| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 (WA) CITATION : MULLALLY and WORKCOVER WA [2013] WASAT 63 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 3 MAY 2013 FILE NO/S : VR 40 of 2013 BETWEEN : PATRICK MULLALLY Applicant
AND
WORKCOVER WA
Respondent
Catchwords: Vocational regulation - Review - Application for registration as independent registered agent under Workers' Compensation and Injury Management Act1981 (WA) - Preliminary issue - Whether application can be approved when applicant is a 'prohibited person' Legislation: Legal Profession Act 2008 (WA), s 18(1)
Workers' Compensation and Injury Management Act 1981 (WA), s 5(1), s 57BA(4), s 57BA(4)(b), s 76, s 76(6), s 176, s 177, s 181, s 182G, s 182J,
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s 182O, s 182S, s 182S(3), s 182S(4), s 182ZO, s 182ZT, s 182ZV, s 190, s 193, s 195, s 195(3), s 195(4A), s 261, s 266, s 277, s 277(1)(f), s 277(2)
Workers' Compensation and Injury Management Regulations 1982 (WA), reg 26, reg 27A(c), reg 28, reg 28(2)(c), reg 29(1), reg 29(1)(a), reg 29(1)(b)
Workers' Compensation Reform Act 2004 (WA) Result: Application for registration as an independent registered agent cannot be approved because applicant is a prohibited person
Application for review dismissed
Summary of Tribunal's decision: Mr Patrick Mullally, who was formerly a legal practitioner, was struck off the Roll of Practitioners and is therefore a 'prohibited person' under the Legal Profession Act 2008 (WA). Consequently (and because his name was not removed from the Roll at his own request), he is also a 'prohibited person' and therefore cannot represent a party at any meeting with a conciliation officer or conciliation conference, or at any hearing or conference before an arbitrator, under s 182S and s 195 of the Workers' Compensation and Injury Management Act 1981 (WA).
Mr Mullally applied to the Tribunal for review of the decision of WorkCover WA to refuse his application to be registered as an independent registered agent under the Workers' Compensation and Injury Management Act 1981. WorkCover WA raised a preliminary issue as to whether Mr Mullally's application can be approved.
The Tribunal determined that, on the proper interpretation of regulations made under the Workers' Compensation and Injury Management Act 1981, Mr Mullally's application cannot be approved, because he is a 'prohibited person' for the purposes of s 182S and s 195. The Tribunal therefore dismissed the application for review and affirmed WorkCover WA's decision to refuse to register Mr Mullally as an independent registered agent.
Category: B
Representation: Counsel: (Page 3)
Respondent : Mr NP van Hattem
Solicitors:
Applicant : N/A
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 85 ALJR 1233
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REASONS FOR DECISION OF THE TRIBUNAL:
Preliminary issue 1 Mr Patrick Mullally seeks review by the Tribunal of the decision by WorkCover WA to refuse his application to become registered as an independent registered agent under the Workers' Compensation and Injury Management Act 1981 (WA) (WC and IM Act) and the Workers' Compensation and Injury Management Regulations 1982 (WA) (WC and IM Regs). 2 Mr Mullally was formerly a legal practitioner. In April 1994, Mr Mullally was convicted after a trial in the District Court on one count of false pretences and was then suspended from legal practise by the Legal Practitioners' Disciplinary Tribunal. In October 1999, Mr Mullally was convicted after a trial in the District Court on one count of stealing. On 2 May 2001, Mr Mullally was struck of the Roll of Practitioners. He is, therefore, a 'prohibited person', as defined in s 18(1) of the Legal Profession Act 2008 (WA) (LP Act), and consequently (and because his name was not removed from the Roll at his own request) also a 'prohibited person' within the meaning of that expression in s 182S(3) and s 195(3) of the WC and IM Act; see the definition of 'prohibited person' in s 182S(4) and s 195(4A) of the WC and IM Act. 3 Section 182S(1) of the WC and IM Act states that '[a]t any meeting with the conciliation officer or conciliation conference, a party to the dispute may appear in person or may be represented by' four categories of persons, including 'a registered agent'. Similarly, s 195(1) of the WC and IM Act states that '[a]t any hearing or conference before an arbitrator, a party to the proceeding may appear in person or may be represented by' the same four categories of persons, including 'a registered agent'. However, subsection (3) of both s 182S and s 195 of the WC and IM Act states that: A prohibited person cannot represent a party. 4 WorkCover WA raises a preliminary issue for determination by the Tribunal which can be restated as follows: Whether the application by Mr Mullally to be registered as an independent registered agent can be approved given that he is a prohibited person. (Page 5)
5 The parties agree that if the answer to the preliminary issue is in the negative, then the application for review must be dismissed. 6 I will address the preliminary issue after referring to the legislative background and the parties' submissions.
