Hand v State of New South Wales (Ambulance Services of NSW)
[2021] NSWPIC 266
•12 May 2021
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | Hand v State of New South Wales (Ambulance Services of NSW) [2021] NSWPIC 266 |
| APPLICANT: | Amy Hand |
| RESPONDENT: | State of New South Wales (Ambulance Service of NSW) |
| PRESIDENT’S DELEGATE: | Kathryn Camp |
| DATE OF DECISION: | 12 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Application by an exempt worker for assessment of costs in respect of proceedings which were ultimately discontinued; claim for professional costs and disbursements; application of clause 104 and 116 of the Workers Compensation Regulation 2016; whether the Commission has jurisdiction to make an assessment of costs claimed; Held- applicant failed to satisfy the necessary preconditions of an application for assessment of costs, application for assessment of costs declined |
| ORDERS MADE: | 1. The application for assessment of costs is declined. 2. Liberty to restore. |
REASONS
Introduction
This matter concerns an application by an exempt worker for assessment of costs in respect of proceedings, in relation to a claim for weekly compensation, which were ultimately discontinued. Firstly, as there are no costs ordered by a court or the former Workers Compensation Commission or subject of an agreement, there is no jurisdiction to entertain the applicant’s claim for assessment of professional costs. Secondly, as there is no apparent dispute about the applicant’s claim for disbursements and in the absence of jurisdiction to assess professional costs, the application for assessment of costs is declined.
Background
On 11 October 2013, the applicant was involved in a motor vehicle accident during the course of her employment with the respondent. As a result of the accident the applicant sustained physical and psychological injuries. The applicant brought several proceedings before the former Workers Compensation Commission (hereafter referred to as the Commission) in respect of her workplace injury. Those proceedings are set out below.
On 1 March 2019, the applicant lodged an application to Resolve a Dispute seeking lump sum compensation where the degree of permanent impairment was in dispute (the first ARD) (matter no 981/19). The matter proceeded before Senior Arbitrator Bamber.
On 2 April 2019, Senior Arbitrator Bamber issued a Certificate of Determination – Consent Orders in respect of the first ARD. Amongst other things, the matter was remitted to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment in relation to the psychological injury.
On 21 August 2019, Dr Patrick Morris, Approved Medical Specialist, issued a Medical Assessment Certificate (MAC). Dr Morris assessed the applicant’s total whole person impairment at 13% in respect of the psychological injury.
On 12 September 2019, the applicant lodged an Appeal Against a Decision of an Approved Medical Specialist (matter no M1-981/19). That appeal proceeded to a Medical Appeal Panel for determination.
On 5 December 2019, the Medical Appeal Panel issued a decision confirming the MAC of Dr Morris dated 21 August 2019.
On 13 January 2020, in matter no 981/19, Arbitrator Wright issued a Certificate of Determination consistent with the MAC. As the assessed permanent impairment in respect of the psychological injury was not 15% or greater, the applicant was not entitled to lump sum compensation.[1] No order was made as to costs.
[1] Workers Compensation Act 1987 (1987 Act), s 65A(3).
On 20 April 2020, the applicant lodged a second Application to Resolve a Dispute seeking weekly benefits where liability was in dispute (the second ARD) (matter no 2142/20). The applicant claimed weekly payments of compensation on an ongoing basis in respect of the psychological injury.
On 28 April 2020, the respondent sought that the applicant discontinue the second ARD proceedings in matter no 2142/20. The respondent sought the discontinuance on the basis it had commenced payment of weekly compensation to the applicant.
Also, on 28 April 2020, the applicant lodged an Election to Discontinue Proceedings in matter no 2142/20. As a result, the telephone conference listed for 19 May 2020 before an Arbitrator was cancelled and did not proceed.
On 25 May 2020, the applicant’s legal representative issued to the respondent a bill of costs, together with disbursements paid. This led to the following email exchange between the parties.
Also, on 25 May 2020, the respondent’s legal representative replied by email to the applicant’s bill of costs. The respondent asserted that the applicant did not have an entitlement to the costs claimed. The respondent stated that no order was made in matter no 2142/20 and no order for costs was made in matter no 981/19. The respondent invited the applicant to clarify the basis for the claim for costs.
Further, on 25 May 2020, the respondent’s legal representative sent a further email to the applicant’s solicitors. The respondent’s legal representative stated that he “would recommend my client pay your professional costs under item WK1743- $1,265.00 + GST. In [sic] would also recommend the disbursements.” The respondent’s legal representative added that, if the applicant disagreed with the proposal, he looked forward to learning the basis of any contention.
On 23 June 2020, the applicant’s legal representative emailed the respondent’s legal representative in reply. The applicant’s legal representative asserted an entitlement to costs and disbursement as claimed. The applicant’s legal representative added:
“The worker made a claim for weekly payments for a period in excess of 12 weeks and the dispute was resolved after an Application was made by the worker but before a Telephone Conference proceeded. On the basis of the preceding circumstances of a claim being one in excess of 12 weeks duration I say that Item D of Table 1 is applicable, and as the matter resolved after an application was lodged but before Telephone Conference I say that Item 7 of Table 2 applies.”
