Orellana-Fuentes v Standard Knitting Mill Pty Limited & Anor; Carey v Blasdom Pty Limited T/as Ascot Freightlines & Anor

Orellana-Fuentes v Standard Knitting Mill Pty Limited & Anor; Carey v Blasdom Pty Limited T/as Ascot Freightlines & Anor - [2003] NSWCA 146 - NSWCA 2003 case summary — Zoe

CATCHWORDS : WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998 - Workers Compensation (General) Regulation 1995 - Whether the Workers Compensation Commission is a court - Reasonableness of the costs recoverable in hearings before the Commission - Right to legal representation - Whether item 4.11 of Sch 6 to Regulation ultra vires - Constitutional validity of Statute and Regulation. D Commonwealth of Australia Constitution Act, Ch III Judiciary Act (1903) (Cth), s 39(2) Judicial Officers Act (1986) Legal Profession Act 1987, s 54(1)(d) LEGISLATION CITED : Workers Compensation Act 1987 Workers Compensation (General) Amendment (Costs in Compensation Matters) Regulation 2003 Workers Compensation (General) Amendment (Costs) Regulation 2001, cl 107-8 of Sch 1 Workers Compensation (General) Regulation 1995, Sch 6 Workplace Injury Management and Workers Compensation Act 1998, ss 3, 248, 254-5, 258, 260-1, 263-4, 290-1, 292-3, 294A, 320-1, 325-8, 332, 337, 343, 351, 353-7, 359-62, 364, 368-9, 371-2, cl 6 & 12 of Sch 5 Andrews v Howell (1941) 65 CLR 255 Australian Boot Trade Employees' Federation v The Commonwealth (1954) 90 CLR 24 Baker v Campbell (1983) 153 CLR 52 Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 Blyth District Hospital v South Australian Health Commission (1998) 49 SASR 501 Carter v The Potato Marketing Board (1951) 84 CLR 460 Coco v The Queen (1994) 177 CLR 292 Collier v Hicks (1831) 2 B & Ad 663; 109 ER 1290 Crothers v Sheil (1933) 49 CLR 399 Daniels Corporation International Pty Limited v Australlian Competition and Consumer Commission (2002) 77 ALJR 40 Dietrich v The Queen (1992) 177 CLR 292 Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49 CASES CITED : Ex Parte H Brazil & Company Pty Limited (1978) 138 CLR 194 Grant v Downs (1976) 135 CLR 674 H C Sleigh Limited v The State of South Australia (1977) 136 CLR 475 Kable v Director of Public Prosecutions (1996) 189 CLR 51 Minister of State for Resources v Dover Fisheries Pty Limited (1993) 43 FCR 565 Residual Assco Group Limited v Spalvins & Ors (2000) 202 CLR 629 Shanahan v Scott (1957) 96 CLR 245 The Commonwealth of Australia v The Hospital Contribution Fund (1982) 150 CLR 49 The Shire of Swan Hill v Bradbury (1937) 56 CLR 746 Walker v Secretary, Department of Social Security (1995) 129 ALR 198 Western Australia v Ward (1997) 76 FCR 492 Wilcox Mofflin Limited v State of New South Wales (1952) 85 CLR 488 Wragg v State of New South Wales (1953) 88 CLR 353 CA 40102/03 Patricia Orellana-Fuentes (Claimant) Standard Knitting Mill Pty Limited (First Opponent) WorkCover (First Intervener and Joined as Second Opponent) Law Society of NSW (Second Intervener) PARTIES : CA 41069/02 Caroline Lynette Carey (Claimant) Blasdom Pty Limited T/as Ascot Freightlines (First Opponent) WorkCover (First Intervener and Joined as Second Opponent) Law Society of NSW (Second Intervener) FILE NUMBER(S) : CA 40102/03; 41069/02 S J Gageler SC/R I Goodridge/J K Kirk/W J Carney (Claimants: CA 40102/03 & CA 41069/02)) COUNSEL : P Macken (Solicitor) (First Opponent: CA 40102/03) D K Jordan (First Opponent: CA 41069/02) J Gleeson SC/M J Leeming (First Intervener and joined as Second Opponent: CA 40102/03; CA 41069/02) H K Husseini & Co (Claimant: CA 40102/03) Firths The Compensation Lawyers (Claimant: CA 41069/02) SOLICITORS : Leigh Virtue & Associates (First Opponent: CA 40102/03) Turks Legal (First Opponent: CA 41069/02) I V Knight, Crown Solicitor (First Intervener and joined as Second Opponent: CA 40102/03; CA 41069/02) A S Brown (Second Intervener: CA 40102/03; CA 41069/02)

[30]

