LAW PARTNERS COMPENSATION LAWYERS COSTS IN WORKERS COMPENSATION MATTERS 8 SEPTEMBER 2011 Rodney Parsons, Deputy Registrar Telephone:

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

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 – COSTS REGULATIONS

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

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) GENERAL RULES

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

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 THE TABLES

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

TABLE 1 GENERAL RESOLUTION TYPES – CLAIMANT COSTS PAYABLE $9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S $3,000 $5,000 $6,000 RESOLUTION STAGE 75% 100% RESOLUTION TYPE TABLE 1

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S $3,000 $5,000 $6,000 AB RESOLUTION STAGE 75% 100% A Section 66 and 67 pre WCC $2,475 $3,275 B Section 66 and 67 WCC $3,525 $4,675 RESOLUTION TYPE TABLE 1 TABLE 1 GENERAL RESOLUTION TYPES – CLAIMANT COSTS PAYABLE

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S $3,000 $5,000 $6,000 AB RESOLUTION STAGE 75% 100% A Section 66 and 67 pre WCC $2,475 $3,275 B Section 66 and 67 WCC $3,525 $4,675 RESOLUTION TYPE TABLE 1 TABLE 1 GENERAL RESOLUTION TYPES – CLAIMANT COSTS PAYABLE Para 6, Part 1, Schedule 6 Post MAC s 66 only: Applicant: $4,000 Respondent: $1,875

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE $3,000 $5,000 $6,000 AB RESOLUTION STAGE 75% 100% A Section 66 and 67 pre WCC $2,475 $3,275 B Section 66 and 67 WCC $3,525 $4,675 C Other compensation pre WCC $2,860 $3,785 D Other compensation to initial t/c $3,870 $5,135 E Other compensation to conciliation $4,250 $5,645 F Other compensation post conciliation $4,615 $6,125 TABLE 1 TABLE 1 GENERAL RESOLUTION TYPES – CLAIMANT COSTS PAYABLE

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE TABLE 1 $3,000 $5,000 $6,000 AB RESOLUTION STAGE 75% 100% A Section 66 and 67 pre WCC $2,475 $3,275 B Section 66 and 67 WCC $3,525 $4,675 CDEF TABLE 1 GENERAL RESOLUTION TYPES – COSTS PAYABLE C Other compensation pre WCC $2,860 $3,785 D Other compensation to initial t/c $3,870 $5,135 E Other compensation to conciliation $4,250 $5,645 F Other compensation post conciliation $4,615 $6,125

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE TABLE 1 $3,000 $5,000 $6,000 ABCDEF TABLE 4 – ITEMS 1, 2 & 3 ADDITIONAL LEGAL SERVICES OR OTHER FACTORS TABLE Item 1Arbitral appeal (up to $2,200) Item 2Question of law (up to $2,200) Item 3Medical appeal (up to $1,100)

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE TABLE 1 $3,000 $5,000 $6,000 ABCDEF TABLE 4 – ITEM 4 ADDITIONAL LEGAL SERVICES OR OTHER FACTORS COMPLEX INCREASE – CLAIMANT Item 40% - 30% (Item D, E or F of Table 1) TABLE 4 123

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE TABLE 1 $3,000 $5,000 $6,000 ABCDEF TABLE 4 – ITEM 4 ADDITIONAL LEGAL SERVICES OR OTHER FACTORS COMPLEX INCREASE – CLAIMANT Item 40% - 30% (Item D, E or F of Table 1) TABLE 4 123

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE TABLE 1 $3,000 $5,000 $6,000 ABCDEF TABLE 4 – ITEM 6 ADDITIONAL LEGAL SERVICES OR OTHER FACTORS MULTIPLE EMPLOYER – CLAIMANT Item 60% - 30% (Table 1 and Items 1, 2 & 3 of Table 4) TABLE 4 123

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE TABLE 1 $3,000 $5,000 $6,000 ABCDEF TABLE 4 – ITEM 6 ADDITIONAL LEGAL SERVICES OR OTHER FACTORS MULTIPLE EMPLOYER – CLAIMANT Item 60% - 30% (Table 1 and Items 1, 2 & 3 of Table 4) TABLE 4 123

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE TABLE 1 $3,000 $5,000 $6,000 ABCDEF TABLE 4 – ITEM 5 ADDITIONAL LEGAL SERVICES OR OTHER FACTORS COMPLEX INCREASE & MULTIPLE EMPLOYER– CLAIMANT Item 50% - 45% (complex & multiple employers) (Item D, E or F of Table 1) 123 TABLE 4

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE TABLE 1 $3,000 $5,000 $6,000 ABCDEF TABLE 4 – ITEM 5 ADDITIONAL LEGAL SERVICES OR OTHER FACTORS COMPLEX INCREASE & MULTIPLE EMPLOYER– CLAIMANT Item 50% - 45% (complex & multiple employers) (Item D, E or F of Table 1) 123 TABLE 4

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE TABLE 1 $3,000 $5,000 $6,000 ABCDEF TABLE 1 & TABLE 4 INSURER COSTS TABLE 4 123

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE TABLE 1 $3,000 $5,000 $6,000 ABCDEF TABLE 4 – ITEM 4 ADDITIONAL LEGAL SERVICES OR OTHER FACTORS COMPLEX INCREASE – INSURER Item 40% - 30% (Item D, E or F of Table 1) TABLE 4 123

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE TABLE 1 $3,000 $5,000 $6,000 ABCDEF TABLE 4 – ITEM 4 ADDITIONAL LEGAL SERVICES OR OTHER FACTORS COMPLEX INCREASE – INSURER Item 40% - 30% (Item D, E or F of Table 1) TABLE 4 123

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE TABLE 1 $3,000 $5,000 $6,000 ABCDEF TABLE 4 – ITEM 7 ADDITIONAL LEGAL SERVICES OR OTHER FACTORS LEAD SCHEME AGENT – INSURER Item 70% - 30% (Table 1 and Items 1, 2 & 3 of Table 4) 123 TABLE 4

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE TABLE 1 $3,000 $5,000 $6,000 ABCDEF TABLE 4 – ITEM 7 ADDITIONAL LEGAL SERVICES OR OTHER FACTORS LEAD SCHEME AGENT – INSURER Item 70% - 30% (Table 1 and Items 1, 2 & 3 of Table 4) 123 TABLE 4

$9,000 $7,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE TABLE 1 $3,000 $5,000 $6,000 ABCDEF TABLE 4 – ITEM 5 ADDITIONAL LEGAL SERVICES OR OTHER FACTORS TABLE COMPLEX INCREASE & MULTIPLE EMPLOYER– INSURER Item 50% - 45% (complex & lead scheme agent) (Item D, E or F of Table 1)

$7,000 $9,000 $8,000 $4,000 $2,000 $1,000 T O T A L C O S T S RESOLUTION TYPE TABLE 1 $3,000 $5,000 $6,000 ABCDEF TABLE 4 – ITEM 5 ADDITIONAL LEGAL SERVICES OR OTHER FACTORS TABLE COMPLEX INCREASE & MULTIPLE EMPLOYER– INSURER Item 50% - 45% (complex & lead scheme agent)

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: