Stekovic and Comcare (Compensation)
[2021] AATA 2230
•9 July 2021
Stekovic and Comcare (Compensation) [2021] AATA 2230 (9 July 2021)
Division:GENERAL DIVISION
File Number(s):2020/4031
2020/5323
2020/5326
Re:Joanne Stekovic
APPLICANT
ComcareAnd
RESPONDENT
AndQueanbeyan GP Super Clinic
DECISION
Tribunal:Mr S. Webb, Member
Date:9 July 2021
Place:Canberra
The total amount payable to the Queanbeyan GP Super Clinic under regulation 13 (6) of the Administrative Appeals Tribunal Regulations 2015 in respect of reasonable expenses incurred complying with the Tribunal summons issued on 16 September 2020 is an amount of $376.05 plus GST.
……………….[sgd]……………..
Mr S. Webb, Member
PRACTICE AND PROCEDURE – summons to produce – claim for recovery of costs of complying with summons – dispute over quantum – applicable principles – determination of allowance payable
Legislation
Administrative Appeals Tribunal Act 1975 ss 40A, 67
Administrative Appeals Tribunal Regulations 2015 reg 13, 14, 15
Federal Court Rules 2011
Cases
A Pty Ltd v Z [2007] NSWSC 999
Bestt and Military Rehabilitation and Compensation Commission [2017] AATA 1235
Carver and Comcare (Compensation) [2019] AATA 1534
Moorehead Nominees Pty Ltd & Others v Barclays Australia Securities Ltd & Others Unreported, Federal Court of Australia, Hill J, VG63 of 1989, 17 May 1991
X Pty Ltd and Ors & Merhi (No 2) [2015] FamCA 862
REASONS FOR DECISION
Mr S. Webb, Member
9 July 2021
Joanne Stekovic applied for review of a decision Comcare made to reject her claims for compensation. In the course of the proceedings, Comcare requested a summons be issued to the Queanbeyan GP Super Clinic (Clinic) by the Tribunal calling for production of all documents and records held in respect of the applicant.
The Clinic issued a tax invoice for recovery of costs of production. The invoice amount was disputed by Comcare. It is this matter alone, about which the parties cannot agree, that is the subject of this decision.
Facts
On 16 September 2020, the Tribunal issued a summons, returnable on 6 October 2020 and requiring the Clinic to produce “all files, including computerised records, records of treatment, notes of visits and interviews, patient’s notes, correspondence, copies of correspondence, patient history cards, referrals, reports, test results or any other documentation in relation to the applicant.”
On 17 September 2020, Comcare informed the Clinic that it would reimburse reasonable expenses incurred in complying with the summons.
On 30 September 2020, the Clinic issued Comcare a tax invoice in the amount of $1,215.28, comprising $1,104.80 for photocopying 795 pages plus GST.
On 15 October 2020, the Clinic produced 462 pages of documents and records to the Tribunal.
On 13 November 2020, Comcare offered to pay the Clinic reasonable expenses incurred in complying with the summons, as follows –
• Administration fee: $35.00
• Photocopying per page: $ 0.70
• Delivery of documents: $12.60
• GST 10% of total bill
The Clinic declined this offer.
On 17 November 2020, Comcare offered to pay the Clinic an amount of $371 plus GST, based in part on photocopying 462 pages at a rate of $0.70 per page. Once again, the Clinic declined to accept the offer.
On 21 December 2020, Comcare reiterated its offer. The Clinic adhered to its previous position and refused the offer.
On 23 April 2021, the Clinic informed Comcare that the previously issued invoice in the mount of $1,215.28 was outstanding.
On 30 April 2021, Comcare responded and asked the Clinic to amend its invoice.
The Clinic reiterated its demand and stated that it would not adjust the invoice, and informed Comcare that if the invoice amount was not paid, the outstanding invoice would be forwarded to Ms Stekovic.
On 1 June 2021, Comcare asked the Tribunal to determine the Clinic’s reasonable expenses for complying with the summons on the papers. The Clinic agreed to the matter being determined by the Tribunal on the papers.
On 18 June 2021, Comcare provided written submissions addressing the reasonable expenses issue. It was Comcare’s submission that the Clinic’s reasonable expenses of complying with the summons should be calculated on the basis previously given to the Clinic.
