Division 6 Proceedings before Commission or the Compensation Court
105 Jurisdiction of Commission and Compensation Court
(1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.Note. The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer. See section 43 of the 1987 Act.(2) The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act.(3) The Commission does not have jurisdiction in respect of matters that the Compensation Court or (after the repeal of the Compensation Court Act 1984) the District Court has jurisdiction to examine, hear and determine.(4) Subject to this Act and the Compensation Court Act 1984, the Compensation Court has exclusive jurisdiction to examine, hear and determine all existing claim matters except matters arising under Part 5 of the 1987 Act.(4A) After the repeal of the Compensation Court Act 1984, the District Court has exclusive jurisdiction to examine, hear and determine all coal miner matters (except matters arising under Part 5 of the 1987 Act).(5) Despite section 17 (4) of the Compensation Court Act 1984, the Compensation Court does not have jurisdiction to reconsider a matter, or to rescind, alter or amend any decision previously made or given by the Court in relation to a matter, once the matter has become a new claim matter.(6) For the purposes of giving effect to subsections (4) and (4A), references in this Act to the Commission are to be read as references:(a) to the Compensation Court, to the extent that the reference relates to a matter that the Compensation Court has jurisdiction to examine, hear and determine, or(b) to the District Court, to the extent that the reference relates to a matter that the District Court has jurisdiction to examine, hear and determine.Note. Provision is made in the 1987 Act for regulations to require existing claims to be treated as new claims (transferred claims). The Compensation Court ceases to have jurisdiction in respect of transferred claim matters and the Commission acquires exclusive jurisdiction in respect of transferred claim matters.
106 Authority may intervene in proceedings
(cf former s 107A)
(1) The Authority has a right to be heard in any proceedings before the Commission.(2) The Authority may, for that purpose, be represented by a legal practitioner or a member of staff of the Authority or by any other person.(3) In any such proceedings the Authority may apply for an order for which any party may apply in those proceedings.
107 Applications to be heard together
(cf former s 108)
(1) A person who has applied to the Commission for a determination of a claim for compensation under this Act against 2 or more persons alleged to have been the employers of the worker concerned (either at the same time or at different times) is entitled, if the person so requests, to have all or any of the applications heard together.(2) If more than one employer or more than one insurer may be involved in an application for compensation or any other matter under this Act, the regulations may make provision for or with respect to requiring one of those insurers or one of those employers, the Authority or some other person, to represent the employers or insurers in any proceedings relating to the application.
(cf former s 112)
(1) This section applies where:(a) there is a dispute between employers or insurers, between a self-insurer and an insurer or between an employer and an insurer, as to whether incapacity or death resulted from more than one injury, or(b) there is a dispute between employers or insurers, or between a self-insurer and an insurer, as to the apportionment between them of liability as referred to in section 22 (Compensation to be apportioned where more than one injury etc) of the 1987 Act, or(c) an employer has at any time or from time to time been a self-insurer under this Act, the 1987 Act or the former 1926 Act and at another time or at other times has obtained a policy of insurance from an insurer, and a dispute arises as to whether an insurer is liable to indemnify the employer in respect of compensation payable under this Act for a particular injury, or(d) an insurer is, pursuant to section 224 (2) (b), joined as a party to proceedings, or(e) a person is, by the operation of this Act, deemed to be a worker employed by more than one principal or other person, and there is a dispute as to which principal or other person is liable to pay compensation under this Act.(2) Where this section applies, the Commission may:(a) if the Commission is satisfied that compensation is payable (but is not yet able to finally determine that compensation is payable, the amount of the compensation, the appropriate apportionment of liability for the compensation or the person liable to pay the compensation), make such interim awards as the Commission thinks fit:(i) for compensation by an insurer or self-insurer, or(ii) for indemnity by an insurer, or(iii) for payment under Division 6 of Part 4 of the 1987 Act,and make such interim orders as the Commission thinks fit for contribution on the part of an insurer, employer or principal or other person or under Division 6 of Part 4 of the 1987 Act, and(b) make such final awards and orders as the Commission thinks fit with respect to any of the matters the subject of an interim award or order under paragraph (a), and(c) if the Commission makes a final award or order, make such orders as the Commission thinks fit with respect to adjustments to be made between persons against whom orders have been made under paragraphs (a) and (b) or between any such persons and the Insurance Fund.(3) If the Commission subsequently determines that a person is not liable under this Act to make the payments of compensation that have been paid in accordance with an interim award, the worker or other person who received those payments is not required to refund those payments unless the Commission:(a) is satisfied that the claim for compensation was wholly or partly fraudulent or made without proper justification, and(b) orders the worker or other person to refund those payments or a specified part of those payments.(4) This section does not affect the recovery of weekly payments under section 58 of the 1987 Act.
