Glenn William Parker v Select Civil Pty Limited

1. [1]

   HER HONOUR: This is a judicial review from a decision of the Medical Appeal Panel of the Workers Compensation Commission.

2. [2]

   The plaintiff is Glenn William Parker. The first defendant is Select Civil Pty Limited (“Select Civil”). The second defendant is the Workers Compensation Commission of New South Wales. The third defendant is the Medical Appeal Panel of the Workers Compensation Commission of New South Wales comprised of Jane Peacock, Drs Julian Parmegiani and Robert Gertler (“the Appeal Panel”). Both the second and third defendants have filed submitting appearances.

3. [3]

   The plaintiff relied upon the affidavit of Michael Dean Jones filed 13 July 2017. Mr Parker and Select Civil also relied upon the court book filed 19 September 2017.

4. [4]

   By amended summons filed 7 September 2017, Mr Parker seeks firstly, an order in the nature of certiorari or, alternatively a declaration, setting aside or declaring invalid the whole of the decision of the third defendant purportedly made under the Workplace Injury Management & Workers Compensation Act 1998 (NSW) dated 18 April 2017 (“the decision”); and secondly, an order in the nature of mandamus remitting the matter to the second defendant for the purpose of constituting a differently constituted medical appeal panel to determine the matter according to law.

Background

1. [5]

   On 10 April 2014, the plaintiff suffered psychological injury in the course of his employment with Select Civil. He was sitting in and operating a long reach excavator on or near the bank of a river. The river bank gave way behind him causing the excavator to sink into the river. The cabin began to fill with water and he thought he would die. Fortuitously, he noticed a hammer, smashed the windscreen, untangled himself from cables, and swam out onto the rocks (Aff, Jones 13/7/2017, 216). Select Civil accepted liability to pay compensation to the plaintiff under the Workers Compensation Act 1987 (NSW).

2. [6]

   One of the plaintiff’s Workers Compensation Act entitlements is for a lump sum in respect of a whole person impairment (“WPI”) pursuant to s 66 of the Workers Compensation Act. There is a dispute between the parties as to the level of WPI. On 11 April 2016, the plaintiff lodged an application to resolve a dispute in the Workers Compensation Commission. That led to him being assessed by an approved medical specialist (“AMS”) under s 325 of the Workplace Injury Management & Workers Compensation Act. On 12 October 2016, the AMS issued a medical assessment certificate (“MAC”) assessing the plaintiff as having a 22% WPI. (Aff, Jones 13/7/2017, 215-225).

3. [7]

   Select Civil appealed against the decision of the AMS pursuant to s 327 Workplace Injury Management & Workers Compensation Act. On 18 April 2017, the Appeal Panel determined that it would revoke the MAC and issue a new certificate pursuant to s 328(5) the Workplace Injury Management & Workers Compensation Act determining that the plaintiff carried a 9% WPI (Aff, Jones 13/7/2017, 244-252). It is the decision of the Appeal Panel that forms the basis of this judicial review.

4. [8]

   It should be noted that no s 66 compensation is payable in respect of psychological injury unless the degree of WPI is at least 15%: s 65A(3) Workers Compensation Act.

The Statutory Scheme

1. [9]

   I shall briefly outline the relevant provisions of the Workplace Injury Management & Workers Compensation Act here.

2. [10]

   Chapter 7, Part 7 of the Workplace Injury Management & Workers Compensation Act provides for medical assessment, including the assessment of the degree of WPI, by an AMS and, by way of review, appeal panels. The scheme was designed to take the function of assessment of injury out of the adversary court system: see Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 at [1] per Basten JA.

3. [11]

   Approved medical specialists are appointed under s 321 of the Workplace Injury Management & Workers Compensation Act to deal with medical disputes, which are in s 319 defined to mean:

4. [12]

   Section 322(1) reads:

5. [13]

   Appeals against medical assessments are governed by ss 327 and 328 of the Workplace Injury Management & Workers Compensation Act.

