Kezic v St John of God Health Care Inc
[2015] WASCA 220
•6 NOVEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KEZIC -v- ST JOHN OF GOD HEALTH CARE INC [2015] WASCA 220
CORAM: NEWNES JA
MURPHY JA
HEARD: 14 OCTOBER 2015
DELIVERED : 6 NOVEMBER 2015
FILE NO/S: CACV 77 of 2015
CACV 78 of 2015
CACV 79 of 2015
CACV 80 of 2015
CACV 81 of 2015
CACV 82 of 2015
CACV 83 of 2015
CACV 84 of 2015
BETWEEN: ROSARIA KEZIC
Appellant
AND
ST JOHN OF GOD HEALTH CARE INC
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :FENBURY DCJ
File No :APP 42 of 2014, APP 43 of 2014, APP 44 of 2014, APP 55 of 2014
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STONE DCJ
File No :APP 42 of 2014, APP 43 of 2014, APP 44 of 2014, APP 55 of 2014
Catchwords:
Practice and procedure - Whether grounds of appeal have any reasonable prospect of succeeding - Application for leave to appeal - Whether costs can be awarded against an unsuccessful worker on appeal under s 267 of the Workers' Compensation and Injury Management Act 1981 (WA)
Legislation:
District Court of Western Australia Act 1969 (WA), s 64
District Court Rules 2005 (WA), r 59
Workers' Compensation and Injury Management Act 1981 (WA), s 247, s 267
Result:
Leave to appeal dismissed
Appeals dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr R D McCabe
Solicitors:
Appellant: In person
Respondent: Kott Gunning
Case(s) referred to in judgment(s):
Kezic v St John of God Health Care Inc [2014] WADC 169
Kezic v St John of God Health Care Inc [2015] WASCA 182
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
REASONS OF THE COURT:
Introduction
These eight matters were listed for hearing on 14 October 2015 by way of an amended registrar's notice to attend dated 15 September 2015, to consider:
1.The appellant's applications for leave to appeal; and
2.Whether any of the grounds of appeal in each appeal has any reasonable prospect of succeeding.
CACV 77 ‑ 80 of 2015 are appeals from an interlocutory decision of Fenbury DCJ on 28 April 2015 in Apps 42, 43, 44 and 55 of 2014. The appellant had applied to a registrar to vacate a hearing concerning costs in those matters, listed for 7 May 2015 before Stone DCJ. The deputy registrar dismissed the appellant's applications. The appellant appealed that decision. The matter came before Fenbury DCJ on 28 April 2015, and his Honour adjourned that appeal to the hearing before Stone DCJ on 7 May 2015.
CACV 81 ‑ 84 are appeals from a decision of Stone DCJ on 7 May 2015, making costs orders in Apps 42, 43, 44 and 55 of 2014, and dismissing the appellant's application to vacate the hearing as to costs.
A background of the substantive proceedings in Apps 42, 43, 44 and 55 of 2014 may be found in Kezic v St John of God Health Care Inc [2015] WASCA 182 (Kezic No 1). Apps 42, 43, 44 and 55 of 2014 arise from interlocutory decisions of arbitrators in relation to workers' compensation claims that are yet to reach arbitration and a final decision. After hearing the appeals over three days on 30 July 2014 and 27 ‑ 28 November 2014, Stone DCJ delivered judgment on 22 December 2014. His Honour refused leave to appeal and dismissed Apps 44 and 55 of 2014. With respect to Apps 42 and 43 of 2014, leave to appeal was partially granted, and the appeal was partially allowed: Kezic v St John of God Health Care Inc [2014] WADC 169.
The appellant applied for leave to appeal the decision of Stone DCJ on 22 December 2014 in relation to each of Apps 42, 43, 44 and 55 of 2014. On 4 September 2015, this court dismissed the appellant's applications for leave to appeal on the basis that the appellant had not established that any substantial injustice would be done by leaving the primary judge's decision unreversed, and the circumstances of the case did not justify the grant of leave: Kezic No 1 [87].
The decisions presently under appeal in this court were made before Kezic No 1 was delivered.
The principles relevant to the question of leave to appeal to this court were referred to in Kezic No 1 [83] - [86].
District court proceedings - background
On 22 December 2014, Apps 42, 43, 44 and 55 of 2014 were listed for special appointment on 7 May 2015 to consider the question of costs following the resolution of the substantive appeals in those matters.
On 5 March 2015, the appellant emailed the registrar in relation to Apps 42, 43, 44 and 55 of 2014. In the email, the appellant asked what the procedure was for her to request a vacation of the special appointment listed on 7 May 2015 to consider costs, on the basis that the adjournment of the costs issue was subject to an appeal by the appellant in the Court of Appeal.
On 9 March 2015, the registrar's associate, by letter, informed the appellant, relevantly, that her email dated 5 March 2015 had been referred to Stone DCJ and, as the costs order '[was] independent of any appeal in the Supreme Court proceedings', his Honour had denied the request to vacate the hearing.
On 17 March 2015, the appellant filed, in Apps 42, 43, 44 and 55 of 2015, a document entitled 'Chamber summons for orders to vacate special appointment listed for 7 May 2015 before Judge Stone'. The chamber summonses were listed before a deputy registrar.
On 30 March 2015, the deputy registrar dismissed the appellant's applications dated 17 March 2015, and ordered the appellant pay the respondent's costs of the applications.
On 1 April 2015, the appellant filed an appeal notice in Apps 42, 43, 44 and 55 of 2014 challenging the orders made by the deputy registrar on 30 March 2015 (the adjournment appeals).
On 9 April 2015, the deputy registrar made orders that the adjournment appeals be listed for hearing on 28 April 2015, and made ancillary programming orders.
On 15 April 2015, the appellant filed submissions in Apps 42, 43, 44 and 55 of 2014 in relation to the adjournment appeals. On 21 April 2015, the respondent filed its submissions.
The hearing before Fenbury DCJ on 28 April 2015
On 28 April 2015, Apps 42, 43, 44 and 55 were listed before Fenbury DCJ, to consider the adjournment appeals.
At the hearing on 28 April 2015, Fenbury DCJ asked why the matter should not be adjourned to 7 May 2015 before Stone DCJ. The appellant submitted, in effect, that on 28 November 2014, Stone DCJ had said that it was his understanding that in workers' compensation matters the employer does not seek costs against the worker (ts 447 ‑ 449); that r 59 of the District Court Rules 2005 (WA) (District Court Rules) states that on determining an appeal, if there are any costs to be awarded, that is 'the time to do it' (ts 449); and that it was 'unjust' to have adjourned the costs determination to 7 May 2015 (ts 449).
Fenbury DCJ said, in effect, that he had a 'strong view' that the matter should be adjourned to be heard before Stone DCJ because Stone DCJ had been the judicial officer dealing with the whole proceedings to date, including the question of costs (ts 443); and that judicial resources would not be efficiently used if a new judge was required to hear the arguments, determine the application and deliver a decision before 7 May 2015 (ts 446).
Accordingly, Fenbury DCJ made orders adjourning the hearing of the adjournment appeals to 7 May 2015. The costs of the 28 April 2015 were also adjourned to that date.
On 28 April 2015, the appellant by letter to Fenbury DCJ's associate requested written reasons of his Honour's decision. On 29 April 2015, Stone DCJ's associate informed the appellant that Fenbury DCJ would not be providing written reasons for his decision, and that the reasons for adjourning the matter were 'obvious from the transcript of the hearing'.
Costs - legislative provisions
Before turning to the decision of Stone DCJ on 7 May 2015, it is convenient to set out the relevant legislative provisions to which his Honour referred.
Section 64 of the District Court of Western Australia Act 1969 (WA) (District Court Act) provides:
64.Costs of action or proceeding
(1)Except as hereinafter provided in this Act, the costs of any action or proceeding shall be in accordance with any costs determination (as defined in the Legal Profession Act 2008 section 252) and shall be paid by or apportioned between the parties in such manner as the District Court judge directs and in default of such a direction shall abide the event.
