Tudor Capital Australia Pty Ltd v Christensen (No 2)
[2016] NSWWCCPD 20
•8 September 2015 25 February 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION AS TO COSTS | ||
| CITATION: | Tudor Capital Australia Pty Ltd v Christensen (No 2) [2016] NSWWCCPD 20 | |
| APPELLANT: | Tudor Capital Australia Pty Ltd | |
| RESPONDENT: | Penelope Christensen | |
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-5286/13 | |
| ARBITRATOR: | Mr J Wynyard | |
| DATE OF ARBITRATOR’S DECISION: DATE OF APPEAL DECISION: | 8 September 2015 25 February 2016 | |
| DATE OF COSTS DECISION: | 8 April 2016 | |
| SUBJECT MATTER OF DECISION: | Section 341 of the Workplace Injury Management and Workers Compensation Act 1998, as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012; jurisdiction to award costs | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | HWL Ebsworth Lawyers |
| Respondent: | Edwards Michael Powell Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The appellant employer is to pay the respondent’s costs of the appeal, as agreed or assessed. Costs of the original proceedings before the Arbitrator and any subsequent proceedings, in respect of apportionment, should follow the event. | |
INTRODUCTION
This matter has been reopened following an application made by the respondent widow, to the appeal in Tudor Capital Australia Pty Ltd v Christensen [2016] NSWWCCPD 14 (appeal decision), seeking that an order for costs of the proceedings be made in her favour.
In particular, it concerns the Commission’s jurisdiction to award costs pursuant to s 341 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), as it stood prior to amendment by the Workers Compensation Legislation Amendment Act 2012 (the amending Act).
BACKGROUND
The appeal concerned a claim for a lump sum death benefit under s 25 of the Workers Compensation Act 1987 (the 1987 Act). That claim was commenced by the legal representatives of the deceased worker’s widow on 8 September 2011.
The deceased died from cardiac arrest, a disease which the widow claimed was contracted in the course of the deceased’s employment and to which his employment was a substantial contributing factor. The basis of the claim was that the deceased’s work conditions gave rise to a deterioration in his state of health and contraction of a viral illness, which caused or aggravated ventricular fibrillation leading to the cardiac arrest. The employer, Tudor Capital Australia Pty Ltd, denied the claim relying upon ss 9A and 11A of the 1987 Act.
On 28 March 2013, the widow lodged an Application in Respect of Death of Worker (originating application) in the Commission. The application was registered in the Commission on 2 April 2013. The matter proceeded to hearing on four separate occasions, before a determination was issued.
On 8 September 2015, the Arbitrator issued a Certificate of Determination finding the employer liable pursuant to s 25 of the 1987 Act. The question of apportionment of compensation between dependants was deferred to permit the provision of appropriate submissions from the deceased’s two children. In respect of costs, the only order entered by the Arbitrator was as follows:
“4. I certify this matter as being complex, the reasons for which I trust are self explanatory. I also order that the resolutions of the hearing of 23 September 2014 be treated as a separate resolution to today’s determination for the purposes of the calculation or assessment of costs, pursuant to Schedule 6, Clause 9(2)(b) od [sic, of] the Workers Compensation Regulation 2010.”
The employer appealed against the Arbitrator’s determination and was unsuccessful. In an appeal decision handed down on 25 February 2016, Deputy President O’Grady confirmed the Arbitrator’s determination and remitted the matter to the original Arbitrator for further directions and hearing concerning the question of apportionment. No order as to costs was made.
On 29 February 2016, the respondent widow made an application for a “general order as to costs of the Appeal proceedings, and that the matter of costs with respect to the proceedings below be remitted” to the original Arbitrator. She also submitted that the matter was filed prior to the current cost regime.
On 3 March 2016, Deputy President O’Grady issued a Direction seeking further submissions concerning the entitlement to costs. In response to the Direction the respondent submitted that, as the originating application was filed in the Commission on 28 March 2013 and registered on 2 April 2013, the relevant costs provisions with respect to this matter are those which applied prior to the commencement of the amending Act. The respondent further submitted that she was successful in the appeal and costs should follow the event. Accordingly, she sought an order for costs in accordance with Sch 6 of the Workers Compensation Regulation 2010 (the 2010 Regulation).
The employer submitted that it succeeded in respect of ground four of the appeal and on that basis no order as to costs should be entered. In the alternative, the employer submitted that each party should pay their own costs of the appeal. It otherwise submitted that costs in this matter are a matter for the Commission to determine.
