Wang v Costa Holdings Pty Ltd
[2022] WADC 119
•22 DECEMBER 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WANG -v- COSTA HOLDINGS PTY LTD [2022] WADC 119
CORAM: BOWDEN DCJ
HEARD: 11 NOVEMBER & 9 DECEMBER 2022
DELIVERED : 22 DECEMBER 2022
FILE NO/S: APP 49 of 2021
BETWEEN: LI FANG WANG
Appellant
AND
COSTA HOLDINGS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKCOVER WA ARBITRATION SERVICE
Coram: ARBITRATOR FLETCHER
File Number : A61509 & A61651
Catchwords:
Leave to appeal from costs decision under the Workers' Compensation and Injury Management Act 1981 (WA) and cross-appeal - Turns on its own facts
Legislation:
Workers' Compensation (Legal Profession and Registered Agents) Costs Determination 2018 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Arbitration Rules 2011 (WA)
Workers' Compensation and Injury Management Conciliation Rules 2011 (WA)
Workers' Compensation and Injury Management Regulations 1982 (WA)
Result:
Leave to appeal on some matters granted
Leave to cross-appeal granted
Representation:
Counsel:
| Appellant | : | Mr B L Nugawela |
| Respondent | : | Mr D P Coster |
Solicitors:
| Appellant | : | AH2 Legal |
| Respondent | : | Moray & Agnew Lawyers |
Case(s) referred to in decision(s):
Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bray v Ryan [1999] WADC 66
Browne v Browne [2019] WASCA 1
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
Inghams Enterprises Pty Ltd v Gashaw Beyene [2009] C14-2009
Jankovic v Southern Coast Transport WACC C15-2009
Norbis v Norbis (1986) 161 CLR 513
Pacific Industrial Co v Jakovlievic [2008] WASCA 60
Player v Avery [2022] WASCA 147
Slater v BHP Billiton Iron Ore Pty Ltd [2016] WADC 148
Smith v WA Plantation Resources Pty Ltd [2018] WADC 158
Sun Alliance Insurance Ltd v Massoud [1989] VR8
BOWDEN DCJ:
The appellant seeks leave to appeal from two cost decisions of the learned arbitrator pursuant to s 246 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).
The appellant had sought costs orders in the total sum of $70,916.38, however, costs were assessed at $22,704.20. The cost related to two substantive applications commenced in July 2019 and discontinued in June 2020.
The respondent seeks leave to cross-appeal against the arbitrator's decision to award the appellant the costs of the cost assessment.
The background to the costs applications
The appellant was working for the respondent as a mushroom packer and her worker's compensation claim was accepted it appears on the basis of Dr Meyerkort's first report stating that her employment had contributed to an occupation overuse syndrome.
Subsequently Dr Meyerkort prepared a second report in which he formed the conclusion that the appellant did not sustain any workplace related injury and was able to return to her pre-injury duties without restriction. Dr Meyerkort said the appellant's condition was due to a pre-existing age-related degeneration because he was satisfied that there were no overhead duties performed following his site inspection and discussions with the respondent's representatives.
Obviously, there is a marked difference in the opinions expressed by Dr Meyerkort in his two reports.
Dr Meyerkort's second report resulted in the respondent issuing a s 60 notice to discontinue weekly payments. The general effect of this was that unless the appellant commenced a s 61 application seeking an order preventing the cessation of weekly compensation payments those payments would cease in 21 days. The appellant commenced her application on 10 July 2019 and the matter is referred to as A61509.
The respondent's s 60 application seeking discontinuance of the appellant's weekly payments and a concurrent application under s 71 seeking a refund of weekly compensation payments made was filed on 16 July 2019 and is referred to as A61651.
The appeal and cross-appeal
The appellant's grounds of appeal are:
1.The costs award was so low as to be unreasonable in law or to disclose appealable error.
2.The arbitrator's decision was contrary to legal authority and or failed to take into account relevant evidence or considerations.
3.The reasons for decision (Reasons) were inadequate.
4.The arbitrator had pre-judged the costs application. Ground 4 was abandoned.
The respondent's cross-appeals the arbitrator's decision declining to award the respondent the cost of the costs assessment.
The respondent's grounds of appeal being the arbitrator erred in:
1.Failing to allow the respondent to be heard on the question of the cost of the costs assessment.
2.Awarding the appellant, the cost of the costs assessment in the sum of $1,254.
There was no appeal book. I allowed Mr Nugawela to go through the six lever arch conciliation/arbitration files sent by WorkCover to the court and attach identifiers to the relevant documents. A reference in this judgment to the makeshift appeal book (hereinafter referred to as MAB) is a reference to the documents so designated by Mr Nugawela.
Legislative references
In this judgment the Workers' Compensation and Injury Management Act 1981 (WA) is referred to as (the Act).
The Workers' Compensation and Injury Management Regulations 1982 (WA) are referred to as (the Regulations).
The Workers' Compensation and Injury Management Conciliation Rules 2011 (WA) are referred to as (the Conciliation Rules).
The Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) are referred to as (the Arbitration Rules).
The Workers' Compensation (Legal Profession and Registered Agent) Costs Determination 2018 (WA) are referred to as (the Costs Determination).
The law
Pursuant to s 247 of the Act leave to appeal can only be granted if a question of law is involved being either an error of law or an error of mixed law and fact. An error of fact alone is insufficient: Erceg v Galati Nominees Pty Ltd [2016] WASCA 112.
An appeal under s 247 of the Act is not a hearing de novo and is based on the materials before the arbitrator. The appellant is required to prove some proper basis for disturbing the decision of the arbitrator, that is an error of fact, law or logic: Pacific Industrial Co v Jakovlievic [2008] WASCA 60; Smith v WA Plantation Resources Pty Ltd [2018] WADC 158.
All costs decisions are discretionary calling for a value judgment in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right: Norbis v Norbis (1986) 161 CLR 513.
For an appeal to succeed it is not sufficient that a judicial officer hearing the appeal would have exercised their discretion differently: Inghams Enterprises Pty Ltd v Gashaw Beyene [2009] C14-2009 [76]. It must be demonstrated that the decision was plainly wrong and was an improper exercise of the cost discretion. A material error of fact of law must be established. It is not sufficient to show the decision other than the one made by the arbitrator is correct and preferable.
The arbitrator's decision is to be read as a whole and not piecemeal: Slater v BHP Billiton Iron Ore Pty Ltd [2016] WADC 148. An arbitrator does not make an error of law merely because he finds facts wrongly or upon a doubtful basis.
To demonstrate an error of law more than just a dispute over quantum is required. Unless persuaded that the arbitrator's decision should be varied, discharged or otherwise disturbed it should stand: Pacific Industrial Co.
An error in law can be constituted in determining whether an item should be allowed: Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 or by the taxing officer exercising his discretion in a manner that is manifestly wrong or not exercising it at all or by establishing that no taxing officer acting reasonably could ever have taxed the particular item in the amount in question.
