Lennon v TNT Australia Pty Ltd (No 2)

[2012] NSWWCCPD 23

WORKERS COMPENSATION COMMISSION
REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
CITATION:		Lennon v TNT Australia Pty Ltd (No 2) [2012] NSWWCCPD 23
APPLICANT:		Robbie Lennon
RESPONDENT:		TNT Australia Pty Ltd
INSURER:		GIO General Ltd to 30 June 2008 Self-insured from 1 July 2008 pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth)
FILE NUMBER:		7190/11
DATE OF DECISION:		27 April 2012
SUBJECT MATTER OF DECISION:		Discretion of the Commission to award costs in respect of a question of law application
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Applicant:	Maurice Blackburn Lawyers
Respondent:	Moray & Agnew
ORDERS MADE:		The respondent employer is to pay the applicant worker’s costs of the application to refer the question of law for consideration by a Presidential member in Lennon v TNT Australia Pty Ltd [2012] NSWWCCPD 18.

BACKGROUND

1. This matter concerns an application for costs following the decision of 30 March 2012 in Lennon v TNT Australia Pty Ltd [2012] NSWWCCPD 18 (Lennon No 1).

2. Lennon No 1 concerned the referral of a question of law by an Arbitrator at the request of the parties. The question concerned a novel and complex issue of statutory construction in respect of the application of s 17 of the Workers Compensation Act 1987 (the 1987 Act) and s 108A of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The issues concerned the consequences of inconsistency between State and Commonwealth laws, particularly in the case of a worker continuing in the employment of an employer who had ceased to be insured under the 1987 Act and the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) after being licensed to accept liability for workers compensation under the Commonwealth legislation.

3. As the costs issue had not been addressed by the parties, I made no order for costs. However, I granted the parties liberty to apply within 14 days from the date of the decision.

4. Pursuant to the leave given, the applicant’s solicitor made application for an order for costs.

5. On 26 April 2012, I convened a teleconference of the parties, both of whom were represented by their solicitors.

6. Although the application was not made within the period of leave given, no objection was taken to the application being made late, and there is no prejudice.

7. The applicant submits that he is entitled to costs pursuant to Table 4 Item 2 of the Workers Compensation Regulation 2010. No other submissions were advanced in support of the application.

8. The respondent submits that the usual order should apply, that is, that costs follow the event.

9. The Commission’s power to order costs is discretionary pursuant to s 341 of the 1998 Act. Contrary to the applicant’s submission, Table 4 Item 2 of the 2010 Regulation does not provide a power for awarding costs, but merely fixes the upper limit of costs recoverable in the event of an order for costs being made.

10. Although the applicant’s arguments in respect of the question of law were ultimately unsuccessful, in the exercise of my discretion, I consider it appropriate that an order be made in favour of the applicant in respect of the costs of his participation in the question of law application for the following reasons.

11. For the reasons discussed in this decision and in Lennon No 1, the issue raised for consideration involved a novel and complex question of law.

12. The resolution of the question was important not only for the determination of Mr Lennon’s dispute, but also in the context of a number of other cases which were being held in the Commission’s lists pending the determination of the question of law. In that sense, the matter proceeded as a test case.

13. The application to refer the question of law was made by the Arbitrator on the application of both parties and, in my view, that was appropriate in the circumstances.

14. Mr Lennon incurred considerable costs on the application to refer the question of law, including retaining counsel to appear on his behalf. Mr Lennon’s counsel made comprehensive and helpful submissions to assist the Commission in resolving the question.

15. For these reasons, in the exercise of my discretion, I consider it is appropriate that the applicant have an order for costs in his favour.

ORDERS

1. I make the following order:

   1.The respondent employer is to pay the applicant worker’s costs of the application to refer the question of law for consideration by a Presidential member in Lennon v TNT Australia Pty Ltd [2012] NSWWCCPD 18.

Judge Keating

President

27 April 2012

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

ASSOCIATE