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[1999] SAWCT 32
General information, not legal advice.
Workers Compensation Tribunal (SA)
1999-03-30
Original judgment source is linked above.
For the reasons which I explained in Ettridge v. TransAdelaide J.D.22/1998, I think that the cost structure provided for by section 95 of the Act is designed, amongst other things, to encourage persons to be represented at hearings before the Tribunal in recognition of the difficulties associated with self represented litigants.
Consistent with that reasoning, it seems to me, that unless a worker has otherwise made provision for the payment of costs to his or her legal representatives, it would in the ordinary course, be appropriate to make an order for costs, where such an order is made, in favour of the person who provided the professional advice or assistance in accordance with section 95(4).
The evidence that has been placed before me makes it quite clear that the worker in this case has not made adequate provision to Messrs. Duncan and Hannon to cover the costs of the solicitor and counsel fees associated with the hearing before me. If one were to ignore for the time being, that an appeal was ultimately lodged on behalf of the worker, there is no doubt that if an application had been made by Messrs. Duncan and Hannon for an order pursuant to section 95(4) of the Act, I would have made it.
If I were to now refrain from making such an order, it could only be on the basis that Messrs. Duncan and Hannon ought to suffer some penalty because they were involved in the unsuccessful appeal before the Full Bench of the Tribunal. I say that, because if one were to assume that Messrs. Duncan and Hannon had advised the worker not to pursue an appeal and if he of his own accord and contrary to their advice, either instructed other solicitors to prosecute such an appeal or prosecuted it himself, even though that unsuccessful appeal might have resulted in an order for costs in favour of the Corporation, I do not see how in those circumstances, the Corporation could resist an order being made in favour of the worker's solicitors pursuant to section 95(4).
Should it matter that Messrs. Duncan and Hannon advised the worker that he should appeal my decision? I suppose there might be a case for saying that if solicitors have encouraged the prosecution of a frivolous or vexatious appeal, it might be thought to be appropriate to decline to make an order pursuant to section 95(4), in the knowledge that the failure to make such an order would significantly diminish the solicitors' capacity to recover any fees in respect of the matter. But I do not need to decide that here, because I do not think it can be said that the appeal lodged in this case, can be so categorised. The case before the Full Bench was unique in two respects. First, it was the first appeal to the Full Bench of the Workers Compensation Tribunal and it remained to be seen how the Full Bench would construe the expression `question of law' as appears in section 86(1) of the Act. Secondly, the case was the first which concerned a discontinuance based upon a termination from employment for serious and wilful misconduct as provided for by section 36(1)(e).
Although both of these matters were ultimately resolved adversely to the worker, to the extent that it is relevant, I do not think it can be said that it was unreasonable for the worker to have prosecuted the appeal. Thus, even if punitive considerations are relevant to the exercise of the discretion provided for by section 95(4), and I express no concluded view about that, they are not relevant here.
In all the circumstances, I think it is appropriate for me to make an order that the order of costs that I made in favour of the worker in respect of a hearing before me be made in favour of Messrs. Duncan and Hannon.