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This is a Bill, not an Act. For current law, see the Acts databases.
Workers Compensation Legislation
Amendment (Costs) Bill 2012
No , 2012
A Bill for
An Act to amend workers compensation legislation with respect to the awarding of
costs in claims for workers compensation.
Clause 1 Workers Compensation Legislation Amendment (Costs) Bill 2012
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Workers Compensation Legislation Amendment (Costs) 3
Act 2012. 4
2 Commencement 5
This Act commences on the date of assent to this Act. 6
3 Amendment of Workers Compensation Legislation Amendment Act 2012 7
No 53 8
Schedule 11 Miscellaneous amendments 9
Omit Schedule 11 [11]. 10
Page 2
Workers Compensation Legislation Amendment (Costs) Bill 2012
Amendment of Workplace Injury Management and Workers Compensation Schedule 1
Act 1998 No 86
Schedule 1 Amendment of Workplace Injury 1
Management and Workers 2
Compensation Act 1998 No 86 3
Chapter 7, Part 8 4
Omit Division 3. Insert instead: 5
Division 3 Special provisions for costs in compensation 6
and damages assessment matters 7
340 Application of Division 8
This Division applies to costs payable by a party, or by a party's 9
insurer, in or in relation to a claim for compensation. 10
341 Costs to be determined by Commission 11
(1) Costs to which this Division applies are in the discretion of the 12
Commission. 13
(2) The Commission has full power to determine by whom, to whom 14
and to what extent costs are to be paid. 15
(3) The Commission may order costs to be assessed on the basis set 16
out in Division 11 of Part 3.2 of the Legal Profession Act 2004 17
(or in relevant regulations under Division 4 of this Part) or on an 18
indemnity basis. 19
(4) Subject to this Division, if the Commission makes any order as to 20
costs, the Commission is to order that the costs follow the event 21
unless it appears to the Commission that some other order should 22
be made as to the whole or any part of the costs, or as the 23
regulations otherwise provide. 24
(5) Despite subsection (4), the Commission may only order the 25
payment of costs by a claimant if the Commission is satisfied that 26
the claimant's claim was without any arguable merit. 27
(6) Any party to a claim may apply to the Commission for an award 28
of costs. 29
342 Costs unreasonably incurred 30
(1) If the Commission is satisfied that any party's costs on a claim 31
have been unreasonably incurred, the Commission is to order that 32
those costs are not to be paid by any other party to the claim. 33
Page 3
Workers Compensation Legislation Amendment (Costs) Bill 2012
Schedule 1 Amendment of Workplace Injury Management and Workers Compensation
Act 1998 No 86
(2) A costs agreement within the meaning of Part 3.2 of the Legal 1
Profession Act 2004 is of no effect to the extent to which it relates 2
to costs the subject of an order in force under subsection (1). 3
(3) Costs incurred by a party to a claim are considered to have been 4
unreasonably incurred for the purposes of this section only if they 5
were incurred by the party: 6
(a) after a reasonable offer of settlement of the claim was 7
made to the party, or 8
(b) after the party has failed without reasonable excuse to 9
comply with a written request from another party to the 10
claim to provide that other party with particulars 11
(including any necessary medical report) sufficient to 12
enable that other party to properly consider the claim for 13
the purpose of making an offer of settlement, or 14
(c) after the party has unreasonably failed to participate in 15
conciliation of a dispute with which the claim is concerned 16
and the Commission is of the opinion that the failure has 17
resulted in unnecessary litigation, or 18
(d) in connection with an unsuccessful application by the party 19
to admit further evidence in respect of matters of which a 20
medical assessment certificate of an approved medical 21
specialist that has been admitted in evidence in 22
proceedings is evidence (whether or not conclusive 23
evidence) and the Commission is of the opinion that the 24
application was frivolous or vexatious, or 25
(e) in connection with any issue raised in relation to a claim in 26
respect of which there were, when the issue was raised, no 27
grounds for a reasonable belief that the issue would be 28
determined in favour of the party by whom it was raised. 29
(4) A legal practitioner representing a party to proceedings before the 30
Commission, or providing legal services to the party's insurer, is 31
not entitled to recover from the party or insurer, as the case may 32
be, any costs that the Commission has ordered are to be treated as 33
unreasonably incurred. 34
(5) The Commission may by order exempt any costs or a proportion 35
of any costs from the operation of this section if of the opinion 36
that it would be unjust not to do so because the legal practitioner 37
concerned made all reasonable efforts to avoid unnecessary 38
litigation in the proceedings or for any other reason should not be 39
