Swan v The Salvation Army (NSW) Property Trust
[2007] NSWWCCPD 13
•17 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Swan v The Salvation Army (NSW) Property Trust [2007] NSWWCCPD 13
APPELLANT: Rhonda Swan
RESPONDENT: The Salvation Army (NSW) Property Trust
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC14154-05
DATE OF REGISTRAR’S DECISION: 19 December 2005
DATE OF APPEAL DECISION: 17 January 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claim under Items 1.01, 1.02, 2.04A, 2.05, 4.02, 4.05, 4.08, 4.09, 4.11 and 4.12 of the Compensation Costs Table in Schedule 6 of the WorkersCompensation Regulation 2003; disbursements - medical reports, agency fees, investigator’s report, applicant’s travel expenses and solicitor’s travel expenses.
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: 1. The Registrar’s determination of a Claim for Costs in this matter, dated 19 December 2005 is amended in accordance with these reasons.
2.No order as to costs of the appeal.
BACKGROUND
Substantive Proceedings
On 17 February 2005 Rhonda Swan (‘Ms Swan’) commenced proceedings in the Workers Compensation Commission (‘the Commission’) against The Salvation Army (NSW) Property Trust (‘The Salvation Army’) claiming weekly benefits compensation, medical and related expenses and lump sum compensation.
A teleconference was held with the parties on 28 April 2005 and as the matter was unable to be resolved it was set down for arbitration hearing on 11 July 2005. A Certificate of Determination was issued on 14 July 2005 which included an order that The Salvation Army pay Ms Swan’s “costs as agreed or assessed”.
The parties did not agree on costs and Ms Swan’s 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 19 December 2005. The decision is as follows:
“1. Pursuant to an order for costs dated 14 July 2005, 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 $7,410.85.
3.No order as to the Applicant’s costs of the assessment.
4.The Respondent is, therefore, to pay to the Applicant a total amount of $7,410.85, if those costs have not already been paid.”
On 23 January 2006 Ms Swan 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.”
The Salvation Army submit that the matter should be dealt with ‘on the papers’ whilst Ms Swan is silent on this issue.
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
Ms Swan’s solicitor submits that the Delegate erred in relation to professional costs and claim under Item 1.01, Item 1.02, Item 2.04A, Item 2.05, Item 4.02, Item 4.05, Item 4.08, Item 4.09, Item 4.11 and Item 4.12.
Ms Swan’s solicitor further submits that the Delegate erred in relation to the following disbursements:
·Medical reports;
·Agency fees;
·Private investigator’s report costs;
·Ms Swan’s travel expenses, and
·Solicitor’s 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
Items 1.01 and 1.02
Item 1.01 allows a maximum amount of $600 (at the relevant time) for ‘obtaining and reviewing medical reports’ “prior to making claim for permanent impairment compensation or pain and suffering compensation” (Berger’s case). If the matter ‘is not finalised by the payment of compensation’ nil is allowed.
Item 1.02 allows a maximum amount of $100 (at the relevant time) for ‘lodging claim with insurer if the insurer has not already made an offer of settlement’ for ‘permanent impairment compensation or pain and suffering compensation’. If the matter ‘is not finalised by the payment of compensation’ nil is allowed.
Ms Swan’s claim was for ‘major depressive disorder’ and as stated above included a claim for permanent impairment/pain and suffering based on 13% permanent impairment.
Section 65A(3) of the Workers Compensation Act 1987 (‘the 1987 Act’) provides:
“No compensation is payable under this Division (either as permanent impairment compensation or pain and suffering compensation) in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.”
As Ms Swan’s claim for permanent impairment/pain and suffering was based on a primary psychological injury and was less than 15% she was awarded no compensation for this part of her claim.
In the Application for Assessment of Costs, Ms Swan claimed $150 under Item 1.01 and $100 under Item 1.02. The Salvation Army objected on the basis that there was no evidence of any entitlement to lump sum compensation and the Delegate disallowed the claim as Ms Swan “failed in her claim for lump sum compensation”.
