LAW PARTNERS COMPENSATION LAWYERS
COSTS IN WORKERS
COMPENSATION MATTERS
8 SEPTEMBER 2011
Rodney Parsons, Deputy Registrar
Telephone: 8281 6403
SESSION OVERVIEW
1. Overview of the costs model
2.
Issues of interest
POWER TO ORDER COSTS
Section 341(2)
Commission full discretion costs payable:
• by whom,
• to whom, and
• to what extent
Section 337
Discretion subject to limits by regulations
COSTS ORDERS
That the Respondent pay the Applicant’s costs
as agreed or assessed
COSTS ORDERS
That the Respondent pay the Applicant’s costs
as agreed or assessed
That the Respondent pay the Applicant’s costs
in the sum of $__________
NEW COSTS
Workers Compensation Amendment
(Costs) Regulation 2006
Commencement 01/11/06
Old Costs
•WCC proceedings pre 01/11/06
•Pre 01/11/06 resolutions; no WCC
New Costs
•WCC from 01/11/06
•Resolutions from 01/11/06; no WCC
COSTS REGULATIONS
Formerly: Workers Compensation Regulation 2003
Part 19
•Clauses 81 – 126B
Schedule 6
•Part A – Application and operation
•Part B – Tables
•Part C – Regulated disbursements
COSTS REGULATIONS
Now: Workers Compensation Regulation 2010
Part 17
•Clauses 94 – 143
Schedule 6
•Part 1 – Application and operation
•Part 2 – Tables
•Part 3 – Regulated disbursements
Comparative Table – www.wcc.nsw.gov.au
GENERAL RULES
Exceptions to Regulated Costs
•
Clause 96 of the 2010 Regulation
(formerly cl 82 of the 2003 Regulation)
•
If cl 96, refer to Legal Profession Act & Regulation
(s 334 of the 1998 Act)
(Eg. Interpreter fees)
•
Otherwise, “fair and reasonable”
(Eg. worker’s travel costs and expenses)
GENERAL RULES
Exceptions to Regulated Costs
•
Medical examinations and reports
(cl 96(e) of the 2010 Regulation)
(s 339 of the 1998 Act)
•
WorkCover Fee Orders
•
Note requirements of Item 4, Part 3, Schedule 6
•
Note s 73 of 1987 Act
GENERAL RULES
Need to determine:
•
•
Type of resolution
When it was resolved (phase)
(Para 1(2), Part 1, Schedule 6)
Multiple resolutions:
•
Restricted to single, highest amount
(Paras 1(3) & 8, Part 1, Schedule 6)
•
Exceptions:
* 12 months between resolutions
* Commission/Registrar certifies
(Para 9, Part 1, Schedule 6)
* Different injuries
GENERAL RULES
Recoverable costs:
•
•
Maximum flat, predetermined figure; or
Within a range from nil to maximum
(Para 1(4), Part 1, Schedule 6)
(Para 11, Part 1, Schedule 6)
THE TABLES
General Resolution Types
•Table 2 – applicable rate
•Table 1 – costs payable
THE TABLES
General Resolution Types
•Table 2 – applicable rate
•Table 1 – costs payable
Additional Legal Services or Other Factors
•Table 4 – additional costs
THE TABLES
General Resolution Types
•Table 2 – applicable rate
•Table 1 – costs payable
Additional Legal Services or Other Factors
•Table 4 – additional costs
Special Resolution Types
•Table 3 – costs payable
TABLE 2
GENERAL RESOLUTION TYPES –
APPLICABLE RATE
100%
•Weekly comp exceeding 12 weeks
•Section 66 and section 67
•Section 66 only (liability issue)
•Section 60 exceeding $7,500
•Contested death cases
75%
•Weekly comp up to 12 weeks (not IPD)
•Section 66 only (no liability issue)
•Section 67 only
•Section 60 up to $7,500 (not IPD)
•Uncontested death cases
$9,000
$8,000
T
O
T
A
L
TABLE 1
GENERAL RESOLUTION TYPES –
CLAIMANT COSTS PAYABLE
RESOLUTION STAGE
$7,000
$6,000
$5,000
C
O
S
T
S
$4,000
$3,000
$2,000
$1,000
TABLE 1
RESOLUTION TYPE
75%
100%
$9,000
$8,000
T
O
T
A
L
$7,000
$6,000
TABLE 1
GENERAL RESOLUTION TYPES –
CLAIMANT COSTS PAYABLE
RESOLUTION STAGE
A Section 66 and 67 pre WCC
B Section 66 and 67 WCC
$5,000
C
O
S
T
S
$4,000
$3,000
$2,000
$1,000
A
B
TABLE 1
RESOLUTION TYPE
75%
100%
$2,475 $3,275
$3,525 $4,675
$9,000
$8,000
T
O
T
A
L
$7,000
$6,000
TABLE 1
GENERAL RESOLUTION TYPES –
CLAIMANT COSTS PAYABLE
RESOLUTION STAGE
A Section 66 and 67 pre WCC
B Section 66 and 67 WCC
75%
$2,475 $3,275
$3,525 $4,675
$5,000
C
O
S
T
S
Para 6, Part 1, Schedule 6
$4,000
Post MAC s 66 only:
Applicant: $4,000
Respondent: $1,875
$3,000
$2,000
$1,000
A
B
TABLE 1
RESOLUTION TYPE
100%
$9,000
$8,000
T
O
T
A
L
$7,000
$6,000
$5,000
C
O
S
T
S
$4,000
$3,000
$2,000
TABLE 1
GENERAL RESOLUTION TYPES –
CLAIMANT COSTS PAYABLE
RESOLUTION STAGE
A Section 66 and 67 pre WCC
B Section 66 and 67 WCC
75%
$2,475 $3,275
$3,525 $4,675
C Other compensation pre WCC
$2,860
D Other compensation to initial t/c
$3,870
E Other compensation to conciliation $4,250
F Other compensation post conciliation $4,615
$1,000
A
B
TABLE 1
RESOLUTION TYPE
100%
$3,785
$5,135
$5,645
$6,125
$9,000
$8,000
T
O
T
A
L
$7,000
$6,000
$5,000
C
O
S
T
S
$4,000
$3,000
$2,000
TABLE 1
GENERAL RESOLUTION TYPES –
COSTS PAYABLE
RESOLUTION STAGE
A Section 66 and 67 pre WCC
B Section 66 and 67 WCC
75%
$2,475 $3,275
$3,525 $4,675
C Other compensation pre WCC
$2,860
D Other compensation to initial t/c
$3,870
E Other compensation to conciliation $4,250
F Other compensation post conciliation $4,615
$1,000
A
B
C
D E F
TABLE 1
RESOLUTION TYPE
100%
$3,785
$5,135
$5,645
$6,125
$9,000
TABLE 4 – ITEMS 1, 2 & 3
ADDITIONAL LEGAL SERVICES OR
OTHER FACTORS
$8,000
T
O
T
A
L
Item 1 Arbitral appeal (up to $2,200)
$7,000
$6,000
Item 2 Question of law (up to $2,200)
$5,000
C
O
S
T
S
Item 3 Medical appeal (up to $1,100)
$4,000
$3,000
$2,000
$1,000
A
B
C
D E F
TABLE 1
1
2
TABLE 4
RESOLUTION TYPE
3
$9,000
TABLE 4 – ITEM 4
ADDITIONAL LEGAL SERVICES OR
OTHER FACTORS
