Bovill v Harbour Lighterage Pty Ltd [2000] NSWCC 39; (2000) 20 NSWCCR 247 (12 April 2000)

Last Updated: 4 April 2001

[2000] NSWCC 39; (2000) 20 NSWCCR 247

BOVILL v HARBOUR LIGHTERAGE PTY LTD

[2000] NSWCC 39

Compensation Court of New South Wales: Geraghty J

12 April 2000

Workers compensation - Proceedings to obtain compensation - Preliminary procedures - Conciliation - Injury received before commencement of 1987 Act - Table loss - Conciliation not required before court proceedings - Workers Compensation Act 1987 (NSW), Sch 6, Pt 6, cl 4 - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 102

C.P. Bradford, for the applicant

D.G. Saul, for the respondent

Ex tempore

1 GERAGHTY J: The claim of Howard John Bovill was settled at conciliation. The claim was made, pursuant to s 16 of the Workers Compensation Act 1926 (the 1926 Act), for compensation for loss of use of both legs. The worker benefits from a continuing weekly award. The matter comes before me simply to resolve a question of costs.

2 There are three aspects to the costs claim. The first relates to the costs of conciliation (which are not disputed); the second, to the filing and processing of an application for determination; and the third, which is probably the most extensive costs claim, in respect of the notice of motion to strike out the application for determination.

3 I have been greatly assisted by written submissions from Mr Saul of counsel and Mr Bradford acting for the applicant worker.

4 The respondent submitted that the worker should have engaged in the conciliation process before filing the application for determination, and therefore should not be awarded any costs other than those for the conciliation. This submission was based firstly on the principle that the conciliation process was the right, proper and normal thing for the applicant to do, whether or not he was obliged by the legislation to engage in that process.

5 The second basis of the respondent's submission was that he was required by legislation to engage in conciliation, and Mr Saul traced a line through labyrinthine legislation, beginning with s 102 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), which provides in s 102(1) that a worker cannot commence court proceedings in respect of compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) unless a dispute about that compensation had been referred for conciliation under Ch 4, Pt 2, Div 3 of the 1998 Act. There was no doubt that a dispute had arisen but it had not been referred to conciliation.

6 The line traced by Mr Saul then referred to interlacing legislation between the 1998 Act and the 1987 Act, the first Act relating to the second in s 60(1) and s 60(2) of the 1998 Act, and a second Act relating to the first in s 2A(2) of the 1987 Act. He then referred to Ch 4, Pt 2, Div 3 of the 1998 Act which dealt with conciliation. It was under this legislation that the insurance company, after an application for determination had been filed, referred the claim for conciliation where it was finally settled.

7 Mr Saul then traced the line through Sch 6, Pt 6, cl 4 of the savings and transitional provisions of the 1987 Act, which provides that, if the injury had occurred before 30 June 1987 and the worker had suffered a loss of a thing mentioned in the Table to Div 4 of Pt 3 of the 1987 Act, the compensation payable should be assessed, not on s 66 tables, but in accordance with s 16 of the 1926 Act ("s 16 claims"). Schedule 6, Pt 11, cl 3 to the 1987 Act (which is critical to the submissions) relates to the restrictions on commencement of proceedings and provides that the provisions of Div 3A of Pt 4 (that is, s 106D to s 106F) of the 1987 Act extend to apply in respect of an injury received before the commencement of that Division, and therefore presumably would extend to relate to this particular injury which predated 1987. Clause 3 of Pt 11 in Sch 6 refers to Div 3A of Pt 4, which has been repealed by the 1998 Act (which commenced on 1 September 1998), though the Schedule and Pt 11, cl 3 are still in force.

8 That was the line traced by the respondent in support of its submission that it was the clear intention of the legislature to require s 16 claims to be conciliated before they were litigated, because s 16 claims should be treated in the same way as claims under s 66 of the 1987 Act ("s 66 claims") for lump sum compensation.

9 However, s 102(1) of the 1998 Act refers only to s 66 claims, and not to s 16 claims; and secondly, while Sch 6, Pt 11, cl 3 to the 1987 Act has not been repealed, the sections referred to therein and Div 3A of Pt 4, which make the clause operable, have been repealed.

