Department for Health and Ageing v Li

[2018] SASCFC 67

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

DEPARTMENT FOR HEALTH AND AGEING v LI

[2018] SASCFC 67

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)

21 June 2018

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION

Application for costs after allowing the appeal.

The Court previously delivered reasons for allowing the appeal against a determination by the Full Bench of the South Australian Employment Tribunal that the appellant is liable to pay the respondent compensation for depressive illness: Department for Health and Ageing v Li [2018] SASCFC 52.

The appellant submits that each party should bear its own costs of the appeal.

The respondent seeks an order that the appellant pay her costs of the appeal notwithstanding that the appeal succeeded.

Held by the Court:

1.     The Court should adjourn consideration of the costs of this appeal until the final determination of the matter which has been remitted to the South Australian Employment Tribunal.

DEPARTMENT FOR HEALTH AND AGEING v LI
[2018] SASCFC 67

Full Court:  Kourakis CJ, Stanley and Bampton JJ

1. THE COURT:           In this matter the Full Court allowed an appeal from the Full Bench of the South Australian Employment Tribunal (Employment Tribunal). The Full Court unanimously held that the Full Bench of the Employment Tribunal erred in its construction of s 30A of the Workers Rehabilitation and Compensation Act 1986 (SA). The Court remitted the matter to a single presidential member of the Employment Tribunal for the matter to be reheard and determined in accordance with the construction of s 30A adopted by the majority of this Court.

2. The appellant submits that each party should bear its own costs of the appeal.  The respondent seeks an order that the appellant pay her costs of the appeal notwithstanding that the appeal succeeded. 

3. An award of costs is discretionary.  The only fetter on the exercise of the Court’s discretion is that it must be exercised judicially.  While the general practice is that a successful appellant is usually entitled to his costs, the authorities support the proposition that it is open to the Court to award costs against a successful party and in favour of an unsuccessful party where considerations of principle warrant the adoption of such a course.[1] 

   [1]    Cretazzo v Lombardi (1975) 13 SASR 4 at 11-12.

4. In this case the respondent made a claim for compensation for a psychiatric injury.  The appellant rejected her claim.  The dispute was heard by a Deputy President of the Employment Tribunal who upheld the appellant’s determination to reject the claim for compensation.  On appeal to the Full Bench, the respondent succeeded. 

5. The appeal to this Court succeeded because the Court unanimously held that the Full Bench had erred in its construction of s 30A. This Court also unanimously held that the Deputy President’s factual findings at first instance were vitiated by a failure to address the evidence of workplace causes of the respondent’s psychiatric injury other than administrative action.

6. The appeal to this Court has clarified the proper construction of s 30A. This is a matter of general importance. The authoritative pronouncement by this Court of the proper construction of that provision requires the dispute in relation to the rejection by the appellant of the respondent’s claim to be reheard. The outcome of that further hearing is obviously unknown. In our view, if the respondent ultimately succeeds it would be unfair that she is deprived of her costs of this appeal.

7. Accordingly, we consider that the Court should adjourn consideration of the costs of this appeal until the final determination of the matter which we have remitted to the Employment Tribunal.  At that point, the Court can decide what order as to the costs of this appeal should be made in a principled fashion.