Ms Swan submits on appeal that she was entitled to obtain medical reports and lodge a claim for permanent impairment/pain and suffering and therefore is entitled to the costs claimed. Reference is also made to another decision of the Registrar where the worker was successful in their claim under Item 1.01 (McCrae v KT Hine [2005] NSWWCCC64). Having looked at this decision I note that the substantive matter involved a claim for lump sum compensation in respect of industrial hearing loss which the parties resolved, presumably by way of payment of lump sum compensation. This being the situation the worker in those proceedings may well have been entitled to costs pursuant to Items 1.01 and 1.02.
I can see no error of law on the part of the Delegate under these Items as the Compensation Costs Table specifically states for both Items that ‘nil’ amount is payable where the claim for permanent impairment/pain and suffering ‘is not finalised by the payment of compensation’.
Item 2.04A
Item 2.04A allows (at the relevant time) $100 per hour for preparing a witness statement, where a claim cannot be brought without such statement, up to a maximum amount of $150.
The costs of obtaining a witness statement is normally covered under Item 2.01 or Item 2.04A of the Regulations. Ms Swan’s solicitor did not claim the costs of preparing her statement under Item 2.01, stating that the 2 hours allowed under that Item was spent advising Ms Swan of her rights. Accordingly the claim was brought for preparing Ms Swan’s statement under Item 2.04A.
The Delegate disallowed the claim stating:
“The decision in Nebauer v Hunter Area Health Service [2004] NSW WCC PD 60 [Nebauer’s case], which says that the Applicant is not a witness for the purposes of the Table, binds me and I therefore disallowed the claim.”
Ms Swan submits on appeal that Deputy President Fleming took the opportunity to ‘revisit’ Nebauer’s case when determining Berger’s case. I agree with this submission as Deputy President Fleming stated in Berger’s case:
“The reasoning in Nebauer as to whether the worker is to be considered a ‘witness’ for the purpose of 2.05 is not correct when the costs regime of Items 2.01, 2.04A and 2.05 is considered together. The better view is that the worker is included in the term ‘witness’ in the table…”
The Salvation Army submit the Delegate was correct, however clearly it was an error of law to determine the matter on the basis of Nebauer’s case. Accordingly it is appropriate that I make such determination in relation to the application as in my opinion, should have been made by the Delegate (Clause 119 of the Regulations).
Ms Swan’s solicitor has claimed the maximum amount of $150 for the preparation of her statement. The Salvation Army in their submissions in reply to the Application for Assessment of Costs state that no amount should be allowed as the statement was prepared by an investigator and Ms Swan’s solicitor has been allowed the full amount under Item 2.01.
As stated above Ms Swan’s solicitor claims the 2 hours allowed under Item 2.01 were taken up explaining her rights. The statement of Ms Swan was signed on 2 December 2002. There is an account annexed to the Application for Assessment of Costs from St George Registration & Investigation Services P/L (‘St George’) for the preparation of a statement from Ms Swan resulting from a telephone conference on 19 May 2005. I am satisfied that the statement dated 2 December 2002 was not prepared by an investigator and that the claim could not be brought without it.
The statement dated 2 December 2002 is brief, being 2 pages in length. I allow the sum of $50 (plus GST of $5) being approximately 30 minutes work.
Item 2.05
Item 2.05 allows $100 (at the relevant time) for ‘briefing a factual investigator or other investigator to obtain evidence other than witness statements’.
Ms Swan’s solicitor claimed $100 and the Delegate disallowed the claim on the basis that he was “not satisfied that it was reasonable to retain and brief an investigator”.
Ms Swan’s solicitor on appeal has properly brought to my attention that the Delegate in his Determination has by error included the sum of $100 (plus GST of $10) under Item 2.05 when totalling the Costs Allowed. It is submitted that Ms Swan’s solicitor is entitled to $100 in any event because The Salvation Army in the substantive proceedings disputed a number of matters including Ms Swan’s ability to earn and her entitlement to payments of weekly compensation. Accordingly St George was briefed to update Ms Swan’s statement of 2 December 2002.
