Orr v Direct Couriers (Australia) Pty Ltd
[2004] NSWWCCPD 28
•20 May 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCC PD 28
APPELLANT: William Douglas Orr
RESPONDENT: Direct Couriers (Australia) Pty Ltd
INSURER:NRMA Workers Compensation (NSW) (No.2) Pty Ltd
FILE NUMBER: WCC 12768-2003 (WCC 5261-2002)
DATE OF ARBITRATOR’S DECISION: 14 November 2003
DATE OF APPEAL DECISION: 20 May 2004
SUBJECT MATTER OF DECISION: Jurisdiction to appeal a decision of the Registrar; whether costs can be claimed for multiple events exceeding the maximum in Clause 119 and Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers
REPRESENTATION: Appellant: Steve Masselos & Co. Solicitors
Respondent: Bartier Perry Solicitors
ORDERS MADE ON APPEAL: The decision of the Registrar is confirmed.
No order is made as to costs.
BACKGROUND
On 2 December 2003 William Douglas Orr (‘the Appellant/the Worker’) filed an appeal against a decision of the Registrar (by her delegate) of the Workers Compensation Commission dated 14 November 2003.
The Respondent to the Appeal is Direct Couriers (Australia) Pty Ltd (‘the Respondent’) and the relevant insurer is NRMA Workers Compensation (NSW) (No.2) Pty Ltd (‘the Insurer’).
The appeal relates to an ‘Application to Resolve Dispute’ lodged by the Worker and resolved by a Commission Arbitrator on 9 April 2003. The Certificate of Determination issued on that date, details orders, made by the consent of the parties, as to payment of weekly compensation to the Worker. The parties then reached an agreement as to compensation for whole person impairment and pain and suffering, and registered a Section 66A Lump Sum Agreement on 20 May 2003. The parties could not reach an agreement as to costs and requested that the matter be referred to the Registrar for a costs assessment.
The Registrar delegated the assessment of costs to an Arbitrator pursuant to section 371(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The Certificate of Determination of Applicant’s Costs, dated 14 November 2003, records the Registrar’s orders as follows:
The costs are assessed as follows:
1.The Applicant’s costs are assessed at $6,418.50 (inclusive of GST)
2.The Applicant’s costs of the Assessment are assessed at nil
No order as to costs of the assessment.
Determination
The total costs payable by the Respondent to the Applicant are therefore determined in the amount of $6,418.50 (inclusive of GST).
The Appellant seeks to have the decision of the Registrar revoked and a new decision made in its place awarding him $8,143.75 in costs under the Compensation Costs Table. The total amount in dispute in this appeal is $1,725.25.
The Respondent argues that the decision should be confirmed and the Appellant pay the costs of the appeal.
The appeal was referred to me on 21 April 2004.
ISSUES IN DISPUTE
There are essentially two errors of law submitted by the Appellant in the appeal. They may be summarised as follows:
1. The Registrar, by her delegate, erred in the interpretation of Schedule 6 of the Workers Compensation Regulation 2003 (‘the Regulation’) in finding that:
· the maximum costs recoverable under the Compensation Costs Table (‘the Table’) cannot be awarded on multiple occasions; and
· the maximum total costs recoverable cannot exceed the maximum allowance under column 4 of the Compensation Costs Table in Schedule 6 of the Regulation, and
2. The Registrar, by her delegate, erred in failing to give adequate reasons for the decision.
The Appellant has also alleged a denial of procedural fairness, but has not made substantive submissions on this ground of appeal.
ON THE PAPERS REVIEW
Neither the Appellant nor Respondent have made any submissions as to whether the matter may be determined on the papers. The Registrar is a member of the Commission (section 368 of the 1998 Act).
Section 354(6) of the 1998 Act provides; “If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing”.
The Commission’s files in the substantive matter and the costs dispute are before me on the appeal. I also have written submissions on the substantive issues.
I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
JURISDICTION
Part 19 of the Regulation (made pursuant to section 347 of the 1998 Act) provides for the determination of ‘costs’ in matters before the Commission. The process for the assessment of costs, by the Registrar, is set out at Division 4 of Part 19. Subdivision 5 of Division 4, Clause 119 provides as follows:
119Appeal against decision of Registrar as to matter of law
(1)A party to an application who is dissatisfied with a decision of the Registrar as to a matter of law arising in the proceedings to determine the application may, in accordance with the Rules of the Commission, appeal to the Commission constituted by a Presidential member against the decision.
(2)The appeal is to be in the form approved by the Commission and be accompanied by the fee approved by the Commission from time to time.
(3)After deciding the question the subject of the appeal, the Commission constituted by a Presidential member may, unless it affirms the Registrar’s decision:
(a) make such determination in relation to the application as, in its opinion should have been made by the Registrar, or
(b) remit its decision on the question to the Registrar and order the Registrar to re-determine the application.
(4)On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.
The Workers Compensation Commission Rules 2003 do not make any provision for the making of an appeal pursuant to Clause 119 of the Regulation.
The Commission does not have a prescribed form or fee for the filing of an appeal pursuant to Clause 119.
The parties were invited to make submissions on the Commission’s jurisdiction under Clause 119 of the Regulation. The submissions filed did not adequately address this issue. The Appellant made lengthy submissions on the application of section 351 of the 1998 Act, ‘Reference of Question of Law on Compensation Claim to Commission Constituted by Presidential Member’, and section 352, ‘Appeal Against Decision of Commission Constituted by Arbitrator’. The Respondent submitted that where an appeal may be made pursuant to Clause 119 of the Regulation, it must also satisfy section 352(2) of the 1998 Act.
Neither section 351 nor section 352 of the 1998 Act confer jurisdiction upon a Presidential Member to determine this matter. The reasons for this may be set out briefly, as follows;
· The determination was made by the Commission constituted by the Registrar, (through her delegate) (pursuant to Clause 114 of the Regulation), not by the Commission constituted by an Arbitrator.
· The fact that the Registrar delegated her power, under Clause 114, to an Arbitrator does not alter the constitution of the Commission for the purpose of a determination of costs pursuant to Clause 119. Sections 351 and 352 therefore are not applicable.
· This reasoning is supported by the terms of Clause 118 of the Regulation, which provides that: “The Registrar’s determination of an application is binding on all parties to the application and no appeal or other review lies in respect of the determination, except as provided by this Division”.
· In any event, I note that section 351 is applicable only as to a matter of law that arises ‘in proceedings’ and in this matter the proceedings have been concluded by the determination. Section 352 does not permit an appeal from an Arbitrator only in relation to costs, Sam Borg v Garnville Pty Limited [2003] NSW WCC PD 30].
I am satisfied that I have jurisdiction to hear the appeal, pursuant to Clause 119 of the Regulation.
RELEVANT LAW
Costs in Commission proceedings are governed by the 1998 Act and the Regulation.
Section 337 of the 1998 Act provides as follows:
337 Maximum lawyer and agent costs
(1) The regulations may make provision for or with respect to the following:
(a)fixing maximum costs for legal services or agent services provided to a claimant, an employer or an insurer in or in connection with any workers compensation matter or work injury damages matter,
(b)fixing maximum costs for matters that are not legal services or agent services but are related to a claim for compensation or work injury damages (for example, expenses for witnesses or medical reports).
(2) Regulations under this section can fix costs and amounts by reference to costs and amounts fixed by regulations under the Legal Profession Act 1987.
(3) A legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section.
(4) An agent is not entitled to be paid or recover for an agent service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section.
(5) This section does not entitle a legal practitioner to recover costs for a legal service or matter that a court or costs assessor determines were unreasonably incurred.
(6) The power under this section to make regulations fixing maximum costs for services or matters includes power to make regulations to provide that no amount is recoverable for a particular service or matter or class of services or matters, with the result that a legal practitioner or agent is not entitled to be paid or recover any amount for the service or matter concerned.
Clause 84 of the Regulation provides, where relevant, as follows:
84 Fixing of maximum costs recoverable by legal practitioners and agents
(1) The costs that are recoverable, and the maximum costs that are recoverable, for:
(a)legal services or agent services provided in or in relation to a claim for compensation, and
(b)matters that are not legal or agent services but are related to a claim for compensation,
are the costs set out in Schedule 6, except as otherwise provided by this Part.
