The Supreme Court of Queensland recently considered an application made to contest a costs assessment wherein counsel fees were deemed to not be an allowable cost under Part 8, Division 2 of the Workers’ Compensation and Rehabilitation Regulation 2014 (QLD) (‘the Regulation’).  


The Plaintiff, Mark De Leige Anderson claimed damages for personal injuries against the Defendant, Pickles Auctions Pty Ltd, following a workplace incident. The parties compromised the proceeding prior to trial, with written terms of compromise entered into between the Plaintiff, Defendant, and WorkCover Queensland on 28 April 2021.  


The “Release and Discharge” executed by the parties dictated that WorkCover Queensland would pay the plaintiff’s costs of and incidental to the claim and proceeding, calculated in accordance Part 8, Division 2 of the Regulation, as agreed by the parties or, failing agreement, as assessed. The Plaintiff’s entitlement to same arose on account of him sustaining a DPI of 20% or more, pursuant to s 134 of the Regulations. 


The parties did not reach agreement on the calculation of the Plaintiff’s costs. Accordingly, an Assessor was appointed by the court.  


The Assessor’s certificate was issued on 30 August 2022. In assessing the Plaintiff’s costs, the Assessor concluded that counsel’s fees are not an allowable cost under Part 8, Division 2 of the Regulation. Additionally, objections to certain costs items on the basis that the costs of two counsel should not be allowable were also upheld by the Assessor. The Plaintiff challenged both aspects of the certificate, applying to the court for review of the assessment, pursuant to r 742 of the Uniform Civil Procedure Rules 1999 (QLD). 


The Plaintiff’s application was dismissed.  

As stated by Cooper J, the issues for determination by the court were as follows:  

a. Whether the Assessor erred in concluding that counsel’s fees were not allowable in an assessment of costs when calculated in accordance with Part 8, Division 2 of the Regulation; 

b. If so, whether the Assessor also erred in concluding that the costs of two counsel was not allowable; and 

c. What, if any, order should be made by the court.  


Cooper J identified ss 135, 136, and 137 of the Regulation as those pertinent to the issues for determination.  


As to the first issue for determination, Cooper J opined that the only indication of a Plaintiff’s entitlement to recover counsel’s fees which could be gleaned from the text of the relevant provisions were the opening words of s 137(1), being “[i]n addition to legal costs…”. On one view, if these words were to be construed broadly as including counsel’s fees, then that provision should be understood as permitting recovery of the various outlays specifically identified in ss 137(1)(a) – (i), as well as legal costs inclusive of counsel’s fees. Cooper J identified two deficiencies with such an argument.  


Firstly, a plain reading of the subject words in the context of their surrounding provisions suggested that those words have been used to refer to legal professional costs, distinct from outlays. His Honour noted that they followed after ss 135 and 136, which discuss the calculation of legal professional costs, and as such, s 137 should be understood to discuss those costs a Plaintiff is entitled to in addition to those calculated in accordance with ss 135 and s 136.  


Secondly, Cooper J noted that counsel fees are typically described as an “outlay” within an assessment of costs. In response, the Plaintiff submitted that the term “legal costs” is used inconsistently throughout the Regulation, and as such, it cannot be presumed that this term has been used in a technical or legal sense to exclude counsel’s fees. Whilst his Honour opined that there was some force to this submission, he concluded that this inconsistency did not override a plain reading of the subject words in s 137(1).  


In light of the above, Cooper J concluded that a claimant is not entitled to recover counsel’s fees as part of their costs calculated in accordance with Part 8, Division 2 of the Regulation. It therefore followed that the Plaintiff’s application should be dismissed.  


Notwithstanding the court’s conclusion in respect of counsel fees and Part 8, Division 2 of the Regulation, the court went on to consider the second issue for determination. The parties agreed that the relevant test as to the permissibility of the costs of two counsel was whether the costs were “necessary or proper for the attainment of justice”, or otherwise “for enforcing or defending the rights of the party whose costs are being assessed.” 


Cooper J noted that whether the cost of two counsel met the relevant test must be assessed with reference to the circumstances of the proceeding. His Honour noted a number of relevant factors, such as the volume of material to be considered, the number of witnesses to be examined, the extent of cross-examination that was required, the length of the matter/hearing, the complexity of the issues of fact or law that arose in the matter, and the involvement of charges of fraud.  


The court ultimately concluded that the Assessor’s decision to uphold WorkCover’s objection in respect of the costs of two counsel was not manifestly wrong. 

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