Taylor v Burrangong Pet Foods Pty Ltd

[2006] NSWWCCPD 172

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Taylor v Burrangong Pet Foods Pty Ltd [2006] NSWWCCPD 172

APPELLANT:  Shayne Michael Taylor

RESPONDENT:  Burrangong Pet Foods Pty Ltd

INSURER:CGU Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC 7920-05

DATE OF REGISTRAR’S DECISION:             24 August 2005

DATE OF APPEAL DECISION:  2 August 2006

SUBJECT MATTER OF DECISION: Appeal against Registrar’s decision in respect of costs; assessment of costs under the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003.

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: McCabe Partners Lawyers

Respondent: Moray & Agnew Solicitors

ORDERS MADE ON APPEAL:  The Registrar’s determination of Mr Taylor’s claim for costs in this matter, dated 24 August 2005, is amended in accordance with these reasons.

The Respondents, Burrangong Pet Foods Pty Ltd, are to pay the Appellant, Mr Taylor $550.00 inclusive of GST in respect of his costs in this appeal.

BACKGROUND TO THE APPEAL

1. On 13 September 2005, Shayne Taylor filed an appeal against a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) dated 24 August 2005. The Respondent to the Appeal is Burrangong Pet Foods Pty Ltd (‘Burrangong’), and its workers compensation insurer is CGU Workers Compensation (NSW) Ltd (‘CGU’). On 6 October 2005, Burrangong filed a ‘Notice of Opposition to the Appeal’.

1. Mr Taylor, who was born on 9 March 1968 and is now aged 38, suffered an injury to his right foot when, in the course of his employment at Burrangong Abattoirs, the fork lift he was driving skidded and fell on its side, trapping his foot under the rollbar. The dispute to which the costs determination relates (matter number WCC 16521-03) was finalised by the Commission on 2 December 2003 by registration of an agreement between the parties dated 22 October 2003, pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’), whereby Burrangong agreed to pay Mr Taylor $2,500 compensation for permanent impairment (in respect of 2% whole person impairment). According to the ‘Application for Registration of Agreement Under S66A’ filed with the Commission on 21 November 2003 and signed by Mr Taylor and a representative of CGU, the parties’ terms of settlement included an agreement that Burrangong pay Mr Taylor’s costs as agreed or assessed.

1. On 26 May 2005, the parties having failed to come to an agreement as to costs, Mr Taylor’s solicitors applied to the Registrar for an assessment of costs. The Registrar delegated the assessment to a Commission Arbitrator who made a determination dated 24 August 2005. The Certificate of Determination stated:

“1. Pursuant to the registration of a section 66A Agreement, 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 $3,111.00.
3. No order as to the costs of the assessment.
4. The Respondent is, therefore, to pay to the Applicant a total amount of $3,111.00, if those costs have not already been paid.”

1. In his ‘Statement of Reasons for Decision’, the Arbitrator addressed each of the disputed costs items by reference to the Compensation Costs Table (‘the Table’) in Schedule 6 of the Workers Compensation Regulation 2003 (‘the 2003 Regulation’).

1. In their submissions on the appeal, Mr Taylor’s solicitors contend, first, that Burrangong did not file a ‘Reply’ to their ‘Application to Resolve a Dispute’ and there was no notice of Moray & Agnew acting on behalf of Burrangong. Therefore, Moray & Agnew’s submissions to the Arbitrator dated 15 July 2005 on the assessment of costs “have no relevance”. Mr Taylor’s solicitors also dispute findings of fact made by the Arbitrator and his determinations in relation to Mr Taylor’s solicitors’ claims under a number of Items in the Table. Mr Taylor’s solicitors’ submissions and Burrangong’s response are discussed below.

ON THE PAPERS REVIEW

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. Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submission by Burrangong that the matter can be decided ‘on the papers’, Mr Taylor’s lawyers being silent on this issue, 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.

DISCUSSION

Respondent’s Representation

1. Clause 119 of the 2003 Regulation limits appeals to the Commission against the Registrar’s assessment of costs to the Registrar’s decision “as to a matter of law”. Mr Taylor’s solicitors’ first submission on the appeal is that “the Respondent has not filed a Reply in these proceedings”; there was no notice of Moray & Agnew acting on behalf of Burrangong and therefore Moray & Agnew’s submissions to the Arbitrator on the costs determination “have no relevance”. Moray & Agnew respond in their submissions on the appeal on behalf of Burrangong that the fact that the Respondent’s solicitors in the current proceedings relating to costs did not file a ‘Reply’ in the original proceedings that resulted in the section 66A agreement (matter number WCC 16523-03) is irrelevant. In my view, Moray & Agnew are correct and Mr Taylor’s solicitors’ submission is unfounded: they have not put forward any basis in law to support their submission. I note also that in the original proceedings Mr Taylor’s solicitors do not appear to have served the ‘Application to Resolve a Dispute’ on the Respondent or the insurer.

Liability Issue

1. Secondly, Mr Taylor’s solicitors submit that for the Arbitrator “to state that liability under section 66 was not disputed, except as to quantification is incorrect”. Burrangong submits that no issue ever arose in relation to the issue of liability in respect of the injury, negotiations over the payment of lump sum compensation having been instituted by the insurer who offered $1,250 on the basis of a 1% whole person impairment. I have examined the correspondence annexed to the Burrangong’s submissions to the Arbitrator and am satisfied that the correspondence establishes that liability was not in issue, only quantification, as the Arbitrator correctly recognised. I therefore reject this ground of appeal.

Specific Items

1. Thirdly, with regard to specific claims made in relation to Items listed in the Table, Mr Taylor’s solicitors dispute the Arbitrator’s determination with respect to the following Items.

1. Items 1.01 and 2.04

   Mr Taylor’s solicitors maintain their claim for $300.00 for Item 2.04 in respect of obtaining two medical reports. The Arbitrator allowed their claim for $600 (of the $900.00 claimed under Items 1.01 and 2.04) under Item 1.01 for obtaining and reviewing medical reports in respect of the claim for permanent impairment, being the maximum total for that type of activity. The Arbitrator disallowed any further claim noting that in this case, where the claim is for permanent impairment and Item 1.01 applies, a claim could only be made under Item 2.04 if there are additional reports in the case of a claim for weekly compensation. Weekly compensation was not in issue and thus no claim could be made under Item 2.04.

1. In Berger v Moree Plains Shire Council [2005] NSW WCC PD 152 (‘Berger’), Deputy President Fleming said:

“95. It appears there has been some ambiguity in this matter in relation to the maximum amounts claimed under Item 1.01 and 2.04 for “obtaining and reviewing medical reports”. Item 1.01 may only be claimed for this activity when it occurs prior to “Making claim for permanent impairment compensation or pain and suffering compensation”. Item 1.01 reports must be in relation to a claim for permanent impairment and lump sum compensation, not in relation to a claim for some other entitlement, for example, weekly compensation.

96. In relation to claims for permanent impairment compensation, Item 2.04 may only be claimed for this type of activity when it occurs following the making of a claim and prior to referring a dispute to the Commission. Item 2.04 also applies to medical reports not subject to a fee pursuant to Item 1.01. In other words, it is not permissible to claim costs under Item 1.01 and 2.04 for “obtaining and reviewing” the same medical reports.”

1. In Mr Taylor’s case, the ‘Application to Resolve a Dispute’ was filed with the Commission on 20 October 2003 and registered by the Commission on 21 October 2003. According to the Application, the claim for compensation (in respect of an injury to Mr Taylor’s right foot on 27 September 2002) was made on 27 September 2002, the date on which the injury was notified to the employer. Copies of the notification and claim have not been provided. According to a statement by Mr Taylor made on 27 May 2003, he had not suffered any prior injuries to his right foot.

1. No copy of Mr Taylor’s solicitors’ Bill of Costs has been provided to the Commission. In submissions made with the ‘Application for Assessment of Costs’, Mr Taylor’s solicitors stated, in relation to Item 1.01 that they had obtained various specified medical reports and documentation dating between 1997 and 1998 “to determine whether there had been any prior injury to the right leg and then provide an advice as to whether the Applicant was entitled to proceed on the current frank injury”. Whilst they initially claimed $600 for this Item, “[i]n the interest of settling the matter, the Applicant was prepared to settle for $300”. However, in the ‘Application for Assessment of Costs’, they sought to maintain a claim for $600.00.

1. According to Mr Taylor’s solicitors’ submissions on the appeal dated 12 September 2005, the parties had apparently agreed to Mr Taylor’s solicitors’ claim in respect of Item 2.04 of $300 for obtaining and reviewing medical reports by Dr P Endrey-Walder, dated 3 June 2003, and Dr A Nichols, dated 4 April 2003.

1. In my view, pursuant to Deputy President Fleming’s discussion of Items 1.01 and 2.04 in Berger, Mr Taylor’s solicitors were entitled to make a claim for $300.00 in respect of the two medical reports under Item 2.04, these having been obtained and reviewed after the claim for compensation had been made but before the ‘Application to Resolve a Dispute’ had been filed in the Commission. With regard to the claim for $600 under Item 1.01, in my view, given what presumably were Mr Taylor’s instructions that while he had made previous workers compensation claims, he had not previously injured his right foot, the sum of $300 was fair and reasonable, pursuant to clause 105(1)(c) of the 2003 Regulation, in respect of obtaining and reviewing older medical reports, assuming that this occurred before they notified Burrangong of Mr Taylor’s claim for compensation for permanent impairment.

