District Court New South Wales Medium Neutral Citation: Greaves v Valley Longwall International Drilling [2020] NSWDC 523 Hearing dates: 02 September 2020 Date of orders: 02 September 2020 Decision date: 02 September 2020 Jurisdiction: Civil Before: Neilson DCJ Decision: Defendant to pay the costs of the plaintiff in matter RJ461/2019, including the costs of this application for costs Catchwords: Practice and Procedure – Costs – Coal Miner's Workers Compensation – P made a claim for weekly payments of compensation in earlier proceedings which were settled on 11 December 2019 – Earlier P made a claim for lump sum compensation and served a supportive medical report on 6 February 2019 – In response to that D advised from 2 September 2019 of a medical examination on 16 October 2019 by a doctor who assessed P's lump sum claims and made reports dated 22 October 2019 – On 12 December 2019, P prepared a Statement of Claim claiming lump sum compensation in these proceedings – These proceedings settled on 24 August 2020 – D argued that P should have entered no costs or costs on a refresher basis only – However D well knew when it settled earlier proceedings that there was an outstanding claim for lump sum compensation and made no attempt to have that claim determined in earlier proceedings – D ordered to pay P's costs, including costs of costs argument. Legislation Cited: Workers Compensation Act 1987 Cases Cited: Bruce v Grocon Ltd (1995) 11 NSWCCR 247 Category: Principal judgment Parties: Darren Greaves – Plaintiff Valley Longwall International Drilling Pty Ltd – Defendant Representation: Counsel: Dennis Benson – Plaintiff Simon McMahon – Defendant Solicitors: Slater & Gordon Lawyers – Plaintiff Coal Mines Insurance Pty Ltd – Defendant File Number(s): RJ00461/19 Publication restriction: Nil. Judgment 1. HIS HONOUR: This is the 27th year in which I have had cause to observe that nothing excites the zeal, the ardour and the passion of the legal profession more than an argument about costs. The current proceedings were settled on 24 August 2020 but there was no agreement as to the costs order that might be appropriate. I have now heard the costs argument. 2. It is necessary to consider a number of matters. There were earlier proceedings between the parties. On 22 November 2018 the plaintiff's solicitors executed a statement of claim and a certificate of compliance and sent them for filing to the Newcastle Registry of this Court. I do not know when the Court received the documents but they were passed under the seal of the court on 8 January 2019. The last day for service was 8 March 2019. An affidavit of service was filed stating that the statement of claim was served upon the defendant and its insurer on 15 January 2019 in the ordinary course of post. The affidavit of service was filed on 24 January 2019. On 1 February 2019 the defendant signed a notice of appearance and on 5 February 2019 a defence, and both those documents were passed under the seal of the Court on 7 February 2019. 3. On 17 April, 2019, the plaintiff's solicitors executed a wages schedule. That was received at the Newcastle Courthouse on 18 April 2019, but was not passed under the seal of the Court until 8 May 2019. A conciliation conference was held at Newcastle by Assistant Registrar and Conciliator, Mary O'Connell, on 5 September 2019. The conciliation certificate states, inter alia, this: "The plaintiff seeks weekly payments from 26 April 2018 to date and continuing, and lump sum compensation for permanent impairment of the back and loss of efficient use of both legs. He also claims a general order pursuant to section 60 for the payment of medical expenses." No agreement was reached at the conciliation conference, and the Assistant Registrar noted that the conciliation was wholly unsuccessful. On 14 October 2019, the Court issued a notice stating that the matter was set down for hearing on Wednesday 11 December 2019 at the Courthouse at Newcastle. 1. The statement of claim claimed weekly payments of compensation from 26 April, 2018 to date and continuing, for either total incapacity, partial incapacity or partial incapacity deemed to be total. It also claimed a general order under s 60. It did not, however, make a claim for lump sum compensation. 2. However, on 6 February 2019, the plaintiff was examined by Professor YAE Ghabrial, an orthopaedic surgeon practicing in Newcastle, for the plaintiff's solicitors. They qualified Dr Ghabrial by letter dated 11 December 2018, that is, prior to preparing the statement of claim and prior to its being filed and served. Dr Ghabrial, no doubt at the request of the plaintiff's solicitors, made certain assessments under s 66 of the Workers Compensation Act 1987, as its operation is preserved for those who work in or about a coalmine. Dr Ghabrial assessed a 30% impairment of the plaintiff's back, a 12 and a half per cent loss of efficient use of the right leg at or above the knee, and a 15% loss of efficient use of the left leg at or above the knee. A letter serving the reports of Dr Ghabrial of 6 February 2019, was sent to the defendant by the plaintiff's solicitors on 17 April 2019, received by the defendant's insurer on 23 April 2019. The letter of 17 April 2019 also made formal claims under s 66 and s 67, the claims under s 66 being those contained in the assessment made by Dr Ghabrial, and the claim under s 66 being 50% of the maximum available. 3. On 10 July 2019, the plaintiff was re-examined for the defendant by Dr Paul Hitchen, an orthopaedic surgeon. Dr Hitchen had previously examined the plaintiff on 25 July 2018. Following upon his examination on 10 July 2019, Dr Hitchen prepared a report dated 12 July 2019, which was received by the insurer of the defendant on 16 August 2019. In his report, Dr Hitchen mentioned that the plaintiff had been referred to Dr Ghabrial for medico legal opinion, but since that time, Dr Ghabrial had taken over the treatment of Mr Greaves from another orthopaedic surgeon, Dr Kuru. Indeed, on 5 July 2019, the plaintiff's solicitors had served upon the defendant reports of Dr Ghabrial addressed to the plaintiff's general practitioner dated 28 March 2019 and 4 July 2019. 4. I have before me a copy of Dr Hitchen's report of 12 July 2019. Dr Hitchen, in that report, does not refer to any lump sum compensation claims. However, he diagnosed chronic non-specific back pain. He went on to say this: "This pain is chronic in that it has lasted in excess of four months. It is non-specific in that it cannot be reliably localised to any particular level of the lumbar spine. Although the MRI shows mild degenerative change at L3/4, there is no major disc herniation and his bone scan does not show active arthritis of his lumbar spine. The minor anomaly on the bone scan over the sacro-iliac joint does not correlate with his clinical symptoms, and physically, he has no pain over sacro-iliac ridge." However, a fair reading of the doctor's report indicates that he accepted the plaintiff's symptoms as genuine and he made these recommendations for treatment and future management: "Best practice for the management of chronic non-specific back pain is to remain physically active, and undertake normal vocational, domestic and recreational activities." He also went to on to say this: "My previous advice to restrict a 20-kilogram lifting restriction for him is to try and prevent future bouts of soft tissue strains." That seems to indicate the doctor thought there may have been some persisting incapacity. 1. The defendant clearly had Dr Hitchen's report of 12 July 2019 available for the conciliation conference on 5 September 2019. It was clearly drawn to the attention of the Conciliator, Assistant Registrar O'Connell, that there was a claim for lump sum compensation for impairment of the back and loss efficient use of each leg. Indeed, on 2 September, that is prior to the conciliation conference on 5 September, Coal Mines Insurance on behalf of the defendant, wrote to the plaintiff requiring him to attend upon Dr David Millons, a general surgeon on 16 October 2019 at 9.30 am, at rooms in North Sydney for medical assessment. It is clear from the evidence before me that on 22 October 2019, Dr Millons prepared four reports. The only inference to be drawn from my knowledge of the practice in the Coalminers Workers' Compensation list is that Dr Millens would have prepared a primary report dated 22 October 2019, and three supplementary reports, one commenting on the extent of the permanent impairment of the back, if any, and the other two commenting upon the loss of efficient use of each leg at or above the knee if there were any such loss. Eventually, those four reports were served upon the plaintiff's solicitors on 29 June 2020. 2. However, it is clear that by 22 October 2019, the defendant had reports from Dr Millons directed to the quantum of the plaintiff's lump sum compensation claims. On 31 October 2019, the plaintiff's solicitor wrote to Dr Ghabrial requesting a further assessment of the plaintiff on 4 November 2019. That led the Professor to generate a report dated 4 November 2019. In that report, he says: "I believe that his condition has stabilised for the purpose of assessment of permanent impairment." There was a second report from the Professor dated 4 November 2019 making such an assessment. That can be found in exhibit C1, but not in exhibit C2. In other words, both parties had lump sum compensation assessments when the matter came on for hearing in Newcastle on 11 December 2019. 