Martin v Victorian WorkCover Authority
[2022] VSC 829
•27 April 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COSTS COURT
S ECI 2021 02957
BETWEEN:
| ANDREW MARTIN | Applicant |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Respondent |
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JUDICIAL REGISTRAR: | Conidi JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 December 2021 |
DATE OF JUDGMENT: | 27 April 2022 |
CASE MAY BE CITED AS: | Martin v Victorian WorkCover Authority |
MEDIUM NEUTRAL CITATION: | [2022] VSC 829 |
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COSTS COURT — Taxation of costs — Section 134AB of the Accident Compensation Act 1985 - Costs of medical reports and records —Sections 134AB(4) and 134AB(16)(b) — Workcover (Pre-Litigated Claims) Legal Costs Order 2016 — Workcover (Litigated Claims) Legal Costs Order 2016.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Cherry | Robinson Gill |
| For the Respondent | Mr R Kumar | Costs Law Specialists and Associates |
JUDICIAL REGISTRAR:
The applicant filed a summons for taxation together with a bill of costs on 17 August 2021 seeking a taxation of his costs pursuant the Order of His Honour Judge Lauritsen made on 23 March 2021 in County Court Proceeding No CI-20-04773, Andrew Martin v Victorian Workcover Authority.
On 29 October 2021, the Costs Court commenced the taxation of the applicant’s bill of costs and taxed items 1, 6, 9 and 12 to 19 (inclusive) therein. An interim order, by consent of the parties, was made allowing the applicant’s costs, referable to those items, in the sum of $38,599.11.
The parties sought a preliminary hearing, the subject of this ruling, in relation to a tranche of items in the bill of costs concerning the recoverability of costs associated with obtaining medical reports and records in support of the serious injury application pursuant to section 134AB(4) of the Accident Compensation Act 1985 (“the Act”), commonly referred to as the Form A application (“the Form A application”) with the Victorian WorkCover Authority (“the VWA”). The Form A application was rejected by the VWA and the reports and records were used in the subsequent originating motion proceeding before the County Court pursuant to section 134AB(16)(b) of the Act (“the County Court proceeding”). The costs of obtaining the reports and records were claimed in that proceeding.
The preliminary question (as originally agreed by the parties) to be determined by the Costs Court is:
Whether the reasonable costs of medical reports and records in the following three categories, which were relied upon and exchanged prior to the resolution of the Originating Motion proceedings, exchanged in compliance with any Order or Practice Direction of the County Court and/or admitted into evidence, are payable under the WorkCover (Litigated Claims) Legal Costs Order 2016:
(a)Medical reports and records obtained prior to, and served with, the application made under section 134AB(4) of the Accident Compensation Act 1985.
(b)Medical reports requested contemporaneously with the making of the Application and received prior to the Authority’s advice given under section 134AB(7) of the Accident Compensation Act 1985, but not served until after the filing of the Originating Motion;
(c)Medical reports requested contemporaneously with the making of the Application and received within 28 days of the Authority’s advice given under section 134AB(7) of the Accident Compensation Act 1985, but not served until after the filing of the Origination Motion.
By consent of the parties, confirmed at the hearing of the preliminary question on 13 December 2021, parts (b) and (c) of the question were amended as follows:
(b)Medical reports requested contemporaneously with the making of the Application and received prior to the Authority’s advice given under section 134AB(7) of the Accident Compensation Act 1985, and served shortly before the filing of the Originating Motion (and within 28 days of the Authority’s advice).
(c)Medical reports requested prior to the making of the Application, and received within 28 days of the Authority’s advice given under section 134AB(7) of the Accident Compensation Act 1985, and served shortly before the filing of the Originating Motion (and within 28 days of the Authority’s advice).
In support of their respective positions, the parties referred to and relied on the following material:
(i)The applicant’s summons and bill of costs filed 17 August 2021, including the Order of His Honour Judge Lauritsen made on
23 March 2021
(ii)The respondent’s notice of objections filed 22 September 2021
(iii)The affidavit of Harry S Gill, sworn and filed 4 November 2021 (“the Gill Affidavit)
(iv)The affidavit of John Anthony Colonna, sworn and filed on
15 November 2021 (“the Colonna Affidavit”)
(v)The applicant’s outline of submissions, filed 29 November 2021 (“the applicant’s written submissions”)
(vi)The respondent’s outline of submissions filed 9 December 2021 (“the respondent’s written submissions”).
(vii)The Accident Compensation Act 1985 (“the Act”), the applicable legislation
(viii)The Ministerial Directions, effective from 1 July 2016 (“the Ministerial Directions”)
(ix)The Workcover (Pre-Litigated Claims) Legal Costs Order 2016 (“PLC-LCO”)
(x)The Workcover (Litigated Claims) Legal Costs Order 2016 (“LC-LCO”)
Background
The applicant sustained an injury to his lumbar spine (and associated injuries) in the course of his employment with Nu Lite Windows (Victoria) Pty Ltd.
On 10 June 2020 he lodged a Form A application with the VWA, seeking a Serious Injury Certificate for pain and suffering and loss of earning capacity. The application was accompanied by the relevant medical material in accordance with section 134AB(5) of the Act (see Form A application, annexed to the Gill Affidavit). That application was rejected by the VWA on 30 September 2020.
On 27 October 2020, the applicant issued an Originating Motion in the County Court of Victoria. He sought a determination pursuant to section 134AB(16)(b) of the Act that he had suffered a serious injury within the meaning of the Act and that he be granted leave to commence common law proceedings for the recovery of damages.
His Honour Judge Lauritsen heard the application in December 2020 and by an order made on 23 March 2021, granted the applicant a Serious Injury Certificate for pain and suffering only. He made an order for costs of the proceeding in the following terms:
The Defendant pay the Plaintiff’s costs pursuant to the Workcover (Litigated Claims) Legal Costs Order 2016 to be assessed by the Costs Court in default of agreement.
Pursuant to that order, the applicant claimed in his bill of costs a tranche of disbursements relating to the costs of obtaining medical reports and records relied upon in both the Form A application and the County Court proceeding. Those items (“the disputed items”), amounting to a total of $5,690.09, are the subject of this ruling, the details of which are as follows:
Item 2: Back in Motion - Carrum Downs - medical records dated
22 March 2019
Item 3: Seaford Beach Family Clinic - medical records dated
26 March 2019
Item 4: Skye Medical Centre - medical records dated 12 April 2019
Item 5: Marina Medical Centre - medical records dated 3 June 2019
Item 7: Carrum Downs Medical Centre - medical report dated
13 May 2020
Item 8: Carrum Downs Medical Centre - medical records dated
21 May 2020
Item 10: Mr Paul D’Urso - medical report dated 25 June 2020
Item 11: HDA Medical Group Pty Ltd - Dr Horsley medical report dated 2 October 2020
In its notice of objection to the applicant’s bill of costs, filed on 22 September 2021, the respondent submitted that:
“… where medical reports or clinical notes are obtained as part of the pre-litigation process and, subject to the Applicant recovering damages, those costs are payable under the Pre-litigated Claims Legal Costs Order 2016 [the PLC-LCO]”.
“The Respondent considers the Pre-litigated Claims LCO is intended to be the only instrument governing the costs of a serious injury application. Where a cost has been incurred for the purpose not of litigation but of the making an application for common law damages, all costs and disbursements associated with the application fall under the Pre-litigated Claims LCO [the LC-LCO] (sic)”.
More particularly, the respondent contended that the costs of the medical reports and records, claimed by the applicant at items 2, 3, 4, 5, 7, 8, 10 and 11 in the bill of costs, incurred between 22 March 2019 and 2 October 2020, were commissioned and obtained, not for the purpose of the County Court proceeding, but for the purpose of the applicant’s Form A application. In the respondent’s submission, those costs are therefore only recoverable under the PLC-LCO and are not covered by his Honour’s order, which specifically refers to costs pursuant to the LC-LCO.
