Koina v Coal and Allied Operations Pty Limited

[2020] NSWDC 120

District Court

New South Wales

Medium Neutral Citation:	Koina v Coal & Allied Operations Pty Limited and others [2020] NSWDC 120
Hearing dates:	9 March 2020
Date of orders:	09 March 2020
Decision date:	09 March 2020
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Notice of Motion dismissed.
Catchwords:	COALMINERS WORKERS COMPENSATION – COSTS. Medico-legal disbursements. – The Court has no power to order payment of disbursements above a maximum fixed by the Legal Profession Uniform Law Application Regulation 2015, Part 5, clause 25 and Schedule 2 to that Regulation.
Legislation Cited:	District Court Act 1973 Legal Profession Uniform Law Application Act 2014 Legal Profession Uniform Law Application Regulation 2015 Workplace Injury Management and Workers Compensation Act 1998
Category:	Costs
Parties:	Plaintiff – Paul G. Koina 1st Defendant – Coal & Allied Operations Pty Limited 2nd Defendant – BHP Billiton Limited 3rd Defendant – Blackdown Investments Limited 4th Defendant – Oceanic Coal Australia Limited T/AS Oceanic Coal Australia Limited 5th Defendant – Tesa Mining
Representation:	Plaintiff - S. McMahon   Defendants - J. Palamara (Sparke Helmore)
File Number(s):	RJ00499/17
Publication restriction:	Nil.

Judgment on notice of motion

1. HIS HONOUR: There is currently before me a motion on notice seeking an order that the defendant pay certain costs actually incurred by the plaintiff's solicitors in the preparation of the plaintiff's case. The matter came before me on 20 June 2019 when I approved a redemption in the sum of $200,000. I also made a general order that the employer pay the worker's costs which included two qualifying fees and an advice on evidence. The parties are in dispute about three disbursements incurred by the plaintiff's solicitors.

2. The plaintiff's solicitors qualified three expert medical practitioners who each examined the plaintiff and provided a report. Professor Y.A.E. Ghabrial examined the plaintiff and prepared a report bearing date 15 May 2017. Professor Ghabrial is an orthopaedic surgeon. He charged a fee of $800 plus GST. Dr Alan Hopcroft also examined the plaintiff and prepared a report dated 27 October 2017. Dr Hopcroft rendered a fee of $1,523.40 plus GST. The late Dr John Harrison examined the plaintiff and prepared a report bearing date 18 June 2018. Like Professor Ghabrial, Dr Harrison was an orthopaedic surgeon. Dr Harrison rendered a fee of $1,685 plus GST. Dr Hopcroft is a general surgeon who mainly provides orthopaedic assessments.

3. The dispute between the parties concerns what costs regime applies to the provision of medico-legal reports such as those to which I have referred and whether this Court has any power to make an order for the payment of costs exceeding any costs fixed by regulation.

4. The first thing to note is that I am sitting in the Compensation Jurisdiction of this Court as established under Division 8A of the District Court Act 1973. The power of the Court to make an order for costs is governed by s 142K of the Act. It is in these terms:

"Section 112 of the Workplace Injury Management and Workers Compensation Act 1998 extends to any proceedings in the compensation jurisdiction of the Court (not just proceedings under that Act), and in its application to proceedings under any other Act, is not limited by s 111A (Costs provisions apply only to existing claim matters) of that Act."

My power to order costs is, accordingly, governed by s 112 of the Workplace Injury Management and Workers Compensation Act 1998. That section is in Chapter 4 of the 1998 Act. It is to be noted that Ch 7 of that Act relates to "New Claims Procedures" and contains a Part 8 which refers to costs and, in particular, includes s 339 which provides this:

"1. The Authority may, by order published in the Gazette, fix maximum fees for the provision by health service providers of the following services:

(a) provision of any report for use in connection with a claim for compensation or work injury damages;

(b) appearance as a witness in proceedings before the Commission or a court in connection with a claim for compensation or work injury damages.

2. An order under this section can fix costs and amounts by reference to costs and amounts fixed by regulations under the Legal Profession Uniform Law Application Act 2014.

