Willis v Bourke Proclaimed Place Incorporated trading as Dumbi Bourke Proclaimed Place
[2007] NSWWCCPD 38
•7 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Willis v Bourke Proclaimed Place Incorporated t/as Dumbi Bourke Proclaimed Place [2007] NSWWCCPD 38
APPELLANT: Raymond Matthew Willis
RESPONDENT: Bourke Proclaimed Place Incorporated t/as Dumbi Bourke Proclaimed Place
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC12890-05
DATE OF REGISTRAR’S DECISION: 24 January 2006
DATE OF APPEAL DECISION: 7 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s Assessment of Costs; various Items in Schedule 6 of the Workers Compensation Regulation (2003); disbursements and costs.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Hunt & Hunt Solicitors
ORDERS MADE ON APPEAL: 1. The Registrar’s determination of Mr
Willis’ claim for costs in this matter, dated 24 January 2006 is amended in accordance with these reasons.
2. The Respondent, Bourke Proclaimed Place Incorporated t/as Dumbi Bourke Proclaimed Place to pay the Appellant, Mr Willis, $275.00 inclusive of GST in respect of his costs in this appeal.
BACKGROUND TO THE APPEAL
1.On 21 February 2006 Raymond Matthew Willis (‘Mr Willis’) filed an ‘Appeal Against a Cost Determination’ made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 24 January 2006. The Respondent to the appeal is Bourke Proclaimed Place Incorporated t/as Dumbi Bourke Proclaimed Place (‘Dumbi Bourke’). Dumbi Bourke’s insurer was QBE Workers Compensation (NSW) Limited (‘QBE’).
2.On 19 May 2006 Dumbi Bourke filed submissions in opposition to the appeal. On 15 August 2006 Mr Willis filed further submissions in reply.
3.On 29 October 2004 Mr Willis filed an ‘Application to Resolve a Dispute’ in the Commission seeking compensation benefits from Dumbi Bourke allegedly as a consequence of the nature and conditions of his employment with Dumbi Bourke from 1999 until October 2002.
4.The parties attended a conciliation/arbitration hearing on 29 April 2005 where, with the assistance of the Arbitrator, the parties were able to come to an agreed resolution of Mr Willis’ claim for benefits. A ‘Certificate of Determination – Consent Orders’ noted: “The Respondent to pay the Applicant’s costs as agreed or assessed.’
5.On 1 August 2005, the parties having failed to agree on the costs payable, Mr Willis’ solicitor filed an ‘Application for Assessment of Costs’ with the Commission in respect of his Bill of Costs dated 29 April 2005. Dumbi Bourke filed submissions in relation to that Bill on 23 August 2005.
6.The Registrar delegated the Assessment of Costs to a Commission Arbitrator (‘the Delegate’) who made a determination dated 24 January 2006. The ‘Certificate of Determination’ was in the following terms:
“1. Pursuant to Agreements and Order dated 20 May 2005 the Respondent employer is liable to pay the Applicant’s costs of the Application as agreed or assessed.
2. The Applicant’s costs of the proceedings assessed in the sum of $6,265.40 (inclusive of GST) are determined as fair and reasonable.
3. The Applicant’s costs of the assessment are not allowed.
4. The Respondent is to pay the amount of $6,265.40 to the Applicant of those costs have not already been paid.”
7.The relevant aspects of the Delegate’s ‘Statement of Reasons’ for his decision will be dealt with below.
ON THE PAPERS REVIEW
8.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.”
9.Having regard to Practice Directions Numbers 1 and 6 and the documents before me, neither party having 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.
SUBMISSIONS, DISCUSSION AND FINDINGS
10.Mr Willis’ solicitor submits that the Delegate made errors of law in his interpretation of clauses 82 and 84 of the Workers Compensation Regulation (2003) (‘the 2003 Regulation’), and in his Assessment of Costs by reference to the Compensation Costs Table (‘the Table’) set out in Schedule 6 of the 2003 Regulation.
11.In its ‘Notice of Opposition’ to the appeal, Dumbi Bourke submits that Mr Willis’ solicitor has failed to identify any error of law by the Delegate, pointing out that “Clause 119(1) of the Workers Compensation Regulation 2003 limits the grounds on which an appeal may be made against the decision of the Registrar on assessment of costs ‘to a matter of law’ arising in the proceedings to determine the costs application.”
12.In submissions in reply, Mr Willis’ solicitor quotes from a decision of the High Court in Craig v South Australia (1994 – 1995) 184CLR 163 at 179 as follows:
“If such an Administrative Tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise and power is thereby affected, it exceeds its authority or powers. Such an error of law is a jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it.”
13.Mr Willis’ solicitor submits that the Delegate:
“… Identified a wrong issue, he has asked himself the wrong questions, he has ignored relevant material and has made erroneous findings and reached a mistaken conclusion.”
14.Dumbi Bourke submits that “… The decision of the costs assessor makes it clear that the Assessor considered all of the relevant statutory provisions within the documents before him in making his decision.”
15.Having carefully read the Delegate’s Statement of Reasons, and all parties’ submissions on appeal, I am satisfied that Mr Willis has demonstrated adequate grounds for appeal.
16.The following Items have been identified as being in dispute, each of which I will deal with in turn:
Professional Costs
Item Amount Allowed Amount Sought
________________________________________________________
Item 1.01 $500.00 $600.00
Item 2.05 $Nil $100.00
Item 4.04 $Nil $ 60.00
Item 4.08 $Nil $500.00
Item 4.12 $Nil $190.0017.In his appeal against the Delegate’s determination, Mr Willis’ solicitor purports to claim $1,000.00 pursuant to Item 4.09 and $250.00 pursuant to Item 4.11, a total of $1,250.00. He claims that the Delegate allowed $625.00 (but does not identify under what Item this was allowed) and then seeks to claim $375.00. The claim is confusing to say the least. No reference is made by the Delegate to either of these Items in his ‘Statement of Reasons’. The Delegate dealt with the claim on the basis of Items in dispute only and then adjusted the bill to reflect “total reductions.”
18.I will deal with this aspect of the claim under the individual Items in due course.
Disbursements
Description Amount Allowed Amount Sought
_________________________________________________________________________
Agency fees $Nil $330.00
Private Investigator’s Report $Nil $1831.94
Solicitor’s travel $Nil $696.50 (reduced on
appeal to $592.00)
Law point search $Nil $86.36
Item 1.01
19.This is described in the Table as “obtaining and reviewing medical reports.”
20.Mr Willis’ solicitor sought $600.00 under this Item. The Delegate allowed $500.00 stating as follows:
“The reports attached to the Reply could not have been obtained before the claim was made, neither were the reports of Dr Bentivoglio all of which were obtained after the claim was made on 23 August 2003. The Applicant is entitled to claim for the reports of Dr Benjamin, 2 of Dr Bloch and Dr Neild.”
21.A maximum of $600.00 is allowed under this Item. The Item is couched in terms of the obtaining and “reviewing” medical reports prior to lodging a claim with the insurer (if the insurer has not already made an offer of settlement).
22.In submissions on appeal, Mr Willis’ solicitor maintains that he “obtained and reviewed” 14 reports. In his Bill of Costs, he claimed to have “obtained and reviewed” seven reports.
23.Mr Willis’ solicitor stated as follows:
“In Brown v Commonwealth Steel Co Limited [2004] NSWWCCC 24, Arbitrator Peter Johnstone held:
‘It will be seen that the word ‘obtain’ is capable of a number of interpretations both active and passive. One is the passive act of receiving. It seemed to me, therefore, that the obtaining of a medical report includes not only the positive act of procuring or requesting the report, but also the act of merely receiving the report. It follows that medical reports served on or provided to a party by the other party, or by the treating practitioner, are ‘obtained’ within the meaning of Items 1.01 and 2.04 of the Table. In my view, it is appropriate that a party should recover costs for reviewing medical reports received from the other party (or insurer) and treating practitioners, in addition to his or her own medical reports.’”
