Reported Decision : 23 NSWCCR 118 Compensation Court of New South Wales CITATION : Subiaco Herbs Pty Ltd v Brady [2002] NSWCC 6 PARTIES : Subiaco Herbs Pty Ltd v Noeline Brady MATTER NUMBER(S) : 7045 of 1999 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 16/10/00 DATE OF JUDGMENT: 01/31/2002 FOR APPLICANT: Mr T Wardell instructed by Grahame Goldberg Partners appeared for the applicant employer. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr R Taylor instructed by McCabe Partners appeared for the respondent worker. JUDGMENT: 1. This is an application under s 208M(2) of the Legal Profession Act 1987 for leave to appeal against a determination of Mr M W Robinson, Costs Assessor, made on 12 July 2000. In the event that I grant leave to appeal, the parties were content that I proceed immediately to hear and determine the appeal pursuant to Compensation Court Rules Pt 5 r 22(1)(a). To that end, after having heard argument in open Court, I adjourned the matter to Chambers where, with the assistance of the legal representatives of the parties, I assessed the workers costs, as permitted by Compensation Court Rules Pt 5 r 21(7) and r 22(2). 2. There is no evidence before me that the application for leave to appeal was vested upon the proper officer of the Supreme Court, as required by Compensation Court Rules Pt 5 21 (2A) but no exception was taken by the respondent worker in that regard and I proceed on the basis that omnia praesumuntus rite esse acta. Background 3. On 2 May 1998, Noeline Winifred Brady ("the worker"), who was a general hand employed by Subiaco Herbs Pty Ltd ("the employer") at its herb farm, slipped and fell onto a concrete floor whilst trying to place a crate on the floor at the end of a conveyer belt. She sustained a number of injuries and was thereafter voluntarily paid weekly payments at all material times. The worker resides in Walcha, which is 93 kms east of Tamworth, if one follows the New England and Oxley Highways. At some time the worker consulted Messrs Gordon Garling Moffitt, Solicitors, of Young concerning a claim for lump sum compensation under ss 66 and 67 of the Workers Compensation Act 1987. The offices of that firm are at Young, which is approximately 600 kms south of Tamworth if one travels by Highways. On 12 January 1999, the worker instructed Messrs McCabe Partners, also of Young, to take over the conduct of the lump sum compensation claim. At the relevant time, Messrs McCabe Partners also had an office in the suburbs of Sydney. 4. The worker's solicitors arranged medical examinations for the worker and obtained medical reports and at some stage (probably 22 June 1999) a claim was "duly made" on the employer and its insurer. The insurer arranged for its own medical examinations of the worker, corresponding with her solicitors. On 12 October 1999, a request for conciliation was sent to the Workers Compensation Resolution service by the worker's solicitors. That Service arranged a Conciliation Conference to be held at Tamworth on 25 November 1999. The insurer arranged for Messrs Graham Goldberg Partners to represent the employer from this stage forward. At the Conciliation Conference, the parties commenced to negotiate a settlement of the worker's claim by way of commutation, but did not reach agreement on that day. After a number of telephone calls on a number of days, agreement was reached for a commutation settlement of $67,500, on 6 December 1999. 5. An application for determination was filed by the employer on 9 December 1999. That application was heard by Walker J on 14 December 1999. His Honour approved the commutation in the sum of $67,500 and made the usual costs order in favour of the worker. 6. It is common ground that the costs order made by his Honour extends to all the work done by the worker's solicitors in preparing her claim for lump sum compensation under ss 66 and 67 and in connection with the conciliation process (vide Workplace Injury Management and Workers Compensation Act 1998 s 112(7)(a) and (b)) as well as the costs of the application to this Court. 7. The employer's solicitors were able to agree on the amount of costs for work done by Messrs Gordon Garling Moffitt ($1,655) but were unsuccessful in reaching agreement with Messrs McCabe Partners. On 11 May 2000 that firm forwarded a Bill of Costs to the Supreme Court. Mr M W Robinson was appointed as the Costs Assessor. On 12 July 2000, he issued his Reasons for Determination of Costs and a Certificate. The amount allowed for the costs of providing legal services was $7,084.30 and the amount allowed for disbursements was $7,072.72 which, together with the fee for filing the Bill of Costs, amounted to $14,340.13. The costs of the Costs Assessor which are to be paid to the Supreme Court by the employer were certified at $634. Grounds advanced for the grant of leave (a) Work done by earlier solicitor 8. In his reasons the costs assessor said: I noted that there had been an earlier solicitor acting for the Costs Applicant prior to the work claimed in this bill, and that that solicitor had been paid the sum of $1,655 for his work. I considered that amount had no relevance to any claim in the bill to be assessed. 