District Court New South Wales Medium Neutral Citation: Ritson v State of New South Wales (No. 2) [2022] NSWDC 347 Hearing dates: 30 May 2022 Date of orders: 17 August 2022 Decision date: 17 August 2022 Jurisdiction: Civil Before: Neilson DCJ Decision: I dismiss the application of the Defendant for costs. Each party should bear his or its own costs of these proceedings. Catchwords: WORKERS COMPENSATION – COSTS – Claim by Defendant for costs from unsuccessful Plaintiff – If Plaintiff were a resident of NSW or a foreign country, costs could not be ordered against him – On proper construction of Personal Injury Commission Act 2020 that Commission could not make the order sought, nor could the District Court – Equality before the law – Power to award costs ought not depend on Plaintiff's place of abode (Qld) – History of power to award costs against an applicant for workers compensation – Plaintiff a former police officer, still entitled to protection of privative provision in legislation. Legislation Cited: Compensation Court Act 1984 (NSW) Civil Procedure Act 2005 (NSW) District Court Act 1973 (NSW) Evidence Act 1995 (NSW) Motor Accidents Injuries Act 2017 (NSW) Personal Injury Commission Act 2020 (NSW) Personal Injury Commission Regulation 2020 (NSW) Uniform Civil Procedure Rules 2005 (NSW) WorkCover Legislation Amendment Act 1995 (NSW) Workers Compensation Act 1926 (NSW) Workers Compensation Act 1987 (NSW) Workers Compensation Legislation Amendment Act 1998 (NSW) Workers' Compensation (Amendment) Act 1984 (NSW) Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Central Tablelands County Council v Clow [2002] NSWCC 24; (2002) 23 NSWCCR 442 Emeli Taeiloa v Forstaff Personnel [2003] NSWWCCPD 8 Haynes v Haynes [2002] NSWCC 28; (2002) 23 NSWCCR 472 In Re Boaler [1915] 1 KB 21 Jackson v Tooheys Pty Ltd [1952] WCR 60 McHenry v Lewis (1882) 22 ChD 397 Nikolov v Piulos Bros (Wholesale) Pty Ltd (2000) 19 NSWCCR 329 Pascoe v Barrier Crash Repairs Pty Ltd [1978] WCR 156 (C.A.) Ritson v State of New South Wales (No. 1) [2022] NSWDC 345 Stephenson v Garnett [1898] 1 QB 678 Texts Cited: Oxford Latin Dictionary, 2nd Edition, Vol 1. P 809 Mills, C.P., Workers Compensation (New South Wales), Sydney, Butterworths, 1969 Mills, C.P., Workers Compensation (New South Wales), Sydney, Butterworths, 1979 Shorter Oxford English Dictionary, 5th Edition Category: Costs Parties: Plaintiff – Brendan Ritson Defendant – State of New South Wales Representation: Counsel: Plaintiff – Unrepresented Defendant – Dixon, T.J. and Robison, L. Solicitors: Plaintiff – Unrepresented Defendant – HWL Ebsworth Lawyers File Number(s): 2021/00341566 Publication restriction: Nil. Judgment 1. HIS HONOUR: This judgment concerns an esoteric question about costs. The Plaintiff was unsuccessful in his claim for the payment of his treatment expenses for an injury to his right thumb, for reasons given in Ritson v State of New South Wales (No. 1) [2022] NSWDC 345. At the conclusion of my reasons, given ex tempore, the Defendant applied for costs. I heard arguments on that issue on Monday 30 May 2022, when I reserved my decision. Abbreviations 1. In this judgment I shall use the following abbreviations: 1. "1926 Act" means Workers Compensation Act 1926 (NSW); 2. "1984 Act" means Compensation Court Act 1984 (NSW); 3. "1987 Act" means Workers Compensation Act 1987 (NSW); 4. "1998 Act" means Workplace Injury Management and Workers Compensation Act 1998 (NSW); 5. "CPA" means Civil Procedure Act 2005 (NSW); 6. "DCA" means District Court Act 1973 (NSW); 7. "PIC" means Personal Injury Commission of New South Wales; 8. "PICA" means Personal Injury Commission Act 2020 (NSW); 9. "PICAR" means Personal Injury Commission Regulation 2020 (NSW); 10. "UCPR" means Uniform Civil Procedure Rules 2005 (NSW); 11. "WCC 1" means Workers Compensation Commission established under the 1926 Act, s31; 12. "WCC 2" means Workers Compensation Commission established under the 1998 Act, s366; 13. "WCL" means the 1926 Act, 1987 Act and 1998 Act as applicable. Historical background 1. The first comprehensive statute concerning workers compensation in this State was the 1926 Act. That constituted the WCC 1. Inter alia, WCC 1 had "exclusive jurisdiction to examine into, hear and determine all matters and questions arising" under that Act. Initially, there was no succinct grant of power to that Commission to order costs, but it could be inferred from section 38(e): "make rules regarding all matters of procedure and practice, and prescribe forms to be used, scales of fees and costs to be paid to barristers and attorneys; expenses to be paid to witnesses, and the fees payable in any proceedings"; and section 56 which prevented a solicitor or agent charging the applicant for compensation any more than the sum awarded by the Commission as costs, which could be taxed by the Registrar at the Commission. A more succinct power to order costs was provided by s38(g) inserted by Act No 36 of 1929: "make such order as to the payment of costs as it may think just and may assess the amount of such costs". 1. By Act No 20 of 1951, s 38(g) was amended into this form: "Make such order as to the payment of costs as it may think just, to the extent of the fees and costs actually incurred or to be incurred by the worker, and may assess the amount of such costs: Provided that any such order as assessment shall not exceed the fees and costs provided by the highest scale applicable to proceedings in the Supreme Court of New South Wales in its common law jurisdiction. The amount of costs shall in respect of the attendance of any medical witness be the actual cost of such attendance to the party calling the witness, or calculation according to the scale of costs applicable to proceedings in the Supreme Court of New South Wales in its common law jurisdiction, whichever is the less. The Commission shall not order the payment of costs by a worker unless it is satisfied that his application has been made fraudulently." 1. By Act No 97 of 1967, the last sentence of s 38(g) was amended into this form: "The Commission shall not order the payment of costs by a worker unless it is satisfied that his application was frivolous or vexatious or was made fraudulently or without proper justification". I shall refer to this sentence (or verbiage to the same effect) as "the privative provision". 1. By Act No 79 of 1980, s 38(g) was repealed and replaced with section 38A which was in these terms: "38A. (1) Subject to this section, the Commission may make such order as to the payment of costs as it thinks just and may assess the amount of those costs. (2) The Commission shall not order the payment of costs by a worker unless it is satisfied that his application was frivolous or vexatious or was made fraudulently or without proper justification. (3) Without prejudice to the generality of sub-section (1), an order for payment of costs may include- (a) the fees and costs actually incurred or to be incurred by a worker; (b) where an employer denies liability but later admits liability without recourse to the Commission- the reasonable expenses incurred by the worker in pursuing his claim; (c) costs of and incidental to an application under section 51(4); and (d) costs incurred in relation to any proceedings under this Act (including proceedings under section 29). (4) The amount allowable for costs in respect of the attendance of any medical witness is the lesser of- (a) the actual costs of the attendance to the party who calls the witness; and (b) an amount calculated according to the scale of costs applicable to proceedings in the Supreme Court of New South Wales in the Common Law Division or, where the regulations provide for some other amount, that other amount. (5) Fees and costs included in an order or assessment under subsection (1) shall not, where provision is made for the like fees and costs in the scales applicable to proceedings in the Supreme Court of New South Wales in the Common Law Division, exceed the fees and costs provided for in the highest of those scales." The privative provision was now s 38A(2). 1. The original structure of WCC 1 consisted of a judge, as chairman, and two lay members appointed by the Governor-in-Council for a term of 7 years, which could be renewed. Those lay members were in practice appointed on the respective nominations of employers' and employees' organisations. Questions of law were to be determined by the chairman, but otherwise issues were decided by majority. Any two members constituted a quorum. In 1929 a provision was made for the appointment of a judge as deputy chairman, so that two sittings by the Commission could be held at the same time. By Act No 36 of 1938, the WCC 1 was reconstituted. From that time it was constituted solely by judges. In general, the powers of the Commission were exercisable by a single judge. A judge was still appointed as chairman. In the absence of the chairman, the next most senior judge acted as Chairman. However, WCC 1 had both judicial and administrative functions: it administered the workers compensation scheme. That led to problems: WCC 1 issued or refused to issue, and, if issued, could cancel an insurer's licence to write workers compensation insurance. There was a right to appeal to the WCC 1, sitting as a court. The late Prof CP Mills wrote in his texts, Workers Compensation (New South Wales), 1969, at p438 and the second edition of it in 1979 that: "The functions vested in the Commission by the statute are a curious mixture of the judicial and the administrative." The potential for conflict led to the WCC 1's abolition. 1. The 1984 Act was Act No 89 of 1984. Act No 90 of 1984 was the Workers' Compensation (Amendment) Act 1984. The latter Act abolished WCC 1. Its judges were translated to the Compensation Court of New South Wales, constituted by the 1984 Act. The chairman of WCC 1 became the first Chief Judge of the Compensation Court, and the other judges of the Commission became puisne judges of the Compensation Court. The power of the Court to award costs was contained in the 1984 Act section 18 which was originally in this form: "Costs. 18. (1) Subject to this section, the Court may in any matter make such order as to the payment of fees or costs as it thinks just and may assess the amount of those fees or costs. (2) Without affecting the generality of subsection (1), the Court may, in such circumstances as are specified in the rules, order the payment of fees or costs by a legal representative. (3) Subject to section 24(1)(b), the Court shall not order the payment of fees or costs by- (a) an applicant for compensation under Workers' Compensation Act, 1926; or (b) an appellant (not being an employer or an insurer) against an award or order or a determination, ruling, direction or decision under that Act, unless it is satisfied that the application or appeal was frivolous or vexatious or was made fraudulently or without proper justification. (4) Fees and costs included in an order or assessment under subsection (1) or (2) shall not, where provision is made for the like fees and costs in the scales applicable to proceedings in the Supreme Court in the Common Law Division, exceed the fees and costs provided for in the highest of those scales except with the approval of the Court or the officer taxing the fees and costs." Section 24(1) provided this: "(1) The Court may at any stage of any proceedings before it- …… (b) require any party to the proceedings, not being a minor or person of unsound mind, to make admissions with respect to any document or to any question of fact; and in the case of refusal or neglect to make the admission may, unless the Court is of the opinion that the refusal or neglect is reasonable, order that the costs of proof occasioned by the refusal or neglect shall be paid by that party." 