A Goninan & Co Ltd v Gill

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

A GONINAN & CO LIMITED v ERNEST MALCOLM GILL Workers Compensation - Legal Costs - Costs Assessment - Costs of costs assessor - Power of Compensation Court (when hearing appeals from costs assessors) to order costs against a worker whose application for compensation was not "frivolous or vexatious, fraudulent or made without proper justification" - Whether such a worker can be ordered to pay costs of costs assessor - Test case - Legal Profession Act 1987 (NSW), s 202(1), s 206(1), s 208(2), s 208F, s 208M - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 112(3) - Compensation Court Act 1984 (NSW), s 18.

Statutes - Statutory Interpretation - Operation and effect - Interaction of sections of different Acts - Examination of legislative history - Legal Profession Act 1987 (NSW), s 202(1), s 206(1), s 208(2), s 208F, s 208M - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 112(3) - Compensation Court Act 1984 (NSW), s 18.

Legal Costs - Issue of which party to pay costs of appeal in the nature of a "test case" - Where test case was of general importance to appellant company's insurer and to other insurers but not to worker.

On 12 June 1996, a consent award was made in the Compensation Court by Egan CCJ. The consent award was in favour of the respondent worker (the applicant before the Compensation Court), against the appellant company. The appellant company was also ordered to pay the respondent worker's costs after agreement or assessment. Since there was no agreement, costs assessment was conducted by a costs assessor in the Supreme Court. On 17 December 1998, the costs assessor determined that $6,410.25 was a fair and reasonable amount to be paid by the appellant company to the respondent worker. In addition, the costs assessor ordered the appellant company to pay $542.50 to the proper officer of the court, on account of the costs assessor's own costs of the assessment.

The appellant company appealed to the Compensation Court against the costs determination, in relation to who should pay the costs of the assessment. Bishop CCJ dismissed that appeal. This is an appeal from the decision of Bishop CCJ, specifically in relation to the $542.50, which the costs assessor had ordered the appellant company to pay in respect of the costs assessor's own costs.

The appellant's arguments were based on issues of statutory interpretation in relation to the following sections, (which are set out in the judgment of Heydon JA at [10] - [14]): Legal Profession Act 1987 (NSW), s 202(1), s 206(1), s 208(2), s 208F and s 208M, Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 112(3), and Compensation Court Act 1984 (NSW), s 18.

Held by Heydon JA (Sheller and Giles JJA concurring), allowing the appeal, and remitting the matter to the Compensation Court:

The Compensation Court acting as appellate court (hearing appeals "by way of a new hearing" from costs assessors) is not bound by s 112(3) of the Workplace Injury Management and Workers Compensation Act . Therefore, there is no incongruity created if cost assessors themselves are not bound by s 112(3).

(a) The true construction of s 208M(5) of the Legal Profession Act is that providing the Compensation Court does not affirm the costs assessor's decision, it must redetermine the matter as if it were the costs assessor, and may make any determination it considers should have been made by the costs assessor. Therefore, the Compensation Court acting as an appellate court in these circumstances is bound by the legislative scheme that binds the costs assessor, and "the costs assessor is not the Compensation Court" [Heydon JA at [24]]. The special provision in s 208M (specifically covering the role of the Compensation Court when hearing appeals from costs assessors) prevails over the general provisions in s 18 and s 112(3). (b) There is no implied repeal of s 208M(5) by s 18, because the two provisions deal with different subjects. (c) The word "may" in s 208M(5) means "shall", so that the Compensation Court, unless it upholds the costs assessment, is mandated to make the costs assessment which, in its opinion, should have been made by the costs assessor. The use of the word "may" in Section 208L(2) (that being a similar section but providing for appeals on a matter of law only), indicates that the word is not intended to give an appellate court a general discretion in relation to making determinations on costs assessments.

Section 208F(1A), in requiring costs "assessment" to be conducted in accordance with the operation of the "rules of the relevant court", does not thereby require the decision as to who is to pay for the costs of the assessment itself to be made in accordance with s 112(3) of the Workplace Injury Management and Workers Compensation Act (which prohibits costs orders against a worker except when the worker's compensation claim was fraudulent etc…).

(a) The expression "rules of the relevant court" in s 208F(1A) of the Legal Profession Act , refers only to the procedural rules of that court. In this case, they are the Compensation Court Rules 1990 (NSW). (i) The lower case initial in "rules", does not evince an intention to include more than the procedural rules of that court, but is used in order to cover a broad range of courts and tribunals able to make costs orders subject to the costs assessment provisions of the Legal Profession Act . (ii) The generic term "rules", serves to describe the procedural rules of the relevant court or tribunal no matter how they be described. (b) Even if the expression in s 208F(1A), "rules of the relevant court", encompasses statutes applicable in relation to assessment, s 208F(4) (second sentence) does not address the topic of assessment under s 208F(1) and (1A). The process of "assessment" relates to estimating the reasonableness of costs and the work to which they relate, and is different to the process of deciding which party should pay specific components of the costs assessed. The former is covered by s 208F(1) and (1A), the latter is not.

There is nothing in the legislative history to suggest that the Compensation Court, when hearing appeals from costs assessors, does not have the power of a costs assessor to order that the costs of a costs assessment be paid by a worker who was not fraudulent etc...

(a) Amendments made by the Legal Profession Reform Act 1993 (NSW) introduced a costs assessment scheme whereby costs were assessed by costs assessors appointed by the Supreme Court, and the determinations of the costs assessors could be reviewed. Even though these amendments did not give the Compensation Court any new power to order costs against workers, it is arguable that they did give costs assessors such power. It is also arguable that the Compensation Court, when hearing appeals from costs assessors, possessed the same powers as the costs assessors.

(b) It is true that when s 18 was amended in 1993, the result was not that it clearly stated that the Compensation Court was provided with an additional power to order costs to be paid by a worker. However, it is not inappropriate to look instead at the new provisions of the Legal Profession Act for Parliament's intention in relation to the powers of assessors, and of the Compensation Court, on the question of who is to pay the costs of assessments. (c) After the 1996 legislative amendments, s 18 was silent on the powers of costs assessors, but s 208F(4) was not. On one construction, s 208(1A) and s 208(4) enabled a costs assessor to order costs against a worker. Also, s 208M(5), which existed after the 1996 amendments, arguably gave the Compensation Court, when hearing appeals from costs assessors, the power to order costs against a non-fraudulent worker.

(d) It is true that it would have been a simple matter for Parliament to expressly exclude the operation of s 18(4) from costs appeals, when costs appeals were introduced in 1993. However, it would have been equally simple for Parliament to have expressly prohibited the Compensation Court, when hearing appeals from costs assessors, from making costs orders against workers, except those who were fraudulent. The fact that difficulties of statutory interpretation might have been avoided if certain express words had been enacted, does not assist greatly in solving such difficulties.

It is not possible to find that the costs assessor soundly exercised his discretion under the Legal Profession Act.

(a) The costs assessor's reasoning was unclear and obscure because it could be read in two possible ways.

The authorities with which Bishop CCJ disagreed, but applied as a matter of comity, are wrong. Cramp v The Commonwealth (1996)13 NSWCCR 461, and Martin v Warkworth Mining Ltd (unreported, Compensation Court of New South Wales, 25 November 1996, disapproved.

Despite the appeal being allowed, the appellant company should pay the respondent worker's costs of the appeal because it was in the nature of a test case.

2. The order of Bishop CCJ dated 8 October 1999 dismissing the appeal to him is set aside.

3. The matter is remitted to the Compensation Court of New South Wales for determination in accordance with the reasoning of this Court:

(a) whether the respondent should pay the costs of the costs assessor in the sum of $542.50; and

(b) whether the costs payable by the appellant to the respondent pursuant to the costs assessor's certificate dated 17 December 1998 should be reduced by that amount.

4. The appellant is to pay the respondent's costs of the appeal.

5. For the avoidance of doubt, it is noted that Bishop CCJ's order that the appellant pay the respondent's costs of the proceedings before him is not disturbed.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

A GONINAN & CO LIMITED v ERNEST MALCOLM GILL JUDGMENT

1 SHELLER JA: I agree with Heydon JA 2 GILES JA: I agree with Heydon JA. 3 HEYDON JA: Background

This is an appeal from an order of Bishop CCJ sitting in the Compensation Court of New South Wales made on 8 October 1999 dismissing an appeal brought under the Legal Profession Act 1987 against certain assessments by a costs assessor. Those assessments came to be made in the following circumstances. 4 On 12 June 1996 Egan CCJ made a consent award in favour of the applicant in the Compensation Court, Mr Gill ("the worker"), against A Goninan & Co Ltd ("the company"). Egan CCJ also ordered that the company should pay the worker's costs after agreement or assessment. No agreement was reached. The worker filed an application for assessment of costs in the Supreme Court of New South Wales, and paid a filing fee of $100. According to the company, the worker in his bill of costs claimed $721 "in relation to preparation of the Bill and proceeding to formal assessment of costs" (Blue 2W-X). 5 The costs assessor on 17 December 1998 assessed $6,410.25 as a fair and reasonable amount to be paid to the worker by the company pursuant to Egan CCJ's costs order. 6 The costs assessor also assessed the costs incurred by him in the course of the assessment at $542.50, and ordered the company to pay that sum to the proper officer of the court. 7 The company then filed a Notice of Motion dated 22 March 1999 seeking leave to appeal against the determination of 17 December 1998 as to who should pay the costs of the assessment. It is not necessary to go to the detail of the orders sought, because, although at various earlier stages the company was apparently seeking much wider recovery, on the hearing of the appeal before this Court, counsel for the company said that all that was in issue between the parties was the $542.50 which the costs assessor had ordered it to pay. The case, both before Bishop CCJ and before this Court, was in the nature of a test case to determine the correctness of two authorities, one of which the costs assessor referred to and both of which Bishop CCJ followed as a matter of comity despite his personal opinions about their correctness. 8 Bishop CCJ dismissed the appeal to him, and the company appeals against that order.

The Statutory Provisions 9 Before turning to the reasoning of the costs assessor, the reasoning of Bishop CCJ, and the submissions of the parties, it is convenient to set out the relevant statutory provisions as they have stood since 1998. 10 The Legal Profession Act 1987 s 202(1), which has the marginal note "Application for assessment of party/party costs", provides: "(1) A person who has paid or is liable to pay, or who is entitled to receive or who has received, costs as a result of an order for the payment of an unspecified amount of costs made by a court or a tribunal may apply to the proper officer of the Supreme Court for an assessment of the whole of, or any part of, those costs."

The worker was entitled to receive costs as a result of an order made by a court, namely the order of the Compensation Court made by Egan CCJ, that the company pay the costs of the award proceedings. 11 Section 206(1) provides: "The proper officer of the Supreme Court is to refer each application for assessment to a costs assessor to be dealt with under this Division."

Section 208(2) provides: "In considering an application, a costs assessor is not bound by rules of evidence and may inform himself or herself on any matter in such manner as he or she thinks fit."

Section 208F provides: "(1) When dealing with an application relating to costs payable as a result of an order made by a court or a tribunal, the costs assessor must consider: (a) whether or not it was reasonable to carry out the work to which the costs relate, and (b) what is a fair and reasonable amount of costs for the work concerned. (1A) An assessment must be made in accordance with the operation of the rules of the relevant court or tribunal that made the order for costs (2) A costs assessor is to determine the costs payable as a result of the order by assessing the amount of the costs that, in his or her opinion, is a fair and reasonable amount. (3) If a court or a tribunal has ordered that costs are to be assessed on an indemnity basis, the costs assessor must assess the costs on that basis, having regard to any relevant rules of the court or tribunal. (4) The costs assessed are to include the costs of the assessment (including the costs of the parties to the assessment, and the costs assessor). The costs assessor may determine by whom and to what extent the costs of the assessment are to be paid. (5) The costs of the costs assessor are to be paid to the proper officer of the Supreme Court." 12 Section 208M(2)-(5) provides: "(2) A party to an application relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor. (3) The Supreme Court or court or tribunal may, in accordance with its rules, grant leave to appeal and may hear and determine the appeal. (4) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given. (5) After deciding the questions the subject of the appeal, the Supreme Court or court or tribunal may, unless it affirms the costs assessor's decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor."

It was pursuant to s 208M(2) that the appeal was brought to Bishop CCJ. 13 Section 112(3) of the Workplace Injury Management and Workers Compensation Act 1998 s 112(3) provides: "Subject to this section, the Court may not order the payment of costs by a person claiming compensation unless the Court is satisfied that the application for compensation was frivolous or vexatious, fraudulent or made without proper justification." 14 Section 18 of the Compensation Court Act 1984 provides: "Section 112 of the Workplace Injury Management and Workers Compensation Act 1998 applies to and in respect of any proceedings in the Court, not just proceedings under that Act."

The Costs Assessor's Reasoning 15 The operative part of the reasons supplied by the costs assessor on 23 February 1999 was as follows (Blue 9L-T): "There is a minor difference of $89.75 between the offer of the Respondent on 15 May, 1998 and the amount I determined as being a fair and reasonable amount of costs. The difference between the offers of each party can be extracted from the correspondence and the Bills, but in the end result the difference was minor. There are several decisions which touch on the exercise of the Cost Assessor's discretion pursuant to Section 208F(4) of the Legal Profession Act. In the decision of Cramp v Commonwealth (unreported 5.9.96) Judge Neilson ordered the Applicant to pay the Cost Assessor's fee but at that time the Cost Assessor's fee was included in the total amount of the assessment and, in effect it would appear, the Respondent paid the Cost Assessor's fee in that case. The general principle in the Workers Compensation jurisdiction which is set out in Sections 112(3) of the Workplace Injury Management Act, 1998 provides that a Cost Order against the Applicant worker is only to be made if the Court is satisfied that the Application was frivolous or vexatious, fraudulent or made without proper justification. In view of this general principal [sic] and the decision in Crump [sic] v Commonwealth I have determined that the Respondent should pay the fee."

