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The primary issue in this appeal was whether the trial judge had erred in the construction of Part 8, Division 2 Workers’ Compensation and Rehabilitation Regulation 2014. At first instance the primary judge upheld the costs assessor decision that counsel’s fees were excluded as a recoverable outlay on an assessment of costs for a claim for damages arising from a work-related personal injury. The appellant queried that construction. The Court allowed the appeal and held that it was not the case that Pt 8 Div 2 of the Regulation should be construed as prohibiting the recovery of counsel’s fees as an outlay.
Mullins P and Flanagan JA and Henry J
20 October 2023
After proceedings had commenced but prior to trial, the parties entered into an agreement that:
“In addition, WorkCover on its own behalf and on behalf of the Employer will pay the Plaintiff’s costs of and incidental to the claim and proceedings calculated in accordance with Part 8, Division 2 of the [Regulation], as agreed by the parties or, failing agreement, as assessed”. .
The parties were unable to agree on costs and appointed a costs assessor. . The assessor disallowed the recovery of counsel’s fees, reasoning that Pt 8 Div 2 Workers’ Compensation and Rehabilitation Regulation 2014 (the Regulation) “overrode” the Uniform Civil Procedure Rules 1999. The primary judge also disallowed Counsel’s fees on the basis that reg 137 of the Regulation “constituted an exhaustive list of recoverable outlays”. , .
Did Part 8 Division 2 of the Regulation exclude the recovery of counsel’s fees on an assessment of the claimant’s costs?
The costs assessor was appointed to conduct the assessment of costs payable pursuant to the Uniform Civil Procedure Rules 1999 as modified by the provisions of Pt 8 Div 2 of the Regulation. . At the outset, the court observed that Counsel’s fees are an outlay which would typically be recoverable under the UCPR. The Court accepted the appellant’s submission that “if the legislature intended to fundamentally alter the scheme for the assessment and award of costs by removing the plaintiff’s entitlement to recover counsel’s fees, it would have expressly done so”. .
Allowing the appeal, the court held as follows:
1.Given Ch 17A UCPR prescribes rules in relation to the recoverability of counsel’s fees, it follows that as a matter of statutory construction, it is immaterial for the purposes of reg 136(2) that the scale of costs for the present proceedings, Sch 1 UCPR, does not provide for the payment of counsel’s fees. That is because that provision is specifically made for the recoverability of counsel’s fees under Pt 17A UCPR; ;
2.Reg 137 does not contain an exhaustive list of the outlays recoverable on an assessment of costs. Rather, it operates to identify and limit what is recoverable in relation to specific outlays which are generally particular to the proceedings to which the Act relates. Since in the ordinary course counsel’s fees are recoverable under r 726 UCPR, one would expect the legislature to use specific language to exclude or modify the operation of the rule. In addition, reg 137 omits any express reference to other outlays for example filing fees, witness expenses, setting down and hearing fees which would normally be disbursements which would be recoverable on an assessment of costs. Notwithstanding the fact that legislation affecting the recoverability of costs is referred to as a “blunt instrument”, no policy considerations exist which support the exclusion of such outlays. .
3.If the term “legal costs” in reg 137 is read as having the same meaning as that in s 290A of the Act, it would include outlays and disbursements under the UCPR which reg 137 does not specify as outlays. That interpretation lends weight to a construction of reg 137 that it is concerned with specific outlays referrable to the nature of the proceedings under the Act which are allowable upon an assessment of costs. Such an interpretation does not require reg 137 to be construed as constituting an exhaustive list of recoverable outlays. .
Accordingly, it was the Court’s view that Pt 8, Div 2 of the Regulation should not be construed as prohibiting the recovery of counsel’s fees as an outlay in these circumstances.
The Court allowed the appeal, set aside the orders made at first instance, varied the decision of the costs assessor to allow the items which had been disallowed by her, and ordered that the respondent pay the appellant’s costs of the appeal and the costs of the applications filed in the proceeding below.