24.Mr Willis’ solicitor draws a distinction between Clause 45 of the Regulations and Item 1.01 noting that Clause 45 relates only to “obtaining” a medical report and applies only to the recovery of the cost of obtaining a medical report. Item 1.01 makes an allowance for costs associated with the “obtaining and reviewing” of medical reports. Thus a claim can be made in respect of reviewing a report even if it is not admitted in the proceedings. What cannot be recovered, if the report is not admitted, is any fee for the report.
25.Mr Willis’ solicitor in his submissions quotes from a decision in Knight v Tomago Aluminium Co Pty Limited [2005] NSWWCCC 22 where the delegate stated:
“It is fair and reasonable for radiology reports and medical certificates evidence to be obtained and reviewed for such a section 66 and section 67 medical dispute. These sorts of records are precisely the sort of material that Approved Medical Specialists take into account when assessing permanent impairment, and that Arbitrators have regards to in making a determination.”
26.Mr Willis’ solicitor also submits as follows:
“In Farnoosh v Macquarie University [2005] NSWWCCC 20, the [Commission] determined that it would allow the maximum when ‘the Respondent had not demonstrated that the Applicant’s solicitors have not reviewed the reports.”
27.Dumbi Bourke submits as follows:
“The issue is not whether or not the Appellant is able to charge in relation to reports served by the other party or produced under direction for production. The issue is the time at which the work was done. Here the work was done after the filing of the ‘Application to Resolve a Dispute’. The reports came into the possession of the Applicant as a result of production on a direction for production, and which took place after lodgement of the Application for Resolution of a Dispute.”
Dumbi Bourke submits that costs of work done subsequently cannot be claimed as “stage one costs” but rather, this work is allowed for under Item 4.05.
28.Part 1 of the Compensation Costs Table (‘the Table’) of the Workers Compensation Regulation 2003 (‘the Regulation’) refers to “making a claim for permanent impairment compensation or pain and suffering compensation.” Item 1.01 then allows for “obtaining and reviewing medical reports.”
29.Although no particular time limit is identified, looking at the Items in chronological sequence it is clear the reports referred to in Item 1.01 are required to be obtained and reviewed prior to the making of the claim for permanent impairment (see Berger v Moree Plains Shire Council [2005] NSWWCCPD 152 (at paragraph 95) and Williams v Moree Livestock Selling Agents Association Pty Ltd [2007] NSWWCCPD 25 (at paragraph 14). The reports identified by the Delegate were the only reports appropriately claimable under Item 1.01.
30.Accordingly, the Delegate’s decision is confirmed.
Item 2.05
31.This is described in column 2 of the Table as “briefing a factual investigator or other investigator to obtain evidence other than witness statements (not including the investigator’s fee).”
32.The Delegate disallowed this claim and gave reasons in relation to the cost of the private investigator’s report. The Delegate said as follows:
“The investigator was doing no more than taking instructions (Item 2.01) and the maximum has been claimed for this Item. The Applicant cannot use an investigator to obtain more costs than allowed under the schedule. The claim is not fair and reasonable. There is ample allowance in this matter under Item 2.01 for the Applicant’s solicitor to obtain a statement from the Applicant if that is needed.”
33.Mr Willis’ solicitor submits that this Item was “conceded” by Dumbi Bourke, not disputed, and should therefore be allowed. In its ‘Notice of Opposition’, Dumbi Bourke disputes this assertion stating that “The entire amount was objected to.”
34.Whatever “without prejudice” discussions the parties may have had in an endeavour to resolve any dispute as to costs, is irrelevant when the ultimate Bill of Costs is disputed. It is quite clear from Dumbi Bourke’s submissions to the Delegate dated 23 August 2005 that Item 2.05 was disputed in its entirety.