Bishop CCJ's Reasoning 16 Bishop CCJ expressed views on a number of issues before him, but the core of his reasoning turns on the question of whether the power of the costs assessor arose under the Legal Profession Act rather than s 112(3). He said ([15]-[18]): "15. Firstly, reference to s 112(3) indicates that the worker can be liable for the payment of costs if the Court is satisfied that the application for compensation was frivolous, vexatious or made without proper justification. It is firstly the Court that must make the decision. The Costs Assessor is not part of the Compensation Court which must be the Court to which reference is made as it is only that Court which deals with the application for compensation. In concluding that the Costs Assessor is not an officer of the court I would adopt with respect the reasoning of Master Harrison in Nabatu Pty Limited v Crawley (9 April 1998 unreported). 16. Were this not the case then the legislature would have to be regarded as giving to the costs assessor a power and a duty to make judgments on matters of fraud, frivolousness and vexation without evidence on oath or hearing the parties. Such would be a very extreme conclusion. Once the Compensation Court has made an order for costs in favour of a worker then the operation of s 112(3) is exhausted. The order for costs in favour of the worker is an indication that the Court has determined that the application was not brought fraudulently, frivolously or without proper justification. After that order has been made the task of the Compensation Court has concluded subject to questions of applications of reconsideration, review etc. 17. It follows from this that I am of the view that on this particular issue there is no inconsistency between the WIMS Act in s 112(3) and the Legal Profession Act. The two pieces of legislation are not directed towards the same thing. As far as what a Cost Assessor does I do not see any difference in principle between disallowing the costs of an assessment pursuant to s 208F(4) and disallowing an item in a bill of costs as being unnecessary. 18. It follows from the above that I am of the opinion that the discretion of the costs assessor under s 208F(4) miscarried as a matter of law." 17 In the first sentence of [16] Bishop CCJ was referring to s 208(2) of the Legal Profession Act. 18 However, Bishop CCJ noted that the reasoning of the costs assessor was influenced by Cramp v The Commonwealth (1996) 13 NSWCCR 461. That decision of Neilson CCJ was to the contrary of Bishop CCJ's view. So too, in another, related, aspect was the decision of Armitage CCJ in Martin v Warkworth Mining Ltd (unreported, Compensation Court of New South Wales, 25 November 1996). Bishop CCJ concluded that despite his personal view that these decisions were wrong, he should follow them. He concluded (at [22]): "The efficient disposition of costs arguments under the Legal Profession Act arising from this Court will not be aided by two competing lines of authority. For this reason despite my views as to correctness of Cramp and Martin I feel that I should follow these decisions and leave the issue for ventilation in another place if considered appropriate."

The Worker's First Submission on Appeal: s 208F(1A) and (4) 19 The worker put two submissions to this Court in the following order. 20 First, he submitted that s 208F(1A) of the Legal Profession Act 1987, in requiring an "assessment" to be made in accordance with the operation of "the rules" of the Compensation Court, that being the court which made the costs order, required it to be made bearing in mind s 112(3) of the Workplace Injury Management and Workers Compensation Act 1998. The reference to "the rules" was not merely a reference to the Compensation Court Rules 1990, but to "rules" in the sense of all the powers of and limitations on the court whether they stemmed from rules, regulations or a statutory provision like s 112(3). The submission treated the process of "assessment" pursuant to s 208F(1A) as including the question of which person should bear the costs assessed, and, according to the submission, the apparently unfettered power conferred by s 208F(4) on the costs assessor to order any party to pay the costs of the parties to the assessment, and the costs of the costs assessor, is fettered by s 112(3). The submission contended that there was not a distinction between the process of assessment - of computing what costs should be payable - and the issue of which person should pay which of those costs.

The Worker's Second Submission on Appeal: s 208M 21 The worker's second submission turned on s 208M of the Legal Profession Act. He said that s 208M permitted an appeal against a costs assessor's determination, and indeed the appeal to Bishop CCJ had been brought under s 208M(2). That appeal was "by way of a new hearing" and fresh evidence, or additional or substituted evidence, could be tendered: s 208M(4). Section 18 of the Compensation Court Act required s 112(3) of the Workplace Injury Management and Workers Compensation Act to be applied "to and in respect of any proceedings in the Court", and these included appellate proceedings under s 208M(2). 22 The reason why the submission was advanced was that, if sound, it revealed an incongruity which can be illustrated in the circumstances of this case in the following way. The Compensation Court, when through Egan CCJ it decided who should pay the costs of the award proceedings, was bound by s 112(3). The Compensation Court, when through Bishop CCJ it decided an appeal from the costs assessor's determination, was, if the present submission is sound, also bound by s 112(3). It was said to be incongruous that s 112(3) should bind Egan CCJ and Bishop CCJ if the costs assessor, carrying out functions intermediate between those of Egan CCJ and Bishop CCJ, was not also bound by s 112(3). In essence the submission was directed, in the event that there was thought to be an ambiguity or doubt about the construction of s 208F(1A) and (4), to providing a statutory context favouring the worker's construction of those provisions as propounded in the first submission. For that reason it is appropriate to consider it before considering the first submission. 23 Before doing so, it may be noted that neither party took the court in any detail to the decisions which Bishop CCJ referred to. That was an understandable course, since those decisions appear to have received little attention below, and the arguments in this Court proceeded at a more detailed level of statutory construction than those authorities did.

