District Court New South Wales Medium Neutral Citation: Tavener v St Vincent's Hospital Sydney Limited [2018] NSWDC 378 Hearing dates: 16 November 2018 Date of orders: 07 December 2018 Decision date: 07 December 2018 Jurisdiction: Civil Before: Scotting DCJ Decision: (1) The defendant is to pay the plaintiff's costs of an incidental to the defendant's Notice of Motion filed on 9 August 2018 and the plaintiff's Notice of Motion filed on 12 September 2018 on the ordinary basis as agreed or assessed (without reference to Schedule 7 of the Workers Compensation Regulation 2016). (2) Costs are payable forthwith. (3) I grant leave to the parties to approach the Judicial Registrar for directions for further case management. Catchwords: COSTS — Party/Party — Costs orders in interlocutory proceedings Legislation Cited: Legal Profession Uniform Law Application Act 2014 Limitation Act 1969 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Certain Lloyds Underwriters v Thelander (2012) 248 CLR 378 Chubs Construction Pty Ltd and Chamma (No 2) (2010) 78 NSWLR 679 at [29]. Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 Ortlipp v Employers Mutual NSW Limited as agent for the Workers Compensation Nominal Insurer (No 2) [2014] NSWDC 158 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531 Texts Cited: Workers Compensation Regulation 2016 Category: Costs Parties: Susan Tavener (Plaintiff) St Vincent's Hospital Sydney Limited (Defendant) Representation: Counsel: Mr R Goodridge (Plaintiff) Mr D Stanton (Defendant) Solicitors: Firths – The Compensation Lawyers (Plaintiff) HWL Ebsworth (Defendant) File Number(s): 2018/178407 Publication restriction: None Judgment 1. On 16 November 2018 the Court dismissed the defendant's Notice of Motion filed 9 August 2018, seeking to strike out the plaintiff's Statement of Claim for a failure to comply with section 151D of the Workers Compensation Act 1987. It was therefore unnecessary to determine the plaintiff's Notice of Motion filed on 12 September 2018. The parties have provided submissions about the appropriate costs order to be made, on the basis that the costs application would be determined on the papers. 2. The defendant accepts that costs should follow the event. The issue is whether the costs of the interlocutory applications are payable pursuant to the Rules of the Court or are limited by the relevant provisions of the Workers Compensation Regulation 2016. 3. Part 8 of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act) contains costs provisions relevant to a claim for work injury damages. Section 333 of the WIM Act provides that Part 8 applies to the costs payable on a party/party basis. Part 8 applies to the extent of any inconsistency between the costs provisions under the WIM Act and the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014). 4. Section 337 of the WIM Act provides a power for regulations to be made to fix the maximum costs for legal services provided to a claimant, an employer or insurer in connection relevantly with any work injury damages matter. Section 337(3) prohibits a legal practitioner from recovering costs in excess of those maximum costs fixed by the Regulation. 5. Section 346 of the WIM Act provides: (1) This section applies to costs (including disbursements) payable by a party in or in relation to a claim for work injury damages, including court proceedings for work injury damages. (2) The regulations may make provision for or with respect to the awarding of costs to which this section applies. The regulations may provide for the awarding of costs on a party and party basis, on a practitioner and client basis, or on any other basis. (3) A party is not entitled to an award of costs to which this section applies, and a court may not award such costs, except as prescribed by the regulations under this Act or by the rules of the court concerned. (4) In the event of any inconsistency between the provisions of the regulations under this section and the rules of court, the provisions of the regulations prevail to the extent of any inconsistency. 1. Part 17 of the Workers Compensation Regulation 2016 deals with costs. Division 3 is entitled "COSTS RECOVERABLE in WORK INJURY DAMAGES MATTERS". The intent of Subdivision 2 of Division 3 is to restrict the awarding of costs, reflecting the legislative intention that cases ought to be settled at mediation by providing that the last offer of each party at a mediation is relevant to an award of costs. 2. Regulation 98 provides that Subdivision 2 does not apply to costs payable 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 court. The term "ancillary to proceedings" is not defined in the Regulation. It is common ground that an application for leave pursuant to section 151D of the Workers Compensation Act 1987 has previously been held to be ancillary to proceedings. 3. In Ortlipp v Employers Mutual NSW Limited as agent for the Workers Compensation Nominal Insurer (No 2) [2014] NSWDC 158 his Honour Judge Taylor SC held at [19] that the interlocutory proceedings commenced by Notice of Motion relating to a grant of leave under section 151D of the Workers Compensation Act 1987 was ancillary to the proceedings and to be determined in accordance with the Rules of the Court. Judge Taylor applied the Court of Appeal's decision in Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 which held that an application for an extension of time under the Limitation Act 1969 was a matter that was ancillary to the trial. Judge Taylor held that a leave application was ancillary to the proceedings because the relief granted was not the final relief sought in the proceedings and was thereby subsidiary to the main litigation, citing Chubs Construction Pty Ltd and Chamma (No 2) (2010) 78 NSWLR 679 at [29]. I respectfully agree. 4. The defendant's argument goes one step further. The defendant argued that whilst Regulation 98 precludes the operation of Sub-division 2 of Division 3 of the Workers Compensation Regulation that I still must have regard to Regulation 88 which limits the maximum costs recoverable in a claim for compensation. I do not accept the defendant's submission for the following reasons. Regulation 91 provides that Division 3 applies to costs for legal services provided in or in relation to a claim for work injury damages. Regulation 88 is in Subdivision 2 of Division 2 of the Workers Compensation Regulation 2016. Regulation 87 provides that Division 2 applies in respect of costs for legal services provided in or in relation to a claim for compensation. 5. The plaintiff's case is a claim for work injury damages and by operation of Regulation 91, the provisions of Division 3 of the Workers Compensation Regulation 2016 apply, to the exclusion of the provisions in Division 2. Accordingly, Regulation 88 has no application to the present case. 6. The defendant makes a further submission that the regulation of costs in these types of matters, including the regulation of costs for appeals to the Court of Appeal, support the interpretation that the restriction on costs should apply in the present circumstances. I do not accept the defendant's submission. That type of reasoning has led to error on a number of occasions previously. The High Court has stated that the language of the provision is to be applied by reference to its ordinary and natural meaning. The presumed intention of parliament cannot be applied in statutory interpretation in such a way as to override the clear words of the provision: Certain Lloyd's Underwriters v Thelander (2012) 248 CLR 378 and Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531. 7. In my view, having established that the Notice of Motion was ancillary to proceedings on a claim for work injury damages the award of costs should be in accordance with the Rules of the Court. 8. The orders I make are: 1. The defendant is to pay the plaintiff's costs of an incidental to the defendant's Notice of Motion filed on 9 August 2018 and the plaintiff's Notice of Motion filed on 12 September 2018 on the ordinary basis as agreed or assessed (without reference to Schedule 7 of the Workers Compensation Regulation 2016). 2. Costs are payable forthwith. 3. I grant leave to the parties to approach the Judicial Registrar for directions for further case management. ********** 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: 07 December 2018