Williams v Moree Livestock Selling Agents
[2007] NSWWCCPD 25
•25 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Williams v Moree Livestock Selling Agents Association Pty Ltd [2007] NSWWCCPD 25
APPELLANT: David Williams
RESPONDENT: Moree Livestock Selling Agents Association Pty Ltd
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER: WCC17894-05
DATE OF REGISTRAR’S DECISION: 2 March 2006
DATE OF APPEAL DECISION: 25 January 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claims under Items 1.01, 2.04, 9.01 and 10.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003; whether maximum costs specified in the Table before 17 March 2006 are inclusive of GST; disbursement – agency fees.
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Turks Legal
ORDERS MADE ON APPEAL: The decision of the Registrar dated 2 March 2006 is confirmed.
There is no order as to the costs of this appeal.
BACKGROUND
On 21 March 2006, David Williams filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator. The Respondent to the appeal is Moree Livestock Selling Agents Association Pty Ltd (‘the Association’). The Association’s workers compensation insurer is CGU Workers Compensation (NSW) Ltd (‘CGU’).
Mr Williams was born on 25 April 1947 and is aged 59. He claimed workers compensation for injuries to his lower back and both legs as a result of the nature and conditions of his employment with the Association at the Moree Selling Yards. Mr Williams gave notice of his injury and lodged claims for compensation on 31 December 2001 and 30 May 2004.
On 30 June 2005, the Commission registered Mr Williams’ ‘Application to Resolve a Dispute’ in respect of his claim for (1) weekly compensation, (2) medical, hospital or related expenses, and (3) compensation for permanent impairment and pain and suffering. The Association lodged a ‘Reply’ on 21 July 2005. On 8 September 2005, an Arbitrator conducted a teleconference with the parties in the course of which the parties came to an agreed resolution of the issues in dispute. On 9 September 2005, the Arbitrator issued a Certificate of Determination in the following terms:
“1. The parties agree that the applicant’s probable weekly earnings are $120 per week and further agree that the applicant’s current weekly earnings are $120 per week and accordingly I find there is no weekly wage loss up to 8 September 2005. Accordingly there is an award for the respondent in respect of the applicant’s claim for weekly benefits compensation.
2. Award for the respondent in relation to the claim under s 60.
3. The claim for lump sum compensation under s 66 is discontinued and the requirement to file a notice is dispensed with.
4. The respondent to pay the applicant’s costs as agreed or assessed.
The following is not a determination of the Commission, however, I note that the parties have agreed the following: the parties agree that as at 8 September 2005, the applicant has no permanent loss of use of either leg at or above the knee. The respondent will pay to the applicant the sum of $8,700 being 14.5% permanent impairment of the back under s 66. A s 66A agreement to be filed within 14 days.”
By letter dated 20 October 2005, the Commission notified the parties of the registration of a section 66A lump sum agreement in accordance with the above terms.
On 19 October 2005, the parties having failed to agree on the costs payable, Mr Williams’ solicitors lodged an ‘Application for Assessment of Costs’ with the Commission. CGU lodged its submissions in reply on 31 October 2005. The Registrar delegated the assessment of costs to an officer of the Commission (‘the Delegate’) who made a determination dated 2 March 2006. The Certificate of Determination stated:
“1. Pursuant to a Certificate of Determination dated 9 September 2005, the Respondent is liable to pay the Applicant’s costs as agreed or assessed, in respect of a claim for permanent impairment compensation, weekly benefits compensation and medical expenses.
2. The Applicant’s costs of the substantive proceedings are in the sum of $6,781.00.
3. The Applicant’s costs of the assessment are not allowed.
4. The Respondent is, therefore, to pay to the Applicant a total amount of $6,781.00 if those costs have not already been paid.”
The relevant parts of the Delegate’s Statement of Reasons for her decision are referred to below.
ISSUES IN DISPUTE
Mr Williams’ solicitors submit the Delegate erred in her determination of their claims in respect of Items 1.01, 2.04, 9.01 and 10.01, and in disallowing their claim for a disbursement in respect of agency fees. They also submit she erred by failing to allow recovery of an additional amount in respect of GST payable on their professional costs. The parties’ submissions on these issues are considered 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.”
Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submission by the Association that the matter can be dealt with ‘on the papers’, Mr Williams’ solicitors having not made any submission on this issue, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
No application to adduce fresh evidence was made.
SUBMISSIONS, DISCUSSION AND FINDINGS
The relevant legislation concerning appeals to the Commission against an assessment of costs, set out in the 1998 Act and the Workers Compensation Regulation 2003 (‘the 2003 Regulation’) applicable at the time of the Delegate’s assessment, was discussed by Deputy President Fleming in Berger v Moree Plains Shire Council [2005] NSWWCCPD 152 (‘Berger’). I note, in particular, that clause 119(1) of the 2003 Regulation limits the grounds on which an appeal may be made against the decision of the Registrar on an assessment of costs “to a matter of law” arising in the proceedings to determine the costs application. Where the exercise of the Registrar’s or her delegate’s discretion in determining what is fair and reasonable is challenged, only where that discretion has miscarried because it has been exercised unfairly or unlawfully would this constitute an error of law: Nebauer v Hunter Area Health Service [2004] NSWWCCPD 60 (‘Nebauer’), at paragraph 19; Berger, at paragraph 136.
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.
Mr Williams’ solicitors identify a number of professional costs Items and one disbursement as being in dispute, each of which I will deal with in turn, together with the issue of whether an additional amount in respect of GST payable on their professional costs should be allowed.
Professional Costs
Items 1.01 and 2.04
Item 1.01 is described in column 2 of the Table as “Obtaining and reviewing medical reports”. Mr Williams’ solicitors claimed the maximum of $600 then permitted for this activity or event for obtaining and reviewing the following medical reports:
• Dr Wood, report dated 1 September 2004 ($150)
• Dr Bodel, 3 reports dated 6 June 2005 (one at $150 and two at $100)
• Dr Mahony, report dated 18 April 2005 ($100)The Delegate allowed $400, in respect of Dr Woods’ report dated 1 September 2004, one of Dr Mahony’s reports dated 1 December 2004, and Dr Puxty’s report dated 28 January 2005. The Delegate disallowed the claim in respect of Dr Bodel’s reports dated 6 June 2005 because these were attached to the ‘Reply’ and the activity therefore occurred after the making of the claim for permanent impairment. Pursuant to the decision in Berger (at paragraph 95), a claim may only be made in respect of medical reports under Item 1.01 if the obtaining and reviewing of medical reports occurred prior to the making of the claim for permanent impairment compensation or pain and suffering. Here Mr Williams’ claim was made on 1 March 2005 and his ‘Application to Resolve a Dispute’ was registered on 30 June 2005.
The Delegate also disallowed Dr Mahony’s report dated 18 April 2005 for the same reason. However, she allowed a claim for Dr Wood’s report dated 1 September 2004, a claim for Dr Puxty’s report dated 28 January 2005, and an earlier report by Dr Mahony dated 1 December 2004. The Delegate disallowed a second report of Dr Mahony dated 1 December 2004 because this merely set out Dr Mahony’s assessment of permanent impairment and she did not consider recovery for this report, which could have been included in the main report, to be fair and reasonable. The Delegate also disallowed a later report dated 31 January 2005 because it was not a permissible update pursuant to clause 44(1)(a) of the 2003 Regulation (requiring that the update is provided “more than 6 months after the original report was provided”), was not admitted into the proceedings as required by clause 45(1), and no compensation was recovered for whole person impairment.