The Worker's Second Submission (s 208M) Considered 24 In my opinion the worker's second submission is erroneous because it does not take account of s 208M(5) of the Legal Profession Act 1987. Unless the Compensation Court affirms the costs assessor's decision, it "may … make such determination in relation to the application as, in its opinion, should have been made by the costs assessor." The true construction of those words is that unless the Compensation Court affirms the costs assessor's decision, it is obliged to redetermine the matter as if it were the costs assessor, and may arrive at whatever determination it considers should have been made. It is bound by the same legislative regime as the costs assessor, whatever that is. That removes the suggested incongruity between the Compensation Court as an appellate court being bound by s 112(3) while the costs assessor is not. Section 112(3) does not apply to the Compensation Court sitting as an appellate court, because although those appellate proceedings are "proceedings in the [Compensation] Court", they are proceedings to be conducted in accordance with the legislative regime binding the costs assessor, and the costs assessor is not the Compensation Court. Section 208M(5) is a special provision dealing with the specific subject of the role of the Compensation Court as a court hearing appeals from costs assessors; s 18 and s 112(3) are general provisions dealing with the general subject of the extent to which costs can be ordered against a worker; the special provision prevails over the general ones. 25 The worker sought to meet the view that s 208M(5) was a provision about the specific subject of a Compensation Court in its role as a court hearing appeals from costs assessors, while s 18 and s 112(3) were provisions dealing with the more general subject of the award of costs against workers, by pointing to the fact that s 208M came into force before s 18 in its present form came into force on 1 August 1998. In particular, s 208M(5) came into force on 1 April 1997. The argument was apparently that s 18, the latest statutory provision, worked an implied repeal of the earlier to the extent of any inconsistency. The argument was not developed. It assumes one answer to one of the questions which is to be decided. The question which is to be decided is whether s 18 deals with the same subject as s 208M(5). The argument assumes that it does. Unless it does, there can be no implied repeal. For the reasons given earlier, in my opinion s 18 does not deal with the same subject as s 208M(5). 26 The worker submitted that s 208M(5) did not mandate the Compensation Court sitting as an appellate court to make such determination as the costs assessor should have made: it pointed to the word "may". In my opinion that submission is incorrect: in context "may" means "shall". If "may" did not mean "shall", s 208M(5) would contemplate the possibility of the Compensation Court sitting on appeal from the costs assessor, if it decided not to affirm the costs assessor's decision, deciding either to make the determination which should have been made by the costs assessor or to make a determination which was different from that which should have been made by the costs assessor. It is difficult to imagine what that latter different determination could be. Can the possibility of a putatively different determination be based on the fact that the evidence before the Compensation Court or other appellate court may, by reason of s 208M(4), be different from that which was before the costs assessor? A negative answer to that question is suggested by a comparison of s 208M with s 208L. Section 208L is a provision which provides a path to appellate review different from that which s 208M(2) provides. Section 208M(2) permits the seeking of leave to appeal against the costs assessor's determination from the court or tribunal which made the order for payment of the costs which were assessed. That application can be based on any error, whether of law or fact. Section 208L(1) provides that a party to an application who is dissatisfied with the costs assessor's decision may appeal to the Supreme Court, without leave, but only on a matter of law. Section 208L(3) corresponds with s 208M(4) in relation to fresh, additional or substituted evidence. Section 208L(2), however, in contrast to s 208M(5), provides: "(1) After deciding the question the subject of the appeal, the Supreme Court may, unless it affirms the costs assessor's decision: (a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or (b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application."

The juxtaposition of paragraph (a) and paragraph (b) shows that the liberty to choose to make a determination which should have been made by the costs assessor is only a liberty to choose between that course and remission to the costs assessor. The word "may" in s 208L(2) confers no general discretion, but rather creates a duty either to make the determination which the costs assessor should have made or to remit the matter to the costs assessor. Accordingly the word "may" in s 208M(5) creates only a duty on the appellate court or tribunal to make whatever determination should have been made by the costs assessor.

The Worker's First Submission (s 208F(1A) and (4)) Considered 27 The worker's first submission is rejected for two reasons. 28 First, the expression "rules of the relevant court" in s 208F(1A) refers only to the procedural rules of that court, such as, in the present instance, the Compensation Court Rules 1990. Part 29 of the Compensation Court Rules 1990 contains quite detailed provisions about how costs should be assessed. The word "rules", with lower case initial, was employed because s 208F(1A) is speaking generally of a potentially large range of courts and tribunals capable of making costs orders to which the regime of assessment established by Pt 11 Div 6 of the Legal Profession Act 1987 can apply. The generic expression "rules" is apt to apply to procedural rules akin to the Compensation Court Rules (however the specific rules of the court or tribunal in question may be described). But extension of the word "rules" in s 208F(1A) to apply to all the powers of and restrictions on the Compensation Court involves an excessive stretching of meaning. 29 Secondly, even if the expression "rules of the relevant court" extends, in the present context, beyond "rules" in the nature of the Compensation Court Rules to any applicable statute relating to assessment, s 208F(4), at least in its second sentence, deals with a topic which is different from that of assessment. It does not deal with the assessment under s 208F(1) and (1A) of the costs payable as a result of Egan CCJ's order that the company pay the worker's costs. That process of assessment involves an estimation of which of the costs relate to work which it was not reasonable to carry out, and whether amounts charged for particular work done were fair and reasonable. That process of assessment applies also, by reason of the first sentence of s 208F(4), to the costs of the assessment (including the costs of the parties and the costs of the costs assessor). But the process of assessment is different from the process of deciding which party should pay a particular element of the costs assessed (being an element different from the element which Egan CCJ decided the company should pay) - the costs of the assessment (including the costs of the parties to the assessment and the costs of the costs assessor). 30 Assessment of the correct quantum of costs (including, by force of s 208F(4), first sentence, the costs of the assessment itself) is one matter, dealt with by s 208F(1) and (1A). A decision as to who should pay the costs of the assessment is another. The process of "assessment" is a process of assessing a money sum or distinct money sums. One relevant money sum in the present context is the reasonable costs of the proceedings to obtain an award. Another relevant money sum is the reasonable costs of the assessment. The question of who should pay that sum or sums, and to whom, is a distinct question turning on potentially quite different criteria. The question of who should pay the costs of the proceedings to obtain an award is a question which was answered by Egan CCJ, operating under the narrow constraints of s 112(3). The question of who should pay the costs of the assessment is a distinct question, not trammelled by s 112(3): it is different in nature and different in the considerations which are relevant to its being answered. Even if the reference to "rules" in s 208F(1A) is capable of importing the limiting effect of s 112(3), assuming it could have an irrelevant application, there is no corresponding reference in the second sentence of s 208F(4) and no corresponding limitation. The worker's submission collides with the entirely unqualified language of the second sentence of s 208F(4). Counsel for the worker acknowledged the force of this point when he accepted that his argument would be either weightless or much weaker if the second sentence of s 208F(4), instead of appearing as the second sentence of that sub-section, appeared as a separate sub-section. In this regard the worker submitted that the determination of who should pay costs is part of the single overall assessment process, and is not separate from it, because the first sentence of s 208F(4) caused the costs assessed to include the costs of the assessment; and submitted that the second sentence was a qualification of the overall assessment process, not something distinct from it. In my judgment the meaning of that second sentence is not affected by the particular place into which it is inserted, and its meaning points to the process of assessment being distinct from the decision as to who should pay the costs assessed.

The Worker's Arguments After the Oral Hearing 31 During the oral hearing the court granted leave to file written submissions explaining the legislative history. The worker's written submissions developed a third group of arguments. These arguments will be considered after the legislative history has been set out.

The Legislative History 32 The legislative history is as follows. 33 The Workers' Compensation Act 1926, s 38(g), gave power to the Commission to make costs orders. The Workers' Compensation (Amendment) Act 1951, s 5(1)(e)(iii), amended s 38(g) by inserting the following: "The Commission shall not order the payment of costs by a worker unless it is satisfied that his application has been made fraudulently."

The "Commission" was the Workers Compensation Commission of New South Wales, the predecessor of the Compensation Court. 34 The Workers' Compensation (Amendment) Act 1967, s 3(1)(g), amended the words inserted into s 38(g) in 1951 so that they read: "The Commission shall not order the payment of costs by a worker unless it is satisfied that his application was frivolous or vexatious or was made fraudulently or without proper justification." 35 The Compensation Court Act 1984, s 18, came into effect on 3 December 1984 in the following form: "18. (1) Subject to this section, the Court may in any matter make such order as to the payment of fees or costs as it thinks just and may assess the amount of those fees or costs. (2) Without affecting the generality of subsection (1), the Court may, in such circumstances as are specified in the rules, order the payment of fees or costs by a legal representative. (3) Subject to section 24(1)(b), the Court shall not order the payment of fees or costs by - (a) an applicant for compensation under the Workers' Compensation Act 1926; or (b) an appellant (not being an employer or an insurer) against an award or order or a determination, ruling, direction or decision under that Act, unless it is satisfied that the application or appeal was frivolous or vexatious or was made fraudulently or without proper justification. (4) Fees and costs included in an order or assessment under subsection (1) or (2) shall not, where provision is made for the like fees and costs in the scales applicable to proceedings in the Supreme Court in the Common Law Division, exceed the fees and costs provided for in the highest of those scales except with the approval of the Court or the officer taxing the fees and costs." 36 Section 121(1) of the Workers Compensation Act 1987 was repealed by the Workers Compensation (Compensation Court) Amendment Act 1989, Schedule 1, clause (14). The Compensation Court (Amendment) Act 1987, Schedule 1, clause (4), repealed s 18(3) of the 1984 Act. It was however re-enacted in substantially similar form as s 121(1) of the Workers Compensation Act 1987. 37 The Compensation Court Act was again amended by the Compensation Court (Amendment) Act 1989. Schedule 1, Clause (6), substituted a new s 18 as follows: "(1) In this section, a reference to costs is a reference to costs payable between party and party, including disbursements. (2) Subject to this Act and the rules and subject to any other Act:

(a) costs in or in relation to any proceedings are in the discretion of the Court; and (b) the Court has full power to determine by whom, to whom and to what extent costs are to be paid in or in relation to any proceedings; and (c) the Court has full power to order costs in or in relation to any proceedings to be taxed or otherwise ascertained. (3) A taxation of costs may be reviewed by the Court in accordance with the rules of Court. (4) Subject to this section, the Court may not order the payment of costs by a person claiming compensation unless the Court is satisfied that the application for compensation was frivolous or vexatious, fraudulent or made without proper justification. (5) If the Court is satisfied that a part only of any such application for compensation was frivolous or vexatious, fraudulent or made without proper justification, the Court may order the claimant to pay the costs relating to that part of the application. (6) If a person claiming compensation applies under section 36 for a review of the decision of a commissioner, costs in or in relation to the review are to be paid by the unsuccessful party unless the Court in special circumstances otherwise orders. (7) The Court may order the payment of costs by any party to the proceedings who has unreasonably failed to participate in a conciliation of the dispute under the Workers Compensation Act 1987 if it appears to the Court that the failure has resulted in unnecessary litigation or has adversely affected the rehabilitation of an injured worker. (8) An order of the Court for payment of costs may include (a) the costs actually incurred or to be incurred by a person claiming compensation; and (b) if liability for a claim for compensation is admitted without recourse to the Court - the reasonable expenses incurred by a person in pursuing the person's claim; and (c) costs incurred in relation to any proceedings under the Workers Compensation Act 1987 (including conciliation conferences as defined in section 100A of that Act). (9) In this section: 'application for compensation' includes any proceedings in connection with an application for compensation; 'compensation' means compensation under the Workers Compensation Act 1987; 'decision' includes award, order, determination, ruling and direction." 38 The only reference to the amendment of s 18 in the Second Reading Speech was a reference to s 18(7): the Second Reading Speech said: "Section 18 of the Act has been amended to enable the Court to order the payment of costs by any party to proceedings who has unreasonably failed to participate in the conciliation of the dispute if this action has resulted in unnecessary litigation or has adversely affected the rehabilitation of an injured worker." 39 The Legal Profession Reform Act 1993, Schedule 6, clause (1)(a), substituted a new s 18(1) of the Compensation Court Act 1984 to the following effect: "(1) In this Section, a reference to costs is a reference to the costs payable by a party in or in relation to proceedings, including disbursements."

The Legal Profession Act 1993, Schedule 6, clause (1)(b), also substituted a new s 18(2)(c) of the Compensation Court Act 1984 to the following effect: "(c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis." 40 Thus in lieu of a power to order costs to be taxed or otherwise ascertained, the Compensation Court was given power to order them to be assessed on a Part 11 Division 6 basis or on an indemnity basis. The main elements of the Part 11 Division 6 basis introduced by the Legal Profession Reform Act 1993, Schedule 3, clause (1), were ss 202, 206, 208A and 208F. In particular, s 208F as introduced in 1993 took its present form, except that there was no s 208F(1A), and the words now in brackets in s 208F(4) were then: "(including the costs of the costs assessor)". The Second Reading Speech in the Legislative Council on 16 September 1993 (New South Wales Parliamentary Debates (Hansard) (Third Series) Vol 237, p 3278) referred to the amendment to s 18(2)(c) (among others) in the following terms: "There are various amendments to court Acts in schedule 6 of the bill which provide that courts may determine costs payable in proceedings and may order costs to be payable on the basis or [sic] assessment as set out in the bill or an indemnity basis. This also has the effect of confirming the right of courts to order costs payable on an indemnity basis." 41 So the first major relevant change effected in 1993 was to substitute for the process of taxation of costs ordered to be paid by the Compensation Court a process of assessment of costs, as part of a general regime for the assessment, by assessors appointed by the Supreme Court, of costs ordered by any court or tribunal. The other major relevant change effected in 1993 concerned the related topic of the review of taxation/assessment. The review of taxation was the subject dealt with by s 18(3) in the form in which it stood between 1989 and 1993. That subject ceased to be dealt with by s 18(3) which was repealed by the Legal Profession Reform Act 1993, Schedule 6, clause (1)(c). In lieu of that provision about the review of taxation there were inserted provisions about review of assessment, namely s 208L and s 208M. These provisions were inserted by the Legal Profession Reform Act 1993, Schedule 3, clause (1). Section 208M was enacted in its present form, save that s 208M(5) did not then exist. The Second Reading Speech devoted some space to Part 11 Division 6, but did not give specific mention to the assessment of costs ordered by the Compensation Court or to the review of that assessment. The Second Reading Speech said of s 208F only the following (New South Wales Parliamentary Debates (Hansard) (Third Series) 1993 Vol 237, p 3278), after describing as a "problem" the tendency of party-party taxation to cause a winning litigant to achieve less than full recovery of actual costs: "These problems have been rectified in the bill at new sections 208F and 208G by providing that the costs in proceedings will be dealt with under the assessment process and on the same basis as in practitioner-client matters, being the fair and reasonable costs. Thus successful litigants should expect to receive all the legal costs they have incurred, except in the clear instances where costs in excess of that which may be determined as reasonable have been incurred with the express consent of the client."

The Second Reading Speech said nothing about s 208M. 42 The WorkCover Legislation Amendment Act 1995, Schedule 3 [4], repealed s 18 of the Compensation Court Act 1984 and substituted for it: "Section 116 (Costs) of the Workers Compensation Act 1987 applies to and in respect of any proceedings in the Court, not just proceedings under that Act."

At the same time the WorkCover Legislation Amendment Act 1995, Schedule 1 [60], inserted a new s 116 into the Workers Compensation Act 1987 in the same form as the current s 112 of the Workplace Injury Management and Compensation Act 1998. In particular, s 116(1)-(3) (which sub-sections correspond to s 112(1)-(3) of the Workplace Injury Management and Compensation Act 1998) provided: "(1) In this section, a reference to costs is a reference to the costs payable by a party in or in relation to proceedings, including disbursements. (2) Subject to this Act and the regulations and the rules of the Compensation Court and subject to any other Act: (a) costs in or in relation to any proceedings are in the discretion of the Court, and (b) the Court has full power to determine by whom, to whom and to what extent costs are to be paid in or in relation to any proceedings, and (c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis. 3. Subject to this section, the Court may not order the payment of costs by a person claiming compensation unless the Court is satisfied that the application for compensation was frivolous or vexatious, fraudulent or made without proper justification."

The Second Reading Speech in the Legislative Council, delivered on 13 December 1995, does not mention either the amendment to s 18 or the enactment of s 116. 43 In 1996 the Legal Profession Act 1987 was amended in three respects by the Legal Profession Amendment Act 1996. By Schedule 2 [8], sub-section (1A) was inserted into s 208F in its present form. By Schedule 2 [9], s 208F(4) was amended so that it assumed its present form. By Schedule 2 [16], s 208M(5) in its present form was inserted. 44 The Second Reading Speech delivered in the Legislative Assembly on 24 October 1996 said nothing about s 208F(1A). However, it did say (New South Wales Parliamentary Debates (Hansard) (Third Series) Vol CCLIV, p 5319): "Section 208F(5) of the principal Act permits an assessor to include in a determination provision for the recovery of the costs of assessment. This has been interpreted to relate only to the costs of the application for assessment and the costs of the assessor's time. The section is amended to clarify that it will permit an assessor in party-party assessments to include in the determination the costs incurred by a party to the assessment. Section 208L of the principal Act provides for appeals from assessors by right on a point of law to the Supreme Court. Section 208M provides appeals on merit by leave of the court. When dealing with an appeal on a point of law the court may make a number of decisions, including to remit the matter to a cost assessor to have the application redetermined. No such options are available on an appeal on merit which must be by way of a new hearing. The bill will amend s 208M to provide the court with the same options as are available under s 208L."

This is wrong in several respects. The first two sentences should have referred to s 208F(4), not s 208F(5). As for the last four sentences, the amendment to s 208M (namely the insertion of subsection (5)) did not provide the court with the "same options as are available under s 208L", but only one of them - that available under s 208L(2)(a). The Explanatory Note was more accurate. Of s 208F(1A), it said: "Section 208F, which deals with the assessment of costs ordered by a court or tribunal, is amended so as to require a costs assessor, when considering an application relating to a bill of costs, to have regard to the operation of the rules of the court or tribunal making the order for costs."

Of s 208F(4) it said: "Section 208F provides that the costs assessed are to include the costs of the assessment. The section provides that the costs of a costs assessor are to be paid to the proper officer of the Supreme Court. Section 208F is amended so that the costs of the parties to an assessment are included in those costs of assessment that are recoverable."

And of s 208L and s 208M the Explanatory Note said: "Section 208L provides for appeals to the Supreme Court against decisions of costs assessors as to a matter of law. The Court is empowered to remit a decision on the question to the costs assessor and to order the costs assessor to re-determine the application. Fresh evidence may be heard on that re-determination. Section 208M provides for appeals on the merits of the case, but only by leave of the Supreme Court. Such appeals are by way of a re-hearing, and the Supreme Court is not empowered to remit the decision to the costs assessor. The procedure for merits appeals is amended so as to allow the appeal court or tribunal to make a determination that, in the opinion of the court or tribunal, should have been made by the costs assessor."

However, though the Explanatory Note summarised the provisions correctly, like the Second Reading Speech, it cast no light on the correct construction of the provisions. 45 The Workers' Compensation Legislation Amendment Act 1998, Schedule 2.2 [3], amended s 18 of the Compensation Court Act 1984 so that it took its current form, namely: "Section 112 of the Workplace Injury Management and Workers Compensation Act 1998 applies to and in respect of any proceedings in the Court, not just proceedings under that Act."

The amendment was made because of the repeal of s 116 of the Workers' Compensation Act by Schedule 1 [63] and its re-enactment in identical terms in s 112 of the Workplace Injury Management and Compensation Act 1998. The legislative scheme involved the repeal of Part 4 of the Workers Compensation Act 1987 and its re-enactment in the Workplace Injury Management and Compensation Act 1998. The Second Reading Speech in the Legislative Council, delivered on 26 June 1998 (New South Wales Parliamentary Debates (Hansard) (Third Series) Vol 265, p 6706-6709), does not refer to the amendment to s 18.

