New South Wales Repealed Regulations

This legislation has been repealed.

WORKERS COMPENSATION REGULATION 2010 - SCHEDULE 6

SCHEDULE 6 – Maximum costs--compensation matters

Part 1 - Application and operation of Schedule

1 Introduction

(1) This Schedule applies to:

(a) workers compensation claims and disputes that are resolved before proceedings are commenced in the Workers Compensation Commission (the
"Commission" ) (in certain circumstances), and

(b) disputes that are resolved after proceedings have been commenced in the Commission.

(2) When a claim or dispute is resolved, legal practitioners or agents representing the parties will need to determine what type of resolution has been reached and when it was resolved. By applying these factors to this Schedule, the legal practitioners or agents will be able to ascertain the costs recoverable.

(3) If a claim or dispute involves a number of resolution types that are resolved concurrently, or within a specified time frame, the costs recoverable are restricted to the resolution for which the highest amount of costs is payable.

(4) The recoverable costs will be either:

(a) a maximum flat, predetermined figure, or

(b) in the case of certain "special resolutions", a maximum amount establishing a range within which the parties may negotiate their costs entitlement.

(5) If a claim or dispute (other than a claim or dispute resolved by special resolution) includes "additional legal services" or involves "factors" as referred to in Table 4, there may be an additional allowance that can be added to the entitlement to costs.

(6) Part 3 determines regulated disbursements. Unregulated disbursements as identified by clause 113 of the Workers Compensation Regulation 2010 , may be determined by the Legal Profession Regulation 2005 , or if that Regulation does not apply, then principles of fairness and reasonableness apply. Disbursements that are neither regulated under Part 3 nor specified in clause 113 of the Workers Compensation Regulation 2010 are not recoverable, subject to clause 17 of this Part (Recovery of certain charges for certain documents from public authorities).

(7) This Schedule contains three Parts:

Part 1 contains definitions, describes how the Tables operate and in some cases modifies the operation of the Tables.

Part 2 contains four tables:

Table 1 sets out the phases at which claims and disputes may be resolved and the costs that apply for the resolution at each phase.

Table 2 sets out the types of resolutions that apply to Table 1, and indicates the level of costs (ie 75% or 100%) that will apply to that resolution type.

Table 3 sets out alternate or "special" resolution types and the applicable costs for each party. Tables 1 and 2 do not apply to these "special" resolution types.

Table 4 sets out additional legal services and other factors that may result in an increase to the costs claimable under Table 1.

Part 3 lists regulated disbursements.

2 Definitions

(1) In this Schedule:

"application" means an application for resolution of a claim or dispute in the approved form accepted by the Registrar for registration.

"complying agreement" has the same meaning as in section 66A of the 1987 Act.

"dispute notice" means:

(a) a notice issued under section 54 of the 1987 Act, or

(b) a notice issued under section 74 of the 1998 Act, or

(c) a notice issued under section 287A of the 1998 Act.

"fee order" means an order made by the Authority in relation to fees.

"insurer" includes the Nominal Insurer, a self-insurer and a specialised insurer.

"lead scheme agent" means the agent who is representing the Nominal Insurer on behalf of a number of scheme agents in the conduct of a claim or dispute.

"legal practitioner" means an Australian legal practitioner.

"Nominal Insurer" has the same meaning as in the 1987 Act.

"resolved" --see subclauses (2) and (3).

"respondent" means a person who is a party to a dispute other than the applicant.

"scheme agent" has the same meaning as in the 1987 Act.

"self-insurer" has the same meaning as in the 1987 Act.

"specialised insurer" has the same meaning as in the 1987 Act.

"Table" means a Table in Part 2.

"teleconference" means a telephone conference conducted by the Registrar or the Commission.

"the 1926 Act" means the Workers' Compensation Act 1926 .

(2) Meaning of "resolved"--claimant For the purposes of this Schedule, a claim or dispute is resolved, in relation to a claimant, if:

(a) the claim or dispute is wholly or partly resolved in the claimant's favour, or

(b) an application brought by an insurer in relation to the claim or dispute is successfully defended in whole or in part,

but does not include a matter discontinued, withdrawn, dismissed or struck out without any resolution referred to in paragraph (a) or (b) unless otherwise ordered or certified for the purposes of cost recovery by the Commission or the Registrar.

(3) Meaning of "resolved"--insurer For the purposes of this Schedule, a claim or dispute involving a claimant is resolved, in relation to an insurer, if:

(a) the claim or dispute is concluded, or

(b) an application brought by the insurer in respect of the claim or dispute is concluded,

unless otherwise ordered or certified for the purposes of cost recovery by the Commission or the Registrar.

