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SESSION OVERVIEW Overview of the costs model Issues of interest

LAW PARTNERS COMPENSATION LAWYERS COSTS IN WORKERS COMPENSATION MATTERS 8 SEPTEMBER 2011 Rodney Parsons, Deputy Registrar Telephone: 8281 6403. SESSION OVERVIEW Overview of the costs model Issues of interest. POWER TO ORDER COSTS Section 341(2) Commission full discretion costs payable:

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SESSION OVERVIEW Overview of the costs model Issues of interest

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  1. LAW PARTNERS COMPENSATION LAWYERSCOSTS IN WORKERS COMPENSATION MATTERS8 SEPTEMBER 2011 Rodney Parsons, Deputy RegistrarTelephone: 8281 6403

  2. SESSION OVERVIEW • Overview of the costs model • Issues of interest

  3. 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

  4. COSTS ORDERS That the Respondent pay the Applicant’s costsas agreed or assessed

  5. COSTS ORDERS That the Respondent pay the Applicant’s costsas agreed or assessed That the Respondent pay the Applicant’s costsin the sum of $__________

  6. 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 NEW COSTS

  7. 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

  8. 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 – www.wcc.nsw.gov.au COSTS REGULATIONS

  9. 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

  10. 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 GENERAL RULES

  11. 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

  12. 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

  13. General Resolution Types • Table 2 – applicable rate • Table 1 – costs payable THE TABLES

  14. General Resolution Types • Table 2 – applicable rate • Table 1 – costs payable • Additional Legal Services or Other Factors • Table 4 – additional costs THE TABLES

  15. 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

  16. 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 2GENERAL RESOLUTION TYPES – APPLICABLE RATE

  17. $9,000 RESOLUTION STAGE 75% 100% $8,000 T O T A L C O S T S TABLE 1GENERAL RESOLUTION TYPES – CLAIMANT COSTS PAYABLE $7,000 $6,000 $5,000 $4,000 $3,000 $2,000 $1,000 TABLE 1 RESOLUTION TYPE

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

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

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

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

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

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

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

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

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

  27. TABLE 4 – ITEM 5ADDITIONAL LEGAL SERVICES OR OTHER FACTORS $9,000 COMPLEX INCREASE & MULTIPLE EMPLOYER– CLAIMANT $8,000 T O T A L C O S T S $7,000 $6,000 $5,000 Item 5 0% - 45% (complex & multiple employers) (Item D, E or F of Table 1) $4,000 $3,000 $2,000 $1,000 A B C D E F 1 2 3 TABLE 1 TABLE 4 RESOLUTION TYPE

  28. TABLE 4 – ITEM 5ADDITIONAL LEGAL SERVICES OR OTHER FACTORS $9,000 COMPLEX INCREASE & MULTIPLE EMPLOYER– CLAIMANT $8,000 T O T A L C O S T S $7,000 $6,000 $5,000 Item 5 0% - 45% (complex & multiple employers) (Item D, E or F of Table 1) $4,000 $3,000 $2,000 $1,000 A B C D E F 1 2 3 TABLE 1 TABLE 4 RESOLUTION TYPE

  29. TABLE 1 & TABLE 4INSURER COSTS $9,000 $8,000 T O T A L C O S T S $7,000 $6,000 $5,000 $4,000 $3,000 $2,000 $1,000 A B C D E F 1 2 3 TABLE 1 TABLE 4 RESOLUTION TYPE

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

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

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

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

  34. TABLE 4 – ITEM 5ADDITIONAL LEGAL SERVICES OR OTHER FACTORS $9,000 COMPLEX INCREASE & MULTIPLE EMPLOYER– INSURER $8,000 T O T A L C O S T S $7,000 $6,000 $5,000 Item 5 0% - 45% (complex & lead scheme agent) (Item D, E or F of Table 1) $4,000 $3,000 $2,000 $1,000 A B C D E F 1 2 3 TABLE 1 TABLE 4 RESOLUTION TYPE

  35. TABLE 4 – ITEM 5ADDITIONAL LEGAL SERVICES OR OTHER FACTORS $9,000 COMPLEX INCREASE & MULTIPLE EMPLOYER– INSURER $8,000 T O T A L C O S T S $7,000 $6,000 $5,000 Item 5 0% - 45% (complex & lead scheme agent) $4,000 $3,000 $2,000 $1,000 A B C D E F 1 2 3 TABLE 1 TABLE 4 RESOLUTION TYPE

  36. 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

  37. 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

  38. 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

  39. 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

  40. 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]).

  41. 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

  42. 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

  43. 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

  44. 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

  45. 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.

  46. COMPLEX PER MATTER / PER PARTY • Table 4 – Items 4 and 5 “If the Commission or Registrar certifies the matter as complex” Different per party?

  47. 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

  48. 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

  49. 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

  50. LAW PARTNERS COMPENSATION LAWYERSCOSTS IN WORKERS COMPENSATION MATTERS8 SEPTEMBER 2011 Rodney Parsons, Deputy RegistrarTelephone: 8281 6403

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