6. [14]

   Section 327(3) relevantly reads:

7. [15]

   Section 328(2) confines the grounds of appeal which an Appeal Panel may consider, to those pursued by the appellant. Here the Appeal Panel is confined to whether the assessment was made on the basis of incorrect criteria or there is a demonstrable error.

8. [16]

   Section 331 of the Workplace Injury Management & Workers Compensation Act required the Appeal Panel to apply the Guidelines in conducting its review. Section 331 reads:

The Guidelines

1. [17]

   The parties referred to a number of relevant provisions in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, 1 April 2016) (“the Guidelines”).

2. [18]

   The AMS was obliged to undertake his assessment of Mr Parker in accordance with clauses 1.6 and 11.6, 11.11 and 11.12 of the Guidelines. Clause 1.6 provides that:

Psychiatric Impairment Rating Scale (PIRS)

1. [19]

   So far as the PIRS rating scale is concerned, in Ferguson v State of New South Wales & Ors [2017] NSWSC 887 (“Ferguson”), Campbell J explained at [14]:

2. [20]

   Table 11.1 sets out relevant class descriptors for “Self Care and Personal Hygiene”. Classes 1 and 2 are as follows:

The decision of the AMS dated 30 September 2016

1. [21]

   The matter was referred to AMS Dr Ash Takyar, psychiatrist. On 12 October 2016, the AMS provided written reasons and assessed Mr Parker as PIRS Class 3 for the category self care and personal hygiene.

2. [22]

   On 30 September 2016, the AMS took a brief history relating to the injury, detailed Mr Parker’s present symptoms and treatment, general health, social activities, set out his findings on mental state examination, provided a summary of his injuries and diagnoses and finally summarised the medical reports and psychological assessment report where the AMS noted Mr Parker had undergone 43 sessions of psychological treatment. The AMS at recorded his findings on the mental state examination as follows at [5]:

3. [23]

   I have not set out the AMS findings in relation to social activities/ADLs here as they appear in the Appeal Panel’s decision at [23] reproduced later in this judgment.

4. [24]

   In assessing Class 3 for self care and personal hygiene, the AMS stated at page 10:

5. [25]

   The AMS also commented that the history that Mr Parker related to him was consistent with his mental state and general presentation. As previously stated, the AMS issued a MAC assessing Mr Parker as having a 22% WPI. The WPI was calculated with a median class of 3 and an aggregate of 18 is 22% WPI.

Select Civil’s submissions to the Registrar and Appeal Panel

1. [26]

   While Select Civil submitted that there had been a misapplication of the assessment criteria under the PIRS rating scale for both “Self Care and Personal Hygiene” and “Concentration, Persistence and Pace” categories, the Appeal Panel did not discern any error in the AMS’s assessment of Class 4 for Concentration, Persistence and Pace, so it plays no part of this judicial review.

2. [27]

   At paragraphs 3.6 to 3.11 Select Civil submitted:

3. [28]

   It seems that Select Civil is relying on two grounds of appeal as incorrect criteria referred to in the heading and demonstrable error which is referred to in the last sentence of the submissions.

Mr Parker’s submissions to the Registrar and Appeal Panel

1. [29]

   Mr Parker contended that there was an abundance of evidence to suggest that his impairment for self care and personal hygiene should be assessed at Class 3. For example, evidence suggested that he often skipped meals, eating only one meal per day. Prior to his accident he had cooked all the time. Since the accident he now only cooks twice per week. As a part of his treatment regime he was also encouraged to perform two to three activities per day. However, his energy levels were minimal, rated at 10-25% of baseline.

2. [30]

   Further, Mr Parker submitted that he had tried to keep up with household chores because he lives alone and has no wife or children to support or look after him. Nevertheless, he required prompting from his landlord when the house became messy. He also needed to be prompted to clean the rental property at a minimal level in order to have a place to live.