3. The matter was listed before Curtis ADCJ. Mr Benson appeared for the plaintiff and Mr McMahon appeared for the defendant. The matter was settled by way of a document entitled, "Terms of Settlement," which is dated 11 December 2019, signed by the solicitor for the plaintiff and the solicitor for the defendant, and passed by his Honour under the seal of the court on that day. The terms are these: "By consent: Statement of claim dismissed with the defendant to pay the plaintiff's costs as agreed or assessed. Notations: a) That the defendant agrees to voluntary weekly payments of $1158.50 per week for the period of 9 August 2018 to 8 September 2018. b) That the defendant agrees to voluntary weekly payments at the maximum statutory rate for a worker with two dependant children for the period 9 September 2018 and ongoing. c) The plaintiff to provide a statutory declaration regarding his dependant children." There is a further notation, but not done in the same way as the earlier notations, concerning interest, which I do not need to cite. It should be noted that the solicitor acting for the defendant was not a private firm of solicitors, but a solicitor employed by Coal Mines Insurance, such that Coal Mines Insurance were effectively acting as the solicitor instructing Mr McMahon at that hearing. 1. Why the parties did not attempt at that time to settle the claim for the lump sum compensation, I do not know. Why the plaintiff did not amend the statement of claim to make the claim for lump sum compensation, I do not know. Why the defendant did not insist that the plaintiff amend the statement of claim to make the claim for lump sum compensation, which had been initially made on 17 April 2019, I do not know. All I know is that the parties knew that there was a claim for lump sum compensation, and went on with the case as pleaded without any amendment being sought by the plaintiff or encouraged or sought by the defendant. I turn now to the course of the current proceedings. 2. On 12 December 2019, the day after the settlement of the earlier proceedings, the plaintiff's solicitors prepared a statement of claim and a certificate of compliance. They were sent to the Courthouse at Newcastle on 17 December 2019, but were not passed under the seal of the court until a week later, on 24 December 2019. The last date of service was 24 February 2020. An affidavit of service was executed on 15 January 2020, and sent to the Court on 16 January 2020. It was not passed under the seal of the Court until eight days later, on 24 January 2020. The affidavit of service attests to service upon the defendant and its insurer on 15 January 2020 in the ordinary course of post. 3. On 15 January 2020, the plaintiff's solicitors prepared an amended statement of claim and a certificate of compliance and forwarded them to the Courthouse at Newcastle. They were received at the Courthouse on 28 January 2020, but were not passed under the seal of the Court until 31 January 2020. The purpose of the amendment was to increase the amounts claimed from the initial assessment made by Dr Ghabrial on 6 February 2019 to the amended amounts made in his assessment of 4 November 2019. It would appear that the plaintiff's solicitor was not keeping up to date in the processing of his mail. On 29 January 2020, the defendant prepared a notice of appearance, and on 12 February 2020, a defence and both of those documents passed under the seal of the Court on 13 February 2020. 4. The defendant prepared an amended defence on 29 June 2020. That added a new plea numbered 7: "That the legal practitioner who acts for the plaintiff is not entitled to cover any costs in relation to this matter, as this claim should have been made under matter number RJ10/19, pursuant to section 65 (6) of the 1998 Act." Although the copy that is available to me does not have a copy of the seal of the court upon it, I know from the computerised records of the Court that it was passed under the seal of the Court on 1 July 2020. It obviously was not filed in the proper file. The matter came on for conciliation before Assistant Registrar O'Connell on 8 July 2020, but again the conciliation was wholly unsuccessful. The Assistant Registrar at the end of that conciliation conference listed the matter for hearing in Newcastle on 24 August 2020. 1. It is important to note that on 27 February 2020 the defendant's solicitor advised the plaintiff's solicitors of a re-examination by Dr David Millons on 7 April 2020 at 10.30am at North Sydney, and that on 29 June 2020 the same solicitor served upon the defendant's solicitors four reports of Dr Millons dated 22 October 2019, and four reports of Dr Millons dated 4 June 2020, obviously following the respective examinations on 16 October 19, and 7 April 20. 