Item 2.04 is described in column 2 of the Table as “Obtaining and reviewing medical reports (other than where Item 1.01 applies)”. Mr Williams’ solicitors claimed $450 under this Item in respect of three reports by Dr Mahony, two dated 1 December 2004 ($150 claimed for one and $75 for the other) and one dated 31 January 2005 ($75), and a report by Dr Puxty dated 28 January 2005 ($150). The Delegate disallowed these claims under Item 2.04 (although, as stated, the Delegate allowed one report by Dr Mahony dated 1 December 2004 and Dr Puxty’s report under Item 1.01). In Berger (at paragraph 96), Deputy President Fleming held that a claim can only be made under Item 2.04 if the obtaining and reviewing of medical reports occurred following the making of a claim and prior to referring a dispute to the Commission. Dr Bodel’s reports, for which a claim was made under Item 1.01, were attached to the Association’s ‘Reply’ served on Mr Williams’ solicitors on or about 21 July 2005, after the Commission registered Mr Williams’ ‘Application to Resolve a Dispute’.
In the appeal, Mr Williams’ solicitors maintain their claims under Items 1.01 and 2.04 as originally made. They fail to address the issues raised by the Delegate. The Association submits the Delegate’s determination in respect of these Items was correct. I agree that the Delegate’s decision was correct, in accordance with the decision in Berger, and correctly applied clauses 44(1)(a) and 45(1) of the 2003 Regulation; moreover, I am not satisfied that the exercise of her discretion as to what was fair and reasonable miscarried in any way. I therefore reject this ground of appeal.
Item 9.01
The activity/event for which a claim may be made under Item 9.01 is described in column 2 of the Table as “Conduct of any other proceedings before the Commission involving the determination of substantive legal issues, including preparatory work”. This includes a claim for the cost of a costs assessment. The Delegate disallowed Mr Williams’ solicitors’ claim for their costs of the assessment on the ground that “[t]he Applicant was unsuccessful in this Application”.
Mr Duncan’s solicitors submit they are entitled to $625 for their costs of the assessment because the Association’s solicitors were only prepared to negotiate costs on a “without prejudice and subject to instructions” basis, contrary to the Commission’s objectives. If the Commission’s determination exceeds the Respondent’s offer, the Applicant should be entitled to their costs of the proceedings.
The Association states their client was only prepared to negotiate once the Applicant’s solicitors had provided a “fair and reasonable” invoice. Given that the Applicant’s solicitors’ invoice ($9,926.61) was more than $3,000 greater than the Delegate’s assessment ($6,781.00), it appears that proceeding to assessment was a necessary course of action.
An examination of the summary Table of Costs at the conclusion of the Delegate’s assessment indicates that Mr Williams’ solicitors were largely unsuccessful in the costs assessment. I am not satisfied from their submissions on the appeal that there is any proper basis for my interfering with the exercise of the Delegate’s discretion. I therefore reject this ground of appeal.
Item 10.01
Item 10.01 is described in column 2 of the Table as “All work associated with instructing an agent to act on the claim or a matter relating to the claim”. The Delegate disallowed Mr Williams’ solicitors’ claim for $187.50 under this Item for “All work associated with instructing an agent to act on re: claim”, on the basis that the agent who attended the Commission to copy produced documents and in respect of whom the claim was made, was not undertaking:
“an ‘agency’ activity allowed for and defined within Clause 9 of Schedule 6 of the Regulation or as defined as a qualifying ‘agent’ in s 356(6) of the 1998 Act (based on the decision in Flegerbein’s case).”
In their submissions on the appeal, Mr Williams’ solicitors said that letters were sent to St George Registration & Investigation Services Pty Ltd (‘St George’) on 1 July 2005 and 9 August 2005 in relation to filing documents at the Commission and inspection, photocopying, and claiming professional privilege in respect of documents produced under direction. The Association refers to the decision in Dunn v Port Macquarie RSL Club Ltd [2004] NSWWCCPD 33 (‘Dunn’), where Deputy President Fleming made clear the activity of attending the Commission to copy documents produced under direction is encompassed in Item 4.05. Moreover, Mr Williams’ solicitors have not responded to the issue of the section 356(6) definition of “agent” to which Deputy President Fleming referred in Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWWCCPD 30 (‘Flegerbein’).
In my view, there is no reason why the documents could not have been filed through the post or via DX, and I do not therefore consider the instructions in respect of filing to be reasonably necessary.