$8,000
T
O
T
A
L
COMPLEX INCREASE –
CLAIMANT
$7,000
$6,000
Item 4
0% - 30%
(Item D, E or F of Table 1)
$5,000
C
O
S
T
S
$4,000
$3,000
$2,000
$1,000
A
B
C
D E F
TABLE 1
1
2
TABLE 4
RESOLUTION TYPE
3
$9,000
TABLE 4 – ITEM 4
ADDITIONAL LEGAL SERVICES OR
OTHER FACTORS
$8,000
T
O
T
A
L
COMPLEX INCREASE –
CLAIMANT
$7,000
$6,000
Item 4
0% - 30%
(Item D, E or F of Table 1)
$5,000
C
O
S
T
S
$4,000
$3,000
$2,000
$1,000
A
B
C
D E F
TABLE 1
1
2
TABLE 4
RESOLUTION TYPE
3
$9,000
TABLE 4 – ITEM 6
ADDITIONAL LEGAL SERVICES OR
OTHER FACTORS
$8,000
T
O
T
A
L
MULTIPLE EMPLOYER –
CLAIMANT
$7,000
$6,000
Item 6
0% - 30%
(Table 1 and
Items 1, 2 & 3 of Table 4)
$5,000
C
O
S
T
S
$4,000
$3,000
$2,000
$1,000
A
B
C
D E F
TABLE 1
1
2
TABLE 4
RESOLUTION TYPE
3
$9,000
TABLE 4 – ITEM 6
ADDITIONAL LEGAL SERVICES OR
OTHER FACTORS
$8,000
T
O
T
A
L
MULTIPLE EMPLOYER –
CLAIMANT
$7,000
$6,000
Item 6
0% - 30%
(Table 1 and
Items 1, 2 & 3 of Table 4)
$5,000
C
O
S
T
S
$4,000
$3,000
$2,000
$1,000
A
B
C
D E F
TABLE 1
1
2
TABLE 4
RESOLUTION TYPE
3
$9,000
TABLE 4 – ITEM 5
ADDITIONAL LEGAL SERVICES OR
OTHER FACTORS
$8,000
T
O
T
A
L
COMPLEX INCREASE &
MULTIPLE EMPLOYER–
CLAIMANT
$7,000
$6,000
$5,000
C
O
S
T
S
Item 5
0% - 45%
(complex & multiple employers)
(Item D, E or F of Table 1)
$4,000
$3,000
$2,000
$1,000
A
B
C
D E F
TABLE 1
1
2
TABLE 4
RESOLUTION TYPE
3
$9,000
TABLE 4 – ITEM 5
ADDITIONAL LEGAL SERVICES OR
OTHER FACTORS
$8,000
T
O
T
A
L
COMPLEX INCREASE &
MULTIPLE EMPLOYER–
CLAIMANT
$7,000
$6,000
$5,000
C
O
S
T
S
Item 5
0% - 45%
(complex & multiple employers)
(Item D, E or F of Table 1)
$4,000
$3,000
$2,000
$1,000
A
B
C
D E F
TABLE 1
1
2
TABLE 4
RESOLUTION TYPE
3
TABLE 1 & TABLE 4
INSURER COSTS
$9,000
$8,000
T
O
T
A
L
$7,000
$6,000
$5,000
C
O
S
T
S
$4,000
$3,000
$2,000
$1,000
A
B
C
D E F
TABLE 1
1
2
TABLE 4
RESOLUTION TYPE
3
$9,000
TABLE 4 – ITEM 4
ADDITIONAL LEGAL SERVICES OR
OTHER FACTORS
$8,000
T
O
T
A
L
COMPLEX INCREASE –
INSURER
$7,000
$6,000
Item 4
0% - 30%
(Item D, E or F of Table 1)
$5,000
C
O
S
T
S
$4,000
$3,000
$2,000
$1,000
A
B
C
D E F
TABLE 1
1
2
TABLE 4
RESOLUTION TYPE
3
$9,000
TABLE 4 – ITEM 4
ADDITIONAL LEGAL SERVICES OR
OTHER FACTORS
$8,000
T
O
T
A
L
COMPLEX INCREASE –
INSURER
$7,000
$6,000
Item 4
0% - 30%
(Item D, E or F of Table 1)
$5,000
C
O
S
T
S
$4,000
$3,000
$2,000
$1,000
A
B
C
D E F
TABLE 1
1
2
TABLE 4
RESOLUTION TYPE
3
$9,000
TABLE 4 – ITEM 7
ADDITIONAL LEGAL SERVICES OR
OTHER FACTORS
$8,000
T
O
T
A
L
LEAD SCHEME AGENT –
INSURER
$7,000
$6,000
Item 7
0% - 30%
(Table 1 and
Items 1, 2 & 3 of Table 4)
$5,000
C
O
S
T
S
$4,000
$3,000
$2,000
$1,000
A
B
C
D E F
TABLE 1
1
2
TABLE 4
RESOLUTION TYPE
3
$9,000
TABLE 4 – ITEM 7