3. A health service provider is not entitled to be paid or recover any fee for providing a service that exceeds any maximum fee fixed under this section for the provision of the service.

4. In this section:

health service provider means a person who provides a health service as defined in the Health Care Complaints Act 1993."

The significance of that provision is that the Authority has made orders under s 339 of the 1998 Act. At the time that each of Professor Ghabrial, Dr Hopcroft and Dr Harrison examined the plaintiff and provided a report, the maximum which the medical practitioner could charge under the order made pursuant to s 339 was $1,523.40 plus GST, in other words, the amount charged by Dr Hopcroft.

5. However, the costs regime applicable to the compensation jurisdiction of this Court does not contain s 339. The applicable provisions of the 1998 Act are these:

112 Costs (cf former s 116)

(1) In this section, a reference to costs is a reference to the costs payable by a party in or in relation to proceedings, including disbursements.

(2) Subject to this Act and the regulations and the rules of the Compensation Court and subject to any other Act—

(a) costs in or in relation to any proceedings are in the discretion of the Court, and

(b) the Court has full power to determine by whom, to whom and to what extent costs are to be paid in or in relation to any proceedings, and

(c) the Court may order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on an indemnity basis.

(3) Subject to this section, the Court may not order the payment of costs by a person claiming compensation unless the Court is satisfied that the application for compensation was frivolous or vexatious, fraudulent or made without proper justification.

(4) If the Court is satisfied that a part only of any such application for compensation was frivolous or vexatious, fraudulent or made without proper justification, the Court may order the claimant to pay the costs relating to that part of the application.

(5) If a person claiming compensation appeals under section 34A (Appeal to Judge from commissioner) of the Compensation Court Act 1984, costs in or in relation to the appeal are to be paid by the unsuccessful party unless the Compensation Court is of the opinion that such a requirement would be unjust in the circumstances of the case.

(6) The Court may order the payment of costs by any party to the proceedings who has unreasonably failed to participate in a conciliation of the dispute under this Act if it appears to the Court that the failure has resulted in unnecessary litigation or has adversely affected the rehabilitation of an injured worker.

(7) An order of the Court for payment of costs may include—

(a) the costs actually incurred or to be incurred by a person claiming compensation, and

(b) if liability for a claim for compensation is admitted without recourse to the Court—the reasonable expenses incurred by a person in pursuing the person’s claim, and

(c) costs incurred in relation to any proceedings under this Act (including conciliation of a dispute under Division 3), and

(d) costs incidental to an application for referral of a medical dispute under section 121 or 122, and

(e) costs incidental to an application for registration of an agreement under section 66A of the 1987 Act, and

(f) costs incurred in relation to the mediation or neutral evaluation of any matter under Part 4A of the Compensation Court Act 1984.

(8) In this section—

application for compensation includes any proceedings in connection with an application for compensation.

compensation means compensation under this Act.

113 Regulations fixing maximum costs recoverable by legal practitioners or agents (cf former s 117)

(1) The regulations may make provision for or with respect to the following—

(a) fixing maximum costs for legal services or agent services provided to a worker (or other claimant), an employer or an insurer in any workers compensation matter,

(b) fixing maximum costs for matters that are not legal services or agent services but are related to proceedings on a workers compensation matter (for example, expenses for witnesses or medical reports (including certificates)).

(2) A legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section. An agent is not entitled to be paid or recover for an agent service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section.

(3) To the extent that the regulations so provide, a legal practitioner or agent is not entitled to be paid or recover costs of the kind referred to in subsection (1) (b) that are incurred in connection with the obtaining of any medical report (including any certificate) or opinion for use for any of the following purposes and which is not used for the purpose for which it was obtained—

(a) for use in the making of a claim for compensation under this Act,

(b) for use in negotiations or conciliation in respect of a claim for compensation,

(c) for consideration by a medical panel or medical referee under section 122 or by a medical specialist under section 121,

(d) for use in court proceedings.

(4) Regulations under this section can fix costs and amounts by reference to costs and amounts fixed by regulations under the Legal Profession Uniform Law Application Act 2014.