The two matters before the Court 4 These reasons relate to two applications for leave to appeal. The appeals come to this Court under s 353 of the Workplace Injury Management and Workers Compensation Act 1998 ("the 1998 Act"). It is common ground that, by s 353, each appeal requires the leave of the Court. Hence, the applications for leave to appeal. In each case, the application for leave to appeal and appeal were heard concurrently. The two cases were heard together. 5 The claimant in CA 40102/03 ("Mrs Fuentes") was injured on 7 December 2001. The Workers Compensation Commission ("the Commission") held that she was injured in the course of her employment with the opponent Standard Knitting Mills Pty Limited ("SKM") and was totally incapacitated for work as a result of her injuries from 7 December 2001 to 21 December 2001. On 13 September 2002 the Commission ordered SKM to pay Mrs Fuentes $527.52 per week for the two week period from 7 December 2001 to 21 December 2001, her medical expenses for that period and her costs. 6 On 28 August 2002, prior to the making of those orders, Sheahan J, the President of the Commission, granted leave to Mrs Fuentes to refer a question of law to him pursuant to s 351 of the 1998 Act. That question of law was as follows: "This is an appeal on a point of law involving s 351 and s 356 of the Workplace Management Act (1998 NSW As Amended) (WIM) and Sch 1, item 4.11 of the Workers Compensation (General) Amendment (Costs) Regulation 2001 (the Costs Regulation). Section 351 allows an appeal through the arbitrator on a point of law. The applicant contends that the Cost Regulation as set out in Sch 1, item 4.11 of the Costs Regulation is contra or ultra vires s 356 of WIM as it in effect precludes legal representation at an arbitration hearing". 7 The claimant in CA 41069/02 ("Ms Carey") is the widow of a deceased worker. She brought a claim for compensation against the opponent in that matter ("Blasdom"). On 12 September 2002, the Arbitrator (pursuant to s 351 of the 1998 Act) referred the same question of law to Sheahan J as the President of the Commission. The parties consented to both questions of law being heard together. 8 Sheahan J, however, refused Ms Carey leave to refer the question of law in her case. His Honour pointed out that the same counsel appeared for both Ms Carey and Mrs Fuentes and the question of law was identical in both matters. He said that the question of law was "fully argued" in Mrs Fuentes' case and held that, on that ground, the question of law in Ms Carey's case was, "not 'novel or complex', as required by s 351 of the 1998 Act". Accordingly, in Ms Carey's case, he refused leave to refer the question of law.

[47]

We were told from the Bar table that the proceedings did not occupy the full day on each of the days on which the matter came before the Commission, but none of the parties was able to inform the Court of the specific periods taken up each day by the hearing. Accordingly, the evidence of Mrs Fuentes' solicitor as to the length of the hearing is virtually valueless. 34 As regards the evidence concerning the difficulties of obtaining counsel, the affidavit stated that the usual counsel briefed by the solicitor was not prepared to take the matter as "under the new amendments to the Workers Compensation Cost Regulation there is little, if no fee provided for counsel's appearance". The solicitor stated that he communicated with a clerk of a set of chambers which contains many barristers who specialise in workers compensation matters. He asked the clerk to find him a barrister "to act on a workers compensation matter in arbitration before the Workers Compensation Commissioner". The clerk said that he would do his best and get back to the solicitor, but the solicitor did not hear from the clerk again. This evidence, on its own, is so vague and insubstantial that no inference can be drawn as to the readiness of counsel, generally, to appear in workers compensation matters involving arbitration hearings. 35 According to the affidavit of the solicitor representing Ms Carey, his client has potentially a large claim for compensation. He pointed out that the relevant section under the Workers Compensation Act 1987 allows for the payment of $271,500 to be apportioned among dependants. He said nothing, however, as to the number of dependants involved. The solicitor also stated that he approached about nine or ten barristers who practise in the workers compensation area in an attempt to retain one on behalf of Ms Carey, but was unsuccessful as none was prepared to act on the basis that, for the hearing of the arbitration, the fee payable was $250. For the reasons set out below, I consider that the question as posed does not reflect an accurate picture of the fees payable for representing parties at hearings. Accordingly, no reliable inference can be drawn from this evidence as to the preparedness of counsel, when properly informed, to appear in workers compensation matters. 36 Thus, while I would admit the affidavits, I would not attach any significant weight to them.

[49]

All relevant factors have to be considered in determining whether a particular institution is a court. Amongst such factors are the persons of which the institution is composed, as they form part of the institution. 39 Undoubtedly, the Commission does exercise judicial powers, but this does not necessarily make it a court. There are many institutions that exercise judicial powers but are well recognised not to be courts. 40 By s 369 of the 1998 Act, the President of the Commission has to be a judge of a court of record. A Deputy President has to be or have been a judicial officer (within the meaning of the Judicial Officers Act (1986)), or be a legal practitioner of at least five years standing. By s 357, the Commission is afforded various means of obtaining information from parties or witnesses. Section 359 empowers the Commission to compel appearance of parties at conferences or hearings. Section 360 empowers the Commission to require persons to give evidence on oath or by affirmation and to answer relevant questions. Section 361(1) confers on persons appearing before the Commission on behalf of parties the same protection and immunity "as a practising legal practitioner has in appearing for a party in proceedings in the District Court". Section 362 provides for the enforcement of orders in a way not dissimilar to the powers of a court. These provisions are consistent with the Commission being a court. 41 There are many provisions, however, that tend to show that the Commission is not a court. 42 By s 368(1) of the 1998 Act, the Commission consists of a President, two Deputy Presidents, a Registrar and Arbitrators. The Arbitrators are appointed by the President. The idea that members of a court can be appointed by the president of the court is foreign to the notion of a court, at least as far as this country is concerned. 43 A person eligible to be appointed as the Registrar or as an Arbitrator must either be a legal practitioner or have "such qualifications, skills or experience as may be determined by the Minister". Thus the Registrar and the Arbitrators do not have to be legally qualified. It is not customary for members of a court not to be legally qualified.

[50]

44 By s 371, the Registrar of the Commission has and may exercise all the functions of an arbitrator. By s 371(2), the Registrar can delegate to any member of the staff of the Commission any of the Registrar's functions (except the power of delegation). It is not the characteristic of a court that its registrar is empowered to exercise the functions of a member of the court or that a registrar can delegate to any member of the staff of the court the functions of a member of the court. 45 By s 372, "Arbitrators are, in the exercise of their functions, subject to the general control and direction of the Registrar". This subordinate position of the Arbitrators does not sit comfortably with the Arbitrators being members of a court. 46 Section 355(1) requires an Arbitrator not to determine a dispute without attempting to mediate a settlement between the parties. Conciliation is a major part of the duties of Arbitrators; ordinarily, that would be an unusual feature of a judicial officer's work. 47 Section 355(2) provides that no objection may be taken to an Arbitrator determining a dispute on the ground that the Arbitrator had previously attempted to mediate a settlement. Such a provision is not usually applicable to a judicial officer. 48 Members of the Commission do not have security of tenure. Arbitrators may be removed from office at any time by the President while the President may be removed by the Minister for incapacity, incompetence or misbehaviour (Sch 5, cl 6 of the Act). Members do not have to take a judicial oath (Sch 5, cl 12 of the Act). The Commission does not have rule making power. Rules are made by the Minister (s 364). All these provisions militate against the Commission being a court. 49 By s 354(1), the proceedings before the Commission are to be conducted with as little formality as reasonably possible. By s 354(2), the Commission is not bound by the rules of evidence. While it is not unknown for like provisions to apply to a court, they are unusual features of a court's procedures. 50 Section 354(4) draws a distinction between a "formal hearing" and other proceedings that may be conducted by way of a conference between the parties. By s 354(6), the Commission may exercise functions under the Act without holding any conference or formal hearing. This level of informality is another unusual feature. 51 Section 293(1) permits the Registrar to refer medical disputes before the Commission for medical assessments. Section 293(2) provides that if a dispute concerns the degree of permanent impairment the Registrar must refer that aspect of the dispute for medical assessment. Section 320 empowers the President of the Commission to appoint medical practitioners to be "approved medical specialists". Section 321 provides for the appointment of an approved medical specialist to assess a medical dispute. By s 325, the approved medical specialist to whom a medical dispute is referred is to provide a medical assessment certificate as to the matters referred for assessment. By s 326(1), a medical assessment certificate is conclusively presumed to be correct as to several stipulated matters. By s 327, a party to a medical dispute may appeal against a medical assessment in regard to matters that are conclusively presumed to be correct, but only on certain stipulated grounds. By s 328(1), an appeal against a medical assessment is to be heard by an appeal panel constituted by two approved medical specialists and one arbitrator. The entire procedure involving medical disputes, both at first instance and on appeal, is inconsistent with the Commission being a court. It is necessary only to emphasise the part played by medical specialists under this system. The medical specialists are given far-reaching decision-making powers of a fundamentally judicial nature. These provisions are significantly inconsistent with the Commission being a court.

[53]

