Bushell v Alcan Australia Ltd [1997] NSWCC 2; (1997) 14 NSWCCR 243 (4 February 1997)

[1997] NSWCC 2; (1997) 14 NSWCCR 243

BUSHELL v. ALCAN AUSTRALIA LTD

Compensation Court of New South Wales: Neilson J

4 FEBRUARY 1997

COSTS - APPEAL FROM COST ASSESSOR'S DECISION - WHETHER AUDIOMETRIC TESTING FEE AN ALLOWABLE DISBURSEMENT - MUST BE EVIDENCE OF MEDICAL EXPERTISE - WHETHER FEE WAS A DISBURSEMENT IN THE LITIGATION - "TAXATION" APPROACH TO AN APPLICATION FOR LEAVE TO APPEAL - LEGAL PROFESSION ACT 1987, SECTION 208M

K.S. FOSTER (SOLICITOR), for the applicant

B.R. O'BRIEN (CLERK), for the respondent

EX TEMPORE

NEILSON J: This is an application by Alcan Australia for leave to appeal pursuant to the Legal Profession Act 1987, section 208M from a decision of Mr Gordon Salier, solicitor, a costs assessor.

The worker's claim was for lump sum compensation under section 66 for industrial deafness. The chronology of the matter is as follows.

On 2 February 1995 the worker attended upon Australian Industrial Hearing Services Pty Ltd and filled in a questionnaire. Someone at that company then appears to have carried out audiometric testing and ascertained a binaural hearing loss of 10.2 per cent.

According to the terms of settlement eventually filed in the proceedings the deemed date of injury, which is the date on which the worker made his claim for lump sum compensation for industrial deafness, was on 4 April 1995.

The application for determination was issued on 11 May 1995 and terms of settlement were eventually filed by the parties on 4 August 1995 and the Registrar entered up an award in accordance with those terms of settlement. The award was for lump sum compensation of $1,599.45 in respect of 10.12 per cent binaural loss of hearing, together with a further lump sum of modest proportion, representing an amount for interest.

The employer also agreed to pay the worker's costs.

The worker claimed from the employer costs in the sum total of $2,242.30. The employer offered to pay the sum of $920 for costs. There were some negotiations between the parties but those negotiations were unsuccessful and eventually the worker applied for his costs to be assessed under the Legal Profession Act 1987.

Mr Salier eventually assessed the applicant's costs as being $2,084.30. However, those costs included a filing fee of $100 and the assessor's costs of $525, so that the amount actually allowed for costs and disbursements prior to the matter reaching the costs assessor was $1,459.30.

The employer who seeks leave to appeal raises essentially two issues. The first is that an amount of $300 was claimed for the audiometric testing carried out by Australian Industrial Hearing Services Pty Ltd on 2 February 1995.

The costs assessor, of course, did not give any reasons for his decision, nor did he break up the costs so that one could ascertain what he allowed for profit costs and what he allowed for disbursements. It may be that the costs assessor did not allow the $300 claimed for Australian Industrial Hearing Services Pty Ltd or it may be that he did. No one knows.

The other major submission by the employer was that the costs were excessive, but in the alternative the employer seeks some guidance from the Court because of the multiplicity of cases of this nature.

I shall deal firstly with the claimed disbursement of $300 for Australian Industrial Hearing Services Pty Ltd. The amount of $300 claimed is by a company. Whoever carried out the audiometric testing is undisclosed. The disbursement could only be allowed if the person who made the document were a medical expert. There is not a scintilla of evidence that the person who made the audiometric test was a medical expert.

When one looks at the letterhead of the Australian Industrial Hearing Services Pty Ltd it shows that they are "Union Approved" and that they carry out "on site testing, noise level surveys," and that they have "mobile vans." No qualifications are shown for the company or any of its directors or servants, and a letter from the company dated 8 September 1995 has been exhibited which shows the signature of the manager, Mr Andrew Holgate, but does not indicate whether he has any expert qualifications or not.

On that basis alone, the amount claimed by Australian Industrial Hearing Services Pty Ltd, ought not be allowed because of lack of evidence as to any medical expertise. Even if the audiogram was compiled by a qualified audiologist, it appears to me that, in any event, it is not a disbursement in regard to this litigation. As I have already indicated, the testing was done on 2 February 1995 and deemed date of injury was 4 April 1995 and the proceedings were not commenced until 11 May 1995. In such circumstances, there is no way that the amount could be seen as a disbursement in regard to this litigation and it was frankly conceded to be the case by the worker's solicitor.

Therefore, on that basis the amount ought not be allowed. Even if I were to assume that the report was made by a qualified audiologist and that it were a properly incurred disbursement, another problem then arises. It is common for expert ear, nose and throat surgeons to carry out, or have carried out on their behalf, audiometric testing which becomes part of their fee. This happened in this case. The applicant's solicitors qualified Dr Joseph Scoppa, an expert ear, nose and throat surgeon, who arranged for audiology to be carried out by G & G Audiology Services, of which Dr Scoppa himself is a consultant, and which provides a qualified audiologist and a biomedical engineer, although I assume that there was no need for a biomedical engineer in the current case.

In any event, Dr Scoppa charged only $400 for, firstly, the audiology, secondly, his examination of the applicant and thirdly, the preparation of his report. One would have thought that of the $400 he claimed, only a small part would be referable to the actual audiometric testing by the audiologist. Therefore, it appears to me that the amount claimed by Australian Industrial Hearing Services Pty Ltd was excessive in the circumstances and if it were a properly incurred disbursement, it appears to me that no more than $100 ought be allowed.

Often it is easier in cases of this nature to conduct a "taxation" of the bill, than to listen to argument and read affidavit opinions of experts and submissions from experienced practitioners on the matter. With the assistance of the representatives for the parties, I proceeded to conduct a "taxation" of the applicant's bill of costs in chambers. I eventually came to the view that the applicant's costs and disbursements ought to have been allowed in the sum of $1,556.30, which of course is slightly greater than the $1,459.30 which the cost assessor allowed for the applicant's costs, prior to the addition of the cost assessor's disbursements and the filing fee.

Therefore, looking at the total amount allowed by the cost assessor, it is quite reasonable, in fact, it is about $100 less than would have been allowed if the matter had proceeded to taxation before a taxing officer under the old regime of costs. On one view of it, I should grant leave to appeal, because of the dispute about the disbursement of Australian Industrial Hearing Services Pty Ltd. However, even when that is taken into account and the amount of $300 is not allowed, I still brought in the applicant's costs at a sum slightly greater than was allowed in by the cost assessor. Therefore, in my view, the leave to appeal ought not be granted, as the granting of such leave would be futile.

As these reasons for judgment may be of assistance to the parties in future cases, I should indicate that, although the applicant's total profit costs on my assessment amounted to $1,130, the amount I allowed for "skill care and responsibility" was at $325. For those reasons, I dismiss the applicant employer's claim for leave to appeal, pursuant to section 208M of the Legal Profession Act 1987. I order the employer to pay the worker's cost of this application, which I shall now proceed to assess.

FURTHER SUBMISSIONS

I order the applicant employer to pay the respondent worker's costs of this application for leave to appeal, which I assess in the sum of $500.

LEAVE TO APPEAL REFUSED

Solicitors for the applicant: MCCLELLANDS

Solicitors for the respondent: PW TURK & ASSOCIATES