A Goninan & Co Ltd v Gill - [2001] NSWCA 77

Reported Decision:
(2001) 21 NSWCCR 552

New South Wales

Court of Appeal

CITATION: A Goninan & Co Ltd v Gill [2001] NSWCA 77

FILE NUMBER(S): CA 40849/99

HEARING DATE(S): 13 March 2001

JUDGMENT DATE:
10 April 2001

PARTIES :

A Goninan & Co Ltd (Appellant)
Ernest Malcolm Gill (Respondent)

JUDGMENT OF: Sheller JA at 1; Giles JA at 2; Heydon JA at 3

LOWER COURT JURISDICTION : Compensation Court

LOWER COURT
FILE NUMBER(S) : CC 22609/95

LOWER COURT
JUDICIAL OFFICER : Bishop CCJ

COUNSEL: Mr R H Taperell (Appellant)
Mr B McManamey (Respondent)

SOLICITORS: Baker Love Lawyers (Appellant)
Stacks The Law Firm (Respondent)

CATCHWORDS: Workers Compensation - Legal Costs - Costs Assessment - Costs of costs assessor - Power of Compensation Court (when hearing appeals from costs assessors) to order costs against a worker whose application for compensation was not "frivolous or vexatious, fraudulent or made without proper justification" - Whether such a worker can be ordered to pay costs of costs assessor - Test case - Legal Profession Act 1987 (NSW), s 202(1), s 206(1), s 208(2), s 208F, s 208M - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 112(3) - Compensation Court Act 1984 (NSW), s 18. - Statutes - Statutory Interpretation - Operation and effect - Interaction of sections of different Acts - Examination of legislative history - Legal Profession Act 1987 (NSW), s 202(1), s 206(1), s 208(2), s 208F, s 208M - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 112(3) - Compensation Court Act 1984 (NSW), s 18. - Legal Costs - Issue of which party to pay costs of appeal in the nature of a "test case" - Where test case was of general importance to appellant company’s insurer and to other insurers but not to worker.

LEGISLATION CITED: Compensation Court Act 1984
Compensation Court Act 1989
Legal Profession Act 1987
Legal Profession Amendment Act 1996
Legal Profession Reform Act 1993
Sporting Injuries Insurance Act 1978
Sporting Injuries Insurance (Workers Compensation) Amendment Act 1984
WorkCover Legislation Amendment Act 1995
Workers Compensation Act 1987
Workers Compensation (Amendment) Act 1951
Workers Compensation (Amendment) Act 1967
Workers Compensation (Compensation Court) Amendment Act 1989
Workplace Injury Management and Workers Compensation Act 1998

CASES CITED:
Cramp v The Commonwealth (1996) 13 NSWCCR 461
Martin v Warkworth Mining Ltd (unreported, Compensation Court of New South Wales, 25 November 1996)

DECISION: See para 62

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40849/99
CC 22609/95

SHELLER JA
GILES JA
HEYDON JA

A GONINAN & CO LIMITED v ERNEST MALCOLM GILL

Workers Compensation - Legal Costs - Costs Assessment - Costs of costs assessor - Power of Compensation Court (when hearing appeals from costs assessors) to order costs against a worker whose application for compensation was not “frivolous or vexatious, fraudulent or made without proper justification” - Whether such a worker can be ordered to pay costs of costs assessor - Test case - Legal Profession Act 1987 (NSW), s 202(1), s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWCA 77
Decision Date: 10 April 2001

CaseChat Overview and Summary

In the matter of A Goninan & Co Ltd v Gill, the appellant, A Goninan & Co Ltd, sought to appeal a decision of the Compensation Court of New South Wales concerning the costs of a costs assessor. The dispute arose from an application for workers compensation made by the respondent, Mr Gill, which was ultimately unsuccessful. The core of the appeal concerned the power of the Compensation Court, when hearing appeals from costs assessors, to order costs against a worker in circumstances where the worker's original application for compensation was not frivolous, vexatious, fraudulent, or made without proper justification.

The legal issues before the court were primarily concerned with statutory interpretation, specifically the interaction between provisions of the *Legal Profession Act 1987* (NSW), the *Workplace Injury Management and Workers Compensation Act 1998* (NSW), and the *Compensation Court Act 1984* (NSW). The court had to determine whether a worker, whose initial compensation claim was not found to be without merit, could nevertheless be ordered to pay the costs of a costs assessor. A further issue was the allocation of costs for the appeal itself, given that the appeal was considered a "test case" of general importance to the appellant's insurer and other insurers, but not directly to the respondent worker.

The court examined the relevant legislative provisions, including sections 202(1), 206(1), 208(2), 208F, and 208M of the *Legal Profession Act 1987*, section 112(3) of the *Workplace Injury Management and Workers Compensation Act 1998*, and section 18 of the *Compensation Court Act 1984*. The court considered the legislative history and the operation of these sections in conjunction. The reasoning focused on the specific wording of the statutes and the established principles of statutory interpretation to ascertain the scope of the Compensation Court's power to award costs against a worker in such circumstances. The court also considered the nature of the appeal as a test case in determining the appropriate costs order for the appeal proceedings.

Orders

Orders of the court

See para 62

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	A Goninan & Co Ltd v Gill [2001] NSWCA 77
FILE NUMBER(S):	CA 40849/99
HEARING DATE(S):	13 March 2001
JUDGMENT DATE:	10 April 2001
PARTIES :	A Goninan & Co Ltd (Appellant) Ernest Malcolm Gill (Respondent)
JUDGMENT OF:	Sheller JA at 1; Giles JA at 2; Heydon JA at 3

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC 22609/95
LOWER COURT JUDICIAL OFFICER :	Bishop CCJ

COUNSEL:	Mr R H Taperell (Appellant) Mr B McManamey (Respondent)
SOLICITORS:	Baker Love Lawyers (Appellant) Stacks The Law Firm (Respondent)
CATCHWORDS:	Workers Compensation - Legal Costs - Costs Assessment - Costs of costs assessor - Power of Compensation Court (when hearing appeals from costs assessors) to order costs against a worker whose application for compensation was not "frivolous or vexatious, fraudulent or made without proper justification" - Whether such a worker can be ordered to pay costs of costs assessor - Test case - Legal Profession Act 1987 (NSW), s 202(1), s 206(1), s 208(2), s 208F, s 208M - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 112(3) - Compensation Court Act 1984 (NSW), s 18. - Statutes - Statutory Interpretation - Operation and effect - Interaction of sections of different Acts - Examination of legislative history - Legal Profession Act 1987 (NSW), s 202(1), s 206(1), s 208(2), s 208F, s 208M - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 112(3) - Compensation Court Act 1984 (NSW), s 18. - Legal Costs - Issue of which party to pay costs of appeal in the nature of a "test case" - Where test case was of general importance to appellant company’s insurer and to other insurers but not to worker.
LEGISLATION CITED:	Compensation Court Act 1984 Compensation Court Act 1989 Legal Profession Act 1987 Legal Profession Amendment Act 1996 Legal Profession Reform Act 1993 Sporting Injuries Insurance Act 1978 Sporting Injuries Insurance (Workers Compensation) Amendment Act 1984 WorkCover Legislation Amendment Act 1995 Workers Compensation Act 1987 Workers Compensation (Amendment) Act 1951 Workers Compensation (Amendment) Act 1967 Workers Compensation (Compensation Court) Amendment Act 1989 Workplace Injury Management and Workers Compensation Act 1998
CASES CITED:	Cramp v The Commonwealth (1996) 13 NSWCCR 461 Martin v Warkworth Mining Ltd (unreported, Compensation Court of New South Wales, 25 November 1996)
DECISION:	See para 62