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BAE Systems Australia Ltd v Rothwell

BAE Systems Australia Ltd v Rothwell

Case [2013] NTCA 3 1 March 2013

Entitlement to Costs

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Workers Compensation Law

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BAE Systems Australia Ltd v Rothwell [2013] NTCA 03

PARTIES: BAE SYSTEMS AUSTRALIA LTD

v
ROTHWELL, Mark Edwin

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:AP7 of 2012 (20917242)
DELIVERED:  1 March 2013
HEARING DATES:  11 February 2013
JUDGMENT OF:  RILEY CJ, MILDREN and KELLY JJ
APPEALED FROM:  BLOKLAND J (No LA5 of 2011)
CATCHWORDS:

WORKERS’ COMPENSATION — Entitlement to ‘costs incurred’ for ‘other rehabilitation’ — Whether past gratuitous attendant care services amount to ‘costs incurred’ — Workers Rehabilitation and Compensation Act 2008 (NT) s 78(1).
STATUTORY INTERPRETATION — Plain meaning — Purposive interpretation — Interpretation of ‘beneficial’ legislation — Ambiguity — Whether phrase ‘costs incurred’ ambiguous — Whether other interpretations open where plain meaning is clear — Workers Rehabilitation and Compensation Act 2008 (NT) s 78(1).
COSTS — Discretion to make costs orders — Solicitor and client costs — Whether open to Work Health Court to award costs on solicitor and client basis — Work Health Court Rules 1999 (NT) r 23.02, r 23.03.

COSTS — Indemnity costs — Principles regarding award of indemnity costs— Employer’s duty to consider claim promptly — Unreasonable delay by employer — Workers Rehabilitation and Compensation Act 2008 (NT) s 109 — Supreme Court Rules o 63.28.
Interpretation Act 1978 (NT) s 62A
Supreme Court Rules o 63.28
Workers Compensation Act 1987 (NSW) s 60, s 60AA
Workers Rehabilitation and Compensation Act 2008 (NT) (formerly Work Health Act 1986 (NT)) s 73, s 78, s 109
Work Health Court Rules 1999 (NT) r 23.02, r 23.03
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
Balfour v Balfour [1919] 2 KB 571
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hawkins v Bank of Chicago (1992) 7 ACSR 349
J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers[No2] (1993) 46 IR 301
Litherland Urban District Council v Liverpool Corporation (1958) 1 WLR 913
MacDonald v Travelers Indemnity Co of Canada (1987) 42 DLR (4^th) 204
Northern Rivers Charity Racing Association v Lloyd [2002] NSWCA 129
NSW Sugar Milling Cooperative Ltd v Manning (1998) 44 NSWLR 442
Ragata Developments Pty Ltd v Westpac Banking Corporation (Unreported, Federal Court of Australia, 5 March 1993)
Re Rhodes (1890) 44 Ch D 94
Smith (Committee of) v Wawanesa Mutual Insurance Co (1998) 168 DLR (4^th) 750
Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328
Woodruffe v Northern Territory of Australia (2000) 10 NTLR 52
REPRESENTATION:
Counsel:
Appellant:S Walsh QC and D McConnel
Respondent:  A Wyvill SC and B Haack
Solicitors:
Appellant:Hunt & Hunt
Respondent:  Povey Stirk
Judgment category classification:    A
Judgment ID Number:  Ril1301
Number of pages:  56

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
BAE Systems Australia Ltd v Rothwell [2013] NTCA

No. AP7 of 2012 (20917242)
BETWEEN:

BAE SYSTEMS AUSTRALIA LTD

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.

Continue reading BAE Systems Australia Ltd v Rothwell

Details

AGLC: BAE Systems Australia Ltd v Rothwell [2013] NTCA 3
Case: [2013] NTCA 3
Decision Date: 1 March 2013

CaseChat Overview and Summary

The case of BAE Systems Australia Ltd v Rothwell involved a dispute regarding the entitlement of compensation for past gratuitous attendant care services under the Workers Rehabilitation and Compensation Act 2008 (NT). The applicant, Mr. Rothwell, claimed compensation for the costs of past gratuitous attendant care provided by his wife, which he argued constituted "costs incurred" for "other rehabilitation" under section 78(1) of the Act. The respondent, BAE Systems Australia Ltd, opposed the claim on the grounds that the Act did not cover such services. The matter was heard in the Work Health Court of the Northern Territory.

The court was required to interpret the phrase "costs incurred" within the context of the statutory scheme, which is designed to be rehabilitative and beneficial. The court considered whether the phrase was ambiguous and whether there were other permissible interpretations if the plain meaning was clear. Additionally, the court examined whether the Work Health Court had the discretion to award costs on a solicitor and client basis, and whether indemnity costs could be awarded due to the employer's unreasonable delay in considering the claim.

The court found that the phrase "costs incurred" was not ambiguous and had a clear meaning that did not encompass past gratuitous attendant care services. The court held that the statutory scheme did not extend to such services, and therefore the applicant was not entitled to compensation for them. The court also determined that it did not have the discretion to award costs on a solicitor and client basis, and that indemnity costs could not be awarded as the employer's delay in considering the claim did not meet the threshold for unreasonableness. The applicant's claim for compensation was dismissed.

The court ordered that the applicant pay the respondent's costs of the proceeding, and that the respondent's application for indemnity costs be dismissed.

Orders