Legislative background 7 Part XI of the WC and IM Act, which comprises s 176 s 225, is entitled 'Dispute resolution'. Division 1 of Pt XI contains general provisions in s 176 and s 177 which state as follows: 176. Exclusive jurisdiction of arbitrators (1) In this Part dispute means (a) a dispute in connection with a claim for compensation, or the liability to pay compensation, under this Act; (b) a dispute in connection with an obligation imposed under Part IX; (c) any other dispute or matter for which provision is made under this Act for determination by an arbitrator; (d) any other matter of a kind prescribed by the regulations. (2) A proceeding for the determination of a dispute is not capable of being brought other than under this Part. (3) Subject to this Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes. 177. Object of this Part (1) The object of this Part is to provide a fair and cost effective system for the resolution of disputes under this Act that (a) is timely; and (b) is accessible, approachable and professional; and (c) minimises costs to parties to disputes; and (d) in the case of conciliation, leads to final and appropriate agreements between parties in relation to disputes; and (e) in the case of arbitration, enables disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable. (Page 6)
(2) Dispute resolution authorities and officers of WorkCover WA mentioned in section 181(2)(b)(ii) or 182ZO(2)(b)(ii) are to have regard to the object of this Part when they perform their functions. 8 Division 2 of Pt XI of the WC and IM Act is entitled 'Requirements before commencing proceeding' and comprises s 178 which sets out requirements in relation to a notice of injury and a claim for compensation, s 179 which concerns service of the notice of injury, and s 180 which concerns the provision of relevant documents by parties. Section 180(2) enables a worker who has suffered an injury, or the worker's legal practitioner or agent, to request the employer or its insurer to provide a copy of relevant documents in their possession. Section 180(6) confers power on an arbitrator to require the production of documents under s 180. 9 Division 3 of Pt XI of the WC and IM Act is entitled 'Conciliation' and comprises s 181 s 182ZN. Section 181(1) establishes '[a] service called the Workers Compensation Conciliation Service'. Section 5(1) of the WC and IM Act states that, in the Act, unless the contrary intention appears, 'Conciliation Service means the Workers' Compensation Conciliation Service established under section 181'. 10 Section 182G(1) states that, when an application for conciliation is accepted, unless the Director of the Conciliation Service determines that no matter in dispute is suitable for conciliation, the Director is to allocate the dispute to a conciliation officer. Section 182(I)(1) states that the conciliation officer 'is to make all reasonable efforts to bring the parties to the dispute to an agreement acceptable to all of them'. Section 182J confers coercive powers on a conciliation officer to require a party to a dispute to attend at a meeting with the conciliation officer or a conciliation conference, and a party to the dispute or their representative to answer any questions put by the conciliation officer and to produce documents to the conciliation officer or consent to another person who has relevant documents producing them to the conciliation officer. Section 182S, which was referred to earlier, concerns representation at any meeting with a conciliation officer or conciliation conference. Section 182O(1) states that conciliation of a dispute ends when: (Page 7)
(c) the time limit for conciliation, as provided or extended under the conciliation rules, has expired. 11 Division 4 of Pt XI of the WC and IM Act is entitled 'Arbitration' and comprises s 182ZO s 219 inclusive. Section 182ZO(1) establishes '[a] service called the Worker's Compensation Arbitration Service'. Section 5(1) of the WC and IM Act states that, in the Act, unless the contrary intention appears, 'Arbitration Service means the Workers' Compensation Arbitration Service established under section 182ZO'. Under s 182ZT, if a dispute has not been resolved by conciliation, a party to the dispute may apply to the Registrar of the Arbitration Service for determination of the dispute by arbitration. Section 182ZV(1) requires the Registrar to allocate the dispute to an arbitrator for determination. 12 Section 185(1) states that the arbitrator to whom a dispute is allocated 'is to determine the matter or matters in dispute in accordance with this Act and the arbitration rules'. Section 190(1) authorises an arbitrator to 'give directions at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding'. Among other coercive powers, an arbitrator may order the production of documents or other material (s 193) and may call any person to give evidence, examine any witness, examine or crossexamine any witness, and require any witness to answer questions (s 203). Section 195, referred to earlier, concerns representation at any hearing or conference before an arbitrator. 13 Part XV of the WC and IM Act is entitled 'Costs' and comprises s 261 s 276. Section 266 states as follows: An agent is not entitled to be paid or recover any amount for an agent service unless the agent is a registered agent. 14 The terms 'agent' and 'agent service' are defined in s 261 as follows: agent means a person who acts as agent for a person in connection with a dispute under this Act; agent service means any service performed by a person (a) in the person's capacity as an agent; and (b) in or for the purposes of a proceeding before a dispute resolution authority; (Page 8)
15 The term 'dispute resolution authority' is defined in s 5(1) of the WC and IM Act to mean the Director of the Conciliation Service, the Registrar of the Arbitration Service, a conciliation officer or an arbitrator. 16 Part XVI of the WC and IM Act is entitled 'Registered agents' and comprises s 277 which states, in part, as follows: (1) This section applies to the following persons (2) A person to whom this section applies may apply for registration as an agent in accordance with the regulations. (3) Regulations are to (a) provide for a scheme of registration of persons for the purposes of this section and the procedure for obtaining registration; … 17 Part IV of the WC and IM Regs comprises the regulations for the purposes of s 277 of the WC and IM Act. Regulation 27A of the WC and IM Regs prescribes three classes of persons for the purposes of s 277(1)(f) of the Act, including: (c) persons to whom section 277 of the Act does not otherwise apply and who act, or propose to act, as independent agents in the Conciliation Service or the Arbitration Service. 18 Regulation 26 of the WC and IM Regs states that, in Pt IV of the Regulations, the term 'independent agent means a person in a class of persons prescribed under regulation 27A(c)'. 19 Regulation 28(1) of the WC and IM Regs requires that an application for registration must be made to WorkCover WA in a form approved by WorkCover WA. Regulation 28(2a) requires that an application by an independent agent must be accompanied by, among other things: (c) a statement setting out the qualifications of the applicant, or any experience of the applicant, that demonstrates sufficient knowledge of the workers' compensation jurisdiction to enable the applicant to represent a party effectively; 20 Finally, reg 29(1) of the WC and IM Regs states as follows: WorkCover WA may refuse to register an applicant if (Page 9)
21 The expression 'fit and proper person' is defined in reg 26 as follows: fit and proper person, in relation to an applicant or registered agent, means a person who satisfies WorkCover WA that he or she (a) by reason of qualification or experience or both, has sufficient knowledge of the workers’ compensation jurisdiction to represent a party effectively; and (b) is of good character;
Parties' submissions 22 WorkCover WA submits that, on the proper interpretation of reg 29(1) of the WC and IM Regs and related provisions of the legislation, it (and, consequently, the Tribunal on review) 'must refuse an application from a prohibited person either because a prohibited person cannot duly make an application, or because a prohibited person is not a fit person'. WorkCover WA submits that the prohibited person exclusions from representation at any meeting with the conciliation officer or conciliation conference (under s 182S(3) of the WC and IM Act) and at any hearing or conference before an arbitrator (under s 195(3) of the WC and IM Act) would prevent Mr Mullally from undertaking any 'agent service' as defined in s 261. WorkCover WA also submits that, if a prohibited person were allowed to perform some of the preliminary work for a client in relation to a workers' compensation dispute, and the dispute proceeded to conciliation, the prohibited person would then be required to withdraw and brief a registered agent or legal practitioner which 'would produce an unnecessary delay and duplication of work contrary to the objects and intention of the Act'. 