10 In his written submissions Mr Saul submitted that it would be an unintentional anomaly if the 1926 Act lump sum claim was given an exemption over a 1987 Act lump sum claim when it came to the observance of the mandatory provisions governing such matters as duly making a claim and referring the matter to conciliation prior to the commencement of proceedings. He concluded:

It necessarily follows ... that if Parliament intended to specifically exclude the restrictions on commencing court proceedings in respect of 1926 Act lump sum claims in s 102, it could have done so in the same manner.

11 However, although Parliament did not specifically exclude s 16 claims in dealing with the restrictions on commencing proceedings, it did not specifically include it either, and this could easily have been done. It seems to me that the parliamentary draftsman did not consider s 16 claims. Despite the overall intention of Parliament to favour conciliation before litigation, the legislation does not provide for conciliation in the case of s 16 claims, and therefore it seems to me inappropriate for this Court to impose an obligation on the worker to pass through the conciliation process before beginning the litigation process. Such an obligation has all the hallmarks of reason and the benefit of the reduction of legal costs, but it seems to me this Court cannot impose that obligation if the Parliament has not done so.

12 Now, costs is a matter of discretion in this Court, as set out in s 112(2)(a) of the 1998 Act, so I should turn to the exercise of, and to the basis of exercising, that discretion.

13 I have looked closely at the correspondence annexed to the submissions of Mr Saul. It is clear that the dispute between the parties was about assessment, about the rate of interest, the time from which interest should run, and about referral of the claim to a medical panel.

14 The insurer continued to attempt to persuade, perhaps even to browbeat, the worker's solicitors into submitting to a medical panel, and the solicitors steadfastly refused. Then in December 1999, the question was raised about referral to conciliation before the worker was entitled to issue an application for determination.

15 The insurer acknowledged a letter from the solicitors for the worker of 3 December, together with an application for determination. It noted that the matter had not been referred to conciliation and advised that the worker was not entitled to issue an application. They reiterated their invitation to submit the matter to a medical panel, and threatened to seek to have the application struck out and to claim costs.

16 Mr Ramraka, acting for the worker, answered that letter on 24 December 1999 and, inter alia, informed the insurance company that his firm of solicitors had received from the Compensation Court Registry support for the submission that proceedings could be commenced without first being referred to conciliation. He made an offer of settlement. I do not know how reasonable the offer was, because I do not know what the result of the settlement was at conciliation.

17 The insurance company replied, in a letter dated 4 January 2000, observing that it was clear from all previous correspondence that there was no point in trying to discuss the matters of law with the worker's solicitors, or to attempt to negotiate the matter, and therefore the notice of motion to have the application struck out was filed.

18 It was after this that the claim descended into argument and counter-argument, interpretation and counter-interpretation of schedules, transitional provisions, cross-references, to find a way through puzzling legislation. I find the legislation obscure, and after feeling my way through its various shadowy paths, it seems to me that claims under s 16 do not need to be conciliated (for reasons which I have already given), otherwise the obligation would have been stated more explicitly. It seems to me that the parliamentary draftsman has overlooked the s 16 claims, and consequently, there was no obligation on the worker to submit his s 16 claim to conciliation.

19 It was always open to the respondent to have made an attractive offer to avoid litigation. It was always the responsibility of the applicant's lawyers to achieve the best outcome for their client, but within the limits of the law. Both sides seem to me to have been pushing and pulling, searching for an advantage. The respondent tried the medical panel move, to which it had no right to demand referral. After the application for determination, the respondent tried conciliation. Then it tried to strike out the application. In the end the claim was settled without the king being threatened.

20 It seems to me the applicant's solicitors and his barrister have well earned their costs. I order the respondent to pay the applicant's costs of the conciliation, the costs incurred by filing and processing the application for determination, and the costs of the notice of motion, including barrister's fees on his appearances and for written submissions. I allow $300 for the written submissions.

Orders accordingly

Solicitors for the applicant: Peter A Collins & Associates

Solicitors for the respondent: Hunt & Hunt