Mr Gageler sought to gain support for this submission from the Agreed Facts. 54 Mr Gleeson submitted that the Court should not accept the Agreed Facts as the claimants and the opponents in the two matters before the Court had an identity of interest. In those circumstances, the Agreed Facts could not be binding on the Court, particularly as the decision of the Court could affect third parties. In my view, this submission must be accepted. 55 Mr Gleeson submitted that Mrs Fuentes and Ms Carey had not laid any proper factual foundation for their claim that item 4.11, or Sch 6 to the General Regulation as a whole, significantly impaired their ability to obtain legal representation. He submitted that it was notorious, and a matter of record, that litigants before the Commission "are legally represented by practitioners (most commonly solicitors) who practise in the area". It was submitted in reply that it was notorious that most of the firms of solicitors doing work in this area are "dying". 56 Before commenting on the issue so raised, however, it would be appropriate to have regard to the claimants' argument that the effect of item 4.11 is that the maximum costs recoverable for an appearance in an arbitration hearing before the Commission are limited to $250. 57 As I have mentioned, item 4.11 is contained in Sch 6 to the General Regulations. As mentioned, the Schedule divides up services that might be rendered to parties by legal practitioners under the 1998 Act into particular categories. It then attaches a maximum cost figure to each. An understanding of the regime of maximum recoverable costs in Sch 6 requires some analysis of the Commission's procedures. 58 Sections 354 and 355 of the 1998 Act lay down the bare bones of the Commission's procedures and much has been left for the Commission itself to develop in practice. No evidence was adduced in regard to this issue. An attempt was made from the Bar table to provide the Court with the relevant information. That, however, did not prove to be satisfactory. The Court was not able to ascertain, in a detailed and reliable manner, the practice that is adopted in the Commission in regard to all matters relevant to the issues that arise in this appeal. 59 There was uncertainty as to the practical difference between informal and formal hearings before the Commission. We were told that, in some circumstances, when an informal hearing is converted to a formal hearing, the formal hearing commences afresh, and in some circumstances whatever is done in the informal part of the hearing is taken into account in the formal hearing. There appeared to be no generally accepted rule. The proceedings at conferences and both forms of hearing are transcribed. Mr Macken said: "[T]here is usually a telephone conference first, when a matter is listed for conference/arbitration. At the conference/arbitration the arbitrator first uses their best endeavours to settle the matter, and if not, proceeds to arbitration".

[54]

We were told that if it appeared during a conference that there was no prospect of a settlement, the formal arbitration hearing would proceed on a different day. It appeared to be accepted that the "conference" part of the procedure would include at least an informal hearing. It was not entirely clear from what we were told whether a "conference" would include a formal hearing. 60 By reason of the lack of certainty in the information so given to the Court, it is necessary to construe Sch 6 substantially by reference to its own terms, and not by reference to any long-standing or accepted practice adopted in proceedings before the Commission. 61 In the light of s 355(1) of the 1998 Act, it is inevitable that, once a dispute is referred to the Commission for determination, a conference will first be held. Item 4.08, which applies to preparing for a conference (including providing advice to client), prescribes a maximum amount for this activity of $250 per hour with a maximum total of $500. 62 Item 4.09 applies to the activity of "attending and participating in a conference with an Arbitrator". This item assumes that a "conference" is capable of including an "arbitration hearing", as it expressly excludes from its application the activity of attending and participating in an arbitration hearing. Item 4.09 also expressly excludes from its application the attendance and participation in a conference under circumstances that give rise to the application of item 4.10. The maximum amount recoverable as costs under item 4.09 is $250 per hour with a total maximum of $1,000. 63 The activity involved in item 4.10 is attending and participating in a conference with an arbitrator where the arbitrator determines that the matter is complex and the matter proceeds directly to arbitration. The maximum amount recoverable as costs under item 4.10 is $250 per hour with a total maximum of $1,500. As a "conference" appears to be a broad term inclusive of an arbitration hearing, it seems that item 4.10 applies to all facets of a conference (including the arbitration hearing). 64 This inference is reinforced by the circumstances under which item 4.11 applies. The maximum amount recoverable under item 4.11 is $250 and it applies to attending and participating in an arbitration hearing, other than where item 4.10 applies. Therefore, item 4.11 applies only when item 4.09 applies. The exclusion of item 4.10 situations from the application of item 4.11 is rationally explicable on the ground that item 4.10 is intended to provide for the recoverable costs for the entire conference, including the arbitration hearing. On this basis, to allow costs to be recovered under item 4.11, as well as item 4.10, would give rise to double recovery. 65 This is to be contrasted with item 4.09 which, as I have noted, does not apply to an arbitration hearing. Thus, in circumstances where the Arbitrator does not determine that item 4.10 applies (and therefore item 4.09 applies), and a hearing does take place, a charge can be made for the costs recoverable for the activities under item 4.11 as well as under item 4.09. There is then no double recovery here. 66 Item 4.12 should also be noted. The activity under this item is reporting to the client on the outcome of a conference or arbitration and the maximum amount allowed here is $150. By the Workers Compensation (General) Amendment (Costs in Compensation Matters) Regulation 2003, the amount of $150 under item 4.12 was increased to $190. Under item 4.12 the costs recoverable are in respect of reporting to the client "on the outcome of a conference or of an arbitration". In my view item 4.12 is to be construed as meaning that $190 is recoverable for reporting to the client on the outcome of a conference prior to the commencement of an arbitration hearing and a further $190 is recoverable for reporting to the client on the outcome of the arbitration. Thus a maximum of $380 is now recoverable under item 4.12. 67 On the basis of the foregoing, where the arbitrator does not determine that a matter is complex, and the matter does not proceed directly to arbitration, the costs recoverable under Sch 6 for preparing for the conference, conducting the arbitration and reporting to the client, are as set out in items 4.08, 4.09, 4.11 and 4.12. This comes to a maximum of $500 plus $1,000 plus $250 plus $380, being $2,130. Where the Arbitrator does determine that the matter is complex and the matter proceeds directly to arbitration, the costs recoverable are those under items 4.08, 4.10 and 4.12 (being $500 plus $1,500 plus $380, which equals $2,380). 68 Accordingly, it is inappropriate to focus on one item in the Schedule, such as item 4.11, in order to determine whether it is outside the regulation- making power. One needs to examine Sch 6 as a whole to determine the reasonableness or otherwise of the scheme of fees available for representing a party involved in a dispute before the Commission. 69 In the circumstances, the foundation of the entire argument mounted on behalf of Mrs Fuentes and Ms Carey falls away. That argument rests on the premise that the costs recoverable by a legal practitioner or an agent who represents a client at a "hearing" under the 1998 Act, in regard to a dispute that has been referred to the Commission for determination, amount only to $250. But that premise does not take into account the fact that, under Sch 6, a "hearing" is part of a "conference", and substantially more is payable for attending the various facets of a conference.