23 Mr Mullally concedes that, in consequence of s 182S(3) and s 195(3) of the WC and IM Act, he cannot, as a prohibited person, represent a party at any meeting with a conciliation officer or conciliation conference or at any hearing or conference before an arbitrator. He submits, however, correctly, that there is no provision of the WC and IM Act or Regs which expressly precludes a prohibited person from being registered as a registered agent. He also submits that the role of a registered agent is broader than representation before conciliation officers and arbitrators, and extends to advice and assistance to injured workers. He relies on (Page 10)
s 57BA(4)(b) of the WC and IM Act which requires that a notice given to a worker by an employer's insurer or by the employer is to include: A statement to the effect that the worker can seek advice or assistance from the worker's trade union organisation, a legal practitioner or a registered agent; 24 Mr Mullally also refers in this regard to the definition of 'agent service' in s 261 of the WC and IM Act and submits that it: has a wide and broad application to a whole range of work which an agent can carry out. Some of the areas it can embrace but not limited to are taking instructions from a worker or an employer/insurance company, writing to medical practitioners for medical reports and information on an injured worker, preparing witness statements and proofs of evidence whether before or after proceedings have commenced. 25 Mr Mullally also draws attention to the provisions and items contained in the Workers' Compensation (Legal Practitioners and Registered Agents) Costs Report 2011 (Costs Report) and Workers Compensation (Legal Practitioners and Registered Agents) Costs Determination 2011 (Costs Determination). The Costs Report is a report required to be submitted by the Costs Committee to the responsible Minister in relation to the accompanying Costs Determination and the reasons for its decisions in respect of the Costs Determination. The Costs Report states that, during the process of reviewing the previous scale of costs, the Costs Committee was mindful that the WC and IM Act is intended to: 26 The Costs Determination was made by the Costs Committee under s 271 of the WC and IM Act and fixes maximum costs of legal services and agent services 'in respect of work carried out for the purposes of proceedings before a WorkCover WA dispute resolution authority': cl 3(1). Clause 8 of the Costs Determination provides that a registered agent may charge 50% of the hourly rate applicable to Senior Practitioners under the Magistrates Court costs scale. Clause 9 of the Costs Determination prescribes the maximum hours for which a legal practitioner or registered agent may charge a client 'in relation to conciliation, arbitration and StandAlone Items' as set out in the table to the clause which is in the following terms:
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Table to Clause 9
WORKERS' COMPENSATION SCALE OF COSTS 2011
| Item | Description | Maximum
Allowable
Hours | | 1 | Obtaining instructions from client and attempts to resolve the dispute by negotiation prior to involvement in a proceeding may be claimed once only regardless of the point at which the practitioner or agent becomes involved. | 4 | Conciliation Service | 2 | Preparation of and lodging an application to the Conciliation Service including relevant supporting documentation in approved form in accordance with the Conciliation Rules. | +3 | | 3 | Where the dispute is resolved after the lodging of an application and prior to a conciliation conference, including all necessary preparation and documentation in approved form in accordance with the Conciliation Rules. | +2 | | 4 | Where the dispute is resolved at or after a conciliation conference, including all necessary preparation and documentation in approved form in accordance with the Conciliation Rules.