Summary of written and oral submissions by the Respondent
Mr Kumar, counsel for the respondent, submitted that PLC-LCO and LC-LCO are statutory instruments which should be interpreted on the same principles that apply to the interpretation of legislation, citing Project Blue Sky v Australian Broadcasting Authority[1] (“Project Blue Sky”) as the leading authority on statutory interpretation. At paragraph [69], the High Court observed that:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed” (Footnotes omitted).
[1](1998) 194 CLR 355.
Mr Kumar contended that in this case, the Costs Court should be looking at the consistency of language and purpose of the PLC-LCO and LC-LCO in the context of the regime established by section 134AB of the Act and the Ministerial Directions.
In essence, Mr Kumar argued that the two Legal Costs Orders distinguish between the costs of a Form A application and the costs of a proceeding under section 134AB(16)(b) that arise following the rejection of a Form A application by the respondent or self-insurer. The respective Legal Costs Orders set up two event based costing regimes which are to be applied consecutively or sequentially and do not overlap. They must be applied congruously, without cross over.
The respondent asserted that in the statutory context of the Act, the applicant’s Form A application “was not preparatory to the County Court proceeding, [but] a standalone process under section 134AB of the Act”. The Form A application, which requires the provision of certain documents in support of that application, as provided for in section 134AB(5)(c)(i) & (ii) of the Act and the Ministerial Directions, is a mandatory step to accessing one of the numerous “gateways” to a common law cause of action, given that such an action is “contingently extinguished” in Victoria by the effect of section 134AB(1) and (2) of the Act.
When the Form A application was made, the prospect of commencing a proceeding under section 134AB(16)(b) of the Act was a “future theoretical possibility”, which was triggered only by the rejection of the application by the VWA. The latter proceeding is a separate statutory process which would not have been necessary had the VWA had accepted the Form A application and consented to the commencement of a proceeding for the recovery of damages.
The LC-LCO has application to professional costs and disbursements of and incidental to the County Court proceeding brought under section 134AB(16)(b), to costs incurred after the commencement of that proceeding. It does not apply to costs of reports and records obtained for the purpose of the Form A application.
It is the respondent’s contention that although the documents to which the disputed costs apply were admitted into evidence in the County Court proceeding, the relevant question the Court must consider is “whether the costs of obtaining the documents, at a time when the County Court proceeding was only a theoretical possibility and might never eventuate, are properly costs of or incidental to that subsequently instituted proceeding”. In the context of the legislative regime established by section 134AB of the Act, the respondent submits that the question must be answered in the negative. The proper test for the Court to apply is to look at the purpose for which the documents were obtained and the costs incurred, rather than the purpose for which they were ultimately used.
That the documents were obtained for the purpose of the Form A application is said by the respondent to be borne out by the following matters[2]:
[2]See para [30] Respondent’s written submissions.
(a) the treaters’ records and reports (contained in items 2, 3, 4, 5, 7, 8) were obtained prior to the lodgement of the serious injury application;
(b) appointments were made with Mr D’Urso and Dr Horsley before the serious injury application;
(c) the report of Mr D’Urso was received by the applicant’s office within a couple of weeks of the application and, due to an oversight of the worker’s solicitor, was not served. Whilst the report of Dr Horsley was received after the respondent’s advice pursuant to section 134AB(7) of the ACA, it was received within 120 days from the date the Application was lodged;
(d) that the documents (and, specifically, the reports of Mr D’Urso and Dr Horsley) were obtained for the Application and the associated statutory processes is evident from their exchange shortly before the filing of the Originating Motion. The applicant requested an expedited trial and confirmed he was ready to proceed;
(e) each of the documents could not have been obtained in contemplation of the County Court proceeding, as each had been requested before the applicant became aware of the respondent’s position in relation to serious injury;
(f) had the decision of the respondent been to grant a certificate, and had each of the documents (if not already served) been given to the respondent in a timely manner, the professional costs of arranging the documents would form part of the lump sum fees set out in the PLC- LCO and the associated disbursement costs would have been clearly recoverable as costs under that legal cost order (subject to establishing entitlement thereunder).
Summary of written and oral submissions by the Applicant
Ms Cherry, counsel for the applicant, in written and oral submissions, argued that “[e]ach disputed item is a medical record or medical report which was adduced into evidence and relied upon in the [County Court] proceeding. On that basis alone, they are each properly recoverable as a cost of and incidental to the proceeding”.[3]
[3]See para [8] Applicant’s written submissions.
Ms Cherry referred to the case of Fifteenth Eestin Nominees Pty Ltd & Ors v Rosenberg & Anor (No 2)[4] (“Fifteenth Eestin”) where the Court of Appeal confirmed that “[w]hen one party is ordered to pay the other party’s costs of a proceeding, that liability extends to the costs of such preparatory steps as are shown to be reasonably connected with the proceeding” (see also Re Hudson (1986) 11 FLR 141 at para [14]).
[4][2009] VSCA 178.
The applicant contended that the Form A application was in fact a preparatory step to the County Court proceeding. If the Form A application is successful there is no need for a County Court proceeding. However if it is rejected, as it was in this case, “it is inevitable that the section 134AB(16) proceeding follows as a necessary step if the worker wishes to take the matter further … if the section 134AB (16) proceeding does eventuate, it is essential that the Form A application has happened first and rejected”.[5]
[5]Applicant’s oral submissions at the preliminary hearing.
Further, Ms Cherry stated that the disputed medical reports and records were received into evidence and expressly relied upon and considered by His Honour Judge Lauritsen in making the determination and costs order. In such circumstances, it cannot be sensibly argued that they were not reasonably connected with the County Court proceeding. This position was submitted to be reflected in the wording of paragraph 4 of Part B of the LC-LCO which allows for the recovery of costs of obtaining medical reports and records which meet any of the three criteria provided for in the relevant clause as set out herewith:
In addition to the sums specified in Part A above, the worker or worker’s legal practitioner shall be entitled to be paid as a disbursement:
4.in respect to medical reports and treater’s notes, reports and records relied upon and exchanged prior to the resolution of the proceeding, exchanged in compliance with any Order or Practice Direction of the Court and/or admitted into evidence which was necessary or proper to be obtained on behalf of the worker, the reasonable costs of (my emphasis):
(a)obtaining a copy of all treater’s notes, reports and records (excluding medico-legal reports)
(b)the reasonable cost of medico-legal reports relevant to the claim. The Authority or self-insurer may allow the cost of more than one medico-legal report per specialty.
The wording of paragraph 4 “confirms an entitlement as of right to the reasonable cost of medical reports and records which were necessary and proper to be obtained on behalf of the worker, which meet any one or more of the criteria”[6] specified in paragraph 4.
[6]Applicant written submissions, paragraph [16].
Ms Cherry argued that the respondent’s position that the Court must have regard to the purpose for which the document is obtained is “wholly irrelevant” to the application of Part B of the LC-LCO. If relevant at all, the purpose for which the documents were obtained is to progress the worker’s personal injury claim; for each and every step in that process. The first step in that process is the Form A application. At paragraph [21] of the applicant’s written submissions, Ms Cherry asserts that “the fact that these reports and records may have served a multiple purpose is irrelevant to the question of whether they were necessary and proper for the purpose of the [County Court] proceeding … the documents served only one purpose, being the advancement of the worker’s personal injury claim”. The test for the recovery of costs is therefore whether the reports are reasonably connected to the proceeding. The relevant wording of the LC-LCO and his Honour’s Order allow for the recovery of costs of and incidental to the proceeding.
It was further noted by Ms Cherry that, other than the requirement that the documents be exchanged prior to the resolution of the proceeding, the LC-LCO does not impose “temporal limits” on disbursements of this type.
With respect to the preliminary question, Mr Gill, the solicitor for the applicant, deposed in his affidavit that Items 2, 3, 4, 5, 7 and 8 in the bill of costs were provided to the VWA in support of the Form A application (Question (a)).Ms Cherry argued the costs of these reports are therefore of and incidental to the County Court proceeding and fall within his Honour’s costs order as they were admitted into evidence and relied upon in that proceeding, where the applicant was successful and was awarded his costs of the proceeding. The fact that they may have also been used in the Form A application and therefore served multiple purposes is irrelevant to the question of whether they were necessary or proper for the purposes of the County Court proceeding. There is no “sole purpose” or “dominant purpose” test applicable to the LC-LCO.
In relation to Item 10 of the bill of costs (“the D’Urso report”), the applicant’s appointment to be examined by Mr D’Urso was made on 9 June 2020 and he attended on 25 June 2020. The report was received by the applicant’s solicitor prior to 24 August 2020 however due to an oversight, was not included in the material submitted with the Form A application. Mr Gill deposes that the report was “filed with the Court” and served with the Originating Motion on 27 October 2020, was received into evidence and relied upon in that proceeding (Question (b)).
In relation to Item 11 of the bill of costs (“the Horsley report”), Mr Gill deposes that the appointment with Dr Horsley was made on 9 June 2020. The applicant was examined on 1 October 2020 and the report was received by his office on 8 October 2020, after the VWA’s rejection of the Form A application. As with the D’Urso report, the Horsley report was served and filed in the County Court proceeding, was received into evidence and relied upon in that proceeding (Question (c)).
Ms Cherry submitted that the LC-LCO allows the recovery of the D’Urso and Horsley reports given that the reports were admitted into evidence and relied upon in the County Court proceeding. The fact that they were served on the VWA “around the time” the County Court proceeding was issued does not impact on their recoverability as there are no temporal limitations in paragraph 4(b) of Part B of the LC-LCO, other than that the reports must be served prior to the resolution of the proceeding.
Discussion
Two tests have been posited as being applicable to determine the questions in this matter. The respondent argued that I should apply a purposive test and consider the purpose for which the reports and records were obtained, as this is consistent with the legislative scheme set out in section 134AB of the Act under which the costs are recoverable.
The applicant submits that the ‘purposive test’ is irrelevant. Ms Cherry’s central argument is based on the accepted costs recovery principle, confirmed by the Court of Appeal in the case Fifteenth Eestin, that all costs, including costs of preparatory steps, that are of and incidental to a proceeding are recoverable: “The fact that a cost may have been incurred during the pre-litigation process does not mean it is not a costs of the proceeding”[7]. This statement of principle is submitted to be consistent with the language of section 4 of Part B of the LC-LCO which allows for the recovery of the reasonable costs which were necessary and proper to be obtained on behalf of the worker where one of the three criteria in the relevant provision has been met.
[7]Applicant’s written submission, paragraph [31].
Ms Cherry’s argument is compelling if looked at as a broad principle of costs recovery. Where the argument fails in my view, is that it does not take account of the statutory scheme set out in section 134AB of the Act.
I accept Mr Kumar’s argument that the applicant’s reliance on the words of the LC-LCO involves a “retrospective application” of the LC-LCO. The applicant suggests that if the documents are admitted into evidence, they have an entitlement to recover the costs of obtaining those reports and records under the LC-LCO. However this approach, which extracts one portion of the LC-LCO and considers it in isolation, fails to have regard to the context within which the County Court proceeding took place and legislative regime within which the LC-LCO sits. Such an approach is contrary to the principles of statutory interpretation articulated in the decision of Project Blue Sky (above) and in my view, the statutory scheme set out in section 134AB of the Act displaces the orthodox approach to costs recovery articulated by Ms Cherry.
Section 134AB of the Act establishes a scheme for compensation arising from injuries in the workplace. Generally, the Act sets up three phases commencing with the Form A application (section 134AB(4)). If the Form A application is accepted, the worker can proceed to the third phase below. If the Form A application is rejected by the VWA and the worker wishes to pursue a common law claim, the worker must make an application under section 134AB(16) of the Act, the second phase. If successful in that proceeding, the worker can commence the common law proceedings for damages after the requirements of section 134AB(12) have been complied with and does not result in a settlement of the claim, the third phase.
