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

1. 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).

2. 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.

3. The application was made by the Arbitrator at the request of the parties and the intervener, the WorkCover Authority of New South Wales (WorkCover).

4. 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.

5. I reserved the question of costs and granted the parties liberty to apply.

6. In response to the leave given, the applicant, Mr Goudappel, has sought an order for costs which is opposed by the respondent.

7. No submissions were received from WorkCover.

SUBMISSIONS

Applicant’s submissions

1. 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.

2. 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.

3. 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 circumstances, given his limited financial resources, he should not be penalised although unsuccessful in the proceedings.

4. In the alternative, as he had not been guilty of any relevant default in bringing the proceedings, there should not be any order for costs against him and that the appropriate order is that each party bears his or its own costs.

Respondent’s submissions

1. The respondent accepts that the common principle in litigation that “costs follow the event” is not necessarily strictly applied in Commission proceedings. The respondent submits that there should be no order for costs against the respondent and submits that the appropriate order is that each party bears its own costs.

2. The respondent submits that it ought not be held liable for costs to an unsuccessful applicant unless it has been guilty of some sort of misconduct, invited the litigation by lax conduct or unnecessarily or unreasonably protracted the proceedings: Oshlack v Richmond River Council (1998) 193 CLR 72; HCA 11 (Oshlack).

CONSIDERATION

1. I accept that the issues raised for determination in Goudappel No 1 were in the nature of a test case. The outcome of the application will clearly have implications not only for Mr Goudappel, but will also affect the rights of other applicants in similar circumstances.

2. The awarding of costs in the Commission is discretionary. The Commission has full power to determine by whom, to whom and to what extent costs are to be paid: (s 341 of the WIM).

3. This application involves the question of whether a successful party should be ordered to pay the costs of an unsuccessful party. As discussed in Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124, the decision of McHugh J in Oshlack (at [69]) is instructive:

   “The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows:

   ‘No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.’

   ‘Misconduct’ in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.”

4. None of the matters identified in Oshlack as justifying an order that a successful party pay the costs of the unsuccessful party apply in the present matter. The question of law came to me on referral from the Arbitrator and with the consent of all concerned. Nothing in the respondent’s conduct invited the litigation or unnecessarily protracted it. It is appropriate that each side pay his or its own costs of the application.

ORDER

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

Judge Keating

President

8 November 2012

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE