The distinction which his Honour noted, of course, serves to highlight the converse position which applied when a common law proceeding was brought by the plaintiff against his or her employer; which in turn tends to emphasize the longstanding, potentially adverse, consequence of receipt of workers compensation in the context of the costs of common law proceedings of that character.
16 But notwithstanding the matters to which we have just referred, Counsel's submission about unfairness had real force. Section 134AB of the Act contains a regime which was novel when first introduced into s 135A by the Accident Compensation (Miscellaneous Amendment) Act 1997. By that regime, a worker is prohibited, ordinarily, from commencing a substantive common law proceeding except if, an obligatory conference having been held between the parties, the Authority[8] makes a statutory offer of compromise,[9] or is deemed to have done so,[10] and the worker rejects that offer and makes a statutory counter offer[11] which is not accepted by the Authority.[12] Counsel submitted that the consequence of s 134AB(12) and (28) is that, given the uncertainty as to when the proposed proceeding will come to trial, but given also the certainty of a significant time lapse between commencement of a proceeding and trial, a worker is put in the position of having to make a low statutory counter offer in an attempt to avoid the consequences of subsection (28)(d). That works an unfairness, counsel submitted, at least because the Authority can accept the counter offer and is then able to terminate payments of compensation.
17 We see no reason to doubt that a worker's concern about the operation of subsection (28) might cause a sequence of events of the kind described; specifically, where the worker remains on compensation payments at the time when the counter offer is made.
18 Counsel for Tenix submitted that the potential for unfairness was ameliorated because, most often, weekly payments of compensation will not continue beyond a two year period. That submission is true as far as it goes. But it must be remembered that the only persons able to bring a common law proceeding are those who satisfy the "serious injury" test; and it is those persons who are most likely to have an entitlement to weekly payments beyond the two year period.
19 Counsel for Tenix also submitted that a worker could elect not to accept payments of weekly compensation in the period between statutory counter offer and trial, so as to better protect his or her position in the context of the operation of subsection (28)(d). That submission, which presupposed a continuing entitlement to weekly compensation over a protracted period, and hence a very disabled worker, to our mind ignored the reality of the worker's need to keep financially afloat in the pre-trial period. It would be a serious indictment of the operation of the Act if a worker was constrained to renounce a compensation entitlement in an attempt to avoid an adverse costs consequence at trial of a permitted common law proceeding.
20 It was further submitted by counsel for Tenix that s 134AB was designed to restrict proceedings at common law and "to place enormous pressure on parties to resolve their disputes without litigation". We agree with that submission, but with this qualification. In our view, the pressures imposed by the operation of subsections (12) and (28) seem much the greater upon the worker than upon the Authority. The worst that the Authority can do, in the end result, is to be ordered to pay the successful plaintiff's costs.[13] But for the plaintiff to get a favourable costs order, he or she, having been obliged to make a counter offer in response to the Authority's offer or deemed offer - the former of which may be for a nominal sum, and the latter of which is deemed to be zero - must then obtain judgment not simply for more than the Authority's offer or deemed offer but for more than 90% of the statutorily obliged counter offer after making allowance for all compensation received up to judgment.
21 In the event, if s 134AB(28)(d) could be given a construction such as Counsel for the appellant urged, there would be cause to adopt it. But for the reasons which we have given, we cannot accept that such a construction is available.