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Contents (2011 - 37)
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Workers Compensation Regulation 2010
Repealed version for 30 June 2016 to 31 August 2016 (accessed 22 September 2017 at 20:02)
Part 17 Division 3 Subdivision 2
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.