9. It is clear, however, that the worker gave instructions to her former solicitors to advise on and/or prepare a claim for lump sum compensation. The first item contained in the bill before the Assessor was "telephone attendance upon the applicant[;] obtained instructions to take over the matter. Subpoena Newcastle Hospital. Went through Dr Berry's percentages." The amount claimed was $48, under item 5(b) of the Schedule of Practitioners Costs. This item, in essence, duplicates the giving of instructions. On a solicitor client basis, such costs are recoverable, but I am unable to agree that they are recoverable on a party/party basis. Why should an employer pay twice for the giving of instructions, merely because the worker elects to change solicitor? Similarly items numbered 2 to 8 in the bill are all consequent upon the worker's decision to change her solicitor and are either (i) unnecessary on a party/party basis or (ii) represent a duplication of work previously done by the earlier solicitor. In my view the Assessor erred in principle in allowing such items. (b) Solicitor from afar 10. Here, the worker retained a solicitor whose practice was based some 693 kms from her home at Walcha. The closest city to her home, where she could expect to retain a solicitor skilled in personal injury litigation was Tamworth, some 93 kms from her home. She chose a solicitor not in any major centre such as Tamworth, Armidale, Newcastle, Sydney, Orange or Dubbo, but one in the town of Young. There is no ready access between Walcha and Young. To attend at the Conciliation Conference, the worker's solicitor did the following: 25 Nov 99 Left Young at 4.30am and drove to Canberra arriving at 6.30am. Waited 30 mins at Canberra Airport. 7am. Flew by plane to Sydney arriving at 8am. Flight to Tamworth arriving at 11am. After the Conference (11am to 12 noon), wait at Tamworth Airport for 1hr 30 mins. 2pm Flew from Tamworth to Sydney, thence another flight, arriving at Young at 7pm. The solicitor's disbursements for this trip were $901. He also claimed travelling time for 13 hrs. The worker's solicitor also travelled to Sydney for the hearing of the commutation application. He claimed $543 in disbursements and travelling time for 10 hours. 11. Whilst these claims reflect the dedication of the worker's solicitor to his vocation and to his client, they appear to have been the major bone of contention between the parties on the question of costs. 12. Mr Robinson said this: Although the Costs Respondent made no response to my notice requesting submissions, it was clear from its solicitor's letter dated 10 March 2000 that the main matter of dispute were the claims for solicitor's travel to Tamworth for a conciliation conference and, the matter having been settled at the Conference, the claim for travel to Sydney for what appeared to be a simple commutation. I accepted the submission made in the bill regarding the reasonableness of the solicitor [sic] travelling to Tamworth for the conciliation conference, but I could not accept the reasonableness of his costs of travelling to Sydney for the commutation hearing. 13. The Assessor did, however, reduce the claim made for 25 November 1999. He thought it unreasonable to allow 15 hours on one day, 13 of which were for travelling. He reduced the total claimed to 10 hours. 14. The determination of whether costs are necessary and proper is a question of fact: Wentworth v Wentworth (unreported, CA, 21 February 1996) per Clarke JA at 23. The onus lies on the party bringing in the bill and claiming the costs: ibid at 21. A party has a right to retain a solicitor of his or her choice but excessive travelling costs incurred where the solicitor practised a long way from the Court may not be recoverable on a party and party basis: ibid at 23. 15. Clearly the worker's solicitor lived a long way from his client and a long way from the nearest large centre where one might expect a Conciliation Conference to be held and which this Court would consider the appropriate venue for hearing on circuit. The applicant's solicitor also lived a long way from Sydney, where one would expect the hearing of a commutation application to be held at short notice, before the end of Term. However, it is only the costs of the worker's solicitor travelling to Tamworth which are now in issue. The Assessor, rightly in my view, taking the view that, Counsel having been retained for the commutation hearing, it was appropriate only to allow a solicitor travelling from the Sydney office of the worker's solicitor to attend upon Counsel to instruct. 16. One matter which must be borne in mind, in this regard, is that for 75 years this Court and its predecessor, the Workers Compensation Commission of New South Wales (which ought not be confused with a more recent creation) have allowed the costs of a country worker retaining a Sydney firm (often appointed by his or her Trade Union) and of that solicitor's travelling on circuit to the venue closest to the worker. The problem in the current matter is the unfortunately poor travel links between Young and other places in the State, causing an increased amount of disbursements and of travelling time. A solicitor who chooses to conduct a Statewide practice from a centre such as Young is in jeopardy of having his claims reduced because of excessive travel. It appears to me that in a straightforward matter costs ought only be allowed for travel from a major centre, such as Sydney or Dubbo or Orange. If this were a straightforward case, it seems to me that one only ought allow travel from the worker's solicitor's Sydney office, rather than from his main office in Young. 