1. Thus, the Arbitrator should have allowed $300.00 under Item 1.01 and $300.00 under Item 2.04.

1. Item 2.05

   Mr Taylor’s solicitors maintain their claim for $100.00 for this Item in respect of briefing St George Registration and Investigation Services Pty Ltd to prepare a factual investigation into the injury. Burrangong submitted that the proceedings were confined to a simple medical issue, liability was not in issue, and it was not reasonably necessary for an investigator to be instructed to carry out a factual investigation. The Arbitrator agreed: a photograph of the scene of the accident and statements from other witnesses were not necessary for this claim under section 66 of the 1987 Act. The Arbitrator relied on Deputy President Fleming’s discussion in McManus v Gosford City Council [2004] NSW WCC PD 61, at paragraph 21, where she said:

“Item 2.05 does not encompass briefing a factual investigator to take a statement from a worker/applicant. The costs involved in obtaining a worker’s statement are encapsulated and absorbed by Item 2.01, “Obtaining instructions from client ...”

I note that Deputy President Fleming has confirmed this in Berger at paragraph 141, where she said:

“Item 2.05 does not permit a claim for briefing a factual investigator to obtain witness statements, which includes a statement from the worker.”

1. Given the straightforward nature of the claim in this matter, I am not persuaded that a factual investigation was reasonably necessary and, in my view, the Arbitrator correctly exercised his discretion. I also note the factual investigator took a statement from Mr Taylor which, presumably, he was briefed to do. I therefore reject this ground of appeal.

1. Item 2.06

   Mr Taylor’s solicitors maintain their claim for $500.00 for this Item in respect of requesting a review from the insurer. Burrangong said that “in a claim as simple as this, it is inconceivable that item 2.06 could apply”. The Arbitrator disallowed the claim on the ground that there was no evidence of any request for a review:

“The insurer made an offer and the Applicant merely wrote to the insurer rejecting the offer and advising that an ARD [Application to Resolve a Dispute] was being filed. That is not a request for a review.”

1. Mr Taylor’s solicitors contend that they sought a review from the insurer by letter dated 9 September 2003 before the ‘Application to Resolve a Dispute’ was filed with the Commission. This letter, which enclosed a medical report from Dr Endrey-Walder dated 3 June 2003, states:

“In the meantime, we request that you review your file prior to the matter being lodged with the Workers Compensation Commission, if in the event that the matter fails to settle.”

1. Mr Taylor’s solicitors submit that Item 2.06:

   “involves not only the letter forwarding the request for the review, but also is an allowance of the Applicant’s solicitor to peruse the file, to peruse the Applicant’s medical reports, the Respondent’s medical reports, to get instructions from the client ...”

1. I note that reviewing medical reports and seeking instructions from the client are claimed elsewhere in the Table. While I am persuaded that Mr Taylor’s solicitors are entitled to some payment for Item 2.06 in respect of the review sought, I am not satisfied that their claim for $500 is reasonable. I note they were prepared to settle for $250.00 for this Item (letter dated 3 December 2004, referred to in their ‘Application for Assessment of Costs’) and consider this is a reasonable figure to allow for this Item. I therefore allow $250 for Item 2.06.

1. Items 4.03A and 4.03B

   Mr Taylor’s solicitors claimed $160.00 for Item 4.03A and $112.00 for Item 4.03B. In the original proceedings, they had requested the Commission to issue four Directions for Production, the forms being received by the Commission on 21 October 2003. On 23 October 2003, Mr Taylor’s solicitors wrote to CGU confirming a discussion on 22 October 2003 as to settlement and enclosing an ‘Application for Registration of Agreement under S66A’ for signature. A delegate of the Registrar issued the Directions for Production on 29 October 2003. Clearly, at that stage, there was no need for the Directions for Production to be served. The Arbitrator concluded:

“The issue is whether it was fair and reasonable to serve the documents even though the matter was settled. Clearly, it was not.”

1. The Arbitrator did, however, allow $160.00 for requesting the Commission to issue the Directions under Item 4.03. In my view, the Arbitrator correctly exercised his discretion to disallow the claims for Items 4.03A and 4.03B. I therefore reject this ground of appeal.

