Tomlinson v Brightwater Care Group (Inc)

[2018] WADC 135

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   TOMLINSON -v- BRIGHTWATER CARE GROUP (INC) [2018] WADC 135

CORAM:   STAUDE DCJ

HEARD:   15 OCTOBER 2018

DELIVERED          :   Ex tempore

PUBLISHED           :   17 OCTOBER 2018

FILE NO/S:   APP 36 of 2018

BETWEEN:   LOIS TOMLINSON

Appellant

AND

BRIGHTWATER CARE GROUP (INC)

Respondent

ON APPEAL FROM:

For File No:   APP 36 of 2018

Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE

Coram:   ARBITRATOR DAVIES

File Number             :   A38226 of 2016

Catchwords:

Workers compensation - Appeal from arbitrator's decision - Application for costs following discontinuance of s 32 application - Whether the employer was the successful party

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr M P Hawkins
Respondent	:	Ms A R Aria-Retnam

Solicitors:

Appellant	:	Chapmans Barristers & Solicitors
Respondent	:	Sparke Helmore Lawyers

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

Ingham's Enterprises Pty Ltd v Gashaw Beyene [2009] C14 of 2009
Sia v Child and Adolescent Health Service (Princess Margaret Hospital) [2015] WADC 56

STAUDE DCJ:

1. [This decision was delivered extemporaneously on 15 October 2018 and edited from the transcript].

2. This appeal is against the decision of an arbitrator refusing the appellant worker's application for costs pursuant to the discontinuation of a s 62 application by the respondent employer.

3. The application sought an order that partial weekly payments be discontinued on the basis that Ms Tomlinson was fit for her pre‑injury work.  The appeal raises a question of law as to the application of the principles upon which costs should be awarded following the discontinuance of a litigation.

4. The background to the matter is set out in the arbitrator's reasons for decision published 1 March 2018 at pars 3 ‑ 16.

5. Brightwater's application to discontinue weekly payments was based upon a perceived need to obtain an order of an arbitrator permitting it to discontinue weekly payments, notwithstanding that Ms Tomlinson had returned to her pre‑injury hours.  For some period from the date of injury, 12 August 2014, Ms Tomlinson had made a gradual return to her pre‑injury hours of work: 22.5 hours as a trainer and enrolled nurse.

6. It would appear that from April 2016 she was in fact working her pre‑injury hours, but when the employer sought her consent to cease weekly payments in September 2016, that consent was refused, precipitating the application.

7. The application went to conciliation and, as pointed out by the arbitrator, the conciliation certificate indicates that Ms Tomlinson considered that she still had restrictions and should continue to receive weekly payments.  The arbitrator also observed that Ms Tomlinson did not contend that the application was misconceived, but rather declined to consent to the orders sought by Brightwater and resisted the application contending that she was still restricted in her capacity for work.

8. Effectively, Ms Tomlinson submitted that she was still entitled to weekly payments of compensation when in fact she was not.  Somehow, after the failure of conciliation, the matter proceeded to an arbitration hearing on 26 May 2017.  On that day the arbitrator was informed that the issues had been resolved and subsequently Brightwater filed a notice of discontinuance.  Ms Tomlinson then applied for costs on the basis that the matter had been discontinued.

9. In his reasons for decision the learned arbitrator cited Ingham's Enterprises Pty Ltd v Gashaw Beyene [2009] C14 of 2009 (Commissioner McCann) as authority for the principle that while there is no absolute rule that costs follow the event, a successful party might reasonably expect an award of costs.  Reference was also made in that context to Sia v Child and Adolescent Health Service (Princess Margaret Hospital) [2015] WADC 56. The learned arbitrator then gave reasons for concluding that Brightwater was the successful party. His analysis was as follows.

10. The issue in dispute in the s 62 application was Ms Tomlinson's capacity for work.  Ms Tomlinson instructed her solicitor at the arbitration hearing on 26 May 2017 that she did in fact since April 2016 have the capacity that Brightwater contended she had.  That concession rendered the application otiose.  The application was then discontinued on the basis that Ms Tomlinson had recovered her pre‑injury capacity.  As this contention had been resisted by Ms Tomlinson up to that point, her instructions to her solicitor at the arbitration hearing that resulted in the hearing being adjourned and the discontinuance being filed, in the arbitrator's view, rendered Brightwater, not Ms Tomlinson, the successful party to the dispute.

11. The conclusion of the arbitrator is summarised at par 43 as follows:

    In my view this is not a case where the event is the discontinuance of the litigation per se and the responding party has been put to expense due to the discontinuing party abandoning the litigation.  Rather this is a case where the litigation was abandoned because the applicant obtained the remedy it sought by virtue of the responding party's change in position which precipitated resolution of the dispute between the parties.

12. In my view no error has been shown in the basis for that conclusion.  Ms Tomlinson's submissions in this appeal contend that the learned arbitrator failed to grasp the concept that what is described as 'the normal rule' that the party that discontinues proceedings will pay the other party's costs applies in the Worker's Compensation Arbitration Service.  That contention is simply wrong.

13. The learned arbitrator clearly acknowledged by reference to Inghams Enterprises Pty Ltd v Beyene that while there is no absolute rule that costs follow the event, a successful party might reasonably expect an order for costs in its favour absent any disentitling conduct.  The learned arbitrator did not misapprehend or misapply the relevant principles; nor did the exercise of his discretion in my view miscarry due to any mistake of fact.

14. His decision was, as all costs decisions are, discretionary.  In my view the learned arbitrator was correct in concluding that it was Ms Tomlinson's resistance to the orders sought by Brightwater that put in issue her capacity for work and it was Ms Tomlinson's concession as to her capacity that brought the proceedings to an end.

15. Even if Ms Tomlinson were to be characterised as the successful party, in my view her conduct in opposing the application rather than conceding it would disentitle her to costs.  Regrettably, this appeal has sought to perpetuate litigation that embarrasses both parties and that should have ended upon the discontinuance of the arbitration proceedings.  Leave to appeal is granted, but the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

DD
ASSOCIATE TO JUDGE STAUDE

17 OCTOBER 2018