Australia: Costs order made against a worker by an arbitrator at WorkCover WA upheld by WA District Court judge

Last Updated: 25 December 2016
Article by Ashley Crisp and Henrik Eklund

In this recent decision District Court Judge Stone refused an appeal from the decision of a WorkCover WA Arbitrator ordering the worker pay the employer's costs following the worker's application for the payment for medical expenses.

At the time of the Application for Conciliation the worker was seeking an order that the employer pay the worker's reasonable medical expenses arising out of an alleged psychological injury which was alleged to have resulted from a compensable physical injury.

In her initial decision the learned Arbitrator found that prior to the Application for Conciliation being filed the worker's lawyer had approached the insurer asking them to accept liability for the alleged stress injury. The request was made based on a referral letter to a psychiatrist provided by the worker's GP.

As the insurer did not admit liability for the alleged stress injury the worker's lawyer filed a matter for Conciliation.

The treatment expenses claimed by the worker consisted of appointments with a psychologist who was employed by the worker's vocational rehabilitation provider, as well as unspecified future appointments with a psychiatrist and travel and medication.

At the time of the Conciliation Conference the employer's insurer had already paid for the psychological counselling provided by the psychologist as part of the vocational rehabilitation. In her decision the Arbitrator found at the time the application was filed for Conciliation there were no basis for seeking an order for the payment of any medical expenses as none were in fact outstanding.

The application was the subject of Conciliation twice without resolution.

After the second Conciliation Conference the worker repaid the insurer the monies the insurer had already paid directly to the rehabilitation provided for the costs of the psychological counselling. The Arbitrator was not able to make a finding on why this was done.

The worker then proceeded to file an application for Arbitration.

In the worker's Application for Arbitration she sought a determination as to whether her medical, other and travelling expenses resulting from the psychological injury result from the compensable back injury. A schedule of expenses annexed to the application included appointments with a psychologist and future undefined appointments with a psychiatrist, undefined travel expenses and undefined medication expenses.

The employer lodged an application to have the worker's application struck out on the basis that the worker was seeking mere declaratory relief.

The worker lodged an application seeking leave to file various invoices which had not been provided to the employer prior to the lodgement of the Application for Arbitration.

During the second directions hearing the employer agreed to pay the claimed expenses totalling some $2,000 on a without prejudice basis.

Although the employer agreed to pay the expenses it disputed the worker's entitlement to costs and made an application for order that the worker pay its costs. The employer made a point that none of the invoices claimed had been provided to the employer until some days earlier.

Having considered various submissions, including an affidavit filed by the worker's lawyer the Arbitrator made an order that the worker pay the employer's costs.

In submissions filed by her lawyer the worker claimed $17,000 in costs and submitted that the settlement should be considered to be a win for the worker who should therefore be entitled to costs but the Arbitrator did not agree with this. The Arbitrator found that a without prejudice agreement was not the same thing as being successful at the arbitration.

In considering the character of the worker's application the Arbitrator noted that she was not able to make any orders as to "liability" per se. She noted that a finding about liability may translate into an order for compensation but a finding on liability alone does not amount to an order for compensation she could not make an order purely in relation to liability.

Further, she also noted that there is nothing in the Workers' Compensation and Injury Management Act 1981 which would allow an Arbitrator to determine the category of payments and nothing more.

The Arbitrator noted that to the extent that the applicant was seeking a determination as to liability of the respondent she was merely seeking a declaratory order. In considering the issue the Arbitrator noted that the rationale set out in Ede v Alcoa of Australia Limited CM-192/01 continues to apply. The expenses sought by the worker at Conciliation had already been paid and her Application for Conciliation only sought to re-categorise them. She also noted that the other expenses claimed were vague and not yet incurred, with the other matter being a question of liability only. She therefore found that there was no dispute between the parties at that stage and the Application for Conciliation should not have been brought.

As to the Application for Arbitration, the worker's lawyers submitted during the proceedings the accounts had not been put to the employer as he had assumed that insurer had denied liability and therefore would not pay. The Arbitrator noted that an assumption does not create a dispute and that a dispute occurs when a claim for an expense said to relate to a claim is denied. She noted that this had not occurred at any stage before the Arbitration Application had been lodged and therefore she said that it cannot be said that there was any dispute in relation to these expenses as the insurer had never had an opportunity to consider them, let alone dispute them.

In considering the employer's application for its costs the Arbitrator noted that an order can only be made against a worker if the Arbitrator is satisfied that the application was frivolous or vexatious or without proper justification pursuit provisions of sections 264 and 265 of the Act. She had formed the view that at Conciliation there was no dispute as defined in the Act. She also found that at the time of the filing of the Arbitration Application there was no dispute which could be resolved by an Arbitrator. She was therefore satisfied that both applications were made without proper justification. She says the way in which the expenses are categorised is "entirely academic" as Purtell v Westfield Whitford City C46-207 and on that basis she considered that an order can be made pursuant to 264(5) of the Act for the worker to pay the employers costs.

She also dismissed the worker's application to have her costs paid by the employer and noted that it would be an unusual situation where costs of $17,000 would be considered reasonable for a claim of $2,000, as such costs would offend the principle of proportionality as they are disproportions of financial value of the subject matter of the dispute.

The worker appealed the decision to the District Court.

The appeal was heard by DCJ Stone who refused leave to appeal and made an order for the worker to pay the employers costs.

The grounds of appeal were various and most of these grants were withdrawn by the worker during the hearing. The only issues which remained were whether the Arbitrator erred in by misconstruing the meaning of "without proper justification" under section 264(5) of the Act and whether the Arbitrator erred by finding that there was no dispute to be arbitrated.

Stone DCJ found there were no matters of law upon which leave should be granted and therefore the worker's appeal was dismissed. This decision has not been appealed by the worker.

This decision demonstrates workers may face costs implications if they fail to particularise the treatments expenses they are seeking prior to issuing WorkCover proceedings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kott Gunning is a proud member of

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Ashley Crisp
Henrik Eklund
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions