Chapman-Davis v State of New South Wales (No 2)

[2015] NSWIC 13

Industrial Court

New South Wales

Medium Neutral Citation:

Chapman-Davis v State of New South Wales (No 2) [2015] NSWIC 13

Hearing dates:

14 and 28 August, 9 and 14 September 2015 (written submissions)

Date of orders:

01 October 2015

Decision date:

01 October 2015

Before:

Walton J, President

Decision:

The Court determines, declares and orders:

 

(1) At the time of her injury on 25 July 2011 the applicant was a ‘paramedic’ within the meaning and for the purposes of cl 25 of Pt 19H of Sch 6 of the Workers Compensation Act 1987.

 (2) The respondents shall pay 80 per cent of the applicant’s costs of these proceedings, as agreed or assessed.

Catchwords:

DECLARATION - orders – agreement as to final form of orders to reflect decision of the Court – declaration confined to the date of the applicant’s injury

  COSTS – partial agreement as to a costs order – residual contest related to early stages of proceedings and dispute as to costs itself – contest as to utility of applicant’s original application – applicant filed amended application which contained second declaration – central issue for adjudication encapsulated by second declaration – applicant successful as to second declaration – first declaration refused by Court for lack of utility – third declaration abandoned – applicant sought award of costs for whole proceedings in accordance with the principle that ‘costs follow the event’ – respondents argued applicant should pay costs prior to amended application being filed and sought no order for costs as to disposition of contest as to costs – principles of the exercise of the Court’s discretion to award costs – respondents should not be required to pay whole costs as a result of the course of proceedings prior to the amended application during which time costs were wasted – delay was occasioned by the manner in which the relief sought by the applicant was cast – further delay due to amended application replicating first and third declarations and pursuit of first declaration - circumstances of this matter necessitate a departure from the usual rule as to costs – the proceedings in relation to the first and third declarations were not a test case – respondent should also receive discount in relation to the contest as to costs itself as it was a proxy of the primary proceedings – in the circumstances it is appropriate to apportion costs rather than make a deduction by temporal segmentation – on balance respondents should pay 80 per cent of applicant’s costs – issue raised as to whether both respondents or only first respondent should pay costs – both respondents active in proceedings and should pay costs – final form of orders referable to both respondents – costs ordered

Legislation Cited:

Industrial Relations Act 1996 (NSW)
Workers Compensation Act 1987

Cases Cited:

Chapman-Davis v State of New South Wales [2015] NSWIC 10
Chubb Insurance Company of Australia Limited v Moore (No 2) [2013] NSWCA 299
Cretazzo v Lombardi (1975) 13 SASR 4
CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1
Earnshaw v Loy (No 2) [1959] VR 252
Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5; (2010) 182 FCR 84
Howitt v Alexander & Sons [1948] SC 154
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Stephen Bell v Commissioner of Police [2015] NSWIC 11
Tempo Services Ltd v Strezouski [2005] NSWIRComm 329
X v The Sydney Children’s Hospitals Network [2013] NSWCA 320; (2013) 85 NSWLR 294
X & Y (by her Tutor X) v Pal (CA(NSW), 7 June 1991, unreported

Category:

Costs

Parties:

Lorelle Chapman-Davis (Applicant)
State of New South Wales (First respondent)
QBE Insurance (Australia) Limited, as an agent for NSW Self Insurance Corporation (Second respondent)

Representation:

Counsel:
T M Ower of counsel (Applicant)
P Ginters of counsel (Respondents)

  Solicitors:
Harris Wheeler Lawyers (Applicant)
Moray & Agnew (Respondents)

File Number(s):

IRC 563 of 2014

Judgment

1. On 3 August 2015, the Court delivered judgment in Chapman-Davis v State of New South Wales [2015] NSWIC 10 (‘Chapman-Davis (No 1)’).

2. That decision concerned an amended application for declaratory relief brought by Ms Lorelle Chapman-Davis (‘the applicant’) pursuant to s 154 of the Industrial Relations Act 1996 (NSW) (‘the Act’) in relation to a workplace injury which led to a dispute with her employer, the State of New South Wales (‘the first respondent’), and the relevant workers compensation insurer, QBE Insurance (Australia) Limited as an agent for NSW Self Insurance Corporation (‘the second respondent’). By her amended application the applicant sought declarations which were set out in [10] of Chapman-Davis (No 1) as follows:

1. The applicant is a paramedic for the purposes of the Operational Ambulance Officers (State) Award effective 16 April 2012. The first respondent is the employer.