1. Act No 90 of 1984, which abolished WCC 1, also established the State Compensation Board which body was entrusted with the administrative roles formerly performed by WCC 1. This body changed its name over the years and became a burgeoning bureaucracy. 2. I omit from this historical background my analysis of "Commissioners". They were initially provided for in the 1984 Act. However by Act No 91 of 1985, the 1926 Act was amended to insert Part IVA which made alternative arrangements for Commissioners, independent of the Court, but exercising certain functions of the Court, with a right of appeal to the Court. Commissioners were continued under 1987 Act Part 8 which was repealed by Act No 119 of 1989, which returned those who had been appointed as Commissioners to a tier in the Compensation Court below that of judges. There was a right of review of Commissioners' decisions by judges. Commissioners could only ever exercise the costs powers that had been granted to the Compensation Court. 3. The passing of the 1987 Act led to a number of amendments to other Acts. 1984 Act s 18(3) was repealed and replaced by an almost identical provision which appeared in 1987 Act s 121(1), which specifically applied to proceedings both in the Compensation Court and before a Commissioner. When 1987 Act Part 8 was repealed, 1984 Act was amended by the repeal of the existing s 18 and its replacement with this provision: "Costs 18. (1) In this section, a reference to costs is a reference to costs payable between party and party, including disbursements. (2) Subject to this Act and the rules 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 extend costs are to be paid in or in relation to any proceedings; and (c) the Court has full power to order costs in or in relation to any proceedings to be taxed or otherwise ascertained. (3) A taxation of costs may be reviewed by the Court in accordance with the rules of Court. (4) 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. (5) 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. (6) If a person claiming compensation applied under section 36 for a review of the decision of a commissioner, costs in or in relation to the review are to be paid by the unsuccessful party unless the Court in special circumstances otherwise orders. (7) 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 the Workers Compensation Act 1987 if it appears to the Court that the failure has resulted in unnecessary litigation or has adversely affected the rehabilitation of an injured worker. (8) 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 the Workers Compensation Act 1987 (including conciliation conferences as defined in section 100A of that Act). (9) In this section: "application for compensation" includes any proceedings in connection with an application for compensation; "compensation" means compensation under the Workers Compensation Act 1987; "decision" includes award, order, determination, ruling and direction." 1. By Act No 89 of 1995 (WorkCover Legislation Amendment Act 1995), 1984 Act section 18 was repealed and replaced with this provision: "18 Costs Section 116 (Costs) of the Workers Compensation Act 1987 applies to and in respect of any proceedings in the Court, not just proceedings under that Act." The same Act inserted into the 1987 Act a new section 116 in this form: "116 Costs (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 6 of Part 11 of the Legal Profession Act 1987 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 2 of Part 4), and (d) costs incidental to an application for referral of a medical dispute under section 131, or to referral of a medical question by agreement under section 131A, and (e) costs incidental to an application for registration of an agreement under section 66A, 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. decision includes award, order, determination, ruling and direction." One will note that the privative provision continued in subs (3) and (4). 1. The passage of the 1998 Act also led to a movement of the costs power to another statute. The 1998 Act is Act No 86 of 1998. A cognate provision is Act No 85 of 1998 (Workers Compensation Legislation Amendment Act 1998). That amended 1984 Act section 18 into this form: "18 Costs Section 112 of the Workplace Injury Management and Workers Compensation Act 1998 applies to an in respect of any proceedings in the Court, not just proceedings under that Act." The new cognate Act also repealed the 1987 Act section 116, which was replaced by 1998 Act s 112, which was in exactly the same terms as the former section 116 of the 1987 Act, and which, therefore, I shall not quote. In short, issues concerning costs in workers compensation matters have been governed by the 1998 Act since this time. 1. The next major change was brought about by Act No 61 of 2001 which made major changes, not only to the 1998 Act but to the workers compensation scheme. Most of these changes came into force on 1 January 2022. Some changes were also made by Act No 94 of 2001, many provisions of which also came