Add for each additional conference | +5
+3 | Arbitration Service | 5 | Preparation of and lodging an application or reply to the Arbitration Service including all necessary documentation in approved form in accordance with the Arbitration Rules. | 8 | | 6 | Where the dispute is resolved after the lodging of an application to the Arbitration Service and prior to the arbitration hearing, including all necessary preparation and documentation in the approved form and attendance at any directions hearing in accordance with the Arbitration
Rules. | +5 | | 7 | Where the dispute is resolved at or after an arbitration hearing, including all necessary preparation and documentation in the approved form in accordance with the Arbitration Rules.
Add for each additional hearing day. | +7
+7 | Stand Alone Items Applicable to conciliation or arbitration service as appropriate
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| 8 | Settlement of the claim by agreement under Schedule 2 or redemption and filing a section 76 memorandum of agreement.
(excluding disbursements which are to be paid in
accordance with item 10) | 10 | | 9 | Allowances for witnesses. The amount of any costs to be paid in respect of work done by a practitioner in conducting any proceedings in a dispute may include a reasonable
allowance for
(a) witnesses called because of their professional, scientific or other special skill or knowledge; and
(b) witnesses called other than those covered in paragraph (a). In fixing an allowance for witnesses under paragraph (b) the taxing officer may have regard to the amount of salary, wages or income (if any) actually lost by the witness, and any expenses in respect of meals, lodging and travel reasonably and necessarily incurred by the witness in attending the proceedings and justify by voucher. | | 10 | Disbursements (not to include counsel fee and must be justified by voucher).
Such amount that is necessarily and reasonably incurred under the circumstances. | 27 Mr Mullally emphasises, in particular, Items 1 and 8 in the table to cl 9 and argues that a registered agent who is a prohibited person can undertake that work. 28 Mr Mullally also submits that 'the scope of work outside the conferences and hearings contemplated by s 182S and s 195 can be seen from the statistics kept by [WorkCover WA]'. He notes that, in 2010/2011, there were 38,190 workers' compensation claims lodged in Western Australia, of which only 1,706 were lodged as disputes and potentially would involve the need for conciliation and arbitration. He notes that, in the same year, there were 4,687 claims which were settled 'which shows a large number of cases which would involve work outside of the conciliation and arbitration conferences and hearings process and which would involve work of a registered agent under Items 1 and 8 of the scale mentioned above'. (Page 13)
Can Mr Mullally's application be approved? 29 As the High Court of Australia held in AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 85 ALJR 1233 at [10]: What is comprehended by [a legislative provision] falls to be determined by construing its terms in the context of the [legislation] as a whole and by reference to its evident purposes. (Citations omitted). 30 On the proper interpretation of reg 29(1) of the WC and IM Regs and related provisions of the legislation, when viewed in the context of the WC and IM Act and Regs as a whole, and by reference to the evident purposes of the workers' compensation dispute resolution system established by the legislation and the role of independent registered agents within that system under the legislation, Mr Mullally's application to be registered as an independent registered agent cannot be approved for four related reasons. 31 First, an application can only be 'duly made' for the purposes of reg 29(1)(a) if the applicant is a person who proposes to and can lawfully act as a registered agent in the Conciliation Service or the Arbitration Service. For the following reasons, Mr Mullally, as a prohibited person, does not propose to and cannot lawfully act as an independent registered agent in the Conciliation Service and the Arbitration Service under the legislation. 32 As noted earlier, s 277(2) of the WC and IM Act enables '[a] person to whom this section applies' to apply for registration as an agent in accordance with the WC and IM Regs. As also noted earlier, s 277(1)(f) of the WC and IM Act states that the section applies to 'a person, or a person in a class of persons, prescribed by the regulations'. None of the other categories of persons set out in s 277(1) is potentially relevant to Mr Mullally. Regulation 27A of the WC and IM Regs prescribes three classes of persons for the purposes of s 277(1)(f) of the Act, including the following: (c) persons to whom section 277 of the Act does not otherwise apply and who act, or propose to act, as independent agents in the Conciliation Service or the Arbitration Service. 33 Under reg 26 of the WC and IM regs, a person in a class of persons prescribed under reg 27A(c) is an 'independent agent'. Mr Mullally's application is for registration as an independent agent. (Page 14)
