Woodbury v Peter Miles & Annie Miles
[2007] NSWWCCPD 59
•21 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Woodbury v Peter Miles & Annie Miles [2007] NSWWCCPD 59
APPELLANT: Evan John Woodbury
RESPONDENT: Peter Miles & Annie Miles
INSURER:Employers Mutual Indemnity Workers Compensation (NSW) Limited
FILE NUMBER: WCC5491-06 (Number 2)
DATE OF REGISTRAR’S DECISION: 21 September 2006
DATE OF APPEAL DECISION: 21 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s Assessment of Costs; two separate assessments in the same matter; various Items in Schedule 6 of the Workers Compensation Regulation 2003, and disbursements.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Moray & Agnew Solicitors
ORDERS MADE ON APPEAL: 1. The Delegate’s determination of
$2883.10 inclusive of GST is confirmed.
2.No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 17 October 2006 Evan John Woodbury (‘the Appellant’) filed an ‘Appeal Against a Cost Determination’ made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 21 September 2006. The Respondent to the appeal is Peter Miles and Annie Miles (‘the Respondent’).
For further details as to the background to this appeal, see Woodbury v Peter Miles and Annie Miles [2007] NSWWCCPD 58.
Briefly, this appeal relates to costs in relation to proceedings for weekly payments of compensation pursuant to the provisions of the Workers Compensation Act 1987 (the 1987 Act) being matter number WCC 2824-2004.
The Delegate’s determination was identified as matter number WCC 5491-2006(2).
Submissions by the Respondent on this appeal are contained within their submissions in matter No. 5491-2006(1), Woodbury v Peter Miles & Annie Miles [2007] NSWWCCPD 58
On 6 April 2006, the parties having failed to agree on costs payable in this matter, the Appellant’s solicitor filed an ‘Application for Assessment of Costs’ with the Commission in respect of his ‘Bill of Costs’ dated 3 April 2006. The Respondent filed submissions on 4 May 2006.
The Registrar delegated the Assessment of Costs to a Commission Arbitrator (‘the Delegate’) who made a determination dated 21 September 2006. The ‘Certificate of Determination’ stated as follows:
“1. Pursuant to the issue of an Amended Certificate of Determination on 16 September 2005 the Respondent employer is liable to pay the Applicant’s costs of the proceedings as agreed or assessed.
2. The Applicant’s costs of the proceedings are assessed at $2883.10 inclusive of GST.
3. There are no costs of the assessment.
4. The Respondent is to pay the amount of $2883.10 inclusive of GST to the Applicant if those costs have not already been paid.”
The relevant aspects of the Delegate’s ‘Statement of Reasons’ for his decision will be dealt with below.
ON THE PAPERS REVIEW
No submissions have been made by the Appellant on this issue. The Respondent submits that the matter is suitable for a determination ‘on the papers’.
I have before me the Commission files in both the substantive matter and the cost dispute together with the parties’ submissions on appeal.
Having carefully read this material, I am satisfied that I have sufficient information to proceed ‘on the papers’ in accordance with the provisions of section 354 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and Practice Direction No. 1, and that this is the appropriate course in the circumstances.
SUBMISSIONS, DISCUSSION AND FINDINGS
The Appellant 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.
The appellant submits that the Delegate erred in his assessment of Items 2.04, 4.08 and 9.01 of the Table. I will deal with each of these in turn.
Professional Costs
Item 2.04
This Item is described in the Table as: “obtaining and reviewing medical reports (other than where Item 1.01 applies)”. The Appellant claims $600.00 pursuant to this Item. The Delegate disallowed this claim stating that: “The maximum has been allowed in matter number 19007-2003 [Matter number 5491-2006(1) on appeal] and pursuant to Schedule 6 Clause 2 no further allowance can be made for this particular injury [sic]”.
The thrust of the Appellant’s submissions is that on 25 July 2003 an agreement was reached with the Respondent that it would pay to the Appellant weekly benefits from 13 December 2002 to date and continuing in accordance with section 40 of the 1987 Act. The Appellant then commenced a claim for lump sum entitlements on 5 December 2003 (Matter No. 19007-2003). It appears that in January 2004 the Respondent’s insurer then sought to discontinue weekly benefits, as a consequence of which the Appellant commenced fresh proceedings in the Commission for weekly benefits (Matter No. 2824-2004). In these circumstances, the Appellant’s solicitor submits that he then had to “review the medical reports and then commence a claim for weekly compensation, which was commenced on 11 February 2004.”
In Ball v Salvation Army (NSW) Property Trust [2005] NSWWCCC33, the delegate noted that the Items in the Table are “… not to be applied mechanically as costs are subject to an overriding test of fairness and reasonableness: Clause 110 of the Regulation.” In that case, whilst mathematically there may have been five reports, in substantive terms there were only two, and the delegate awarded costs of reviewing two reports.
Applying a test of fairness and reasonableness, I note that the Appellant was allowed the maximum under this Item in matter No. 19007-03. A claim for a further maximum amount in circumstances where the “obtaining and reviewing” of reports in respect of both claims took place within two months of each other is not, in my view, either fair or reasonable.
Accordingly, the Delegate’s decision is confirmed.
Item 4.08
The Appellant claims for two hours for preparing for a teleconference on that date. The Delegate disallowed this claim again stating that: “The maximum has been allowed in matter number 19007-2003 and pursuant to Schedule 6 Clause 2 no further allowance can be made for this particular injury [sic]”.
In submissions on appeal, the Appellant repeats his assertions relative to Item 2.04.
The issue however relative to this Item is not the number of claims but the actual preparation for a teleconference on the particular date. The maximum amount was allowed in matter number 19007-2003 and in the circumstances, cannot be claimed twice.
Accordingly, the Delegate’s decision in relation to this Item is confirmed.
Item 9.01
The Appellant’s solicitor submits that he is entitled to costs of the assessment. No order as to costs of the assessment was made by the Delegate who stated that:
“The Applicant is unsuccessful in this application as the Respondent offered (agreed) costs of $1871.00 (plus $187.10 GST) and disbursements of $825.00. The Applicant recovered costs of $1871.00 (plus $187.10 GST) and disbursements of $825.00 and in these circumstances there will be no Order for Costs.”
The Appellant submits that the Respondent’s “offer” was apparently made after he had commenced proceedings “… for the enforcement of costs and disbursements.”
The Appellant is correct. The Respondent’s “offer” was contained in its submissions to the Registrar filed on 4 May 2006 wherein the Respondent “conceded” various claims. However, it is not clear from the Appellant’s submissions whether any attempts had been made to resolve the Appellant’s claim for costs prior to the filing of the ‘Bill of Costs.’ It seems to me to be unlikely in circumstances where the Bill of Costs was dated 3 April 2006 and the Application for Assessment was filed on 6 April 2006.
The Delegate essentially adopted the submissions made by the Respondent in determining that the amount of costs and disbursements payable were as “conceded” by the Respondent.
Notwithstanding the Respondent’s submissions on appeal, the cost of a cost assessment is covered by Item 9.01. The amount allowed is to be determined relative to the amount involved in preparing the Application for Assessment (see Farnoosh v Macquarie University [2005] NSWWCCC20).
Clause 98(2)(b) of the 2003 Regulation provides that an application for assessment of costs may not be made until “ at least 30 days have passed since the bill of costs was given…” The Appellant appears to be in breach of this Clause, and in the absence of any submissions by the Appellant as to any attempts made to resolve the costs dispute, I do not consider that it is appropriate to allow a claim under this Item. Accordingly, I would confirm the Delegate’s decision.
DECISION
The Delegate’s determination of $2883.10 inclusive of GST is confirmed.
COSTS
The Appellant has been unsuccessful in this appeal and in those circumstances, I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
21 February 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.
ASSOCIATE
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