2. During July, 2011, including 25th July, 2011, the Applicant continued to be employed by the first respondent as a “paramedic”, within the meaning, and for the purposes, of Clause 25 Part 19H of Schedule 6 of the Workers Compensation Act 1987.

3. The Second Respondent is the workers compensation insurer for the purposes of the Workers Compensation Act 1987.

3. In Chapman-Davis (No 1), the Court announced its conclusion as follows:

226 I am disposed to refuse the first declaration sought (to the extent that it was pursued) for the reasons earlier given.

227 As noted above, the third declaration in the amended application was not pressed.

228 As to the second declaration sought, I find that, upon the proper construction of the Schedule, the meaning of the term ‘paramedic’ in the phrase in the Schedule denotes an employee of the first respondent within the service of the ASNSW who is classified as a paramedic by virtue of the operation of the Award (and, by necessary connection, is appointed to an approved position within the ASNSW). As I have found, the applicant was such an employee at the time of her injury and, hence, the exemption from the Amendment Act under the Schedule applied to her. For the reasons given above, that conclusion is not displaced, in my view, by the fact that the applicant was not performing or rostered to perform operational paramedic duties (as defined by the respondents) at that time.

229 Thus, the applicant was a paramedic at the time of her injury within the meaning and for the purposes of the Schedule, irrespective of her secondment to the role of Health Advisor.

…

236 In the circumstances, it is appropriate, in my view, to exercise the discretion reposed in this Court pursuant to s 154 of the IR Act to make a declaratory order consistent with the second declaration. However, I will give an opportunity to the parties to consider the final form of that order to be made having regard to the terms of this judgment. In particular, there would appear to be no reason, in light of the issues raised in the proceedings, why the order should temporally extend beyond a specification of the date of injury of the applicant.

237 The applicant is to file and serve draft orders reflecting the terms of this decision and, if appropriate, any related submissions (as to the form of the orders) within 14 days. The respondents shall have an opportunity to file and serve any submissions in reply as to the form of the orders within 14 days of the service of those draft orders and any submissions relied upon by the applicant relating thereto. In accordance with the same timetable, the parties shall separately file and serve any application as to costs and submissions as to the same.

238 The disposition of orders and costs will be dealt with on the papers unless the Court forms the view that a hearing will be necessary in light of the submissions received or there is an application from a party for the matter to be listed for hearing as to either the form of the orders or costs (in which case the application should specify the subject matter about which the hearing is sought).

4. In accordance with the directions given in this passage of Chapman-Davis (1), written submissions as to orders and costs were filed by the applicant and the respondents on 14 and 28 August 2015 respectively. In consequence of those submissions, there emerged an agreement as to the final form of the orders to reflect the decision of the Court to, in substance, grant the second declaration sought in the amended application and a partial concurrence as to costs.

Background

5. In order to deal with the residual contest as to costs, it is necessary to give some brief background to the proceedings.

6. The applicant filed the original application in these proceedings on 21 July 2014. By that application, the applicant sought two declarations which were later replicated as the first and third declarations in the amended application (and shall be so described hereafter).

7. At directions hearings on 8 August and 26 September 2014, the respondents sought adjournments to receive instructions as to how to respond to the original application. On the latter occasion, counsel for the respondents, Mr P Ginters, elucidated that time was needed for the respondents to consider two matters, namely, the practicality or utility of the declarations sought and, relatedly, the jurisdiction of the Court to grant the same. Those questions arose, inter alia, from doubts as to whether declaratory relief in the terms sought would, if granted, resolve the actual dispute between the parties, that is, whether the applicant was employed as a ‘paramedic’ within the meaning and for the purposes of the Schedule at the time of her injury: Chapman-Davis (No 1) at [19].

8. The respondents confirmed their concerns by letter to the applicant dated 7 October 2014 (which was handed to the Court during a directions hearing on 9 October 2014 without objection). By that correspondence, the respondents made substantial concessions as to the first and third declarations. In consequence, the respondents contended that it would not be appropriate for the declarations sought by the applicant in the original application to be made since they would serve no practical utility (without conceding the jurisdiction of the Court to grant those declarations). They continued to contest that the applicant was a ‘paramedic’ for the purposes of the Schedule at the time of her injury.