Note. The effect of this clause is that a legal practitioner or agent cannot recover any costs in relation to a claim for compensation unless those costs are set out in Schedule 6, except as otherwise provided in this Part.(2). . .
(3). . .
(4). . .
Further to Clause 83 and 84 of the Regulation, Schedule 6 sets out the maximum costs that may be recovered in a compensation matter brought under the Workers Compensation Acts (the Workers Compensation Act 1987 (‘the 1987 Act’) and the 1998 Act). For the purpose of costs it divides the dispute resolution process in the Commission into stages and then into discreet events or activities. This allows for costs to be claimed in relation to events as the matter progresses through the Commission’s processes.
Clause 1(2) of Schedule 6 of Part 23 of the Regulation provides, inter alia, that “[t]he maximum costs for an activity or event described in a Part of the table and carried out in or in relation to a claim made or to be made in respect of a particular injury are as” set out in clause (2)(a)–(j), which follow. Schedule 6 refers to ‘the Table’, being the Compensation Costs Table appearing at the end of the Schedule, which is set out in columns.
Clause 2 of Schedule 6 of the Regulation concerns ‘Multiple Claims or Disputes in Respect of an Injury to be Treated as a Single Claim or Dispute’, and provides, (subject to some specified exceptions in Clause 2(2)):
2 Multiple claims or disputes in respect of an injury to be treated as a single claim or dispute
(1) In the event that more than one claim is made in respect of a particular injury, or more than one dispute arises in respect of a claim, the maximum total costs for a type of activity or event in respect of the injury, regardless of how many times the activity or event is carried out, is the maximum set out in Column 4 of the table in relation to that type of activity or event.
Clause 3 of Schedule 6 provides as follows:
3 Restrictions on costs
(1) Costs specified in a Part of the table (other than Part 2A, 2B or 10) are payable only for an activity or event that is carried out in the period commencing when the first activity or event specified in that Part is commenced and concluding on either the completion of the last activity or event specified in that Part or finalisation of the matter (whichever occurs first).
(2) Costs specified in Part 2A or 2B of the table are payable only for an activity or event that is carried out in the period commencing when the first activity or event specified in that Part is commenced and concluding on:
(a)the referral of a dispute in respect of the claim to the Commission, or the seeking of an order from the Commission, or
(b)the completion of the last activity or event specified in that Part, or
(c)finalisation of the matter,
whichever occurs first.
(3) If costs specified in Part 3 of the table are payable in relation to a matter, costs specified in Parts 2A, 2B and 4 of the table are payable only in respect of the matter if the matter is subsequently referred for determination after the conduct of an expedited assessment by the Registrar.
(4) Costs specified in Item 10.01 in the table are payable no more than once in respect of any claim.
(5) Costs specified in Item 10.02 or 10.03 in the table may be payable more than once in respect of any claim.
Claims made in relation to Items 2.01 and 4.05 are in dispute in this matter. These items are set out in the Table as follows.
Compensation Costs Table
Column 1 Column 2 Column 3 Column 4 Item No Activity or event Maximum Maximum total amount for for type of individual activity/event activity/event 2.01 Obtaining instructions from client $250 per hour $500 4.05 Reviewing documentation produced under a direction of the Commission, exchanging information with the other parties and obtaining further instructions from client $250 per hour $500
As the Commission has only been in operation since 1 January 2002, there is scant authority on the meaning and interpretation to be given to the specific events based costs regime contained in the Schedule. The Court of Appeal decision in Orellana Fuentes v Standard Knitting Mill Pty Limited & Anor; Carey v Blasdom Pty Limited T/as Ascot Freight Lines & Anor [2003] NSWCA 146 (‘Fuentes’) is the only authority exactly on point although the facts of that case presented the Court with different items in the Table, for consideration (Item 4.11 of Schedule 6).
