7.9.9 Arbitration costs

Where a dispute is determined in favour of the worker*:

  • WIC Workplace Injury Commission must award costs to the worker in accordance with the Costs Schedule, to be paid by the Agent or self-insurer.

  • the worker is requested to notify the Agent or Self-insurer of their costs and provide calculations and invoices, in accordance with the Costs Schedule. If the parties agree upon costs, no further notification to WIC is required.

WIRC s301

 

*A determination is considered in favour of a worker if WIC:

  • varies or revokes the decision of the Agent or Self-insurer that is the subject of the arbitration;

  • orders the Agent or self-insurer to pay compensation; and/or

  • orders the Agent or self-insurer to accept liability for all or part of a claim

If a dispute is determined in favour of the Agent/Self-insurer:

  • each party bears their own costs, (unless a claim was fraudulent or vexatious – see below heading Costs – Fraudulent or vexatious claims)

  • costs are paid out of the WorkCover Authority Fund, or by the Self-insurer

Costs which can be awarded

The Costs Schedule sets out the amounts that can be claimed as costs incurred in disputes at arbitration, including:

  • professional costs of legal practitioners relating to the arbitration

  • a worker’s lost wages

  • a worker’s travel, accommodation and meal expenses to attend arbitration

  • other disbursements (costs payable to third parties) such as fees to barristers, interpreters, and treaters for medical reports/records, other expert/medico-legal reports, hearing transcription fees and witness expenses

Note:

• The amount of costs awarded in the Costs Schedule may be less than the amount that the parties have actually incurred in the preparation of the dispute at arbitration.

• Self-represented workers, and workers represented by persons other than legal practitioners may claim disbursements and other expenses, but not claim costs for their time or the time of the non-legal representatives in preparing their dispute

• Costs must be reasonable/reasonably incurred in order to be recoverable

Costs - Fraudulent or vexatious claims

If WIC determines that a claim/referral for arbitration is fraudulent or vexatious, it may order the claimant A person who applies for WorkCover benefits. to pay the other party’s costs.

Claims which are considered to be fraudulent or vexatious include (but are not limited to) claims where an Arbitration Officer determines the claimant has:

  1. attempted to deceive or mislead WIC, the Arbitration Officer or the other party (for example, by knowingly relying on or producing fraudulent information);

  2. commenced or continued with arbitration where it was reasonably apparent they would have no reasonable prospect of success;

  3. lodged referrals for arbitration that are an abuse of process.

Payment for evidence

Parties bear the costs for obtaining the evidence they request, including witness costs and THP Treating Health Practitioner reports. If the worker has obtained evidence and the WIC determination is later in their favour, these costs can be awarded to the worker in line with the cost schedule.

There may be instances where the Agent or Self-insurer agrees to pay the reasonable cost of obtaining a necessary report or evidence the worker has requested in order to progress the dispute. For example, the Agent or Self-insurer may decide to pay the costs associated with an unrepresented worker obtaining a specialist report which is required to move the dispute along.

Ancillary determinations

An ancillary determination is a determination necessary for the purposes of achieving the arbitrated outcome, which WIC’s policies state may be a determination for the Agent or Self-insurer to pay the costs of obtaining further evidence, such as witness costs, written requests or documents, in order to progress the dispute.

Before making an ancillary determination, WIC will:

  • seek each parties views

  • ask the Agent or Self-insurer if they agree to pay the costs without them making an ancillary determination.

The WIC will confirm ancillary determinations in writing and include:

  • what further evidence is requested;

  • the amount to be paid and by whom;

  • the timeframe for the payment to be made.

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