held responsible for the incurring of the costs concerned. 40
Page 4
Workers Compensation Legislation Amendment (Costs) Bill 2012
Amendment of Workplace Injury Management and Workers Compensation Schedule 1
Act 1998 No 86
343 Restrictions on recovery of solicitor/client costs 1
(1) The legal representative or agent of a person in respect of a claim 2
made or to be made by the person: 3
(a) is not entitled to recover from the person any costs in 4
respect of the claim unless those costs are awarded by the 5
Commission, and 6
(b) is not entitled to claim a lien in respect of those costs on, 7
or deduct those costs from, the sum awarded, ordered or 8
agreed as compensation unless those costs are awarded by 9
the Commission. 10
(2) Any such award of costs may be made on the application either 11
of the person or of the legal representative or agent concerned. 12
(3) This section prevails to the extent of any inconsistency with 13
Part 3.2 of the Legal Profession Act 2004. 14
(4) A person must not: 15
(a) claim a lien that the person is not entitled to claim because 16
of this section, or 17
(b) deduct costs from a sum awarded, ordered or agreed as 18
compensation that the person is not entitled to deduct 19
because of this section. 20
Maximum penalty: 50 penalty units. 21
(5) A person who has paid an amount in respect of costs to another 22
person that the other person was not entitled to recover because 23
of this section is entitled to recover the amount paid as a debt in 24
a court of competent jurisdiction. 25
344 Liability of legal practitioner for client's costs in certain cases 26
(1) The Commission may, at any stage of a matter, make one or more 27
of the following orders in respect of a legal practitioner whose 28
serious neglect, serious incompetence or serious misconduct 29
delays, or contributes to delaying, the matter: 30
(a) an order disallowing the whole or any part of the costs 31
between the legal practitioner and his or her client, 32
(b) an order directing the legal practitioner to repay to his or 33
her client the whole or any part of the costs that the client 34
has been ordered to pay to any other party, 35
(c) an order directing the legal practitioner to indemnify any 36
party other than his or her client against the whole or any 37
part of the costs payable by the party indemnified. 38
Page 5
Workers Compensation Legislation Amendment (Costs) Bill 2012
Schedule 1 Amendment of Workplace Injury Management and Workers Compensation
Act 1998 No 86
(2) The Commission may refer a matter to a costs assessor for 1
inquiry and report before making such an order. 2
(3) The Commission may order that notice of such an order against a 3
legal practitioner is to be given to the legal practitioner's client in 4
a specified manner. 5
(4) A legal practitioner is not entitled to demand, recover or accept 6
from his or her client any part of the amount for which the legal 7
practitioner is directed by the Commission to indemnify a party 8
pursuant to such an order. 9
(5) This section does not limit any other provision of this Part. 10
345 Costs penalties where appeal is unsuccessful 11
(1) On an appeal from the Commission constituted by an Arbitrator 12
to the Commission constituted by a Presidential member: 13
(a) if the appellant is unsuccessful on the appeal, the 14
Commission is to order that the appellant's costs on the 15
appeal are not to be paid by any other party to the appeal, 16
and 17
(b) if the appellant is an insurer (other than a licensed insurer 18
that maintains a statutory fund under the 1987 Act) and is 19
unsuccessful on the appeal, the Commission may order the 20
insurer to pay to the Authority for payment into the 21
WorkCover Authority Fund an administration fee of 22
$1,000 or such other amount as may be prescribed by the 23
regulations. 24
(2) A costs agreement within the meaning of Part 3.2 of the Legal 25
Profession Act 2004 is of no effect to the extent to which it relates 26
to costs the subject of an order in force under subsection (1) (a). 27
(3) If an appeal concerns lump sum compensation, weekly payments 28
of compensation or medical expenses compensation, the 29
appellant is considered to be unsuccessful on the appeal unless 30
the decision on appeal results in a change in favour of the 31
appellant in the amount awarded or ordered to be paid in the 32
decision appealed against of at least $5,000 (or such other amount 33
as may be prescribed by the regulations) and at least 20% of the 34
amount awarded or ordered to be paid. 35
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Workers Compensation Legislation Amendment (Costs) Bill 2012
Amendment of Workplace Injury Management and Workers Compensation Schedule 1
Act 1998 No 86
(4) An administration fee that an insurer is ordered to pay is 1
recoverable as a debt due to the Authority. 2
(5) The Registrar is to notify the Authority of an order to an insurer 3
under this section to pay an administration fee. 4
Page 7
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