1. Item 10.01

   Mr Taylor’s solicitors claim $187.50 for this Item in respect of instructing an agent, St George Registration and Investigation Services Pty Ltd, to file documents at the Commission. Burrangong objected that there is no need for personal attendance to file documents at the Commission: documents can be filed by mail or DX and it is not reasonable to employ other means. The Arbitrator agreed with Burrangong and noted that, in any event, the activity of filing is covered by Item 4.01, for which Mr Taylor’s solicitors had recovered the maximum allowed for that activity.

1. While Item 10.01 is specifically in relation to instructing an agent, rather than the activity of filing which is covered by Item 4.01, nevertheless, in my view, the mail or DX can be used for the filing of documents with the Commission and I agree with the Arbitrator that personal attendance is not ordinarily necessary and therefore not reasonable. I reject this ground of appeal.

Disbursements

1. Fourthly, Mr Taylor’s solicitors dispute the Arbitrator’s determination on the following disbursements:

• Dr Endrey-Walder. Mr Taylor’s solicitors claimed $825.00 being $750.00 plus $75.00 GST. The Arbitrator allowed only $750.00. Burrangong concedes that Mr Taylor’s solicitors are correct in maintaining their claim for $825.00. In my view, clearly this was an error by the Arbitrator. I therefore allow $825.00.

• Investigator’s Fees. Mr Taylor’s solicitors claimed $1,973.84 in respect of the fee for the factual investigation report prepared by St George Registration and Investigation Services Pty Ltd. Burrangong contended that it was not reasonably necessary for an investigator to be instructed to carry out a factual investigation. The Arbitrator agreed and disallowed the claim.

In Berger, at paragraph 142, Deputy President Fleming, recognising that the fee for an investigator’s report may be claimed pursuant to clause 82(b) of the 2003 Regulation, noted:

“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 such statements, either at the time of taking instructions or at a later time, but before an application to the Commission is filed.”

In Mr Taylor’s case, as noted earlier, liability appears not to have been in issue, the insurer having made an offer of settlement in respect of Mr Taylor’s claim for compensation for permanent impairment by letter dated 7 April 2003. As I have stated, I am not persuaded, given the straightforward nature of the claim in this matter, that a factual investigation was reasonably necessary. Thus, I am not satisfied that the Arbitrator made an error in the exercise of his discretion and I therefore reject this ground of appeal.

1. Fifthly, Mr Taylor’s solicitors dispute the Arbitrator’s determination not to award them costs in the assessment. I note that in the letter to the Commission dated 22 July 2005, Mr Taylor’s solicitors claimed costs and disbursements of $6,314.29. Burrangong submitted that costs and disbursements of $1,914.00 were payable, although I note that in a letter to Mr Taylor’s solicitors dated 28 May 2004, it offered $3,824.00 in settlement. Noting this earlier offer, the Arbitrator said: “The Applicant has therefore been unsuccessful in this application and I consider there should not be an award of costs in the assessment”. I am not satisfied that the Arbitrator made any error in the exercise of his discretion in refusing costs, and I therefore reject this ground of appeal

Summary

1. The Arbitrator allowed a total of $3,111.00 comprising costs of $1,540.00 plus $154.00 GST together with disbursements of $1,417.00. The outcome of my review of the assessment made by the Arbitrator is as follows:

Professional costs:
Item 1.01: $300.00 rather than $600.00
Item 2.04: $300.00 rather than nil
Item 2.05: the Arbitrator’s award confirmed
Item 2.06: $250.00 rather than nil
Item 4.03A and 4.03B: the Arbitrator’s award confirmed
Item 10.01: the Arbitrator’s award confirmed

Disbursements:
Dr Endrey-Walder: $825.00 rather than $750.00
Investigator’s fee: the Arbitrator’s award confirmed
Costs of the Assessment: the Arbitrator’s award confirmed

1. The Arbitrator’s award of $3,111.00 should therefore be increased by $350.00 ($250.00 (Item 2.06) plus $25.00 GST plus $75.00 (Dr Endrey-Walder)) to $3,461.00.

DECISION

1. The Registrar’s determination of Mr Taylor’s claim for costs in this matter, dated 24 August 2005, is amended in accordance with these reasons.

COSTS

1. Mr Taylor’s solicitors have been only partially successful in this appeal. They claimed professional costs and disbursements totalling $5,940.29. In my view, it is reasonable to order that Burrangong pay Mr Taylor’s costs in this appeal in the sum of $550.00 inclusive of GST, representing the equivalent of approximately two hours work. The appropriate order, therefore, is: “The Respondents, Burrangong Pet Foods Pty Ltd, are to pay the Appellant, Mr Taylor $550.00 inclusive of GST in respect of his costs in this appeal.”

Robin Handley

Acting Deputy President  

2 August 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE