Karen Alison Power v HSE Mining Pty Ltd - [2007] NTMC 2

CITATION: Karen Alison Power v HSE Mining Pty Ltd [2007] NTMC 002

PARTIES: Karen Alison Power

-v-

HSE Mining Pty Ltd

TITLE OF COURT: WORK HEALTH COURT

JURISDICTION: WORK HEALTH ACT

FILE NO(s): 20506041

DELIVERED ON: 19 January 2007

DELIVERED AT: DARWIN

HEARING DATE(s): 19 December 2006

DECISION OF: D LOADMAN, SM

CATCHWORDS:
INTEREST AWARDS PURSUANT TO SECTION 109 WORK HEALTH ACT – INDEMNITY COSTS – BOTH CLAIMED CONSEQUENT ON SUMMARY JUDGEMENT ENTERED AGAINST EMPLOYER
Act
Work Health Act

REPRESENTATION:

Counsel:
Worker: Mr Colin McDonald QC
Employer: Ms Judith Kelly

Solicitors:
Worker: Ward Keller
Employer: Cridlands

Judgment category classification: B
Judgment ID number: [2007] NTMC 002
Number of paragraphs: 28

IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20506041

BETWEEN:
Karen Alison POWER

Worker

AND:
HSE MINING PTY LTD

Employer

DECISION

(Delivered 19 January 2007)

Mr David LOADMAN SM:

1. The relevant applications for the purposes of this decision comprise:-

a. an application for summary judgement and other relief made pursuant to rule 6.03(a) of the Work Health Court Rules (“the rules”)(the Worker’s application”);
b. There is a second interlocutory application filed pursuant to the same rule seeking a stay of the summary judgement application or an adjournment of same to a date to be fixed. This application is stated to be in pursuance of part 6 and rule 3.04 of the rules. (“the Employer’s application”).

2. With the leave of the court the initial affidavit in support of the Employer’s application, sworn by David Langdon Sweet (“Sweet”) 13 December 2006, was supplemented with further affidavits by Sweet sworn 18.12.2006 and 19.12.2006.

3. On 19.12.2006 after argument the court ordered that summary judgement be entered against the employer in favour of the worker in terms to be formulated and the Employer’s application was adjourned to 20 December 2006.

4. On 20 December 2006, by consent, orders were made in terms of paragraphs 2, 3, 5 and 8 of the Worker’s application.

5. The relevant paragraph for the purposes of this decision is paragraph 5 of the Worker’s application which is in the following terms:-

“that the employer pay the worker interest pursuant to section 89 of the Work Health Act on all arrears or weekly benefits calculated on and from 22 February 2005 to the date of payment in such sum as this Honourable Court may determine”

6. The interest prescribed by regulation 14 of the regulations under the Work Health Court Act applicable to an order in terms of section 89 of that Act specifies the rate of interest to be an amount of 20%. Interest at that rate is included in the monetary sum for which judgement was duly entered in favour of the Worker against the Employer.

7. Those paragraphs of the Worker’s application which are contested are the following paragraphs:-

“6. That the Employer pay the Worker interest pursuant to Section 109(1) of the Work Health Act on all arrears of weekly benefits owing on and from 6 October 2006…

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: [2007] NTMC 2
Decision Date: 19 January 2007

CaseChat Overview and Summary

In the case of Karen Alison Power v HSE Mining Pty Ltd, the Work Health Court was tasked with resolving disputes regarding interest awards and indemnity costs, both claimed as a consequence of a summary judgment entered against the employer. The primary issue before the court was whether the employer had caused unreasonable delay in accepting a claim for or paying compensation, which would entitle the worker to interest and indemnity costs under the Work Health Act.

The court examined the conduct of the employer following the Chaffey v Santos Limited decision, which had established the worker's entitlement to compensation. The employer had engaged in negotiations aimed at minimizing costs and securing repayment if the Chaffey decision was overturned. The court found that while the employer's actions were directed towards minimizing financial consequences, they did not constitute an unreasonable delay as required under Section 109 of the Work Health Act. Consequently, the court declined to order interest pursuant to Section 109(1)(a) and found that Section 109(3) did not apply.

Regarding indemnity costs, the court held that the employer's conduct, while not unreasonable, did not amount to contumelious wrongdoing or a refusal to acknowledge the validity of the worker's claim. The court concluded that there was no basis for awarding indemnity costs under the circumstances. However, the court did order that the employer pay the worker's costs of and incidental to the application on the standard basis of 100% of the Supreme Court Scale. This decision included costs related to the employer's application and reserved costs, with liberty granted to apply for the scope of the cost order if necessary.

Orders