Tasmania v Pilling (No 2) - [2020] TASSC 46

[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…

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 Tasmania v Pilling (No 2)

Details

AGLC: Tasmania v Pilling (No 2) [2020] TASSC 46
Case: [2020] TASSC 46
Decision Date: 23 September 2020

CaseChat Overview and Summary

The parties in this case were Tasmania and the executor of the estate of Michael Pilling, who died following a work-related accident. The dispute was about the costs associated with the proceedings for workers' compensation. The case was heard in the Supreme Court of Tasmania. The executor argued that the usual rules about costs should be departed from and that the defendant should bear the costs of the proceedings, as the proceedings were brought in good faith and had a reasonable prospect of success. The defendant argued that the costs should be borne by the executor, as the proceedings were ultimately unsuccessful.

The legal issues the court had to decide included whether it was appropriate to depart from the usual rules about costs and whether the executor's proceedings were brought in good faith and had a reasonable prospect of success. The court had to consider the particular circumstances of the case, including the nature of the proceedings, the conduct of the parties, and the outcome of the proceedings.

The court found that the executor's proceedings were brought in good faith and had a reasonable prospect of success. The court considered that the proceedings were in the public interest and that it was appropriate to depart from the usual rules about costs. The court held that the defendant should bear the costs of the proceedings. The court found that the defendant's conduct in the proceedings was unreasonable and that this was a relevant factor in determining costs. The court also considered the impact of the proceedings on the executor and the importance of encouraging litigants to bring meritorious claims.

The court ordered that the defendant bear the costs of the proceedings, including the executor's costs of two advocates. The court found that the executor's costs were reasonable and that there were no grounds for reducing them. The court also found that the defendant's costs were excessive and ordered that they be reduced by 10%. The court emphasised the importance of the principle that the costs of litigation should follow the event and that the usual rules about costs should be departed from only in exceptional circumstances.

Orders