Ta v Lucky Import and Export Co Pty Ltd
[2002] WASCA 65 (S)
•27 MARCH 2002
TA -v- LUCKY IMPORT AND EXPORT CO PTY LTD [2002] WASCA 65 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 65 (S) | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:119/2001 | 7 DECEMBER 2001 | |
| Coram: | PARKER J HASLUCK J PULLIN J | 27/03/02 | |
| 20/12/02 | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Each party to pay their own costs | ||
| B | |||
| PDF Version |
| Parties: | VIEN CAO TA LUCKY IMPORT AND EXPORT CO PTY LTD |
Catchwords: | Costs Supplementary submissions Turns on own facts |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- HASLUCK J
PULLIN J
DECISION : 20 DECEMBER 2002 FILE NO/S : FUL 119 of 2001 BETWEEN : VIEN CAO TA
- Appellant
AND
LUCKY IMPORT AND EXPORT CO PTY LTD
Respondent
Catchwords:
Costs - Supplementary submissions - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Each party to pay their own costs
Category: B
Representation:
Counsel:
Appellant : Mr B L Nugawela
Respondent : Ms B A Mangan
Solicitors:
Appellant : Friedman Lurie Singh
Respondent : Phillips Fox
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 JUDGMENT OF THE COURT: After publishing reasons for decision on 27 March 2002, the appellant sought, and was granted leave to make further submissions concerning ground 1 which reads:
"In simply 'accepting' the evidence of Mr Wang, Dr Bowles and Dr Brash … the learned Trial Judge misconstrued the evidence of Mr Wang and/or failed to resolve the material conflicts between the evidence of Mr Wang, Dr Bowles and Dr Brash."
2 Leave was also granted to the respondent to make further submissions. The appellant sought leave to make the further submissions because Pullin J said in his reasons for decision that there was no transcript of any oral testimony of Dr Brash at trial. The appellant submitted that this overlooked evidence of Dr Brash given before the trial de bene esse.
3 The appellants in their further submissions, point to the evidence of the treating orthopaedic surgeon Mr Wang to the effect that the appellant would be restricted to lifting weights up to 10 kilograms with both hands and only 2 kilograms with the right hand. On the other hand Dr Brash in his evidence de bene esse said that the appellant should be able to lift up to 25 kilograms with both hands.
4 The appellant therefore submits that when the trial Judge said at [149] "I accept the evidence of Mr Wang … and Dr Brash", that he failed to resolve the conflict between those two witnesses.
5 In Pullin J's reasons for decision at par [11] he said:
"… his Honour found that there was, and would be, a restriction on the appellant's ability to lift heavy weights, and so his Honour accepted that there was a restriction on the appellant's ability to lift heavy objects."
6 This is a reference to par [150] of the trial Judge's reasons for decision where he said:
"From what I understand of the various tasks that the plaintiff carried out whilst he was working for the defendant there were only a few tasks such as lifting 25 kilo bags of rice and the like which would be beyond the plaintiff. I think he could perform most of the other tasks referred to in the evidence. …"
(Page 4)
7 His Honour there resolved the difference of opinion between Mr Wang and Dr Brash in favour of the appellant. In other words he accepted Mr Wang's evidence that the plaintiff would not be able to lift 25 kilograms.
8 The Court therefore rejects the appellant's submission that the trial Judge "misconstrued" the evidence of Mr Wang and rejects the appellant's submission that the trial Judge failed to "resolve the material conflicts between the evidence of Mr Wang … and Dr Brash."
Costs
9 Written submissions have been received from the parties concerning costs. The respondent submits that the appellant should pay the respondent's costs of the appeal because it claims that it was the successful party. The appellant on the other hand submits that each party should bear their own costs of the appeal.
10 The appellant's notice of appeal contained 14 grounds of appeal in 11 paragraphs. Some of the grounds were abandoned at the hearing of the appeal. The appellant's written outline of submissions organised the grounds into the seven areas referred to in par 7 of Pullin J's reasons for decision. The appellant failed in relation to the grounds of appeal in relation to four of those areas and succeeded on three. That means that both parties had some success. The appellant succeeded on its argument that there should have been an order as required by s 91 of the Workers Compensation and Rehabilitation Act 1981 although as indicated in Pullin J's reasons in par 72 the only party which can benefit from an order under s 91 is the respondent.
11 The appellant succeeded also in relation to the ground of appeal concerning the complaint about the trial Judge's costs order after the amendment of the defence.
12 Taking into account these somewhat unusual circumstances, it appears to us that the interests of justice as between the parties would be best served by an order that each party pay his and its own costs of the appeal.
13 The parties should file a consent order in accordance with the earlier reasons for decision and these supplementary reasons. Only if the parties cannot reach agreement should the matter be re-listed.
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