The Worker's Third Group of Arguments 46 The worker argued (Respondent's Further Written Submissions paras 7-10): "7. Until the 1995 amendment it was clear that the Court could not order the payment of costs by a person claiming compensation unless it was satisfied that the application or part thereof was frivolous or vexatious, fraudulent or made without proper justification. That limitation had extended to the Court's powers of taxation up until 1993. After the 1993 amendments the Court could order costs to be assessed on the basis set out in Division 6 Part 11 of the Legal Profession Act, 1987. However it did not acquire any additional power to order costs to be paid by a person claiming compensation. If Parliament had intended that the Court would acquire such a power when hearing a costs appeal Section 18 would have been amended at that time to clearly provide for such a power. It did not. 8. The new Section 18 inserted by the 1995 amendments was intended to preserve the [Court's] position as to costs following the transfer of the costs making power to the Workers Compensation Act. The reference to 'any proceedings in the Court, not just proceedings under that Act' shows a clear intention that the powers and restrictions imposed by Section 116 (as it then was) were to apply to all proceedings before the Court in the same [way] as they had prior to the amendment. 9. At that time apart from proceedings under the Workers Compensation Act, the only matters in which the Court had jurisdiction were appeals under the Sporting Injuries Compensation Act [sic - scil Sporting Injuries Insurance Act 1978] and appeals under the Legal [Profession] Act. An Appellant under the Sporting Injuries [Insurance] Act is not a person claiming compensation within the meaning of the Section whereas a party to a costs appeal can be such a person. 10. When enacting the new form of Section 18 in 1995 Parliament only had to consider the application of the costs powers and restrictions to two other Acts. It would have been a simple matter to exclude the operation of Section 116(3) (as it then was) from costs appeals. Parliament did not do so in 1993 nor in 1995 nor 1998. The clear intention is that the Compensation Court cannot order a person claiming compensation to pay costs except in certain limited circumstances. That restriction applies to any costs payable in or in relation to proceedings. When determining a costs appeal the Court is determining the costs payable in respect of the original proceedings which include the costs of the assessment. Section 208F(4) of the Legal Profession Act provides that the costs assessed are to include the costs of the assessment making it clear that the costs of the assessment are part of the costs of the proceedings. Alternatively the costs of the assessment including those of the costs assessor can be viewed as costs in relation to the original proceedings." 47 To some degree these contentions merely repeat the worker's first and second submissions. So far as they advance new material, the first difficulty with them is that they overlook the amendments made by the Legal Profession Reform Act 1993. As has been seen, those amendments introduced a system of assessment of costs by assessors appointed by the Supreme Court and a system of review of the determinations of those assessors. In the light of that circumstance it is misleading to say, as paragraph 7 of the worker's submission does, that the Compensation Court "did not acquire any additional power to order costs to be paid by a person claiming compensation" in 1993. It is misleading because it is arguable that even though the Compensation Court did not acquire such a power, the assessors did. The argument that the assessors did rests on s 208F(4). Further, it is arguable that the Compensation Court sitting on appeal from an assessor had the same power as the assessor had under s 208F(4) at least from the time when s 208M(5) came into force after the enactment of the Legal Profession Amendment Act 1996. The argument that the Compensation Court gained that power was set out above in rejecting the worker's second submission. The worker's submission (in paragraph 7 of the Respondent's Further Written Submissions) is that if Parliament intended the Compensation Court to acquire an additional power to order costs to be paid by a person claiming compensation it would have amended s 18 so as clearly to "provide for such a power" leaves out of account the possibility that such a Parliamentary intention could have been reflected in some provision other than s 18. Since s 18(2)(c), dealing with taxation, was removed from s 18 in 1993 and that subject, described as assessment, was dealt with in much more detail in the sections preceding and including s 208F of the Legal Profession Act 1987, and since s 18(3) dealing with review of taxation was also removed from s 18 in 1993 and that subject, described as review of assessment, was dealt with in more detail in s 208L and s 208M of the Legal Profession Act 1987, it is not inappropriate to search for the powers of assessors and of the Compensation Court on the question of who is to pay for the costs of the assessment in some place other than s 18. It is, further, appropriate to do so in the new provisions in the Legal Profession Act which dealt with the subjects thenceforth not dealt with in s 18. In the form in which s 208F and s 208M stood in 1993, s 208F did not contain s 208F(1A), and s 208M did not contain s 208M(5). 48 The issue under inquiry is whether an assessor has power to order costs against a worker in circumstances other than fraud and the like. If that inquiry were carried out in relation to the legislation as it stood after the amendments, while it would reveal that s 18 was silent on the subject, it would also reveal that a basic foothold of the worker's first submission, s 208F(1A), did not then exist, leaving unassailed the construction of s 208F(4) propounded earlier. This in turn would make the worker's second submission, based on s 208M, without utility since it could only usefully have been deployed if there was some ambiguity in s 208F(4). 49 If the inquiry into the power of an assessor to order costs against a worker were to be centred on the legislation as it stood after the 1996 amendments to the Legal Profession Act, that inquiry would reveal that while the successor to s 18 as it stood in 1993, which referred to s 116 of the Workers Compensation Act 1987, was silent on the powers of assessors, s 208F(4) was not, and that on the construction of s 208F(1A) and (4) adopted above in dealing with the worker's first submission, it gave the assessor power to order costs against a worker. The inquiry as carried out at a point of time after the 1996 amendments came into force also would reveal that s 208M(5), which did not exist in 1993, arguably gave power to the Compensation Court, sitting on appeal from the assessor, to make an order against a worker in circumstances other than fraud and the like. That poses an issue as to whether the argument that s 116 deprives the Compensation Court of that power is superior to the argument that s 208M(5) grants it: there is no reason for thinking that the conclusion that s 208M(5) grants that power as the legislation now stands would be different if the issue were addressed at a moment in time immediately after the 1996 amendments. 50 In short, nothing in the legislative history suggests that the conclusions arrived at above in relation to the worker's first argument (s 208F(1A) and (4)) or his second argument (s 208M) were wrong. After the 1993 amendments, the fate of the worker's arguments would have been the same as it is when one examines them now. Nothing in the 1996 amendments, or any other legislative change since 1993, suggests that the conclusion to be arrived at in relation to the worker's arguments would be different from what they would have been in 1993. In particular, there is nothing to suggest a narrowing of the untrammelled power of an assessor to make a costs order against the worker. 51 The background to paragraph 9 of the worker's written submissions is as follows. The Sporting Injuries Insurance Act 1978 provides for a Sporting Injuries Committee to pay benefits in relation to "compensable injuries" suffered by particular persons while participating in authorised activities of sporting organisations, schools or the Department of Sport and Recreation. By reason of amendments made by the Sporting Injuries Insurance (Workers Compensation) Amendment Act 1984, s 29 provides for the Compensation Court to make different determinations on application by applicants for benefit who are aggrieved by decisions of the committee. Those applicants are not persons "claiming compensation" under the present s 112(3) of the Workplace Injury Management and Workers Compensation Act 1988, because compensation is defined in s 4(1) of that Act as including "any monetary benefit under this Act" and those applicants claim under the Sporting Injuries Insurance Act 1978, not the Workplace Injury Management and Workers Compensation Act 1988. Thus in the expression "any proceedings in the Court, not just proceedings under that Act", which appeared in s 18 in its 1995 form and appear in its 1998 form, proceedings under the Sporting Injuries Insurance Act fall within the words "any proceedings in the Court", not within the words "proceedings under that Act". According to the worker, the other Act falling within the earlier words and not the later is the Legal Profession Act in its provisions about claims for costs. 52 The argument advanced in paragraphs 9 and 10 by the worker in his written submissions is vulnerable to a tu quoque response. The argument says: "It would have been a simple matter to exclude the operation of s 18(4) as it stood when costs appeals from assessors were introduced in 1993 from costs appeals, but this has not been done. Nor was it done in relation to s 116(3) (in force from 1995 to 1998). Nor was it done in relation to s 112(3) of he Workplace Injury Management and Workers Compensation Act (in force since 1998). To the contrary, general words were used in the 1995 and 1998 forms of the legislation making it plain that the limitation on awarding costs against a worker applied to 'any proceedings in the Court', not just (in relation to the 1995 position) proceedings under the Workers Compensation Act and (in relation to the position from 1998) the Workplace Injury Management and Workers Compensation Act." The difficulty is that just as it would have been a simple matter to exclude the operation of s 112(3) and its predecessors from costs appeals, so it would have been a simple matter to make it plain in s 208M(5) that while the Compensation Court was in all other respects to make the determination which the costs assessor should have made, it was not to order costs against the worker save where fraud or the other special circumstances existed. The fact that a problem of construction might have been solved by the use of particular express words is a very limited guide to the solution of that problem when those words were not in fact used. 53 In short, the worker's further arguments do not suggest that it is wrong to arrive at the construction of s 208F which defeats his first argument and the construction of s 208M which defeats his second argument. Even though that construction of s 208F and 208M takes proceedings in relation to assessment of costs and in relation to review of assessments of costs under the Legal Profession Act out of the prohibition on awarding costs against a worker to be found in s 18 of the Compensation Court Act 1989, the expression "any proceedings in this Court" is given work to do and the various legislative provisions operate harmoniously

