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Contents (2011 - 37)
Workers Compensation Regulation 2010
Repealed version for 30 June 2016 to 31 August 2016 (accessed 22 November 2017 at 18:11)
Part 17 Division 3
Division 3 Costs recoverable in work injury damages matters
Subdivision 1 Maximum costs recoverable by legal practitioners in work injury damages matters
101   Application of Division
This Division is made under section 337 of the 1998 Act and applies to the following costs payable on a party and party basis, on a solicitor and client basis or on any other basis:
(a)  costs for legal services or agent services provided in or in relation to a claim for work injury damages, and
(b)  costs for matters that are not legal or agent services but are related to a claim for work injury damages.
Note.
 Section 337 (3) of the 1998 Act provides that 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 regulations under section 337.
102   Fixing of maximum costs recoverable by legal practitioners
(1)  The maximum costs for:
(a)  legal services provided in or in relation to a claim for work injury damages, and
(b)  matters that are not legal services but are related to a claim for work injury damages,
are the costs set out in Schedule 7, except as otherwise provided by this Part.
Note.
 The effect of this clause is that a legal practitioner or agent cannot recover any costs in relation to a claim for work injury damages unless those costs are set out in Schedule 7, except as otherwise provided in this Part.
(2)  If there is a change in the legal practitioner retained by a party in or in relation to a claim for work injury damages, the relevant costs are to be apportioned between the legal practitioners concerned.
(3)  If there is a dispute as to such an apportionment, either legal practitioner concerned (or the client concerned) may refer the dispute to the Commission for determination.
(4)  A legal practitioner has the same right of appeal against a determination made under subclause (3) as the practitioner would have under clause 135 if the determination were a determination made by the Registrar in relation to a bill of costs.
Note.
 Division 3 of Part 3.2 of the Legal Profession Act 2004 requires barristers and solicitors, before providing any legal services to a client, to provide the client with a written disclosure of the basis of the costs (or an estimate of the likely costs) of legal services concerned.
103   Contracting out—practitioner/client costs
(1)  This clause applies in respect of costs in or in relation to a claim for work injury damages if a legal practitioner:
(a)  makes a disclosure under Division 3 of Part 3.2 of the Legal Profession Act 2004 (sections 312 and 317 excepted) to a party to the matter with respect to the costs, and
(b)  enters into a costs agreement (other than a conditional costs agreement, within the meaning of that Division of that Part, that provides for the payment of a premium of more than 10% of the costs otherwise payable under the agreement on the successful outcome of the matter concerned) with that party as to those costs in accordance with Division 5 of that Part, and
(c)  before entering into the costs agreement, advises the party (in a separate written document) that, even if costs are awarded in favour of the party, the party will be liable to pay such amount of the costs provided for in the costs agreement as exceeds the amount that would be payable under the 1998 Act in the absence of a costs agreement.
(2)  Schedule 7 does not apply to the costs concerned to the extent that they are payable on a practitioner and client basis.
Subdivision 2 Restriction on awarding of costs
Note.
 This Subdivision is made under section 346 of the 1998 Act, which provides that a party is not entitled to an award of costs to which that section applies (being costs payable by a party in or in relation to a claim for work injury damages, including court proceedings for work injury damages) except as prescribed by the regulations or by the rules of the court concerned.
In the event of any inconsistency between the provisions of this Regulation and rules of court, the provisions of this Regulation prevail to the extent of the inconsistency: section 346 (4).
104   Costs where claimant no less successful than claimant’s final offer
If a claimant obtains an order or judgment on a claim that is no less favourable to the claimant than the terms of the claimant’s final offer of settlement in mediation under the 1998 Act as certified by the mediator under section 318B of the 1998 Act, the court is to order the insurer to pay the claimant’s costs on the claim assessed on a party and party basis.
105   Costs where claimant less successful than insurer’s final offer or insurer found not liable
(1)  If a claimant obtains an order or judgment on a claim that is less favourable to the claimant than the terms of the insurer’s final offer of settlement in mediation under the 1998 Act as certified by the mediator under section 318B of the 1998 Act, the court is to order the claimant to pay the insurer’s costs on the claim assessed on a party and party basis.
(2)  If a claimant does not obtain an order or judgment on a claim (that is, if the court finds the insurer has no liability for the claim), the court is to order the claimant to pay the insurer’s costs on the claim assessed on a party and party basis.
106   Costs in other cases
Except as provided by this Subdivision, the parties to court proceedings for work injury damages are to bear their own costs.
107   Deemed offer where insurer denies liability and no mediation occurs or mediation fails
(1)  If:
(a)  the insurer wholly denies liability, and
(b)  no mediation occurs, and
(c)  the claimant obtains an order or judgment on the claim,
costs are to be awarded in accordance with this Subdivision as if:
(d)  the insurer had made a final offer of settlement at mediation of $0, and
(e)  the claimant had made a final offer of settlement at mediation of:
(i)  in the case where the Commission issued a certificate verifying the matters referred to in paragraphs (a) and (b) and the claimant, within one month of the issue of that certificate, made a subsequent offer of settlement to the insurer—the amount of damages specified in that subsequent offer of settlement, or
(ii)  in any other case—the amount of damages specified in the pre-filing statement served under section 315 of the 1998 Act.
(2)  If:
(a)  the insurer wholly denies liability, and
(b)  the matter is referred to mediation, but the matter is not resolved by settlement at the mediation, and
(c)  the claimant obtains an order or judgment on the claim,
costs are to be awarded in accordance with this Subdivision as if:
(d)  the insurer had made a final offer of settlement at mediation of $0, and
(e)  the claimant had made a final offer of settlement at mediation of:
(i)  in the case where the claimant, within one month of the conclusion of that mediation, made a subsequent offer of settlement to the insurer—the amount of damages specified in that subsequent offer of settlement, or
(ii)  in any other case—the amount of the claimant’s final offer of settlement in mediation under the 1998 Act as certified by the mediator under section 318B of the 1998 Act.
Note.
 Persons claiming work injury damages who wish to be awarded costs on a party and party basis should apply to the Workers Compensation Commission for the mediation of the dispute before the matter goes to court. The availability of costs on a party and party basis is subject to the provisions of clause 104 and this clause.
108   Subdivision does not apply to ancillary proceedings
This Subdivision does not apply to costs payable in or in relation to proceedings that are ancillary to proceedings on a claim for work injury damages, and a court is to award costs in such ancillary proceedings in accordance with the rules of the court.
109   Multiple parties
Where 2 or more defendants are alleged to be jointly or jointly and severally liable to the claimant and rights of contribution or indemnity appear to exist between the defendants, this Subdivision does not apply to an offer of settlement unless:
(a)  in the case of an offer made by the claimant—the offer is made to all the defendants and is an offer to settle the claim against all of them, and
(b)  in the case of an offer made to the claimant:
(i)  the offer is to settle the claim against all the defendants concerned, and
(ii)  where the offer is made by 2 or more defendants—by the terms of the offer the defendants who made the offer are jointly or jointly and severally liable to the claimant for the whole amount of the offer.