The inspection and photocopying of documents is covered under Item 4.05 (“Reviewing documentation produced under a direction of the Commission...”). I note that Mr Williams’ solicitors have claimed and been allowed the maximum amount then permitted under Item 4.05. In Dunn, at paragraph 41, Deputy President Fleming held that to allow the recovery of fees paid to an agent for inspection and photocopying of documents produced under a direction would be to allow recovery of an amount exceeding the maximum allowable under Schedule 6 and would be an error. She confirmed this in McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’) at paragraph 30, where for similar reasons, she disallowed a claim for instructing an agent under Item 10.01. See also Flegerbein, a matter involving agency fees claimed for filing and inspection and photocopying of documents. In Flegerbein, at paragraph 32, the Deputy President noted that it had not been argued that organisations who undertook the activities were ‘agents’ as defined in section 356(6): the Applicant’s solicitors were thereby precluded from directly recovering any costs by the operation of clause 9 of Schedule 6 of the 2003 Regulation.
In my view, putting to one side whether the issue of whether St George was an ‘agent’ was addressed, Mr Williams’ solicitors were precluded from claiming in respect of the production of documents because this is encompassed by Item 4.05. Thus, I am not persuaded that the Delegate made any error in disallowing the claim under Item 10.01 and, therefore, reject this ground of appeal.
Disbursements
Agency Fees
Mr Williams’ solicitors claimed agency fees of $495 for work undertaken by St George comprising filing fees of $44 (for filing on two occasions - $22, including GST, on each occasion) and fees of $451 for “Inspection of documents, to claim legal professional privilege over and photocopying documents” (on one occasion at $55, including GST, and on six occasions at $66.00, including GST, per occasion). The Association relied on its submissions in relation to Item 10.01. The Delegate relied on the decision in Dunn that the 2003 Regulation did not permit recovery of agency fees for such activity.
In their submissions on the appeal, Mr Williams’ solicitors state that the Applicant does not seek to recover the costs of the photocopying the documents produced, but rather the cost of attending the Commission and claiming professional legal privilege. The Association submits there is no distinction between attending the Commission and photocopying: the decision in Dunn refers to the entire exercise of attending and photocopying.
As Deputy President Fleming pointed out in Flegerbein at paragraph 34:
“the costs referred to in clause 82 [of the 2003 Regulation], and therefore not regulated by Part 19 and Schedule 6, are specifically listed in sub-clauses (a) to (j) as, for example, is “fees for an investigator’s report”. All other costs that are not recoverable by legal practitioners and agents in Commission matters are regulated by Schedule 6 (clause 84 of the WC Regulation). The fees claimed here are not for an investigator’s report (clause 82(b)). They are for photocopying and for other activities already covered and claimed, under the Compensation Costs Table in Schedule 6 of the WC Regulation.”
In this case, as noted above, Mr Williams’ solicitors have already claimed and been allowed the maximum amount permitted under Item 4.05 for reviewing documentation produced under direction. As in Dunn, to allow this claim twice in relation to the same activity would be an error. In particular, I note that claiming legal professional privilege is a legal service that can only be recovered if provided for pursuant to Schedule 6.
Thus, I reject Mr Williams’ solicitors’ appeal in relation to agency fees.
GST
Mr Williams’ solicitors also claimed GST in respect of their professional costs claimed under Items in the Table. The Delegate disallowed any additional amount in respect of GST relying on the decision in Berger.
Deputy President Fleming stated in Berger, at paragraph 156:
“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’ allowed in the Table.”
However, I note that since this decision, with effect from 17 March 2006, clause 123(1) of the 2003 Regulation has been specifically 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”.
In the current matter, the services were performed and the Delegate’s assessment was made before the above amendment took effect, and the Delegate was therefore correct in disallowing a claim for GST to be added to the costs claimed in respect of Items in the Table.
DECISION
Mr Williams’ solicitors have been unsuccessful on all their grounds of appeal, and the decision of the Registrar dated 2 March 2006 must therefore be confirmed.
COSTS
There is no order as to the costs of this appeal.
Robin Handley
Acting Deputy President
25 January 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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