Was the Worker "A Person Claiming Compensation"? 54 A subsidiary argument advanced by the company was that even if the two primary submissions of the worker succeeded, they did not advance the worker's case, because a worker who is merely seeking to have costs assessed is not "a person claiming compensation" within the meaning of s 112(3). The company, while accepting that costs fell within the definition of "compensation" in s 4(1) of the Workplace Injury Management and Workers Compensation Act as including "any monetary benefit under this Act", denied that the costs were a benefit to the worker. The argument was based on s 116, which forbids a legal representative of a worker from recovering costs from a worker unless those costs were awarded by the Compensation Court. The effect of s 116 was said to be that any costs awarded would not enure to the worker, but to the worker's legal representative. The submission was put thus to Bishop CCJ (Blue 23J-L): "The application for assessment does not relate to the payment of any monies in which the applicant has a beneficial interest (beyond reimbursements for disbursements he may have met) but a claim (which the legal representatives are entitled to make) for payment of their own costs independent of any obligation resting on their client."

However, as the submission fairly conceded, the worker had a beneficial interest in claimed disbursements so far as they had been met by the worker. At least where that type of claim is made, a worker seeking assessment of costs which the Compensation Court has ordered should be paid to that worker is a claim for a monetary benefit, and hence the worker is "a person claiming compensation" within the meaning of s 112(3). Though there was evidence that disbursements were claimed by the worker, there was no evidence that he had already met them. 55 It is not proposed to decide this question in view of the fact that it is not necessary to do so.

Notice of Contention 56 The worker submitted that the decision of Bishop CCJ should be affirmed on the following ground not relied on by his Honour: "The cost assessor exercised his discretion under the Legal Profession Act to order the appellant to pay the respondent's costs of the assessment. That exercise of discretion contained no error of law and accordingly should not be disturbed." 57 In brief, the argument was that even if the worker's two primary submissions failed, so that s 112(3) did not apply, there was no error in the costs assessor's reasoning. It was relevant to take into account the fact that there was only a minor difference between the company's offer of 15 May 1998 and the amount which the costs assessor determined to be fair and reasonable. It was not wrong to describe s 112(3) as containing the "general principle" on the question of when a worker should pay costs. Whatever Bishop CCJ thought about the application of s 112(3), he could have dismissed the appeal on the basis that the costs assessor's decision was defensible on grounds different from those agitated before Bishop CCJ. 58 This argument of the worker should be rejected. There are two possible readings of the costs assessor's reasons and at best it is obscure which is correct. One reading is that the costs assessor rested his reasoning on the proposition that s 112(3) bound him to reach the conclusion he did (a reading which is supported by the costs assessor's reference to Cramp v The Commonwealth (No 2) (1996) 13 NSWCCR 461). The other is that he thought that s 112(3) applied generally though not universally, so that in exceptional cases, into which the instant case fell, the decision-maker had a more general discretion, which was appropriately to be exercised in favour of the worker. The better reading is probably the former: that is the way Bishop CCJ construed the costs assessor's reasons. If so, the costs assessor's reasoning is flawed. But, in any event, because of the obscurity of the reasoning it is not possible to say that the costs assessor arrived at a soundly reasoned discretionary decision.

Orders 59 It follows that the appeal should be allowed: the conclusions at which Bishop CCJ, unconstrained by authority, would have preferred to have arrived were correct, but the authorities in the Compensation Court which he applied as a matter of comity were wrong. It is usually thought that a court constrained by considerations of comity can escape them if the decisions confronting it are plainly wrong; Bishop CCJ was not incorrect in failing to hold them to be plainly wrong. What he said at the end of his reasons for judgment, in [22], which was quoted above, was sound. Since the appeal is to be allowed, it follows that Bishop CCJ's order dismissing the appeal to him must be set aside. 60 The appropriate costs order is that the company pay the worker's costs. It is appropriate because the company's application for leave to appeal was granted and the appeal considered by Bishop CCJ, and the company's application for leave to appeal was granted and the appeal considered by this Court, on the basis that the case was a test case. The case was designed to test the correctness of the line of authority in the Compensation Court. It was thus of general importance to the insurer behind the company, and to other insurers behind employers in the position of the company, but of no significance whatever to the worker. The costs of the appeal must far exceed the $542.50 in dispute. The proceedings were thus of considerable potential benefit to the company and its insurer, but of no benefit, and much potential detriment, to the worker. Further, and less importantly, there was a degree of vacillation and wavering on the company's part in relation to what orders it sought, both before Bishop CCJ and this Court, for which the worker was not responsible. In all the circumstances the company should pay the worker's costs despite the failure of the worker's argument. For the same reasons Bishop CCJ's order that the company pay the worker's costs of the proceedings before him should not be disturbed. 61 The company in its Notice of Appeal sought an order remitting the matter to the Compensation Court. In oral argument it sought orders having the effect of returning the matter to the assessor. The effect of s 208M(5) was to preclude Bishop CCJ from returning the matter to the assessor, and this Court was not taken to any provision giving it wider powers on an appeal from Bishop CCJ. In later written argument the request made in oral argument was abandoned. Hence the appropriate order is that sought in the Notice of Appeal, namely, an order remitting the matter to the Compensation Court. However, now that the question about the correctness of the earlier Compensation Court decisions has been resolved, it is to be hoped that neither the worker nor the overworked judges of the Compensation Court are to be further vexed by the company either with a contention about the application of Calderbank v Calderbank [1975] 3 All ER 333 (which was argued before Bishop CCJ, but not, save by reference, before this Court) or with any other contention which occurs to the company for the sake of so small a sum as $542.50. 62 I propose the following orders:

2. The order of Bishop CCJ dated 8 October 1999 dismissing the appeal to him is set aside.

3. The matter is remitted to the Compensation Court of New South Wales for determination in accordance with the reasoning of this Court: (a) whether the respondent should pay the costs of the costs assessor in the sum of $542.50; and (b) whether the costs payable by the appellant to the respondent pursuant to the costs assessor's certificate dated 17 December 1998 should be reduced by that amount.

4. The appellant is to pay the respondent's costs of the appeal.

5. For the avoidance of doubt, it is noted that Bishop CCJ's order that the appellant pay the respondent's costs of the proceedings before him is not disturbed.

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