On 29 June 2021, the Clinic provided written submissions. In the Clinic’s submission, the expenses Comcare offered to reimburse were not reasonable as they did not reflect the actual costs incurred in complying with the summons. The Clinic set out the following as a reasonable basis for calculating the costs it incurred complying with the summons –
Administration fee $38
Photocopying fee $0.90
Delivery costs $17.65
GST 10% of total invoice
Legal framework
The issue is to be decided under applicable provisions of the Administrative Appeals Tribunal Act 1975 (AAT Act) and the Administrative Appeals Tribunal Regulations 2015 (Regulations).
Express provision is made in s 67(1) of the AAT Act for payment of a prescribed fee or allowance to a person who is required to produce a document for the purposes of a proceeding before the Tribunal -
(1) A person who, under a prescribed provision of this Act or another enactment, is required to give evidence, or produce a document or give information, for the purposes of a proceeding before the Tribunal is to be paid, in accordance with the regulations, any fee or allowance prescribed by the regulations in relation to compliance with the requirement.
A summons to produce documents under s 40A(1) is such a requirement.
The fee or allowance that may be payable in respect of compliance with a summons is prescribed in reg 13, in particular reg 13(6) provides that –
(6) For a summons referred to in section 40A of the Act, the allowances payable for a person who is summoned to produce something are the person’s reasonable expenses of producing the thing.
The phrase ‘reasonable expenses’ is not defined.
Under reg 13(7), where agreement cannot be reached, it is the person summoned who may apply to the Tribunal for a determination of the amount of fees or allowances that are payable in relation to complying with a summons –
(7) If a person was summoned at the request of a party to the proceeding, the person may apply to the Tribunal for a determination of the amount of fees or allowances payable under subsection (3), (4) or (6) in relation to compliance with the summons, if the person and the payer cannot agree on the amount.
In this case, it was Comcare that asked the Tribunal to determine the Clinic’s reasonable expenses. Comcare has no standing to make such a request. Nevertheless, by its agreement to Comcare’s request, the Clinic has effectively asked for such a determination to be made.
Furthermore, if any fees or allowances are payable in the circumstances of this case, under reg 14(1) it is Comcare who must meet that cost –
(1) The fees and allowances payable to a person in relation to compliance with a summons under section 40A of the Act must be paid by:
(a) if the person was summoned at the request of a party to the proceeding—that party; or
(b) otherwise—the Commonwealth.
As to the allowance that may be payable in respect of reasonable expenses of production for the purposes of reg 13(6), this should not exceed the costs incurred in meeting the requirement for production:[1] “a third party, required to produce documents to the Court in compliance with a subpoena, is entitled to recover the costs actually incurred but is not entitled to recover profit costs in respect to that production”.[2] As Hill J said in Moorehead Nominees Pty Ltd & Others v Barclays Australia Securities Ltd & Others[3] -
“… The costs in question must be costs of compliance. Of course as well they must be reasonably incurred.”
[1] Bestt and Military Rehabilitation and Compensation Commission [2017] AATA 1235 at [16].
[2] X Pty Ltd and Ors & Merhi (No 2) [2015] FamCA 862 at [14].
[3] Unreported, Federal Court of Australia, Hill J, VG63 of 1989, 17 May 1991 at [5].
Furthermore, the word ‘expense’ connotes incurred cost and, in particular -
Legal costs related to the subpoena before [filing an application for the subpoena to be set aside], together with all costs of searching, assembling, copying and producing documents called for by the subpoena, should be regarded as costs of compliance.[4]
[4] A Pty Ltd v Z [2007] NSWSC 999 at [49].
As no argument was made that ‘expense’ has a narrower meaning than ‘loss’, such as occurred in Carver and Comcare,[5] and no claim was made for losses as opposed to expenses allegedly incurred in this case, it is not necessary to go any further on this point. I simply note that the language of the Federal Court Rules 2011, which are often cited in cases of this kind, in particular rule 24.22 under which the issuing party is liable to pay ‘the amount of any reasonable loss or expense incurred in complying with the subpoena’, exceeds the language used in reg 13(6) which refers only to the person’s ‘reasonable expenses’ of production in compliance with a summons.
[5] [2019] AATA 1534.
Reasonable expenses
There are two points of disputation in respect to the expenses claimed by the Clinic: photocopying and postage.
With regard to photocopying, Comcare argues that the amount accepted as reasonable by the Tribunal in Bestt and Military Rehabilitation and Compensation Commission (Bestt)[6] in respect of photocopying ($0.60 per page) should be adjusted by 10 cents to adjust for the ‘indexation rise’. The Clinic argues, without supporting evidence of actual costs, that the amount should be $0.90 per page.
[6] [2017] AATA 1235 at [28].