35.It is now well established that Item 2.05 does not encompass briefing a factual investigator to take a statement from a Worker/Applicant. The costs involved in obtaining a worker’s statement are encapsulated and absorbed by Item 2.01 (see Harvey v JJC Group Pty Limited [2005] NSWWCCPD 329 (‘Harvey’).
36.I have examined the St George Registration and Investigation Services Pty Limited (‘St George’) report. It contains a statement from Mr Willis identical to the statement lodged by Mr Willis’ solicitor with the ‘Application to Resolve a Dispute’. A statement was taken from Mr Willis’ wife. The content of the ‘investigation’ report does little more than reflect statements made by Mr Willis and assumptions as to medical evidence made by the author of the report. Indeed, there appears some difficulty with the investigators properly identifying the correct name of the Respondent to the proceedings despite annexing a business name search. Curiously, that “search” appears to have been performed on 25 August 2004, despite the investigation report being dated 18 March 2003.
37.As I said recently in Kurzman v Clyde Agricultural Limited [2007] NSWWCCPD 23 (‘Kurzman’) a costs appeal involving the same solicitor for the worker:
“20.Mr Kurzman’s submissions both before the Delegate and on appeal essentially merely address the nature of the relief sought by Mr Kurzman and matters put in issue by Clyde and its insurers. Nothing in that material indicates that any particular “investigatory” activity was required from an independent source such as St George.”
38.Whilst I do not dispute that in principle, an Applicant worker is entitled to recover costs for briefing an investigator, it must be applied to the facts of each particular case. In the present case, much of the tasks apparently undertaken by St George were not, in my view, warranted. Nonetheless, the Item relates to the ‘briefing’ of a factual investigator; the actual disbursement is a separate matter. The itemised account from St George does not demonstrate that any particular ‘investigatory’ tasks were undertaken. Much of the account relates to activities such as typing and photocopying. There is a reference to “Research Factual and Liability Summary” but no indication as to the nature of that apparent task.
39.Despite some reservations as to the quality and quantity of work undertaken by St George (viz the business name search) it seems to me in the circumstances of this particular case, that it was reasonable for Mr Willis’ solicitor to have briefed an investigator to carry out activities such as a business name search and preparation of a Schedule of Earnings.
40.Accordingly, I would allow the costs claimed in Item 2.05 in the sum of $100.00.
Item 4.04
41.This Item is described in the Table as: “Lodging an objection to a request for a direction for the production of documents. $60.00 per objection is allowed up to a maximum of $120.00.”
42.Mr Willis’ solicitor claimed $60.00. The Item was disallowed by the Delegate who stated: “There is nothing to suggest that there were any ‘objections’”.
43.Mr Willis’ solicitor maintains that a claim for privilege over certain documents falls within this Item. As I said in Kurzman:
“Whilst I see some merit in this argument, in my view the terms of the Item are clear. Reference is made to lodging an objection to a request for a direction”.
44.In these circumstances, I would disallow this claim.
Item 4.08
45.Item 4.08 is described in the Table as: “Preparing for a conference (including providing advice to client).”
46.In his ‘Statement of Reasons’, the Delegate said this: “The Applicant has claimed this allowance twice. The Table allows for the maximum throughout the matter (see Orr above)”. The Delegate had earlier stated:
“The Applicant cannot recover more than the maximum amount set out in the Table for the same activity or event (Orr v Direct Couriers (Australia) Pty Limited [2004] WCCPD 28.”
47.Whilst I am inclined to agree with Mr Willis’ solicitors assertion that the Delegate’s manner of dealing with Items in dispute is not “easily understandable by all concerned”, it appears that the Delegate allowed this Item (from notes apparently made by him on the Bill of Costs) in respect of a conference on 16 February 2005 but disallowed a further conference apparently on 28 April 2005, the day prior to the conciliation/arbitration hearing on 29 April 2005.
48.This Item was also considered in some detail by ADP Handley in Harvey where he said:
“In Orr v Direct Couriers (Australia) Pty Ltd [2004] NSWWCCPD 28 (‘Orr’), Deputy President Fleming discussed the application of column 4 of the Table in Schedule 6. Column 4 bears the heading “Maximum total for type of activity/event”. With reference to clause 1(2) of Schedule 6, the heading for column 4, and the NSW Court of Appeal decision in Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282 (‘Fuentes’), the Deputy President said, at paragraph 38:
‘The monetary values 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.’
Thus, in respect of Items 4.08, the legal practitioner may not be allowed more than the column 4 maximum regardless of the number activities/events of that type. (However, as Deputy President Fleming recognised in McManus, there is an exception in respect of Item 4.12 where, following Fuentes, the column 4 maximum of $190 may be allowed in respect of each conference or conciliation/arbitration.)”
49.In these circumstances, Mr Willis’ claim for an additional $500.00 is disallowed, and the Delegate’s decision confirmed.
Items 4.09 and 4.11
50.As I said earlier, these Items are not referred to by the Delegate in his determination. The Delegate allowed under Item 4.10 the sum of $625.00. Mr Willis’ solicitor had claimed $1500.00 however, the Arbitrator had not determined that the matter was complex, and the Arbitrator’s reference to Item 4.10 appears to be an error.
51.In submissions on appeal, Mr Willis’ solicitor claims $1000.00 under Item 4.09 and $250.00 under Item 4.11, a total of $1,250.00. Mr Willis’ solicitor states:” The Cost Assessor has taken off $962.50 and therefore allowed the Applicant $625.00. The Applicant seeks the further amount of $375.00”
52.Again, as I said earlier, the claim for $375.00 appears to omit Item 4.11 in the sum of $250.00 despite Mr Willis’ solicitor’s assertion that it is “claimed”.
53.I note in the Bill of Costs that no claim is made at all for Item 4.11. It seems to be inappropriate for Mr Willis’ solicitor to now seek to claim that Item on appeal. Whilst “fresh evidence’ may be given on appeal pursuant to clause 119 of the Regulation, given the absence of any basis upon which it is now allegedly claimed, I would not allow it.
54.Thus ultimately, it appears that Mr Willis’ solicitor claims an additional $375.00 under Item 4.09. In his Bill of Costs, no claim was made under Item 4.09 in respect of the conciliation/arbitration on 29 April 2005. Mr Willis’ solicitor claimed, erroneously, under Item 4.10 the sum of $1500.00. It seems to me that the appropriate claim ought to have been made under 4.09 which refers to “attending and participating in a conference with an Arbitrator (other than an arbitration hearing where Item 4.10 applies) at the rate of $250.00 per hour up to a maximum of $1000.00.
55.Dumbi Bourke in its submissions maintains that the matter proceeded to conciliation before the Arbitrator commencing at 10:00am and concluding at 12:30pm where the matter settled without proceeding to arbitration. In those circumstances, Dumbi Bourke submits that:
“The amounts to which the Applicant’s solicitor is entitled is 2.5 hours at $250.00 per hour (viz $625.00) for the total time spent. All allowances for preparation and reporting are separately claimed and appropriate allowance conceded.”
56.It is noted in his submissions on appeal that Mr Willis’ solicitor makes extensive submissions along the lines of the time spent in travelling (from Young) to the conciliation/arbitration hearing which is not, as Dumbi Bourke points out in its submissions, claimable under this Item.
57.Mr Willis’ solicitor does not dispute that the matter was “conciliated” from 10:00am to 12:30pm. In these circumstances, despite an error as to the Item number, the Delegate’s allowance of $625.00 is confirmed.
Item 4.12
58.This Item is described in the Table as: “Reporting to the client on the outcome of a conference or arbitration ...” The maximum total at the relevant time for this activity was $190.00. As ADP Handley noted in Harvey:
“... There is an exception to the general principle in relation to the column 4 maximum total in respect of Item 4.12, following Fuentes (Orellana Fuentes v Standard Knitting Mills Pty Limited & Anor [2003] NSWC 16) so that the maximum of $190.00 may be allowed in respect of each conference or conciliation/arbitration.”