(2)The costs may be recovered in like manner as a debt adjudged by the Court to be paid.
(3)Subject to this Act, a District Court judge has the same power in relation to the payment of costs by any party as a judge of the Supreme Court has.
Rule 59 of the District Court Rules provides:
59.Costs
(1)The awarding of the costs of and incidental to an appeal is in the discretion of the Court.
(2)On determining an appeal the Court may fix the amount of costs but otherwise they are to be taxed in accordance with determinations made by the Legal Costs Committee under the Legal Practice Act 2003 and section 215 of that Act.
(3)On determining an appeal, the Court may make any order as to any money paid to the Court as security for costs that is just having regard to any order made as to costs.
(4)If the Court does not make an order under subrule (3), a legally qualified registrar may make such an order at any time.
Section 247 and s 267 of the Workers' Compensation and Injury Management Act 1981 (WA) (Workers' Compensation Act) provide relevantly:
247.Appeal against arbitrator's decision made under Part XI
…
(7)On hearing an appeal made under this section, the District Court may -
(a)affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and
(b)subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.
267.Appeal costs
(1)The District Court is not to make an order for costs against a worker on the ground that an appeal under Part XIII was successful.
(2)If the appellant in an appeal under Part XIII is a worker and is unsuccessful on the appeal, the District Court is not to make an order for the payment of the appellant's costs on the appeal by any other party to the appeal.
Stone DCJ's decision of 7 May 2015
The parties filed written submissions and also made oral submissions to Stone DCJ. The submissions covered the question of an adjournment and Fenbury DCJ's interlocutory decision on 28 April 2015, and the question of the costs of the appeals in Apps 42, 43, 44 and 55 of 2014.
Stone DCJ delivered ex tempore reasons on 7 May 2015.
The application to vacate the hearing as to costs
His Honour noted that an appeal from a registrar to a judge is by way of a new hearing and is decided afresh: r 15(6) of the District Court Rules. His Honour accordingly determined the adjournment appeal as a new hearing of the application to vacate the costs hearing, to be decided afresh. He found there was a need for finality concerning the appellant's appeals in Apps 42, 43, 44 and 55 of 2014, including as to costs, and that this was so irrespective of the then pending decision in Kezic No 1.
Stone DCJ further found that the appellant had failed to demonstrate she would be prejudiced by, or suffer a serious injustice if, the costs issue was determined on 7 May 2015, and that she had been aware that she was required to file submissions since 22 December 2014.
His Honour then proceeded to deal with the issue of costs.
Costs
Stone DCJ considered s 64 of the District Court Act, r 59 of the District Court Rules and s 247 and s 267 of the Workers' Compensation Act (see ts 477 ‑ 479), and concluded that subject to s 267 of the Workers' Compensation Act, it is usual for costs to follow the event.
His Honour found that s 267, upon its proper construction, has the following effect. First, if an appellant employer is successful in its appeal then the District Court cannot make a costs order against the respondent worker on the ground that the appeal was successful. Secondly, if the appellant employer is unsuccessful then the District Court can make an order in favour of the respondent worker on the ground that the appellant employer's appeal was unsuccessful. Thirdly, if an appellant worker is successful in his or her appeal then the District Court can make an order against the respondent employer on the ground that the appeal was successful. Fourthly, if an appellant worker is unsuccessful in his or her appeal, then the District Court can make a costs order in favour of the respondent employer on the ground that the appellant worker's appeal was unsuccessful. Finally, it follows from s 267(2) that if an appellant worker is unsuccessful in his or her appeal, the District Court cannot make a costs order in favour of the appellant worker for his or her costs of the appeal against the respondent employer or any other party to the appeal.
Stone DCJ found, on the facts, as follows:
In these four appeals which were brought by Ms Kezic in her worker capacity, she was only partially successful in appeals 42 and 43, and wholly unsuccessful in appeals 44 and 55.
In my view, by application of section 2371 [sic - s 267(1)] of the Workers' Compensation and Injury Management Act Ms Kezic is entitled to the costs of the grounds upon which she was successful in appeals 42 and 43. Further, there is no reason why Ms Kezic should not pay St John of God Health Care's costs of the grounds upon which she was unsuccessful in appeals 42, 43, 44 and 55.
In appeal 42 of 2014 leave to appeal was refused and the appeal was dismissed save insofar as it related to the decision by Arbitrator Powles to refuse Ms Kezic's interlocutory application for leave to file as late evidence a copy of the SJOGH Alesco pay run sheets for Ms Kezic from 1 July 2009 to 3 October 2012. Leave to appeal was granted with respect to the Alesco pay run sheets. The appeal was allowed and the order of Arbitrator Powles was quashed.
In appeal 43 of 2014 leave to appeal was refused and the appeal was dismissed, save insofar as it related to the decision by Arbitrator Powles to refuse Ms Kezic's interlocutory application for leave to file as late evidence a copy of the Fresh Start progress report dated 23 May 2011 for Ms Kezic. Leave to appeal was granted with respect to the Fresh Start progress report dated 23 May 2011. The appeal was allowed and the order of Arbitrator Powles was quashed.
In appeal 44 of 2014 leave to appeal was refused and the appeal was dismissed. In appeal 55 of 2014 leave to appeal was refused and the appeal was dismissed.
As I observed in my reasons for decision in this case, Ms Kezic's written submissions for the appeals raised a multitude of issues which made it difficult to relate them to specific grounds of appeal.
In dealing with each appeal I endeavoured to deal with the main issues raised in the appeal by Ms Kezic at the hearing as some of the amended grounds or sub grounds set out in Ms Kezic's written submissions were common to more than one of the appeals or found their way into more than one of the appeals.
At the hearing of the four appeals it seem to me that with respect to appeals 42 and 43 of 2014, about 20 per cent of the time was spent on the two grounds upon which Ms Kezic was successful, although I pause to observe that was as a result of the respondent making a concession. The remainder of the time was spent on the other grounds on which Ms Kezic was unsuccessful in appeals 42 and 43 and those grounds were extensive and expansive.
In the circumstances it would be fair that the respondent should pay 20 per cent of Ms Kezic's costs of appeals 42 and 43 and Ms Kezic should pay 80 per cent of the respondent's costs of appeals 42 and 43.
With respect to appeals 44 and 55 of 2014 upon which Ms Kezic was wholly unsuccessful and which had no connection with the two grounds upon which Ms Kezic was successful in appeals 42 and 43, it would be fair that she pay 100 per cent of the respondent's costs of appeals 44 and 55 (ts 479 ‑ 480).
The orders of 7 May 2015
On 7 May 2015, Stone DCJ made orders to the effect that:
1.With respect to Appeals 42 and 43 of 2014, the respondent pay 20% of the appellant's costs of those appeals and the appellant pay 80% of the respondent's costs of those appeals, to be taxed if not agreed.
2.With respect to Appeals 44 and 55 of 2014, the appellant pay 100% of the respondent's costs of those appeals, to be taxed if not agreed.
3.The appellant pay the respondent's costs of the directions hearing on 9 April 2015 before the deputy registrar, to be taxed if not agreed.
4.The appellant pay the respondent's costs of the hearing on 28 April 2015 before his Honour Fenbury DCJ, to be taxed if not agreed.
5.The appellant pay the respondent's costs of the hearing on 7 May 2015, to be taxed if not agreed.
6.The Appellant's application to vacate the cost hearing be declined.
