Division 8 Prohibited conduct relating to touting for claims
(cf former s 148B)
(1) In this Division:agent means a person who acts, or holds himself or herself out as willing to act, as agent for a person for fee or reward in connection with a claim, but does not (unless the regulations otherwise provide) include a legal practitioner.
claim means a claim for compensation under this Act.
hearing loss claim means:
(a) a claim under section 66 of the 1987 Act (as in force at any time before the commencement of this definition) for loss of hearing, or(b) a claim for permanent impairment compensation in respect of loss of hearing.lawyer means a legal practitioner.
prohibited conduct has the meaning given by section 132.
protected claim means:
(a) a hearing loss claim, and(b) a claim for the cost of provision of a hearing aid, and(c) any other claim that is declared by the regulations to be a protected claim for the purposes of this section.(2) A reference in this Division to a claim includes a reference to a prospective claim (whether or not the claim is ever actually made). For example, section 132 does not require that a claim be made before the conduct described in that section can be considered to be prohibited conduct.(3) Each of the following activities is considered to constitute acting as agent for a person in connection with a claim:(a) advising the person with respect to the making of a claim,(b) assisting the person to complete or prepare, or completing or preparing on behalf of the person, any form, correspondence or other document concerning a claim,(c) making arrangements for any test or medical examination to determine the person’s entitlement to compensation,(d) arranging referral of the person to a lawyer for the performance of legal work in connection with a claim,(e) any other activity prescribed by the regulations.(4) The regulations may provide that persons who engage in specified activities are not to be regarded as agents for the purposes of this Division.
132 Prohibited conduct by agents
(cf former s 148C)
(1) The following conduct by an agent is prohibited conduct for the purposes of this Division:(a) making a statement to a person, knowing that the statement is false or misleading in a material particular, for the purpose of encouraging the person or any other person to make a protected claim and to use (in connection with the protected claim) the services of the agent or of some other person from whom the agent receives any payment in connection with the protected claim,(b) using information obtained by the agent in connection with a claim to contact any other person for the purpose of encouraging that other person to make a protected claim and to use (in connection with the protected claim) the services of the agent or of some other person from whom the agent receives any payment in connection with the protected claim,(c) seeking to obtain information from a client of the agent for the purpose of using that information as described in paragraph (b),(d) inducing or attempting to induce a client of the agent to encourage any other person to make a claim (whether or not it is a protected claim) and to use (in connection with the claim) the services of the agent or of some other person from whom the agent receives any payment in connection with the claim,(e) making any unsolicited contact by telephone, personal approach or other prescribed means with a person who is not a client of the agent, for the purpose of encouraging the person to make a protected claim and to use (in connection with the protected claim) the services of the agent or of some other person from whom the agent receives any payment in connection with the protected claim,(f) such other conduct as may be prescribed by the regulations as prohibited conduct for the purposes of this section.(2) The regulations can specify circumstances in which conduct that would otherwise be prohibited conduct under subsection (1) is not to be regarded as prohibited conduct for the purposes of this Division.(3) For the purposes of this Division, any conduct engaged in by a person on behalf of an agent, or that an agent has caused or procured the person to engage in, is taken to have been engaged in by the agent.
133 Offence of engaging in prohibited conduct
(cf former s 148D)
An agent who engages in prohibited conduct is guilty of an offence.Maximum penalty: 50 penalty units.
134 Consequences of prohibited conduct for recovery of fees by agents
(cf former s 148E)
(1) An agent is not entitled to recover from a person any fees, costs or other charges that would otherwise be payable by the person in connection with services made use of by the person if the services were made use of as a result of prohibited conduct engaged in by the agent, regardless of whether the agent has been proceeded against or convicted for an offence in respect of that prohibited conduct.(2) If prohibited conduct engaged in by an agent involved encouraging a person to make use of services and the person makes use of those services after the conduct is engaged in, it is to be presumed for the purposes of this section that the services were made use of as a result of that prohibited conduct, unless the agent concerned establishes otherwise.(3) If the services of an agent were made use of as a result of prohibited conduct engaged in by the agent in connection with a hearing loss claim, it is to be presumed for the purposes of this section that any services of the agent made use of in connection with a subsequent hearing loss claim in respect of further loss of hearing made by the same worker (whether or not made against the same employer) were made use of as a result of prohibited conduct engaged in by the agent, unless the agent concerned establishes otherwise.(4) A person who has paid any amount in respect of fees, costs or other charges to an agent that the agent would not have been entitled to recover because of this section is entitled to recover the amount from the agent as a debt in a court of competent jurisdiction.
135 Consequences of prohibited conduct for lawyers
(cf former s 148F)
(1) A lawyer who acts for a person on a claim must not include in any bill given to the person, and must not otherwise seek to recover from the person, any amount by way of disbursements for fees paid to an agent in connection with referral of the person to the lawyer by the agent if the lawyer knows or has reasonable cause to suspect that the agent engaged in prohibited conduct that involved encouraging the person to make the claim, regardless of whether the agent has been proceeded against or convicted for an offence in respect of that prohibited conduct.Maximum penalty: 50 penalty units.
(2) A lawyer who acts for a person on a claim is not entitled to recover from any person any amount by way of disbursements for fees paid to an agent in connection with the claim if the claim was made as a result of prohibited conduct engaged in by the agent, regardless of whether the agent has been proceeded against or convicted for an offence in respect of that prohibited conduct.(3) If prohibited conduct engaged in by an agent involved encouraging a person to make a claim and the person makes a claim after the conduct is engaged in, it is to be presumed for the purposes of subsection (2) that the claim was made as a result of that prohibited conduct unless the lawyer establishes otherwise.(4) If a hearing loss claim was made as a result of prohibited conduct engaged in by an agent, it is to be presumed for the purposes of subsection (2) that any subsequent hearing loss claim in respect of further loss of hearing made by the same worker (whether or not made against the same employer) in connection with which that agent performed any service was made as a result of prohibited conduct engaged in by that agent, unless the lawyer concerned establishes otherwise.(5) A person who has paid any amount in respect of disbursements to a lawyer that the lawyer would not have been entitled to recover because of subsection (2) is entitled to recover the amount from the lawyer as a debt in a court of competent jurisdiction.
136 Lawyers and agents can be requested to certify as to prohibited conduct
(cf former s 148G)
(1) An employer or insurer who is liable to pay a lawyer or agent any fees, costs or other charges incurred in connection with a protected claim made by a person is entitled to request the lawyer or agent to provide a certificate under this section about the claim (unless the lawyer or agent has already provided it). The request must be in writing.(2) A certificate under this section is a certificate that to the best of the lawyer’s or agent’s knowledge, no agent has engaged in prohibited conduct that involved encouraging the person to make the claim or any previous claim, except as may be disclosed in the certificate.(3) If a certificate is requested:(a) the lawyer or agent is not entitled to be paid by or recover from the employer or insurer any fees, costs or other charges incurred in connection with the claim concerned until the certificate is provided (even if the fees, costs or other charges are payable under an award or order of a court or Commission), and(b) no interest that might otherwise be payable on those fees, costs or other charges is payable for the period from when the certificate is requested until it is provided (despite any order or award of a court or Commission for the payment of that interest).(4) A lawyer or agent can provide an employer or insurer with a certificate under this section even if the employer or insurer has not requested it.(5) A lawyer or agent who gives a certificate under this section about a claim made by a person is guilty of an offence if the lawyer or agent knew or had reasonable cause to suspect that an agent had engaged in prohibited conduct that involved encouraging the person to make the claim.Maximum penalty: 50 penalty units.
137 Power to restrict or ban recovery of costs by agents who engage in prohibited conduct
(cf former s 148H)
(1) The Authority can by notification given to insurers and self-insurers direct that an agent specified in the notification is not entitled to recover any fees, costs or other charges in connection with any claims or in connection with a class of claims specified in the notification, or is not so entitled unless specified conditions have been complied with.(2) Such a notification cannot be given unless the Authority is satisfied that:(a) the agent has persistently engaged in conduct that constitutes a contravention of section 133 or 343 (4), or(b) in the case of an agent that is a corporation, a director of the corporation or other person concerned in the management of the corporation has persistently engaged in any such conduct.(3) Before the Authority gives such a notification it must give the agent a reasonable opportunity to make written submissions to the Authority on the matter.(4) The effect of a notification under this section is that the agent specified in the notification is not entitled to recover fees, costs or other charges (as provided by the notification) in respect of services performed while the notification is in force.(5) An agent aggrieved by a notification under this section can appeal against the notification to the Compensation Court within 14 days after the notification is given. An appeal does not stay the operation of the notification unless the Compensation Court otherwise orders.(6) A notification remains in force until it is withdrawn. A notification can be withdrawn at any time by the Authority by giving notice of withdrawal in writing to insurers and self-insurers and to the agent to whom it applies.
138 Power to restrict or ban recovery of costs by solicitors
(cf former s 148HA)
(1) The Authority can by notification given to insurers and self-insurers direct that a solicitor, incorporated legal practice or firm of solicitors specified in the notification is not entitled to recover any fees, costs or other charges in connection with any claims or in connection with a class of claims specified in the notification, or is not so entitled unless specified conditions have been complied with.(2) Such a notification cannot be given unless the Authority is satisfied that the solicitor or a member of the firm of solicitors or a voting shareholder of the incorporated legal practice is a director of or has a financial interest in an agent and:(a) the agent has persistently engaged in conduct that constitutes a contravention of section 133 or 343 (4), or(b) a director of the agent or other person concerned in the management of the agent has persistently engaged in any such conduct.(3) Before the Authority gives such a notification it must give the solicitor, incorporated legal practice or firm of solicitors a reasonable opportunity to make written submissions to the Authority on the matter.(4) The effect of a notification under this section is that the solicitor, incorporated legal practice or firm of solicitors specified in the notification is not entitled to recover fees, costs or other charges (as provided by the notification) in respect of services performed while the notification is in force.(5) A solicitor, incorporated legal practice or firm of solicitors aggrieved by a notification under this section can appeal against the notification to the Compensation Court within 14 days after the notification is given. An appeal does not stay the operation of the notification unless the Compensation Court otherwise orders.(6) A notification remains in force until it is withdrawn. A notification can be withdrawn at any time by the Authority by giving notice of withdrawal in writing to insurers and self-insurers and to the solicitor, incorporated legal practice or firm of solicitors concerned.(7) For the purposes of this section, a financial interest in an agent is a share in the capital of the business conducted by the agent or any entitlement to receive any income derived from the business or to receive any other financial benefit or financial advantage from the carrying on of the business, whether the entitlement arises at law or in equity or otherwise.
139 Power to restrict or ban agents who engage in prohibited conduct
(cf former s 148I)
(1) The Authority can by direction in writing given to an agent prohibit the agent from acting for any person in connection with any claims or in connection with specified types of claims. The prohibition can be absolute or subject to conditions.(2) Such a direction cannot be given unless:(a) the Authority is satisfied that the agent concerned has persistently engaged in conduct that constitutes a contravention of section 133 or 343 (4) and as a result is not a fit and proper person to act in connection with claims to which the direction relates, and(b) the Authority has given the agent a reasonable opportunity to make written submissions to the Authority on the matter.(3) An agent who acts in contravention of a direction given under this section:(a) is guilty of an offence for which the maximum penalty is 200 penalty units, and(b) is not entitled to recover any fees, costs or other charges from a person for anything done by the agent in contravention of the direction.(4) A person aggrieved by a direction under this section can appeal against the direction to the Compensation Court within 14 days after the direction is given to the agent. An appeal does not stay the operation of the direction unless the Court otherwise orders.(5) A direction remains in force until it is withdrawn. A direction can be withdrawn at any time by the Authority by giving written notice of withdrawal to the agent concerned.
140 Past conduct included in assessing persistent conduct
(cf former s 148J)
(1) A reference in sections 137, 138 and 139 to conduct that constitutes a contravention of section 133 or 343 (4) includes a reference to:(a) conduct engaged in by a person before the commencement of this section, and(b) conduct engaged in before the commencement of section 133 or 343 (4) that would, if engaged in after that commencement, have constituted a contravention of the provision.(2) However, a person cannot be considered to have persistently engaged in conduct that constitutes a contravention of section 133 or 343 (4) unless at least one instance of that conduct occurred after the commencement of this section.For the purposes of section 138, at least one instance of the conduct must have occurred after the commencement of that section.
141 Duty of claimants to comply with requests for information about agents and lawyers
(cf former s 148K)
(1) A person who makes a protected claim must comply with a request from the insurer or self-insurer concerned for information as to whether the person made use of the services of an agent or lawyer in respect of the claim and how the person came to make use of those services. Such a request by the insurer may be made at any time (whether or not proceedings before the Commission have been commenced in respect of the claim).(2) The regulations may make provision for limiting the operation of this section with respect to lawyers.
(cf former s 148L)
(1) The regulations may make provision for or with respect to regulating (including prohibiting) conduct by any person (including advertising) that relates to the marketing of services to be provided by a lawyer or agent in connection with claims for compensation under this Act or claims for work injury damages.(2) A regulation may not be made under this section except with the concurrence of the Minister administering the Legal Profession Act 1987.(3) Any such regulation can impose a penalty not exceeding 200 penalty units for any contravention of the regulations.