Ortlipp v Employers Mutual NSW Limited as agent for the Workers Compensation Nominal Insurer

EX TEMPORE Judgment 1On 17 April 2014 I made the following orders: "1. The plaintiff's notice of motion is dismissed. 2. The plaintiff to pay the defendant's costs of the notice of motion. 3. In the event that no submissions are received by 4pm on 1/5/14 opposing dismissal of the proceedings or costs, the proceedings will be dismissed with the plaintiff to pay the defendant's costs of the proceedings. If submissions are received, the matter will be re-listed." 2Submissions were received from the plaintiff on 1 May 2014 in respect of costs, thus necessitating that the matter be re-listed. My associate sought convenient dates for the matter to be re-listed. The defendant responded by supplying submissions. 3I re-listed the matter today. The parties made short further submissions, not in substance different from those already supplied. I propose to proceed to finalize the matter by a judgment. 4The submissions raise no issue about dismissal of the proceedings. As no leave was granted to the plaintiff to maintain the proceedings, and no contrary submission is put, I propose to dismiss the proceedings as a consequence of the earlier decision and reasons. 5However, the submissions raise the appropriate order for costs, both in respect of the notice of motion and the proceedings generally. Given the uncertainty about the finality of the previous order 2 in respect of costs, in the context of order 3, I propose to deal with costs generally including costs of the notice of motion. 6Section 346 of the Workplace Injury Management and Workers Compensation Act 1998 ("the WIM Act") provides as follows: "346 Costs (1) This section applies to costs (including disbursements) payable by a party in or in relation to a claim for work injury damages, including court proceedings for work injury damages. (2) The regulations may make provision for or with respect to the awarding of costs to which this section applies. The regulations may provide for the awarding of costs on a party and party basis, on a practitioner and client basis, or on any other basis. (3) A party is not entitled to an award of costs to which this section applies, and a court may not award such costs, except as prescribed by the regulations under this Act or by the rules of the court concerned. (4) In the event of any inconsistency between the provisions of the regulations under this section and rules of court, the provisions of the regulations prevail to the extent of the inconsistency." 7Thus, the court can only award costs as provided by the Workers Compensation Regulation 2010 or by the rules of the court, pursuant to s 346(3). Provisions of the regulations prevail over the rules to the extent of any inconsistency, pursuant to s 346(4). 8Part 17 Division 3 of the Workers Compensation Regulation 2010 deals with "Costs recoverable in work injury damages matters", see regulation 101. 9Regulation 102 provides that the maximum recoverable costs are those in Schedule 7. 10Subdivision 2 of Part 17 Division 3, "Restriction on awarding of costs", commences with regulation 104. Regulations 104 and 105 provide bases for a party obtaining an order for costs where offers have been made, but no offer has been made so far as the evidence reveals, so those provisions are inapplicable. 11Regulation 106 provides that generally parties are to bear their own costs. The plaintiff relies upon this provision and seeks such an order in respect of both the notice of motion and the proceedings generally. 12However, regulation 108 provides: "108 Subdivision does not apply to ancillary proceedings This Subdivision does not apply to costs payable in or in relation to proceedings that are ancillary to proceedings on a claim for work injury damages, and a court is to award costs in such ancillary proceedings in accordance with the rules of the court." 13Thus, an order for the costs of the notice of motion for leave to maintain proceedings pursuant to s 151D of the Workers Compensation Act 1987 depends on whether the notice of motion can properly be described as "proceedings that are ancillary to proceedings on a claim for work injury damages". 14In Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86, Gleeson CJ (with whom Samuels, Priestley JJA and Hope AJA agreed) stated (at 94-95) that "matters ancillary to trial" included: "such matters as discovery, inspection, further and better particulars, and medical examinations of plaintiffs claiming damages for personal injury. This is not an exhaustive list of proceedings ancillary to an action. Part 16 of the rules (District Court Rules 1973) provides that applications for the purposes of or in relation to any proceedings are to be commenced by notice of motion." 15At 101, Gleeson CJ stated: "An application for an extension of time under the Limitation Act, s 58, is clearly a 'proceeding ancillary to an action' especially when one bears in mind that the essential concept of an action in the District Court is, leaving to one side what had earlier been called the miscellaneous exceptions, a claim for a money sum. Section 139 of the District Court Act provides that, for purposes of considering rights of appeal, some of the claims made pursuant to the Court's miscellaneous jurisdiction are to be treated as 'actions' but there is no such provision which applies to applications under the Limitation Act, s 58." 16In the present case, the plaintiff sought to overcome a limitation period under s 151D of the Workers Compensation Act 1987 by obtaining leave. In my view, this is analogous to an extension of time and accordingly, the decision in Clutha is applicable. I do not think any changes to the nature of work in the District Court in the past 25 years impact upon its applicability. 17Even if a leave application is different from an extension application, I remain of the view that it is ancillary to the proceedings for damages because the relief granted is not the final relief sought in the proceedings, nor is it part of the trial for that final relief. It remains "proceedings subsidiary to the main litigation": Chubs Constructions Pty Ltd v Chamma (No 2) (2010) 78 NSWLR 679; [2010] NSWCA 225 at [29]. 18Chubs (No 2) at [32] referred to Wilson v State Rail Authority (NSW) [2009] NSWSC 1455 where Hidden J held, at [9], that the determination of a separate question was "anything but ancillary". The determination of a separate question is the final determination of an issue at a trial. So also are the costs of the trial (cf Chubs (No 2) at [31]-[34]). That was not the matter before me, which was an interlocutory application. It no more effected a final disposition of the proceedings than the refusal of an application to extend a limitation period. For that reason, the primary proceedings were re-listed before me today. 19It follows that the notice of motion was ancillary to the proceedings. The costs of these "ancillary proceedings" are determined in accordance with the rules of the court in accordance with regulation 108. 20Rule 42.1 of the Uniform Civil Procedure Rules 2005 provides the general rule that costs follow the event. That is the order I propose to make in respect of the notice of motion. 21But regulation 102 remains applicable. Being in Subdivision 1, it is not affected by regulation 108. Regulation 102 provides, by reference to costs in Schedule 7 of the Workers Compensation Regulation 2010, the maximum costs that are recoverable "in or in relation to a claim for work injury damages". 22In accordance with s 346(4) regulation 102 prevails over the rules in relation to the maximum costs awarded. In other words, although the costs are not "on a claim for work injury damages" (see regulation 108 and Chubs (No 2) at [8]), they are nevertheless "in relation to a claim for work injury damages" under regulation 102, and thus limited by that provision. 23Accordingly, I propose to order that the costs of the notice of motion be limited to the costs set out in Schedule 7, in accordance with regulation 102. 24That leaves the costs of the proceedings. Those costs are not within regulation 108 and are thus subject to regulation 106. In respect of them, the parties are to bear their own costs. That both parties had some success on the issue of costs provides support for this order. 25Both parties referred to conduct of the other that delayed the hearing and determination of the motion. In my view, the defendant's complaints are remedied, so far as the legislation allows, by the order for costs of the motion. 26The plaintiff complains about the form of the defence. This was a matter dealt with in the previous judgment. The complaint ignores the delay caused by the plaintiff's lack of readiness to proceed. It also overlooks that the plaintiff was unsuccessful on its motion without the defence being amended. The defendant was also largely successful on its application for the costs of the notice of motion.