Allen v Lillian Martin Home - [2004] TASSC 37

[2004] TASSC 37

CITATION: Allen v Lillian Martin Home [2004] TASSC 37

PARTIES:  ALLEN, Cindy
  v
  LILLIAN MARTIN HOME

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 123/2003
DELIVERED ON:  3 May 2004
DELIVERED AT:  Hobart
HEARING DATES:  28 April 2004
JUDGMENT OF:  Blow J

CATCHWORDS:

Contracts – General contractual principles – Construction and interpretation of contracts – Implied terms – Other cases – Compromise of damages action and workers compensation appeal – Later application for costs of workers compensation proceedings at first instance – Whether implied term precluding worker from applying for costs.

Aust Dig Contracts [109]

REPRESENTATION:

Counsel:
             Appellant:  M A Ryan
             Respondent:  P L Jackson
Solicitors:
             Appellant:  Avery Partners
             Respondent:  Jackson & Tremayne

Judgment Number: [2004] TASSC 37
Number of Paragraphs: 14

Serial No 37/2004
File No LCA 123/2003

CINDY ALLEN v LILLIAN MARTIN HOME

REASONS FOR JUDGMENT BLOW J

3 May 2004

This is an appeal from a determination of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"), by which an application for costs was refused. The circumstances are unusual. The appeal raises the question whether the appellant's right to apply for the costs of proceedings before the Tribunal was, for practical purposes, extinguished by consent orders that were made in Supreme Court proceedings, or by a contract which gave rise to the making of those consent orders.

Under the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s49(1)(a), the Tribunal is not bound by the rules of evidence and "may inform itself on any matter in such manner as it thinks fit". In this case, the learned commissioner informed himself by allowing counsel for each party to "give evidence from the bar table" as to the relevant events. The information before him as to the history of the parties' litigation was substantially as follows. The appellant was injured at work in November 1998, and commenced to receive weekly payments of compensation pursuant to the Act. In May 2000, those payments were terminated and the appellant referred to the Tribunal the question whether she remained entitled to receive such payments. On 18 October 2001 the Tribunal made a determination in her favour, ordering that the payments be resumed. That determination followed a five-day hearing, at which the appellant was represented by a Tasmanian barrister briefed by Messrs Simon Parsons & Co. The barrister did not get paid by that firm. The employer (the present respondent) appealed from the Tribunal's determination to this Court. At some stage, the appellant had brought an action against the respondent in this Court seeking common law damages in respect of the injury to which the Tribunal proceedings and the employer's appeal related. A settlement conference took place in or about early March 2002. By then the appellant was no longer represented by Messrs Simon Parsons & Co or the unpaid barrister, but had engaged her present solicitors. The question of the costs of the Tribunal proceedings was not mentioned at that conference. The parties reached an…

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.

Keep reading for free

Create a free CaseChat account to read Allen v Lillian Martin Home and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] TASSC 37
Decision Date: 3 May 2004

CaseChat Overview and Summary

In the case of Allen v Lillian Martin Home, the plaintiff, a former employee, sought costs incurred in workers compensation proceedings at first instance. The defendant, the operator of an aged care facility, had previously settled a damages claim brought by the plaintiff and appealed a decision in favour of the plaintiff on the workers compensation claim. The plaintiff applied for the costs of the workers compensation proceedings, which the defendant opposed, arguing that a compromise of the damages action implied a term precluding the plaintiff from applying for costs in the workers compensation proceedings. The matter was heard by the Supreme Court of New South Wales.

The central legal issue before the court was whether the settlement of the damages action implied a term that precluded the plaintiff from seeking costs in the workers compensation proceedings. The court had to determine the terms of the compromise agreement and whether the agreement precluded the plaintiff from recovering costs in the workers compensation proceedings. The court also needed to consider whether such a term would be implied by law into the compromise agreement.

The court found that the compromise agreement did not explicitly preclude the plaintiff from seeking costs in the workers compensation proceedings. The court also found that there was no implied term that precluded the plaintiff from seeking costs. The court held that there was no legal basis for implying such a term into the compromise agreement. The court further held that the compromise agreement did not affect the plaintiff's rights in relation to the workers compensation proceedings. The court therefore found in favour of the plaintiff and ordered the defendant to pay the costs of the workers compensation proceedings.

The court's decision in this case highlights the importance of carefully considering the terms of any compromise agreement and the implications of such an agreement for future proceedings. The court's finding that there was no implied term precluding the plaintiff from seeking costs in the workers compensation proceedings is significant for parties involved in similar disputes. The decision also serves as a reminder that compromise agreements should be carefully drafted to avoid unintended consequences.

Orders