The process requires the worker to submit a Form A application, supported by the material specified in the Act and Ministerial Directions. The recovery of legal costs incurred in making a Form A application after 1 July 2016 is regulated by the PLC- LCO (section 2 of the PLC-LCO).
“Application” is defined as “an application in the form referred to in section 134AB(5)(a) of the Act …”, that is, an approved form by the Authority. In this case, the documents relating to the disputed costs, on the respondent’s submissions, which I accept, were obtained for that purpose. All the documents relating to the disputed costs were requested and obtained before the County Court proceeding was initiated. The reports relating to Items 10 and 11 were served on the VWA immediately before, “in the hours prior” according to Mr Kumar, the filing of the Originating Motion. In oral submissions, Mr Kumar opined that this was presumably done to comply with section 134AB(10) which permits the provision of rebuttal material after the Form A application has been rejected by the VWA.
The information required in a Form A application goes beyond establishing a serious injury. Section 6 of the Ministerial Directions provides a comprehensive list of supporting documents that must be submitted with the Form A application including an affidavit from the worker deposing to such things as background, recreational activities, employment history and gross earnings for the three years prior to the injury relied upon, complete copies of the worker’s taxation returns or other proof of income for those three years, affidavits from non-medical expert witnesses (for example engineer’s reports) and from any other witnesses the worker intends to adduce in evidence in support of the application and a statement of claim.
I accept Mr Kumar’s argument that the Form A application is a substantive, stand alone, mandatory step in the process of obtaining compensation under section 134AB of the Act rather than a “preparatory step” to the County Court proceeding. It requires a consideration of other issues that go to the substance of the underlying claim, not just the degree of impairment. When a worker submits a Form A application it is for the sole purpose of obtaining a serious injury certificate. It is for that purpose that the costs are incurred, not as a preparatory step to an application under section 134AB(16)(b), which will not be necessary if the Form A application is successful. The mere fact that, by virtue of the statutory scheme, the Form A must be made first, does make it a preparatory step to another phase of the scheme.
The respondent notes that in the 2018/2019 and 2019/2020 financial years, approximately 70% of Form A applications were resolved without an Originating Motion being filed in the County Court[8].It cannot be said therefore that such a process is a preparatory step to a proceeding which may never happen.
[8]Paragraph [10] Colonna affidavit; Footnote 10 respondent’s written submissions
The second phase, the proceeding pursuant to section 134AB(16)(b) of the Act, is triggered by the rejection of the Form A application by the VWA. In this case, as the applicant’s Form A application was rejected by the VWA, he was required to issue the County Court proceedings in order to obtain leave to issue common law proceedings for the recovery of damages. That also is a standalone proceeding.
Both the LC-LCO and the PLC-LCO are stated to have “full force and effect notwithstanding anything to the contrary in the Legal Profession Uniform Law Application Act 2014, the Supreme Court Act 1986 or the County Court Act 1958 or any regulations, rules, order or other document made under any of those Acts” – they are a code for the recovery of costs under section 134AB of the Act.
Read within the context of the statutory regime in section 134AB of the Act, it can be inferred that legal costs are recoverable within the phase in which they are incurred. Whether incurred for the purpose of a Form A application or a County Court proceeding, the respective Legal Costs Orders confine the recovery of costs to each distinct phase.
Here the disputed costs were incurred in the Form A application phase. The PLC-LCO provides a process for recovery of those costs that is conditional on the applicant recovering damages, either:
(a) Where no application has been made under section 134AB(16) and no proceeding has been commenced under section 134AB(12) of the Act (Part A); or
(b) after an application under section 134AB(16) has been made but prior to commencing a proceeding under section 134AB(12) of the Act (Part B).
On the information before me, neither Part A nor Part B of the PLC-LCO is available to the applicant at the present time as there has been no settlement or compromise leading to the recovery of damages. The right to recover the costs of the Form A application only crystallises upon the recovery of damages. It is accepted that this may never occur, in which case the applicant will not be able to recover costs of the Form A application or, if damages are ultimately recovered, it will result in a delay in the recovery of those costs. However this does not derogate from the scheme that has been set up under section 134AB of the Act.
