Hallam v Return to Work Corporation of South Australia - [2018] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Permission to Appeal in Private)
HALLAM v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2018] SASC 92
Judgment of The Honourable Chief Justice Kourakis
29 June 2018
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - OTHER MATTERS
Application for permission to appeal against both the substantive decision and associated ancillary costs order of the Full Bench of the South Australian Employment Tribunal.
Held, per Kourakis CJ, refusing permission to appeal:
1. The applicant has insufficient prospects of success on appeal against the decision of the Full Bench to warrant a grant of permission to appeal.
Return to Work Act 2014 (SA) s 23, s 24, s 27, s 28, s 97, s 106; South Australian Employment Tribunal Rules 2017 r 5; South Australian Employment Tribunal Act 2014 (SA) s 92, referred to.

HALLAM v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2018] SASC 92
Civil: Application for permission to appeal in private

KOURAKIS CJ: This is an application for permission to appeal against both the substantive decision and associated ancillary costs order of the Full Bench of the South Australian Employment Tribunal (the Tribunal).
The subject matter of the appeal before the Full Bench of the Tribunal was the summary dismissal by a Deputy President of the Tribunal of an application brought pursuant to s 24 of the Return to Work Act 2014 (SA) (RTWA) that the appellant be paid the sum of $145 to procure the mechanical servicing of his motor vehicle. The applicant had been in the habit of servicing his motor vehicle before suffering a compensable injury which precluded him from doing so. The applicant claimed that the servicing of the motor vehicle was necessary so that he could drive himself to employment opportunities and medical appointments.
The Deputy President dismissed the application, holding that the reasonableness of the provision of services is an objective one and that the ability to perform the servicing of a motor vehicle is a specialised skill not generally possessed by members of the community. The Deputy President concluded:[1]
I am satisfied that the cost of the labour of motor vehicle servicing is not a matter which is envisaged by s 24(1)(f) of the RTWA. I am not satisfied that it is reasonable for the compensating authority to meet the cost of the labour of motor vehicle servicing.
[1] Hallam v Return to Work SA [2017] SAET 47 at [15] per Farrell DPJ.
The Full Bench dismissed the appeal against the Deputy President’s determination on the ground that:[2]
On the material in the application before the Judge and on the basis of the arguments put to her, there was nothing that enabled her to conclude that the provision of the servicing of Mr Hallam’s motor vehicle could assist him in achieving the best practicable levels of physical and mental recovery or it would facilitate his timely, safe and durable return to his pre-injury work, or his restoration to the workforce and community at large.
[2] Hallam v Return to Work SA [2017] SAET 162 at [29] per Gilchrist DPJ, Calligeros DPJ and Lieschke DP.
The relevant provisions of the RTWA provide as follows:
23—Object
(1)The object of this Part is to establish a system that seeks to ensure that a worker who suffers a work injury—
(a)     achieves the best practicable levels of physical and mental recovery; and
(b)     returns to the worker's pre‑injury work or, if that is not reasonably practicable, is in any event restored to the workforce and the community in a timely, safe and durable way.
(2)     Without limiting subsection (1), the aim is—
(a)     to intervene and provide services under this Part as early as is reasonably practicable after a worker suffers a work injury; and
(b)     in connection with paragraph (a)—
(i)     to return the worker to work in the worker's pre‑injury duties; or
(ii)if it is not reasonably practicable to return the worker to work in the worker's pre‑injury duties—to return the worker, either temporarily or permanently, to other suitable duties with the worker's pre‑injury employer; or
(iii)if subparagraphs (i) and (ii) are not reasonably practicable—to return the worker, either temporarily or permanently, to work with another employer; or
(iv)if subparagraphs (i), (ii) and (iii) are not reasonably practicable—to maximise the worker's independent functioning as a member of the community; and
(c)     to ensure that any employer, worker or other person involved in a recovery or return to work process cooperate to achieve the object referred to in subsection (1).
(3)This Part may apply to a worker even if it has not been finally established that the worker's injury is a work injury.
24—Early intervention, recovery and return to work services
(1)The services that may be provided under this Part (recovery/return to work services) may do 1 or more of the following:
…
(f)    provide equipment, facilities and services to assist a worker to cope with any injury at home or in the workplace;
(g)     provide assistance to a person who may be in a position to help a worker to overcome or cope with an injury;
(h)     provide the necessary and reasonable costs (including costs of travel, accommodation and child care) incurred by a worker in order to receive or participate in any services.
