Jovanoski v Secretary, Department of Transport

[2021] NSWPIC 358

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jovanoski v Secretary, Department of Transport [2021] NSWPIC 358
APPLICANT:	Goce (George) Jovanoski
RESPONDENT:	Secretary, Department of Transport
MEMBER:	Rachel Homan
DATE OF DECISION:	20 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Application for certification as to complexity pursuant to Item 4, Table 4, Part 2, Schedule 6 of the Workers Compensation Regulation 2016 (2016 Regulation); Held - proceedings subject to amended costs provisions; pursuant to section 341 of the Workplace Injury Management and Workers Compensation Act 1998 the Commission has no power to make a determination for the purposes of Item 4 of Table 4 of Part 2 Schedule 6 of the 2016 Regulation which would have the effect of increasing the maximum costs recoverable; application for certification declined.
DETERMINATIONS MADE:	1. The Commission declines to certify the matter as complex pursuant to Item 4, Table 4, Part 2, Schedule 6 to the Workers Compensation Regulation 2016.

STATEMENT OF REASONS

BACKGROUND

1. Mr Goce Jovanoski (the applicant) brought proceedings in the Commission seeking an order that the Secretary, Department of Transport (the respondent) pay the costs of and incidental to a right knee surgery proposed by his surgeon Dr Aziz Bhimani.

2. The matter proceeded to teleconference on 12 August 2021 and subsequently to conciliation conference and arbitration hearing on 16 September 2021. On the latter occasion, the parties were able to resolve the dispute by agreement and consent orders were made.

3. At the conclusion of the proceedings, the respondent’s solicitor made an application for the Commission to certify the matter as complex pursuant to Item 4 of Table 4, Pt 2 Sch 6 of the Workers Compensation Regulation 2016. An uplift of 25% for complexity on the respondent’s costs was sought.

4. I noted that the matter did not involve an exempt worker and involved an injury occurring in 2018, such that the Commission appeared to lack power to make any order as to costs. In response, the respondent’s solicitor sought to draw a distinction between an “order” as to costs and a “certification” as to complexity. I was referred to a Certificate of Determination issued in Commission proceedings 5199/20 where a certification in the nature of that now sought was made. The respondent adopted the submissions made by the first respondent in those proceedings.

5. The applicant’s counsel was also briefed in the proceedings to which the respondent referred and was aware of that Certificate of Determination. The applicant’s counsel made no submissions other than to observe that in proceedings where the previous costs provisions applied any certification as to complexity would ordinarily be applied to both parties’ costs.

6. After some further discussion, I advised the parties that I would consider the application and issue a written determination.

ISSUES FOR DETERMINATION

1. The following issues remain in dispute:

(a) whether the Commission has power to make a certification as to complexity pursuant to Item 4, Table 4, Pt 2 Sch 6 of the Workers Compensation Regulation 2016 in these proceedings; and

(b)    if so, whether a certification as to complexity ought to be made.

FINDINGS AND REASONS

1. The Commission’s power to award costs, contained in s 341 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), was removed by the Workers Compensation Legislation Amendment Act 2012 No 53 (the 2012 amending Act).

2. Section 341 of the 1998 Act now reads:

   “(1)    Each party is to bear the party’s own costs in or in relation to a claim for compensation.

   (2)     The Commission has no power to order the payment of costs to which this Division applies, or to determine by whom, to whom or to what extent costs to which this Division applies are to be paid.”

3. By the operation of cl 8 of Sch 8 to the 2016 Regulation, claims made prior to 1 October 2012 and lodged in the Commission prior to 2 April 2013 are not subject to the amended costs provisions, and the Commission has the power to order costs as though the section had not been amended. This is also the case for ‘exempt workers’ to whom the amendments made by the 2012 amending Act do not apply (per cls 25 and 26 of the transitional provisions in Sch 6 Pt 19H to the Workers Compensation Act 1987).

4. The present proceedings involve a claim made after 1 October 2012 and lodged in the Commission after 2 April 2013. The applicant is not an exempt worker. The claim is therefore subject to the amended costs provisions.

1. This means that the Commission has no power in these proceedings to make any costs order or “to determine to what extent” costs to which Division 3 of Part 8 of the 1998 Act applies are to be paid.

2. In my view, this extends to a determination or “certification” for the purposes of Item 4 of Table 4 of Pt 2 Sch 6 to the 2016 Regulation which would have the effect of increasing the maximum costs recoverable pursuant to s 337 of the 1998 Act and cl 88 of the 2016 Regulation.

3. I am aware that a different interpretation of the legislative scheme has been adopted in the Certificate of Determination in 5199/20 to which the respondent has referred.  I am not, however, bound to follow that determination and I have not been referred to any decision of the Presidential Unit or other higher authority on the same question.

4. In the circumstances, I decline to make any certification pursuant to Item 4, Table 4, Pt 2 Sch 6 to the Workers Compensation Regulation 2016.