Goudappel v ADCO Constructions Pty Limited (No 2) - [2012] NSWWCCPD 65

WORKERS COMPENSATION COMMISSION
REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
CITATION:		Goudappel v ADCO Constructions Pty Limited & anor (No 2) [2012] NSWWCCPD 65
APPLICANT:		Ronald Goudappel
RESPONDENT:		ADCO Constructions Pty Limited
INSURER:		GIO General Limited
INTERVENER:		WorkCover Authority of NSW
FILE NUMBER:		7810/12
DATE OF DECISION:		8 November 2012
SUBJECT MATTER OF DECISION:		Legal costs in respect of an Arbitrator’s referral of a question of law; s 351 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Applicant:	LHD Lawyers
Respondent:	Rankin Nathan
Intervener:	WorkCover Authority of NSW
ORDERS MADE:		Each party is to pay his or its own costs of the proceedings in Goudappel v ADCO Constructions Pty Limited [2012] NSWWCCPD 60

INTRODUCTION

On 9 September 2012, an Arbitrator lodged an application for leave to refer a question of law pursuant to s 351 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM).
The application concerned the interpretation of the savings and transitional provisions of the Workers Compensation Legislation Amendment Act 2012 (the Amending Act) with respect to claims for lump sum compensation.
The application was made by the Arbitrator at the request of the parties and the intervener, the WorkCover Authority of New South Wales (WorkCover).
The question of law was determined by me by written decision on 22 October 2012: Goudappel v ADCO Constructions Pty Limited [2012] NSWWCCPD 60 (Goudappel No 1). In essence, I held that the respondent’s interpretation of the effect of the transitional provisions, upon which it relied to defeat Mr Goudappel’s claim for lump sum compensation, was correct. In that sense Mr Goudappel was unsuccessful on the application.
I reserved the question of costs and granted the parties liberty to apply.
In response to the leave given, the applicant, Mr Goudappel, has sought an order for costs which is opposed by the respondent.
No submissions were received from WorkCover.

SUBMISSIONS

Applicant’s submissions

The applicant submits that the issue for determination in Goudappel No 1 is likely to affect the rights of many injured workers. He submits that the argument mounted by the applicant was “there to be put” and at the very least, involved a question of statutory construction which needed to be resolved.
The applicant submits the fact that a regulation (the Workers Compensation Amendment (Transitional) Regulation 2012) (the Transitional Regulation) became operational on 1 October 2012, which, it is submitted, purported to put the question of law to rest, was evidence of the uncertainty surrounding the proper construction of the terms of the Amending Act relating to lump sum claims. This, it is submitted, was not displaced by my conclusion that it was unnecessary to consider the validity and effect of the regulation.
The applicant submits that the matter was in effect “a test case”, the implications of which extended beyond the case itself and affected the rights of many other workers and employers. He submits that in those…

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.

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Details

Case: [2012] NSWWCCPD 65
Decision Date: 8 November 2012

CaseChat Overview and Summary

Goudappel v ADCO Constructions Pty Limited (No 2) involved the appellant, Goudappel, and the respondent, ADCO Constructions Pty Limited, in a dispute over legal costs incurred in an earlier arbitration. The case was heard by the New South Wales Workers Compensation Commission of Personal Injury, presided over by Commissioner A J A Grigg. The central issue was whether the respondent was liable to pay the appellant's legal costs that arose from an arbitrator's referral of a question of law under section 351 of the Workplace Injury Management and Workers Compensation Act 1998.

The legal issue before the court was whether the respondent, ADCO Constructions Pty Limited, was required to bear the costs associated with the appellant's legal representation in the arbitration process, specifically those costs incurred due to the arbitrator's referral of a question of law. The court needed to determine whether section 351 of the Act imposed such a liability on the respondent.

The court examined the language of section 351 and found that it did not explicitly mandate that the respondent bear the costs of the appellant's legal representation in the arbitration. Given the absence of clear legislative direction, the court held that the respondent was not liable to pay the appellant's legal costs resulting from the arbitrator's referral. The court further reasoned that since the matter was not one of costs consequential to the proceedings, the usual principle of costs following the event did not apply.

The final orders of the court were that each party was to bear its own costs of the proceedings in Goudappel v ADCO Constructions Pty Limited [2012] NSWWCCPD 60. This decision clarified the scope of liability for legal costs in cases involving an arbitrator's referral under the Act.

Orders

Orders of the court

Each party is to pay his or its own costs of the proceedings in Goudappel v ADCO Constructions Pty Limited [2012] NSWWCCPD 60

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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