59.The Delegate allowed a total of $380.00 for reporting to the client following a conference on 17 February 2005 and on 29 April 2005. I note in the Bill of Costs that Mr Willis’ solicitor claims Item 4.12 twice on 29 April 2005. The Delegate disallowed the second “reporting” noting that there were only two conferences.
60.The Delegate’s determination is correct, and the additional amount claimed for further reporting on 29 April 2005 is disallowed.
Disbursements
Agency fees
61.Mr Willis’ solicitor claimed a total of $330.00 for agency fees in respect of St George, being $66.00 for “filing” and $264.00 for “inspection and photocopying”. On appeal, for some unknown reason, Mr Willis’ solicitor claims $264.00 only.
62.The Delegate disallowed this disbursement stating as follows: “The maximum has been claimed in Item 4.05 which appears to be what the agent was doing.”
63.As Deputy President Fleming said in Dunn v Port Macquarie RSL Club Limited [2004] NSWWCCPD 33 (‘Dunn’):
“To allow the Appellant in this matter to claim Item 4.05 twice, in relation to the work of a legal representative and of an agent, would amount to exceeding the maximum allowable, and the Items allowable, under the Regulation. This would be an error.”
64.In line with the decision in Dunn, recovery of the agency fees is not permitted because Mr Willis’ solicitor has already claimed (and been allowed) the maximum under 4.05.
Private Investigator’s Report
65.Mr Willis’ solicitor sought the sum of $1,831.94. The Delegate disallowed this Item stating as follows:
“The investigator was doing no more than taking instructions (Item 2.01) and the maximum has been claimed for this Item. The Applicant cannot use an investigator to obtain more costs than allowed under the schedule. The claim is not fair and reasonable. There is ample allowance in this matter under Item 2.01 for the Applicant’s solicitor to obtain a statement from the Applicant if that is needed.”
66.I have deal with this claim to some extent in my discussion under Item 2.05.
67.Fees for investigator’s reports are not regulated by Part 19 of the 2003 Regulation in accordance with Clause 82 of that Regulation. Clauses 105 and 106 of that Regulation applied a test of whether the disbursement was reasonably incurred or was reasonable in amount.
68.As I said earlier, I have examined the St George report in detail together with the St George memorandum of fees. Two accounts were submitted by St George, one dated 19 March 2003 and a “supplementary” memorandum dated 27 August 2004. The latter memorandum totals $307.45 in relation to the preparation of a schedule of earnings.
69.The Schedule of Earnings was annexed to the ‘Application to Resolve a Dispute’. The Schedule is detailed and reflects earnings dating from 1 July 1999 to 1 July 2004. Whilst the ultimate resolution of the claim did not involve an award of weekly compensation in favour of Mr Willis, it seems to me reasonable for the investigator to undertake an assessment of “wages information” to properly prepare the claim. As Deputy President Fleming said in Berger v Moree Plains Shire Council [2005] NSWWCCPD 152, whilst acknowledging that a fee for an investigator’s report may be claimed pursuant to clause 82 of the Regulation:
“The test of whether such a 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 a 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.”
70.Thus I would disallow the investigator’s memorandum of fees dated 19 March 2003. In relation to the memorandum dated 27 August 2004, in my view the amounts claimed are excessive and not reasonable. I would allow the sum of $165.00 (inclusive of GST) in respect of that activity.
Solicitor’s travelling expenses
71.Mr Willis’ solicitor claims $696.50 in respect of travel on 29 April 2005. The Delegate disallowed the claim stating as follows: “This is not allowed under the Schedule. The solicitor has a Sydney office.”
72.I note that Mr Willis’ solicitor made a similar claim in the matter of Kurzman to which I have referred earlier. A claim is made for 850 kilometres at 59c per kilometre ($501.50), accommodation of $120.00 and sustenance of $75.00, a total of $696.50.
