Scammell & Co v WorkCover Corporation - [2006] SASC 258

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Case Stated)
SCAMMELL & CO v WORKCOVER CORPORATION & ANOR
[2006] SASC 258
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice Sulan and The Honourable Justice Layton)
23 August 2006
WORKERS' COMPENSATION - MISCELLANEOUS MATTERS
PROFESSIONS AND TRADES - LAWYERS - LIENS
Case stated to the Full Court - Law Society of SA intervening - Whether a solicitor's lien for costs can arise in respect of work undertaken in the Workers Compensation Tribunal - Whether conciliation process 'legal proceedings' - Whether the Worker's Rehabilitation and Compensation Act excludes any entitlement of a solicitor to claim a lien for payment from the Compensation Fund -Whether the lien extended to the costs in respect of a related Industrial Court matter - Held: The conciliation proceedings constituted legal proceedings in respect of which the plaintiff could claim a particular lien - There is a difference between the equitable right to secure a lien and the right to enforce a lien - The Act purports to modify a solicitor's right of entitlement and recovery from the Compensation Fund for a particular lien from an amount of weekly compensation otherwise payable to the Worker, and limits the right to an award for costs to that under s 95(4) - The plaintiff had a right to a particular lien for the sum of "$350 and reasonable disbursements to be agreed or taxed" from the Compensation Fund in accordance with para 3 of the Tribunal orders, - but, that right did not include any costs in relation to the Industrial Court Action.
Supreme Court Rules 1987 r 72.01; WorkCover Act 1994 s 12; s 13; Workers Rehabilitation and Compensation Act 1986 s 2(1)(a); s 30A; s 32; s 35; s 36; s 38; s 46; s 48; s 49; s 50; s 51; s 52; s 53; s 64; s 89; s 90; s 90A; s 91; s 92; s 92A; s 92B; s 92C; s 92D; s 94(b); s 95; s 119; Part 6A; Workmen's Compensation Act 1932 s 36, s 58; Workmen's Compensation Act 1971-1974 s 41; s 57; Workers Compensation Tribunal Rules 2001 R 28 (7a) (7e); Worker's Rehabilitation and Compensation (Dispute Resolution) Regulations 1996 Regs 7(1); 7(2), referred to.
Ex parte Paitence; Makinson v The Minister (1940) 40 SR (NSW) 96; Worrell v Power & Power (1993) 46 FCR 214, applied.
Firth v Centrelink (2002) 55 NSWLR 451; Hewitt v Court (1983) 149 CLR 639; Jacobs v Onesteel Manufacturing Pty Ltd & WorkCover Corporation of SA (2006) 93 SASR 568; Johns v Cassel [1993] FLC 92-364; Mitsubishi Motors Australia Ltd v Kowalski (2004) 236 LSJS 101; North West Construction Co Pty Ltd (in liq) v Marian [1965] WAR 205; Patterson v Cohen [2005] NSWSC 635; Potter v Minahan (1908) 7 CLR 277; Re Jalmoon Pty Ltd [1986] 2 Qd R 264; Re: A Barrister and Solicitor (1979) 40 FLR 26; Roam Australia Pty Limited v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] SASC 258
Decision Date: 23 August 2006

CaseChat Overview and Summary

In Scammell & Co v WorkCover Corporation, the plaintiff, a law firm, sought to enforce a lien for legal costs against the defendant, WorkCover Corporation of South Australia, in relation to work undertaken for a worker in the Workers Compensation Tribunal (WCT). The case involved the interpretation of the Worker's Rehabilitation and Compensation Act 1986 (SA) (the Act) in determining whether a solicitor's lien could be claimed for work done in the WCT and whether such a lien extended to related Industrial Court matters. The Law Society of South Australia intervened in the proceedings.

The central legal issues addressed by the court were whether the conciliation process conducted under the Act constituted 'legal proceedings' for the purposes of claiming a lien, whether the Act excluded the entitlement of a solicitor to claim a lien for payment from the Compensation Fund, and if so, whether the lien extended to costs incurred in a related Industrial Court matter. The court had to discern the precise scope of the lien rights granted by the Act and how they applied to the specific facts of the case.

The court concluded that the conciliation proceedings did constitute legal proceedings for the purposes of claiming a particular lien. It distinguished between the equitable right to secure a lien and the right to enforce a lien, clarifying that while a lien could be secured, its enforcement might be subject to statutory limitations. The court found that the Act modified a solicitor's right to recover a particular lien from the Compensation Fund and limited this right to an award for costs under section 95(4) of the Act. Consequently, the plaintiff had a right to a particular lien for the sum of "$350 and reasonable disbursements to be agreed or taxed" from the Compensation Fund, but this right did not extend to any costs related to the Industrial Court Action.

The court's decision provided clarity on the extent of a solicitor's lien rights in workers' compensation matters under the Act, emphasizing the need to strictly adhere to statutory provisions when claiming such liens.

