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[2000] SAWCT 25
General information, not legal advice.
Workers Compensation Tribunal (SA)
2000-03-21
Original judgment source is linked above.
1 By decision delivered on 17 December 1999 I dismissed the application for judicial determination filed by the worker, Tina Armiento and confirmed the claims agent's rejection of her claim for compensation.
2 Mr Cole, counsel for the worker, applied for costs of the judicial determination pursuant to s 95 of the Workers Rehabilitation and Compensation Act ("the Act"). This application was opposed by Ms Carabelas, counsel for the respondent, on the basis that the worker had acted unreasonably or frivolously in bringing or in the conduct of these proceedings.
3 The main thrust of the respondent's opposition to an order for costs was that the worker's version of events was not accepted at judicial determination and that this was against a background that her version of events was not accepted at Arbitration either. Ms Carabelas emphasised that when the worker embarked upon the judicial determination she knew what evidence the respondent was likely to call, she knew that the account of the respondent's lay witnesses differed from hers, she had seen a video depicting her carrying out various activities at a particular time, and she knew that her medical witnesses had not been accepted. It was submitted that in those circumstances and being properly advised she should have realised that she did not have a reasonable expectation of a different result at the judicial determination. Thus it was said that her commencement, or alternatively, continuation, of the proceedings following the making of the pre-trial orders on 13 April 1999 when she was formally advised of the respondent's witnesses was unreasonable or alternatively, frivolous. Accordingly it was said that she should not be awarded costs at all, or in the alternative, following 13 April 1999.
4 S 95 provides that in the normal course of events a worker will be entitled to an award of costs of a judicial determination regardless of the result unless certain disqualifying factors are present and the Tribunal exercises its discretion to decline to make an award of costs in the worker's favour, orders costs against the worker, or reduces the amount to which the worker would otherwise be entitled. Whether a worker has acted unreasonably or frivolously as submitted here is a question of fact to be determined from all of the circumstances and bearing in mind the relevant statutory provisions.
5 In my view more is needed than the fact that the worker has already had the benefit of an Arbitration and been unsuccessful at that level to base a conclusion that the worker has acted unreasonably or frivolously in the conduct of a judicial determination such as to deprive her of costs. Not only does the Act contemplate that the Tribunal will make a judicial determination of a disputed claim if a party is dissatisfied with an Arbitration (s 94) but it contemplates that an Arbitration will usually precede a judicial determination. The bypassing of Arbitration either at the request of the Conciliator or the parties requires a direction by a presidential member (s 92D). Furthermore s 94C, which requires that in conducting a judicial determination the Tribunal will rehear the matter in dispute without regard to decisions taken in earlier proceedings, reinforces the worker's entitlement to a rehearing of all of the relevant evidence.
6 It is also noteworthy that s 94C(2)(b) places limitations on the Tribunal's ability to take evidence not introduced at Arbitration. This demonstrates that it will usually be the case that the judicial determination commences against a background that the worker knows what evidence will be presented by the respondent.
7 The worker's credit was the crucial issue in both the Arbitration and the Judicial Determination. At the Arbitration her evidence was said to be unreliable, to contain embellishment, inaccuracies and to be in part, reconstructed. Although this may have given her pause to reflect on her position the Act permitted her to seek a rehearing before a presidential member where she and her lay witnesses could give evidence again and her medical witnesses could be called. In those circumstances the result of the Judicial Determination could not be assumed.
8 As it transpired the findings at the judicial determination were similar to those at Arbitration. The worker was found to be an unreliable witness who exaggerated her symptoms and whose account of the relevant events could not be relied upon. As a consequence, the evidence of her medical witnesses who had based their opinions on her history and presentation was not accepted.
9 Nevertheless, given the statutory provisions relating to rehearing, the failure of her claim against that background does not justify a finding that she acted unreasonably or frivolously such to deprive her of an award of costs. Had she been found at Arbitration and at judicial determination to be a deliberate liar who had falsely presented herself to her medical advisers or the Tribunal, there may have been greater strength in Ms Carabelas' submission. It may be that dishonest conduct on the part of a worker suggests a misuse of the relevant statutory provisions which is unreasonable, frivolous or vexatious.
10 I order that the applicant worker is entitled to have her costs of and incidental to the judicial determination, such costs to be agreed or taxed.
Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.
DECISION INFORMATION SHEET AND PRINTING REQUEST
Case: Armiento v WorkCover/MMI (Myer Stores Ltd)
Handing Down Date and Time Proposed By Member(s): Tuesday 21st March at 10.30am
EXACT DESCRIPTION OF DECISION TO BE FILLED IN BY OPERATOR ONLY
ParsoH01/Decisions/Armiento v WorkCover (Myer Stores) [2000] SAWCT 25.doc
1st DRAFT [ x ] DATE: 17/3/00 OPERATOR: Elaine
2nd DRAFT [ x ] DATE: 20/3/00 OPERATOR: Nina
Summary/Catch-Phrases etc. to MMS for settlement ....../....../..
Summary/Catch-Phrases returned for amendment ....../....../..
Decision Number (Date obtained 20/3/00) [2000] SAWCT 25
This decision is to be handed down without a Summary/Catch-Phrases and Headnote
PLEASE NOTE: THIS STATISTICAL SHEET MUST REMAIN WITH ALL WORK UNTIL FINAL IS COMPLETED
Armiento
Workcover/Mmi