Zdziarski and Telstra Corporation Limited (Compensation)

[2017] AATA 1099

Zdziarski and Telstra Corporation Limited (Compensation) [2017] AATA 1099 (13 July 2017)

Division:GENERAL DIVISION

File Number(s):      2012/1067

2014/0554

2015/5802

Re:Stephen Zdziarski

APPLICANT

AndTelstra Corporation Limited

RESPONDENT

DECISION AS TO COSTS

Tribunal:Deputy President J W Constance

Date:13 July 2017

Place:Sydney

The Respondent shall pay the costs of these proceedings incurred by the Applicant with the exception of the costs associated with the briefing and appearance of Senior Counsel.

.....................................[sgd]...................................

J W Constance

Deputy President

CATCHWORDS

COSTS – whether costs order should include Senior Counsel’s fees – order for costs

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19

CASES

Stanley v Phillips (1966)115 CLR 470

Zdziarski v Telstra Corporation Limited [2015] FCA 207

REASONS FOR DECISION

Deputy President J W Constance

13 July 2017

INTRODUCTION

1. On 10 May 2017 I set aside decisions of Telstra Corporation Limited in each of the above applications and substituted decisions in favour of Mr Zdziarski.  In addition I decided:

   Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made Telstra Corporation Limited shall pay the costs of the proceedings incurred by Mr Zdziarski.

2. The three applications were heard together and Mr Zdziarski was represented by both Senior and Junior Counsel.

3. Telstra has applied for a further direction in relation to the payment of costs.  It accepts that Mr Zdziarski is entitled to an order for costs in each of the applications, but argues that such an order should include a provision that Mr Zdziarski is not entitled to the costs of engaging Senior Counsel.

4. For the reasons which follow I have decided that Mr Zdziarski is not entitled to payment of the cost associated with the briefing and appearance of Senior Counsel.

   BACKGROUND

5. The substantive decision in each of the applications was as follows:

   Application 2015/5802

   The reviewable decision of Telstra Corporation Limited made 8 October 2015 is set aside. In substitution it is decided that Telstra Corporation Limited is liable to pay compensation to Mr Zdziarski under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of injuries to his lumbar spine and left shoulder suffered on 17 September 2001 for the period commencing on 14 August 2015 until the date of this decision.

   Application 2012/1067

   The reviewable decision made 21 February 2011 is set aside. In substitution it is decided that Telstra Corporation Limited is liable to pay compensation to Mr Zdziarski in respect of an injury, being Major Depressive Disorder suffered in 2004.

   Application 2014/0554

   The reviewable decision made 27 November 2013 is set aside. The matter is remitted to Telstra Corporation Limited for reconsideration of Mr Zdziarski’s entitlement to compensation for pharmaceutical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 in accordance with these reasons for decision.

6. The reviewable decision in application 2012/1067 was affirmed by the Tribunal in 2014.  Mr Zdziarski’s appeal to the Federal Court was successful.[1] The hearing before me was by way of remittal.

   [1] Zdziarski v Telstra Corporation Limited [2015] FCA 207.

7. The hearing of the applications took place over three days in September 2016. Final written submissions were received in February 2017.

   THE ARGUMENT ON BEHALF OF MR ZDZIARSKI

8. In written submissions filed on behalf of Mr Zdziarski it was put that a combination of the following matters justified the briefing of Senior Counsel:

   a.    The single hearing actually involved 3 distinct applications.

   b.    There was a considerable volume of factual and expert material in all 3 matters.

   c.    There was significant complexity in the litigation history involved in 2012/1067 concerning the psychological injury which led to the nature of the remitter order made by the Federal Court being a matter of real substance and dispute which required a ruling at the hearing.

   d.    Apart from the large body of historical medical material, the hearing involved competing opinions and cross-examination in three distinct specialties. Dr White and Dr Skinner in Psychiatry, Dr Findeisen and Associate Professor McGill in Rheumatology and Dr Berry and Dr Young in Orthopaedic Surgery.

   e.    Apart from the usual significant contest between experts, the psychiatrist who had been qualified by the Respondent had been accepted by the previously constituted Tribunal in 2014.

   f.   The amounts involved in respect of the psychological injury are potentially significant given the nature of the infirmity and the treatment involved.

   g.    The amounts of money involved in the case involving the physical injuries are significant, and there were arrears of compensation dating back to 2015.

   h.    The Respondent had maintained right up until the morning of the first day of the hearing that it was not liable to pay the Applicant compensation related to his incapacity for work.

   i.   The outcome of the 2012 and 2015 applications in particular were of the utmost importance to the Applicant - particularly given the Respondent’s belated concession that the Applicant is in fact totally incapacitated for work and he was being denied compensation for all of his injuries, including weekly compensation.

   j.   Whilst the case involving the pharmaceutical expenses was not as complex as the other two cases, it simply added to the complexity of the hearing.

   k.    The Respondent's concession as to total incapacity came way too late in the proceedings to have any beneficial effect at all on the preparation of the matter for hearing or the decision to brief senior counsel.

