Counsel’s fees under the Workers’ Compensation and Rehabilitation Regulation

Anderson v Pickles Auctions Pty Ltd [2022] QSC 265

Cooper J was asked to review a cost assessor’s decision regarding a claim under the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) and costs under the Regulation.  The claim was compromised before trial, and the parties executed a Release and Discharge, which stated the defendant would pay the plaintiff’s costs under the Regulation to be agreed upon or assessed. The assessment did not allow counsel’s fees under Part 8, Division 2 of the Regulation.

The plaintiff argued that counsel’s fees should be allowed as an outlay and sought a review under r. 742 Uniform Civil Procedure Rules 1999 (UCPR).  Cooper J found in favour of the assessment, holding that construction of the Regulation does not enable a claimant to recover counsel’s fees and is compatible with the legislative objective of promoting the settlement of claims without proceedings needing to be filed in court. Consequently, the plaintiff’s application to review the assessment was dismissed.

His Honour did clarify that it would not exclude an assessment of a plaintiff’s costs under an indemnity order pursuant to s.312  of the WCRA. Likewise, his Honour made plain that the Regulation did not override the cost provisions of the UCPR.

David Cormack 

Brisbane Barrister and Mediator

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