2. The parties were able to reach agreement on 24 August about the extent of the plaintiff's lump sum compensation claims. But clearly no agreement was reached concerning costs. The defendant's primary position is that the plaintiff should have no costs in matter RJ461 of 2019. The defendant's "fallback" position is that the costs should be assessed on a refresher basis only. 3. Relevant to the current matter is my decision in Bruce v Grocon Limited (1995) 11 NSWCCR 247. That decision was made at a time when there was much argument as to whether the failure to make a claim, or plead a claim might amount to an estoppel. At 267 I distilled from the authorities a number of principles. They are these: "a) There is no 'cause of action' for workers compensation. The Act creates a number of rights which a worker is entitled to pursue independently of other rights: Salmon Street Limited (In Liq) v Jorgensen (1991) 56 SASR 158, and Thompson v George Western Foods Limited (1990) 6 NSWCCR 370. b) Estoppel will arise if the relief claimed in second or subsequent proceedings was claimed in original proceedings: Jorgensen's case. c) Estoppel of the type referred to in the Port of Melbourne Authority v. Anshun Pty Limited (1981) 147 CLR 589 will apply if there were alternative bases to ground the relief claimed but one of those bases was not pursued: Ada v Westmead Centre Parramatta Hospital (1985) 1 NSWCCR 101. An analogous situation to Ada's case is one where a person claimed to be a 'worker' and failed in that allegation. Subsequently he brought second proceedings seeking to allege that he was a 'deemed worker' for the purposes of the Act. In such a case the claimant's remedy is pursuant to s 17(4) of the Compensation Court Act 1984 [a reconsideration application]. d) Where a claim could have been litigated in earlier proceedings but was not, there may be a costs penalty: Thompson v George Western Foods Limited (1990) 6 NSWCCR 370, Jorgensen's case per Cox J at 164, Kerr v Hunter District Water Board (1991) 7 NSWCCR 289 at 295." The facts of Bruce v Grocon Limited could be seen as being the reverse of the current proceedings. In Bruce's case there was initially a claim for lump sum compensation which led to a consent award being entered in August 1993. There was then a claim for weekly payments which was available to be made at the time the plaintiff was awarded the lump sum compensation. In that case, having considered the facts, I ordered that the respondent pay the applicant's costs, but on a refresher basis only. At 271, I said this: "Practitioners ought to be cognisant of the fact that the cost of enforcing claims is not an insignificant charge on the statutory funds of the various insurers, and those who ignore that fact do so at their peril." 1. I note that one of the reasons given for the establishment of the current Worker's Compensation Commission and the abolition of Compensation Court was that the cost of litigated claims was too great and a way to reduce the cost was to abolish the court and have a system where there was conciliation and arbitration rather than Court proceedings. 2. Unlike Bruce v Grocon Ltd, the defendant was well aware when matter RJ10/2019 was settled, that there was a claim for lump sum compensation pending, for which each party had obtained medical evidence and presumably with which each party could deal if he or it wished to. The defendant argues that the plaintiff ought to have amended the statement of claim so that that the defendant would know what the plaintiff wanted. However, the defendant well knew the plaintiff was seeking the lump sum compensation, a formal claim had been made, medical reports had been obtained by both parties and the matter had been raised at the conciliation conference. Nevertheless, with its eyes wide shut, the defendant decided to settle the claim in RJ10/2019, leaving the claim for lump sum compensation still hanging over its head. In those circumstances, and without there being any evidence that the defendant sought on 11 December 2019 to make the plaintiff amend the then statement of claim to make a lump sum compensation claim, and perhaps to adjourn it, if the defendant had not yet served its medical evidence. If that were done, the only penalty might have been an interim cost penalty. I cannot conclude that the plaintiff's solicitors are not entitled to their costs of the current proceedings. Accordingly, I order the defendant to pay the costs of the plaintiff in matter RJ461/2019, including the costs of this application for costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2020