3. [31]

   Finally, Mr Parker submitted that he relied on assistance from his older brother, who has helped Mr Parker to set up direct debits for most of his bills. His brother also drove him to medical consultations.

The Registrar’s decision

1. [32]

   Select Civil claimed that the medical assessment by the AMS should be reviewed on two grounds. They are that the assessment was made on the basis of incorrect criteria (s 327(3)(c)) or the MAC contains a demonstrable error (s 327(3)(d)). The Registrar was satisfied that at least one of the grounds of appeal was made out in accordance with s 327(4) of the Workplace Injury Management & Workers Compensation Act and referred the appeal to the Appeal Panel for review of the AMS assessment.

Incorrect criteria and demonstrable error

1. [33]

   In terms of what is to be determined as “incorrect criteria” the Minister for Police, who moved the second reading of the Bill (NSW Legislative Assembly, Hansard, 19 June 2001, p 14772) indicated that:

2. [34]

   In Campbelltown City Council v Vegan [2004] NSWSC 1129, Wood CJ at CL adopted the above passage. At [59] his Honour stated:

3. [35]

   As to what is meant by “demonstrable error” has been discussed in cases such as Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939, where Hoeben J said at [39]:

The decision of the Appeal Panel dated 18 April 2017

1. [36]

   The Appeal Panel was comprised of Jane Peacock, arbitrator and Drs Julian Parmegiana and Robert Gertler both psychiatrists. The Appeal Panel conducted a preliminary review. Neither party had requested that the Appeal Panel examine Mr Parker and agreed that the appeal be determined without an assessment hearing. ([7]-[8]).

2. [37]

   At this preliminary review, the Appeal Panel determined that it was not necessary for Mr Parker to undergo a further medical examination as there was sufficient evidence before it to make a determination. The Appeal Panel acknowledged that it had before it all documents that were sent to the AMS for the original assessment and it had taken them into account in making its determination. (at [9]).

3. [38]

   The Appeal Panel in its reasons for decision dated 24 April 2017 at [18]-[27] stated:

4. [39]

   The Appeal Panel revoked the MAC issued by the AMS and issued a new MAC assessing the plaintiff as having a 9% WPI.

Grounds of Judicial Review

1. [40]

   There are numerous and overlapping grounds of appeal. The main grounds of judicial review can be summarised as follows:

   1. (1)

      The Appeal Panel conducted their own review of material and substituted their own opinion for that of the AMS without identifying a real error or without conducting their own clinical assessment or examination of Mr Parker. (failure to identify error). (Ground 6)

   2. (2)

      The Appeal Panel failed to provide no or no adequate reasons including failing to have regard for key principles which were relevant to its conclusion. (failure to provide adequate reasons). (Grounds 6A, 7, 8 and 9).

   3. (3)

      The Appeal Panel erred in applying the criteria under the guidelines, by taking into account only selective aspects of the history. (failure to have regard to relevant considerations, Wednesbury unreasonableness and jurisdictional errors). (Grounds 9, 10 and 11).

2. [41]

   I adopt the approach that I should read the Appeal Panel’s reasons for decision as a whole and should not read its reasons with an eye finely tuned for error: McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 (at [67]) per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (at 291). As to what constitutes sufficient reasons of a Tribunal member (and Appeal Panel) is set out in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 40; [2013] HCA 43; 88 ALJR 52 at [47], 55]-56].

Failure to identify an error (Ground 6)

1. [42]

   The first ground of review is that the Appeal Panel conducted their own review of material and substituted their own opinion for that of the AMS without identifying a real error or without conducting their own clinical assessment or examination of Mr Parker.

