Pursuant to subsection 13(7) of the Administrative Appeals Tribunal Regulations 2015 (Cth), the Tribunal determines that the amount of fees payable for compliance with the summons issued to Chromis Occupational Medicine on 19 September 2016 is $566.80 inclusive of GST.

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PRACTICE AND PROCEDURE - summons to third party to produce documents - amount of fees and allowances payable in relation to compliance with summons - reasonable expenses

Administrative Appeals Tribunal Act 1975 (Cth), ss 40A(1), 67(1)

Administrative Appeals Tribunal Regulations 2015 (Cth), ss 13(6), 13(7), 14(1)

Family Law Rules 2004 (Cth)

Federal Court Rules 2011 (Cth), r 24.22(2), sch 3

Workers Compensation Act 1987 (NSW), s 61(2)

X Pty Ltd and Ors & Merhi (No 2) [2015] FamCA 862

Administrative Appeals Tribunal Taxation of Costs Practice Direction; 30 June 2015

Workers Compensation (Medical Practitioner Fees) Order 2016; 2 December 2015

1. Trevor Bestt lodged an application for review of a decision of the Respondent to refuse his claim for compensation in respect of a work-related medical condition.
2. In the course of proceedings, the Respondent requested that the Tribunal issue a summons to Chromis Occupational Medicine for the production of all medical records and various other documents in its possession relating to the Applicant.
3. The summons, issued by the Tribunal on 19 September 2016 and returnable on 19 October 2016, was complied with by Chromis on 25 October 2016. When serving the summons, the Respondent provided a cheque in the amount of $30.00 to Chromis to cover its costs of copying and delivering the summoned documents to the Tribunal.
4. On 21 October 2016, Chromis issued the Respondent with a tax invoice in the amount of $1167.45 for producing 853 pages in response to the summons, consisting of $1139.95 in photocopying expenses and $27.50 for express postage. The Respondent considers $541.80 to be a fair and reasonable amount for Chromis' compliance with the summons and has remitted payment in that amount.
5. Chromis has been unable to reach agreement with the Respondent on the amount of fees or allowances payable for compliance with the summons and has requested the Tribunal determine its reasonable expenses for producing documents to the Tribunal in response to the summons.

1. The sole issue for determination by the Tribunal is Chromis' reasonable expenses for compliance with the summons to produce documents issued by the Tribunal on 19 September 2016 at the request of the Respondent.

1. Subsection 40A(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the Tribunal may summon a person to produce any document or other thing specified in a summons.
2. Subsection 67(1) of the Act provides that a person summoned to produce a document for the purposes of a proceeding before the Tribunal is to be paid any fee or allowance prescribed by the regulations.
3. Subsection 14(1) of the Regulations provides that the fees and allowances associated with compliance with a summons must be paid by the party that requested the summons be issued by the Tribunal.
4. Subsection 13(6) of the Regulations states:

...the allowances payable for a person who is summoned to produce something are the person's reasonable expenses of producing the thing.

1. Subsection 13(7) of the Regulations provides that a person summoned to produce something to the Tribunal at the request of a party to the proceeding, may apply to the Tribunal to have their reasonable expenses for complying with the summons determined in circumstances where a summoned party and the payer cannot reach agreement.
2. The Regulations do not define the term reasonable, nor do they prescribe the process for determining a summoned party's reasonable costs.
3. I therefore turn to the Tribunal's Taxation of Costs Practice Direction issued on 30 June 2015, which sets out the process for determining the amount of costs payable by one party to another party in a proceeding before the Tribunal, to determine Chromis' reasonable expenses of complying with the summons in this matter.
4. The Practice Direction applies in circumstances where the Tribunal has made an order that a party to a proceeding pay the costs incurred by another party, and provides that all reasonable and proper disbursements, including photocopying, may be payable. Similarly, the Practice Direction does not define the term reasonable.
5. Given neither the Regulations nor the Practice Direction define the term reasonable, the term must be given its ordinary meaning. The term reasonable is defined in the Macquarie Dictionary to mean not excessive and moderate, or moderate in price, while the Oxford English Dictionary includes the definition not extravagant or excessive and moderate.
6. This is consistent with the findings of the Family Court of Australia in X Pty Ltd and Ors & Merhi (No 2) [2015] FamCA 862, where the Family Court, when considering analogous provisions in the Family Law Rules 2004 (Cth), held that a witness required to produce documents in compliance with a subpoena was entitled to recover costs actually incurred in respect of that production, such as labour costs with a margin for additional statutory costs, but was not entitled to recover profit costs.
7. As the Practice Direction provides for professional costs to be determined using the Federal Court Rules 2011 (Cth), the Tribunal's usual practice is to also apply the Rules to determine the reasonable costs of compliance with a summons.
8. Order 24 rule 22(2) of the Rules provides that where the Court orders that a party pay the amount of any reasonable loss or expense incurred in complying with a subpoena, the Court must fix the amount in accordance with Court's usual procedure in relation to costs.
9. The Court's procedure in relation to costs, contained in Schedule 3 to the Rules, sets out the costs allowable for work done and services performed in connection with proceedings in the Court.