17. The Assessor allowed otherwise because of "submissions made in the bill regarding the reasonableness of the solicitor [sic] travelling to Tamworth." That is a question of fact with which a Court, on a costs appeal, is reluctant to interfere. The submissions put to the Assessor do, in my view, indicate that this was not a straightforward matter. The relevant considerations were: (i) the worker was being treated by a consultant psychiatrist, indicating that her case had to be approached with sympathy, empathy and delicacy; (ii) the worker herself requested that her own solicitor be present, in order that the matter might have a "chance of settling"; (iii) a partner of the employer's solicitor's firm attended at the conference and the worker's solicitor went on to say: "I believe the matter settled because the applicant's lawyer and the respondent's lawyer were both present and they could evaluate the strengths and weaknesses of their respective cases. This could not have occurred if the applicant or respondent had instructed another law firm to appear as their agents." 18. Accordingly, in this particular case, I would not grant leave to appeal on this ground. (c) The rate allowed for travel on 25 November 1999 19. As I have already stated, the Assessor allowed the worker's solicitor 10 hrs on 25 November. The solicitor had claimed 15 hrs, 13 hrs for travel, one hour for a conference with the worker and one hour for attending at the conciliation conference. The assessor reduced the claim for travel to 8 hours. He allowed each of those hours at the rate of $200. The employer contends that in doing so he erred in law and ought only have allowed travelling time at the rate of $140 per hour pursuant to the Legal Profession Regulation 1994, Pt 7, Div 2, cl 23A; Schedule 2, item 8(a). The last mentioned schedule is the "scale" appropriate for most solicitor's work in this jurisdiction. 20. Workers Compensation Regulation 51B fixes the maximum amount payable to a legal practitioner or agent as costs for certain legal services or agent services. The relevant provisions in the Regulation are currently: (a) assistance with any preconciliation telephone discussion and preparation and lodgment of a request for conciliation (including any appropriate attachments) - $220 (b) preparation for, attendance at and participation at a conciliation conference, for each hour or any part of any hour - $220. It appears that, at the relevant time, the rates above quoted were $200. 21. The question is, does reg 51B apply to travelling to and from a conciliation conference? In my view it does not. "Travelling" is not in my view covered either by "preparation", "attendance" or "participation". Attendance is an act of being at a place, not of moving to it. If I may paraphrase Meagher JA, the regulation means what is says and does not mean what it does not say. I accept the submission of the employer that the Assessor erred in law in allowing $200 per hour for travel, rather than $140. A contention of the worker 22. Mr Taylor of Counsel, for the worker, argued vigorously that the Assessor had erred in reducing the worker's solicitor's travelling time on 25 November 1999 from 13 hours to 8 hours and that I ought allow 13 hours at $140 per hour. I was at first minded to adopt that course, but three things stand in its way: (i) the worker did not herself seek such leave to appeal or file any document that could be seen as some form of cross-application; (ii) the Assessor exercise his discretion as to what he believed to be reasonable in the circumstances, and a Court is always reluctant to interfere with the ? of a Costs Assessor; and (iii) whilst only the naïve believe that solicitors practising in personal injury litigation work for 7 hours each day (9am to 1pm and 2pm to 5pm), it is hard to accept, in the absence of evidence, that solicitors regularly work 13 hours per day. The Assessor accepted 10 hours per day and I am unable to disagree with him. Leave to appeal ought be granted 23. I accept the employer's submissions on the first and third grounds advanced. Where an Assessor had applied in one area a wrong principle and in another area has erred in law, leave to Appeal ought be granted, and I do so. The Appeal 24. As I indicated at the commencement of these reasons, after hearing argument as to whether leave to appeal ought be granted, I adjourned to Chambers where, with the assistance of the legal representatives I proceeded to assess the worker's costs. I indicated at that time that I would allow costs in the sum of $10,898.56 subject to any mathematical error, but I now reduce that because of my decision to reject the oral contention of the worker on the question of travel time. I have caused the copy of the bill which I used to be marked "X" for identification, and it will be left with the papers. Some mathematical errors were identified on my second visit to the bill. I pray that none remain. 25. The total professional costs which I allow are $5,287, of which $800 represents WCRS costs, not effected by the 10% reduction required by the Legal Profession Regulation 23A(B). The balance, when reduced by 10%, comes to $4,039 so that total professional costs amount to $4,839. I allow disbursements of $5,823.56, so that the total of costs and disbursements is $10,662.56. Further matters 26. This matter was argued before the decision of the Court of Appeal in A Goninan & Co Pty Ltd v Gill (2001) 21 NSWCCR 552 which directly affects the question of costs of this application. The worker claimed a total of $18,310.72, the Assessor allowed $14,340.13 and, on appeal, I have allowed $10,662.56. 27. Nothing has been put to me as to the effect of my decision on the order that the employer pay the Costs Assessor's costs to the Supreme Court. On these two matters I grant liberty to apply. Orders 1. Leave to appeal granted. 2. Appeal allowed. 3. I assess the worker's costs in the total sum of $10,662.56. 4. Liberty to apply. Mr T Wardell instructed by Grahame Goldberg Partners appeared for the applicant employer. Mr R Taylor instructed by McCabe Partners appeared for the respondent worker. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.