Fuentes was an appeal from a decision of the President on a question of law. The Appellant argued that Sections 248(1) and 337(1) of the 1998 Act were constitutionally invalid and that Item 4.11 of Schedule 6 of the Regulation was ultra vires the Regulation making power contained in section 337 of the 1998 Act. The Court rejected both submissions. Ipp JA, with whom Spigelman CJ and Handley JA agreed, observed that:
. . . The costs regime contained in Sch 6 is part of the scheme of procedural mechanisms and other incentives designed to promote the settlement of disputes before formal hearings take place. This explains why Sch 6 provides for substantially more recoverable costs for proceedings than precede formal hearings. (at [73])
and further:
. . . With regard to the Commission . . . Parliament has placed considerable emphasis on conciliation proceedings and informal hearings in an attempt to provide mechanisms and incentives for settlement of disputes before the disputes are formally disposed of in the traditional way by the adversarial process. Workers compensation is well suited to this policy. The costs structure contained in Sch 6 is part of this system and creates an additional incentive to parties, lawyers and agents to strive for consensual settlements prior to formal hearings... I am not persuaded that this policy offends the interests of justice. at [108])
THE SCHEDULE 6 ERROR
Submissions
The Appellant submits that the Registrar, by her delegate, made an error of law in the interpretation of Schedule 6 of the Regulation, by prohibiting multiple claims on the events based costs schedule, for situations where a single event, such as a conference, happened many times in a particular case. The Appellant states “that a Solicitor is entitled to recover costs, in accordance with the Compensation Costs Table contained within schedule 6, for an activity/event which is identified by an Item number, on each occasion that the activity / event takes place” (to a maximum hourly rate or fee for each occasion). Each and every item recoverable under the Compensation Costs Table (‘the Table’), with the exception of 10.01, allows costs recovery on multiple occasions, provided the event was reasonable. Parliament only intended to limit recovery of costs on each individual occasion an event is performed, not on the totality of performances. The Appellant claims that the Court of Appeal decision in Fuentes, discussed above, “is authority for the proposition that you can multiply claim over and above the maximum specified in Column 4” (sic).
The Appellant argues that Column 4 of the Table is silent as to whether an activity/event can be claimed on multiple occasions, and recovery of costs as such is not precluded where an event previously undertaken is undertaken again. The maximum should be applied each time the event occurs, not to the combination of the occurrences. The Appellant submits that while Clause 84 of the Regulation stipulates that solicitors cannot claim costs for matters not covered by Schedule 6, it does not expressly preclude solicitors from making multiple claims on any one event type. Clause 3(4) of Schedule 6 of the Regulation places restrictions on costs, but does not stipulate that all events cannot be claimed on multiple occasions.
The Appellant argues that the Registrar erred in law by placing the costs cap on the total for each type of event, rather than renewing the payment for each occasion on which that event occurred. The Appellant claims Fuentes is clear authority for the proposition that a party may recover for multiple occurrences of an event under the one heading, the total of which exceeds the total allowed for each separate occasion.
The Appellant submits that it would be unjust to expect solicitors to carry out reasonable and warranted legal services, when there is no prospect of costs recovery. Where two possibilities for statutory interpretation arise, the reasonable interpretation will be accepted over the absurd, or irrational or unjust (Australian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 at 294; Australian Boot Trade Employees Federation v Whybrow & Co. (1930) 11 CLR 311 at 341, and Public Transport Commissioner of NSW v J Murray More (NSW) Pty Limited (1975) 6 ALR 27 at 282. Statutes should be interpreted according to the parliament’s intention, and are to be given the construction with the least inconsistency and most harmony (Amalgamated Society of Engineers v Adelaide Steamship Co. Limited (1920) 28 CLR 129 and Brisbane City Council v Attorney General (Qld) (1908) 5 CLR 695). The Appellant claims that Parliament could not have intended anything other than to provide proper, reasonable and adequate return for professional services, skill and time rendered (and the Minister’s Second Reading speech on the Workers Compensation Legislation Amendment Bill 2001 is of no assistance).
The Respondent submits that the Arbitrator has made no error of law and has correctly interpreted the Compensation Costs Table to mean that the maximum allowed in column 4 is the maximum permissible for an event type, regardless of the number of events that took place under that heading. The Respondent submits that Clause 2 of Schedule 6 of the Regulation makes it “abundantly clear that the maximum amounts set out in column 4 (as they apply to items 2.01, 4.05 and most other items) cannot be claimed on multiple occasions no matter how many times the activity or event is carried out and irrespective of whether there is one or more than one claim…”
Further, the Respondent submits that Clause 3 of Schedule 6 makes reference to the time periods in which costs under parts 2A, 2B or 3 may be made, and that the Appellant’s claims under items 2.01 and 4.05 are now outside that time period. Items 2.01 and 4.05 in the Table could not be claimed on multiple occasions as these are generic activities that occur in all proceedings, and to not pay mind to the maximums would render the maximums meaningless. However, items such as 4.08, 4.09, and 4.12 can be claimed to the maximum for each separate occasion on which they occur, as these activities are contemplated to occur on multiple occasions. The legislation could not have intended that the maximums set for items 2.01 and 4.05 be so easily exceeded.
Discussion and Findings on the Schedule 6 Error
I do not accept the Appellant’s claim, that “each and every item, with the exception of 10.01, can be recovered on multiple occasions, provided the activity/event was reasonable and necessary subject only to the restriction that the Maximum Amount specified in Column 4 is not exceeded on each occasion”. To adopt this interpretation is to effectively deny the words of Clause 1(2) of Schedule 6, and the words at the head of Column 4, any meaning. In my view Schedule 6, and in particular Items 2.10 and 4.05 of the Table, are not open to varying interpretations and the intention of the legislature to limit costs in a particular way is clear. All individual ‘activities or events’, described in Column 2 of the Table, that come under that event/activity, described in Column 3 of the Table, must not exceed the maximum total for the ‘type’, as prescribed in Column 4 of the Table, not merely the totals for the individual ‘events’, as the Appellant suggests. The words of Clause 1(2) are critical, “the maximum costs for an activity or event described in a Part of the Table and carried out in or in relation to a claim made or to be made in respect of a particular injury ” (emphasis added). Maximum costs attach to the event/activity in the Table for a ‘claim’ made in respect of a particular injury, not, as the Appellant suggests, for each time the event or activity is claimed.
Clause 1 may be contrasted with Clause 2, which concerns ‘Multiple claims or disputes’. A ‘claim’ is a ‘claim for compensation’ (see Clause 83 of the Regulation, section (1) of the 1998 Act). Clause 2 of Schedule 6 the Regulation expressly states that where more than one claim is made in relation to the one injury, the Regulation limits recoverable costs to the maximum allowed for an activity type, regardless of the number of individual events performed under that type. The Appellant’s preferred interpretation of the Table in Schedule 6 could, in light of Clause 2(2) of Schedule 6, lead to the curious result that costs in relation to a single claim arising out of a particular injury, may exceed costs in relation to multiple claims or disputes, arising out of a particular injury.
Clause 1 of Schedule 6 of the Regulation is not as specific as Clause 2, when stipulating that a party may receive costs “up to the maximum total costs for that type of activity or event”. However, this may be because the words at the top of Column 4 of the Table convey the same meaning, ie ‘’Maximum total for type or activity/event”. When read in light of Clause 2, it can be reasonably inferred that the two clauses have a similar purpose. I accept the Respondent’s submission, that the legislative intention is clear; the monetary values set out in Column 4 of the Table, are the maximum total for an event type in any particular claim, regardless of the number of individual activities that may take place under that event heading.
It is not necessary, for the purposes of this appeal, to determine the issue of whether items such as 4.08, 4.09, and 4.12 can be claimed to the maximum for each separate occasion on which they occur. The Appellant’s claim, that the Court of Appeal in Fuentes, broadly authorises multiple claims above the maximum set out in Column 4 of the Table is untenable. In Fuentes, Ipp JA commented that a party could recover $190 (the maximum cost recoverable for the event), by reporting back to a client after a conference and an additional $190 could be claimed for reporting to the client after the arbitration. In Fuentes the Court noted that “[b]y reason of the lack of certainty in the information so given to the Court it is necessary to construe Sch 6 substantially by reference to its own terms, and not by reference to any longstanding or accepted practice adopted in proceedings before the Commission”. The construction of 4.12 given by the Court in Fuentes, turned on the specific words of 4.12, in particular, ‘conference or arbitration’.