The account from St George (annexed to the Application for Assessment of Costs) is solely for work done in obtaining a statement from Ms Swan. I see no error of law on the part of the Delegate as Item 2.05 does not allow the cost of briefing a private investigator to obtain witness statements.
As the Delegate by error included the sum of $100 (plus GST of $10) in the Costs Allowed, this amount will be deducted from the Delegate’s determination.
Item 4.02
Item 4.02 allows the sum of $40 for the service of the application for resolution of a dispute on the first other party and $20 for each additional party up to a maximum of $100.
Ms Swan’s solicitor claimed the sum of $100 in the Application for Assessment of Costs and The Salvation Army responded with $40 stating there were no additional parties. In submissions in reply Ms Swan’s solicitor accepted the sum of $40.
The Delegate disallowed the claim for $100 on the basis that there were no additional parties, however failed to include the sum of $40 when totalling the costs allowed. The Salvation Army have made no submissions on appeal in regard to this Item.
Ms Swan is entitled to the sum of $40 (plus GST of $4) for service of the Application to Resolve a Dispute on The Salvation Army and accordingly I will add this amount to the Delegate’s determination.
Item 4.05
This Item allows the sum of $250 per hour up to a maximum amount of $500 (at the relevant time) for, among other things, ‘reviewing documentation produced under a direction of the Commission’.
Ms Swan’s solicitor initially claimed $500 and The Salvation Army responded with $250, which was accepted in submissions in reply by Ms Swan’s solicitor. The Delegate noted The Salvation Army allowed 1 hour, which Ms Swan conceded and therefore “reduced the claim” to $250.
Ms Swan’s solicitor has submitted that it was incorrect for the Delegate to state the claim was reduced, for what reason I know not but perhaps because agreement was reached between the parties before the Delegate determined the matter. The submissions on appeal by Ms Swan’s solicitor are internally inconsistent, because the Table of Items at the beginning of the submissions lists $500 is sought whilst noting $250 was allowed.
I see no error of law in the Delegate’s determination as Ms Swan’s reply to submissions made by The Salvation Army clearly states “…the Applicant concedes with this offer and accepts the Respondent’s offer of $250.”
Item 4.08
This Item provides a maximum amount of $500 (at the relevant time) for ‘preparing for a conference (including providing advice to client)’. Ms Swan’s solicitor claimed a total of $1,000 in respect of both the teleconference and the conciliation/arbitration. The Delegate reduced the claim to $500 on the authority of Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28 (‘Orr’). In this matter Deputy President Fleming considered the maximum amount allowed for events and stated:
“The monetary values set out in Column 4 of the Table, are the maximum total for an event type in any particular claim, regardless of the number of individual activities that may take place under that event heading.”
Ms Swan’s solicitor submits that it is an error of law to limit the costs recoverable to one conference (or two) to resolve a particular dispute when that is not provided for in the Regulations. Having regard to the authority of Orr I see no error of law in the Delegate’s determination to allow the sum of $500 under this Item.
Items 4.09 and 4.11
Item 4.09 allows $250 per hour, up to a maximum of $1,000, for ‘attending and participating in a conference with an Arbitrator (other than an arbitration hearing or where Item 4.10 applies)’.
Item 4.11 provides for a maximum of $250 for attending and participating in an arbitration hearing (other than where Item 4.10 applies). Item 4.10 applies where the Arbitrator determines the matter is complex. No such determination was made in Ms Swan’s matter.
Ms Swan’s solicitor claimed a total of $1,500 (initially $1,750) under Items 4.09 and 4.11. The claim was broken down as follows:
$250 Teleconference (Item 4.09) on 28 April 2005
$1,000 Conciliation conference (Item 4.09) on 11 July 2005
$250 Arbitration hearing (Item 4.11) on 11 July 2005
The Delegate allowed the sum of $875.00 itemised as follows:
$250 Teleconference 1 hour (Item 4.09)
$375 Conciliation conference 1.5 hours (Item 4.09)
$250 Arbitration hearing (Item 4.11)There is no suggestion by Ms Swan’s solicitor that the time spent as noted by the Delegate above is incorrect. It is submitted that it is an error of law to limit costs recoverable to one conference (or two) to resolve a particular dispute, when that is not provided for in the Regulations.