(4) Meaning of other compensation claim or dispute in Table 1 A reference in Table 1 to an
"other compensation claim or dispute" (or
"other compensation dispute" ) is a reference to a claim or dispute (or a dispute) concerning compensation to which the resolutions in items 5-16 of Table 2 relate.

Note : The purpose of this subclause is to make it clear that the successive use of the word "other" in Table 1 does not result in successive narrowing of the terms used.

3 Overall application of Schedule

(1) This Schedule is to be read and applied in its entirety, and accordingly this Schedule applies in relation to costs in accordance with:

(a) the descriptions contained in Tables 1 to 4, and

(b) the notes in Part 2, and

(c) Parts 1 and 3.

(2) This Schedule prescribes the maximum costs recoverable in respect of work carried out to achieve the resolution types described in Tables 2 and 3 for:

(a) resolving claims and disputes before an application is accepted by the Registrar for registration, or

(b) resolving disputes after an application is accepted by the Registrar for registration.

4 General application of Tables

(1) General resolution types The maximum amount of costs for the resolution of a claim or dispute as described in Table 2 are the amounts set out in:

(a) column 1 or 2 of Table 1 for the claimant, and

(b) column 3 or 4 of Table 1 for the insurer,

for the applicable phase.
However:

(a) that maximum amount may be decreased by an amount already received under an entitlement from Table 3 in circumstances specified in that Table, and

(b) that maximum amount may be increased by an entitlement under Table 4 in circumstances specified in that Table.

(2) Special resolution types The maximum amount of costs for the resolution of a claim or dispute as described in Table 3 are the amounts set out in that Table.

(3) Additional legal services or other factors--general The maximum amount of costs for an additional legal service or other factor in respect of a resolution as described in items 1-5 of Table 4 is up to the amount or percentage of costs set out in:

(a) columns 1 and 3 of items 1-4 of Table 4 for the claimant, and

(b) columns 2 and 4 of items 1-4 of Table 4 for the insurer, and

(c) column 1 of item 5 of Table 4 for the claimant, and

(d) column 2 of item 5 of Table 4 for the insurer.

Accordingly and for the avoidance of doubt:

(a) an entitlement to costs under item 1, 2 or 3 of Table 4 as certified by the Commission or the Registrar may be added to the costs recoverable under item B, D, E or F of Table 1, and

(b) an entitlement to a percentage increase in costs ascertained under item 4 or 5 of Table 4 and as certified by the Commission or the Registrar applies to increase the costs claimable under item D, E or F of Table 1, and

(c) an entitlement to costs under item 1, 2 or 3 of Table 4 as certified by the Commission or the Registrar is recoverable by an insurer in respect of a resolution referred to in item B of Table 1 even though no costs may be recoverable by the insurer under that item.

(4) Additional legal services or other factors--multiple respondents or lead scheme agent The maximum costs for an additional legal service or other factor as described in items 6 and 7 of Table 4 are up to the percentage applicable for the claimant and insurer as specified.
Accordingly and for the avoidance of doubt, an entitlement to a percentage increase in costs ascertained under items 6 and 7 of Table 4 applies to increase the costs claimable under items A to F of Table 1.

(5) Table 4 costs not separately claimable Except as referred to in subclause (3) (c), costs specified in Table 4 are recoverable only if costs as described in Table 1 are also recoverable.

5 When Table 1 costs recoverable

Costs specified in clause 4 of this Part are recoverable only on resolution of the claim or dispute concerned.

6 Special provisions for Table 1 costs--dispute about permanent impairment and pain and suffering

(1) An exception to the standard method of determining the appropriate Table 1 costs for a claimant and an insurer based upon the meaning of "resolved" under clause 2 of this Part and the types of resolutions set out in Table 2 applies, where:

(a) a claimant has made an application to the Commission to resolve a dispute about permanent impairment and pain and suffering pursuant to sections 66 and 67 of the 1987 Act, and

(b) the section 67 claim has been substantiated by:

(i) a report, from a medical specialist with qualifications and training relevant to the body system being assessed who has been trained in the WorkCover Guidelines, to the effect that the claimant has sustained 10% or more whole person impairment where:

(A) the injury was sustained on or after 1 January 2002, and

(B) that report has been served on the insurer, or

(ii) a medical report to the effect that the claimant has sustained a loss or losses of 10% or more of the maximum amount referred to in section 66 (1) of the 1987 Act where:

(A) the injury was sustained before 1 January 2002, and

(B) that report has been served on the insurer, and

(c) the medical assessment certificate issued by an approved medical specialist or a Medical Appeal Panel is to the effect that the degree of whole person impairment of the claimant is below 10% or the loss or losses are not 10% or more of the maximum amount referred to in section 66 (1) of the 1987 Act.