34 It is apparent from the objects of Pt XI stated in s 177 of the WC and IM Act and the provisions of that Part referred to above, that the legislation envisages and creates a single system for workers' compensation dispute resolution, which is to operate in a speedy manner and minimise costs to the parties, and in which conciliation and arbitration play a central role. Conciliation is the means by which conciliation officers seek to resolve workers' compensation disputes by bringing the parties to a consensual agreement. Arbitration is the means by which arbitrators, who have exclusive jurisdiction to examine, hear and determine workers' compensation disputes, resolve disputes by determination. Mr Mullally does not propose to act as an independent agent, because he is precluded from doing so, in any conciliation conference or arbitration hearing. Representing parties in these dispute resolution processes, which are central to the system, is a core role of registered agents. 35 Mr Mullally also does not propose to act as an independent agent, because he is precluded from doing so, in other hearings which take place before arbitrators under the legislation. Mr Mullally submits that an area in which an independent agent could work without offending the proscriptions on representation under s 182S and s 195 of the WC and IM Act is in relation to the registration of a memorandum of agreement as to compensation under s 76. However, it is necessary for a registered agent to be able to represent a party at a hearing before an arbitrator, because the Director of the Conciliation Service may refuse to record a memorandum of agreement received for registration under s 76(6) 'and in that case shall refer the matter to the Registrar [of the Arbitration Service] who shall allocate it to an arbitrator to make such orders (including an order as to the sum already paid under the agreement) as the arbitrator thinks fit'. Furthermore, s 76(8) provides that an arbitrator may, upon application being made by either party within six months after a memorandum of agreement has been recorded in the register, 'order that the record be removed from the register on proof to the arbitrator's satisfaction that the agreement was obtained by fraud or undue influence or other improper means, or that the amount of compensation … is inadequate or excessive, and may make such order (including an order as to any sum already paid under the agreement) as under the circumstances the arbitrator thinks just'. 36 Furthermore, as noted earlier, arbitrators have power to order the production of relevant documents under s 180(6) of the Act. A registered agent may therefore be required to represent a client before an arbitrator (Page 15)
to obtain or resist production of documents by an employer or their insurer before proceedings are commenced. 37 As Mr Mullally is legally precluded from representing a party at a meeting with a conciliation officer or conciliation conference and at any hearing or conference before an arbitrator, he does not relevantly propose to and cannot act as an independent agent. To act 'as [an] independent [agent] in the Conciliation Service or the Arbitration Service', for the purposes of reg 27A(c) of the WC and IM Regs, a person must be lawfully capable of representing a party at a meeting with a conciliation officer or a conciliation conference and at any hearing or conference before an arbitrator. 38 Furthermore, reg 28(2)(c) of the WC and IM Regs also contemplates that an application for registration as an independent agent may only be made by a person who can lawfully represent a party at a meeting with a conciliation officer or a conciliation conference and at any hearing or conference before an arbitrator. This is apparent from the words 'knowledge of the workers' compensation jurisdiction' and 'represent a party effectively'. The expression 'the workers' compensation jurisdiction', consistently with the object of the dispute resolution provisions under the Act, envisages a single dispute resolution jurisdiction in which independent registered agents can represent parties. The verb 'to represent' is relevantly defined in The Macquarie Dictionary (5th ed, 2009) at page 1404 to mean 'to stand or act in the place of, as a substitute, a proxy or agent'. A person who, as a prohibited person, cannot represent a party to a dispute at a meeting with a conciliation officer or conciliation conference, or who cannot represent a party to a proceeding at any hearing or conference before an arbitrator, cannot 'represent a party effectively', that is, cannot effectively act as their agent in the workers' compensation jurisdiction. 39 The second related reason why the application by Mr Mullally cannot be approved is that he cannot be a 'fit and proper person' to be a registered agent, as required by reg 29(1)(b) of the WC and IM Regs. As noted earlier, the expression 'fit and proper person' is relevantly defined in reg 26 of the WC and IM Regs as follows: (Page 16)