I see no error of law on the part of the Delegate. He determined the matter under Item 4.09 having regard to the time spent and allowed the maximum amount under Item 4.11.
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’. Ms Swan’s solicitor claimed the sum of $570 in respect of three reports to the client and the Delegate allowed the amount of $380 on the authority of Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282 (‘Fuentes’).
In McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’ case) Deputy President Fleming followed Fuentes and determined that so far as Item 4.12 is concerned, the maximum amount of $190 may be allowed after the telephone conference and a further $190 allowed after the conciliation/arbitration.
The Salvation Army submit that the Delegate was correct in his determination and in accordance with the decision of McManus I can see no error of law or discretion on the part of the Delegate.
Disbursements
Medical Reports
Ms Swan’s solicitor claimed $1,400 in respect of the following medical reports:
·Dr Puxty (7 July 2005) $80
·Dr Canaris (27 November 2002) $1,100
·Dr Canaris (13 February 2004) $220
The Salvation Army offered and the Delegate allowed the reduced sum of $1,210 on the basis that the correct allowance for the report from Dr Canaris dated 27 November 2002 is $910. This was allowed based on the amount set out in the Workplace Injury Management and Workers Compensation (Medical Examinations and Reports) Order 2003 (‘the Order’).
Ms Swan’s solicitor submits that the Delegate erred because the Legal Profession Act 2004 (‘the LP Act’) does not apply. There appears to be some confusion in relation to the costs of medical reports and it is appropriate to refer to the analysis of Deputy President Fleming in Berger’s case:
“However, while section 339 of the 1998 Act empowered the Authority to fix the maximum fees for reports of health service providers, the Authority did not do so until 4 November 2003 when the ‘Workplace Injury Management and Workers Compensation (Medical Examinations and Reports) Order 2003’ (‘the Order’) was made. This Order set out the rates of fees for medical assessments by general practitioners, medical specialists and ‘Approved Medical Specialists’, who make an assessment referred to in section 339 of the 1998 Act. The Order has since been repealed and a new Order made, on 15 March 2005, increasing the appropriate rates for medical reports on and from gazettal, which was on 18 March 2005. For medical assessments made on and from 4 November 2003 the amount of costs that may be claimed will be capped in accordance with the Order (as amended from time to time).
The fees for reports from health service providers falling within clause 82(e) of the WC Regulation and obtained prior to 4 November 2003 are therefore fixed by Part 4 of Schedule 3 of the LP Regulation (Item 6 “medical examinations and reports”).”
As the report of Dr Canaris of 27 November 2002 was obtained prior to the Order (issued first on 4 November 2003) the cost is not regulated by the 1998 Act. Accordingly it is determined by Schedule 4 of the Legal Profession Regulation 2002 (applicable at the time). This has since been replaced by the Legal Profession Regulation 2005 (‘the LP Regulation’). The maximum amount allowable for this report in Item 6 of the LP Regulation is $500 (plus $50 GST) at the relevant time. Item 8 does provide that in special circumstances necessitating prolonged attendances, such as an examination by a psychiatrist, fees may be charged on an hourly rate of $125 to $200 per hour.
It was an error of law for the Delegate to determine the allowance for the report from Dr Canaris (27 November 2002) pursuant to the 1998 Act and it is necessary that I review the matter. The report is of moderate length only (6 pages) and makes no reference to the time spent with Ms Swan. The account from Dr Canaris also does not refer to the time spent with Ms Swan and as such there is no satisfactory evidence that allows me to consider special circumstances as referred to in Item 8.
Accordingly I will allow the maximum amount of $500 (plus $50 GST) as set out in Item 6. The assessment of the Delegate will therefore be reduced by $360.
Agency Fees
Ms Swan’s solicitor sought the sum of $110 for St George to attend to the inspection of documents produced under direction The Delegate disallowed the claim on the basis that:
“Filing documents and inspecting and photocopying of documents cannot be claimed as a disbursement over and above the allowances under Items 4.01 and 4.05.”
It is submitted that the 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 Ms Swan’s solicitor had claimed 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, Ms Swan’s solicitor claimed the sum of $793.10 as a disbursement to cover the cost of a Private Investigation Report.
The Delegate disallowed the claim and in his Reasons stated that “fees for an investigator are claimable under Clause 82(b) of the Workers Compensation Regulation 2003”. The Delegate went on to state:
“It is not appropriate to claim for work performed by an investigator that was in fact legal work covered by and encapsulated in the events and activities set out in the Table.
Thus, for example, the costs involved in obtaining a worker’s statement are encapsulated and absorbed by Item 2.01: Nebauer v Hunter Area Health Service [2004] NSWWCCPD 60 at [18] [Nebauer’s case]. Similarly, advising the Applicant on the legislation or merits of the claim is legal work recoverable only by the solicitors under the items in the Table. On the other hand, it is legitimate to retain an investigator to gather other information not otherwise obtainable from the employer or the Applicant.”
The Delegate noted the only work done by the investigator was to obtain a statement from Ms Swan. He further noted Ms Swan’s solicitor submitted that there was other investigatory work done including gathering wages information and obtaining statements from other witnesses. The Delegate then stated:
“This assertion is at odds with the invoice dated 8 July 2005 and there is no evidence before me that there was anything other than a statement from the Applicant.”
The Delegate then disallowed the claim as the cost of obtaining Ms Swan’s statement is covered by Item 2.01 (Nebauer’s case).
As stated above Deputy President Fleming in Berger’s case took the “opportunity to revisit” her decision in Nebauer where she disallowed a worker’s statement prepared by an investigator on the basis that it was encompassed by Item 2.01. In Berger’s case the Deputy President said:
“The fee for an investigator’s report, whether to obtain witness statements or other factual investigations (including a statement from the worker), may be claimed pursuant to clause 82(b) of the WC Regulation. The test of whether such a report is claimable will, as discussed above, essentially be one of ‘reasonableness’. In most cases, it will not be reasonable to obtain witness statements by way of an investigator’s report, where the legal practitioner or agent has already obtained those statements, either at the time of taking instructions or at a later time, being before an application to the Commission is filed.”
It was an error of law for the Delegate to disallow the worker’s statement prepared by the investigator and accordingly it is appropriate that I make such determination in relation to the application as in my opinion, should have been made by the Delegate (Clause 119 of the Regulation).
As stated above in paragraph 22 the cost of obtaining a witness statement, including that of the worker, is normally covered under Item 2.01 or Item 2.04 of the Regulations. In the Application for Assessment of Costs as I stated above the claim under Item 2.01 did not include the cost of witness statements. Under Item 2.04A I allowed the sum of $50 (plus GST of $5) for preparing a statement of Ms Swan on the basis that the claim could not be brought without it.
Ms Swan’s solicitor submits that it was necessary to brief St George to obtain a supplementary statement from Ms Swan because the initial statement was taken in December 2002. It is further submitted that it was necessary to brief St George to prepare an amended wage schedule. The Salvation Army submit in reply that there is no reference to obtaining wage information in the invoice from St George. It is further submitted that the cost of obtaining a worker’s statement is absorbed by Item 2.01 (Nebauer’s case).
In the Application to Resolve a Dispute Ms Swan’s solicitor indicated that a further statement may be required from Ms Swan. At the teleconference between the parties on 28 April 2005 leave was sought and obtained to file and serve an up-dated statement from Ms Swan. Having regard to the nature of the claim (major depressive disorder) and the date of the original statement, I am of the opinion that it was reasonable to obtain an updated witness statement.
I note from the invoice from St George that the statement was taken over the phone and took 1.5 hours. I further note the statement was taken by an investigator who is not a legal practitioner. As a guide, Item 2.04A allowed (at the relevant time) $100 per hour for taking a witness statement up to a maximum of $150. I consider it reasonable to allow $100 (plus GST of $10) for the time taken in relation to Ms Swan’s additional statement. Having noted that the invoice from St George only refers to work done in preparing the statement from Ms Swan I am not prepared to allow any further amount in relation to the gathering of wages information.
Ms Swan’s travel costs and expenses
Ms Swan claimed $1,320.50 of which $841 involved the costs and expenses incurred in travelling from Moree to Sydney for a medico-legal examination. The Salvation Army agreed to this amount, which the Delegate allowed.
The balance of $479.50 was to cover the cost of an escort for Ms Swan when she attended the conciliation/arbitration hearing in Sydney. The Salvation Army objected and the Delegate was not satisfied on the evidence that it was fair and reasonable.
Ms Swan’s solicitor submits on appeal that at the teleconference he sought to have the matter listed for conciliation/arbitration hearing at Moree, however he then suggested it may be more economical if The Salvation Army paid for an escort for Ms Swan to travel to Sydney. It is further submitted that this was necessary because Ms Swan could not travel by herself due to her ‘psychological’ injury. Ms Swan’s solicitor then submits that The Salvation Army agreed to this arrangement therefore obliging Ms Swan to pay for the escort.
This evidence was not before the Delegate and as stated above the appeal is on a question of law only. There is no provision for the admission of fresh evidence on appeal against the determination of the Registrar on an assessment of costs.
Having regard to the evidence before the Delegate, I can see no error of law or discretion on his part.
Solicitor’s travel costs and expenses
Ms Swan’s solicitor correctly points out that although the Delegate allowed the sum of $696.50 (which was not disputed by The Salvation Army), in the final summary this has been transposed to the sum of $686.50. Accordingly $10 will be added to the Delegate’s determination.
The Delegate’s decision not to allow costs
The Delegate stated that Ms Swan’s solicitor should not be awarded costs as he had not succeeded. Ms Swan’s solicitor submits on appeal that the Delegate erred because The Salvation Army in their submissions agreed to the amount of $2,131 and disputed the balance. It is then submitted that because the Delegate ordered The Salvation Army to pay the sum of $7,410.85, Ms Swan succeeded and was therefore entitled to costs.
I am not satisfied that the Delegate erred in his discretion as to costs because it is clear that Ms Swan’s solicitor did not succeed. In the professional costs there were 11 Items disputed of which Ms Swan’s solicitor succeeded in 2. Of the 5 disbursements in dispute Ms Swan’s solicitor failed in all.
DECISION
As a result of my review the Delegate’s determination in relation to professional costs is amended as follows:
·Item 2.04A plus $55 (inclusive of GST)
·Item 2.05 less $110 (inclusive of GST)
·Item 4.02 plus $44 (inclusive of GST)
In relation to disbursements the Delegate’s determination is amended as follows:
·Medical reports less $360 (inclusive of GST)
·Private investigator’s report plus $110 (inclusive of GST)
·Solicitor’s travel expenses plus $10 (inclusive of GST)
A further issue arises in this matter, not raised by either party to the appeal, but evident on the face of the Reasons for Decision. The Delegate at the last page of the Decision set out in a Schedule the costs and disbursements allowed. There is an arithmetical error and the total amount should be $7,411.85 and not as stated, $7,410.85.
The Delegate’s determination of $7,411.85 should therefore be reduced by $251 to $7,160.85.
The Registrar’s determination of a claim for Costs in this matter, dated 19 December 2005 is amended in accordance with these reasons.
COSTS
The Salvation Army seek costs in the appeal on the basis that Ms Swan’s solicitor “has delayed the finalisation of this matter and has wasted both the Commission’s and the Respondent’s time in providing lengthy and irrelevant submissions”. 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 this appeal.
Julian Martin
Acting Deputy President
17 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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