Also, on 23 June 2020, the respondent’s legal representative emailed the applicant’s legal representative in reply. The content of that email is as follows:
“Regrettably, for the reasons which follow we do not agree.
No costs orders have been made in your client’s favour and the contention that the settlement involved payment of weekly compensation exceeding 12 weeks is, we say, incorrect given:1. The letter claiming weekly benefits is dated 17 February last;
2. That latter [sic] attached a certificate dated 5 February 2020 which certificated incapacity from 5 February 2020 to 5 March 2020 (Say 4.2 weeks)’
3. The claim was accepted and on 20 April 2020, I requested documents form [sic] you to facilitate payment to your client in accordance with the certificate provided with the claim;
4. Payment was made to your client on 23 April 2020 encompassing an 11.6 week period;
5. A copy of a list of payments proving the payments was forwarded to your office on 28 April last and
6. The application filed by you in the interim was subsequently discontinued by election file[d] on 28 April last (electronically signed in your name no less) which provided for no order in your client’s favour as to costs.
Although your client’s claim was expressed to be on an ongoing basis (as is customary), by the time of the discontinuance only 11.6 weeks had been paid. That fact, as well as the absence of an order for costs in your client’s favour, is fatal to your claim for costs on the basis articulated.
That said, we remain prepared to recommend your costs on the basis articulated in my email of 25 May below and look forward to receipt of your amended tax invoice in due course.
We look forward to your reply.”On 18 August 2020, the applicant lodged an Application for Assessment of Costs (the costs application). In the application the applicant provides the following submissions in support:
“The Applicant made a claim for weekly wage loss under cover of letter dated 17 February 2020.
The Respondent did not reply to the Applicant’s claim with the proscribed 21 days and the Applicant filed an Application to Resolve a Dispute (ARD) on 20 April 2020.
The Applicant served a copy of the ARD on the Respondent’s legal representative on 27 April 2020.
The Respondent’s legal representative advised on 28 April 2020 that the Respondent had accepted the Applicant’s claim and had made payment. A List of Payments was provided which disclosed payment made to the Applicant on 23 April 2020. Since no dispute remained the Applicant discontinued proceedings.
The Applicant maintains an entitlement to legal costs. The Applicant submits that a valid claim for weekly compensation was made and the claim was resolved after the application was accepted by the Registrar (Part 2 Table 1 Item D). The Applicant submits that there is an entitlement to (Column 2) 100% of the resolution amount as the claim was made on an ongoing basis (ie more than 12 weeks) and payments have been made to the Applicant on this basis.”
The applicant attaches a series of documents in support but does not provide any further submissions in respect of the costs application.
On 20 August 2020, the respondent lodged a response to the costs application. The respondent relies on the content of its email correspondence to the applicant on 23 June 2020 as its submissions in response to the costs application (see [16] above).
For the reasons set out below, I decline to make an assessment of costs.
Discussion
It is not disputed that the applicant is an exempt worker and that this application for assessment of costs may be determined under the Commission’s residual costs jurisdiction.[2]
[2] 1987 Act, cl 25 of Pt 19H of Sch 6.
As the present matter was filed prior to 1 March 2021, I am exercising power having regard to the old legislation, as in force immediately before the commencement of the Personal Injury Commission Act 2020.[3] In particular, I am exercising power as a delegate to assess costs under s 371(2) of the Workplace Injury Management and Workers Compensation Act 1998 as it stood prior to 1 March 2021.
[3] Personal Injury Commission Regulation 2020, cl 14B(4)(c) of Sub-Div 2 to Sch 1.
The applicant purports to claim professional costs under Item D, Column 2 of Table 1 of Pt 2 of Sch 6 to the Workers Compensation Regulation 2016 (2016 Regulation) and disbursements in respect of proceedings relating to the claim for weekly compensation (matter no 2142/20). However, the applicant has not identified under what power the claimed costs are to be made or provided any detailed submissions on how they are to be assessed. Further, the applicant has not clearly identified with any particularity what disbursements it seeks to be assessed under the present application. The applicant’s claim is opposed by the respondent.
There is a dispute as to the amount, if any, of costs that should be ordered to be paid under any costs assessment. There is also an issue as to whether the Commission has jurisdiction to make an assessment of costs claimed. Before the matter can proceed, the question of jurisdiction must be determined.[4]
[4] Eberstaller v Poulos [2014] NSWCA 211, [1] (per Leeming JA).
In respect of the application for assessment of costs for claimed professional fees, the following findings are made. An assessment of costs is governed under Div 4 of Pt 2 of the 2016 Regulation. That division provides for a person who is “entitled to receive or who has received costs, in or in connection with a workers compensation matters” as a result of an order for the payment of costs “by a court or the Commission” or an “agreement” for the payment of costs.[5] Further, Sub-Div 3 of Pt 2 of the 2016 Regulation provides for the assessment of part/party costs (professional costs/fees) payable as a result of “an order made by a court or the Commission or as a result of an agreement referred to in clause 104(1)(b)”.[6] Having regard to the plain words of the 2016 Regulation, it is clear that an applicant for an assessment of costs must first satisfy the necessary preconditions to bring an application before the Commission may make an assessment as to costs. Firstly, the applicant must demonstrate that they are entitled to receive costs or have received costs in respect of a workers compensation matter. Secondly, the applicant must demonstrate that that first precondition is as a result of an order for the payment of costs by a court or the Commission or an agreement.
[5] 2016 Regulation, cl 104.
[6] 2016 Regulation, cl 116(1).
In the present matter, the applicant has not satisfied the necessary preconditions to bring an application for assessment of costs. That is, the applicant has not demonstrated that she has an entitlement to receive costs or has received costs as a result of an order for the payment of costs or any agreement for the payment of costs. For the reasons further discussed below, as the applicant has not satisfied the necessary preconditions of an application for assessment of costs the Commission does not have jurisdiction to determine the matter.
There have been several separate proceedings that have resolved in relation to the applicant’s accepted injury. Having regard to the present costs application, it is clear that the application for assessment of costs concerns the proceedings in respect of the claim for weekly compensation (see [17] above; matter no 2142/20). In respect of the claim for weekly compensation, the proceedings were discontinued in the absence of any determination or order by the Commission (or a court). Further, there is no evidence of a written agreement on record for the payment of costs claimed in respect of those proceedings. The email correspondence from the respondent’s legal representative to the applicant’s legal representative dated 25 May 2020 and 23 June 2020, does not constitute an agreement for the payment of costs for the purposes of cl 104 of the 2016 Regulation. That is because the respondent’s legal representative states that he “would” “recommend” that his client pay certain costs. While it has not been argued; that email exchange does not constitute evidence of a written agreement to pay costs of an unspecified amount but suggests a potential to reach an agreement as to costs. The other proceedings before the Commission, namely, matter nos 981/19 and M1-981/19, did not result in any order for costs and there is no evidence of any agreement of costs in respect of those proceedings before the Commission.
The respondent put the applicant on notice of the jurisdictional issue. In the email correspondence from the respondent’s legal representative to the applicant’s legal representative dated 25 May 2020 and 23 June 2020 (the latter of which forms the basis of the respondent’s submissions in this matter), the respondent’s legal representative disputes the claim for entitlement to costs in the absence of an order as to costs. The respondent’s legal representative stated that the absence of an order as to costs was “fatal” to the applicant’s claim. However, despite being made aware of the possibility of an adverse conclusion being drawn in respect of any costs application, the applicant proceeded to file the present application for assessment of costs in the Commission.
It is the applicant who must plead and establish their own case. The applicant’s claim for assessment of costs has failed at the initial jurisdictional hurdle. Division 4 of Pt 2 of the 2016 Regulation is clear on the preconditions required to bring an application for assessment of costs. Those preconditions must be satisfied to enable the Commission to exercise its functions to make an assessment of costs. The applicant has not demonstrated that the relevant preconditions have been met. As the relevant preconditions have not been met in the present matter the Commission has no jurisdiction to determine the matter. I am satisfied that the applicant was in a position, on the material before me, to have known of the possibility of an adverse outcome being made in view of the clear terms of the legislation and in the absence of an order for costs or any evidence of an agreement for costs.[7] I am fortified in this view given the correspondence exchanged between the parties on 25 May 2020 and 23 June 2020.
[7] Sleiman v Gadalla Pty Ltd [2021] NSWSC 86, [69], [75] (per Harrison AsJ); InMinister for Immigration and Citizenship v SZGUR [2011] HCA 1, [9] (per French CJ and Kiefel J).
It follows that in the absence of an order for costs or evidence of an agreement for costs, the Commission does not have jurisdiction to assess costs in respect of the professional fees claimed. In the event that the parties reach (or have reached) agreement as to costs, and a party seeks that costs be assessed, these proceedings may be restored.
In respect of the application for assessment of costs for claimed disbursements, I refer to the email correspondence dated 25 May 2020 and 23 June 2020 from the respondent’s legal representative to the applicant’s legal representative. In that correspondence, the respondent’s legal representative stated it was prepared to recommend payment of costs for disbursements claimed. While I appreciate the time that has lapsed since June 2020, I infer from this email exchange that there is no dispute as to payment of disbursements. In the circumstances, and in view of the lack of particularity in respect of this claim, I do not propose to deal with the application for assessment of costs in relation to claimed disbursements. However, the parties are granted liberty to restore proceedings if an assessment in respect of this claim is required.
There has been no claim for costs of the assessment. In the absence of such a claim, and given that no costs assessment has been undertaken, no costs of the assessment is to be awarded.[8]
[8] 2016 Regulation, cl 116(4).
For the above reasons, the application for assessment of costs is declined.
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