The basis of Comcare’s reasoning, that the $0.60 per page cost should be adjusted by 10 cents for indexation, is somewhat opaque. No explanation has been given as to precisely what ‘indexation’ metric should be applied. Without a proper rationale or basis supported by evidence, it is difficult to see why the figure proposed, $0.70 per page, should be accepted as reasonable.
Similarly, the basis on which the Clinic’s claim for $0.90 cents per page is not explained or supported by evidence. The Clinic appears to have given away the earlier basis on which it claimed photocopying expenses of $33 for the first 38 pages and $1.40 per page thereafter. This was purportedly in accordance with amounts allowed by the NSW State Insurance Regulatory Authority. No proper basis has been made out to accept that these amounts accurately reflect the expense that the Clinic reasonably incurred complying with the summons. The Clinic asserts that it is has based the cost on -
“… the time the GP needs to spend reading and marking the request appropriately, the administration time which includes associated costs such as the time spent photocopying, collating and counting pages, phone calls, addressing envelopes and any other issues that may be required in producing the summons. Because we are a large practice, we often need to do these particular kinds of requests out of hours to ensure we do not hold up valuable resources and equipment during a normal business day.
Then there is the cost of the paper, the ink and the toner, the wear and tear on our equipment …”
The Clinic has not explained how costs relating to these matters were quantified or calculated to equate to $0.90 per page. That amount is asserted without any rational basis in evidence.
If one accepts the expense per page of photocopying that was allowed in Bestt (which was based on a metric applied under the Federal Court Rules) as the starting point, then the appropriate indexation metric may be that set out in reg 27, albeit not strictly applicable to photocopying in such circumstances. Adopting that approach would result in an increase of 8.5 percent from July 2016, amounting to a rounded figure of $0.65 per page.
There are two things to say about these considerations. Firstly, it is for the Clinic to make out the reasonable expenses it incurred when complying with the summons. Instead of this, it has made claims without firm foundation or sufficient supporting evidence to enable a positive finding to be made. In these circumstances and on the present materials, secondly, an assessment of the reasonableness of the claimed expenses may be made on a comparative basis. To my mind, the photocopying allowance applied in Bestt’s case, which accords with the amount charged by the Tribunal for photocopying summonsed materials, provides some rational basis for comparison. That being so, once the indexation percentage is applied, an allowance of $0.65 per page might be appropriate. To my mind, this amount is moderate, not excessive and a reasonable estimation of the costs the Clinic incurred photocopying documents for production under the summons.
Account should be taken of the work that was likely involved in collating and assembling the documents, albeit without indexation or pagination. As occurred in Bestt’s case, there is no evidence that a medical practitioner identified, compiled, ordered, annotated or otherwise worked on the documents produced under the terms of the summons – the documents were photocopied from the relevant file and posted to the Tribunal. To my mind, an allowance of $35 for administrative work, being 20 minutes at $11 per 6 minute block, is moderate, not excessive and is a reasonable estimate of costs incurred by the Clinic.
To the extent that the Clinic asserts that the work involved in complying with the summons was done out of normal hours, albeit not supported by evidence, a further allowance might be reasonable to allow for any increase in costs incurred as a result of preparing and photocopying the documents for production under the summons out of normal hours. To my mind, a 50 percent loading on the administrative work component may be reasonable in the circumstances. This approximates to an additional amount of $0.05 per page. To my mind, this would be a moderate but not excessive allowance for the increase in costs associated with work undertaken out of normal hours.
With regard to postage, the Clinic has claimed $17.65, including a 5 kilogram envelope. I accept this accurately reflects the cost incurred.
For these reasons, in the absence of evidence to support the Clinic’s claimed expenses, I am satisfied that the following are reasonable expenses the Clinic is likely to have incurred in complying with the summons –
(a)Photocopying – 462 pages at $0.70 per page;
(b)Administration fee - $35;
(c)Postage - $17.65
The total amount of the Clinic’s reasonable expenses incurred complying with the summons is an amount of $376.05 plus GST.
For the purposes of reg 13(6) and reg 13(7), the allowance that is payable in respect of reasonable expenses the Clinic incurred complying with the summons issued by the Tribunal on 16 September 2020 is an amount of $376.05 plus GST.
Decision
The allowance payable to the Queanbeyan GP Super Clinic under reg 13 (6) in respect of reasonable expenses incurred complying with the Tribunal summons issued on 16 September 2020 is an amount of $376.05 plus GST.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
.....................................[sgd]...................................
Associate
Dated: 9 July 2021
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