(b) is of good character; 40 For reasons discussed earlier, Mr Mullally, being a prohibited person, is legally incapable of representing a party 'effectively' in the workers' compensation jurisdiction. 41 The third related reason why Mr Mullally's application cannot be approved is that, for reasons discussed earlier, if a person is not lawfully capable of acting as a registered agent, then their application to be a registered agent must necessarily be refused by WorkCover WA. Put another way, no discretion to approve the application can arise in the case of a prohibited person. 42 Finally, the interpretation set out above is consistent with and promotes the evident purpose of the dispute resolution provisions in Pt XI of the WC and IM Act, whereas the interpretation advanced by Mr Mullally would have the opposite effect. As noted earlier, the legislation envisages and creates a single system for workers' compensation dispute resolution, which is to operate in a speedy manner and minimise costs to parties, and in which conciliation and arbitration play a central role. It would be contrary to the legislative purpose to enable a prohibited person to be registered as an independent agent, because it would create two categories of registered agents, one of whom cannot represent clients in conciliation or arbitration or in other hearings before arbitrators, and would lead to delay and additional cost where a dispute requires conciliation, arbitration or a hearing otherwise before an arbitrator. 43 Thus, although Mr Mullally is correct in his submission that there is no provision of the WC and IM Act or Regs which expressly precludes a prohibited person from being registered as a registered agent, on the proper interpretation of reg 29(1) of the WC and IM Regs and related provisions of the legislation, an application for registration by a prohibited person cannot be approved. 44 Mr Mullally's submissions referring to a worker's right to seek 'advice and assistance' from a registered agent under s 57BA(4)(b), the definition of 'agent service' in s 261, the provisions and items in the Costs Report and the Costs Determination, and statistics as to the number of matters resolved by conciliation and arbitration in comparison to the number of workers' compensation claims lodged and disputes resolved, do not warrant a different result in terms of the proper interpretation of the legislation. For reasons discussed earlier, the legislation contemplates and creates a single system for workers' compensation dispute resolution. The (Page 17)
'advice or assistance' that a worker can obtain from a registered agent is, having regard to the provisions of the WC and IM Act and Regs discussed earlier, in respect of dispute resolution in the Conciliation Service and the Arbitration Service in which conciliation and arbitration are central features. A person cannot relevantly provide 'assistance' in respect of these services unless the person can represent a party in these processes. 45 The definition of 'agent service' in s 261 of the WC and IM Act requires that the service be performed 'in or for the purposes of a proceeding before a dispute resolution authority'. As discussed, under the legislation, representing a client at any meeting with a conciliation officer or conciliation conference and at any hearing or conference before an arbitrator are central aspects of 'a proceeding before a dispute resolution authority' in the workers' compensation dispute resolution system. 46 The Costs Report states that the Costs Committee was mindful that the WM and IM Act is intended to discourage unnecessary delay and needless preparation of documentation. The Costs Determination envisages that the various items in the table to cl 9 involve a series of potential steps undertaken by a registered agent in representing a client in a workers' compensation dispute. It contemplates that a registered agent is able to undertake work on behalf of a client not only in relation to items 1 and 8 in the table to cl 9, but also in relation to each of the other items. The Costs Report and the Costs Determination are therefore consistent with the interpretation arrived at earlier. 47 Finally, although the statistics show that a high proportion of workers' compensation disputes are ultimately resolved by negotiations, the role of an independent registered agent requires that the person be lawfully capable of representing a party at a conciliation, arbitration or other hearing before an arbitrator.
Conclusion 48 It follows that the answer to the preliminary issue is that the application by Mr Mullally to be registered as an independent registered agent under the WC and IM Act cannot be approved because he is a prohibited person for the purposes of s 182S and s 195 of the WC and IM Act.
Orders 49 The Tribunal makes the following orders: 1. The preliminary issue is answered as follows: (Page 18)
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