[55]

The reasonableness of the costs recoverable in hearings before the Commission 70 In assessing the reasonableness of the costs recoverable under Sch 6, regard must be had to the policy of the 1998 Act and the Schedule in so far as they apply to the hearing of disputed claims. 71 The workers compensation legislation in this State involves two different streams to which the legislation applies. The first is the statutory scheme of compensation and the second involves modifications to common law rights to damages for personal injuries. It is apparent that part of the purpose of the 1998 Act was to curtail the length, complexity and costs of both statutory claims for compensation and common law claims for damages. This purpose is reflected in s 3 of the 1998 Act which provides: "The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives: (a) … (d) To be fair, affordable, and financially viable, (e) … (f) To deliver the above objectives efficiently and effectively." 72 The 1998 Act contains many provisions designed to promote the resolution of disputes as quickly and as cheaply as possible without having a formal hearing. I shall give some examples of these. There are detailed provisions concerning the notice of injury that must be given to an employer (ss 254 and 255). These provisions are capable of strict enforcement (s 258). There are detailed provisions as to how a claim is to be made (s 260) and strict time limits are imposed for making a claim (ss 261, 263 and 264). There are detailed provisions concerning the information exchange between parties (s 290), the duties of insurers when disputes are referred to the Commission (s 291), and the expedited assessment of disputes (s 292) as well as medical assessments (ss 293 and 294A). There are detailed provisions concerning the conciliation of claims (s 355). 73 The costs regime contained in Sch 6 is part of the scheme of procedural mechanisms and other incentives designed to promote the settlement of disputes before formal hearings take place. This explains why Sch 6 provides for substantially more recoverable costs for proceedings that precede formal hearings. 74 There are a number of activities that a legal practitioner is likely to perform for a client who brings a claim before the Commission which arise before the referral of a dispute to determination. Items 1.01 to 2.01 of Sch 6 apply to such activities. The maximum amount recoverable under these items is $930. Items 4.01 to 4.07 apply to activities that arise after a dispute has been referred to determination, but before the point contemplated by 4.08 (preparing for a conference). The maximum amount recoverable under items 4.01 to 4.07 is $1,480. I have noted that the maximum amount recoverable under items 4.08 to 4.12 is between $2,130 and $2,380. The aggregate of $930, $1,480 and $2,380 is $4,790. Accordingly, for representing a claimant in bringing the claim before the Commission, and for prosecuting the claim after it has been referred to determination until it is finally resolved by the Commission, a single legal practitioner can earn up to a maximum of $4,790. 75 There was no evidence before the Commission or Sheahan J bearing upon the reasonableness of the relevant costs provided by Sch 6. Mrs Fuentes' argument was put to Sheahan J on the basis that the maximum amount that could be paid to a legal practitioner representing a claimant at a hearing was $250. I have given my reasons for concluding that that submission was incorrect. 76 In the proceedings before this Court, there was no evidence as to the average or median duration of compensation claims before the Commission. We were not told the average or median length of arbitration hearings of the kind contemplated by item 4.11. 77 The only evidence as to the reasonableness of the costs recoverable was that of the solicitors of Mrs Fuentes and Ms Carey (to which I have already referred and commented upon), which was predicated on the basis that the maximum amount recoverable was $250. The costs in fact recoverable have not been assessed. 78 In view of the complete absence of relevant evidence relating to the reasonableness or otherwise of the recoverable costs provided by Sch 6, and the quite unsatisfactory nature of the evidence relating to the inability to retain counsel to appear at Commission hearings (irrespective of the correct amount of costs recoverable), there is no foundation for the main plank of the claimants' argument, namely, that the costs recoverable under item 4.11 of Sch 6 are so low that they have the practical effect of negating any rights that the claimants might have to legal representation. 79 In any event, in my view, the argument is based on a false premise, namely, that the costs recoverable for representing a client at a hearing have to be considered by reference to item 4.11 alone. 80 On these grounds alone I would refuse leave to appeal as regards both Mrs Fuentes and Ms Carey, and I would dismiss their claims for declarations. It is not necessary to deal with Ms Carey separately. 81 I should add a further comment in relation to the conclusion that I have expressed. Section 337(3) of the 1998 Act provides: "A legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section".

