Tasmania v Pilling (No 2)
[2020] TASSC 46
•23 September 2020
[2020] TASSC 46
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Pilling (No 2) [2020] TASSC 46
PARTIES: STATE OF TASMANIA
v
PILLING, Teresa Ann
FILE NO: 2640/2019
DELIVERED ON: 23 September 2020
DELIVERED AT: Hobart
HEARING DATE: On the papers
JUDGMENT OF: Brett J
CATCHWORDS:
Workers Compensation – Proceedings to obtain compensation – Determination of claims – Costs – particular cases – Power to award costs discretionary – Whether appropriate to depart from usual rule as to costs.
Workers Rehabilitation and Compensation Act1988 (Tas), ss 33, 81A, 37, 32.
Supreme Court Civil Procedure Act 1932 (Tas) ss 59 and 12.
Clifford v State of Tasmania [1998] TASSC 109; Oshlack v Richmond River Council (1998) 193 CLR 72; Rhodes v Tower Australia Superannuation Ltd [2004] FCA 812; Stanley Rural Community v Stanley Pastoral Pty Ltd [2018] VSCA 104, referred to.
Aust Dig Workers Compensation [331]
REPRESENTATION:
Counsel:
Appellant: O Robinson
Respondent: P Jackson SC
Solicitors:
Appellant: Solicitor General
Respondent: C N Dockray
Judgment Number: [2020] TASSC 46
Number of paragraphs: 11
Serial No 46/2020
File No 2640/2019
STATE OF TASMANIA v TERESA ANN PILLING (No 2)
REASONS FOR JUDGMENT BRETT J
23 September 2020
On 8 May 2020, I dismissed an appeal brought by the appellant from a decision of the Workers Rehabilitation and Compensation Tribunal to reject the appellant's reference to it of a dispute, pursuant to s 81A of the Workers Rehabilitation and Compensation Act 1988 (the Act), concerning a claim for compensation made by the respondent: Tasmania v Pilling [2020] TASSC 13. The determinative issue in the referral was whether the appellant had a reasonably arguable case that the claim should be refused, on the basis that the respondent had failed to give notice of injury as soon as practicable after its occurrence in accordance with s 32(1) of the Act.
The respondent seeks an order that the appellant pay her costs of the appeal, and the proceedings before the Tribunal.
It is not controversial that this Court has power to award costs in respect of each set of proceedings, and that the exercise of such power is discretionary. See s 59 of the Act and s 12 of the Supreme Court Civil Procedure Act 1932. It is also uncontroversial, as I understand it, that the usual rule applies with respect to the exercise of that discretion in each case; that is, in the absence of good reason to make a different order, costs should follow the event. In respect of the proceedings before the Tribunal, the authority for that proposition is Clifford v State of Tasmania [1998] TASSC 109.
The appellant submits that, in this case, I should depart from the usual rule in respect of both sets of proceedings because the point upon which the respondent has been successful in the appeal was not squarely raised in the Tribunal proceedings. The appellant relies on an obiter comment from the dissenting judgment of McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72, in which his Honour referred in a general sense to disentitling conduct described as "misconduct" as a reason to depart from the usual rule. His Honour listed examples of such conduct, which included where a successful party to an appeal "succeeds on a point not argued before a lower court".
The cases referenced as authority by McHugh J in respect of that example, and which have been relied upon by the appellant's counsel in this costs argument, are generally concerned with the refusal to award costs to a successful appellant, in a case in which the appellant has succeeded on a point not taken in the court below. As the respondent's counsel submits, in this case, it was the respondent who succeeded, both in the proceedings before the Tribunal and then on appeal, although it is acknowledged that the point upon which that success is based was not agitated before the Tribunal. The respondent's counsel has pointed to cases which indicate that the view taken about disentitling conduct in cases where a successful appellant has succeeded on a point not taken in the court below, is generally not applied in a case where the respondent has raised a successful point for the first time on the appeal. Those cases suggest that that circumstance will not be regarded as misconduct because a respondent, who has been dragged into an unsuccessful appeal, after having won the case at first instance, is entitled to defend the appeal on any basis which might be open to it: see for example Rhodes v Tower Australia Superannuation Ltd [2004] FCA 812; Stanley Rural Community v Stanley Pastoral Pty Ltd [2018] VSCA 104. With great respect, the validity of that distinction seems self-evident. Given that the underlying rationale for the usual rule whereby costs are awarded to the successful party is to compensate that party for the cost of litigation necessary to enforce or reinstate its rights and entitlements, and not to punish the unsuccessful party, it is difficult to understand any cogent reason why a respondent who has succeeded at first instance, and then successfully defended an appeal, albeit on a valid point of law not earlier raised, should be deprived of its costs of the entire litigation.
In any event, the appellant's claim that the respondent succeeded on a point not agitated before the Tribunal must be considered in more detail and in its proper context. That context is this. The appellant referred the dispute to the Tribunal on two grounds. As I noted in my decision, the first ground was concerned with the respondent's recovery from the injury. This ground was rejected by the Tribunal, and that decision was not the subject of appeal. The other ground asserted a failure to provide notice of injury as soon as practicable. There is no question that the worker had attempted to give notice within the requisite period, but the respondent argued that there is a reasonably arguable case concerning its liability to pay compensation, because she did not do so lawfully.
One of the arguments advanced by the appellant, and upon which it placed considerable reliance on the appeal, relied on the proposition that the worker's employer was the Crown, and that there was no effective way for the worker to serve the notice on the Crown. Hence, the argument went, the worker could not simply give notice to the appellant, as provided for in the legislation, but rather she was limited to serving the notice on one of the other persons referred to in s 33(1)(b) of the Act. It was submitted by the appellant that, because of this practical difficulty and as a matter of statutory construction, s 33(1)(b)(i) cannot apply to the Crown. I did not need to determine this question, although I expressed doubt about its correctness. Further, during the course of the hearing, I expressed incredulity that a worker for the health service could find herself in a position of uncertainty as to how she should give the relevant notice to her employer. My incredulity arose because the statutory requirement for notice provision is a machinery provision intended to provide due process for the employer, and is for the benefit of the employer, but that, notwithstanding the acknowledged problems concerning how it could be served with a notice, the appellant as the employer had done absolutely nothing to inform its employees as to how they might give the relevant notice. This was obviously the effective cause of the problems which had arisen in this case. The worker had wanted to tell her unit manager before she left work but the manager was not available, and therefore she had sent an email to a work email address that, unbeknown to her, was not adequate to give the relevant notice. There was no other method provided by the appellant for giving such notice. It seemed to me that the respondent had tried to do the correct thing, but had made a mistake because of a situation that was, at a practical level, the fault of the appellant. However, it was this fault, and the respondent's consequent mistake, upon which the appellant relied to constitute its reasonably arguable case for the purpose of the s 81A reference.
When I raised this problem, the appellant's counsel responded by properly conceding that the appellant had not given any advice to workers generally, and certainly not to the respondent, about an acceptable way to notify it of an injury. However, counsel referred me to the provisions of s 37 of the Act. It was submitted that, in circumstances such as these, that section would ensure that the failure to give notice of injury, the failure being complained about by the appellant in the referral under dispute, would not affect the worker's right to claim compensation. However, Mr Robinson submitted, in accordance with previous decisions of the Tribunal, this was not a matter that could be agitated at the stage of the s 81A referral. The argument seemed to be that although the acknowledged problem would undoubtedly lead to compensation becoming payable, it should be delayed by the appellant taking advantage of a mistake for which it was essentially responsible. The inherent injustice of this proposition is again self-evident. Understandably and correctly, the respondent's counsel responded to the appellant's argument by submitting that, if there were such prior decisions of the Tribunal, they were incorrect and s 37 needed to be taken into account in determining whether the failure to give notice as soon as practicable gave rise to a reasonably arguable case in respect of the liability of the employer to pay compensation. Ultimately, I accepted this submission, and it was on that point that the respondent succeeded in the appeal.
In those circumstances, it is apparent that the appellant's basis for its dispute of the respondent's claim for compensation, advanced in both the Tribunal proceedings and on appeal, has been fundamentally legally flawed from the outset. As I pointed out in my decision, the worker's failure to give notice as soon as practicable was due to a genuine and honest mistake, a mistake to which the appellant contributed in a substantial way by failing to provide its worker with a clearly defined and accessible method by which such notice could be given, in circumstances where the appellant acknowledged that the statutory structure of employment led to confusion and difficulty in that regard. It was that very confusion and difficulty which underpinned the appellant's argument in this case, and there has never been any real possibility that the appellant would be in a position to establish prejudice under s 37. The worker provided the notice in person to her unit manager immediately upon her return to work, which was only three business days after the occurrence of the injury.
Accordingly it was the appellant's counsel's reliance on s 37 in order to sustain a flawed argument, which raised that provision in the context of the appeal. That section was not relied upon before the Tribunal, but both parties in that hearing were in a position where the only authorities available to them were previous decisions of the Tribunal which advanced the erroneous legal position that s 37 could not be taken into account on a s 81A referral. While the parties were confined by those Tribunal decisions, it cannot be argued that they were so confined on the hearing of the appeal. It is trite law that this Court is not bound by decisions of the Tribunal, and it is doubtful that they have any significant persuasive value. The appellant advanced its argument on the basis of the proposition contained in those decisions concerning the relevance of s 37 in the s 81A reference, and on the assumption that they had settled the law in that regard. That assumption was clearly wrong and the appellant's reliance at the appeal on an erroneous legal argument, not supported by appropriate authority, is a matter relevant to the exercise of my discretion as to costs.
In all of the circumstances, I am satisfied that the appellant's position from the commencement of the reference has been misconceived. It has relied on technical points to seek some advantage in circumstances in which the full operation of the legislative scheme, and the justice of the case, made it inevitable that it would become liable to pay compensation to the respondent. It was unsuccessful because it relied on an erroneous legal argument to gain that advantage. The respondent has been wrongly and unjustly put to the expense of the litigation in order to defend her entitlement to compensation. There is no reason why the usual rule should not apply in this case, and why the respondent should not be compensated for her costs of the litigation. Accordingly, my order is that the appellant will pay the costs of the respondent of and incidental to the proceedings before the Tribunal and of the appeal. I will hear counsel as to the proper form of the order.
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