109 Interest before order for payment
(cf former s 113)
(1) In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.(2) Interest cannot be ordered under this section:(a) on any compensation payable under Division 4 of Part 3 of the 1987 Act, or(b) on any compensation payable under this Act for any period before a claim for the compensation was duly made, or(c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.(3) This section does not:(a) authorise the giving of interest upon interest, or(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.
110 Interest after order for payment
(cf former s 114)
(1) Unless the Commission orders in any particular case that interest be not payable, interest is payable on so much of the amount of any sum ordered to be paid by the Commission as is from time to time unpaid.(2) Interest payable under subsection (1) in respect of any sum ordered to be paid:(a) is to be calculated as from the date when the order was made or from such later date as the Commission in any particular case fixes, and(b) is to be calculated at the rate prescribed for the purposes of section 101 of the Civil Procedure Act 2005 or, if the regulations under this Act prescribe some other rate, at that other prescribed rate, and(c) forms part of the sum ordered to be paid, but not so as to require the payment of interest on interest.(3) Despite subsections (1) and (2), where:(a) the amount of any sum ordered to be paid (excluding the amount of costs to be assessed) is paid in full within 21 days after the sum becomes payable, or(b) the amount of costs assessed is paid in full within 21 days after that amount is assessed, interest is not payable on the amount so paid, unless the Commission otherwise orders.
111 Interest on agreed payment of lump sum compensation
(cf former s 115)
(1) Unless the Commission orders in any particular case that interest be not payable, interest is payable on so much of the amount of any sum agreed to be paid as permanent impairment compensation or pain and suffering compensation as is from time to time unpaid.(2) Interest payable under subsection (1) in respect of any sum so agreed to be paid:(a) is to be calculated as from the date provided by the agreement as the date when the sum is due to be paid or (if the agreement does not so provide) the date that is 21 days after the date the agreement was made, and(b) is to be calculated at the rate prescribed for the purposes of section 101 of the Civil Procedure Act 2005 or, if the regulations under this Act prescribe some other rate, at that other prescribed rate, and(c) forms part of the sum agreed to be paid, but not so as to require the payment of interest on interest.
111A Costs provisions apply only to existing claim matters
Sections 112–116 apply only in respect of existing claim matters.Note. Chapter 7 (New claims procedures) provides for costs in respect of new claim matters.
(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 Division 11 of Part 3.2 of the Legal Profession Act 2004 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 Act 2004.(5) This section and any regulations under this section prevail to the extent of any inconsistency with the Legal Profession Act 2004 (in particular section 329 of that Act) and the regulations under that Act. An assessment under Division 11 of Part 3.2 of that Act 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 Part 3.2 of the Legal Profession Act 2004, 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 Act 2004.
115 Limit on recovery of costs unreasonably incurred
(cf former s 119)
(1) If the Compensation Court is satisfied that any costs in proceedings under this Act before the Court were unreasonably incurred, the Court is to order that those costs are to be treated as unreasonably incurred for the purposes of this section and the Court is not to make an order for payment of those costs by any other party to the proceedings.(2) Costs incurred by a party to proceedings are considered to have been unreasonably incurred for the purposes of this section only if they were incurred by the party:(a) after a reasonable offer of settlement in the proceedings was made to the party, or(b) after the party has failed without reasonable excuse to comply with a written request from another party to the proceedings to provide that other party with particulars (including any necessary medical report) sufficient to enable that other party to properly consider the claim for the purpose of making an offer of settlement, or(c) after the party has unreasonably failed to participate in a conciliation of the dispute with which the proceedings are concerned and the Court is of the opinion that the failure has resulted in unnecessary litigation, or(d) in connection with an unsuccessful application by the party to admit further evidence in respect of matters of which a certificate or report of a medical panel that has been admitted in evidence in the proceedings is evidence (as provided by section 128 (2)) and the Court is of the opinion that the application was frivolous or vexatious.(3) In determining whether costs were unreasonably incurred the Court is to have particular regard to any conciliation certificate issued under section 84 certifying as to the unreasonable failure of a party to participate in conciliation. A party who denies unreasonable refusal to participate in conciliation has the onus of rebutting the conciliation certificate.(4) A legal practitioner representing a party to proceedings in the Compensation Court is not entitled to recover from the party any costs that the Court has ordered are to be treated as unreasonably incurred.(5) The Court may by order exempt any costs or a proportion of any costs from the operation of subsection (4) if of the opinion that it would be unjust not to do so because the legal practitioner concerned made all reasonable efforts to avoid unnecessary litigation in the proceedings or for any other reason should not be held responsible for the incurring of the costs concerned.