Submissions on failure to identify error

1. [43]

   Mr Parker referred to Versace v Australia Best Tyres Auto Pty Ltd [2016] NSWSC 1540, per Schmidt J (“Versace”). which involved the application of the PIRS category of concentration, persistence and pace. In Versace Schmidt J stated at [39], [63], [65], [84] and [85]:

2. [44]

   Select Civil seeks to distinguish Versace in a number of ways. Firstly that the relevant class of descriptors for self care and personal hygiene depended on factors self reported by Mr Parker rather than observable clinical judgments on the day of the relevant examination; secondly, the Appeal Panel in Versace proceeded to conduct a review of the material before it reached its own conclusion concerning the correct assessment and that was contrary to the approach prescribed in s 328(2) and led to Schmidt J’s conclusion that the Appeal Panel had erred. [42].

3. [45]

   What is clear is that as in Versace, the Appeal Panel in this current judicial review did not receive any new evidence. The Appeal Panel’s role on the appeal was not that of a AMS but to deal with and correct alleged error/s raised by the appeal. The Appeal Panel could not substitute its own view for that of the AMS, absent a finding of error of the kind alleged on the appeal.

4. [46]

   Mr Parker submitted that in this current judicial review there is critical failure at [27] of the Appeal Panel decision where the Appeal Panel wrongly considered that the AMS erred in assessing Class 3 by saying that “The Panel considers that the AMS has erred in assessing Class 3 because on the proper application of the criteria an assessment of class 2 - mild impairment - is the more appropriate one on the history taken by the AMS and the available evidence.”

5. [47]

   According to counsel for Mr Parker, the Appeal Panel’s view that “the AMS has erred” was itself erroneous because it did not identify a real error despite purporting to do so. In effect, it came to a finding that its “application of the criteria” led it to a different conclusion namely that Class 2 is a more appropriate category. Mr Parker submitted that the Appeal Panel did not express a view, let alone make the necessary finding and it was open to the AMS to find a Class 3 impairment. The closest it came to expressing such a view or finding is at [25] when it stated:

6. [48]

   Select Civil submitted that, the Appeal Panel accurately summarised the distinguishing features between Classes 2 and 3 ([22]), and as such it was clear that they had those matters in mind in the subsequent paragraphs. Select Civil then argued that the Appeal Panel by saying Mr Parker was primarily able to live independently, implicitly meant that this was without regular support, because the notion of living independently means without regular support.

7. [49]

   Select Civil asserted that the Appeal Panel explicitly found that the “incorrect criteria” and “demonstrable error” grounds advanced by it on appeal had been made out. This is because of the Appeal Panel’s discussion at [23] of the history taken by the AMS and its discussion of Dr Canaris’ conclusions at [26] indicates that the Appeal Panel had regard to a range of examples of activities in reaching its conclusion. Further, when [25] to [27] of the Appeal Panel’s reason are read fairly and in context, the clear import of the findings at [25] is that a Class 2 rating was the only rating available on the evidence and the history recorded by the AMS.

8. [50]

   Mr Parker submitted that the Appeal Panel has merely gone so far as to express a view and find that the history is “consistent with” the criteria for a Class 2 impairment and that a Class 2 impairment is “more” appropriate. According to Mr Parker this reflects a mere “difference of opinion”. He referred to Ferguson v State of NSW & Ors [2017] NSWSC 887 (“Ferguson”) at [24] where the Appeal Panel demonstrated it understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense. According to Mr Parker this has not been shown by the Appeal Panel.

9. [51]

   Select Civil responded by saying that references to “mere differences of opinion” distract from the live issue of whether the Appeal Panel correctly discharged its review function pursuant to s 328(2), read in line with s 327(3).

10. [52]

    Further, Mr Parker, submitted because “the history ...and …evidence” is consistent with Class 2 does not mean it is not also consistent with a Class 3 impairment. To the extent that it may be said, in opposition, that the Appeal Panel is implicitly saying “the history taken and…evidence” is inconsistent with Class 3, this argument is weakened when the words “more appropriate” (Aff, Jones 13/7/2017, 248) are read in the context of the word “consistent” (Aff, Jones 13/7/2-17, 247).

