Wikaira v State Rail Authority of NSW
[2006] NSWWCCPD 347
•18 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Wikaira v State Rail Authority of NSW [2006] NSWWCCPD 347
APPELLANT: Lesley Michelle Wikaira
RESPONDENT: State Rail Authority of NSW
INSURER:The Rail Corporation
FILE NUMBER: WCC19210-05
DATE OF REGISTRAR’S DECISION: 4 July 2006
DATE OF APPEAL DECISION: 18 December 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s Assessment of Costs: Fees for an investigation report; Items, 4.08 and 4.09 of Schedule 6 of the Workers Compensation Regulation (2003); subsequent costs claim.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: 1. The Delegate’s determination of
$13,158.35 inclusive of GST is set aside and the sum of $13,433.35 inclusive of GST substituted in lieu thereof.
2. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 31 July 2006 Lesley Michelle Wikaira (‘Ms Wikaira’) filed an ‘Appeal Against a Costs Determination’ made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 4 July 2006. The Respondent to the appeal is the State Rail Authority of NSW (‘State Rail’). On 23 August 2006 State Rail’s solicitors filed submissions in response to the appeal, but without filing a formal ‘Notice of Opposition’.
On 30 August 2004 Ms Wikaira commenced proceedings in the Commission to recover compensation entitlements from State Rail. The parties attended a conciliation/arbitration hearing on 15 December 2004. On 22 December 2004 the Arbitrator issued a ‘Certificate of Determination’ which included a clause requiring State Rail to pay “… the Applicant’s costs as agreed or assessed.”
Ms Wikaira’s claims for non-economic loss compensation were referred to an ‘Approved Medical Specialist’ (‘AMS’). That assessment was conducted on 16 March 2005. On 8 April 2005 Ms Wikaira made application to appeal that decision and was successful. The Appeal Panel’s determination was dated 14 November 2005. The parties were subsequently able to settle the claim for section 67 entitlements prior to a further scheduled conference on 9 March 2006.
On 3 August 2006 the Commission notified the parties of its registration of an agreement pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’). That agreement also apparently provided for “costs as agreed or assessed”.
On 10 November 2005 Ms Wikaira’s solicitors lodged an ‘Application for Assessment of Costs’ with the Commission in respect of their ‘Bill of Costs’ dated 4 November 2005. State Rail submissions were received on 6 December 2005.
Ms Wikaira’s solicitors claim that they provided further submissions dated 28 April 2006. I have been unable to locate those submissions in the Commission file however, they are attached to the submissions on appeal. I note however that most of those submissions relate to the ‘continuation’ of the matter following the filing of the ‘Application for Costs Assessment’ on 10 November 2005
The matter is a little more complicated since Ms Wikaira’s initial Bill of Costs, the subject of assessment, was completed on 4 November 2005. The matter was not finally completed at that stage, and further activity was undertaken by the parties prior to registration of the section 66A Agreement to which I have referred previously in August 2006.
It appears that Ms Wikaira’s solicitors have filed an ‘Application for an Assessment of Costs’ in relation to that matter apparently being matter No. 11471-2006.
My task is to only review the cost determination made by the Registrar in relation to the ‘Application for Assessment of Costs’ dated 10 November 2005.
The Registrar delegated that assessment of costs to a Commission Arbitrator (‘the Delegate’) who made a determination dated 4 July 2006. The ‘Certificate of Determination’ stated:
“1.Pursuant to a certificate as to determination issued on 22 December 2004 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 $12,608.35 inclusive of GST.
3.The Applicant’s costs of the assessment are assessed at $550.00 inclusive of GST.
4.The Respondent is to pay the amount of $13,158.35 inclusive of GST to the Applicant if those costs have not already been paid.”
Relevant aspects of the Delegate’s Statement of Reasons for his decision will be dealt with below.
ON THE PAPERS REVIEW
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.”
Ms Wikaira’s solicitors make no submission on this issue. State Rail submits that the matter is suitable for a determination ‘on the papers’. Having regard to the submissions, Practice Directions numbers 1 and 6, and all the documents that are before me, 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.
SUBMISSIONS, DISCUSSION AND FINDINGS
As I said earlier, many of the submissions by Ms Wikaira’s solicitors relate to activities or events that post-date the preparation of the Bill of Costs dated 4 November 2005. The only Items in dispute are Item 4.08 and 4.09 and the cost of a “Factual and Liability Summary Report” prepared by St George Registration and Investigation Service Pty Limited (‘St George’).
State Rail submits that the Delegate has not made any errors of law in his assessment of Ms Wikaira’s claim for costs and that the appeal application is “… not based on valid grounds or errors of law.”
ADP Handley succinctly summarised procedures relating to costs in Harvey v JJC Group Pty Limited [2006] NSWWCCPD 329 as follows:
“The relevant legislation providing for the assessment of costs in workers compensation matters is the 1998 Act and the Workers Compensation Regulation 2003 (‘the 2003 Regulation’). Clause 84 of the 2003 Regulation fixes the maximum costs recoverable by legal practitioners and agents at those set out in Schedule 6, except where otherwise provided in Part 19. Schedule 6 sets out the maximum costs recoverable in workers compensation matters by reference to the Compensation Costs Table (‘the Table’) at the end of the Schedule. The Table identifies particular activities or events with an item number.”
It is these item numbers that are referred to below.
Professional Costs
Item 4.08
This Item is described in the Table as “preparing for a conference (including providing advice to client)”. At the relevant time, the maximum total for that activity or event was $500.00. It is not entirely clear from the Bill of Costs just what is claimed by Ms Wikaira’s solicitor. In the Bill of Costs, it is noted that “… Agreement has been reached …” in respect of “first conference – Item 4.08 - $500.00.” It appears that Ms Wikaira’s solicitors are claiming an additional $500.00, i.e., a total of $1000.00. The Delegate allowed $500.00 for the “first conference” stating that:
“The maximum has been claimed and allowed for the first Teleconference in this matter and in those circumstances the claims for further Teleconferences are not allowed as they exceed the maximum.”
As Deputy President Fleming said in Orr v Direct Couriers (Australia) Pty Limited [2004] NSWWCCPD 28 (‘Orr’):
“The monetary value set out in Column 4 of the Table are the maximum total for an event type in any particular claim, regardless of the number of individual activities that may take place under the event heading.”
This decision has been followed in a number of subsequent decisions such that it is clear that the legal practitioner may not be allowed more than the maximum in the column regardless of the number of activities or events of that type. (There is an exception in respect of Item 4.12, not relevant to the issues at hand).
Item 4.09
Ms Wikaira’s solicitors claimed a total of $1,000.00 for the costs of attending and participating in a conference with an Arbitrator under this Item. The Delegate stated as follows:
“The Respondent concedes that the Conciliation/Arbitration proceeded between 10:00am and 12:00 noon whereas the Applicant submits that the period of time was 10:00am to 2:00pm. In all the circumstances, I will allow a period of three hours to attend and participate in a Conciliation/Arbitration.”
Ms Wikaira’s solicitor’s submissions on this point are not clear, and seem to encompass both Items 4.08 and 4.09.
It would appear from the Delegate’s determination that there was indeed a dispute as to the length of time the parties were involved in the Conciliation/Arbitration. The event or activity must be calculated by reference to the actual time involved. Given the dispute, the Delegate’s determination was appropriate in the circumstances, and I can see no basis upon which any error of law has been made by the Delegate.
Disbursements
St George Investigator’s Report
Ms Wikaira’s solicitors claimed $3,131.15 in respect of St George’s fees for preparing what was described as a “Factual and Liability Summary Report”.
The Delegate disallowed the claim. He noted that: “The Applicant has been paid the maximum pursuant to Item 2.01 to obtain instructions.”
The total amount was in respect of three memoranda of costs, two dated 16 September 2003 and one dated 29 April 2003.
In disallowing the claim, the Delegate stated as follows:
“The test as to whether such Reports are claimable is essentially one of reasonableness of the attendance. The Memorandum of Costs include a claim for barrister’s fees and stationery, telephone and photocopying and the only Item which appears to have any relevance to the issues in dispute is the statement obtained from Geoffrey Wikaira and the preparation of the Schedule of Earnings. I have perused the substantive file in this matter and I determine that it is not reasonable for a Factual Investigator to obtain a corroborating Statement from the Applicant’s husband nor is a Schedule of earnings an appropriate activity for a Factual Investigator. These attendances were not necessary to enable the claim to be prosecuted and in these circumstances, the claim is disallowed.”
Ms Wikaira’s solicitors made lengthy submissions annexed to their Bill of Costs, and on appeal submit that the Delegate should have allowed the costs of the investigator’s fee, particularly in circumstances where the Delegate allowed costs under Item 2.05 for briefing the factual investigator in the sum of $100.00, but did not allow the actual investigator’s fee.