   CONSIDERATION

9. In Stanley v Phillips [2] Barwick CJ, on the question of whether the fees of more than one Counsel should be allowed, said:

   It is not concerned, certainly not directly concerned, with the question of the relative competence of members of the Bar, or of sections of the Bar. It is fundamentally concerned with the attainment of justice, which expanded into its elements, means that it is concerned with the presentation of a case to a court of law in such manner and to such extent that a just result is able to be achieved. As it is to be supposed that the success of the party incurring the fees of counsel will involve the opponent in their payment, the expenditure must be confined to what is necessary, which means reasonably necessary, or proper to ensure such a presentation of the case…The emphasis throughout is upon obtaining an adequate presentation to enable justice to be done: it is not upon the propriety of the steps taken by a litigant to ensure the maximum of success in his own cause. That of course he may do but not, in my opinion, at his opponent's expense.

   As the question is whether the presentation of a case to ensure a just determination reasonably requires the services of more than one counsel, it is the nature and circumstances of the case which provide the determinants.

   [2] (1966)115 CLR 470 at 478.

10. Specifically, as to the briefing of Senior Counsel the Court said it is a question that:

    ... is, of course, a practical one and what may be regarded as a prudent course or an over-cautious course can be determined only by considering whether the case was one which the plaintiff's advisers might reasonably have regarded as calling for skill and experience beyond that of the junior bar.[3]

    [3] per Taylor and Owen JJ, at 486.

11. All of the points made on behalf of Mr Zdziarski in relations to these applications are true.  However, in my view, none of them individually, or in combination with others, justify a direction that Telstra should pay the costs of briefing Senior Counsel.  All of the factors, even in combination, commonly arise in hearings in the workers compensation jurisdiction and are commonly dealt with appropriately by Junior Counsel.

12. It is not unusual that the parties are required to deal with several applications during the one hearing.  In these matters the hearing time was extended to deal with all applications, but there was no complicated inter-action between them.

    Application 2015/5802

13. In this application, the reviewable decision was that from 14 August 2015 onwards, Mr Zdziarski no longer suffered the effects of injuries to his lumbar spine, knees and left shoulder suffered in 2001.

14. At the commencement of the hearing Telstra notified the Tribunal that it had agreed to continue to compensate Mr Zdziarski for the injuries to his knees. Therefore those injuries were not in dispute at the hearing.

15. The determination of the question whether the reviewable decision was correct required an assessment of the evidence of several orthopaedic surgeons (not all of whom gave evidence), a vascular/endovascular surgeon and a consultant rheumatologist.  Although the number of opinions to be considered is greater than in many applications before the Tribunal, there was no particular complexity in any of the views expressed.  Argument as to the relative merits of the opinions of specialists is routinely presented to the Tribunal by Junior Counsel.

    Application 2012/1067

16. Although this application had been remitted to the Tribunal by the Federal Court, no particularly complex issues arose. Rather, it required an assessment of the competing views of two consultant psychiatrists and Mr Zdziarski’s General Practitioner. It was necessary to decide when Mr Zdziarski suffered the mental injury he claimed and whether his employment by Telstra contributed to that condition in a material degree. Again, these are issues commonly dealt with by Junior Counsel.

    Application 2014/0554

17. This application dealt with a claim for $384.40 for pharmaceutical expenses related to the various injuries suffered by Mr Zdziarski. It required a consideration of a number of prescribed medications and a report by a Medication Review Accredited Pharmacist. It was necessary also to consider the evidence of one of the consultant orthopaedic surgeons and the rheumatologist as to the suitability of the prescribed medication for treatment of the claimed conditions.

18. Clearly the decision on the application had relevance to ongoing expenses likely to be incurred by Mr Zdziarski. The matter was decided on the basis that Mr Zdziarski had always relied upon the drug treatment prescribed by his General Practitioner who had continually monitored his use of medications. Ultimately, I decided that the General Practitioner who had been treating Mr Zdziarski for 15 years was in the best position to determine the appropriate medication.

    The financial claims involved

19. There is no doubt that very significant amounts of money were in issue and that a significant amount of compensation would be payable to Mr Zdziarski if he was successful on either or both of the first and second applications.  However, the actual amount of compensation was not argued before me; rather it was the bases for the payment of compensation which were in dispute. Once these were determined, it was for Telstra to determine the actual amounts payable.

20. Whilst it is understandable that Mr Zdziarski was anxious to obtain a favourable outcome for matters which had been in dispute for very considerable times, even taking into account the last minute concession on behalf of Telstra, the amounts in issue do not warrant the briefing of Senior Counsel. As the High Court said in Stanley v Phillips, Mr Zdziarski was entitled to brief Senior Counsel to maximise his chances of success in his applications. This was a matter for him entirely. However, the amounts in issue in the compensation jurisdiction frequently involve very large sums of money as commonly an applicant has not received compensation during a lengthy period whilst his or her claim is considered, reconsidered and then determined by the Tribunal. As in Mr Zdziarski’s case, this period may be extended even further if there is an appeal to the Federal Court.  I am not satisfied in this matter that the amount in issue, even when combined with other factors, is such to require Telstra to pay the costs of Senior Counsel.

    CONCLUSION

21. Telstra Corporation Limited shall pay the cost of each of the proceedings incurred by Mr Zdziarski with the exception of the costs associated with the engaging of Senior Counsel.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

......................................[sgd]..................................

Associate

Dated: 13 July 2017

Date(s) of hearing:	14, 15, 16 September 2016
Date final submissions received:	13 June 2017
Counsel for the Applicant:	I Roberts SC and M Weightman
Solicitors for the Applicant:	Harris Wheeler Lawyers
Counsel for the Respondent:	B Kelly
Solicitors for the Respondent:	Sparke Helmore