11. [53]

    Select Civil conceded that it may be true that read in isolation, the words “more appropriate” could be understood to mean that the Appeal Panel was saying that both Class 2 and 3 impairment were open but that they simply preferred one to the other.

12. [54]

    Select Civil then drew attention to Classes 2 and 3 of the Guidelines in order to demonstrate that it was plain from these criteria that the distinction between the Classes turned on Mr Parker’s capacity to live independently. Therefore, in finding that the history and evidence were consistent with Class 2 “because the worker is primarily able to live independently” the Appeal Panel identified why Class 2 had to be applied to the exclusion of Class 3. In doing so the Appeal Panel was expressing the conclusion that the AMS had erred by applying the wrong criterion and it then corrected that error.

13. [55]

    Mr Parker also submitted that the Appeal Panel has not alluded to the possibility of differing clinical judgments being available on the day of the assessment in relation to the self care and personal hygiene category.

14. [56]

    In summary, Mr Parker asserted that the Appeal Panel’s decision contains no indication that relevant principles in conducting assessments under the Guidelines have been taken into account or understood. Mr Parker says that:

    1. (1)

       The PIRS category descriptors are only examples and are not prescriptive.

    2. (2)

       The clinical assessment of the assessor on the day of the assessment is very important.

    3. (3)

       The assessor is required to exercise clinical judgment.

    4. (4)

       Differing clinical judgments may have been available on the day of the assessment.

    5. (5)

       The phrase “class descriptors” in clause 11.12 of the Guidelines refer to the initial words in each class in Table 11.1, eg, each class commences with a description of the levels of impairment falling within that class. The nomination by an AMS of a number is sufficient to show what he or she considered to be the level of impairment after taking everything into account and exercising clinical judgment. The remaining content are only examples that might support the particular class descriptor: Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 (“Jenkins”) at [49]-[50] and [54]-[65].

15. [57]

    On the bases above, Mr Parker contended that the Appeal Panel has committed jurisdictional error because it proceeded to conduct its own review, on the papers, without properly identifying error by the AMS. Alternatively, it constructively failed to exercise its jurisdiction by failing to arrive at a proper finding of error within the meaning of s 328 Workplace Injury Management & Workers Compensation Act.

16. [58]

    In response, Select Civil submitted that Mr Parker’s complaint regarding the Appeal Panel’s alleged failure to allude to the possibility of differing clinical judgments being available on the day of assessment is without basis and referred to paragraphs [8] and [9] of the Appeal Panel’s reasons that are reproduced earlier in this judgment. According to Select Civil this was unsurprising given the circumstances, where the relevant class descriptors for “Self Care and Personal Hygiene” depended entirely upon objective factors self reported by Mr Parker, rather than observable clinical judgments on the day of the relevant examination.

17. [59]

    Select Civil also submitted that it was not impermissible or inappropriate for the Appeal Panel to give decisive weight to the plaintiff’s capacity to live independently in reaching its conclusion on “Self Care and Personal Hygiene” and to the contrary, under the Guidelines that concept was the essential distinguishing feature between a Class 2 impairment and a Class 3 impairment.

18. [60]

    Moreover, according to Select Civil the only substantive criteria provided in Chapter 11 of the Guidelines for rating or evaluating functional impairment in dealing with psychiatric and psychological disorders are the scales discussed at [11.11] and [11.12] and set out in Tables 11.1-6. At 11.12, the Guidelines make clear that “impairment in each area is rated using class descriptors” and that “the examples of activities are examples only”. Therefore, Select Civil submitted that on a proper reading of the class descriptors for “Self Care and Personal Hygiene”, an assessment of a person’s ability to live independently was central to the rating exercised to be performed under 11.12 of the Guidelines and Table 11.1. The person’s capacity to live independently is therefore the critical descriptive feature used in distinguishing between each of the class descriptors and is not to be regarded as an example of an activity such as “reliance on takeaway food” or “community nurse visits”. Finally, on this topic, Select Civil submitted that the examples of “needs prompting to shower daily and wear clean clothes” from Class 3, under 11.12 of the Guidelines, are examples only, meaning that they do not need to be applied or satisfied in each case. Rather, the critical distinguishing feature is the class descriptor, which in this case is whether the individual can live independently or not.