ADDITIONAL LEGAL SERVICES OR
OTHER FACTORS
$8,000
T
O
T
A
L
LEAD SCHEME AGENT –
INSURER
$7,000
$6,000
Item 7
0% - 30%
(Table 1 and
Items 1, 2 & 3 of Table 4)
$5,000
C
O
S
T
S
$4,000
$3,000
$2,000
$1,000
A
B
C
D E F
TABLE 1
1
2
TABLE 4
RESOLUTION TYPE
3
$9,000
TABLE 4 – ITEM 5
ADDITIONAL LEGAL SERVICES OR
OTHER FACTORS
$8,000
T
O
T
A
L
COMPLEX INCREASE &
MULTIPLE EMPLOYER–
INSURER
$7,000
$6,000
Item 5
0% - 45%
(complex & lead scheme agent)
(Item D, E or F of Table 1)
$5,000
C
O
S
T
S
$4,000
$3,000
$2,000
$1,000
A
B
C
D E F
TABLE 1
1
2
TABLE 4
RESOLUTION TYPE
3
$9,000
TABLE 4 – ITEM 5
ADDITIONAL LEGAL SERVICES OR
OTHER FACTORS
$8,000
T
O
T
A
L
COMPLEX INCREASE &
MULTIPLE EMPLOYER–
INSURER
$7,000
$6,000
$5,000
C
O
S
T
S
Item 5
0% - 45%
(complex & lead scheme agent)
$4,000
$3,000
$2,000
$1,000
A
B
C
D E F
TABLE 1
1
2
TABLE 4
RESOLUTION TYPE
3
ISSUES
• Meaning of “Resolved”
• Costs Unreasonably Incurred
• Costs for Unsuccessful Claim
• Applying Uplifts
• Meaning of “Complex”
• Complex per Matter / Complex per Party
• Costs Within a Range
• Assessments
MEANING OF “RESOLVED”
Part A, Clause 2(2)
•
Resolved for claimant if:
(a) Wholly or partly resolved in claimant’s favour
(b) Insurer application successfully defended
•
Does not include discontinued, withdrawn, dismissed,
struck out without:
(a) Resolution as above
OR
(b) order by Commission or Registrar
MEANING OF “RESOLVED”
Part A, Clause 2(3)
•
Resolved for insurer if:
(a) Claim or dispute is concluded
(b) Insurer application is concluded
•
Unless otherwise ordered or certified for purposes of costs
recovery by Commission or Registrar
COSTS UNREASONABLY INCURRED
Phase of Resolution
Section 342 of the 1998 Act:
•After reasonable offer (s 342(2)(a))
•After failure to comply with a reasonable request (s 342(2)(b))
•After unreasonable failure to participate (s 342(2)(c))
Paragraph 18, Part 1, Schedule 6
Uniting Church in Australia (NSW Synod) v Legge [2002]
NSWCA 307
• Reasonableness of a settlement offer depends upon its own
terms and the circumstances in which it is made
• Entitlement to (higher) costs despite not improving on offer
UNSUCCESSFUL CLAIM
Nahar v Arcadia Property Management Group Pty Ltd [2005]
NSWWCC 76
• Costs follow the event in WCC save for limited
circumstances against claimants
Connor v Trustees of the Roman Catholic Church for the
Archdiocese of Sydney [2006] NSWWCCPD 124
• Successful party pays unsuccessful party only in exceptional
circumstances
(1) been guilty of some sort of misconduct,
(2) by its lax conduct, effectively invited the litigation, or
(3) unnecessarily or unreasonably protracted the
proceedings (at [79]).
