Return to Work Corporation of South Australia v Heinjus

[2020] SASC 83

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Permission to Appeal in Private)

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v HEINJUS

[2020] SASC 83

Judgment of The Honourable Chief Justice Kourakis

20 May 2020

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - COSTS

Application brought by the Return to Work Corporation of South Australia (RTW) against a decision of the Full Bench of the South Australian Employment Tribunal (the Full Bench and the Tribunal respectively).

That decision overturned decisions made by a Commissioner and a Deputy President awarding costs in the sum of $1,712 to the respondent for his solicitor’s participation in a compulsory conciliation conference. The Full Bench set aside the decision and awarded the maximum sum payable in accordance with a general principle, in claiming for the costs of a compulsory conciliation conference, that if the amount claimed meets certain requirements and exceeds the maximum amount payable, an applicant is entitled to receive the maximum which applies from time to time.

RTW contends that that general principle is inconsistent with reg 44 of the Return to Work Regulations 2015 (SA).

Held, granting permission to appeal:

1.  The question raised is plainly of general application and is of public importance.

2.  Permission to appeal is granted.

Return to Work Act 2014 (SA) s 106; Return to Work Regulations 2015 (SA) reg 44, referred to.
Heinjus v Return to Work Corporation of South Australia [2020] SAET 24; Heinjus v Return to Work Corporation of SA [2018] SAET 153, discussed.

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v HEINJUS
[2020] SASC 83

1. KOURAKIS CJ:  This is an application brought by the Return to Work Corporation of South Australia (RTW) for permission to appeal to the Full Court against a decision of the Full Bench of the South Australian Employment Tribunal (the Full Bench and the Tribunal respectively) dated 14 February 2020.[1]   By that decision, the Full Bench overturned decisions made by a Commissioner and a Deputy President[2] of the Tribunal which had awarded costs in the sum of $1,712 to Mr Heinjus, the respondent, for his solicitor’s participation in a compulsory conciliation conference. 

   [1]    Heinjus v Return to Work Corporation of South Australia [2020] SAET 24.

   [2]    Heinjus v Return to Work Corporation of SA [2018] SAET 153.

2. Section 106(6) of the Return to Work Act 2014 (SA) (the RTW Act) provides that, subject to any regulations made under it, an award of legal costs cannot exceed 85 per cent of the amount that would be allowable under the relevant Supreme Court scale. Regulation 44(1)(b) of the Return to Work Regulations 2015 (SA) (the Regulations) provides that the costs awarded to a party for participation in compulsory conciliation proceedings should not exceed $745 (indexed), or, if the Tribunal determines that a party is entitled to a higher award than $745, the sum of $2,464 (indexed). 

3. The Commissioner and the Deputy President awarded costs in the sum of $1,712.  The decision of the Deputy President was set aside by the Full Bench of the Tribunal.  Calligeros DPJ, with whom Dolphin PJ and Hannon DPJ agreed, awarded the maximum sum payable in accordance with a general principle which was stated in the following terms:[3]

   [64]In claiming for the costs of conciliation an applicant must show that the claim is reasonable under s 106(1) in that the work performed pertains to the subject of the application for review. The costs must also be authorised by the regulations and have been reasonably incurred under s 106(2)(b). That will generally mean that the amounts claimed for the work undertaken are charged at no more than 85% of the Supreme Court scale on a party and party basis. If the amount claimed meets those requirements and exceeds the maximum amount payable, an applicant is entitled to receive the maximum which applies from time to time.

   [3]    Heinjus v Return to Work Corporation of South Australia [2020] SAET 24 at [64].

4. RTW contends that that general principle is inconsistent with reg 44.  It contends that the Full Bench wrongly treated the maximum amount payable as no more than an upper limit whereas, on a proper construction, both the minimum and maximum amounts payable were intended to operate as yardsticks and that no more than the minimum should be paid unless there is good reason to award a higher amount.

5. The question raised is plainly of general application.  It is of public importance both because it will necessarily affect the financial capacity of workers to engage legal representation, and because it will affect the resources which RTW can apply to the payment of compensation and, perhaps, at least indirectly, affect the levy rate payable by employers.

6. I observe that there is an additional, third, possible approach to the proper construction of reg 44 not identified in the proceedings before the Full Bench below. It is that the minimum amount prescribed by reg 44 is payable without any taxation at all, but that if, on a taxation, it is shown that a greater amount has been incurred in fees charged in accordance with the scale prescribed by s 106(6) of the RTW Act, then that higher amount will be payable up to the maximum the Regulations prescribe.

7. Permission to appeal is granted.