19. [61]

    Counsel for Mr Parker also drew this Court’s attention to Sanhueza v AAMI Limited [2010] NSWSC 774 (“Sanhueza”), an authority that was not referred to by the Appeal Panel. In Sanhueza, Mr Sanhueza developed PTSD as a result of a motor vehicle accident. One of the issues raised in the judicial review was whether the Appeal Panel was in error by determining that Mr Sanhueza fell into Class 2 for self-care and personal hygiene. Smart AJ stated at [66] to [68]:

20. [62]

    It is fair to say that in Sanhueza the Appeal Panel did not take into account that the plaintiff could not live independently and required the support of his wife. Select Civil seeks to distinguish the position of Mr Parker from that of Sanhueza on the basis that Mr Parker’s situation is not one in which the only reason he could live independently was because of the regular support.

Consideration

1. [63]

   The central issue is whether the Appeal Panel’s decision conforms to law. This Court is not empowered to embark on a merits review: Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1. The task of the Appeal Panel is a two stage process as explained by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]:

2. [64]

   Both the AMS and the Appeal Panel are obliged to comply with the relevant statutory provisions set out earlier in the judgment and the guidelines (s 331). Both the AMS (at page 10 of the MAC) and the Appeal Panel at [22] set out the relevant descriptors that are identified in Class 2 and Class 3.

3. [65]

   In Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 (“Wark”), where it is stated at [33]:

4. [66]

   In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24]). The Appeal Panel assessed a moderate impairment on the basis that the history taken and the available evidence are consistent with criteria for rating a mild impairment at Class 2 because in its opinion the worker is primarily able to live independently. ([25]). (My emphasis). To support this finding the Appeal Panel stated that it was consistent with the available evidence and it accorded with the report of the worker’s own medico legal expert, Dr Canaris, dated 29 January 2016 (some eight months before the AMS made his findings on Mr Parker’s mental state examination). The AMS’s findings were that in assessing Class 3, the AMS conducted a medical examination and recorded his findings at [5]. In assessing Class 3, the AMS stated that Mr Parker did not shower regularly, generally four times per week, and that he frequently missed meals as he only prepared his own meals twice a week. He would also need prompting to maintain a minimal level of nutrition and hygiene.

5. [67]

   The Appeal Panel identified the “error” by stating that the AMS haD erred in assessing Class 3 because on the proper application of the criteria an assessment of Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence. ([27]). (My emphasis).

6. [68]

   However, it is important to appreciate that the descriptors, or examples, describing Class 2 and Class 3 of impairment for self care and hygiene are “examples only”: see Jenkins. These descriptors are not intended to be exclusive and are subject to the variables that accompany a person seeking psychiatric help such as age, sex and cultural norms: see Ferguson [14].

7. [69]

   So far as being able to live independently, the AMS recorded that Mr Parker needs prompting to maintain a minimum level of nutrition and hygiene. (My emphasis). This finding does not indicate that Mr Parker can live independently. However, the Appeal Panel determined that Mr Parker was primarily able to live independently and that the Class 2 rating mild impairment was more appropriate.

8. [70]

   To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.

9. [71]

   The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self care and hygiene, that is to say, a moderate impairment of self care and hygiene. There is an error of law on the face of the record. I am satisfied that the plaintiff has made out a case for an order in the nature of certiorari.

10. [72]

    In light of the above, it is not necessary for me to deal with the further grounds of judicial review.

11. [73]

    Costs are discretionary. Costs usually follow the event. The defendant is to pay the plaintiff’s costs on an ordinary basis.