UNSUCCESSFUL CLAIM
Bonsu v Andrews Meat Industries Pty Ltd
[2010] NSWWCC 447
• MAC 0%
• Party/party costs at discretion of Commission
• Costs may be payable to unsuccessful claimant where
proceedings commenced due to insurer’s failure to
determine a claim, despite unsuccessful outcome
UNSUCCESSFUL CLAIM
West v Winro Pty Limited [2010] NSWWCC 361
• Wide discrepancy between competing medical opinions not
enough
• Necessary to review and analyse the totality of the medical
evidence before commencing proceedings
Lazarou v Lambing Flat Enterprises Limited
[2010] NSWWCC 418
• Applicant and lawyers not assisted by Respondent prior to
commencement of proceedings to accurately identify the
appropriate award
• Employer has statutory obligation to provide certainty in
relation to the nature of employment of its employees
APPLYING UPLIFTS
Items 4 and 5, Table 4
•
•
Commission or Registrar
Costs assessment
Items 6 and 7, Table 4
•
•
•
By agreement
Costs assessment
Commission or Registrar certify
MEANING OF “COMPLEX”
•
Characterised by an involved combination of parts;
complicated; intricate (Macquarie Dictionary)
•
Complex evidence that was necessary, relevant and
probative, other than evidence of the worker and their
spouse
•
Complexity of fact and/or law
•
Exception rather than the rule
MEANING OF “COMPLEX”
Lake v Hunter Institute of Technology – NSW TAFE
[2010] NSWWCC 437
• Intricacy of fact, law and legislation that is higher than that
usually encountered in other proceedings for workers
compensation disputes.
• Relevant factors include the preparation, skill, care, time,
novelty and difficulty of a case in terms of legal, medical,
factual, procedural, evidentiary and multiplicity of issues.
• The test for complexity is not reflected in the complication
of injuries and claims brought by the Applicant; it is
reflected in the nature of the proceedings themselves and the
outcome achieved.
COMPLEX PER MATTER / PER PARTY
•
Table 4 – Items 4 and 5
“If the Commission or Registrar certifies the matter as
complex”
Different per party?
WITHIN THE RANGE
Part A, Clause 11
•
Range from and including nil to and including the upper
limit
•
Upper limit may be determined by reference to:
(a) Practice direction
(b)Registrar’s guideline
otherwise
(c) Nature and extent of service performed
ASSESSMENTS
Clause 127 of the 2010 Regulation
•
In assessing fair and reasonable costs, Registrar may
consider:
(a) skill, labour and responsibility
(b)complexity, novelty or difficulty of matter
(c) quality of work done and level of expertise
•
Refer also to cl 126 of the 2010 Regulation
ASSESSMENTS
Tips and Traps
• Not sufficient to merely attach documents – need
submissions in support of costs claimed
• Merely setting out chronology not enough – need to know
why believe entitled to costs claimed
• Need to attach evidence of costs order or agreement
• Costs of assessment – reflects work done (up to $1,100
under Item C, Table 3, Part 2, Schedule 6)
• Costs of assessment – accurate submissions in support
• Need to comply with lodgment provisions (30 days after
invoice or 60 days after order)
• Short delays in payment of costs does not normally ground
entitlement to costs of assessment
LAW PARTNERS COMPENSATION LAWYERS
COSTS IN WORKERS
COMPENSATION MATTERS
8 SEPTEMBER 2011
Rodney Parsons, Deputy Registrar
Telephone: 8281 6403