Mt Lyell Mining and Railway Co Ltd v White

[1989] TASSC 101

Serial No. B23/1989
List “B”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Mt Lyell Mining and Railway Co Ltd v White [1989] TASSC 101; B23/1989

PARTIES:  MT LYELL MINING AND RAILWAY CO LTD
  v
  WHITE

FILE NO:  1267A/1987
DELIVERED ON:  19 June 1989
JUDGMENT OF:  Nettlefold J

Judgment Number:  B23/1989
Number of paragraphs:  5

Serial No B23/1989
File No 1267A/1987

MT LYELL MINING AND RAILWAY CO LTD v WHITE

REASONS FOR JUDGMENT  NETTLEFOLD J

19 June 1989

1. In the case of the application by the company which was determined by the reasons dated 23 June 1988, the following orders for costs should be made:–

1The applicant, ie the company, must pay the respondent's costs of and incidental to the application to be taxed.

2Certificate for counsel.

1. On that application the respondent's submissions were accepted. Costs should follow the event in the ordinary way, there being no conduct on the part of the respondent which should lead to him losing his prima facie right to costs, that prima facie right flowing from the ordinary rule that costs follow the event.

1. In relation to the other application filed 13 May 1988 there will be the following orders as to costs:–

1The applicant, ie the company, must pay the respondent's costs of and incidental to the application to be taxed.

2Certificate for counsel.

1. This is a case where the respondent was entitled as of right to accept the money paid into court and require that it be paid out to him or his solicitors. Having given notice of acceptance within time the respondent was entitled, as the law then stood, to take the money and pursue a claim for workers' compensation at a later stage if so advised.

1. That being the position, it is clear that the applicant was seeking an indulgence by the application filed 13 May 1988. On the other hand, all the respondent was doing was seeking to rely on his legal rights. But the applicant was seeking to resile from the position which arose from its own decision to pay into court. Nothing the respondent did caused or contributed to that decision. All the respondent did was to require payment of the money in court, his legal right, and announce, which he was not obliged to do, that at some time he might make a workers' compensation claim which, under the law as it then stood, he was free to make. Because of the passing of the Motor Accidents (Liabilities and Compensation) Amendment Act 1988 the respondent is not now free to make such a claim. Consequently, it has not been necessary for the applicant to proceed with the application filed 13 May 1988. But, because of the true character of that application, the orders stated above should be made.