Faulks and BIS Industries Limited (Compensation)

This matter concerned an appeal by the applicant, Faulks, against decisions of the respondent, BIS Industries Limited, in relation to a workers' compensation claim. The applicant sought to have three reviewable decisions set aside and a substituted decision made that was more favourable to him. The core of the dispute revolved around the respondent's contention that the applicant had incurred additional and unnecessary costs due to the manner in which he conducted his case, and therefore, the respondent argued that the Tribunal should exercise its discretion to order that only part of the applicant's costs be paid. The proceedings were heard by D O'Donovan SM.

The legal issues before the Tribunal were whether the respondent had incurred additional and unnecessary costs as a result of the applicant's conduct, specifically concerning the introduction of "radically different" oral evidence from Mr Sergides regarding the effect of altered gait on an L5/S1 injury, and the number of case theories advanced by the applicant. The Tribunal was required to determine whether these factors warranted a departure from the usual rule that costs follow the event, where a reviewable decision is set aside and a more favourable decision is substituted.

The Tribunal considered section 67(8) of the relevant legislation, which grants a broad discretion to award costs in such circumstances. The usual rule is that the successful party is entitled to their costs. The respondent sought a variation of this rule, arguing for a reduction in the costs awarded to the applicant after a specific date. The applicant countered that the issue of gait was known and addressed in filed documents and by experts, and that the need for further evidence from Dr McGill arose from the respondent's own request and the Tribunal's direction, not the applicant's conduct. Regarding the case theories, the applicant argued the respondent had failed to demonstrate any additional or unreasonable costs incurred due to their number. The Tribunal ultimately ordered the respondent to pay the applicant's costs in all three proceedings.