Bonney v Compass Group (Australia) Pty Ltd
[2015] WASCA 6 (S)
•15 JULY 2015
BONNEY -v- COMPASS GROUP (AUSTRALIA) PTY LTD [2015] WASCA 6 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 6 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:58/2014 | ON THE PAPERS | |
| Coram: | NEWNES JA MURPHY JA | 15/07/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to pay respondent's costs of appeal | ||
| B | |||
| PDF Version |
| Parties: | JENNIFER BONNEY COMPASS GROUP (AUSTRALIA) PTY LTD |
Catchwords: | Practice and procedure Costs Appeal from District Court Workers' Compensation and Injury Management Act 1981 (WA), s 254 Appeal dismissed Whether costs can be made against appellant |
Legislation: | District Court Act 1969 (WA), s 79 Workers' Compensation and Injury Management Act 1981 (WA), s 254 |
Case References: | Bonney v Compass Group (Australia) Pty Ltd [2015] WASCA 6 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BONNEY -v- COMPASS GROUP (AUSTRALIA) PTY LTD [2015] WASCA 6 (S) CORAM : NEWNES JA
- MURPHY JA
- Appellant
AND
COMPASS GROUP (AUSTRALIA) PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WISBEY DCJ
File No : APP 64 of 2013
Catchwords:
Practice and procedure - Costs - Appeal from District Court - Workers' Compensation and Injury Management Act 1981 (WA), s 254 - Appeal dismissed - Whether costs can be made against appellant
Legislation:
District Court Act 1969 (WA), s 79
Workers' Compensation and Injury Management Act 1981 (WA), s 254
Result:
Appellant to pay respondent's costs of appeal
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr G W Nutt
Solicitors:
Appellant : In person
Respondent : Jarman McKenna
Case(s) referred to in judgment(s):
Bonney v Compass Group (Australia) Pty Ltd [2015] WASCA 6
1 JUDGMENT OF THE COURT: The respondent has applied for an order for costs consequent upon the dismissal of the appellant's appeal: Bonney v Compass Group (Australia) Pty Ltd [2015] WASCA 6. The appellant, however, contends that as the appeal arose out of proceedings under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act), this court cannot make such an order. Pursuant to an order of the court, the parties have filed written submissions on the question of costs and that question is to be decided on the papers.
2 For present purposes the background can be stated very briefly. The appellant filed an application under the Act for a determination of the liability of the respondent to pay her medical expenses and to make weekly payments of compensation from 21 March 2011 for total incapacity for work. The claim related to two injuries allegedly suffered by the appellant, a fall in the carpark at work on 1 March 2011 and a psychiatric disorder allegedly suffered as a result of incidents at work in early March 2011.
3 The appellant's claim went to arbitration, at which the respondent was ordered to make weekly payments of compensation to the appellant in relation to the physical injury but the application in relation to the psychiatric disorder was dismissed.
4 An appeal by the appellant to the District Court under s 247 of the Act was dismissed by Wisbey DCJ on the ground that, contrary to s 247(2), the appeal did not involve a question of law.
5 The appellant appealed to this Court under s 254 of the Act, contending, in substance, that the primary judge had failed to give adequate reasons for his decision, erred in finding that the appeal did not involve a question of law, and denied the appellant procedural fairness.
6 The respondent successfully applied for the appeal to be dismissed on the basis that none of the grounds of appeal had any reasonable prospect of succeeding. The respondent applied for an order that the appellant pay the respondent’s costs of the appeal. The appellant resisted that application, submitting that the court had no power to make an order for the costs of the appeal.
7 In her written submissions, the appellant contended that the costs of the appeal are governed by pt XV of the Act, and in particular s 264, pursuant to which an order as to costs may only be made by a 'dispute resolution authority'. A 'dispute resolution authority' is defined in s 5 of the Act to mean 'the Director, the Registrar, a conciliation officer or an arbitrator'. Accordingly, it was submitted, this court has no power to make an order as to the costs of the appeal and any application by the respondent for such an order would have to be made to a dispute resolution authority.
8 In our view, that submission is misconceived. It is clear that pt XV of the Act has no application to the costs of the appeal to this court but is concerned simply with the costs of proceedings of which a 'dispute resolution authority' is seised under the Act, and the costs of an appeal from an arbitrator to the District Court under pt XIII of the Act.
9 The relevant substantive provisions are contained in div 2 of pt XV. Division 2 is comprised of s 264 to s 268 and is headed 'Costs of parties in proceedings and costs of proceedings'. There is no definition of 'proceedings', but 'costs of a proceeding' are defined in s 261 of the Act to mean 'costs of, or incidental to, a proceeding of a dispute resolution authority …'.
10 Section 264(1) provides that 'costs are in the discretion of the relevant dispute resolution authority'. Section 264(2) provides that a dispute resolution authority may determine by whom, to whom and to what extent costs are to be paid. Section 264(3) provides that a dispute resolution authority may order costs to be assessed under the Legal Profession Act 2008 (WA) or on an indemnity basis. Under s 264(4), a party to a proceeding may apply to a dispute resolution authority for an order as to costs, but, by virtue of s 264(5), an order for the payment of costs by a worker may not be made unless the dispute resolution authority is satisfied that the costs relate to 'an application made by the worker that was frivolous or vexatious, fraudulent or made without proper justification'.
11 Section s 265 deals with costs unreasonably incurred by a representative of a party 'in any proceeding before a dispute resolution authority or in any matter under [the] Act which is resolved by agreement', and s 266 provides, in effect, that a person acting as an agent is not entitled to any amount for acting in connection with a dispute under the Act unless registered as an agent.
12 Section 267 deals with the costs of an appeal from an arbitrator to the District Court, pursuant to pt XIII of the Act. It is unnecessary to canvass that provision.
13 Section 268 provides that where a dispute resolution authority makes an order for costs but does not fix the costs, the amount is to be assessed in accordance with regulations, and provides for the making of regulations for that purpose.
14 It is evident that pt XV does not have the effect contended for by the appellant. The Act is silent on the costs of an appeal from the District Court to this court. Such an appeal is provided for in pt XIII of the Act, by s 254, but is expressed to be an appeal under s 79 of the District Court Act 1969 (WA).
15 The costs of the appeal therefore fall to be determined on the basis that this was an appeal from a decision of the District Court under s 79 of the District Court Act; that is, the costs are in the discretion of this court: s 37 of the Supreme Court Act 1935 (WA). In the exercise of that discretion, the general rule is that the successful party is entitled to an order for costs: O 66 r 1, Rules of theSupreme Court Act 1971 (WA). There is nothing in the circumstances of this case which would justify a departure from that general rule.
16 Accordingly, there will be an order that the appellant pay the respondent's costs of the appeal, including the costs of the respondent's application to dismiss the appeal and any reserved costs, to be taxed.
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