(2) In a case to which subclause (1) applies:

(a) the claimant is entitled to maximum costs in the amount of $4,000, and

(b) the insurer is entitled to maximum costs in the amount of $1,875.

(3) In this clause:

"Medical Appeal Panel" means an Appeal Panel constituted under section 328 of the 1998 Act.

Note : The deduction in respect of an advice to an insurer under item F of Table 3 applies to this costs provision.

7 When Table 3 costs recoverable, and reduction of subsequent Table 1 costs

(1) When Table 3 costs recoverable Costs specified in Table 3 as "Special Resolution Types" are recoverable only:

(a) on resolution of the dispute in respect of items A, B and C of that Table, or

(b) on registration of the agreement with the Commission in respect of item D of that Table, or

(c) when an existing decision of the insurer has been varied as a consequence of a legal service, where it was reasonable to carry out that service in respect of item E of that Table, or

(d) when written advice has been provided to the insurer in respect of item F of that Table, or

(e) when independent legal advice has been given to a claimant in respect of a complying agreement proposed by an insurer in respect of item G of that Table.

(2) Reduction of subsequent Table 1 costs The costs referred to in subclause (1) are not payable or recoverable in conjunction with any other items in this Schedule (with the exception of disbursements under Part 3 or disbursements specified in clause 111) with the result that:

(a) if costs have been recovered in respect of item A, B or C of Table 3 and costs subsequently become recoverable under Table 1 in respect of a resolution that relates to the same issue, the entitlement to costs under Table 1 is to be reduced by any payment already made in respect of item A, B or C of Table 3, and

(b) if costs have been recovered in respect of item E of Table 3 and costs subsequently become payable under Table 1 in respect of a resolution that relates to the same issue, the entitlement to costs under Table 1 is to be reduced by any payment made in respect of item E of Table 3, and

(c) if costs have been recovered in respect of item F of Table 3 and costs subsequently become payable under Table 1 in respect of a claim or dispute relating to the issue addressed in the written advice, the entitlement to costs under Table 1 is to be reduced by any payment made in respect of item F of Table 3 (but the maximum reduction is the amount paid for the first such advice), and

(d) if costs have been recovered in respect of item G of Table 3 and costs subsequently become payable under Table 1 in respect of a claim or dispute relating to the issue addressed in the complying agreement, the entitlement to costs under Table 1 is to be reduced by a payment made in respect of item G of Table 3.

(3) Subclause (2) (c) does not apply where:

(a) payment was for advice given on issues that are not in dispute and thus are not part of the Table 1 resolution, in which case there is to be no deduction, or

(b) a period of more than 12 months has elapsed between the giving of the advice and the Table 1 resolution, or

(c) the Registrar, on application, determines that the need for the costs to be incurred for the Table 1 resolution could not have been foreseen at the time that costs for the advice were first incurred.

No costs are payable or recoverable in respect of an application for the purposes of paragraph (c).

(4) Subclause (2) (d) does not apply where a period of more than 12 months has elapsed between the giving of the advice in respect of the complying agreement and the Table 1 resolution.

8 Maximum payable where more than one resolution type

(1) Subject to clause 7 of this Part, where the resolution includes more than one resolution type in Table 2, or includes resolution types in Tables 2 and 3, the following provisions apply:

(a) in relation to a claimant:

(i) if all resolutions fall within column 1 of Table 1, the single highest amount claimable for a resolution is payable, once only, or

(ii) if all resolutions fall within column 2 of Table 1, the single highest amount claimable for a resolution is payable, once only, or

(iii) if resolutions fall within both columns 1 and 2 of Table 1, the single highest amount claimable for a resolution is payable, once only, or

(iv) if resolutions fall within both Tables 1 and 3, the single highest amount claimable for a resolution is payable, once only,

(b) in relation to an insurer:

(i) if all resolutions fall within column 3 of Table 1, the single highest amount claimable for a resolution is payable, once only, or

(ii) if all resolutions fall within column 4 of Table 1, the single highest amount claimable for a resolution is payable, once only, or

(iii) if resolutions fall within both columns 3 and 4 of Table 1, the single highest amount claimable for a resolution is payable, once only, or

(iv) if resolutions fall within both Tables 1 and 3, the single highest amount claimable for a resolution is payable, once only.

(2) Where subclause (1) applies and additional legal services or other factors set out in Table 4 are also claimable, the Table 4 items are payable up to the highest rate claimable, once only.

9 Maximum payable where more than one claim or dispute

(1) If more than one claim or dispute is resolved in respect of a particular injury, the maximum costs recoverable, regardless of how many resolution types there are, is the maximum as set out in clause 8 of this Part.

(2) Subclause (1) does not apply if:

(a) a period of more than 12 months has elapsed between each successive resolution in respect of the injury, or

(b) the Commission or the Registrar, on application, orders that the resolutions are to be treated as separate resolutions for the purposes of the calculation or assessment of costs.

No costs are payable or recoverable in respect of an application for the purposes of paragraph (b).

10 Maximum payable covers all work

The costs allowed under:

(a) Table 1 in column 1, 2, 3 or 4 for each type of general resolution, and

(b) Table 3 for each type of special resolution, and

(c) Table 4 for additional legal services or other factors,

11 Determination of maximum payable where an upper limit is set

If Table 3 or 4 or Part 3 sets an upper limit for the maximum payable by way of any costs, the maximum payable is to be an amount determined, within the range from and including nil to and including the upper limit, by reference to:

(a) any applicable practice direction or Registrar's guideline, and

(b) subject to paragraph (a), the nature and extent of the service performed.

12 Table 2--resolution after teleconference and before further attendance

Where the Commission or the Registrar issues a determination in respect of a resolution type in Table 2, following the initial teleconference and before any further attendances, the costs in relation to that resolution fall within item D of Table 1.

13 Table 3--orders

For the purposes of Table 3, the Commission or the Registrar may order declaring that a particular proceeding is in respect of the resolution of "other proceedings" as referred to in item C of that Table.

14 Special provisions for Table 1 and Table 3 costs--legal advice to claimant on complying agreement

(1) Costs are not recoverable under item A of Table 1 in respect of independent legal advice given to a claimant in respect of a complying agreement proposed by an insurer, if the only service provided to the claimant relates to the giving of that advice.

(2) Costs are not recoverable under item G of Table 3 in respect of independent legal advice given to a claimant in respect of a complying agreement proposed by an insurer, unless the only service provided to the claimant relates to the giving of that advice.

Note : section 66A (6) of the 1987 Act provides that nothing in section 66A prevents a complying agreement from containing provision as to the payment of costs. Accordingly, a complying agreement may provide for the payment of costs, but the maximum recoverable is subject to Part 2.

15 Country/interstate loadings--Part 3

Country or interstate loadings (including travel and accommodation expenses) are payable in accordance with clause 3 or 4 (as relevant) of Schedule 1 to the Motor Accidents Compensation Regulation 2005 , and the provisions of those clauses apply, with any necessary modifications and with any modifications contained in a practice direction or Registrar's guideline, for that purpose.

16 Certain agents not entitled to costs

(1) No amount is recoverable for costs by an agent who is not an agent as defined in section 356 (6) of the 1998 Act, with the result that the agent is not entitled to be paid or recover any amount for the service or matter concerned.

(2) Nothing in this clause prevents an agent who is a legal practitioner from being entitled to be paid or recover any costs.

17 Recovery of certain charges for certain documents from public authorities

Nothing in this Regulation (including this Schedule) prevents the recovery, as a disbursement, of the fee or charge set for any of the following reports, certificates, searches or services by the agency concerned in a claim in respect of a particular injury:

(a) a report from a coroner, the NSW Police Force or the Roads and Traffic Authority relevant to the claim,

(b) a land title search from Land and Property Information NSW relevant to the claim,

(c) a certificate from the Registry of Births, Deaths and Marriages relevant to the claim,

(d) an application under the Freedom of Information Act 1989 relevant to the claim,

(e) a company or business name search from the Australian Securities and Investments Commission relevant to the claim.

18 Costs unreasonably incurred

Where the Commission is satisfied that a party's costs have been unreasonably incurred in accordance with section 342 of the 1998 Act, the maximum amount of recoverable costs, if any, is restricted to the costs recoverable in the phase where the circumstances referred to in section 342 (2) of that Act arose and is not to include any further costs.

Part 2 - Costs

Table 1 General resolution types--costs payable

Table 2 General resolution types--applicable rate

Table 3 Special resolution types--costs payable

Table 4 Additional legal services or other factors

Part 3 - Regulated disbursements