116 Solicitor/client costs in compensation proceedings
(cf former s 122)
(1) The legal representative or agent of a person claiming compensation under this Act is not entitled:(a) to recover from the person any costs in respect of the claim, or(b) to claim a lien in respect of those costs on, or deduct those costs from, the sum awarded, ordered or agreed as compensation,unless those costs are awarded by the Compensation Court.(2) Any such award may be made on the application either of the person claiming compensation or the person’s legal representative or agent.(3) Any sum so awarded is subject to assessment in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004.(4) This section prevails to the extent of any inconsistency with Part 3.2 of the Legal Profession Act 2004.(5) A person must not:(a) claim a lien that the person is not entitled to claim because of subsection (1), or(b) deduct costs from a sum awarded, ordered or agreed as compensation that the person is not entitled to deduct because of subsection (1).Maximum penalty: 50 penalty units.
(6) A person who has paid an amount in respect of costs to another person that the other person was not entitled to recover because of subsection (1) is entitled to recover the amount paid as a debt in a court of competent jurisdiction or by proceedings in the Compensation Court.(7) A reference in this section to a claim includes a reference to a prospective claim (whether or not the claim is ever actually made).
117 Admissibility of statements by injured workers
(cf former s 124)
(1) If a worker after receiving an injury makes any statement in writing in relation to that injury to the worker’s employer or to an insurer or to any person acting on behalf of the employer or insurer, the statement may not be admitted in evidence if tendered or used by the employer or insurer in any proceedings before the Commission unless the employer or insurer has, at least 14 days before the hearing, furnished to the worker or to the legal representative or agent of the worker a copy in writing of the statement.(2) (Repealed)(3) In this section:employer, in relation to a worker, includes a principal referred to in section 20 of the 1987 Act who is liable to pay compensation to the worker.
insurer means licensed insurer or former licensed insurer.
118 Registration of certain persons involving interpreting etc services
(cf former s 125)
(1) On and from the commencement date prescribed by the regulations for the purposes of this section, a person who:(a) for fee or reward, acts as interpreter for a worker in connection with a claim for compensation under this Act, whether or not the claim is eventually made and whether or not the person also provides a related service, or(b) holds himself or herself out as being available to do so,is guilty of an offence against this Act and liable to a penalty not exceeding 20 penalty units if the person is not registered under this section.(2) A person who acts as interpreter for a worker is taken to act for fee or reward if the fee or reward:(a) is payable or given by some person on behalf of the worker, or(b) is payable or given to some person who employs, or is nominated by, the person acting as interpreter, or(c) is payable or given for any related service provided to the worker by the person acting as interpreter.(3) This section does not apply to a person who acts as interpreter:(a) if the person is a solicitor, barrister, medical practitioner or other person prescribed by the regulations, or(b) if the person is engaged by, and the person’s services are paid for by:(i) the Authority, or(ii) the Community Relations Commission, or(iii) an employer or insurer, or(iv) an industrial union of employees or employers, or(v) any other person or body prescribed by the regulations.(4) The regulations may make provision for or with respect to:(a) applications for registration under this section and the disposal of any such applications, and(b) the fees to be paid by applicants for registration, and(c) the qualifications, experience, fitness and character of applicants for registration, and(d) the duration of registration, and(e) the conditions to which any registration is subject (including conditions regulating any related service provided by the registered person), and(f) the cancellation or suspension of registration, and(g) any other matter in connection with registration under this section.(5) The regulations under this section are to provide for a right of appeal against a decision of the Authority:(a) to refuse to register a person under this section, or(b) to cancel or suspend any such registration, or(c) to attach any condition to any such registration.(6) The regulations may make provision for or with respect to the maximum amount that may be charged by a person who is registered or required to be registered under this section:(a) for acting as interpreter as referred to in subsection (1), and(b) for any related service provided to the worker concerned.(7) A person who acts as interpreter in contravention of subsection (1) is not entitled to charge or recover any fee for so acting or for any related service provided to the worker concerned.(8) A reference in this section:(a) to a person acting as interpreter includes a reference to a person who translates documents into another language, or(b) to a related service includes a reference to the services of an agent or adviser.