9. After the respondents’ admonitions were crystallised in the letter, the applicant sought leave to bring an amended application in the directions hearing on 9 October 2014 (albeit without accepting that the original application did not capture the contest between the parties). The amended application brought by the applicant differed from the original application solely by the inclusion of the second declaration set out in [2] above: see [16] of Chapman-Davis (No 1). The respondents sought an adjournment to consider the amended application.

10. On 15 October 2015, a directions hearing occurred at which the parties joined issue over the second declaration, however the applicant did not at that time concede that matter represented the ultimate issue for adjudication.

11. By the date of the hearing on 4 March 2015, both parties accepted that the central issue for adjudication in the proceedings was encapsulated by the second declaration set out above: see Chapman-Davis (No 1) at [23].

12. That controversy was further refined by the manner in which the parties framed their respective cases. In essence, the applicant argued that she was employed as a ‘paramedic’ within the meaning and for the purposes of the Schedule by virtue of the continuation of her classification as a ‘paramedic’ under the Operational Ambulance Officers (State) Award (‘the Award’) (that is, the maintenance of her appointment to a position classified as a ‘Paramedic Year 2’ under that instrument), while the respondents contended that the term of ‘paramedic’ within the Schedule concerned the performance of particular duties at the time of injury, namely, the duties of an operational paramedic.

13. In consequence of the manner in which the parties framed the controversy encapsulated by the second declaration, two preliminary questions arose for determination, namely, whether the applicant was employed by the first respondent as a paramedic at the time of her injury and whether she was performing the duties of a paramedic in that employment.

14. Having determined that the applicant was an employee of the first respondent who was appointed and classified as a ‘paramedic’ at the time of her injury, despite being seconded to perform work of a disparate nature which involved different skills and responsibilities to the operational duties performed by a paramedic in the service of the ASNSW, the ultimate issue requiring adjudication in the proceedings was further refined by the Court as follows (Chapman-Davis (No 1) at [102]):

Having refined the issues in that manner, the sole remaining issue for determination in the present proceedings is whether the applicant was, at the time of her injury, a ‘paramedic’ within the meaning and for the purposes of the Schedule by virtue of her employment and classification under the Award as a ‘paramedic’, notwithstanding that, at that time, she was seconded to the role of Health Advisor in which she neither discharged nor was rostered to discharge the duties of an operational paramedic...

15. As that issue was resolved in favour of the applicant, she was substantially successful as to the second declaration and, thereby, the ultimate issue for adjudication in the proceedings. (The only residual issue, in that respect, was the final form of the order.)

16. However, notwithstanding the joinder as to the central issue in the proceedings, the applicant continued to press the first declaration such that it required determination: Chapman-Davis (No 1) at [31]. The Court ultimately declined to exercise its discretion to make an order for declaratory relief in those terms, as such a declaration could not resolve the dispute between the parties. It did not temporally relate to the proceedings as it was expressed in terms referable to the date of a variation to the Award which occurred some nine months after the time of the applicant’s injury: Chapman-Davis (No 1) at [25]-[26].

17. The third declaration, which expressly concerned the second respondent, was abandoned during the hearing on 4 March 2015, as the identity of the relevant workers compensation insurer was never a point of conflict between the parties in the present proceedings.

18. The jurisdictional challenge foreshadowed by the respondents was not pursued in the proceedings.

Issues for Adjudication concerning Costs

19. In the absence of any other consideration, the granting of the second declaration in such circumstances would ordinarily result in a costs order being made in favour of the applicant in accordance with the principle that ‘costs follow the event’.

20. The applicant submitted that, in conformity with that usual rule, the respondents should pay her costs for the whole of the proceedings. That submission was predicated upon the applicant’s success with respect to the second declaration which, it was contended, encapsulated the “substantial controversy between the parties” (and expended the “overwhelming majority of hearing time”). The applicant submitted that, to the extent that the first and third declarations were pressed, they “should not derogate from the fact that the substantial issue in the litigation” concerned the second declaration and, as such, no discount should be afforded to the respondents for the same.

21. The respondents, however, articulated a contest as to costs which primarily derived from the earlier stages of proceedings (prior to the amended application being filed). To a lesser extent, an issue arose as to the order for costs made in relation to the disposition of the contest as to costs.

