Samandari v WorkCover Corporation

1. At a further directions hearing on 30 July 2015, Dr Vaesi of Hilton Lawyers Adelaide, for the Applicant Mr Samandari, said that she would not be ready for trial (commencing on 12 October 2015) as she had not briefed a barrister. Dr Vaesi also said that she was in breach of the orders relating to the applicant's Statement of Issues and the applicant's Statement of evidence. She said that she was unable to complete these documents because she needed counsel to settle them.
2. Dr Vaesi was told that a dim view was taken as to her lack of preparedness to date, but that there was still sufficient time (over ten weeks) to be ready for the trial commencing on 12 October 2015.
3. An Application for Directions was subsequently filed[6] by Hilton Lawyers Adelaide seeking orders that; trial dates of 12, 13 & 14 October 2015 to be vacated and for new trial dates to be set.[7]
4. Dr Vaesi annexed her Affidavit[8] to the Application for Directions. In that Affidavit she says that there had been global settlement discussions but that:

"On or about 22 June 2015 it became apparent that settlement was unlikely to occur."[9]

"I then took steps to retain and brief counsel for the trial

On 30 and 31 July 2015 I contacted the following Barristers to ascertain their availability for trial and to accept the brief:-

a. ...

b. ...

c. ...

d. ...

e. ...

f. ...

g. ... [names redacted]

Each of the Barristers listed above has advised that they are not available for the trial and hence cannot accept the brief.

The Barristers identified above are my preferred counsel."

1. The application to adjourn the trial was listed on 20 August 2015. Mr Warren appeared for Mr Samandari, stating however that he was only retained for the purpose of the application to adjourn and not any further.
2. Mr Warren did not seek to elevate the reason for the request to adjourn any higher than only the unavailability of Dr Vaesi's preferred counsel, as set out by her in her affidavit. He argued the desirability of counsel with workers compensation experience.
3. Mr Coppola, for the respondent, opposed the application to adjourn citing the breadth of the South Australian bar and still sufficient time to be ready for trial.
4. The unavailability of preferred counsel is rarely a sufficient reason to adjourn a trial.[11]
5. In the ordinary course, counsel's availability should be ascertained at least about the time of trial orders, in this case around 3 June 2015. Had that occurred then - over eighteen weeks prior to trial - perhaps one of Dr Vaesi's preferred counsel would have been available to accept the brief.
6. Dr Vaesi says that by about 22 June 2015 settlement was unlikely to occur. If not before, she should have then taken steps to engage counsel, preferred or not. If that had occurred then perhaps a barrister would have been available to accept the brief. It was however five weeks later on 30 July 2015 when Dr Vaesi first set about contacting her preferred barristers.
7. There was no evidence that at any time since 30 and 31 July 2015 that there has been any further attempts by Hilton Lawyers Adelaide to engage counsel for the trial to commence on 12 October 2015.
8. Whilst it was argued that the inability to engage preferred counsel was the reason why the trial should be adjourned, it is in fact unpreparedness that is at the heart of the application.
9. At the time the application was argued on 20 August 2015 (eleven weeks after trial orders), not only had counsel not been retained, but also the orders as to the Applicant's Statement of Issues and the applicant's statement of evidence had not been complied with. As with almost all compensability cases, what the injured worker has themselves to say about the circumstances of their own injuries that is of utmost importance to the determination of a dispute.
10. The lack of appreciation by litigious parties for the seriousness of its orders has long blighted this Tribunal. Public confidence in the proper administration of justice is undermined when parties to proceedings fail in their obligation to assist the Tribunal in the efficiency and economy of the litigation before it. The High Court said as much in Aon.[12]
11. Since Aon, the balance has shifted in civil litigation from the permissive approach, in allowing parties to prepare for trial on a timeframe convenient only to them, towards timely and efficient case management of actions which serves the public as a whole, not merely the parties to proceedings.[13]
12. Speed and efficiency, in the sense of minimum delay and expense, are essential to the just resolution of proceedings and are part of the wider objects of the administration of justice.[14]
13. In Aon, the objectives of such case management principles were expressly stated by the relevant Rules[15]. Such is the case here.
14. The President has power make Rules for the Tribunal[16] and has done so.[17] The purpose of the Rules is to assist in the just, speedy and inexpensive determination of every matter.[18] The procedures of the Tribunal are governed by the Rules.[19]
15. Rule 20 concerns the pre-trial procedures to be conducted by a Deputy President. That rule is the source of power to make trial orders necessary to facilitate the efficient disposition of the matter.[20]
16. Parties are expected to be able to provide the Tribunal with such information as is necessary to enable appropriate orders to be made. Only in complex matters shall the availability of counsel be a factor in determining the suitability of trial dates.[21]
17. Once a date for trial had been set, it is the obligation of the parties to be ready to proceed on that day.[22]
18. When trial orders were made on 3 June 2015 the parties had been in dispute for more than a year. The trial orders set trial dates over four months in advance; a reasonable and proportionate period of time in the circumstances of the matter. The trial orders were made in accordance with the Rules and with the overarching obligation of the Tribunal to assist with a just, speedy and inexpensive determination, with the specific purpose to facilitate the efficient disposition of the matter.
19. The issue to be determined on the Application for Directions was whether the trial should proceed as ordered or not. Granting the relief sought by Hilton Lawyers Adelaide would be to accept dilatoriness and inaction. The practical effect would result in the protraction of the proceedings. The Tribunal's integrity is compromised and the public's confidence in it undermined when parties to disputes before it neglect to follow its orders and fail to do all things necessary to be properly prepared for the litigation.
20. There is still sufficient time for Mr Samandari's representatives to be properly prepared for the trial commencing on 12 October 2015. With that, and the foregoing in mind, the application to vacate to trial dates of 12 and 13 October 2015 was refused. Revised trial orders were made so that the parties would be ready for trial on 12 October 2015.
21. As to costs, it was appropriate that Hilton Lawyers Adelaide did not seek an order for the costs of their unsuccessful Application for Directions to be paid by the Respondent.[23] However, on 20 August 2015 I expressed my concerns as to whether it was appropriate - given the unpreparedness of his representatives - for any of the legal costs associated with the application to be then charged to Mr Samandari.[24] On the evidence before me it appears that need for the application to adjourn cannot be attributed to anything done or not done by Mr Samandari himself. If that is the case, it would be inappropriate for Hilton Lawyers Adelaide to seek to recover from him any of the costs associated with the application. To do so may be to charge excessive costs; in breach of rule 31(1).[25] This matter presents an opportune moment to remind practitioners of their obligations under rule 31(2)[26] and of the power available to the Tribunal to disallow costs as between a representative and their client set out in sections 95A(2) and 95A(3)(a) of the Act.

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 the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[2] Gallagher Bassett decision dated 24 April 2014.

[3] Notice of Dispute 2996/2014N filed on 19 May 2014.

[4] Workers Rehabilitation and Compensation Act 1986 (SA) Part 6A Division 4.

[7] The orders of 3 June 2015 reserved only 12 & 13 October 2015 as trial dates.

[8] Affidavit of Dr Dorothy Vaesi sworn on 6 August 2015.

[11] Indeed the trial orders said so, p.2 Note (i).

[12] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 (2009) 239 CLR 175.

[14] The High Court citing Aon with approval in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Managing and Marketing Pty Ltd [2013] HCA 46 at [51].

[15] Aon at [36] [89 to 97] [114].

[17] South Australian Workers Compensation Tribunal Rules 2009.

[18] Ibid Rule 1 - Scope and Purpose of the Rules.

[25] "A representative of a party shall not charge excessive costs."

[26] "If a representative of a worker intends to charge costs greater than those payable by the compensating authority in respect of any legal advice or representation concerning any matters relating to the payment of compensation under the Act the representative must advise the worker of Rule 31(1) hereof and must advise the worker of his or her rights under ss 41 and 42 of the Legal Practitioners Act 1981."