73.On appeal, Mr Willis’ solicitor claims $592.00. In its submissions, Dumbi Bourke claims that the proper distance is 742 kilometres return and the first 50 kilometres each way must be excluded from the calculation of any allowance by virtue of Item 10.02. Dumbi Bourke also submits that Mr Willis’ solicitor should not be entitled to any travel costs because he “… could have attended from the Sydney office or an agent engaged.” It is also noted that Counsel appeared for Mr Willis at the hearing.
74.Dumbi Bourke also submits that the claim for accommodation and sustenance is not reasonably incurred, or alternatively, “… receipts required to verify claims made and confirmation also requested that apportionment with other matters should not apply.”
75.Dumbi Bourke’s submissions are in one respect inaccurate. As I understand it, Item 10.02 excludes the first 50 kilometres of the entire trip. In his submissions, Mr Willis’ solicitor states:
“This matter was to be listed for hearing in Broken Hill, however with the consent of the parties, the Respondent agreed to the Applicant’s travel and Applicant’s solicitor’s travel expenses in travelling down to Sydney for the hearing.”
76.This statement does not appear to be in accordance with Dumbi Bourke’s submissions.
77.I note that Mr Willis resides in Broken Hill and his solicitor in Young. Whilst Mr Willis’ solicitor does indeed have a Sydney office, it seems to me appropriate that Mr Willis’ solicitor be in attendance at any hearing in Sydney. Country practitioners should not be deprived of appropriate expenses if only because of the existence of a city office. It seems to me that, in this particular case, similar, of not greater expenses may have been incurred if the matter had indeed been listed for hearing in Broken Hill.
78.The Delegate disallowed a claim for barrister’s fees since such fees were not allowed under the Schedule. I think it fair and reasonable, as ADP Handley said in Harvey v JJC Group Pty Limited [2006] NSWWCCPD 329:
“… For the solicitor, who will have been the point of contact for the client throughout the proceedings, to attend the conciliation/arbitrations and claim for travelling and accommodation expenses in accordance with the Table.”
79.However, I am of the view that accommodation costs ought be substantiated as requested by Dumbi Bourke and in the absence of verification, I would not allow that Item. This issue was not addressed by Mr Willis’ solicitor in his supplementary submissions filed on 15 August 2006.
80.I consider an allowance of $50.00 for sustenance appropriate.
81.Accordingly, I would allow 692 kilometres (742 less 50) at 59c per kilometre, a total of $408.28 and sustenance at $50.00, a total of $458.28.
Law point search
82.Mr Willis’ solicitor claims $86.36 in respect of this disbursement. He maintains it is reasonably incurred on the basis that: “The Applicant has to bring the claim against the correct Respondent.”
83.Dumbi Bourke submits: “There was no issue as to the Respondent in this matter, and search fees not reasonably incurred.”
84.The Item was disallowed by the Delegate who simply stated: “Not allowed under the Schedule.”
85.The Law point fee note attached to the Bill of Costs is not easily decipherable however, as I said earlier, I do note the company search annexed to the ‘Application to Resolve a Dispute’.
86.Dumbi Bourke submits that such fees were disallowed in Duffy v Sundowner Motor Inns Limited [2004] NSWWCCC 1 and in Zingel v Employment Company No 1 Pty Limited [2004] NSWWCCC17 where it was held that: “Such expenses are included in the allowances for the events and activities in the Costs Table and are not separately claimable.”
87.In my view, given the somewhat unusual corporate identity of the Respondent, obtaining such a search is prudent and the disbursement is fair and reasonable and should have been allowed as a cost included in Clause 82(b) of the Regulation.
Summary
88.The outcome of my review of the Delegate’s determination in relation to the professional costs and disbursements disputed by Mr Willis’ solicitor is as follows:
Professional Costs
·Item 1.01 – The Delegate’s disallowance of this claim is confirmed.