22. Thus, the first respondent accepted that it should pay the applicant’s costs for the period between the filing of the amended application and the decision being made, namely, 11 October 2014 to 3 August 2015 (during which time the second declaration constituted the issue for adjudication in the proceedings). However, they sought two other determinations in contradiction to the applicant’s claim for costs for the whole proceedings. The respondents’ submissions as to the orders that should be made in relation to costs were expressed as follows:

a. An order that the applicant pay the respondents’ costs up to and including 10 October 2014 as agreed or assessed on the bases that:

i. The applicant’s claim for relief as pressed to that point were ultimately abandoned or rejected;

ii. The applicant’s amended application (which included the only declaratory order on which she was successful) arose as a consequence of the respondents bringing to the applicant’s attention the deficiencies in the case advanced by the applicant to that point in time;

iii. Costs incurred by the respondents prior to the filing of the amended application can, in the light of what occurred thereafter (i.e. the abandonment of one claim for declaratory relief and the Court rejecting another claim) be characterised as “wasted”, or “thrown away”. In these circumstances it is appropriate that the respondents’ costs in this regard be met by the applicant.

b. Subject to c. below, the first respondent to pay the applicant’s costs following 10 October 2014 as agreed or assessed*. [Footnote: *Noting that the applicant’s claims against the second respondent were abandoned].

c. The applicant and the first respondent pay their own costs in respect of their submissions as [to] the form of the declaration and application for costs.

23. In reply, the applicant pressed for costs prior to 10 October 2014 for the following reasons:

1. The proceedings were required in consequence of the decision of the second respondent to decline the applicant’s claim for medical expenses (upon the advice of the first respondent). The applicant was successful in obtaining a remedy against that decision;

2. The proceedings were commenced in a timely fashion and the primary issue identified at an early stage;

3. The respondents occasioned delay by seeking adjournments, over the applicant’s objections, to obtain instructions on the primary issue and on the question of a jurisdictional challenge that was not ultimately brought; and

4. The proceedings up to the filing of the amended application served a valuable purpose in allowing the parties to effectively join issue on the primary dispute.

24. As to the costs of the adjudication of the present issues as to costs, the applicant submitted that those costs should also follow the event because they were consequential upon the substantive action in which the applicant was successful.

declaratory orders

25. In Chapman-Davis (No 1), the Court expressed some doubt as to why the order should temporally extend beyond a specification of the date of injury of the applicant in light of the issues ventilated in the proceedings (see above at [7]).

26. Accepting that the declaration should be confined to the date of the injury, the applicant proposed that a declaratory order should be made in the following terms:

At the time of her injury on 25 July 2011 the applicant was a “paramedic”, within the meaning, and for the purposes, of clause 25 of Part 19H of Schedule 6 of the Workers Compensation Act, 1987.

27. As noted above, the respondents did not oppose the making of a declaratory order in that form.

28. In my view, the proposed order reflects the determination of the Court as to the second declaration and should accordingly be made.

Considerations as to Costs

29. Section 181 of the IR Act confers a power to award costs in the discretion of the Court. The principles for the exercise of that discretion were recently discussed in Stephen Bell v Commissioner of Police [2015] NSWIC 11 (‘Bell’). I do not propose to repeat those principles in full but, rather, I shall adopt them for the purposes of this judgment (see, in particular, Bell at [123]-[130] including an extract from the judgment of McHugh J in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 97).

29. Upon those principles, it is clear that, although the expression ‘costs follow the event’ embodies the compensatory rule that a successful party is generally entitled to an award of costs in its favour, any order as to costs must be fair and just between the parties having regard to the particular circumstances of the case, the parties’ conduct and the ultimate result: see Howitt v Alexander & Sons [1948] SC 154 at 159 and Earnshaw v Loy (No 2) [1959] VR 252 at 253. Costs will not follow the event if it appears to the Court that some other order should be made: X v The Sydney Children’s Hospitals Network [2013] NSWCA 320; (2013) 85 NSWLR 294 at [76] (per Basten J with whom Tobias AJA agreed).

30. In the present proceedings a question arises as to whether an order other than an award of costs in favour of the applicant should be made for, firstly, the period prior to the amended application being filed and, secondly, the period during which contest in relation to costs itself was argued (concerning the period from 3 August 2015).

31. Relatedly, the Court must consider, in the event that it is minded to make an order other than an award of costs for the whole proceedings in favour of the applicant, whether the proper form of an order would be the temporally segmented approach articulated by the respondents or constituting an apportionment of costs.