CACV 77 - 80: appeals against the decision of Fenbury DCJ
The appellant has not filed an appellant's case in CACV 78, 79 and 80 of 2015, but she relies in those appeals upon the appellant's case filed in CACV 77 of 2015. The grounds of appeal in CACV 77 of 2015 allege, in effect, that his Honour:
1.erred in law by failing to determine the matters before him as is required of a judicial officer, and instead in adjourning the matter to be heard by Stone DCJ on 7 May 2015, in that his Honour:
(a)erred in refusing to hear the matter on the basis that the proceeding was incompetent;
(b)failed to deal with the 'abuse of process' by the respondent by having 'unlawfully instituted the costs proceedings';
(c)failed to deal with the costs order made by the deputy registrar on 30 March 2015 that the appellant pay the respondent's costs of the chamber summons application, which remains outstanding;
(d)erred in adjourning the hearing on 28 April 2015 because it was his duty as a judge to deal with the matter;
(e)was involved in a 'violation' of the appellant's civil rights under r 15(1) of the District Court Rules; and
(f)erred in stating that a refusal by a registrar to adjourn a matter is not an appealable decision;
2.erred in law by refusing the appellant permission to inspect her documents and submissions, copies of which had been provided to the District Court by the respondent's counsel following a request by the associate to do so, after it was revealed certain documents were missing; and
3.'misrepresented' himself and erred in law (at ts 442) by stating that the appellant's applications were incompetent and failing to give reasons for taking that view.
CACV 81 - 84: appeals against the decision of Stone DCJ
The grounds of appeal
The appellant has filed an appellant's case in each of CACV 81 ‑ 84 of 2015. The appellant's cases in CACV 81 and 82 of 2015, which relate to Apps 42 ‑ 43 of 2014, are identical. In Apps 42 ‑ 43, the appellant was partly successful and partly unsuccessful, and was ordered to pay 80% of the respondent's costs.
The appellant's cases in CACV 83 and 84 of 2015 are identical. These relate to Apps 44 and 55, where the appellant was wholly unsuccessful and was ordered to pay 100% of the respondent's costs.
Grounds 1 ‑ 4 of the appellant's cases in CACV 81 ‑ 84 of 2015, and the first element of ground 5 (referred to as par 7 in the appellant's case) are identical. In what follows:
•ground '5(a)' will be used to describe the first element in ground 5 in the appellant's cases in CACV 81 ‑ 84 of 2015;
•ground '5(b)' will be used to describe the second element of ground 5 in CACV 81 ‑ 82 of 2015; and
•ground '5(c)' will be used to describe the second element of ground 5 in CACV 83 ‑ 84 of 2015.
Grounds 1 ‑ 4 and ground 5(a) of the appellant's cases in CACV 81 ‑ 84 of 2015 are to the effect that Stone DCJ:
1.erred in law by misdirecting himself as to the meaning and effect of s 267 of the Workers' Compensation Act on its proper construction. His Honour also misapplied s 64 of the District Court Act, r 59(1) of the District Court Rules and s 247(7)(b) of the Workers' Compensation Act;
2.erred in law in failing to attach weight to the absence of case law where an employee has been ordered to pay the costs of an employer, and by misrepresenting himself when stating there was 'no published judgment on the costs'; and
3.erred in law in failing to give adequate reasons with respect to his determination on the respondent's alleged abuse of process in seeking costs:
(a)in light of the 'abuse of process' by the respondent, Stone DCJ 'misrepresented himself' by stating (ts 477) that the decision to grant or refuse an adjournment is discretionary; and
(b)in failing to have regard to the orders wanted by the appellant, including orders to the effect that the legal practitioners 'involved in instituting the unlawful costs proceedings' be referred to the Legal Practitioner's Complaints Committee;
4.erred in law by misrepresenting that the appellant emailed his Honour's associate on 5 March 2015 requesting the 7 May 2015 hearing be vacated (ts 476), when the appellant in fact emailed the deputy registrar.
5(a)erred in law by ordering that the appellant pay the respondent's costs in relation to the directions hearing before the deputy registrar on 9 April 2015 and before Fenbury DCJ on 28 April 2015 when he had no authority to do so. Such costs orders should have been made by Fenbury DCJ.
Ground 5(b) in CACV 81 and 82 of 2015 is to the effect that his Honour erred in law by acting on a wrong principle in ordering that the appellant pay 80% of the respondent's costs in Apps 42 ‑ 43 of 2014, in which the appellant was partly successful, despite the absence of evidence of misconduct by the appellant.
