Yan Hui Shao v J & P Spratt Pty Ltd t/as Tilga Products
[2008] NSWWCCPD 11
•31 January 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Yan Hui Shao v J & P Spratt Pty Ltd t/as Tilga Products [2008] NSWWCCPD 11
APPELLANT: Yan Hui Shao
RESPONDENT: J & P Spratt Pty Ltd t/as Tilga Products
INSURER:GIO General Ltd
FILE NUMBER: WCC 6558-07
DATE OF ARBITRATOR’S DECISION: 26 October 2007
DATE OF APPEAL DECISION: 31 January 2008
SUBJECT MATTER OF DECISION: Interlocutory directions; medical dispute; exercise of discretion in admitting a late ‘Reply’; certification of matter as ‘complex’.
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Buttar Caldwell & Co
Respondent: TurksLegal
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 26 October 2007 is confirmed.
There is no order as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 25 October 2007, Yan Hui Shao sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator made on 23 October 2007. The Respondent to the appeal is J & P Spratt Pty Ltd t/as Tilga Products (‘Tilga’). Tilga’s workers compensation insurer is GIO General Ltd (‘GIO’). On 21 January 2008, GIO filed a ‘Notice of Opposition’ to the appeal.
Yan Hui Shao was born on 31 December 1956 and is aged 51. On or about 22 January 2001, he commenced employment with Tilga as an aluminium and timber frame assembler. On 19 April 2005, when using an electric saw in the course of his employment, Mr Shao accidentally amputated the tip of his left middle finger. As a result, he was ‘off work’ until 23 May 2005, when he returned to work on ‘suitable duties’. Mr Shao continued to work with Tilga until 21 July 2005, when he was detained at his workplace by personnel from the Department of Immigration who took him into immigration detention at the Villawood Detention Centre.
On 28 August 2007, the Commission registered Mr Shao’s ‘Application to Resolve a Dispute’ in respect of his claim for compensation for an 8% permanent impairment for the injury to his left hand. Attached to the Application was a report by Dr Khalid Aziz Qidwai, Surgeon, dated 27 April 2007, assessing Mr Shao as having a combined whole person impairment of 8% in respect of his left middle finger and left hand.
In Directions made at a teleconference conducted by the Arbitrator with the parties on 9 October 2007, the Arbitrator adjourned the teleconference until 23 October 2007. He also granted liberty to GIO to file a ‘Reply’ as a late document by 16 October 2007 and arrange for a medical examination of Mr Shao “not previously able to be facilitated due to his being in Villawood Detention Centre”, any report from such medical examination which GIO intended to rely on, to be filed and served by 18 October 2007.
In notations made to his Directions, the Arbitrator noted that Mr Shao was not personally present at the teleconference, “having just been released from the Villawood Detention Centre and his representative not at that point being aware of such exigency or immediately being able to make contact with the Applicant for telephone conference purposes”. The Arbitrator noted the unusual features of the matter, namely Mr Shao having been in immigration detention, GIO having “not facilitated a personal medical examination of the Applicant”, and GIO having not filed a ‘Reply’ although having acknowledged receipt of the ‘Application to Resolve a Dispute’ on or about 11 September 2007. Pursuant to subrule 10.4(1) of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’), the respondent in any proceedings must lodge a reply within 21 days of the registration of the ‘Application to Resolve a Dispute’.
In his notations, the Arbitrator said that notwithstanding these features, he had made his Directions in the light of the fact that, on 9 October 2007, the filing of a ‘Reply’, which the Respondent intended to file, was not unduly late, and against the background of Mr Shao not being personally present at the teleconference as required “by the usually applicable policies and procedures of the Commission”. The Arbitrator also noted that he had not made any immediate orders with reference to whole person impairment, as invited by the Applicant, because “such would not necessarily occasion due justice to the proceedings or to the merits of its appropriate medical presentation”.
On 11 October 2007, Dr Julien Ginsberg, Orthopaedic Surgeon, examined Mr Shao at the request of GIO. In his report of that date, Dr Ginsberg diagnosed “a healed skin graft to the tip of his left middle finger without any pathological signs and symptoms seen at clinical examination”. He found: “Hypersensitivity at the tip of Mr Shao’s finger is all that currently exists. I believe he should be encouraged to perform some form of work after having received therapy from a Hand Therapist.” Dr Ginsberg said he was: “unable to identify any permanent loss regarding his left middle finger. Since, however, Mr Shao requires ongoing treatment, I believe it would be fair to assess him in six months time.”
On 18 October 2007, GIO lodged an ‘Application to Admit Late Documents’, namely its ‘Reply’ with attached documents, including Dr Ginsberg’s report. Also by letter of that date, Mr Shao’s solicitors notified the Commission of their being in the process of preparing an appeal against the Arbitrator’s Directions made on 9 October 2007.
On 23 October 2007, the Arbitrator conducted a further teleconference with the parties. At the conclusion of the conference, he explained his decision and the reasons for that decision. On 26 October 2007, the Commission issued the Arbitrator’s Certificate of Determination, in the terms set out below at paragraph 14, together with a brief Statement of Reasons for his decision.
On 24 October 2007, Mr Shao’s solicitors lodged an appeal against the determinations made by the Arbitrator on 9 October 2007 and 23 October 2007. On 26 October 2007, Mr Shao’s solicitors filed further submissions. Under cover of a letter dated 16 November 2007, the Commission supplied the parties with a transcript of the teleconference on 23 October 2007. On 18 December 2007, Mr Shao’s solicitors filed further submissions.
On 21 January 2008, GIO filed an ‘Application to Admit Late Documents’ attaching its ‘Notice of Opposition’ to the appeal. In its reasons in support of this Application, GIO states that the solicitor with carriage of the matter did not receive instructions until 14 January 2008, as a result of GIO’s administrative error in overlooking the timeframe for lodging a Notice of Opposition. GIO submits that the late filing does not cause any prejudice to the Appellant, while a refusal to allow a late filing would cause substantial and real prejudice to GIO. Moreover, the injustice to GIO by refusing to allow the filing of its Notice of Opposition outweighs the issue of whether the Respondent has complied with the time limits of the legislation.
I note that GIO failed to file its ‘Reply’ in these proceedings in accordance with the 2006 Rules, and was also late in complying with the Arbitrator’s Direction of 9 October 2007. Moreover, it is not clear that GIO made any effort to arrange for Mr Shao to be medically examined while he was in the Villawood Detention Centre. The representative of GIO who took part in the teleconference on 23 October 2007, when asked about this by the Arbitrator, merely indicated that he considered doing so too difficult (transcript page 8). Thus, GIO’s record of compliance with the process set out for resolving such disputes is not an impressive one.
In relation to the Application to Admit Late Documents in the appeal, while GIO’s Notice of Opposition was not filed and served within 28 days of the Respondent being served with the appeal as required by subrule 16.2(7) of the 2006 Rules, I note that Mr Shao’s solicitors’ further submissions were not filed until 18 December 2007, immediately before the Christmas/New Year break, and that GIO’s solicitors have acted promptly on having received instructions. Moreover, in my view, there is no real prejudice to the Appellant by the late filing of the Notice of Opposition, while a refusal to admit the Notice would prejudice GIO. I therefore exercise my discretion and grant leave to admit the Notice of Opposition as a late document, albeit reluctantly given GIO’s repeated failure to comply with the time limits set by the legislation.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 26 October 2007, records the Arbitrator’s orders as follows:
“1. That the application of the Respondent for admission of its Reply as a Late Document is accepted such that the Reply (and all of its annexed materials) are taken into evidence in the proceedings including for AMS purposes;
2. That there is a medical dispute in the proceedings properly before the Commission for determination;
3. That these Orders note that the Respondent acknowledges that liability in the proceedings is not in dispute, but that singularly the dispute is as to the quantum of medical assessment;
4. That the matter is to be referred to an Approved Medical Specialist to enable its progression, and as delegated by the Registrar;
5. I declined the application of the Respondent to make any determination under section 342 of the 1998 Act as to costs being unreasonably incurred; and,
6. I declined the Applicant’s application that the proceedings be declared as complex.”
In the Statement of Reasons attached to the Certificate of Determination, the Arbitrator said:
“Importantly, one of the reasons for the adjourned telephone conference was that the Applicant was not engaged in the first telephone conference on 9 October 2007 having just been released from Villawood Detention Centre and could not be located on that occasion, his own solicitor also not being aware of his release until informed at that telephone conference itself by Genesys. In those circumstances (amongst other), I chose to re-list the matter for adjourned telephone conference to enable the Applicant to be engaged in the opportunity importantly in my view of the telephone conference process.”
In the oral Statement of Reasons for his decision given at the conclusion of the teleconference on 23 October 2007, the Arbitrator said he had not been prepared to proceed with the first teleconference without Mr Shao being engaged in the process. He said that among the effects of “disenfranchising” an applicant from participating in the teleconference is that “the applicant quite clearly is not in a position to give any direct instructions to his own representative”. The dynamics of the teleconference process require that “the parties and their advisers are actively engaged in the exercise of potential resolution” (transcript page 12).
The Arbitrator noted that at the teleconference on 9 October 2007, the Respondent intimated that it sought liberty to file a ‘Reply’. The Arbitrator said that, having had regard to the unusual features of this matter arising from Mr Shao’s detention in and then release from the Villawood Detention Centre, he decided to adjourn the teleconference and grant liberty to the Respondent to arrange for a medical examination of Mr Shao and lodge a late ‘Reply’. The Arbitrator noted that the ‘Reply’ was lodged two days later than the date (16 October 2007) specified in his Directions of 9 October 2007. In the reasons for its ‘Application to Admit Late Documents’, GIO said that Dr Ginsberg’s report was not made available to its office until 18 October 2007. GIO attached an email from Dr Ginsberg of that date enclosing copies of photographs taken by him in the course of his examination and referred to in his report.
The Arbitrator, noting once again the unusual features of this case, and that the Respondent did not dispute liability, indicated that he considered there were exceptional circumstances justifying the exercise of his discretion to admit the late documents in order to extend fairness to both parties and progress the matter by facilitating the assessment of Mr Shao’s condition by referral to an Approved Medical Specialist (‘AMS’) (transcript pages 15 – 16).
ISSUES IN DISPUTE
The principal grounds of appeal identified from Mr Shao’s solicitors’ submissions are that the Arbitrator erred (1) in determining that there was a medical dispute, (2) in adjourning the proceedings to allow the Respondent to file a ‘Reply’ out of time, (3) in admitting GIO’s ‘Reply’ on its application to admit late documents, and (4) failing to certify the matter as ‘complex’ for the purpose of assessing costs. The parties’ submissions on these issues are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)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.”
I have had regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions of the parties. Mr Shao’s solicitors, while initially stating that the appeal can be determined ‘on the papers’, in later submissions submitted that the matter is complicated and “requires a possible hearing” (Further Submissions dated 14 December 2007, paragraph 11). GIO submits that the appeal can be determined on the papers and that a hearing is unnecessary given the detailed written submissions made by the parties. Having considered the above documents and submissions, 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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. First, the appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Second, section 352(2) requires that the amount of compensation at issue in the appeal is both at least $5,000 and at least 20% of the amount awarded in the decision appealed against. I note that since the Arbitrator awarded no compensation, the amount of compensation at issue is determined by reference to the amount of compensation claimed in the ‘Application to Resolve a Dispute’. (See, for example, the discussion in Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164 (‘Hart’), at paragraphs 15 to 17, including reference to the decisions in Grimson v Integral Energy [2003] NSWWCCPD 29 and Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7.) In his ‘Application to Resolve a Dispute’, Mr Shao claimed $10,000 in compensation for permanent impairment for the injury to his left hand. Thus, the amount of compensation at issue exceeds the $5,000 threshold (section 352(a)) and, because no compensation has yet been awarded, the 20% threshold (section 352(b)) does not apply (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5, at paragraph 22). Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS, DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr Shao’s solicitors must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
Directions of 9 October 2007
Mr Shao’s appeal is stated to be in respect of the Arbitrator’s determinations of both 9 October 2007 and 23 October 2007. In their submissions, neither party has addressed what in my view is the pertinent issue of whether the Directions give by the Arbitrator on 9 October 2007 were of an interlocutory nature.
The right of appeal provided to the parties to a dispute by section 352(1) of the 1998 Act is in respect of a ‘decision’ of an Arbitrator. Pursuant to an amendment to the 1998 Act by the Workers Compensation Legislation Amendment(Miscellaneous Provisions) Act 2005, which took effect on 1 November 2006, the word ‘decision’ is defined in section 352(8) as follows:
“(8) In this section, decision includes an award, interim award, order, determination, ruling and decision, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.”
Clause 200B of the Workers Compensation Regulation 2003 (‘the 2003 Regulation’) states:
“200B. For the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed.”
I must therefore determine whether the Arbitrator’s Directions issued on 9 October 2007 constitute a decision of an interlocutory nature. The meaning of the word ‘interlocutory’ in this context has been discussed in a number of recent appeal decisions: by Deputy President Roche in, for example, Nott v The Western Stores Ltd and ors[2007] NSWWCCPD 83; P & O Ports Ltd vHawkins [2007] NSWWCCPD 87 (‘Hawkins’), Arquero v DJ & T Denning Pty Ltd t/as Capital Coast Steel[2007] NSWWCCPD 126, Waverley Council v Sheen[2007] NSWWCCPD 127, Morris v Bourke Shire Council [2007] NSWWCCPD 162; and Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164; and see also my decision in Lovett McCracken & Bray Pty Ltd v Gales[2007] NSWWCCPD 198.
For example, in Hawkins, at paragraphs 36-37, Deputy President Roche said:
“35. The distinction between a ‘final’ and ‘interlocutory’ order has been said to be ‘not an entirely satisfactory one’ (Southern Cross Exploration NL an others v Fire and All Risks Insurance Company Ltd and others[No 2] (1990) 21 NSWLR 200 per Kirby P (as he then was) at 206 (‘Southern Cross’)). Justice Kirby then noted the words of Lord Denning MR in Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601 that the distinction between final and interlocutory orders was so uncertain that ‘the only thing for practitioners to do is to look up the practice books and see what has been decided on the point’. His Honour added at 207:
‘Thus, no golden thread of logic runs through the cases. There are common features in the rulings. But it is futile to look for an entirely coherent system, notwithstanding the importance of the classification for the appellate rights of the party seeking to contest an order which falls on one side of the line, or another.
The principal point to be noted in at least the recent decisions of the High Court of Australia on this question, is that the focus of attention is upon the legal effect of the order under examination, not its practical consequences.’
36. His Honour quoted from Gibbs J (as he then was) in Licul v Corney (1976) 50 ALJR 439 at 443-444 where his Honour said that the established view in Australia was that what is interlocutory:
‘... depends on the nature of the order made; the test is: does the judgment or order, as made, finally dispose of the rights of the parties?’”
The test, therefore, of whether a decision is an interlocutory one is whether it finally disposes of the rights of the parties. In my view, the Arbitrator’s Directions made on 9 October 2007 (a) adjourning the teleconference until 23 October 2007 and (b) granting liberty to GIO to (i) file a late Reply by 16 October 2007 and (ii) arrange for a medical examination of Mr Shao, with any consequent medical report on which GIO intended to rely to be filed and served by 18 October 2007, were clearly of a procedural nature and not determinative of the substantive rights of the parties. Thus, the Arbitrator’s Directions of 9 October 2007 constituted a decision of an interlocutory nature, and Mr Shao’s solicitors are thereby precluded from appealing against that decision. The discussion below reflects this and is, therefore, limited to the Arbitrator’s decision made on 23 October 2007, set out in the Certificate of Determination dated 26 October 2007.
Grounds of Appeal
The submissions attached to the appeal and two sets of further submissions filed by Mr Shao’s solicitors lack clarity and focus, and I agree with GIO’s submission that the grounds of appeal are not precisely identified as required by the Commission’s Practice Direction No. 6. I have, nevertheless, used my best endeavours in distilling the following grounds of appeal from the submissions.
The first of the principal grounds of appeal identified from Mr Shao’s solicitors’ submissions is that the Arbitrator erred in determining that there was a ‘medical dispute’ as defined in section 319 of the 1998 Act. They contend that GIO did not respond to their letter of claim dated 1 May 2007, claiming $10,000 compensation in respect of an 8% whole person impairment, and relying on Dr Qidwai’s report dated 27 April 2007. As GIO points out, this is incorrect. GIO responded to Mr Shao’s solicitors by letter dated 4 May 2007 referring to its letter dated 16 April 2007 offering to pay compensation in respect of a 1% whole person impairment. GIO contends this offer was a valid one. Mr Shao’s solicitors contend, further, that GIO did not file a Reply or raise any dispute about the assessment made by Dr Qidwai. Again, this is incorrect, as the account of events set out above makes clear. Moreover, I agree with GIO’s submission that failure to file a Reply within the required time does not constitute evidence that a dispute no longer exists.
It is also clear from what occurred at the teleconference on 9 October 2007 and the documentation filed by GIO on 18 October 2007 that there was a dispute as to the assessment of permanent impairment in relation to Mr Shao’s left hand.
Thus, there was a dispute as to “the degree of permanent impairment of the worker as a result of the injury” (paragraph (c) of the section 319 definition of ‘medical dispute’). I therefore reject this first ground of appeal.
The second ground of appeal identified from Mr Shao’s solicitors’ submissions is that the Arbitrator erred in adjourning the proceedings to allow the Respondent to file a Reply out of time. As stated above, the Arbitrator’s direction to adjourn the teleconference was, in my view, an interlocutory decision and cannot be the subject of an appeal.
The third of the principal grounds of appeal identified from Mr Shao’s solicitors’ submissions is that the Arbitrator erred in admitting GIO’s Reply on its application to admit late documents. In their further submissions filed on 18 December 2007, Mr Shao’s solicitors also submitted that the Arbitrator failed to give adequate reasons for doing so. I will limit my consideration of this ground to the Arbitrator’s determination made on 23 October 2007, when he exercised his discretion to admit the Reply filed on 18 October 2007, two days outside the date 16 October 2007 specified in his Directions of 9 October 2007. I am prepared to assume that this part of the Arbitrator’s determination was not of an interlocutory nature, being part of the Arbitrator’s final determination, although, in my view, the contrary position could also be argued.
Having heard submissions from the parties at the teleconference on 23 October 2007, the Arbitrator noted GIO’s explanation for its Reply being filed two days late on 18 October 2007. He then went on to refer to the circumstances of Mr Shao’s detention in the Villawood Detention Centre and GIO’s submission at the first teleconference that the matter should be referred to an AMS, which could only happen if GIO filed a Reply and if liability were no longer in issue. The Arbitrator referred to Mr Shao’s solicitors’ submissions with regard to prejudice to their client, to issues of fairness and justice and the need to progress the matter efficiently. Ultimately, it is clear the Arbitrator decided to admit the Reply because of the exceptional circumstances of the case.
Section 294(2) of the 1998 Act requires that a brief statement setting out the Commission’s reasons for the determination be attached to the Certificate of Determination. Subrule 15.6(1) of the 2006 Rules requires that the statement of reasons is to include:
“(a) the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and(c) the reasoning processes that lead the Commission to the conclusions it made.”
Subrule 15.6(2) requires that the reasons “are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them”. While lengthy reasons are not necessary (Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56, at paragraph 45), there must be sufficient clarity to meet the requirements of rule 15.6 and enable the parties to understand the basis of the decision.
In this case, the Arbitrator gave an oral Statement of Reasons for his decision to admit the Reply at the conclusion of the teleconference. In my view, there was sufficient clarity in those oral reasons for his admitting the Reply – setting out the parties’ submissions, the Arbitrator’s findings and reasoning process (transcript pages 15 – 16) - to enable the parties to understand the basis for his doing so. Thus, I am satisfied that the Arbitrator’s stated reasons were adequate in terms of the requirements of the legislation.
As to the substance of those reasons, given the tight time frame imposed by the Arbitrator in his Directions dated 9 October 2007, in my view, it was not unreasonable for the Arbitrator on 23 October 2007 to exercise his discretion to grant leave to admit the Reply, which attached the newly obtained report of Dr Ginsberg, two days late. GIO said the delay was caused by its not receiving the report (by email) until 18 October 2007, the day on which it was filed. For the Arbitrator to have done otherwise would, in circumstances in which GIO could be said to be “substantially compliant” (NSW National Parks & Wildlife Service v Winnett [2004] NSWWCCPD 21, at paragraph 28 – Deputy President Byron, cited by Mr Shao’s solicitors) with the direction to file the Reply by 16 October 2007, have caused substantial prejudice or injustice to GIO. This would have been of a magnitude greater than the prejudice or injustice caused to Mr Shao in circumstances where, because there was a dispute over the degree of permanent impairment suffered by Mr Shao, the Arbitrator was required to refer this aspect of the dispute to an AMS for medical assessment pursuant to section 293(2) of the 1998 Act, liability not being in issue. Thus, I am not satisfied that the Arbitrator erred in the exercise of his discretion in admitting the Reply, and Mr Shao’s solicitors have failed to make out this ground of appeal.
The fourth of the principal grounds of appeal identified from Mr Shao’s solicitors’ submissions is that the Arbitrator erred in declining their application to certify the matter as ‘complex’ for the purpose of assessing costs. In their further submissions filed on 26 October 2007, Mr Shao’s solicitors contend that the Arbitrator should have awarded costs against GIO for the first teleconference. Given that the adjournment at the first teleconference was at least in part because Mr Shao could not be located, having just been released from the Villawood Detention Centre, and could not therefore participate in the teleconference, as normally required by the Commission’s Guideline for the Practice of the Conciliation/Arbitration Process (April 2007) (see page 5 in relation to participation in the telephone conference), I am not satisfied that the Arbitrator erred in not awarding costs in respect of the first teleconference to Mr Shao’s solicitors.
With regard to whether the matter was ‘complex’ for the purpose of costs, I note that the assessment of costs is to be made in accordance with the provisions set out in the 2003 Regulation. Reference to certification of a matter as ‘complex’ for the purpose of a costs assessment appears in Schedule 6, Table 4, Items 4 and 5, of the 2003 Regulation. However, there is no definition of what is meant by ‘complex’ in this context. Regulation 111 states that in assessing what is a fair and reasonable amount of costs, the Registrar may have regard to various matters, including the complexity of the matter. (I also note in passing that since the amendment of the 2003 Regulation with effect from 1 November 2006, no right of appeal lies against the Registrar’s assessment of costs: regulations 118 and 119(5).)
When Mr Shao’s solicitors raised this issue at the teleconference on 23 October 2007, while the Arbitrator agreed that the proceedings were “unusual” in so far as a second teleconference was necessary, there having been a range of submissions from both parties about procedural issues, he said that liability was not at issue and the only outstanding issue was one of “the quantum of the medical determination” (transcript page 18). The Arbitrator therefore declined to make a declaration that the matter was complex.
In my view, the Arbitrator identified reasonable grounds justifying his determination declining to make a declaration of complexity, and I am not therefore satisfied from Mr Shao’s solicitors’ submissions that the Arbitrator made any error in the exercise of his discretion. Thus, Mr Shao’s solicitors have failed in this ground of appeal.
In conclusion, Mr Shao’s solicitors have failed to make out their grounds of appeal and the decision of the Arbitrator made on 23 October 2007 must therefore be confirmed.
DECISION
The decision of the Arbitrator dated 26 October 2007 is confirmed.
COSTS
There is no order as to the costs of this appeal.
Robin Handley
Acting Deputy President
31 January 2008
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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