into force on 1 January 2002. The 1998 Act distinguished an "existing claim" for compensation and a "new claim for compensation", meaning any claim (made or entitled to be made) that was not an existing claim. An existing claim was defined in s 250 to mean a claim made before 1 January 2002, but under 1987 Act, Schedule 6, Part 18C there might be a transfer of "existing claims" so that they were treated as "new claims". The Compensation Court retained exclusive jurisdiction to hear and determine any matter arising in respect of an existing claim under s 105(4): see Central Tablelands County Council v Clow [2002] NSWCC 24; (2002) 23 NSWCCR 442; Haynes v Haynes [2002] NSWCC 28; (2002) 23 NSWCCR 472. The 1998 Act, section 366 established WCC 2: see generally 1998 Act, Chapter 7, Part 10, Div 1. Under s 105(1), WCC 2 was granted exclusive jurisdiction in all matters arising under the 1987 Act and the 1998 Act, except any Common Law claim (s105(2)) or in any matter in which the Compensation Court had jurisdiction (s105(3)). The power to award costs contained in s 116 was confined to proceedings in respect of existing claim matters (s111A). Costs in respect of new claim matters were governed by 1998 Act Chapter 7, Part 8. The power of WCC 2 to award costs continued to contain the privative provision (s341(4) and (5)) which applied, at least, at first instance (an arbitration). Accordingly after 1 January 2002 whether the proceedings were before the Compensation Court or WCC 2, the privative provision protected claimants for compensation at first instance. 2. The 1984 Act was repealed by Act No 23 of 2002 with effect on 1 January 2004, abolishing the Compensation Court. Its judges were translated by that Act to this Court. Proceedings which were pending in the Compensation Court were regulated by Act No 23 of 2002, s 7. Some proceedings were transferred to this Court, but the costs regime of the Compensation Court still applied to such proceedings. When the Compensation Court was abolished, part of its jurisdiction was transferred to this Court: DCA Part 3 Division 8A, now known as the "Compensation Jurisdiction of the Court". Under the DCA section 142K, 1998 Act section 112 extends to any proceedings in the compensation jurisdiction of this Court and is not limited by 1998 Act s111A. Accordingly, if the present Plaintiff's case had been in the compensation jurisdiction of this Court, the privative provision would apply to him. Unfortunately, his claim was not within the compensation jurisdiction of this Court. 3. The power of the WCC 2 to make an order for costs was abolished by Act No 53 of 2012. A new section 341 was inserted into the 1998 Act by that amending Act. This new provision came into force on 1 October 2012. It is this: "(1) Each party is to bear the party's own costs in or in relation to a claim for compensation. (2) The Commission has no power to order the payment of costs to which this Division applies, or to determine by whom, to whom and to what extent costs which this Division applies are to be paid." However, there is a transitional provision in 1987 Act, Sch 6 Pt 19H Div 3 clause 25: "The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause) and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted." Act No 53 of 2012 was the Workers Compensation Legislation Amendment Act 2012, to which Schedule 6 Pt 19H refers. "Workers Compensation Acts" is a reference to both the 1987 Act and the 1998 Act: see 1998 Act section 4, definition of "Workers Compensation Acts". 1. The current plaintiff is a former police officer. Accordingly even after 1 October 2012, the former section 341 applied to him, such that WCC 2 could order that his costs be paid, if he were successful, but, if costs were sought against him, the privative provision would apply. 2. WCC 2 was abolished by Act No 18 of 2020, with effect from 1 March 2021. That Act's title is PICA. That Act commenced, in substance, on 1 March 2021: sections 2(2) and 6(3). The Commission has two Divisions: the Workers Compensation Division and the Motor Accidents Division. Schedule 3 of PICA is referable to the workers compensation Division. Definitions contained in the 1998 Act were amended: 1. "Commission" had been defined as WCC 2 but was amended to mean the PIC established under PICA; 2. "Commission rules" was inserted, having the same meaning as under PICA; 3. "mediator" was amended to the one appointed under PICA; 4. "medical assessment" was slightly amended; 5. "medical assessor" was inserted, being a person appointed under PICA; 6. "Presidential member" was amended to have the same meaning as in PICA. 1. It is clear that any reference to "Commission" or to any related word in the WCL is now a reference to PIC. Accordingly, 1998 Act s 341, which is still in force, prevents PIC from exercising any power to award costs, at least in the Workers Compensation Division. It follows that the transitional provision quoted in [16] above is also still applicable and therefore the current plaintiff is still entitled to the benefit of the former s 341 of the 1998 Act, such that PIC could order costs to be paid to him if he were successful, but, could not order costs against him if he were unsuccessful, if the privative provision were applicable. Provision in PICA relevant to "federal jurisdiction" 1. Division 3.2 of PICA is headed "Determination of Federal Proceedings". "Compensation claim" is defined to include a claim for compensation to which the Workers Compensation Acts apply. "Federal Jurisdiction" is defined to mean "jurisdiction of a kind referred to in section 75 or 76 of the Commonwealth