Ground 5(c) in CACV 83 and 84 of 2015 is to the effect that his Honour erred in law by ordering the appellant to pay 100% of the respondent's costs in Apps 44 and 55 of 2014 when these appeals were, as at 7 May 2015, subject to appeal to the Court of Appeal and no order as to costs ought to have been made until the outcome of those appeals was known.
Disposition
The appellant provided written submissions and made oral submissions in which she elaborated on the points raised in the grounds of appeal. Amongst other things, she relied on s 108 and s 118 of the Commonwealth Constitution, and various authorities, including Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.
CACV 77 - 80
These appeals and the appellant's contentions have, at their centre, the principal proposition that Fenbury DCJ was personally obliged to hear and determine the appeal from the deputy registrar. That is incorrect. He was not obliged to hear and determine that appeal, and the appellant had no right, constitutional or otherwise, to require Fenbury DCJ to hear and determine that appeal. The appeal from the deputy registrar's decision (assuming it to be competent) was required to be determined by a single judge, but not personally by Fenbury DCJ. The nature of the appeal was by way of a new hearing in which the matter was to be decided afresh: r 15(6) of the District Court Rules. It was entirely appropriate in all the circumstances for Fenbury DCJ to refer the appeal to Stone DCJ. Stone DCJ had heard and determined the substantive appeals. He had listed the question of costs associated with those appeals to be determined by him at a hearing on 7 May 2015. Any successful appeal against the deputy registrar's decision would have had the effect of overturning that interlocutory decision. The appellant's grounds of appeal mischaracterise and misconceive the nature of Fenbury DCJ's decision.
As to ground 1(c), the order as to costs made on 30 March 2015 remained on foot following the dismissal by Stone DCJ of the appeal against the deputy registrar's decision of that date.
As to ground 2, there is no arguable error insofar as Fenbury DCJ did not permit the appellant to inspect her own documents, particularly as he did not deal with the merits of the appeal that day.
No ground of appeal has a reasonable prospect of success. Moreover, even if any of the grounds of appeal were arguable, we would not grant leave to appeal. No substantial injustice would arise if the decision were left unreversed because the question of whether the costs should be determined at the hearing on 7 May 2015, or whether the hearing should be vacated, was heard and determined by a judge, namely Stone DCJ, on 7 May 2015.
CACV 81 - 84
Ground 1 alleges, in substance, that his Honour misconstrued s 267 of the Act. It will be necessary to return to that ground later in these reasons.
Ground 2 has no arguable prospect of success. The absence of any case law on the question does not point to any arguable error by the judge.
Ground 3 alleges that the judge's reasons were inadequate in dealing with an alleged abuse of process point, and in not dealing with the appellant's request that the respondent's solicitors be referred for disciplinary action. The premises underlying these grounds were not established, and it is apparent from his Honour's reasons read as a whole that his Honour rejected allegations of an abuse of process or misconduct by the respondent or its solicitors. No arguable error is revealed.
Ground 4, on its face, does not raise any question of law, or at least any arguable question of law.
Ground 5(a) raises no, or no arguable, question of law. When Fenbury DCJ referred the matter to Stone DCJ, Stone DCJ had power to make all relevant costs orders.
Accordingly, grounds 2, 3, 4 and 5(a) have no reasonable prospects of success.
Insofar as ground 5(c) alleges that the judge erred in dealing with costs when this court had not delivered its judgment in relation to appeals from the earlier decisions of Stone DCJ, no arguable question of law is raised. Otherwise, ground 5(c), like grounds 1 and 5(b), refers to the scope of the operation of s 267 of the Act. Ground 5(b) raises its own particular aspect of construction, namely whether s 267(1) precludes the District court from ordering costs against an appellant who has been unsuccessful in part, in an appeal against an arbitrator's decision.
Section 267
Section 267 of the Workers' Compensation Act is to be read in the context of s 247(7) of the Workers' Compensation Act, and against the background of s 64 of the District Court Act and r 59 of the District Court Rules (referred to earlier).
Section 267(1) of the Workers' Compensation Act applies where 'an appeal was successful'. It is not confined in terms to a successful appeal either by an employer or by a worker. Accordingly, it provides that in an appeal against an arbitrator's decision, either by an employer or a worker, where the appeal is successful, costs may not be awarded against the worker on the grounds that the appeal was successful. Four observations may be made about s 267(1). The first and perhaps the most important effect of the provision is that where an employer successfully appeals an arbitrator's decision, costs are not to be awarded against the worker on the grounds that the employer was successful in the appeal. Whilst it does, by its terms, apply to a successful appeal by a worker, the scope for its operation in that regard would, generally speaking, be limited in that in an appeal where the worker is the successful appellant, ordinarily he or she would not be required to pay the costs of the appeal. Secondly, s 267(1) does not in terms preclude an order for costs against a worker in a successful appeal by an employer on grounds other than that the appeal was successful. Although it is unnecessary to decide the point, it may be that s 267(1) would not preclude an order for costs against a worker in a successful appeal by an employer where and insofar as, for example, the employer's costs of the appeal had been unnecessarily increased due to some misconduct in the appeal by the worker. Thirdly, s 267(1) does not in terms refer to the position where the worker appeals and the appeal is partly successful and partly unsuccessful. However, the prohibition in s 267(1) only operates to preclude the making of a costs order against a worker 'on the ground' that the appeal was successful. Where a worker has appealed and is partly successful and partly unsuccessful, an order for costs against the worker in relation to the appeal insofar as it was unsuccessful, would not be an order 'on the ground' that the appeal was successful. Fourthly, s 267(1) does not preclude a worker recovering his or her costs in a successful appeal against an arbitrator's decision.
Section 267(2) applies only where there has been an appeal by the worker which is unsuccessful. In that event, s 267(2) is to the effect that the worker is not to obtain his or her costs on the appeal, from any other party to the appeal.
Neither s 267(1) nor s 267(2) precludes the making of an order for costs against a worker who has unsuccessfully appealed against a decision of an arbitrator to the District Court.
In this case, in Apps 44 and 55 of 2014, the appellant was wholly unsuccessful. For the reasons given above, s 267(1) of the Workers' Compensation Act did not preclude the making of an order for costs against her. There is no arguable error in the construction of s 267(1) as alleged by the appellant in CACV 83 and 84 of 2015.
In Apps 42 and 43 of 2014, the appellant was partly successful, essentially on one limited point, but was otherwise unsuccessful. Section 267(1) did not preclude the making of an order that the appellant pay 80% of the costs of the appeal in those circumstances, because the order in that regard was not made 'on the ground' that the appeal was successful, but on the ground that, for the most part, the appeal was unsuccessful.
Section 267(2) did not preclude the making of costs orders against the appellant in Apps 42 and 43 of 2014, because s 267(2) is directed to the making of costs orders against other parties to the appeal where the worker is unsuccessful in the appeal. Accordingly, no arguable error is disclosed in relation to the appeal grounds in CACV 81 and 82 of 2015. In this context, we would also note that the respondent did not allege that it was not open to the judge to order that it pay 20% of the costs in Apps 42 and 43 of 2014, where the appellant was for the most part, but not entirely, unsuccessful in the appeal.
Finally, if and insofar as the appellant alleges that Stone DCJ had the power to award costs, but his discretion miscarried, no arguable error is disclosed.
Conclusion
None of the grounds of appeal in CACV 77 - 80 of 2015, and in CACV 81 ‑ 84 of 2015, has any reasonable prospect of success. Also, for the reasons given earlier, the appeals in CACV 77 ‑ 80 of 2015 would not, in any event, warrant the grant of leave to appeal.
The appropriate orders are that in each of the appeals:
1.The appellant's application for leave to appeal is and be dismissed.
2.The appeal is and be dismissed.
We will hear the parties on the question of costs.
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