Court docket clarifies when staff compensation proceedings warrant Senior Counsel’s involvement (SA)

The South Australian Employment Court has rejected an employee’s application for recognition of proceedings as “fit for Senior Counsel” under the South Australian Employment Tribunal Rules 2017 (SA) (r 125 (4)).

The worker argued that the rarity of his illness, a cryptococcal infection, and the forensic evidence labeled a legal counsel justified the senior counsel’s involvement in the trial. Return to Work Corporation (the corporation) denied the motion, arguing that while the facts were unusual, the legal issues were not (the court would simply be asked to infer whether the infection occurred in the employment relationship). The court agreed with the Company and was not convinced that discretion should be used to confirm the matter as appropriate for the Senior Counsel.

When are procedures suitable for senior counsel?

Vice President Rossi J. helped formulate the principles to use in determining whether a trial should be certified as eligible for the Senior Counsel. The starting point when applying r 125 (4) is that normally a Junior Counsel is suitable for carrying out proceedings under the Return to Work Act 2014 (SA) and the appointment of a Senior Counsel will be the exception: Thiess Pty Ltd against RTW SA and Rogers [2020] HOURS 124.

In determining whether senior counsel should be employed and whether senior counsel fees should be awarded on a party basis, the court determines whether the senior counsel’s fees were necessary or appropriate for the attainment of justice or the defense of the rights of the parties and takes into account the difficulty of the case, the complexity of the questions of fact or law, and any requirements the case places on the exercise of particular professional skills: Beasley v Marshall (No. 3) (1986) 41 SASR 321, adopted at Flinders Adelaide Container Terminal v Puhara [2019] HOURS 180.

Rule 125 (4) authorizes the South Australian Employment Tribunal to inform the parties, before any relevant costs are incurred, whether the costs of keeping the Senior Counsel are recoverable from the Company. It is up to the party requesting the certification to convince the court that the matter is so difficult and complex or otherwise requires special skills to warrant the certification. A relevant aspect is the additional costs for the company associated with the desired certification. In such applications, it is also desirable that the applicant inform the court of whether it is proposed that the senior counsel lead the junior counsel at the trial or whether the senior counsel should appear alone.

Harrup v Return to Work Corporation of South Australia (Visy Recycling Pty Ltd) [2021] SAET 155, August 3, 2021.