[58]

The ultra vires argument 84 Despite the firm conclusion which I have arrived at based on the failure to establish the unreasonableness of the relevant costs recoverable, I shall proceed to deal with the argument that item 4.11 was ultra vires the 1998 Act. I shall do so on the notional basis that the amount provided thereby was so low as to negate a claimant's right to legal representation. 85 The starting point in the argument is s 356(1) of the 1998 Act which, as I have mentioned, provides: "A person who is a party to proceedings before the Commission is entitled to be represented by a legal practitioner or by an agent". 86 Section 356(1) must be read with s 337(6) which provides: "The power under this section to make regulations fixing maximum costs for services or matters includes power to make regulations to provide that no amount is recoverable for a particular service or matter or class of services or matters, with the result that a legal practitioner or agent is not entitled to be paid or recover any amount for the service or matter concerned". 87 On its face, s 337(6) expressly empowers the making of regulations fixing an amount "for a particular service or matter or class of services or matters" at nil. Prima facie, s 337(1) can be reconciled with s 356(1) by reading s 356(1) as being subject to s 337(6). 88 Mr Gageler submitted, however, that the right to be represented by a legal practitioner in relation to claims brought before the Commission was a fundamental right. He submitted that in these circumstances the principles expressed in Coco v The Queen (1994) 179 CLR 427 by Mason CJ, Brennan, Gaudron and McHugh JJ applied, namely: "The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights".

[63]

Gaudron J held that legal representation was essential for the fair trial of serious offences unless the accused chose to represent himself. 92 Brennan J and Dawson J dissented. Brennan J did not recognise that in Australia there was an individual right to counsel (at 317 to 318). His Honour was of the view that no miscarriage of justice arose simply from the fact that the applicant was not legally represented (at 325). Dawson J agreed with Brennan J. He said (at 350): "The function of the courts is to ensure that an accused person receives the fairest possible trial in all the circumstances and those circumstances may include the lack of representation of the accused in some cases". 93 Dietrich is therefore not authority for the proposition that under the common law there is an absolute right to legal representation; indeed, it is to the contrary. Even when considering whether the absence of legal representation could give rise to an unfair trial, the members of the High Court stressed the significance of the particular circumstances of each case. 94 Mr Gageler also relied on Western Australia v Ward (1997) 76 FCR 492 at 497 to 498 where Hill and Sundberg JJ said: "A law which required Ch III judges to determine cases without hearing the parties would, no doubt, be inconsistent with the judicial function and void. Likewise, a law that provided the Ch III judges were not required to give procedural fairness would be incompatible with the exercise of judicial power and be struck down. … Were Parliament to pass a law outlawing legal representation before a Ch III court, it may well be that such a law would be held to be invalid as inconsistent with the exercise by Ch III courts of judicial power. Such representation may well be inherent in the obligation of courts to provide procedural fairness. But just as what is necessary to afford procedural fairness will depend upon the circumstances of the case, so, too, there may be circumstances where the right to a lawyer of one's own choice may need to give way to the overall interests of justice". 95 Firstly, I have concluded that the Commission is not a court. Therefore their Honours' observations as to "a Ch III Court" are not presently applicable. Secondly, their Honours note that what is in the interests of justice "will depend upon the circumstances of the case" and note that the interests of justice may override "the right to a lawyer of one's own choice". Western Australia v Ward does not establish the existence of an absolute right to legal representation. 96 It is self-evident that legal representation is ordinarily an important part of procedural fairness and, ordinarily, it is in the public interest that citizens be allowed legal representation for the purposes of the conduct of litigation: cf Grant v Downs (1976) 135 CLR 674 (at 685); Baker v Campbell (1983) 153 CLR 52 (at 114) (approved in Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49 (at 64). 97 Thus, while there is no fundamental absolute right in Australia to legal representation before a Ch III Court or otherwise, there may well be circumstances in which a person's right to a fair hearing would be negated if that person did not have legal representation. On the other hand (and much less frequently), there may be circumstances where the interests of justice will be sufficiently served by hearing only the parties themselves. The need for legal representation must depend on the background of the party concerned, the nature of the proceedings, the nature of the tribunal and the nature of the claim. 98 It is from this standpoint, in my view, that the exercise of construction required in this appeal has to be approached. Seen in this light, I shall proceed by accepting that, for legislation to do away with legal representation in a tribunal such as the Commission, it must express that intent expressly or by necessary implication. 99 Mr Gageler submitted that the words "particular service" in s 337(1) are more apt to describe some service incidental to the entitlement to appear, rather than the core and distinct activity of appearing in court as an advocate. He submitted that Parliament intended, for example, to restrict the amounts that could be charged for such particular matters as making telephone calls, writing letters, filing documents or doing photocopying. But not to the amounts that could be charged for representing the client in a hearing. 100 Section 337(1) identifies the activities of lawyers or agents as "legal services or agent services" and activities that are not legal services or agents' services as "matters". Section 337(3) provides that a legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds the maximum costs fixed for the service or matter by the Regulations. A similar prohibition is contained in s 337(4) in regard to agents. Section 337(5) provides that the section "does not entitle a legal practitioner to recover costs for a legal service or matter that a court or costs assessor determines were unreasonably incurred". I have drawn attention to s 337(6). 101 Mr Gleeson submitted that, when regard is had to the prohibitions contained in s 337 in relation to the recovery of amounts that exceed maximum costs, and costs unreasonably incurred, the compelling conclusion is that the term "service," where it appears in s 337, "embraces the entirety of the professional activities of lawyers and agents not just incidental activities". In my view, this submission is correct. It is highly unlikely that the legislature would have gone to the extent that it did in s 337 to deal with the costs recoverable by lawyers and agents in providing services in connection with "any workers compensation matter or work injury damages matter" (to use the words of s 337(1)(a)) in order to control incidental activities alone. In my view, s 337 as a whole indicates that the legislature intended to control the costs recoverable in respect of the entirety of professional services rendered by lawyers and agents in connection with all workers compensation matters. See in this regard the definition of "agent service" in s 332(1). 102 In my opinion, the activity identified by item 4.11 falls squarely within the meaning of "particular service". I do not accept the argument advanced in this regard on behalf of Mrs Fuentes and Ms Carey. 103 The next argument raised on the claimants' behalf in regard to this issue was that the regulation making power under s 337(6) "does not extend to the creation of a wholesale restriction on the ability to obtain representation in hearings before the Commission exercising, as it does, judicial power". Reliance was placed on the observation of Dixon J in The Shire of Swan Hill v Bradbury (1937) 56 CLR 746 (at 762): "Prima facie a power to make by-laws regulating a subject matter does not extend to prohibiting it … altogether".

