McAuley v Great Lakes Aged [2001] NSWCC 135

Compensation Court of New South Wales

CITATION : McAuley v Great Lakes Aged [2001] NSWCC 135 PARTIES : Pamela R McAuley v Great Lakes Aged and Invalid Care Association Limited MATTER NUMBER(S) : 2653 of 2001 JUDGMENT OF: Bishop J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 6 June 2001 DATE OF JUDGMENT: 06/22/2001

FOR APPLICANT: Mr B McManamey instructed by Stacks The Law Firm LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr Murphy - solicitor- Sparke Helmore

JUDGMENT: 1. This summons is filed by the solicitors for the applicant seeking an order that the respondent pay the applicant's costs pursuant to s 112(7) of conciliation proceedings such costs to be as agreed or assessed. In addition the costs of the summons are sought. 2. The question of the entitlement to costs of conciliation proceedings has been considered by the court in a number of instances to which reference will shortly be made. It is appropriate initially to set out briefly the facts behind this summons as deposed in the uncontested affidavit filed by the solicitor for the applicant. 3. The applicant apparently had an injury at work on 3 July 1999 for which liability was accepted and all appropriate payments were made until a letter dated 16 May 2000 was received by the applicant from the respondent's insurer giving the appropriate notification of the cessation of weekly payments and liability for medical and other expenses. The letter in question said that the decision had been come to on the basis of a report from a Dr Graham dated 5 April 2000 which report was not enclosed with the letter. The applicant consulted her solicitor on 22 June 2000 and an application was prepared to the Workers Compensation Resolution Service. A conciliation conference took place on 24 July 2000 with the insurer represented by its solicitor. The conference was unsuccessful and the appropriate Notification of Genuine Dispute issued on 27 July 2000. About two weeks later after the conference the solicitor for the applicant received from the insurer's solicitor for the first time a copy of the report of Dr Graham referred to above. Subsequently on a date not specifically referred to in the affidavit the solicitor received instructions from the applicant not to pursue her claim any further. The solicitor deposed that he had no knowledge of the applicant's reasons for these instructions. I infer that these instructions were received by the applicant's solicitor subsequent to August 2000 but reasonably close to that date. The solicitors for the respondent declined to deal with an assessment of costs for the conciliation proceedings pending the resolution of the applicant's claim with reliance being placed on the decision of Burke J in Robotham v Sapphire Bay Holdings Pty Limited (2000) 19 NSW CCR 295. 4. The submissions of the parties were brief. On behalf of the applicant it was conceded that s 88(3) of the Workplace Injury Management and Workers Compensation Act 1998, to which reference will be made later, did not apply as its operative date was in 2001. However it was submitted that the general discretionary powers of the court to order costs should come into play in the applicant's favour. The respondent on the other hand relied upon decisions of the court indicating that all questions of costs should be dealt with at the end of the proceedings. 5. I have considered a number of cases of the court dealing with this particular problem including:- Vitnell v D J Carrying Co Pty Limited (Quirk J 5 November 1999 unreported), Little v State Rail Authority (1999) 19 NSW CCR 69, Robotham's case (supra) and Crowl v George Weston Foods Limited (28 June 2000 - Neilson J unreported). As Burke J pointed out in Robotham's case at paras five and six the discretion of the court in situation such as the present is well covered in s 112 of the Workplace Injury Management and Workers Compensation Act. As Nielson J pointed out in Crowl's case (at para 16): My colleagues have developed a principle that the costs ought not to be paid until after the conclusion of the curial proceedings. 6. This remark was made following a discussion of cases such as those referred to above. This is I think a correct general principle and indeed Burke J in Robotham's case accepted the principle emerging from these decisions although not without reservation. As he said (para 18): As against all that, my own feelings are reasonably clear. I think the Regulation says the costs are payable and there is no prima facie reason I can see that in the exercise of the discretion I would say they are not. As I read the Regulation they are payable in the sense of payable at the present time as distinct from subject to a condition subsequent. 7. His Honour also it seems to me suggested at par 20 that there could well be some situations which would warrant a variation from the principle outlined above. 8. This is I think one of those exceptional situations. Experience indicates that the institution of proceedings reasonably quickly after an unsuccessful conciliation conference is the normal course of events but that does not mean that this will happen all the time. Various examples may be postulated. A worker may pass away from an unrelated condition and the estate may take the view that the matter is not worth continuing. A worker might become incapacitated from an unrelated life threatening illness for a prolonged period and drop the issue. Again a worker may go back to live overseas for an indeterminate period. Finally for purely personal reasons a worker may elect simply not to undertake the hazards of litigation. 9. I think there are several reasons why the discretion on the facts of this case should be exercised in favour of the applicant's solicitors. The first of these is the time that has elapsed since the applicant instructed the solicitors not to commence proceedings. This is in the area one would infer of nine or ten months. During this period there has been no evidence of the applicant instructing other legal advisers. Secondly the medical material annexed to the affidavit in support of the summons indicates that the applicant's claim would not on the face of it be regarded as hopeless on medical issues. Finally the subsequent insertion of s 88(3) should be noted which section reads: Conciliation costs are payable at the end of the conciliation proceedings concerned, regardless of outcome. 10. This indicates a clear parliamentary intention to support the effective working of the conciliation procedure. The exercise of the discretion in the applicant's favour even though the section does not apply to the circumstances of this case would be consistent with that philosophy. 11. For these reasons I am of the view that the summons succeeds and accordingly I order that the respondent pay the applicant's costs of the conciliation proceedings as agreed or assessed and I further order that the respondent pay the costs of the summons including a fee for counsel. Mr B McManamey instructed by Stacks - The Law Firm appeared for the applicant. Mr Murphy solicitor Sparke Helmore appeared for the respondent