To guide and assist Arbitrators, parties and legal practitioners, in the conduct of Commission proceedings, the President of the Commission has issued a ‘Guideline for the Practice of Conciliation/Arbitration’ (‘the Guideline’). A telephone conference occurs prior to a conciliation/arbitration hearing. The conciliation and arbitration stages of the Commission’s process occur generally occur on the same day. Schedule 6 does not refer specifically to a ‘telephone conference’ however it is reasonable to assume that a ‘conference’ referred to in 4.12 covers the same process, as distinguished from a later conciliation/arbitration hearing. Items 2.01 and 4.05, which are at issue in this dispute, are not expressly referable to the different stages of Commission proceedings.
The Registrar, by her delegate, has not erred in the interpretation of Schedule 6 of the Regulation.
REASONS ERROR
Submissions
The Appellant submits that the Registrar made an error of law by not giving adequate reasons for the decision. The Appellant submits that the Arbitrator erred in stating that neither the Act nor the Regulation assists the Appellant, without reference to any specific provisions in support of that contention. The Appellant submits that if the Arbitrator did consider any of the Applicant’s submissions, he has provided inadequate explanations/reasons as to if, or why, he did not accept them. The Appellant relies upon the decision in Absolon v NSW TAFE [1999] NSWCA 311 to assert that “Arbitrators in the Commission have a statutory obligation to provide adequate reasons for their decisions, and a failure to do so constitutes and [sic] error of law”. The parties must be reasonably able to discern the reasoning behind the Arbitrator’s decision, and the application of the law that guided him to his decision (Ayse Cakir v Western Sydney Area Health Service [2004] NSW WCC PD 1).
The Respondent submits that the Arbitrator’s reasons were adequate, as he referred to the Table and also stated that he agreed with the submissions of the Respondent. The Respondent argues that this decision does not concern a “matter of law” as required by Clause 119 of the Regulation, as inadequacy of reasons is not an error of law, so leave to appeal should not be granted.
The Respondent submits that the Arbitrator has conveyed the basis upon which he came to his decision by making reference to the maximums allowed at items 2.01 and 4.05 of the Table. Alternatively, if the Arbitrator’s reasons are found to be inadequate, the Appellant has not demonstrated that the inadequacy resulted in the Arbitrator failing to exercise his statutory duty to fairly and lawfully determine the costs assessment in this case (see M&S Shipman Pty Ltd v Larry Matters [2003] NSW WCC PD 19). The decision has been made according to the law (clauses 2 and 3 of Schedule 6 of the Regulation), and in accordance with the Compensation Costs Table, and there has been no injustice to either of the parties.
Discussion and Findings on Reasons Error
The Registrar, or her delegate, has an obligation at common law (Absolon v NSW TAFE [1999] NSWCA 311), and by statute (Regulation 115), to provide reasons for a determination as to costs payable in compensation proceedings in the Commission. This Regulation provides as follows:
115Reasons for determination
The Registrar must ensure that a certificate issued under clause 114 that sets out his or her determination is accompanied by:
(a)a statement of the reasons for the Registrar’s determination, and
(b)the amount of costs the Registrar determines is fair and reasonable, and
(c)if the Registrar declines to assess a bill of costs under clause 107—the basis for doing so, and
(d)if the Registrar determines that a term of a costs agreement is unjust—the basis for doing so, and
(e)a statement of any determination under clause 109 that interest is not payable on the amount of costs assessed or, if payable, of the rate of interest payable.
What amounts to ‘adequate’ reasons depends upon the context of the decision maker and the nature of the decision. The Commission is not a court and proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits.
Contrary to the Respondent’s submission, the failure to provide adequate reasons constitutes an error of law and may be a ground to set aside the Arbitrator’s decision. However to succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application. Even where the reasons of an arbitrator are found to be inadequate, an Appellant is still required to show that a different decision would have been made but for the inadequacy, in order to have the decision overturned (YG v Minister for Community Services [2002] NSWCA 247, see discussion in Christopher Michael McMahon v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimble II” [2003] NSW WCC PD 22).