·Item 2.05 – The Delegate disallowed this claim. I would allow the sum of $100.00.
·Item 4.04 – The Delegate’s disallowance of this claim is confirmed.
·Item 4.08 – The Delegate’s disallowance of this claim is confirmed.
·Items 4.9, 4.10 and 4.11 – The amount of the Delegate’s allowance of $625.00 is confirmed although it was erroneously ascribed to Item 4.10. Item 4.11 is disallowed, and the sum of $625.00 confirmed under Item 4.9.
·Item 4.12 – The Delegate’s disallowance of this claim is confirmed.
Additional professional costs of $100.00 (exclusive of GST) are allowed.
Disbursements
·Agency fees: The Delegate’s disallowance of this disbursement is confirmed.
·Private investigator’s report: The sum of $165.00 (inclusive of GST) is allowed.
·Solicitor’s travel (including sustenance): The sum of $458.28 is allowed.
·Law point search: $86.36 should be allowed.
Total additional disbursements allowed on the appeal = $709.64
Total additional professional costs: $110.00 (inclusive of GST) and disbursements of $709.64 = $819.64.
89.The Delegate’s determination of $6,265.40 (inclusive of GST) should therefore be increased by $819.64 to $7,085.04.
DECISION
90.The Registrar’s determination of Mr Willis’ claim for costs in this matter, dated 24 January 2006, is amended in accordance with these reasons.
COSTS
91.Mr Willis’ solicitor seeks costs of the proceedings under Item 9.01 in the sum of $625.00 for preparing the Application for Assessment of Costs. No costs were allowed by the Delegate. He stated as follows:
“The Applicant has been largely unsuccessful. The claims of the Applicant show little understanding of the Schedule and the cases decided. The amount of material lodged by the Applicant in this Assessment (a process that can and is informal and simple) has delayed the process and caused additional costs. In the circumstances, the Applicant is not entitled to its costs of the assessment.”
92.I am inclined to agree with the Delegate’s views. In submissions on appeal, Mr Willis’ solicitor maintained that the amount allowed by the Delegate was significantly greater than that “offered” by Dumbi Bourke in its letter dated 2 June 2005. That assertion is incorrect. Whilst as I said earlier, the Delegate’s format of his determination was not particularly easy to follow, he did conclude with “total reductions” such that it is inappropriate for Mr Willis’ solicitor to suggest that “… It is impossible to work out what the Cost Assessor has allowed and whether this is substantially more than the amount that was offered by the Respondent.” Simple calculations by Mr Willis’ solicitor would demonstrate this.
93.Mr Willis’ solicitor submits that the Delegate: “… Has taken off Items which have been agreed between the parties and were not subject of any written submissions.” True, in “without prejudice” correspondence between the parties prior to the filing of the Application for Assessment of Costs some allowances appear to have been conceded by Dumbi Bourke. Nevertheless, that correspondence was in the context of achieving resolution of the cost dispute. In the absence of further correspondence by Mr Willis’ solicitor to the solicitors for Dumbi Bourke to attempt to at least narrow the Items in dispute, and given the nature of the “without prejudice” correspondence, it is inappropriate for Mr Willis’ solicitor to now maintain certain Items were agreed.
94.In all of the circumstances, I do not propose to interfere with the Delegate’s determination on the issue as to costs of the assessment.
95.As to costs of the appeal, Mr Willis’ solicitors have been partly successful, despite some Items being disallowed, and I am of the view that it is reasonable to order that Dumbi Bourke pay Mr Willis’ costs of the appeal in the sum of $275.00 inclusive of GST.
96.I therefore order that: “The Respondent Bourke Proclaimed Place Incorporated t/as Dumbi Bourke Proclaimed Place is to pay to the Appellant, Mr Willis, $275.00 inclusive of GST in respect of his costs of this appeal.”
Deborah Moore
Acting Deputy President
7 February 2007
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.
ASSOCIATE
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