Constitution". The relevant further provisions of PICA are these: "26 Applications involving federal jurisdiction may be made to District Court (1) A person with standing to apply to the President or the Commission for a matter concerning a compensation claim to be determined by the usual decision-maker (a compensation matter application) may, with the leave of the District Court, make the application to the Court instead of the President or Commission. (2) The regulations may make provision for or with respect to— (a) who has standing to make an application for leave, and (b) excluding or including applications as compensation matter applications. (3) The District Court may grant leave for a compensation matter application to be made to the Court only if it is satisfied that— (a) an application was first made to the President or Commission, and (b) the determination of the matter by the usual decision-maker would involve an exercise of federal jurisdiction, and (c) the usual decision-maker would otherwise have had jurisdiction enabling the decision-maker to determine the application. (4) An application for leave must be— (a) filed with the District Court along with— (i) an application that has been completed in the form and manner required under this Act or enabling legislation for the kind of compensation matter application concerned, and (ii) if the parties to the compensation matter application have reached a settlement before leave is sought using a resolution process provided under this Act or enabling legislation—a copy of the terms of settlement, and (b) accompanied by the applicable fee (if any) payable for the compensation matter application unless it has already been paid. (5) The District Court may— (a) remit a compensation matter application for determination by the usual decision-maker if the Court is satisfied that the usual decision-maker has jurisdiction to determine it, and (b) do so instead of granting leave or after granting leave. (6) If the District Court remits a compensation matter application to be dealt with by the usual decision-maker, the Court may make such orders that it considers appropriate to facilitate the determination of the application by the decision-maker. (7) The usual decision-maker is to determine any compensation matter application that is remitted to the decision-maker in accordance with any orders made by the District Court. 27 Proceedings after leave granted (1) If the District Court grants leave for a compensation matter application to be made to it instead of the President or Commission— (a) proceedings for the determination of the application (substituted proceedings) are taken to have been commenced in the Court on the day on which the application was first made, and (b) the Court may make such orders (including in relation to the usual decision-maker) as it considers appropriate to facilitate its determination of the application. (2) Subsection (1) applies despite any limitation period under the Limitation Act 1969 or any enabling legislation that applies to the application concerned provided it was first lodged for exercise by the usual decision-maker before the expiry of the period. (3) The District Court has, and may exercise, all of the jurisdiction and functions in relation to the substituted proceedings that the usual decision-maker would have had if they could exercise federal jurisdiction, including jurisdiction and functions conferred or imposed by or under this Act, enabling legislation or any other legislation. (4) Without limiting subsection (3), the District Court may— (a) order that a medical assessment or merit review required by or under enabling legislation (or a review or appeal against the assessment or merit review) be carried out for the Court by a medical assessor, merit reviewer or panel specified by the Court, and (b) make any other orders it thinks fit to facilitate the carrying out of the medical assessment, merit review or the review or appeal before the panel (including with respect to the issuing of certificates), and (c) adopt (whether with or without variation), or refuse to adopt, the decision of the medical assessor, merit reviewer or panel as the Court sees fit. (5) A decision adopted by the Court (whether with or without variation) has effect as a decision of the Court in respect of the matter concerned. (6) This section has effect subject to the provisions specified by section 28. 28 Provisions relating to determining substituted proceedings (1) The following provisions apply in relation to substituted proceedings— (a) the District Court is to be constituted as provided by its relevant courts legislation instead of as provided by this Act or enabling legislation, (b) the legislation applicable to appeals against decisions of the District Court applies to decisions of the Court instead of appeal provisions specified by or under this Act, enabling legislation or any other legislation, (c) the practice and procedure applicable in the District Court under its relevant courts legislation (and any laws applicable in relation to contempt of court) apply to the substituted proceedings instead of the practice and procedure specified by or under this Act, enabling legislation or any other legislation, (d) the District Court may make orders giving effect to any settlement reached by the parties even if that settlement was reached before the substituted proceedings commenced, (e) any other provisions (including by way of modifications to the provisions of this Act, enabling legislation or other legislation) as may be prescribed by the regulations in respect of the substituted proceedings of the kind concerned. (2) Without limiting subsection (1)(e), the provisions that may be prescribed by the regulations for the purposes of the paragraph include provisions for or with respect to the following— (a) the parties to substituted proceedings, (b) fees and costs payable in respect of substituted proceedings, (c) enabling a person or body to determine a matter for the District Court, (d) the updating of references in provisions of this Act, enabling legislation or other legislation conferring or imposing functions exercisable in substituted proceedings by the District Court instead of some other person or body. (3) The Minister is not to recommend the making of a regulation for the purposes of subsection (1)(e) unless the Minister certifies that— (a) if the proposed provisions affect the exercise of jurisdiction or functions by the Commission—the President has agreed to the provisions, and (b) if the proposed provisions affect the exercise of jurisdiction or functions by the District Court—the Chief Judge of the District Court has agreed to the provisions. 29 Commencement of court proceedings The regulations may make provision for or with respect to the modification of provisions of enabling legislation preventing the commencement of proceedings in a court for a compensation claim unless certain preconditions are met, if compliance with those preconditions may involve an exercise of federal jurisdiction or be the subject of substituted proceedings. 30 Relationship of Division to this Act and other laws (1) The provisions of this Division (including of regulations made for the purposes of a provision of this Division) prevail to the extent of any inconsistency between those provisions and any other provisions of this Act, enabling legislation or other legislation. (2) To avoid doubt, subsection (1) applies despite anything in a Division Schedule for a Commission Division." It ought be clear from [3] and [4] of Ritson v State of New South Wales (No. 1) [2022] NSWDC 345 that the plaintiff first made an application to the President of the PIC, satisfying s26(3) and that he then made an application to this Court (Dicker SC DCJ) who granted him leave to make his application to this Court: see ibid at [5]. Thus s26 has been complied with. The substance of the Plaintiff's claim is the subject of my principal judgment. What I am here concerned with is section 28(1)(e) and section 28(2)(b). 1. The Defendant's argument is straightforward: in this Court, costs are governed by CPA and UCPR; the general provision is that costs follow the event; the Plaintiff has been unsuccessful, therefore he ought be ordered to pay the Defendant's costs. I have been referred to PICAR, clauses 9 to 13 of which are these: "9 Application of Division For the purposes of sections 28(1)(e) and 29 of the Act, this Division sets out the fees and costs payable and other modifications in connection with substituted proceedings. Note— The enabling legislation, including regulations made under the enabling legislation, further provides for fees and costs in connection with substituted proceedings. 10 Modification of certain pre-conditions before commencement of proceedings Section 108 of the Motor Accidents Compensation Act 1999 and section 6.31 of the Motor Accident Injuries Act 2017 do not apply to compensation matter applications or substituted proceedings. 11 Costs payable in relation to claims for statutory benefits (1) Part 8 of the Motor Accident Injuries Act 2017, including regulations made under that Part, applies to substituted proceedings involving a claim for statutory benefits to which the Motor Accident Injuries Act 2017 applies, except as otherwise modified by this clause. Note— Part 8 of the Motor Accident Injuries Act 2017, among other things, provides that an insurer is not entitled to recover from a claimant for statutory benefits any costs of the insurer in relation to the claim. (2) The maximum costs set out in Schedule 1 of the Motor Accident Injuries Regulation 2017 do not apply in relation to substituted proceedings to which this clause applies. (3) Despite section 8.3(4) of the Motor Accident Injuries Act 2017, an Australian legal practitioner is entitled to be paid or recover legal costs for legal services provided to a claimant in connection with claim for statutory benefits only if— (a) the costs are payable on a party and party basis, and (b) the District Court orders payment of the costs. 12 Costs payable in relation to motor accidents claims for damages (1) Part 8 of the Motor Accident Injuries Act 2017, including regulations made under that Part, applies to substituted proceedings involving a claim for damages to which the Motor Accident Injuries Act 2017 applies, except as otherwise modified by this clause. (2) The maximum costs set out in Schedule 1 of the Motor Accident Injuries Regulation 2017 do not apply in relation to substituted proceedings to which this clause applies. 13 Costs payable in relation to claims for other motor accidents claims for damages (1) Chapter 6 of the Motor Accidents Compensation Act 1999, including regulations made under that Chapter, applies to substituted proceedings involving a claim for damages to which that Act applies, except as otherwise modified by this clause. (2) The maximum costs set out in Schedule 1 of the Motor Accidents Compensation Regulation 2020 do not apply in relation to substituted proceedings to which this clause applies." With unfeigned respect to Mr Robison, who argued the costs application without his leader, reliance on PICAR does not assist him. 1. PICAR says nothing specific about workers compensation claims. The regulation relates only to claims arising under the Motor Accidents Injuries Act 2017. Section 8.3 of that Act provides for regulations fixing the maximum costs and disbursements recoverable by lawyers. Section 8.5 provides that where there are court proceedings and an assessment has not been made under section 7.6, costs are payable on a party-party basis and follow the event. Section 8.10 grants an entitlement to recover costs of making a claim for statutory benefits. In fine, the present motor accident legislation, the statutory benefit side of which is within the jurisdiction of PIC, provides for the payment of costs. The present WCL does not. Consideration 1. If my construction be correct, in the Workers Compensation Division of PIC no orders for costs are made, yet they are made in the Motor Accidents Division. That might explain why in PICA s 28(2) there is reference to costs. In my view it does not necessarily mandate that an unsuccessful Plaintiff in this Court is a workers compensation claim should pay his employer's costs, when PIC itself could not so order. There is room for the application of the principle of interpretation that generalia specialibus non derogant. 2. The Plaintiff's position is anomalous. If, instead of moving from this State to Currumbin Waters in Queensland, he had moved to Ballina, Byron Bay, the Tweed Coast, Kingscliff, or Tweed Heads, he could have brought his claim in PIC and, as a former police officer, sought the protection of the privative provision when he was unsuccessful. If, instead of moving from this State to Queensland, he had moved to New Zealand, Fiji, Samoa, Tonga, the UK, USA, Eire, or any other place outside of Australia, he could have brought his claim in PIC, and, as a former police officer, sought the protection of the privative provision when he was unsuccessful. Nevertheless the State of New South Wales argues that, because he is a resident of Queensland, despite the fact that he is a former police officer, he should pay this State's costs. This, in my view, is not equality before the law, a basic premise of our legal system. A person's place of residence ought not determine whether he ought pay costs or not. 3. I have canvassed, at some length, the costs' provisions in WCL since 1926 to discern a public policy: such policy is made by Parliament, not by the courts. Between 1967 and 2012, legislation provided that an employer ought pay a successful employer's costs of a workers compensation claim, but, if the employee's claim were unsuccessful, costs could not be awarded against him or her unless the claim made was frivolous, vexatious, without proper justification or fraudulent. Since 1 October 2012, WCC 2 and then PIC has had no power to award costs to any party. Yet the prior law persists for police officers, paramedics and firefighters. It also persists in the compensation jurisdiction of this Court for police officers who joined NSWPF before 1 March 1988, for those entitled to benefits under Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 e.g. volunteer members of the Rural Fire Service, of the State Emergency Service, of the Surf Life Saving Association in this State and other volunteer rescue service members, and for other types of workers, not germane in the current proceedings. I have been unable to discern in the relevant provisions of PICA or in the general provisions derived from CPA and UCPR anything to indicate that this public policy should not apply to a resident of another State or to a resident of a territory of the Commonwealth, who would otherwise be entitled to it. 4. Accordingly, I proceed on the basis that, if PIC could not order the Plaintiff to pay costs because of his unsuccessful claim, then neither should this Court. I do so as a matter of statutory constructions. If I be wrong in so doing, I do so as a matter of discretion in the exercise of the Court's costs ordering power. The question which then arises is: is the Plaintiff entitled to the protection of the privative provision? Applying the privative provision 1. Was the Plaintiff's claim frivolous? "Frivolous" is derived from the Latin verb frio, friare, friaui, friatum, a transitive verb meaning to break something up into small parts, to crumble something or to pulverise something. If used reflexively the verb means to fall into fragments or to crumble away of its own momentum. This gives an adjective friuolus, friuola, friuolum, meaning having little or no material value, worthless or trashy and a transferred meaning of worthless, insignificant, trifling, silly or empty. See Oxford Latin Dictionary, 2nd Edition, Vol 1. P 809. The English adjective is derived directly from the Latin adjective. The Shorter Oxford English Dictionary, 5th Edition provides these meanings: of little or no value or importance, paltry, and, for a claim or charge, having no reasonable grounds; lacking seriousness or sense, silly. The word was considered by Byron DP in Emeli Taeiloa v Forstaff Personnel [2003] NSWWCCPD 8 but Mr Byron dealt with "frivolous or vexatious" compendiously. I would adopt a meaning taken from the Shorter Oxford Dictionary: having no reasonable grounds. On the medical evidence I canvassed in my principal decision, there clearly appeared to be a causal nexus between the Plaintiff's injury and the treatment he received in 2021, which was the subject of his claim. As I sought to point out, the underlying condition is a serious, progressive one which may eventually lead to more serious surgery. In my view there were reasonable grounds for the Plaintiff to make his claim. 