In my view it is not necessary for the Registrar, or her delegate, to set out lengthy written reasons for a decision in order to comply with the Act and the Rules. To do so would be unreasonable and inconsistent with the objectives of the Commission in providing a speedy resolution to workers compensation disputes. The Reasons given by the Registrar’s delegate in this matter are brief, however in my view they meet the requirements of Regulation 115. The decision-maker has specifically addressed the two items of most contention, namely 2.01 and 4.05 of the Table in Schedule 6. It is apparent from the Reasons that the decision-maker saw no ambiguity in the Act or the Regulation in relation to the application of Schedule 6. It was not necessary to set out the parties’ submissions at length. To note that he ‘agreed with the submissions of the Respondent’ was, in the context of this decision, adequate. Clearly if the decision-maker takes the view that a matter is not a significant issue then it is unlikely that he or she will address it in detail. Whether or not the decision-maker was wrong as to the identification of relevant issues, or misinterpreted the law (the ground discussed above) is different to an allegation of inadequacy of reasons. The totality of the costs claim in this matter is $8,143.00 of which $1,725.25 was seriously in dispute. It is unreasonable to suggest that the Registrar should provide lengthy written reasons to support this decision.
The Registrar, by her delegate, has not failed to give adequate reasons for the decision.
PROCEDURAL FAIRNESS ERROR
The Appellant submits that the Arbitrator: did not consider his submissions in reply to the submissions of the Respondent; considered none of his submissions at all, and failed to give appropriate or due weight to his submissions. Without giving further particulars, the Appellant also argued that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine this matter.
There is no evidence that the Arbitrator failed to consider the Appellant’s submissions. The Arbitrator has summarised and paraphrased, albeit briefly, the Appellant’s primary submission as the second paragraph under each of the headings of ‘item 2.01’ and ‘item 4.05’.
In any event this claimed ground of appeal demonstrates a lack of understanding of the rules of the procedural fairness. The common rules of procedural fairness provide that a person who is to be affected by a decision has a right to notice of the case against him, or her, to be heard in relation to it, and to have the matter decided by an unbiased decision-maker. Express statutory provisions may modify the common law requirements. There is no doubt that the Commission is bound to comply with the demands of procedural fairness. The exact content of procedural fairness in Commission proceedings is determined by the provisions of the 1998 Act, the nature of the decision under review and the demands of the instant case (Kioa v West (1995) 159 CLR 550). A denial of procedural fairness is an error of law going to jurisdiction (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11).
Both parties understood the matters that were in dispute and were given ample opportunity to make submissions in relation to them. There is no suggestion that the decision-maker was biased. The fact that the Arbitrator may not have agreed with the Appellant’s interpretation of Schedule 6 of the Regulation does not mean that he was denied procedural fairness. Nor does the fact that the decision-maker placed more or less weight on the Appellant’s submissions that the Appellant believed was due. To the extent that the Appellant’s complaint under this head of appeal is really a reflection of dissatisfaction with the adequacy of the Arbitrator’s reasons, it is dealt with above.
The ground that the Registrar denied the Appellant procedural fairness is not made out.
DECISION
The decision of the Registrar is confirmed.
COSTS
The Respondent submits that this appeal is frivolous because the Appellant never had any chance of success due to s352(2) of the 1998 Act not being satisfied; there were never any prospects of being granted leave to appeal, and the appeal has been brought without proper justification. The Respondent further submits that the Appellant has delayed the finalisation of this matter through the neglect and incompetence of its solicitor, in not properly considering whether there were proper grounds to apply for leave to appeal. The Respondent also seeks an order that the Appellant’s legal practitioner be ordered to indemnify the Respondent against the whole of the costs payable by the Respondent to the Respondent’s solicitor in relation to the appeal.
As stated above, Section 352 of the 1998 Act has no application to this appeal.
While I have found, ultimately, that the Appellant’s claims are without merit, I am not satisfied that the appeal was frivolous. I am also not persuaded that any orders should be made as against the Appellant’s solicitor.
I make no order as to the costs of the appeal.
Dr Gabriel Fleming
Deputy President
20 May 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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