(4)The Corporation must take reasonable steps to ensure that a reasonable level of recovery/return to work services are provided to an injured worker taking into account the nature and extent of the worker's injury, the circumstances of the worker, and any other relevant factor.
(5)Recovery/return to work services will be provided by persons accredited, approved or appointed by the Corporation.
I make the following brief observations concerning the basis on which this claim was pursued.
First, the worker did not press his claim pursuant to s 24(1)(h) of the RTWA.
Secondly, Part 3 of the RTWA is headed ‘Early intervention, recovery and return to work’. It comprises sections 23 and 24 of the RTWA together with provisions for the making by the Corporation of recovery/return to work plans and the assignment of return to work coordinators. Save for s 24(1)(h) of the RTWA, it does not appear to confer a right to financial compensation. Rather, it is directed to the provision of actual services by the Corporation. To that end, s 27 empowers the Corporation to enter into arrangements for the provision of services. Section 28 empowers the Minister, on the recommendation of the Corporation, to publish scale of charges for the provision of those services. Section 97 of the RTWA prescribes as a reviewable decision ‘a decision about the nature or scope of recovery/return to work services provided or to be provided’. Again, save for s 24(1)(h), the emphasis appear to be on the provision of actual services.
Thirdly, neither the decision of the Deputy President nor that of the Full Bench explore the contextual relationship and consequences to s 24(1)(h).
The reasonable costs of travel will depend on the nature and extent of any compensable injury from which a worker suffers. On some occasions, the cost of a taxi or similar hire car fare may be a reasonable cost. For less significant injuries, the cost of public transport might suffice. In other cases, the provision of an appropriate mileage fee to reflect the true costs of travel may be payable if a worker uses his or her private car. The mileage fee basis of reimbursement for private car use would avoid the problem of a compensation payment for the servicing of a car subsiding other, personal uses of the vehicle.
The worker’s application in this case did not provide any evidential or even theoretical basis on which it might be determined that payment of the cost of servicing the car was a reasonable and better alternative to a payment pursuant to s 24(1)(h) of the RTWA. In those circumstances the applicant has insufficient prospects of success on an appeal against the decision of the Full Bench to warrant a grant of permission to appeal.
The Full Bench awarded costs in the lump sum amount of $450 for the hearing of the appeal before it.[3] In so doing, the Full Bench relied on r 5 of the South Australian Employment Tribunal Rules 2017, which provides:
(1)Tribunal proceedings must be conducted efficiently and in a manner proportionate to the matter in dispute. Proportionality means ensuring that legal costs and other costs incurred in connection with a proceeding are reasonable and proportionate to the importance and complexity of the issues in dispute.
(2)Legal practitioners and other persons authorised to represent a party in proceedings must use their best endeavours to facilitate the just, quick and cost effective resolution of the real issues in proceedings before the Tribunal.
[3] Hallam v Return to Work SA [2018] SAET 93 at [20] per Gilchrist DPJ, Calligeros DPJ and Lieschke PP.
The applicant’s primary contention is that r 5 is inconsistent with s 106(1) of the RTWA which provides that a party it entitled, subject to certain exceptions which are not here applicable, to his or her reasonable costs of proceedings. The applicant’s contention is that r 5 impermissibly derogates from his entitlement to reasonable costs pursuant to s 106(1) of the RTWA. The applicant’s proposition is not arguable. Section 92(k) of the South Australian Employment Tribunal Act 2014 (SA) (the SAET Act) provides that the Tribunal may make rules ‘regulating costs and providing for the assessment and settling of costs’. Section 106(1) of the RTWA and s 92(k) of the SAET Act must be read together. Section 106(1), in conferring a right to ‘reasonable’ costs, sets a standard which is of variable content. Section 92(k) of the SAET Act empowers the Tribunal to make rules providing for greater certainty as to the settling of costs by regulating their adjudication within the outer bounds of what is reasonable. Rule 5, in insisting on proportionality, is such a rule. It is not arguable that r 5 is calculated to result in an award of costs which is less than ‘reasonable’ for the purposes of s 106(1) of the RTWA Act.
I refuse permission to appeal.