It is also important to note that even when the applicant is successful in the common law damages claim, the costs of the reports and records obtained for the Form A application phase are recoverable pursuant to the PLC-LCO. They will not be recoverable under the cost order made by the Court, despite the fact the they might have been relied upon for the purposes of the compulsory conference under section 134AB(12) and, if the matter proceeds to a common law damages proceeding, relied upon and submitted into evidence in that proceeding. In my view, this lends significant support to the argument that costs are confined to the phase in which they were incurred, or the purpose for which they were incurred.
When looked at in the context of the statutory scheme outlined in section 134AB of the Act and the specific provisions of the two Legal Cost Orders, the applicant’s position becomes, in my view, untenable. If the disputed costs were recoverable in the County Court proceeding pursuant to the LC-LCO, the PLC-LCO would be effectively redundant. The legislature’s intention, as specifically provided in Parts A and B of the PLC-LCO, is that the professional costs of the application (i.e. the Form A application as defined in section 2 therein) are claimable upon the recovery of damages by the worker. Part C provides for disbursements in addition to costs under Parts A and B.
Those provisions would serve no purpose if the applicant in this case was permitted to recover the costs of medical reports and records obtained in support of his Form A application before he recovered damages. This cannot be said to give effect to the legislature’s intention.
I accept that the words of paragraph 4 of Part A of the LC-LCO are broad and under ordinary costs recovery principles would allow for the recovery of the disputed costs. However as argued by Mr Kumar, those provisions must be read “congruously”, in the context of the legislative framework set out in section 134AB of the Act. The two orders have specific roles to play within that statutory scheme which in my view, do not overlap. The professional costs and disbursements recoverable under the LC-LCO should be confined to the costs of and incidental to the County Court proceeding, that is, costs incurred after the commencement of that proceeding. To find otherwise would effectively render superfluous the PLC-LCO in cases such as the one before the Costs Court.
Ruling
Having so found, I now turn to the preliminary question. In relation to parts (a), (b) and (c) of the preliminary question, the costs of the medical reports and records specified therein were incurred for the purpose of the Form A application (see para [21] above). As the costs were incurred in that phase of the statutory scheme provided for in section 134AB of the Act, they are not recoverable under the WorkCover (Litigated Claims) Legal Costs Order.
Accordingly, I will tax off items 2, 3, 4, 5, 7, 8, 10 and 11 in the bill of costs.
Other matters
In the course of oral submissions, Ms Cherry referred to a letter sent by Mr Gill, her instructing solicitor, to the VWA on 4 December 2017 addressing the issues canvassed in this preliminary hearing. The VWA’s response to that letter, dated 8 March 2018, was included in its material however Mr Gill’s letter was not. Although called for at the hearing by Ms Cherry, the Costs Court received a copy of that letter on 13 April 2022. I have given consideration to both letters which essentially reflect the respective positions of the parties, articulated at the preliminary hearing.
Further, at the preliminary hearing, Ms Cherry referred the Costs Court to a “Draft Consultation” document which appears to contain proposed draft amendments to the Ministerial Directions, the PLC-LCO and the LC-LCO. Ms Cherry referred to a proposed amendment to the LC-LCO which purports to limit the recovery of the costs of medical reports and records to those “obtained after the commencement of the proceeding”. Ms Cherry argues that the proposed provision sheds some light on the VWA’s position as to the interpretation of paragraph 4 of Part B of the LC-LCO. She opined that the VWA wants the proposed amendment to be introduced so that costs of reports and records incurred in similar circumstances to this case, will not be recoverable. The fact that no such exclusion currently exists supports the applicant’s argument with respect to how the LC-LCO should be applied.
I am not persuaded by Ms Cherry’s submission. The Draft Consultation document is presented without any background or context. I was not referred to any principle of statutory interpretation which would provide me with some assistance as to how I might consider it. In the absence of any evidence, I am not prepared to speculate on its origins, purpose or the objectives for which it is created. I was not assisted by the document and disregarded it in reaching my conclusion.
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