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Midson v Workers Compensation Commission (No 2)

Midson v Workers Compensation Commission (No 2)

Case [2017] NSWSC 147 1 March 2017

Costs

Jurisdiction

Standing

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Midson v Workers Compensation Commission & Ors (No 2) [2017] NSWSC 147
Hearing dates: On the papers
Decision date: 01 March 2017
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) I make no order for costs against the third defendant in relation to the summons.
(2) The plaintiff is to pay the third defendant’s costs of this application as agreed or assessed.

Catchwords: COSTS – where plaintiff successful – where defendants each filed a submitting appearance – where plaintiff seeks order against a submitting party who was not the decision-maker – general rule that costs follow the event – whether to depart from general rule
Legislation Cited: Civil Procedure Act 2005, ss 56(3), 98
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Act 2005 (NSW), rr 6.11, 42.1
Workers Compensation Act 1966 (NSW), s 66
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 3
Cases Cited: Buzrio Pty Limited v Consumer, Trade and Tenancy Tribunal (No 4) [2010] NSWSC 41
China Shipping (Australia) Agency Co Pty Limited v D V Kelly Pty Limited (No 2) [2010] NSWSC 1557
Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47
Douglas v James (No. 2) [2015] NSWSC 969
Highland v Labraga (No 3) [2006] NSWSC 871
Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) [2014] NSWCA 317
Latoudis v Casey (1990) 170 CLR 534
Mahenthirarasa v State Rail Authority of New South Wales (No 2) (2008) 72 NSWLR 273; [2008] NSWCA 201
Midson v Workers Compensation Commission & Ors [2016] NSWSC 1352
Noon v The Owners – Strata Plan No. 22422 (No 2) [2014] NSWSC 1642
Nyman v Valmas [1997] NSWCCA 235
Oshlack v Richmond River Council (1998) 193 CLR 72
Seller v Jones [2014] NSWCA 19
Category: Costs
Parties: John Midson (Plaintiff)
Workers Compensation Commission (First Defendant)
Medical Appeal Panel of the Workers Compensation Commission (Second Defendant)
Enerka Apex Belting Pty Ltd (Third Defendant)
Representation:
Counsel:
Mr P Stockley (Plaintiff)
Solicitors:
Slater & Gordon Lawyers (Plaintiff)
Kaden Boriss (Third Defendant)

File Number(s): 2016/00198913
Publication restriction: Nil

Judgment

Background

The plaintiff makes an application for costs against the third defendant in this matter, Enerka Apex Belting Pty Ltd, in circumstances where that entity filed a submitting appearance and played no part in the proceedings.
The plaintiff suffered a wrist injury in the course of his employment. On 30 June 2016 he filed a summons seeking judicial review of a decision of the second defendant, a Medical Appeal Panel of the Workers Compensation Commission, made on 31 March 2016. The first defendant (the Workers Compensation Commission), the second defendant (the Medical Appeal Panel) and the third defendant (the plaintiff’s employer at the time of the injury) all filed submitting appearances pursuant to r 6.11 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) described as being “save as for costs”.
The hearing of the summons came before me on 10 August 2016…

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.

Continue reading Midson v Workers Compensation Commission (No 2)

Details

AGLC: Midson v Workers Compensation Commission (No 2) [2017] NSWSC 147
Case: [2017] NSWSC 147
Decision Date: 01 March 2017

CaseChat Overview and Summary

In Midson v Workers Compensation Commission (No 2), the plaintiff sought to recover costs from the defendant Workers Compensation Commission, after being successful in the proceedings. The plaintiff had filed a submitting appearance with both the Commission and its insurer, seeking to limit liability and avoid costs. The primary issue for the court was whether it could depart from the general rule that costs follow the event, by ordering the insurer, who was not the decision-maker, to pay costs.

The court considered the general principle that costs generally follow the event, but acknowledged that this rule is not absolute. The court noted that the principle is designed to protect unsuccessful parties from bearing costs that would otherwise be incurred by the successful party. However, the court also recognised that there may be circumstances in which it is appropriate to order a party other than the decision-maker to pay costs. In this case, the court found that the insurer had effectively submitted to the jurisdiction of the court by filing a submitting appearance, and that it would be appropriate to order the insurer to pay costs.

The court further found that the principle of proportionality should be considered when determining whether to order a party other than the decision-maker to pay costs. In this case, the court found that it was appropriate to order the insurer to pay costs, as the insurer had effectively submitted to the jurisdiction of the court and the plaintiff had been successful in the proceedings. The court noted that the principle of proportionality does not require the successful party to bear all costs, but rather that costs should be apportioned fairly between the parties.

The court ordered the insurer to pay the plaintiff's costs of the proceedings, subject to any entitlement the plaintiff may have to recover costs from the Commission. The court did not make any further orders.

Orders