In relation to adequacy of reasons, the law clearly establishes that:
1.Reasons for decisions need not be lengthy or elaborate.
2.Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved an appellant error.
3.It is not necessary to refer to every submission advanced by a party however a tribunal or court must engage with the central elements of a losing party's case and explain why that case failed, considering that party's submission is an aspect of what procedural fairness requires.
4.In determining the adequacy of the reasons, the reasons must be read as a whole and if necessary, considered in the context of the evidence. An appellant court may take into account what can legitimately be inferred from the reasons, whether the reasons are adequate will dependent upon the circumstances of the case and that matters which arose for consideration: Browne v Browne [2019] WASCA 1; Player v Avery [2022] WASCA 147.
Allowance must be made for the nature of the task undertaken by the arbitrator which was a Costs Determination. The content and details of reasons will vary according to the nature of the jurisdiction the court is exercising. Accordingly, the arbitrator's reasoning process will be less developed and more imprecise then in other areas in which judicial reasons are required and provided. What is required is the identification of findings on material factors that have informed the decision and expressed reasoning so as to inform an understanding of why the costs were disallowed: Player.
The bill of costs
The bill of costs (hereinafter referred to as the bill, attached to the affidavit of Mr Sim sworn 1 October 2020, 4T MAB) had schedules attached which the appellant says were to guide the taxation officer as to work that was actually done (AT 3).
For the taxation the appellant provided the arbitrator with a supplementary book of approximately 230 (unpaginated) pages in length which they say contained the relevant documents (AT 23). The appellant also provided written costs submissions and responsive submission to the respondent's cost submissions.
The arbitrator's decision at 5S of the MAB must be considered in its entirety and not by isolating any one particular paragraph. The arbitrator had regard to the relevant legislation (Reasons [9]) and the appropriate hourly rate (Reasons [10]). He was aware that a party was not entitled to recover costs that were unreasonably incurred and that a taxing officer must consider whether it was reasonable to carry out the work to which the costs relate and must consider what is a fair and reasonable amount of the costs for the work concerned (Reasons [12]). The arbitrator was clearly aware of the criteria under reg 18H(2) that may be considered in assessing what is a fair and reasonable amount.
The appellant accepts that the arbitrator correctly stated the law in his Reasons nevertheless submit that the arbitrator did not make the necessary factual findings to enable an inference to be made that he had applied the law correctly to the facts as he found. In this regard the appellant points to Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 [443], where it is stated 'where certain evidence is important or critical to the proper determination of the matter and it is not referred to by a trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it', and Sun Alliance Insurance Ltd v Massoud [1989] VR8 where it was said that a failure to make a single reference to important evidence leads to a strong suspicion that it was overlooked or ignored.
A brief summary of the parties' positions
The appellant says that the arbitrator did not have the conciliation file when he assessed the bill and says the arbitrator has 'just plucked a figure from the air' (AT 26) which it is submitted the uncontradicted evidence of Mr Sim's affidavit establishes. I reject categorically the suggestion that the arbitrator just plucked a figure from the air. The arbitrator considers each item before him and delivered reasons 28 pages in length.
The appellant says this case was factually complex involving Dr Meyerkort changing his opinion and refusing to produce factual information as to the basis of his findings which required an application to compel him to do so (described by the arbitrator as a novel and complex issue) and the case required the services of a translator which meant there was a lot of work done and it was not an ordinary run‑of‑the‑mill case.
The appellant says that although communications with the appellant were largely done without a translator, because her legal representative was conversant in Mandarin, a translator was required on occasions for preparation and when the appellant was in discussions with counsel, with doctors and for the on-site visit to Casuarina. In this regard I find that the arbitrator was clearly aware an interpreter was required as he allowed the interpreter's invoice and referred to it at Reasons [92]. Despite the appellant's submissions the arbitrator was also in the best position to determine the complexity of the matter.
The appellant's general position is that the allowances made by the arbitrator were so unreasonable that they disclose appealable error, that the arbitrator had no regard to the mandatory requirements specified in reg 18H(1) of the Regulations (hereinafter referred to as reg 18H(1) or alternatively the reasons provided were inadequate (AT 15, AT 17).
Regulation 18H provides:
Matters to be considered
(1)When dealing with an application the taxing officer must consider -
(a)whether or not it was reasonable to carry out the work to which the costs relate; and
(b)what is a fair and reasonable amount of costs for the work concerned.
(2)In assessing what is a fair and reasonable amount of costs, the taxing officer may have regard to any or all of the following matters -
(a)the skill, labour and responsibility displayed on the part of the legal practitioner or agent responsible for the matter;
(b)the complexity, novelty or difficulty of the matter;
(c)the quality of the work done and whether the level of expertise was appropriate to the nature of the work done;
(d)the place where and circumstances in which the legal services or agent services were provided;
(e)the time within which the work was required to be done;
(f)the outcome of the matter.
The appellant says reg 18H(1) provides mandatory criteria requiring the taxation officer to consider whether it was reasonable to carry out the work and whether the costs for that work were fair and reasonable. The appellant says the taxing officer's failure to look at the work actually done and thereby failed to comply with reg 18H(1) thus failing to take into account a mandatory statutory consideration in the exercise of his discretion and therefore failed to properly exercise his discretion. I find that if this occurred it would be an error of law.
The appellant also says that the arbitrator did not take into account the previous solicitors' work which was put before him in the supplementary book and the bill. The appellant says that in relation to some items the previous solicitors and the current solicitors did more time than the maximum prescribed in total therefore the maximum ought to have been allowed and the arbitrator should have looked at all the work that was actually done.
In general terms, the respondent says the arbitrator correctly set out the law and statutes specifically referred to reg 18H(1) and considered the written submissions filed by either party, addressed each item on the bill, setting out the amount claimed, the amount allowed, his reasons for making the allowance and broke down the amount allowed to the number of hours and at which rate ie: senior practitioner or junior practitioner.
The respondent says the Reasons do not disclose any inadequacy and that it is fundamentally wrong proposition for the appellant to say 'we did 20 hours' work on a particular item, the arbitrator allowed three and half hours, therefore that allowance is manifestly inadequate: Bray v Ryan [1999] WADC 66.
The jurisdictional issue
The respondent submits that the District Court does not have jurisdiction to hear an appeal on an assessment of costs.
The respondent submits that appeals are only able to be made against decisions made exclusively by arbitrators as s 247 of the Act permits appeals against an arbitrator's decision made under pt XI of the Act. The respondent says that costs assessments are not within the exclusive jurisdiction of arbitrators and do not fall within pt XI of the Act.
The respondent says s 176 of the Act sets out the exclusive jurisdiction of arbitrators. Costs are dealt with under pt XV of the Act and s 268(1) says pt 2A of the Regulations governs costs assessments and reg 18C provides that such a costs assessment is to be by 'the director, the registrar, a conciliation officer or an arbitrator' reg 18B. The respondent submits that as the arbitrator does not have exclusive jurisdiction over costs no appeal can lie to the District Court.
The respondent says that insofar as Inghams Enterprises Pty Ltd v Beyene is to the contrary it was either wrongly decided or it no longer applies having regard to the statutory framework.
I reject these submissions.
Section 176 of the Act provides:
176. Exclusive jurisdiction of arbitrators
(1)In this Part -
dispute means -
(a)a dispute in connection with a claim for compensation, or the liability to pay compensation, under this Act;
(b)a dispute in connection with an obligation imposed under Part IX;
(c)any other dispute or matter for which provision is made under this Act for determination by an arbitrator;
(d)any other matter of a kind prescribed by the regulations.
(2)A proceeding for the determination of a dispute is not capable of being brought other than under this Part.
(3)Subject to this Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes.
An arbitrator has jurisdiction to assess costs pursuant to s 264 and s 268(1) of the Act and the Regulations. In exercising that task the arbitrator is dealing with a dispute in connection with a claim for compensation and is exercising a pt XI power and duty and pursuant to s 247 an appeal can lie from an arbitrator's decision made under pt XI of the Act to the District Court.
Inghams v Beyene was correctly decided and the various amendments to the Act since that decision do not affect the rational of the comprehensive decision of Commissioner McCann (as he then was).
The challenged items
Conciliation items 1 and 2
The appellant says that the arbitrator was in error in relation to the taxation of costs in relation to conciliation items 1 and 2.
The arbitrator disallowed the amount claimed for the reply filed during the conciliation stage in A61651 on the basis that cl 9 item 2 (hereinafter referred to as item 2) of the Costs Determination allows costs for 'preparation of and lodging an application to the conciliation service including relevant supporting documentation in approved form in accordance with the conciliation rules' but does not provide for costs for filing a reply or a response to an application for conciliation lodged by the respondent. The arbitrator found that as application A61651 was prepared and lodged by the employer and not Ms Wang costs were not recoverable under item 2.
The appellant says that the reply could not be claimed under items 1, 3 and 4 and not to allow the reply under item 2 meant that the costs for work done by the appellant's solicitors in opposing the respondent's application, which could result in the appellant having to refund weekly compensation payments already made, are not recoverable.
There is no reference in the Conciliation Rules of the requirement for a reply or any responses to be filed to an application.
The appellant's written submissions in relation to bill items 1 and 2 deal almost exclusively with item 2. In relation to item 1 the general submission is that the arbitrator's approach in determining item 1 'involved' one or more of errors asserted in the appeal grounds.
In relation to item 2 of the bill the appellant says:
(i)the conciliation file shows that there were two conciliation conferences and two sets of written submissions by the worker and the worker's previous solicitors who obtained a report from Dr Ozanne in response to Dr Meyerkort's two reports. The appellant says that less than one third of the time actually spent by the worker's previous lawyers (LHD Lawyers) and current lawyers (AH2 Legal) in the conciliation which included attendance at WorkCover, was allowed;
(ii)that the arbitrator did not examine the documents filed in the conciliation. Regulation 18H(1) required the arbitrator to consider the work actually done and as he did not know the extent of the work done it was wrong to assess the bill without the conciliation file;
(iii)The appellant accepts that they provided an abundance of material for the assessor to consider during the taxation including the bill with attached schedules and timesheets and a 230‑page supplementary book but say that the arbitrator did not have the conciliation file which contained four pages of written submissions, two pages of submissions from the previous lawyers and annexure A with an attachment of some three pages;
(iv)that the arbitrator had the power to award the costs of the reply pursuant to r 61(2) of the Arbitration Rules which provides that an application for an order as to costs may include costs of, or incurred in connection with, the application for conciliation that preceded the application for arbitration. The appellant says that r 7(2) of the Conciliation Rules provides that after an application for conciliation is accepted if a party to the dispute lodges a document in connection with conciliation the director must give each other party to the dispute a copy of that document. The appellant says this supports the view that even though a reply is not mandated if one is filed the director must give a copy to the other side and therefore Arbitration Rule 61(2) and Conciliation Rule 7(2) provides a discretion to allow the costs of the reply;
(v)that the absence of a scale item does not mean that costs for the work done is not recovered but rather the amounts claimed are simply not regulated. Jankovic v Southern Coast Transport WACC C15-2009 (Commissioner McCann, delivered 18 June 2019.
The appellant says it was a factual matter for the taxing officer to determine whether a reply was necessary and if the costs claimed were reasonable and the arbitrator by saying item 2 does not provide for a reply failed to consider whether to exercise his discretion and award costs under r 61(2) of the Arbitration Rules (when read with r 7(2) of the Conciliation Rules) which required consideration of the reg 18H(1) mandatory factors and thus erred in law.
I find that the conciliation file was not before the arbitrator at taxation. I accept Mr Sim's affidavit sworn 11 May 2022 which states Registrar Kubacz spoke to the registrar who advised that the documents from the conciliation service were not before the arbitrator conducting the taxation.
The respondent says that there is a difference in the conciliation and arbitration stages of a dispute. In the Arbitration stage Arbitration Rule 27 requires a reply and Costs Determination cl 9 item 5 allows for the cost of the reply, whilst in the conciliation stage neither the rules nor the Costs Determination either require or provide for the cost of a reply.
The respondent says that the appellant could have claimed the costs that they seek to claim under item 2, under cl 9 item 4 (hereinafter referred to as item 4) which provides that costs are payable 'where the dispute is resolved at or after a conciliation conference, including all necessary preparation and documents in approved form in accordance with the conciliation rules'. The respondent adds the rider that the claim would not have succeeded because item 4 relates to 'all necessary preparation and documentation' and as a reply is not required by the Conciliation Rules, a reply would not be considered to be a necessary preparation and documentation and therefore should not be allowed.
The appellant says that item 4 only applies where the dispute was resolved after a conciliation conference but did not move to arbitration.
Clause 10(4) of the Costs Determination envisages that when a dispute moves from conciliation to arbitration and the lawyers provided services during the conciliation, items 4 - 7 are consecutive cumulative milestones to items 1 and 2. In the example given within r 10(4), provision is made for costs to be claimed under items 1, 2, 4 and 5 - 7.
As a matter of statutory interpretation, I find that cl 10(4) envisages that item 4 can be claimed where a dispute was not resolved in conciliation and an application was made to the arbitration service.
I find that the Conciliation Rules do not require a reply to be made. If a reply is filed, then pursuant to Conciliation Rule 7(2) a copy must be provided to the other party. Arbitration Rule 61(2) may permit those costs to have been claimed. In Jankovic v Southern Coast Transport, Commissioner McCann was of the opinion that the intention of s 271 and s 274 of the Act was to regulate costs for the services prescribed in the then Costs Determination and services not prescribed were therefore unregulated and the costs for such services should be fixed on a fair and reasonable basis using the hourly rates prescribed by the relevant costs by analogy.
It is not necessary for me to express my opinion on the correctness of that decision because the appellant's bill did not claim costs for unregulated services, or under Arbitration Rule 61(2) or item 4 it claimed for specifically services under item 2 of the Costs Determination. It is not an error of law or logic for the arbitrator not to have assessed the bill in relation to an unregulated service or Arbitration Rule 61(2) or item 4 which were not claimed. It is not right to say that the arbitrator failed to consider whether to exercise his discretion under unregulated service or Arbitration Rule 61(2) or item 4 because he was never asked to exercise his discretion.
The arbitrator was asked to exercise his discretion pursuant to item 2 of the Costs Determination and was correct in finding that the reply is not covered by item 2.
If the appellant wished to claim costs under Arbitration Rule 61(2) or item 4 or as an unregulated service they should claimed under that rule or item.
If claimed under item 4 or Arbitration Rule 61(2) it would have been an issue for the taxing officer to determine whether the reply was necessary preparation and documentation. Whether a reply is necessary preparation and documentation will depend on the nature of the dispute and must be determined on a case-by-case nature depending on the issues involved. If a claim was made for unregulated services the respondent had the right to address on that issue. The appellant cannot complain that the arbitrator did not exercise his discretion under those 'items' when in fact they did not claim under those 'items'.
In relation to the arbitrator not having the conciliation file, of course it would have been for him to have had the file.
However, the arbitrator had the bill. Attached to the bill were schedules setting out the work undertaken by description, the fee earners, the hours and rate per fee earner, a schedule of costs claimed by counsel specifying the time, nature and date of the work performed. In addition, 37 pages of the current solicitor's timesheets specifying the fee earner, date, nature, time and hourly rate were provided. Further, the four-page account of the appellant's previous solicitors specifying the time, nature and date of the work performed work were provided as well as 15 pages of accounts for medical reports and medical, ergonomic, radiological and interpreters' services (affidavit of Mr Sim, 1 October 2020, 4T of the MAB).
On top of this material the arbitrator was supplied with a supplementary book containing 230 pages of material further demonstrating the work performed. Written costs submissions were also provided, and the appellant provided a reply to the employer's costs submissions. The appellant themselves submitted at the appeal that the assessor task could not have been easier because of the additional material that had been provided (T 145) and submitted that the arbitrator had everything needed for his consideration.
Significantly as the respondent points out and the arbitrator had the conciliation outcome certificate which (he referred to in his Reasons) is four pages long and in effect summarizes the conciliation issues.
The outcome certificate provides an extensive summary of the conciliation. It identifies the issues referred for conciliation, the issues remaining in dispute, payment directions made, details the outcome, records the fact that the worker had engaged new legal representation, refers to the submissions that had been made, records that leave was granted for further written submissions and the nature of that application.
The outcome certificate records that a s 71 application whereby the employer sought suspension of the worker's weekly payments for a period of 12 weeks had been made, refers to Dr Meyerkort's reports, summarises the worker's opposition and the written submission made by the worker's previous solicitors, noted the further submissions made and the report from Dr Ozanne and recorded the order that the weekly payments are suspended for a period of 12 weeks, and noted that the conciliation had ended because there was minimal chance of agreement.
The respondent says there would be no more material that the conciliation file would show in relation to item 1 because that related to material relevant to work performed prior to the commencement of the proceedings and there would be no further material in relation to item 2 because the reply was not claimable as it was not an application made by the worker.
It is not correct to say that the arbitrator did not know the extent of the work, while he did not have the conciliation file, he had the materials referred to in the previous paragraph which was all the material necessary to make a determination.
The fact that the arbitrator did not have the conciliation file must be considered in view of the material that the arbitrator did have. It would have been preferable if he had the file. The conciliation outcome certificate is an extensive summary of the work occurring in the conciliation. That certificate, the bill with attached schedule and timesheets, the supplementary book and written costs submissions provided full context of the work performed by the appellant's solicitors. The mere fact that in itself the arbitrator did not have the conciliation file does not establish that the arbitrator did not consider the work.
The core of the appellant's submissions in relation to item 1 is that the arbitrator did not consider the extent of the work that was performed and in effect ignored the mandatory reg 18H(1) criteria. The appellant says that although the arbitrator referred to the mandatory criteria and the law correctly in Reasons [12] - [13], it could not be found or inferred that he put the law into effect to the facts as he found them. The appellant says that the arbitrator referred only to reg 18H(2) factors (novelty, complexity) in his reasons and the inference can be drawn that he failed to consider the amount of work done and decide whether that was reasonable as he was required to do under the mandatory criteria outlined in reg 18H(1).
In relation to this item and all the items in the bill, I reject the appellant's central claim that the arbitrator ignored the mandatory reg 18H(1) factors in exercising his discretion. The facts I find are that the arbitrator had the itemised bill (including schedules and timesheets) and a 230‑page supplementary book and written submissions in relation to costs and reply to employer's written submissions in front of him. The assessor had full details of the work performed and the costs claimed. His sole task was to assess that bill, that is to make an allowance in respect of the item claimed bearing in mind the work done and the costs scale and the reg 18(H)(1) and reg 18(H)(2) criteria. The arbitrator knew the applicable law and correctly stated it in his Reasons [12], [13]. The arbitrator was aware that he must consider whether it was reasonable to carry out the work and what was a fair and reasonable amount of costs for the work incurred (the Regulation 18H(1) criteria) and that a party could not recover costs unreasonably incurred (Reasons 12 - 13). That is the whole point of the taxation.
The arbitrator considered the hours claimed and the maximum allowable in respect of the items and the legal and factual issues of each cost application and the shared subset of factual issues.
The reg 18H(2) factors informed the context of the arbitrator's decision as to whether it was reasonable to carry out the work and what was a fair and reasonable amount of the cost, and his repeated reference to the reg 18H(2) factors does not lead to the inference that he ignored the mandatory reg 18H(1) factors. I find that the arbitrator's references to reg 18H(2) factors such as novelty or complexity in his reasons when referring to this and other items in the bill is alluding to the reasons why he found that it was not reasonable to carry out the work that was in fact disallowed.
Specifically in relation to item 1 the arbitrator noted the shared subset of facts reduced the time necessary for taking instructions in A61651 and he did not regard either matter as legal or factually novel or complex (item 1). The arbitrator had full details of the work performed and the costs claimed and, the inference can be drawn that in disallowing the costs, the arbitrator considered that it was not reasonable to carry out the work disallowed, or the costs claimed for that work were not fair and reasonable.
In relation to item 2 and A61651 the arbitrator disallowed item 2 for reasons previously stated and in relation to item 2 in A61509, he made a factual finding that some of the time claimed was not warranted on the basis that the matter was not particular novel or complex and the inference can be drawn that in disallowing the costs the finding that the time claim was not warranted is another way of saying that it was not reasonably necessary to carry out the work disallowed.
The arbitrator's reasons are adequately stated in relation to bill items 1 and 2 and the basis upon which the costs were disallowed. The arbitrator is not required to go through each item claimed on the schedule to the bill or the attached timesheet or documents in the supplementary book and give a commentary on each entry, he is entitled to take the global approach that was taken.
I have considered the work performed. I am not satisfied that the appellant has shown that the amounts allowed are so unreasonable that no arbitrator acting reasonably could reach the conclusion reached. A different arbitrator may have been more generous with some of the allowances but that does not establish that the amounts are so unreasonable that no reasonable taxing officer could allow them at that rate.
Therefore, I do not find there to be any merit in the appeal in respect of bill item 1 or 2 in respect of A61651 or A61509.
Dr Ozanne's disbursements
The next item challenged by the appellant is the amount allowed for Dr Ozanne's report. Dr Ozanne provided two invoices; the first for $3,476, the second following his onsite visit to the farm in Casuarina and attendance with the worker and a translator was for $10,406.88 (including GST). The arbitrator at Reasons [70] allowed $3,547.80 for the second invoice.
The arbitrator observed that Dr Ozanne's account submitted with the bill was endorsed 'see attached timesheet' however the timesheet was not attached to the account.
The appellant points out that in the supplementary book index filed for the taxation item 15 refers to 'Dr Ozanne itemisation p226'. The respondent points out the supplementary book was unpaginated. However, if you count 226 pages there is a document (hereinafter referred to as the timesheet), which does not have any reference to Dr Ozanne, headed Lifang Wang and 12 items listed which totals $10,406.88 being the total of Dr Ozanne's account.
The appellant says that the arbitrator committed an error of law in not taking into consideration Dr Ozanne's timesheet and in any event the amount assessed was manifestly unreasonable as the arbitrator, having accepted an hourly rate of $946.08 (GST inclusive), allowed three hours and forty five minutes (Reasons [74]) for the second report which was manifestly unreasonable considering Dr Ozanne travelled to the appellant's workplace in Casuarina from his office in Midland, attended on the worker, read all the materials provided and answered the questions put to him and provided a report.
The appellant says it is more than a dispute about quantum and the allowance made is so unreasonable that it demonstrates an error of law.
The respondent says that the arbitrator was making the best of a bad situation. The account referred to an attached timesheet that was not attached and whilst the timesheet was in the supplementary book the only reference to it was that the index reference to Dr Ozanne's itemisation page 226. The supplementary book was unpaginated. There was nothing at page 226 other than the dollar total that indicated that this was Dr Ozanne's itemised timesheet.
An examination of the timesheet in the Supplementary book shows Dr Ozanne claimed at $648 per hour plus GST, being approximately $712 GST inclusive per hour as opposed to the $946.08 (GST inclusive) referred to in the invoice. If the hourly rate in the timesheet is used, it equates to the arbitrator allowing Dr Ozanne approximately five hours.
The position is unsatisfactory. The timesheet should have been included with the bill when it was filed and not attached in an unpaginated Supplementary book and referred in the index by page number. The timesheet in the supplementary book should have made some reference to Dr Ozanne so that it could be readily identified. The hourly rate referred to in the timesheet is different to the hourly rate referred to in the invoice. Dr Ozanne claimed 1.5 hours on the timesheet for work that the timesheet itself says took half an hour.
Dr Ozanne's timesheet claims 3.9 hours including travel for the site visit on 27 November 2019 and 4.1 hours for report writing, completion and editing. Mr Sim claimed 4 hours for the site visit (including meeting with client re way forward, which appears to be additional to the site visit). The interpreter charged for 2 hours plus a travelling surcharge of $40. Dr Ozanne's report of 17 January 2020 states 'On 27 November 2019 from 9.20 to 11.10 I conducted a site visit to the Mushroom Factory, 45 Orton Road Casuarina' (1 hour 50 minutes). Travelling time must of course be allowed which I estimate would add at least another 1 hour 30 minutes return. The report writing involved considering the reports of Ms Chan, Dr Silbert, Dr Will and Mr Phillips.
The arbitrator's decision to allow $3,547.80, for Dr Ozanne's report has been demonstrated to be manifestly unreasonable.
The arbitrator allowed 1 hour and 45 minutes for the site visit out of a total of 3 hours and 45 minutes for Dr Ozanne's report. However, travelling must have been at least 1 hour and 30 minutes and the site visit was approximately 1 hour and 50 minutes therefore the allowance made for Dr Ozanne's report is in the vicinity of 45 minutes. I find this is manifestly unreasonable and with respect no person acting reasonably could come to that conclusion.
Even using the lower timesheet hourly rate which equates to a total time allowance of approximately 5 hours only, approximately 1 hour 40 minutes was allowed for report writing (site visit 1 hour 50 minutes, travelling 1 hour 30 minutes) and I find this is manifestly unreasonable and with respect no person acting reasonably could come to that conclusion.
As I would allowed the appeal in respect of this item, it is not necessary for me to deal with the other grounds (adequacy of reasons) however it is clear that the arbitrator clearly took into account the work performed by Dr Ozanne as he referred to it in his Reasons and gave adequate reasons although as said because of the confusion he allowed what he thought was the equivalent to 3 hours 45 minutes whereas if he had examined the timesheet, it works out to an equivalent of over 5 hours.
I allow the appeal in relation to the amount allowed for Dr Ozanne's invoice of 17 January 2020.
Item 5 Lodging the section 61 application and section 60 reply
Item 6 Work performed after lodging the application and reply
Item 5
The two disputes were resolved on the evening prior to the two‑day arbitration hearing however the parties were required to attend the arbitration hearing for the proclamation of the orders resolving the dispute.
The arbitrator disallowed item 6 (in respect of the s 60 application A 61651) on the basis that the milestone under item 2 was not completed: Reasons [31].
The appellant complains that that because the arbitrator disallowed the worker's costs on item 2 at conciliation (the reply) he disallowed item 6 for the reply filed in the arbitration. The appellant says that what happened at conciliation has got nothing to do with cost items 5 and 6 at arbitration and by linking the reply in the conciliation (item 2) to the reply in the arbitration an error in law was made.
The appellant says the arbitrator's Reasons [31] conflated item 4 of the Costs Determination with item 6 which meant that all work done during the arbitration process right up to the eve of the hearing was not allowed. It is submitted that the arbitrator's milestone approach of saying that because a previous item was not allowed (item 2, the reply in the conciliation stage) subsequent items up the costs ladder were not claimable was in error.
The appellant says that the arbitrator misunderstood the content and purpose of item 6 which is for work done in the arbitration proceedings after lodgement of pleadings and once the milestone in item 5 is achieved an allowance under item 6 becomes applicable. Beyene and cl 10(4) Costs Determination shows that a settlement during a trial hearing (item 7) is in addition to allowance for cumulative milestones achieved between items 1 to 6.
The appellant says it could not have been the intention of the cumulative milestones referred to in cl 10(4) of the Costs Determination for all costs for work done during the arbitration process over several months after the filing of pleadings right up to the eve of the hearings to be non‑recoverable.
The Costs Determination cl 10 provides as follows:
10. Methodology - Conciliation Service and Arbitration Service
(1)References to 'items' under this clause are in reference to those items under ''Conciliation Service'' and ''Arbitration Service'' of the scale of costs.
(2)Items 1 and 2 of the scale are consecutive, cumulative milestones, subject to clause 10(3) and 10(4). For example, to seek payment or to recover for legal services or agent services provided under item 4, the legal practitioner or registered agent must first conclude the milestones, and thereby provide the legal services or agent services, described in items 1 and 2 inclusive of the scale. Items 3 and 4 are not claimable cumulatively and a claim under only one item or the other may be made.
(3)Where the legal practitioner or agent did not provide services during the Conciliation Service stage of the process, the legal practitioner or agent cannot claim under items 2 to 4.
(3a)Where a legal practitioner or agent provides services in relation to Schedule 1A of the Act, the legal practitioner or agent cannot claim under items 2 to 4.
(4)Where a dispute is not resolved in the Conciliation Service and an application is made to the Arbitration Service, and the legal practitioner or legal agent provided services during the Conciliation Service proceedings, the items 4 to 7 of the scale are consecutive, cumulative milestones to items 1 and 2. For example where legal or agent services were provided through the Conciliation Service and into the Arbitration Service, to seek payment or to recover for legal or agent services provided under item 7, the legal practitioner or agent must first conclude the milestones, and have provided the services described in items 1, 2, 4 and 5 to 7.
(5)This Determination applies to milestones attained and completed in the Workers' Compensation Conciliation and Arbitration Services. Costs Determinations 2011 and 2014 will apply to transitional matters and milestones previously attained and completed.
(6)This clause should be read in conjunction with clause 11.
11. Stand-Alone Items
(2)The legal services described in items 8 to 10 may occur at any stage in the process and are additional to the milestone events (regardless of which event or events have been achieved) and are to be read as being in addition to the overall total remuneration.
The respondent says that cl 10(4) of the Costs Determination provides for items 4 to 7 to be consecutive cumulative milestones to items 1 and 2 and accordingly you must first complete the earlier milestones and have provided the services described before you can receive remuneration under any subsequent milestone.
Clause 10(2) specifically provides that a claim can be made for only one of item 9(3) or 9(4).
Clause 10(3) provides that if legal practitioner did not provide services during the conciliation stage, they cannot claim under items 2 to 4.
Clause 10(4) means that where a dispute is not resolved at conciliation and an application is made for arbitration and the legal practitioner provided services during the conciliation items 4, 5, 6 and 7 are consecutive cumulative milestones to items 1 and 2. That is, where the dispute is not resolved in conciliation and the legal practitioner provides services, he can claim items 4 to 7.
In the example provided in cl 10(4) to receive payment for item 7, the lawyer must have provided the services described in items 1 to 4 and 5 to 7. Self‑evidently you could only claim one of item 6 or item 7.
Clause 10(4) must be construed in a manner to give a coherent meaning to the costs scheme in the context within which it appears.
The correct interpretation of cl 10.4 is that a prior milestone is only required to be concluded by the party claiming cost for a subsequent milestone if that party is required by the Act, rules or regulations to complete the previous milestone. To interpret it any other way would result in an absurdity. For example, an employee files an application to discontinue the worker's weekly payments. As the worker did not file the application, he is not entitled to costs under item 2 and therefore not entitled to any costs under any subsequent milestone items being one of items 9(3), 9(4), and items 9(6) and 9(7) even though many hours may have been spent on the worker's behalf at conciliation and arbitration. To interpret the clause in this way would be contrary to public interest. Lawyers could not charge their client for the services that they have rendered and would be expected to work pro bono. The whole system would be brought into disrepute.
Clause 10(4) reference to consecutive cumulative milestones must be read down so that only prior milestones that the party claiming the cost are required, by the Act, rules or regulations to complete need be completed by that party before they claim for subsequent milestones.
Accordingly, if a party has not lodged an application, as occurred in A61651 that party may not be entitled to costs under item 2 for a reply, as they were not required to file a reply, but that does not disqualify them from costs under item 9(3), 9(4) (restricted to only one of 9(3) or 9(4)), 9(5), 9(6) and 9(7).
In A61651 the appellant was not required to complete milestone 2 as he was not the party lodging the application and that does not disqualify him from subsequent milestones.
I find that the arbitrator erred in law in dismissing the applicant's claim under item 6 in A61651 on the basis that the requisite 'milestone' under item 2 was not complete.
The interlocutory costs orders and directions
Item 6
The appellant claims that the learned arbitrator only allowed 90 minutes in total at the first direction hearing held on 28 August 2019 in respect of the attendance at the hearing which lasted 30 minutes therefore, in effect, only allowed one hour in total for preparation of both matters including travelling time to Shenton Park. The appellant says the arbitrator only considered the complexity of the matters and that it did not involve significant skill (Reasons [38] and [39]) and he did not take into account time spent by counsel in each matter including advice on evidence, counsel preparation for the direction's hearings and attendance (1.75 hours each) or preparation or attendance by instructing solicitors and travel time, nor the work involved or the reg 18H(1) criteria (T 67) as to whether it was reasonable to carry out the work and what is a fair and reasonable costs for the work. The appellant says that in any event the costs allowed were manifestly unreasonable.
The appellant says a perusal of the arbitrator's orders of 28 August 2019 (5A MAB) which were eight pages of directions shows the content for the directions hearings must necessarily have exceeded the allowance of 30 minutes preparation time for each matter.
The respondent says the arbitrator considered that the directions hearings were held concurrently and dealt with routine issues and did not involve a complex hearing involving significant argument or the exercise of any significant skill.
A perusal of the arbitrator's orders of 28 August 2019 shows the orders in each matter were identical, each being four pages in length and the contents of the orders appear to be relatively standard. The nature of the applications is explained, the evidence outlined, and brief orders made. Even allowing for travelling time, I am not satisfied that the time allowed was manifestly unreasonable.
The arbitrator gave his reasons which were adequate for the purpose and when considered in their entirety identify the basis upon which the costs were disallowed.
For reasons previously expressed, I infer the hours disallowed were disallowed on the basis that it was not reasonable to carry out the work or the costs claimed for that work were not fair and reasonable. I find that the arbitrator's references to reg 18H(2) factors that it was not a complex hearing involving significant argument or significant skill was the arbitrator articulating reasons as why he found that it was not reasonable to carry out the work that was in fact disallowed.
Essentially this is an argument over quantum. I am mindful that a different arbitrator may have assessed the bill at a higher rate, but ultimately it is a dispute as to quantum.
I do not find any ground of appeal established in respect of this item.
The appellant says in relation to the interlocutory applications on 23 September 2019 (orders 5B MAB), but also involving 2G MAB interlocutory application, affidavit of Mr He of 16 September 2019, orders of 16 October, 5D MAB) and 1 November 2019 (orders 5F MAB). The site visit and the application for the production order) the arbitrator considered the complexity and novelty of the legal and factual issues (Reasons [40] - [49]) but failed to examine the actual time spent on each of the occasions including travelling time to and from Shenton Park, the volumes of documents filed, the time spent by counsel instructors over the period and the reg 18H(1) mandatory factors.
The appellant says that there were affidavits filed and not an insignificant amount of work went into those interlocutory applications for which the arbitrator allowed two hours in respect of each application which was manifestly unreasonable when compared to the timesheets of the work actually spent.
The respondent submits that in essence it is an argument over quantum.
The arbitrator observed that the directions hearing of 23 September 2019 was a mention only that lasted 15 minutes. The 1 November 2019 hearing lasted approximately one hour and the parties agreed on most of the terms. The arbitrator acknowledged the novel and complex issue raised by the form 156 application and observed that both form 156 applications were identical and heard together finding that to allow the costs claimed would be neither fair nor reasonable and allowed two hours on each application. That finding is another way of saying that it was not reasonably necessary to carry out the work disallowed.
The appellant has failed to satisfy me that the time allowed considering the work done and the work claimed by the appellant was manifestly unreasonable. The applications were relatively brief as was the affidavit. The arbitrator is in the best position to determine matters of taxation. I have read the material and consider the work claimed. It is essentially an argument over quantum and the amount allowed was not such an unreasonable amount that it can be said that no reasonable taxing officer could have reached that conclusion.
The reasons given are adequate and the mere fact that the arbitrator referred to the novelty and complexity of the form 156 applications does not mean that he did not consider the reg 18H(1) factors. These factors informed his assessment of the reg 18H(1) factors. He specifically stated that to award the maximum costs would be neither fair nor reasonable which in my view is an acknowledgment that he had considered the reg 18H(1) factors.
I do not find any ground of appeal established in respect of this item.
The appellant says in relation to the directions hearing of the of 3 December 2019 (orders 5G MAB) no allowance was made for preparation as the arbitrator only allowed 15 minutes for each matter for a hearing that went for 15 minutes allowing in effect only 7.5 minutes of preparation for each matter. It is submitted that the materials show 2.8 hours of work by solicitor and .5 hours by counsel, and the arbitrator did not look at the time actually spent (T 81) or consider the work that was done alternatively, and the appellant says the amount allowed was manifestly unreasonable.
The respondent says this is an argument over quantum.
The arbitrator was aware that the appellant was seeking the maximum of two hours allowable in both matters in respect of concurrent directions hearings that were held by telephone and found that the hearing dealt with routine issues relating to dates and setting deadlines for filing the evidence and listing the matter for hearing (Reasons [50], [51]).
I find the arbitrator gave brief but adequate reasons which considered in their entirety identified the basis upon which the costs were disallowed.
It has not been established that the amount of time allowed was so unreasonable to demonstrate error for what the arbitrator found was a routine direction hearing or that his reasons were inadequate. I have examined the material. In relation to the 2.8 hours of work by the solicitor the timesheet shows that was the total spent on the file that day, not all of which was related to the directions hearing. The time spent on the directions hearing and other non-direction hearing matters (ie settlement discussions, way forward) appears to be .8 hours. The directions hearings were concurrent and essential to monitor the progress of the parties and fairly standard programming orders were made.
I find the arbitrator gave brief but adequate reasons. I infer from the arbitrator's reference to routine matters and his knowledge of the law correctly stated in Reasons [12], [13] and the length of the hearing that the time disallowing was disallowed on the basis that it was not reasonable to carry out the work or the costs claimed for that work were not fair and reasonable.
I do not find any ground of appeal established in respect of this item.
The appellant says in relation to the interlocutory applications of 3 June heard on 11 June 2020 (the application dated 3 June 2020 is 2K MAB, the application of 8 June 2020 is 2M MAB) the arbitrator allowed 30 minutes in total for the s 60 and s 61 applications, including for a 20 minute telephone hearing, for drafting, settling, filing and arguing the interlocutory applications (Reasons [59] to [62]) and the arbitrator considering only the complexity of the matters and paid no regard to the reg 18H(1) issues.
The arbitrator allowed 15 minutes in respect of each application on the basis that the two applications were closely approximate in time and could have been brought in one application.
The appellant says that there is no reference in the arbitrator's reasons to the amount of time spent in drafting, settling and filing the necessary paperwork. The appellant says his Honour failed to examine the timesheets relating to the work done by solicitor and counsel and simply said the hearing was 20 minutes long he therefore allowed 15 minutes in respect of each application without considering the reg 18H(1) requirements.
The interlocutory application marked 2.K in the MAB is relatively brief. However, it still has to be prepared and the documents in support attached. Those documents are 18 pages in length being correspondence to solicitors, medical notes and medical reports.
Accepting the arbitrator's finding that one and not two applications could have been made an allowance of 10 minutes for the preparation and filing the paperwork is so unreasonable as to demonstrate error in the sense that no taxing officer acting reasonably could allow only 10 minutes for the drafting, settling and filing of the interlocutory applications. Drafting, settling and filing would not take much time, it was a simple application however to allow 10 minutes is manifestly inadequate and I would uphold the appellant's case in this regard.
I would not uphold the submission that the reasons given were inadequate, as they identified the basis upon which the costs were disallowed. I would not uphold the submission that reg 18H(1) factors were not considered, because impliedly for the reasons expressed at par 76 - 78 I have found that they were considered.
In relation to the interlocutory application of 15 June 2020 (2N MAB), which included seeking leave to call viva voce evidence at the arbitration hearing listed to commence the next day the arbitrator did not allow anything in respect of those matters because the matters were settled by agreement prior to commencement of the concurrent arbitration which was listed to commence on 16 June 2020.
The appellant says that these matters were settled at 5.05 pm the evening before but that should not disqualify them from costs for the work that was necessary prior to the settlement and the arbitrator's continual reference to complexity overlooks that although matters may not be legally complex, they were factually involved and time is spent getting the matters up, particularly where translators are involved.
The appellant says there was an error of law in not allowing the item simply on the basis that although the work had been done the matter was settled before the application could be heard.
The appellant says that the schedule in the bill of costs showed the actual hours worked and the timesheets were also before the arbitrator and says the arbitrator did not look at the hours of work done in relation to each of the item which he was required to do to comply with reg 18H(1).
At Reasons [67] the arbitrator indicated as both matters were settled by agreement prior to commencement of the concurrent arbitration hearing of 16 June 2020 the interlocutory application of 15 June 2020 did not proceed and rejected the costs claimed.
The respondent says that there was no basis upon which the arbitrator could make a decision on costs. As the applications were not heard, the arbitrator was not able to determine whether the application was successful and therefore entitled to costs.
Costs at the end of the day are discretionary. However, the difficulty is that we do not know the basis upon which the costs were disallowed. It is a reasonable reading of the arbitrator's decision that he did not allow the costs because the matter settled. It cannot be ascertained from the arbitrator's reasons whether he did not allow the costs because he considered as a matter of law that as the matter had settled costs could not be allowed or he did not allow costs in the exercise of his discretion because as the application had not proceeded, he did not know if the application would be successful and therefore entitled to costs.
The arbitrator's reasons are inadequate in that they do not disclose sufficient reasons to determine why he did not allow costs and the matter should be remitted for that issue to be addressed.
It is not necessary to deal with those contentions because I have allowed the appeal on this item on the basis of the inadequacy of reasons.
Item 5 Preparation, lodgement of arbitration application/reply and documents
The appellant claims that of 16 hours maximum that could have been allowed for getting up the learned arbitrator allowed nine hours focusing solely on novelty and complexity, not the amount of work actually done and overlooked the 18H(1) factors. The appellant says 23 hours of work was done in total for both matters. Whilst accepting that the worker suffered only one injury, the appellant says this was not to the point.
The arbitrator's Reasons [26] - [29] observes that the disputes raised distinct legal and some distinct factual issues but were not of particular novelty or complexity and shared a sub-set of common documents such that the books of documents lodged by Ms Wang for the arbitration hearing was identical in each matter.
The arbitrator stated that he was not persuaded that the work done in preparing and lodging the applications in A61509 and the reply in A61651 and obtaining, preparing and lodging the accompanied documents justifies a maximum time allowed in each matter. He was however satisfied that there were some distinct legal and evidentiary issues and allowed five hours and at the senior practitioner rate in A61509 and four hours at the senior practitioner rate in A61651.
The arbitrator was aware that Ms Wang was seeking the maximum of eight hours allowable in both matters and was not persuaded that the work done justified the maximum time allowable in each matter. That finding is another way of saying that it was not reasonably necessary to carry out the work disallowed. An inference can be drawn that the hours disallowed were disallowed on the basis that it was not reasonable to carry out the work or the costs claimed for that work were not fair and reasonable.
The arbitrator gave sufficient reasons for making the allowances that he did (Reasons [26] - [29]).
I am not persuaded that the amount allowed is so unreasonable as to demonstrate error.
I do not find any ground of appeal established in respect of this item.
The cross-appeal
The respondent says that the arbitrator erred in failing to allow the respondent to be heard over the costs of the cost assessment and in awarding the appellant the costs of the cost assessment in the sum of $1,254.
The respondent says that they alerted the arbitrator in their written submissions of 20 October 2020 to the fact that a Calderbank offer had been made and in their further written submissions dated 3 December 2020 requested that the costs of the cost assessment be reserved to be dealt with after the bills were assessed and the arbitrator (Reasons [97]) was wrong to say that there was no evidence before him of any offers being made by the respondent with respect to the costs of the proceedings or of negotiations between the parties in that regard.
The respondent says that before a decision was made on the costs of the costs application the arbitrator being aware that there was a Calderbank offer should have assessed the costs and then called for further submissions in relation to the Calderbank offer in view of the costs as assessed. In not doing so the respondent says they were denied procedural fairness in that they were denied the opportunity to make submissions based on the Calderbank offer being higher than the costs as assessed.
The appellant says the cross-appeal and consideration of the Calderbank offer is premature because consideration can only be given to a Calderbank offer after the appeal outcome is known and any subsequent re-taxation if, the appeal is successful, occurs.
The appellant points to s 264(5) and s 264(6) of the Act which provide:
(5)A dispute resolution authority is not to order the payment of costs by a worker unless the dispute resolution authority is satisfied that the costs relate to an application made by the worker that was frivolous or vexatious, fraudulent or made without proper justification.
(6)If a dispute resolution authority is satisfied that a part only of the application was frivolous or vexatious, fraudulent or made without proper justification, the dispute resolution authority may order the worker to pay the costs relating to that part of the application.
The appellant says that s 264 presents a procedural threshold that must be overcome before any award of costs can be made against a worker.
In my view cross-appeal ought to be allowed.
The arbitrator was aware of the existence of the Calderbank offer. It is referred to in the submissions of 3 December 2020 and 20 October 2020. Having been alerted to the existence of a Calderbank offer the arbitrator should have assessed the bill then called for submissions in relation to both the Calderbank offer thereby giving the parties the opportunity to make submissions both in respect of s 264(5) and s 264(6) and the Calderbank offer.
I find that there was a breach of procedural fairness in that the respondent was denied the opportunity of making submissions in respect of its Calderbank offer which is not disputed by the parties is for a greater amount than the bill was assessed.
The arbitrator ought to determine the costs then consider the Calderbank offer in light of s 264(5) and s 264(6), and then determine whether to order payment of the costs.
The arbitrator erred in law in not doing so and I uphold this ground of appeal.
Subject to hearing from the parties the proposed orders are as follows:
1.The appellant is granted leave to appeal pursuant to s 247 of the Act.
2.Arbitrator Fletcher's order of 23 June 2021 that the employer do pay the worker's costs and disbursements fixed in the amount of $21,450.20 is set aside.
3.The appeal be allowed in relation to the amount assessed by the Arbitrator in relation to:
(a)Dr Ozanne's invoice of 17 January 2020 and the assessment of $3,547.80 is set aside.
(b)The interlocutory application of 3 June 2020, heard on 11 June 2020, in relation to A61651 and A61509 and the allowance of 15 minutes for each application is set aside.
4.The arbitrator's decision to disallowing item 6, dispute resolved after lodging application, in relation to A61651 and item 6, the interlocutory application of 15 June 2020 in relation to A61651 and A61509 is set aside.
5.The respondent is granted leave to cross-appeal pursuant to s 247 of the Act.
6.The respondent's cross-appeal is allowed.
7.Arbitrator Fletcher's order dated 23 June 2021 that the respondent pay the appellant the cost of the costs assessment in the sum of $1,254 is set aside.
8.The bill of costs in matter A61651 and A61509 be remitted for assessment of the items referred to in this order and assessment of the respondent's Calderbank offer.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KH
Associate
21 DECEMBER 2022
10
5