1. Chromis determined its costs for compliance in accordance with the Workers Compensation (Medical Practitioner Fees) Order 2016 issued by the NSW State Insurance Regulatory Authority ('SIRA') pursuant to subsection 61(2) of the Workers Compensation Act 1987 (NSW) on 2 December 2015.
2. The Order, which sets the maximum fees for which an employer is liable under the NSW Workers Compensation Act for treatment by a Medical Practitioner of a worker's work-related injury, provides that hard copies of medical records are to be charged at the rate of $37.00 for the first 33 pages and $1.35 per page thereafter, exclusive of GST.
3. As the Order relates specifically to fees payable to medical practitioners under the NSW Workers Compensation Act, it has no application to proceedings before the Tribunal and is therefore not relevant to the determination of the reasonable costs for compliance with a summons issued by the Tribunal.
4. The Respondent considered Chromis' reasonable costs for compliance with the summons to be $541.80, which included photocopying and postage charges. The Respondent's calculation was based on indications it had received from the Tribunal that $0.60 per page inclusive of GST was reasonable. That amount is consistent with the fee charged by the Tribunal to parties photocopying documents produced under summons at the Tribunal's registries.
5. Item 8 of Schedule 3 to the Rules deals with collation, pagination and indexing. The cost of collation, which includes collation for the purposes of copying, is to be determined either in accordance with Item 1.3 or at the discretion of the taxing officer. Item 1.3 provides that $11.00 may be claimed for each 6 minute unit of work.
6. On review of the documents produced by Chromis, and given their volume, I am satisfied that some collation, ordering or assembling of the documents was required prior to copying. I have determined a reasonable estimate of the time required for collating the relevant documents to be 30 minutes (or 5 x 6 minute unit) and therefore allowed $55.00 inclusive of GST under Item 8.
7. I am similarly satisfied that the documents were not paginated or indexed prior to production and accordingly no allowance will be made in respect of pagination and/or indexation.
8. Item 9 of Schedule 3 to the Rules provides that the costs allowable for the copying of documents is discretionary.
9. Having considered the manner in which each party calculated Chromis' costs of complying with the summons, I have determined $0.60 per page for the photocopying of documents to be reasonable for the purposes of subsections 13(6) and 13(7) of the Regulations. I find that amount to be moderate and neither excessive or extravagant, and a reasonable assessment of the copying costs actually incurred by Chromis.
10. I have therefore determined Chromis' reasonable costs of copying the documents for the purposes of Item 9 to be $511.80 inclusive of GST, being $0.60 x 853 pages.
11. Schedule 3 to the Rules does not provide a scale for costs associated with postage of documents. Item 20.3 in Schedule 3 provides that the charge for preparing documents at Item 2 is inclusive of postage. I find there to be minimal difference between preparing or collating documents for the purposes of postage. While not specifically applying to Item 8 and Item 9, I find Item 20.3 also applicable to the costs of collating and copying documents. I have therefore not allowed any further amount for postage.

1. In accordance with subsection 13(7) of the Administrative Appeals Tribunal Regulations 2015 (Cth), the Tribunal determines Chromis' reasonable expenses for complying with the summons to produce documents dated 19 June 2016 to be $566.80 inclusive of GST.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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