32. I propose to address those three considerations seriatim.

33. As to the period prior to the amended application being filed, I accept the gravamen of the respondents’ submission that costs were “wasted” or “thrown away” during that three month period. The only claim for declaratory relief that was actively pressed by the applicant, and upon which she succeeded, was the second declaration. As noted above, that relief was first claimed in the amended application filed on 10 October 2014. Thus, as the respondents contended, the relief sought up until that time was either ultimately abandoned or was refused by the Court as it was found to serve no utility in the present proceedings (see Chapman-Davis (No 1) at [23] and [29]).

34. Whilst it is true that the proceedings were required in order for the applicant to seek a remedy against the decision of the second respondent that was eventually granted, the applicant should be accountable for the time lost in obtaining that relief in consequence of the flaws in the original application. In particular, the adjournments sought by the respondents prior to 10 October 2014 were a product of the manner in which the applicant cast the relief sought, as the terms of the first and third declarations attracted concerns as to utility and jurisdiction.

35. That conclusion is not altered by the fact that, as the applicant contends, proceedings were filed in a timely fashion and the primary issue was identified at an early stage since time was still lost while the parties engaged in the refinement of the issues that the Court was required to adjudicate upon. Had the relief been cast more adequately in the original application, some three months and associated costs would not have been wasted as evidenced by the manner in which proceedings went forward after the amended application was filed.

36. A concern as to wasting costs was raised by the respondents in directions on 26 September 2014 with the intention of encouraging the applicant to refine the declaratory relief sought. On that occasion, the Court expressed the view that costs and time had already been wasted on debating issues of utility and that the continuation of such a dispute had the potential to consume further resources. There can be little doubt that view was the product of the issues raised by the respondents.

37. Further, the applicant replicated the first and third declarations in her amended application. As such, costs and hearing time were still expended on those issues (although the costs and hearing time spent on the first declaration during the hearing were relatively minor).

38. In that light, it would be unfair for the respondents to be ordered to pay the entirety of the applicant’s costs, both in terms of the time “wasted” prior to the amended application being filed and the time spent on the first and third declarations subsequently. The circumstances of this matter thereby necessitate a departure from the usual rule as to costs: Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5; (2010) 182 FCR 84 at [17]; Bell at [128].

39. That conclusion is not altered by the applicant’s contention that the proceedings may be characterised as a “test case”. The applicant submitted that the respondents suggested that a decision on the substantive issue would have ramifications for the ASNSW more broadly. This was said to represent a discretionary consideration that supported an award of costs in favour of the applicant.

40. The High Court described the circumstances in which proceedings may represent a test case in the following manner in CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [81]:

…where the resolution of a point is desirable from the point of view of a large and recurrent litigant, whether corporate (for example, an insurance company) or governmental (for example, the Commissioner of Taxation or the Australian Competition and Consumer Commission), but the other party to the litigation is not a recurrent litigant and is not well-positioned to meet adverse costs orders on the point being tested…

42. The parties in the present proceedings plainly match that description. Indeed, the first and second respondents constitute recurrent governmental and corporate litigants respectively.

43. However, to constitute a test case, such parties must be in dispute over an issue of particular significance. It was only the adjudication of the issue encapsulated by the second declaration that was “desirable” from the point of the respondents. It may be accepted, for present purposes, that the resolution of the proceedings in that respect was in the public interest (Chubb Insurance Company of Australia Limited v Moore (No 2) [2013] NSWCA 299 at [17]-[18]) and would have “significant commercial consequences” for the respondents (Tempo Services Ltd v Strezouski [2005] NSWIRComm 329 at [39]). The same could not be said, however, for the first and third declarations which failed to grapple with the substantive issue in the proceedings and were, therefore, either abandoned or refused on the grounds of utility. As such, the costs accrued in relation to the first and third declarations were not occasioned in circumstances that represent a test case.

44. As I have found, in answer to the first question posed above, the respondents should receive some deduction for the costs accrued in relation to the period prior to the filing of the amended application in order to do justice to the parties in the proceedings.

45. As to the disposition of the contest as to costs itself and the period of proceedings from 3 August 2015, the matter should, in my view, be seen as a proxy for the primary controversy as to costs because it represents a counterpart to the issues ventilated in the substantive proceedings. The costs occasioned in arguing this matter should not merely follow the event of the substantive proceedings, as contended by the applicant, but, rather, should reflect the outcome of the adjudication of the issues presently under consideration. As such, the costs arising from this contest will simply mirror the distribution of costs otherwise ordered.

46. I turn now to the final consideration regarding costs (leaving aside, for the moment, an issue as to the form of orders). This concerns a question as to whether the proper approach to making an order that does not award the applicant costs for the whole of the proceedings is to temporally segment the proceedings and make distinct orders for each segment or to utilise a process of apportionment.

47. By their proposed orders as to costs, it was plain that the respondents considered that such a deduction may be made by making separate orders as to costs for three distinct time periods in the proceedings. It is possible that a costs order that awards costs over particular periods would do justice to the parties in certain circumstances: see, for example, Cretazzo v Lombardi (1975) 13 SASR 4 at 13–15 and X & Y (by her Tutor X) v Pal (CA(NSW), 7 June 1991, unreported at 3 per Clarke JA).

48. However, in my view, it is more appropriate to apportion costs in the circumstances of this matter: see Bell at [130]. That approach will do substantial justice between the parties in relation to costs by properly accounting for the various matters considered in this contest, namely, the deficiencies in the original application, the replication of the same in the amended application and the proportionate costs occasioned in this contest itself when balanced against the overall success of the applicant as to the second declaration. Further, it not only accounts for the success of the parties as to the issues described above but rationalises their actual impact on the costs of the proceedings: Bell at [130].

49. Having analysed the issues in the proceedings, it is plain that the costs order should be largely favourable to the applicant, with a relatively small deduction made to the respondents covering the costs incurred in consequence of the original application and the applicant’s approach to the first and third declarations as well as the respondents’ relative minor success in the contest as to costs itself. This accounts for the fact that, whilst the period prior to the filing of the amended application represents approximately one third of the course of the proceedings (although a lesser proportion of the actual hearing time taken to dispose of the matter) and the respondents were partially successful in the contest as to costs itself, the respondents (properly) conceded that it was appropriate to award costs to the applicant for the major period of the proceedings given her substantial success as to the controversy articulated in the proceedings.

50. On balance, in my view, an order for the respondents to pay 80 per cent of the applicant’s costs should be made.

Form of Orders

51. Before turning to the orders made, it should be noted that, upon the receipt of submissions, the Court issued the following note to the parties:

In accordance with the directions issued in the judgment in Chapman-Davis v State of New South Wales [2015] NSWIC 10 at [237], written submissions as to orders and costs were filed by the applicant and the respondents to Matter IRC 563 of 2014 on 14 August and 28 August 2015 respectively.

By their submissions, the respondents sought orders as to costs in the following formulation:

(1)   An order that the applicant pay the respondents’ costs up to and including 10 October 2014 as agreed or assessed.

(2)   The first respondent to pay the applicant’s costs following 10 October 2014 as agreed or assessed.

(3)   The applicant and the first respondent pay their own costs in respect of their submissions as to the form of the declaration and application for costs.

The first of those proposed orders refers to both respondents. The second, however, refers only to the first respondent. That proposed order was accompanied by a footnote in the following terms:

Noting that the applicant’s claims against the second respondent were abandoned.

The third proposed order also refers only to the first respondent.

It would seem that the footnote accompanying the second proposed order makes reference to the fact that the third declaration sought by the applicant in the proceedings (namely, that “the second respondent is the workers compensation insurer for the purposes of the Workers Compensation Act 1987”) was abandoned.

However, all submissions advanced by the respondents in the proceedings were expressed as being on behalf of both the first and second respondents. As such, it appears that the second respondent was actively involved in defending the substantive issue in the proceedings (which was encapsulated by the second declaration sought).

In the absence of clarity as to the second respondent’s position as to any costs order, the respondents shall be given an opportunity to file and serve further submissions on that issue within 7 days. The applicant shall have an opportunity to file and serve any submissions in reply as that issue within 7 days of the service of the respondents’ submissions.

The judgment of the Court as to orders and costs will then be reserved.

52. The following response was received from the respondents on 9 September 2015:

1.   On 3 September 2015 the President forwarded a note to the parties seeking further submissions on the question of costs.

2.   It is accepted that submissions advanced in the proceedings were expressed to be advanced on behalf of both the First and the Second Respondent. This arose where:

a.   The Applicant’s Amended Application filed 10 October 2014 sought declaratory relief in relation to both the First and Second Respondent. The Second Respondent was a named party to the proceedings, and a party against whom declaratory relief was sought. As such it was involved in those proceedings. (See, for example, the submission at paragraph 41 of the Outline of Submissions filed 18 December 2014.)

b.   It was not until the hearing of the substantive matter on 4 March 2015 that the Applicant abandoned her claim for declaratory relief in relation to the Second Respondent (Decision [23]).

c. During the course of this hearing a question arose as to whether the Court could have regard to the address by Mr Shoebridge MLC in moving an amendment to the Bill (that became the Workers Compensation Legislation Amendment Act 2012) at the Committee stage in the Legislative Council on 22 June 2012. This led to the parties filing further submissions. Submissions filed on 11 March 2015, and headed “Further Submission re Use of Extrinsic Material”, were expressed to be filed “on [b]ehalf of the First and Second Respondents”, and in those submissions “[t]he Respondents” advanced contentions in support of the proposition that regard could be had to the address of Mr Shoebridge. It is acknowledged that in circumstances where the application for declaratory relief in relation to the Second Respondent had been abandoned on 4 March 2015 it would perhaps have been more appropriate that these submissions be filed, and contentions advanced, by the First Respondent, as by that stage it was the only active respondent to the proceedings.

3.   Whilst it is accepted that the Second Respondent was involved in defending the proceedings it is submitted that the Court would not make an order against it such that it would be liable to pay the Applicant’s costs following 10 October 2014. This arises from the fact that declaratory relief in relation to it was belatedly abandoned at the hearing and therefore no declaratory orders are sought against it.

4.   The Second Respondent’s involvement in the hearing of the proceedings on 4 March 2015 arose as a direct consequence of the fact that it was not until those proceedings had been commenced on that day that the Applicant indicated that she was abandoning her claim for declaratory in relation to it.

5.   Had the Applicant given notice of this at an earlier point in time (as would have been appropriate given paragraph 2.3 of the letter sent to the Applicant’s solicitors on 7 October 2014 (referred to at [20] of the Decision), and noting that nothing substantive further happened in relation to this issue between 7 October 2014 and 4 March 2015 which would have changed the position identified in that letter vis-a-vis the position of the Second Respondent), there would have been no need for the Second Respondent to take an active part in the proceedings.

6.   It is accepted, as identified in paragraph 5.b. of the Further Submissions re Costs filed 28 August 2015, that the Court could make an order that the First Respondent pay the Applicant’s costs following 10 October 2014 as agreed or assessed.

7.   In the circumstances, the costs orders in the form identified in paragraph 5 of the Further Submissions re Costs filed 28 August 2015 ought to be made. Orders to this effect have been identified in paragraph 2 of the note from the President forwarded on 3 September 2015.

53. On 14 September 2015, the applicant filed further submissions in reply in which the following submission was made with respect to the issue in question:

The second respondent was an active participant in the proceedings. It had made the declinature which precipitated the proceedings. At no stage did the second respondent assert that it should not have been a party to the proceedings and the defence of both respondents was carried out jointly. Accordingly, it would be appropriate for both respondents to be ordered to pay the applicant’s costs.

54. I accept the applicant’s submission in that respect.

55. The second declaration sought by the applicant which represents, in substance, the relief ultimately granted in the proceedings, was served upon, and defended by, both respondents. Indeed, as the applicant expressed, her determination to initiate the proceedings “was caused by the decision of the second respondent to decline the applicant’s claim for medical expenses on the advice of the first respondent”.

56. It should be noted, in that respect, that it was the respondents who encouraged the articulation of the second declaration in response to their successful contentions that the relief sought should encapsulate the true controversy in the proceedings, namely, whether the applicant was a ‘paramedic’ within the meaning and for the purposes of the Schedule. That contest directly relates to the workers compensation payment to be made by the second respondent: see Chapman-Davis (No 1) at [19]. Moreover, to the extent that the ventilation of that controversy represented a test case or, otherwise, an issue of general import, both respondents had an interest in its resolution. It would be inappropriate, therefore, to view the second respondent as anything other than central to this controversy.

57. In the result, the form of the orders as to costs should be referable to both the first and second respondents.

orders

58. The Court makes the following determination, declaration and orders:

1. At the time of her injury on 25 July 2011 the applicant was a ‘paramedic’ within the meaning and for the purposes of cl 25 of Pt 19H of Sch 6 of the Workers Compensation Act 1987.

2. The respondents shall pay 80 per cent of the applicant’s costs of these proceedings, as agreed or, in the absence of agreement, assessed.

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Decision last updated: 01 October 2015