Orders

Orders of the court

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Background

Background to the litigation

Specifically, the questions to be determined by this Court are:1. whether the Notice of Dispute lodged with the Tribunal by the plaintiff in respect of the decision of 3 February 2005 and/or the commencement of the WCT Action pursuant to Part 6A of the 1986 Act constituted legal proceedings in respect of which the plaintiff could claim the particular lien.2. whether in any event the plaintiff had at any material time, and to any, and if so, to what extent the particular lien over moneys recovered by the Worker pursuant to paragraph 2 of the WCT orders.3. whether in the alternative, the plaintiff did at any material time, and to any, and if so, to what extent have the particular lien over the moneys recovered by the Worker and, if so whether on its proper construction under the circumstances, section 95 of the 1986 Act limited that particular lien to the moneys recovered by the Worker pursuant to paragraph 3 of the WCT Orders and then only to the extent that those costs relate to the WCT Action (and not the IC Action).Background to the Special Case The Special Case filed on 12 December 2005 by the plaintiff, Scammell & Co (“the plaintiff”) sets out the approved facts. The plaintiff was represented by counsel, Mr David Howard. The defendant, WorkCover Corporation of South Australia (“the defendant”) was represented by Mr Phillip McNamara QC. The intervener to the action, The Law Society of South Australia was granted leave to intervene by order of a Master of this Court on 30 November 2005 to the extent of making submissions on the answers to the special case, but that it would bear its own costs. Mr Jonathan Wells QC appeared for the intervener. Scammell is a partnership of legal practitioners who was instructed by Dr Tatiana Pyvovarenko (“the Worker”) to act for her in relation to an alleged disability arising from her employment as a scientific officer at Gribbles Pathology Ltd (“Gribbles”). The alleged disability was said to have arisen some time in October 2001 as a result of her employment at that time with Gribbles. The alleged injuries included, “anxiety/depression, stress related disorder” due to “work overload, psychological harassment and verbal abuse”. The claim was said to arise on the basis that the Worker was harassed and abused by her superior; and was expected to increase her workload without associated wage increases under the relevant Enterprise Agreement. On or about 10 September 2004, the Worker gave notice to Gribbles of the alleged work injury pursuant to s 51 of the WR&C Act and submitted a claim for compensation under s 52 of the WR&C Act. On 21 September 2004, the Worker instructed the plaintiff in relation to her claim for compensation under the WR&C Act (“the Tribunal Action”) and also a claim in the Industrial Court against Gribbles for underpayment of wages pursuant to an Enterprise Bargaining Agreement applicable to the Worker (“the Industrial Court Action”). The Worker entered into a written fee agreement and retainer for the provision of legal services associated with her claims. The agreement read as follows:AGREEMENT –LEGAL COSTS-MISCELLANEOUS I, Tatiana Pyvovarenko HEREBY ACCEPT AND AGREE:1.To the fees and charges referred to in this Agreement and in particular to the Costs Schedule attached to this Agreement.2. To the 10% to cover the GST tax thereon.3.To SCAMMELL & CO acting as my agent for the purposes of obtaining a barrister’s Opinion or obtaining other experts reports.4.I AUTHORISE AND INSTRUCT SCAMMELL & CO to withdraw from funds held on my behalf in their trust account, monies to pay any outstanding fees and charges owing by me to Scammell & Co.5.I AUTHORISE AND INSTRUCT Scammell & Co to pay any accounts on my behalf, where Scammell & Co are acting as my agent and to reimburse Scammell & Co for any expenses and disbursements incurred by Scammell & Co in connection with my affairs with them Scammell & Co are acting as my agent or as principal together with all GST applicable or occurred by Scammell & Co.6.TO PAY any account rendered by Scammell & Co to me within 14 days. I understand that if any account remains outstanding for a period of 28 days, Scammell & Co may refuse to continue to act for me in this matter until the account is paid.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would determine that question three be answered as follows; the plaintiff had the right to a particular lien for the sum of “$350 and reasonable disbursements to be agreed or taxed” from the Compensation Fund in accordance with [3] of the order by the Tribunal on 17 June 2005 but that right did not include any costs in relation to the Industrial Court Action.Conclusions I would answer the three questions posed in the Special Case as follows:1.The Notice of Dispute lodged with the Tribunal by the plaintiff in respect of the decision of 3 February 2005 and the commencement of the Tribunal Action pursuant to Part 6A of the WR&C Act; as well as participation of the Worker in conciliation proceedings, and the orders of the Tribunal on 17 June 2005, constituted legal proceedings in respect of which the plaintiff could claim a particular lien. 2.The plaintiff did not have the right to a particular lien over moneys recovered by the Worker pursuant to [2] of the Tribunal orders.3.The plaintiff had the right to a particular lien for the sum of “$350 and reasonable disbursements to be agreed or taxed” from the Compensation Fund in accordance with [3] of the order by the Tribunal on 17 June 2005 but that right did not include any costs in relation to the Industrial Court Action

Ratio Decidendi

Legal Principle Established

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