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Reliance was also placed on the distinction between the power to regulate and the power to prohibit. It was said that this rule was applied in Blyth District Hospital v South Australian Health Commission (1998) 49 SASR 501 (at 512 to 513) where the Full Court of the Supreme Court of South Australia held that a regulation to the effect that no fee should be charged by hospitals for accommodation, maintenance, care and treatment of public in-patients, was ultra vires a power to "regulate the fees to be charged". 104 It is to be noted that the regulation-making power in s 337 is not a power in general terms (a purposive power) such as that considered in Shanahan v Scott (1957) 96 CLR 245. The question here is simply whether there is a real and substantial connection between the delegated legislation and the subject matter of the grant of power: Minister of State for Resources v Dover Fisheries Pty Limited (1993) 43 FCR 565 at 574 to 578 and 584. The subject matter of the grant of power is clearly defined in s 337; namely, the making of regulations directed to stipulating the maximum costs recoverable for the provision of legal services. The delegated legislation, namely Sch 6 in general and item 4.11 in particular, provides for maximum costs recoverable for particular legal services or particular classes of services. There is indeed a real and substantial connection between the delegated legislation and the subject matter of the grant of power. 105 The argument of the claimants in my view fails to address the express power contained in s 337(6) to make regulations to provide that "no amount is recoverable for a particular service or matter or class of services or matters", coupled with the explanation that a legal practitioner or agent in such circumstances "is not entitled to be paid or recover any amount for the service or matter concerned". In my view, the words of s 337(6) express the intention of Parliament with unmistakeable clarity. They mean what they say. In my view, s 356(1) and s 337(6), when read together, empower the making of regulations that allow a person who is a party to proceedings before the Commission to be represented by a legal practitioner or by an agent, in circumstances where such a practitioner or agent, by such regulations, is not entitled to recover any amount at all for a particular service or matter or class of services or matters. Accordingly, I would not uphold the claimants' argument in this regard. 106 Mr Gageler submitted further that item 4.11 was beyond the power conferred by ss 248 and 337 of the 1998 Act as, in the absence of clear statutory language, the power concerned should not be read as permitting the making of regulations which detract from or impair the entitlement to legal representation expressly conferred by s 356(1) of the 1998 Act. In my view, the statutory language is indeed clear. 107 I should add that I am not persuaded that the conclusion to which I have come on the ultra vires grounds leads to a situation that is contrary to the interests of justice. I have referred above to the accepted notion that there may be circumstances in which the interests of justice may be served by preventing parties from having legal representation. This may occur, for instance, in tribunals where the issues in dispute are not likely to be significant or complex, or where the amount involved is likely to be small, or where there is a strong need to reduce the legal costs involved, or where there is a combination of one or more of these factors. For example, as long ago as Collier v Hicks (1831) 2 B & Ad 663 at 669; 109 ER 1290 at 1292, Lord Tenterden CJ stated, in regard to the denial to the parties of the right of legal representation in summary proceedings before magistrates: "[I]t may be for the benefit of the parties that such rights should not be admitted. If the informer may, as a matter of right, demand that a professional advocate shall be heard for him, though he himself be present, the accused must have the same rights. The consequences would be that the parties would in most cases be put to a heavy and grievous expense … [T]he ends of justice will be sufficiently well attained in these summary proceedings by hearing only the parties themselves and their evidence, without that nicety of discussion, and subtlety of argument, which are likely to be introduced by persons more accustomed to legal questions". 108 With regard to the Commission, as I have mentioned, by the 1998 Act, Parliament has placed considerable emphasis on conciliation proceedings and informal hearings in an attempt to provide mechanisms and incentives for settlement of disputes before the disputes are formally disposed of in the traditional way by the adversarial process. Workers compensation is well suited to this policy. The costs structure contained in Sch 6 is part of this system and creates an additional incentive to parties, lawyers and agents to strive for consensual settlements prior to formal hearings. For my part, I am not persuaded that this policy offends the interests of justice. The result in Mrs Fuentes' case is a good example of this. With the benefit of legal representation she succeeded in her claim to the extent of some $1050 plus medical expenses incurred over a two week period. On the assumption that the notional costs recoverable in respect of the hearing of her claim were limited to $250, I would comment that that amount appears to be reasonably proportionate to the value of her claim. This conclusion is reinforced when regard is had to whatever time was spent in the required conciliation process and the informal hearing procedure (and the costs recoverable in respect of these services). 109 I would also note that the 1998 Act, by s 356(1) and other sections, recognises the right of parties to be represented in proceedings before the Commission by agents who are not legal practitioners. Such agents may include a trade union advocate or a member of an insurance company's claims department. Historically, representation of this kind has not been uncommon in workers compensation claims. This practice is recognised by s 356(6), which defines an agent as including such persons. There was no evidence as to the preparedness of agents who are not legal practitioners to appear at arbitration hearings for a fee of $250.

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The constitutional grounds 110 Mr Gageler put forward two arguments based on constitutional grounds. I have referred to these above but, for convenience, shall set them out again. 111 The first leg of the first argument was that the Commission exercises judicial power, exercises federal jurisdiction and is a court. The second leg was that the costs limitation imposed by item 4.11 is inconsistent with the judicial process and is incompatible with Ch III of the Constitution: Kable v Director of Public Prosecutions (1996) 189 CLR 51. 112 The second constitutional argument raised by Mr Gageler was predicated on the assumption that the Commission is not a court. He argued, firstly, that, if the Commission is not a court, it cannot exercise federal judicial power and cannot determine matters in federal jurisdiction. He argued, secondly, that the 1998 Act purported to empower the Commission to exercise federal judicial power and to determine matters in federal jurisdiction. He then submitted that Parliament intended the 1998 Act to be either completely valid or completely invalid; accordingly, the invalid parts of the legislation could not be severed. On these grounds he submitted that the entire 1998 Act was invalid. 113 The conclusion to which I have come concerning the reasonableness of the costs regime under Sch 6 in general and item 4.11 in particular (and the grounds on which I have come to that conclusion) disposes of both constitutional arguments. But, as with the ultra vires arguments, I shall deal with them on the notional basis that the amount provided by Sch 6 as maximum recoverable costs is so low as to negate a claimant's right to legal representation. 114 For the reasons I have given, I am of the view that the Commission is not a court and the first constitutional argument fails on that ground. 115 The second constitutional argument hinges on whether a federal question is properly before this Court. Mr Gageler submitted that a federal question arose, as an argument on constitutional grounds had been put before Sheahan J, and submitted that, in any event, the mere putting of the constitutional arguments to this Court was sufficient to raise a federal question. He accepted that, apart from the constitutional arguments now raised, there was no other possible federal question that actually arose in the circumstances of the cases of Mrs Fuentes and Ms Carey. 116 A constitutional argument was mentioned before Sheahan J in the following way. Counsel for WorkCover had submitted to his Honour that the Commission was not a court. Mr Macken, for SKA, responded: "My friend has also properly raised the question of whether … the Commission is a court or not, so as to have jurisdiction. I haven't looked at that question and nor do I intend to one way or the other. Beyond having raised the matters for the purpose of preservation, I don't press them otherwise and I don't therefore ask the Commission to deal with them, other than to note that they have been raised".

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