(5) This section and any regulations under this section prevail to the extent of any inconsistency with the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014). An assessment under that legislation of any costs in respect of which provision is made by a regulation under this section is to be made so as to give effect to that regulation.

(6) Expressions used in this section have the same meanings as they have in the legal costs legislation, except as provided by this section.

(7) In this section—

agent means a person who acts as agent for a person in connection with a claim for compensation under this Act.

agent service means any service performed by a person in the person’s capacity as an agent.

costs includes—

(a) costs actually incurred or to be incurred by a person claiming compensation, and

(b) if liability for a claim for compensation is admitted without recourse to the Compensation Court—the reasonable expenses incurred by a person in pursuing the person’s claim, and

(c) costs incurred in relation to any proceedings under this Act (including conciliation of a dispute under Division 3), and

(d) costs incidental to an application for referral of a medical dispute under section 121 or 122, and

(e) costs incidental to an application for registration of an agreement under section 66A of the 1987 Act, and

(f) costs incurred in relation to the mediation or neutral evaluation of any matter under Part 4A of the Compensation Court Act 1984.

114 Maximum fees recoverable by medical practitioners for medico-legal services (cf former s 118)

(1) The Authority may, by order published in the Gazette, fix maximum fees for the provision by medical practitioners of the following services—

(a) provision of any medical report (including any certificate) for use in court proceedings in connection with a claim for compensation under this Act,

(b) appearance as a witness in court proceedings on a claim for compensation under this Act.

(2) A medical practitioner is not entitled to be paid or recover any fee for providing a service that exceeds any maximum fee fixed under this section for the provision of the service.

(3) An order under this section can fix costs and amounts by reference to costs and amounts fixed by regulations under the Legal Profession Uniform Law Application Act 2014.

6. It is to be noted that in s 112 that the power of the Court is subject to the 1998 Act and the regulations made under it and the rules of Court and any other Act. There is a general power to make an order for costs under s 112(2)(a) but that is just a general power, and it is clear that the Court has power to order payment of costs on the ordinary basis and on the indemnity basis. Under s 112(7)(a), the Court can make an order for the payment of costs to include the costs actually incurred, but that must be read down to avoid the Court ordering costs above a fixed amount unless the section or regulation fixing maximum costs gives the Court a discretion. This is the application of the principle of statutory interpretation that generalia specialibus non derogant.

7. Section 113 permits regulations to fix the maximum cost recoverable by a legal practitioner for providing a legal service "or matter" which is governed by the regulations. Again, that is a general provision. As far as fees payable to medical practitioners are concerned, there is a specific provision in s 114. Notably, the Authority has not published any order in the Gazette pursuant to s 114.

8. It would therefore appear to me that the fees are fixed under the Legal Profession Uniform Law Application Act 2014 and that this Court has no discretion to make an order for payments in excess of a prescribed fixed amount made by the regulations under the Legal Profession Uniform Law Application Act 2014. Under the Legal Profession Uniform Law Application Regulation 2015 Sch 2 is a schedule of costs for the provision of legal services in workers compensation matters. A coal miner's workers compensation claim is a worker's compensation matter. That is not disputed. Part 4 of the schedule, made pursuant to cl 25, governs the payment of disbursements. Item 6 refers to medical examinations and reports. Paragraph (c) of that item refers to reports made by a specialist who has not previously treated a patient. The maximum payable in respect of an initial consultation and examination of a patient is $500. Where the examination is in respect of any further consultation and examination, the maximum payable is $450, and where a re examination of the patient is not required, there is a range between $100 and $215 for an additional report.

9. It appears to me and I hold that the fees recoverable in respect of the attendances by the plaintiff upon Professor Ghabrial, Dr Hopcroft and the late Dr John Harrison have a fixed maximum of $500. The motion seeks that the defendant pay the medical report fees pursuant to the Workplace Injury Management and Workers Compensation (Medical Examinations and Reports) Order made by the State Insurance Regulatory Authority under s 339 of the 1998 Act. I hold that this Court has no power to make such an order.

10. The notice of motion is accordingly dismissed.

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Decision last updated: 20 April 2020