2. Was the Plaintiff's claim vexatious? The concept of vexatiousness is based on the maxim: nemo debet bis vexari pro una et eadem causa: no one ought be twice vexed for one and the same cause. See Stephenson v Garnett [1898] 1 QB 678; In Re Boaler [1915] 1 KB 21; McHenry v Lewis (1882) 22 ChD 397. Other than the claim presently before this Court, and the proceedings in PIC which PICA required the Plaintiff to make, there have been no other proceedings arising from the Plaintiff's claim, the subject of these proceedings. The claim only arose in 2021, when the Plaintiff incurred the expense of the treatment which was the subject of the claim. These proceedings were not vexatious. That word is often used in litigation where there are proceedings in two different fora or possible litigation in two fora where the argument involves an allegation of forum non conveniens. Dicta in such cases provide little assistance on the current issue. 3. Was the Plaintiff's claim brought without proper justification? In Nikolov v Poulos Bros (Wholesale) Pty Ltd (2000) 19 NSWCCR 329 I said this: "17. Mr Monaghan has submitted to me that the words 'without proper justification', ought to be interpreted as meaning 'without any possible justification'. I am unable to accede to that submission. That would be to interpret the words 'without proper justification' as meaning 'without any justification' or 'without justification'. 18. It appears to me that the word 'proper' when used in the expression 'without proper justification', modifies the strictness of the word 'justification' just as in the phrase 'reasonably necessary', the word 'reasonably' modifies whether something is necessary or not. Strictly something is necessary or it is not. To make something reasonably necessary modifies the strictness of the necessity. 19. It appears to me that the appropriate synonym for 'proper' in the phrase with which I am now dealing is 'genuine' or 'real' or 'appropriate', being the second and third major meanings of the word 'proper' as recited in the Shorter Oxford Dictionary. 20. There must be an appropriate justification. Here there is not any appropriate justification and indeed in the light of the facts recited in my earlier reasons for judgment, there would not appear to be any justification at all." I remain of the view that this phrase should be construed as meaning "without appropriate justification". The evidence before me establishes at least a prima facie case. Mr Robison did not address me about the privative provision, his case being that it did not apply for reasons I have already canvassed. However, his case was that the Plaintiff's case was inarguable because of the terms of the deed. I shall discuss under this topic whether the deed was such that it could be seen that there was no appropriate justification for the Plaintiff to make his claim in this Court. These points need to be taken into account: 1. the Plaintiff is not a lawyer, he is a former police officer and the evidence suggests he worked on general duties, not investigatory work; 2. the Plaintiff had no legal representation at any time since he incurred the expense of the treatment in August and September 2021; 3. the Plaintiff did not consider that he had any cause of action in, e.g., negligence against the State for the injury he suffered on 22 January 2006 because: 1. he could not see how the offender who caused the injury could cause to arise in the State liability at Common Law, and 2. he has not yet demonstrated the necessary whole person impairment; 1. such legal advice as he had been given about the Deed had been given 10 years previously; 2. he appears to have been aware of the provision forbidding contracting out of the WCL; 3. he found it difficult to accept that the settlement he reached in 2011 could have removed the Defendant's liability for medical or the like expenses incurred in 2021, when he did not consider that he had had a potential Common Law claim against the State in respect of the injury of 22 January 2006; 4. the focus of the 2011 settlement concerned mainly his psychiatric/psychological condition and its various causes. In these circumstances I can accept that the Plaintiff had a genuine, subjective belief that he was still able to make a claim under 1987 Act section 60 and that, in the circumstances of at least a prima facie case, he had appropriate justification for making the claim, for believing that the settlement/deed did not prevent him doing so. The onus of proof lies on the Defendant, but the standard of proof is the civil standard of proof: Pascoe v Barrier Crash Repairs Pty Ltd [1978] WCR 156 (C.A.). 1. Was the Plaintiff's claim fraudulent? There is no evidence which would support such a finding and it was not so alleged by the Defendant. Pascoe's Case (supra) was a case in which Westcott J made a finding of fraud on the criminal standard, following Dignam J in Jackson v Tooheys Pty Ltd [1952] WCR 60, but the Court of Appeal (Moffitt P and Hutley and Glass JJA) held that that case was wrongly decided, and the onus of proof was on the civil standard, but Briginshaw v Briginshaw (1938) 60 CLR 336 had to be applied (see now Evidence Act 1995 section 140(2)). 2. I conclude, accordingly, that the Plaintiff would have been entitled to the protection of the privative clause if he had been able to litigate his claim in PIC. Disposition 1. I dismiss the application of the Defendant for costs. Each party should bear his or its own costs of these proceedings. Amendments 17 August 2022 - Catchwords - Amend "Appellant" to "Applicant" 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: 17 August 2022