Smith v Roads and Traffic Authority of NSW (No 2)

[2008] NSWWCCPD 141

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Smith v Roads and Traffic Authority of NSW (No 2) [2008] NSWWCCPD 141
APPELLANT:		Gregory Gerard Smith
RESPONDENT:		Roads and Traffic Authority of NSW
INSURER:		TMF/Allianz Australia Insurance Limited as agent for RTA Workers Compensation Unit
FILE NUMBER:		WCC1376-08
DATE OF ARBITRATOR’S DECISION:		3 June 2008
DATE OF APPEAL DECISION:		2 December 2008
SUBJECT MATTER OF DECISION:		Costs – application for certificate of complexity.
PRESIDENTIAL MEMBER:		Acting Deputy President Snell
HEARING:		On the papers
REPRESENTATION:		Appellant:		Harris Wheeler
Respondent:		Leitch Hasson Dent
ORDERS MADE ON APPEAL:		The matter is certified as complex for the purposes of Schedule 6, Table 4, item 4 of the Workers Compensation Regulation 2003. The appropriate percentage increase pursuant to that item is the amount of twenty per cent.

COSTS

1. This matter involved an appeal by Gregory Gerard Smith (‘the Appellant Worker’) against an award in favour of the Roads and Traffic Authority of NSW (‘the Respondent Employer’) entered by an arbitrator in a decision dated 3 June 2008. The appeal was successful, and I entered an award in the Appellant Worker’s favour in a decision dated 4 November 2008 (Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130). One of the orders I made was that the Respondent Employer pay the Appellant Worker’s costs, of both the original arbitral proceedings, and the appeal.

1. The Appellant Worker, by letter dated 12 November 2008, sought certification that the matter was complex, and a consequential uplift of twenty per cent of the costs recoverable pursuant to certain of the items in Table 1 of Schedule 6 of the Workers Compensation Regulation 2003 (‘the Regulations’) (‘the application’). The Appellant Worker referred to the following matters in his submissions in support of the application:

(i)The proceedings were on foot for a significant period of time, the Application to Resolve a Dispute having been filed on 26 February 2008, and the decision in the appeal being dated 4 November 2008.

(ii)There was a significant body of documentary material, including transcript of the arbitral hearing.

(iii)The matter involved complex questions of fact and law, particularly going to the potential application of section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’). The injury was of a psychological nature, requiring the obtaining of a lengthy and detailed statement from the Appellant Worker, and review of various guidelines, policy documents and disciplinary guidelines from the Respondent Employer.

1. A copy of the letter making the application was forwarded to the solicitors acting for the Respondent Employer on 27 November 2008, inviting them to make submissions on the application, if desired. In a helpfully prompt response, those solicitors by letter dated 1 December 2008 advised “We make no submissions in response to this application.”

1. The relevant provision is at item 4 of Table 4 of Schedule 6 of the Regulations. It provides that if the Commission or the Registrar certifies a matter as complex, and neither item 6 nor 7 of Table 4 also applies, then a percentage increase of costs at items D, E or F of Table 1 applies, with an upper limit of thirty percent.

1. The first of the matters relied upon by the Appellant Worker in support of the application in my view is of no relevance. A matter does not become more or less complex as a consequence of the time proceedings are on foot. There are many reasons why some proceedings take longer than others, not necessarily involving complexity.

1. The volume of the documentary material is of only limited relevance. It is something that may indicate complexity depending on its contents. However there are many matters which are not complex, in which bulky material is obtained and put into evidence by one side or the other, for example employment records or hospital records. It is necessary to have regard to the substance of the issues between the parties, rather than to the volume of documentary material generated.

1. The third matter relied upon is of more significance. The original statement obtained by the solicitors for the Appellant Worker, and attached to the Application to Resolve a Dispute (‘ARD’), was eight pages in length, and dealt with a variety of relevant factual matters. The ARD also included two highly relevant statements from lay witnesses, corroborating much of the Appellant Worker’s evidence. These were each four pages in length.

1. The Respondent Employer put on a significant body of material, attached to its Reply and subsequently, in which it disputed parts of the Appellant Worker’s evidence. This material dealt in detail with various aspects of the Appellant Worker’s employment, particularly the circumstances surrounding a meeting that immediately preceded the commencement of incapacity. The matter also was complicated by the existence of an earlier motorcycle accident, which resulted in psychological sequelae for which the Appellant Worker was being treated before and during the period of incapacity the subject of the claim. The Respondent Employer relied upon records and reports dealing with that treatment. There was a relatively complex issue regarding causation of the period of incapacity the subject of the claim. The evidence overall threw up factual issues of more than usual complexity.

1. Additionally, as the Appellant Worker submits, there were legal issues going to the operation of section 11A of the 1987 Act, and whether that section afforded the Respondent Employer a defence. This necessarily involved a consideration of the legal test contained in that section, authorities relevant to the test, and the section’s possible application to the facts of this matter.

1. Having regard to the above matters, I am persuaded it is appropriate the matter be certified as complex, and I do so. The percentage increase should be the figure of twenty percent, as was submitted on the Appellant Worker’s behalf.

Michael Snell

Acting Deputy President  

2 December 2008

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE