Vincent v Mayne Health (Mayne Group Limited)
[2007] NSWWCCPD 67
•28 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN
RELATION TO COSTS
CITATION:Vincent v Mayne Health (Mayne Group Limited) [2007] NSWWCCPD 67
APPELLANT: Corinne Kelly Vincent
RESPONDENT: Mayne Health (Mayne Group Limited)
INSURER:Mayne Group Limited
FILE NUMBER: WCC20604-05
DATE OF REGISTRAR’S DECISION: 10 March 2006
DATE OF APPEAL DECISION: 28 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claim under Item 4.03B and whether maximum costs specified in the Compensation Costs Table in Schedule 6 of the WorkersCompensation Regulation 2003 are inclusive of GST.
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Maurice May Lawyers
Respondent: Leigh Virtue & Associates
ORDERS MADE ON APPEAL: 1. The decision of the Registrar dated 10 March 2006 is confirmed.
2. No order as to costs of the appeal.
BACKGROUND
Substantive Proceedings
On 21 October 2004 Corinne Kelly Vincent (‘Ms Vincent’) commenced proceedings in the Workers Compensation Commission (‘the Commission’) against Mayne Health (Mayne Group Limited) (‘Mayne Health’) claiming weekly benefits compensation and medical and related expenses.
A teleconference was held with the parties on 25 February 2005 and as the matter was unable to be resolved it was set down for arbitration hearing on 23 March 2005. As a result of this arbitration hearing a Certificate of Determination was issued on 31 March 2005, which included an order that Mayne Health pay Ms Vincent’s “costs as agreed or assessed”.
The parties did not agree on costs and Ms Vincent’s solicitor lodged an Application for Assessment of Costs on 5 December 2005.
The costs were determined by the Registrar’s delegate, a Commission Arbitrator (‘the Delegate’) on 10 March 2006. The decision is as follows:
“1.Pursuant to a Determination of 31 March 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 $4,536.80.
3.The Applicant’s costs of the assessment are allowed in the sum of $250.00.
4.The Respondent is to pay the amount of $4,786.80 to the Applicant if those costs have not already been paid.”
On 20 March 2006 Ms Vincent 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.”
Mayne Health submit that the matter is not able to be dealt with ‘on the papers’ whilst Ms Vincent 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 Vincent’s solicitor submits that the Delegate erred in relation to Item 4.03B in the Compensation Costs Table (‘the Table’) and whether the maximum costs specified in the Table are inclusive of GST.
PRELIMINARY
Mayne Health in their response to the appeal submit that:
“If the discretion as to costs properly exercised by the Registrar in this matter is to be interfered with then this would also require re-visiting those items of the Registrar’s assessment where the Registrar has exercised a discretion favourable to the Applicant (such as in regard to items 2.01, 2.04A, 2.06 etc).”
Specifically it is submitted that the Delegate erred in relation to Item 2.04A, Item 4.03, Item 4.03A and Item 4.12 in the Table. Mayne Health further submit that the Delegate erred in relation to the following disbursements:
· Medical reports, and
· Ms Vincent’s travel expenses.
Finally, it is submitted by Mayne Health that the Delegate erred in awarding costs to Ms Vincent.
I reject this submission by Mayne Health that when considering specific grounds of appeal this requires a ‘re-visiting’ of the whole of the Delegate’s decision. Appeals against an assessment of costs are governed by Part 19 of the Workers Compensation Regulation 2003 (‘the Regulations’). Clause 119(1) of the Regulations provides as follows:
“119 Appeal against decision of Registrar as to matter of law
(1)A party to an application who is dissatisfied with a decision of the Registrar as to a matter of law arising in the proceedings to determine the application may, in accordance with the Rules of the Commission, appeal to the Commission constituted by a Presidential member against the decision.
(2)The appeal is to be in the form approved by the Commission and be accompanied by the fee approved by the Commission from time to time.
(3)After deciding the question the subject of the appeal, the Commission constituted by a Presidential member may, unless it affirms the Registrar’s decision:
(a)make such determination in relation to the application as, in its opinion should have been made by the Registrar, or
(b)remit its decision on the question to the Registrar and order the Registrar to re-determine the application.
(4)On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.”
There were no provisions in the Workers Compensation Commission Rules 2003 (now repealed) concerning appeals on costs pursuant to Clause 119 of the Regulations.
Clause 119(2) sets out the manner in which an appeal is to be lodged in the Commission. Clearly this procedure is to be followed in order that the Respondent to the appeal can then file a Notice of Opposition and supporting documentation.
Mayne Health have not filed an appeal in the approved form and there is no Notice of Opposition from Ms Vincent on the issues raised which I have referred to above.
Accordingly I intend to deal only with the grounds of appeal raised by Ms Vincent.
SUBMISSIONS, DISCUSSION AND FINDINGS
Item 4.03B
This Item allows $40 per ‘person served with direction for the production of documents (being money to meet reasonable expenses of compliance with the direction)’. The money allowed per person is ‘regardless of the number of directions served on the person’. The maximum allowed for the Item is $200.
In the bill of costs Ms Vincent initially claimed $80. In their submissions before the Delegate, Mayne Health submitted that the actual conduct money paid was $30 and only this amount should be allowed. Ms Vincent’s solicitor replied to these submissions stating that two directions were in fact issued. The solicitor did not rebut the statement by Mayne Health that only $30 actual conduct money was paid.
Based on this evidence the Delegate allowed the sum of $30 stating that “this item is relative only to the actual conduct money paid”.
On appeal Ms Vincent argues that the Delegate “does not have the discretion to reduce the amount awarded under this item, but merely to decide whether or not the Applicant is entitled to recover for the costs of issuing Directions”. I reject this submission. As Deputy President Fleming stated in Western Suburbs Leagues Club (Campbelltown) Limited v Bates [2006] NSWWCCPD 48:
“20. …It offends common sense that Mr Bates would be entitled to claim $40 in conduct money in each case if he in fact did not pay $40 in conduct money. He is entitled to recover his disbursement. Not a notional figure based upon the maximum in Item 4.03B, regardless of the actual cost of the disbursement. If he has paid more than $40 in relation to service on one person, then he will not be entitled to more.”
Ms Vincent’s solicitor further submits that there is a factual error involved. It is pointed out that as there were two Directions issued, the amount of $30 was paid for each, therefore totaling $60 actually paid.
As stated above the appeal is on a point of law only. Unlike Reviews from Arbitrators, there is no provision for the admission of fresh evidence. I am satisfied that the Delegate properly determined the matter on the available evidence and that there is no error of law or discretion.
GST
Ms Vincent’s solicitor claimed GST on the total claim for Items in the Table. The Delegate disallowed the claim on the authority of Berger v Moree Plains Shire Council [2005] NSWWCCPD 152 (‘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 leave is sought to introduce fresh evidence in the form of a letter from Jon Blackwell, Chief Executive Officer of WorkCover, dated 12 December 2005. This letter is addressed to the President of The Law Society of New South Wales and refers to a review of costs, that includes making it clear that GST may be added to appropriate Items within the Table.
Ms Vincent’s solicitor points out that this letter only came into existence after all submissions had been filed in the Application for Costs Assessment. As stated above in paragraph 23 there is no provision on costs appeals for the introduction of fresh evidence. Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7 discussed the tests at common law for the introduction of fresh evidence in appellate proceedings before the courts. In so doing the Deputy President noted that these principles are relevant, but not determinative, when dealing with Reviews from Arbitrators in the Commission:
“11. … The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly, that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
Although the letter from Jon Blackwell may not have been available at the time of the Costs Assessment, I am not satisfied “that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case”. Accordingly I will not allow this fresh evidence to be introduced on appeal.
It is submitted on appeal that “it is contemplated by all of this legislation [the 1987 Act, the 1998 Act and the Legal Profession Act 2004 (‘the LP Act’)] that GST is not a legal service and is not a charge, costs or amount levied by a legal practice upon any person or corporation liable for payment of its costs and disbursements”. In support of the submission it is stated that the LP Act makes no reference to GST.
I reject this submission. As Deputy President Fleming pointed out in Berger’s case, although the 1998 Act and Regulations are silent on GST, the Legal Profession Regulation 2005 (Clause 115) allows GST to be added on costs regulated by the LP Act. The Delegate was bound to follow Berger’s case and I see no error of law.
The Regulations have now 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 10 March 2006, there was no error in disallowing the claim for GST.
DECISION
The decision of the Registrar dated 10 March 2006 is confirmed.
COSTS
I make no order as to the costs of the appeal.
Julian Martin
Acting Deputy President
28 February 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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