Ms Wikaira’s solicitors cite a decision of Mitchell v Pet Trading Pty Limited [2004] NSWWCC C30 where the Arbitrator determined: “In principle, an Applicant is entitled to recover costs for briefing an investigator (under Item 2.05) and the investigator’s fees (under clause 82(b) WCR 2003)”.
The costs of the investigator were considered at length by Deputy President Fleming in Berger v Moree Plains Shire Council [2005] NSWWCCPD 152. It is clear that the fee for an investigator’s report is an amount that may be claimed pursuant to clause 82(b) of the 2003 Regulation but, as Deputy President Fleming pointed out at paragraph 142:
“The test of whether such report is claimable will … 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 my view, it was open to the Delegate to conclude that it was not reasonable to obtain a corroborating statement from Ms Wikaira’s husband. As State Rail pointed out in its submissions, “It would be unfair to allow this disbursement as the information contained in the report was unnecessary given the claim as pleaded.”
Many of the ‘disbursements’ referred to in the St George report, particularly, costs for telephone, photocopying, stationery and faxes are not allowable Items. As State Rail also points out, there does appear to be duplication in the two accounts prepared by St George dated 16 September 2003.
The proceedings before the Arbitrator on 15 December 2004 were for, inter alia, weekly payments of compensation. The injury the subject of the proceedings occurred on 22 August 2000 together with the “nature and conditions” of employment with the Respondent from August 2000 to April 2002. Weekly benefits were claimed from 26 May 2002.
Whilst not directly referring to the Wage Schedule prepared by Ms Wikaira, it was a document relevant to the determination of the issues before the Arbitrator. It is noted that State Rail had relied upon a Tax Return of the Applicant for the period 1 July 2002 to 30 June 2003.
As Deputy President Tydd said in Beggs v W & D Stuart [2006] NSWWCCPD 308:
“Given that the claim was for weekly benefits compensation necessitating consideration of section 40 of the 1987 Act for a period dating back to 1994, I am satisfied, on balance, that briefing a factual investigation to obtain the information relevant to Mr Begg’s earnings during this period was a cost that was ‘reasonably incurred’.”
This decision I also accepted in Wilson v PJ & BM Kennedy [2006] NSWWCCPD 345.
However, in the present case, the claim was for a much shorter period of time.
St George’s fees for this “activity” totalled $462.50 including a secretary typing the schedule of earnings. That took 30 minutes. Preparing the Schedule took 30 minutes and “perusal (scan) client pay advice” apparently took 35 minutes but cost $350.00.
In all of the circumstances, I consider that a total of one hour is an appropriate allowance, and I would allow the sum of $250.00 for this activity.
The other Items claimed, including a “Lawpoint search” in the circumstances of this particular case I do not regard as reasonable such that the Delegate’s determination, save for the preparation of the Wage Schedule, is confirmed.
SUMMARY
The outcome of my review of the Delegate’s determination in relation to the costs and disbursements the subject of appeal by Ms Wikaira’s solicitors is as follows:
Professional Costs
Item 4.08
The Delegate’s disallowance of the claim under this Item is confirmed.
Item 4.09
The Delegate’s award is confirmed.
Disbursements
The Delegate’s disallowance of the St George investigation report is revoked, and the sum of $250.00 allowed.
Total additional disbursements allowed on the appeal is $250.00.
The Delegate’s determination of $12,608.35 should therefore be increased by $275.00 (inclusive of GST) to $12,883.35.
The total amount payable, including costs of the assessment as determined by the Delegate is therefore $13,433.35 inclusive of GST.
DECISION
The Registrar’s determination of Ms Wikaira’s claim for costs in this matter dated 4 July 2006 is amended in accordance with these reasons. The Delegate’s determination of $13,158.35 inclusive of GST is set aside and the sum of $13,433.35 inclusive of GST substituted in lieu thereof.
COSTS
Ms Wikaira’s solicitors have been largely unsuccessful in this appeal and, as State Rail rightly points out, the application was accompanied by often “… lengthy and irrelevant submissions”. This, State Rail submits, has caused it to “… incur time and expense in considering the material produced in preparation of submissions to defend unreasonable grounds of appeal.”.
I am inclined to agree, although not every point could be regarded as ‘unreasonable’.
In all the circumstances, I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
18 December 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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