NESEVSKI v Berkeley Challenge Pty Ltd - [2003] WASCA 65

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: NESEVSKI -v- BERKELEY CHALLENGE PTY LTD [2003] WASCA 65

CORAM: MURRAY J
WHEELER J
HASLUCK J

HEARD: 12 MARCH 2003

DELIVERED : 28 MARCH 2003

FILE NO/S: FUL 131 of 2002

BETWEEN: DUSAN NESEVSKI
Appellant
AND
BERKELEY CHALLENGE PTY LTD
Respondent

Catchwords:

Workers' Compensation - Appeal from decision of Review Officer to Compensation Magistrate - Adjournment - Discretionary judgment - Turns on own facts

Workers' Compensation - Costs

Legislation:

Workers' Compensation and Rehabilitation Act (1981)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A J Castley
Respondent: Mr J P Wilson

Solicitors:

Appellant: Bradford & Co
Respondent: Srdarov Richards Burton

Case(s) referred to in judgment(s):

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Brown v Metro Meat International [2000] WASCA 123
Jackamarra v Krakouer (1998) 195 CLR 516
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

Case(s) also cited:

Nil

MURRAY J: I am in complete agreement with the reasons for decision now published by Wheeler J. It is important, I think, having regard to the nature of the proceedings before the review officer and the statutory context in which the question at issue was to be determined, to which Wheeler J refers, that the accepted principles of case management be applied to an application for an adjournment in circumstances such as those in this case.
It is insufficient to seek an adjournment upon the ground that any prejudice which may be suffered by the respondent may be cured by an award of costs. To approach the question of adjournment in the manner suggested by this Court involves no risk that the application of case management principles will cause injustice to the appellant in a case where his application for an adjournment was insufficiently supported by the establishment of an arguable case: cfQueensland v JL Holdings Pty Ltd (1997) 189 CLR 146.
The appeal should be dismissed.
WHEELER J: This is an appeal from a decision of a Compensation Magistrate refusing an application for leave to extend time within which to appeal from a decision of a review officer. On 26 October 2001 the review officer had refused the appellant's application for an adjournment of a review. Once the adjournment application was refused, the appellant sought to "withdraw" the application for determination of his degree of disability. That application was dismissed by the review officer, and the appellant was ordered to pay the respondent's costs thrown away by reason of the unsuccessful adjournment application. The terms of that last order are not precisely clear, but it seems that what was intended was that the respondent should have the costs of 26 October.
No complaint is made about the manner in which the Compensation Magistrate approached the principles governing applications for extension of time. She considered four factors, they being:
the length of the delay;
the reasons for delay;
whether there is an…

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: [2003] WASCA 65
Decision Date: 28 MARCH 2003

CaseChat Overview and Summary

In the case of NESEVSKI v Berkeley Challenge Pty Ltd, the appellant, NESEVSKI, was seeking a review of a decision made by a Review Officer, who refused to grant an adjournment in a workers' compensation matter. The appellant then appealed to the Compensation Magistrate, who upheld the Review Officer's decision. NESEVSKI further appealed to the court, challenging the Magistrate's decision to dismiss the appeal from the Review Officer's decision. The primary issue before the court was whether the Compensation Magistrate erred in upholding the Review Officer's refusal to grant an adjournment and in awarding costs to the respondent.

The court found that the appeal against the refusal to grant an adjournment was an appeal against a discretionary judgment. The court noted that there is a strong presumption in favour of the correctness of such decisions. The court emphasised that a discretionary decision does not reveal an error merely because a different decision was open or even preferable. The court also highlighted that the Review Officer must balance several factors in making such decisions, including acting fairly, economically, informally, and quickly. In light of these considerations, the court held that the appeal had no merit.

Regarding the costs, the court found that the Review Officer did not explicitly state the provisions of s 84ZL(1) in his written reasons, which provides that each party bears their own costs unless the Review Officer orders otherwise. However, the Review Officer did refer to two unreported decisions dealing with the question of costs, and his decision indicated that he was aware that costs are not awarded in the "normal case". The court considered it was open to the Review Officer to compensate the respondent for the abnormal expense incurred due to the appellant's intention to seek an adjournment and withdraw if not granted, which was not communicated to the respondent. The court upheld the Compensation Magistrate's decision to award costs to the respondent.

The court dismissed the appeal and ordered the appellant to pay the costs of the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHEELER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WHEELER J

Her Worship referred to the fact that the appeal against a refusal to grant an adjournment is an appeal against a discretionary judgment, so that the "strong presumption" in favour of the correctness of the decision appealed from was applicable: Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 627 per Kitto J. Her Honour also referred to Brown v Metro Meat International [2000] WASCA 123 as authority for the proposition that a discretionary decision reveals no error simply because a different decision was open or even was preferable. Her Honour referred to pages 6 ‑ 7 of my reasons for decision in that case (with which Kennedy and Parker JJ agreed) as authority for the proposition that the Act requires the balancing of a number of factors, so that the review officer must not only act fairly but must also act economically, informally and quickly. Those expressions have their statutory bases in s 84ZB and s 3(b) of the Act. Her Worship considered that in those circumstances the proposed appeal had no merit. So far as costs were concerned, her Worship noted that the review officer had not set out in his written reasons the provisions of s 84ZL(1), which provides that each party to the proceedings bears the party's own costs unless the review officer orders otherwise. However, her Worship noted that the review officer did refer to two unreported decisions dealing with the question of costs and that there was a passage in his decision which clearly indicated that he was aware that costs were not to be awarded in the "normal case". Her Worship considered that it was clear from the proceedings before the review officer that the appellant came to the hearing with the intention of seeking an adjournment and of withdrawing if the adjournment was not granted. The respondent had not been advised that the appellant proposed to withdraw if the adjournment was not granted, and therefore not only prepared argument in relation to the question of adjournment, but also prepared for a review hearing on the merits, in case the adjournment should not be granted and the appellant wished to proceed. In circumstances where: the matter had first been adjourned at the request of the appellant in May 2001 because of an alleged need to obtain further medical evidence; no such evidence had been obtained; a further adjournment was sought for precisely the same reason some five months later; and the respondent had been put to the expense of preparation which, as the appellant knew but the respondent did not, would have been unnecessary whatever the result of the adjournment application, her Worship considered that it was open to the review officer to compensate the respondent for that abnormal expense by an award of costs. As to the question of adjournment, I am unable to see any error in any aspect of the decision of the review officer, or in the Compensation Magistrate's evaluation of the review officer's reasons. In this Court, as in courts throughout Australia, it has been increasingly recognised that the interests of justice require recognition of the very real costs - in terms of money, time, and often emotion - associated with undue delay. Case management principles recognise the interests of individual litigants and of the public at large in the efficient disposition of litigation.