State of Tasmania v Bennett - [2004] TASSC 15

[2004] TASSC 15

CITATION: State of Tasmania v Bennett [2004] TASSC 15

PARTIES:  STATE OF TASMANIA
  v
  BENNETT, Gregory Colin

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 80/2003
DELIVERED ON:  9 March 2004
DELIVERED AT:  Hobart
HEARING DATES:  17 November 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Procedure before hearing - Service of bill of costs - Construction of personal service provisions - Delivery of draft costs order to solicitor not formal service - Evidence of waiver/estoppel must be compelling.

Rae v Calor Gas Ltd [1995] SLT 244; Rosefarms Pty Limited v Stourhead Pty Limited [2000] ACTSC 3; R v Heron; ex p Mulder (1884) 10 VLR 314; Davies v Alliance Acceptance Co (1993) 110 FLR 153; Pivot Ltd against Crawford; Re [1999] TASSC 67; Ditford v Temby (1990) 97 ALR 409, considered.
Workers Rehabilitation and Compensation Act1988 (Tas), s159.
Workers Rehabilitation and Compensation Regulations 2001 (Tas), regs13, 14.
Aust Dig Workers Compensation [146]

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Appeals and stated cases - Question of law - What constitutes

Hanlon v McKay Investments Pty Ltd (2001) 10 Tas R 247; Cascade Brewery Pty Ltd v Chambers 76/1992; FAI Insurance v Morrison 79/1993, considered.
Workers Rehabilitation and Compensation Act1988 (Tas), s63
Workers Rehabilitation and Compensation Regulations 2001 (Tas), reg13.
Aust Dig Workers Compensation [161]
REPRESENTATION:

Counsel:
             Appellant:  S Perring
             Respondent:  J Jovanovic
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  J Jovanovic & Associates

Judgment Number: [2004] TASSC 15
Number of Paragraphs: 25

Serial No 15/2004
File No LCA 80/2003

STATE OF TASMANIA v GREGORY COLIN BENNETT

REASONS FOR JUDGMENT SLICER J

9 March 2004

The appeal concerns the right of the State of Tasmania to have its costs order assessed by statute, rather than through the process of taxation. The bill of costs as drawn by an officer of the State amounts to the sum of $46,813.19.

On 27 August 2002, the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") dismissed a reference brought by the respondent pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s42 in respect of an injury occurring on or about "August 1992 and/or 14 May 1996". The Tribunal ordered that the respondent pay the appellant's costs of the reference.

On 20 May 2003, some eight months later, the appellant's solicitor wrote to the respondent's solicitor advising the amount of costs claimed and asking whether they could be agreed. On the same day, absent agreement, after a telephone conversation, she forwarded a copy of the draft bill by mail "by way of service".

On 22 May, the respondent replied, requesting a copy of the draft bill and stating that on its receipt, she would obtain instructions.

On 13 June 2003, the appellant's solicitor wrote to the Tribunal, stating:

"On 27 September 2002 it was ordered that the worker pay the employer's costs of this reference.
A Bill…

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 State of Tasmania v Bennett

Details

AGLC: State of Tasmania v Bennett [2004] TASSC 15
Case: [2004] TASSC 15
Decision Date: 9 March 2004

CaseChat Overview and Summary

The State of Tasmania appealed against a decision of the Workers Rehabilitation and Compensation Tribunal which had adjourned a hearing to determine the quantum of costs to be paid by the respondent, Gregory Colin Bennett. The appellant argued that the Tribunal had erred in determining that the bill of costs had not been served on the respondent in accordance with the requirements of the Workers Rehabilitation and Compensation Regulations 2001. The respondent had not been served with the bill of costs in accordance with the requirements of the Regulations and accordingly could not be taken to have admitted each item in the bill. The State argued that the evidence of service, by post on the respondent's solicitor, constituted service on the worker and complied with the requirements of the Regulations. The court held that the evidence did not substantiate a finding of waiver and the appeal was dismissed.

Orders