the Rules.  To do so would be unreasonable and inconsistent with the objectives of the Commission in providing a speedy resolution to workers compensation disputes.”

I am satisfied that in the circumstances the Delegate provided adequate reasons for the decision.

DECISION

1. The decision of the Registrar dated 6 September 2006 is confirmed.

COSTS

1. Kalamazoo seek costs in the appeal, however I am not satisfied that the claim was frivolous or vexatious, fraudulent or made without proper justification and accordingly I make no order as to the costs of the appeal.

Julian Martin

Acting Deputy President

21 May 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.

ASSOCIATE