Minutes Legal Liaison Group 21 March 2014, 8.30 am 10.00 am VWA Level 17 Board Room Chair David Krasnostein Minutes Joy Marshall Participants Richard Derks (ALA Ryan Carlisle Thomas); Simon Guthrie (Ryan Carlisle Thomas); Harry Gill (LIV Robinson Gill); John Salanitri (Maurice Blackburn); Meghan Hoare (Slater & Gordon); Peter Zaparas (Zaparas Lawyers); Ian Dallas (Arnold Dallas McPherson); Genevieve Collins (Lander & Rogers); Matthew Maher (Wisewould Mahony); Julie Hobbs (TAC). VWA Attendees/ Apologies David Krasnostein; Marlo Baragwanath; Clare Amies; Peter McNally; Colin Bellis; Greg Brown and Joy Marshall Denise Cosgrove (VWA) and Liberty Sanger (Maurice Blackburn) Time No. Item Who David Krasnostein acknowledged Marlo Baragwanath s outstanding contribution to the VWA. 1. Minutes of the previous meeting RESOLVED to endorse the Minutes. Actions arising from the previous meeting The two outstanding actions were discussed under item 2. 2. Peter McNally provided the group with the following updates: a. Key issues paper Court Listings o There is a strong focus on resolving matters at the pre-litigated stage. There has been an increase in the number of pre-litigated decisions which has resulted in lower number of Originating Motions (OMs) lodgements. This assists with the Court s challenges in relation to managing the Court lists. o The County Court is listing cases at least 12 months into the future which is partially leading to an increase in the number of unresolved OMs. Lodgements and Impairment Assessments PwC 1
o The growth in lodgements over a period of time has been where the impairment assessment is between 5% - 10% and more recently where there has been an impairment assessment of less than 5% or where the claim has not gone through the impairment process. o Discussion followed that the impairment assessment is one indicator of whether an injury was serious, There has also been a change in the way the impairment is assessed which may be a reason why the impairment assessment is lower, although the trend in the data goes back before the changes in respect of the new impairment assessment test. Lodgements and Weekly Activity o Peter McNally discussed the number of serious injury applications having regard to weekly compensation which was an action item from the previous meeting. o There has been a growth in the claims that are not active on weekly with less than 75 weeks of compensation paid. There are less people continuing on payments beyond 130 weeks relative to those in the past. Lodgements for Pain and Suffering Only o The proportion of serious injury applications lodged for pain and suffering only has dropped back to around 30%. o There are more pain and suffering notices being issued by the VWA. There is still a large proportion of unresolved matters within this cohort of claims and there are changes from when the Notice is given to when the outcome is known based on the additional information exchanged. b. Common law Overview o This report now presents the regular data diagrammatically as a pie chart. c. VWA Policy and Procedure Update o Peter McNally highlighted the following updates: 1. Recent Cost Court Decision of Coker o The decision of Coker in relation to the Litigated Legal Cost Order changed the evidentiary requirements in relation to Counsel s fee being incurred. The VWA s position was that the fee is incurred when the brief to Counsel is delivered. o If plaintiff firms wish to rely on Coker then proof (including copies of individual costs agreements) would be required. This may also include clarifying what portion of counsel fees relates to the uplift under a no-win no-fee costs agreement. o The decision of Coker also allowed the costs of the taxation to be paid in addition to the fixed components already included in the LCO. The VWA will allow additional fees for the costs of taxation (most matters settle without the need for taxation). 2. Revised Medical Authority 2
o Peter McNally was meeting with the AMA in April 2014 to highlight the changes made. Plaintiffs solicitors have been completing the voluntary section in around 60% of matters. 3. Use of two counsel in OMs o VWA has reduced its reliance on two counsel in OMs. It was anticipated that this would lead to a similar change by plaintiff firms but this has not occurred. For the last 24 months, VWA have been contesting payment for two counsel used by plaintiffs in OMs. However, most County Court judges are now certifying the cost of two counsel. VWA will now only challenge plaintiffs use of senior counsel in OMs on a case by case basis. RESOLVED to note the Key Issues paper, common law overview and the VWA policy and procedure update. 3. Common law all in offers o Harry Gill raised the issue that from time to time VWA s defendant firms try to settle damages matters with a fixed amount for costs. o Discussion followed about whether this could be done or not. The VWA considered that the statute allows this to occur. o The plaintiffs solicitors believe that the principle is about delivering compensation and that a matter should not be delayed because of the expectation that costs must also be agreed. o The VWA considers that these issues need to be considered from both the plaintiffs and defendants perspectives. There is a range in relation to damages outcomes and that each end of the range could lead to situations where there is or isn t a costs entitlement (in particular given the costs entitlements associated with achieving 90% of the Statutory Counter Offer). o The VWA will consider this issue and ensure that there is consistency across the defendants solicitors in ensuring costs arguments are not used inappropriately to delay settlements. Peter McNally RESOLVED to note the concerns raised on all in settlements. 4. Supreme Court roll overs o Colin Bellis raised the issue that in the Supreme Court to assist with managing lists matters are being rolled over for around 5-6 days because no judge is available. o Discussion followed that this kind of listing was similar to matters on circuit, although cases are not grouped together in the Supreme Court. The fundamental difference is also that a single judge is allocated to a circuit unlike the Melbourne Supreme Court listings. o The VWA is concerned about Counsels fees being paid even before a judge is allocated to a case. o The plaintiffs solicitors were of the view that having the matter rolled over was better than the matter being marked not reached and having the matter moved to a further date. 3
RESOLVED to note and monitor the current approach adopted by the Supreme Court in listing cases. 5. Update from LIV committees/forums o Harry Gill provided the group with the following update: The LIV had discussions about various issues with the main focus being in respect of the matter of Coker. Court conferencing was also discussed. Conferencing will be raised at the Operational Meeting following the LLG meeting. RESOLVED to note the update from the LIV committees/forums. 6. Update from ALA committees/forums o Richard Derks provided the group with an update on the increase in the number of damages writs being contested has led to more doctors being subpoenaed. It is difficult to get doctors to agree to come to Court. Doctors are getting frustrated because they are getting letters saying that they are required to come to Court and when the matters resolve they are no longer required. There is a need to manage this issue better. o David Krasnostein said that the VWA is concerned that if good doctors choose not to take on VWA s clients then injured workers will not receive appropriate medical care. o Discussion ensued about bureaucracy and paperwork which annoys doctors. The plaintiffs solicitors raised the concern about neurosurgeons receiving letters which ask them to consider other options in relation to treating patients in light of research done in England. Clare Aimes stated that a Committee has been set up to consider approval of surgery and included working with surgeons to ensure that VWA s Agents are able to respond to requests for surgery appropriately. o Clare Aimes advised that work is being done in relation to a survey of doctors and that issues related to legal matters could be included with appropriate prioritisation. o David Krasnostein said that the VWA will come back to the LLG members with a presentation to look at the legal process with a view to resolving the issues/problems raised by doctors. RESOLVED to note the update from the ALA committees/forums. RESOLVED that at the next LLG meeting, the VWA will present on various initiatives being undertaken with doctors and invite feedback on how all parties could engage effectively with doctors in the legal environment. 7. Legislative Update and ACA Review o Marlo Baragwanath provided an update on WIRC, the national OH&S reforms and review of the Regulation on Manual Handling. RESOLVED to note the Legislative update and ACA Review. 4
8. Chief Executive Update o Marlo Baragwanath on behalf of Denise Cosgrove advised that the Victorian Government announced that if they are re-elected then the VWA would move to Geelong. The Opposition has not made a formal statement. o The VWA is reviewing the Agent model and the Health and Safety Business Unit with a view to efficient use of resources. RESOLVED to note the Chief Executive Update. 9. General Business o Peter McNally reminded participants that legal practitioners should avoid calling the VWA s Advisory service for legal advice. o John Salanitri asked whether self- insurers are moving to ComCare. David Krasnostein noted the VWA were monitoring how this progressed but at this stage there is no indication of the number of applications to exit the Scheme. All 10. Close of Meeting o The chair closed the meeting at 9.35 am. The next meeting is scheduled to take place on 11 July 2014. 5