Relevantly, in the appeal application the employer submitted that the respondent would have no entitlement to costs in the event she was unsuccessful in the original proceedings. In the respondent’s Notice of Opposition to the appeal application she submitted that the appeal should be dismissed with a costs order in her favour. She further submitted that the matter should be certified as complex because it was lengthy, detailed, and contained voluminous material.
On 23 March 2016, President Keating issued a Direction seeking submissions concerning the Commission’s jurisdiction to award costs in circumstances where the originating application was lodged on 28 March 2013 and registered on 2 April 2013.
In response to the Direction the respondent submitted that, notwithstanding the fact that the originating application was lodged on 28 March 2013 and registered on 2 April 2013, the Commission has jurisdiction to enter an order for costs in her favour for both the arbitral proceedings and the appeal proceedings (cl 8 of Pt 1 of Sch 8 of the 2010 Regulation and s 36 of the Interpretation Act 1987 (the Interpretation Act)).
The employer agreed with the respondent’s submissions and conceded that the Commission has jurisdiction to make an order for costs in respect of the matter. However the employer submitted that the issue of costs in the substantive proceedings is a matter for the Arbitrator to determine, noting that this was also submitted by the respondent in her application for costs on 29 February 2016.
DISCUSSION AND FINDINGS
The subject of costs is governed by the provisions of Div 3 of Pt 8 of Ch 7 of the 1998 Act. Section 341 of the 1998 Act was amended by the amending Act.
Section 341 in its original terms granted the Commission very broad power to award costs in respect of proceedings conducted before it. Section 341(2) provided that: “[t]he Commission has full power to determine by whom, to whom and to what extent costs are to be paid”. That section (unamended) continues to have force by reason of the savings and transitional provisions found in cls 5 and 21 of Pt 19H of Sch 6 to the 1987 Act and cl 8 of Sch 8 to the 2010 Regulation.
Clause 21 of Pt 19H provides:
“An amendment made by the 2012 amending Act to section 341 (Costs to be determined by Commission) of the 1998 Act does not apply in respect of proceedings commenced in the Commission before the commencement of the amendment.”
Clause 5 of Pt 19H provides that the power in Pt 20 of Sch 6 to make regulations that contain provisions of a saving or transitional nature consequent on the enactment of the 2012 amending Act extends to authorise the making of regulations whereby the provisions of the Workers Compensation Acts are deemed to be amended in the manner specified in the regulations. One such regulation is cl 8 of Sch 8 to the 2010 Regulation, which provides:
“Division 3 (Special provisions for costs in compensation and damages assessment matters) of Part 8 of the 1998 Act continues to apply (as in force before the amendment of that Division by the 2012 amending Act) to costs in relation to a claim for compensation made before 1 October 2012 if proceedings on the claim are commenced in the Commission before 31 March 2013.”
Having regard to the relevant savings and transitional provisions, and the passage of the subsequent regulation, Div 3 of Pt 8 of the 1998 Act continues to apply to costs in relation to a claim for compensation made before 1 October 2012 if proceedings of the claim are commenced in the Commission before 31 March 2013.
Pursuant to r 3.4 of the Workers Compensation Commission Rules 2011 (2011 Rules) the “time of commencement of proceedings is the time when the Registrar registers the document lodged for the commencement of the proceedings by affixing the seal of the Commission”. In the 2011 Rules a “document is registered for the purposes of these rules when it has been accepted by the Registrar” (r 1.4(2)).
As 31 March 2013 fell on a Sunday, the “given day” for the reckoning of time pursuant to cl 8 is the next day that is not a “Saturday or Sunday, or a public holiday or bank holiday” (s 36 of the Interpretation Act). As 1 April 2013 was a public holiday, the given day for the reckoning of time is 2 April 2013.
In the present matter, the claim for compensation was made on 8 September 2011 and proceedings in respect of that claim were filed in the Commission on 28 March 2013 and registered on 2 April 2013. It follows that the Commission has jurisdiction to determine by whom, to whom and to what extent costs are to be paid.
The common law presumption is that costs follow the event. A successful party to proceedings has a “reasonable expectation” of being awarded costs against the unsuccessful party to the proceedings (Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [134]).
The employer’s only resistance to an order for costs on the appeal was based on an erroneous conclusion that it succeeded on ground four. It did not. The employer was unsuccessful on all grounds of appeal. Therefore, in the exercise of my discretion there shall be an award for costs of the appeal in favour of the respondent.
DECISION
The appellant employer is to pay the respondent’s costs of the appeal, as agreed or assessed. Costs of the original proceedings before the Arbitrator and any subsequent proceedings, in respect of apportionment, should follow the event.
Judge Keating
President
8 April 2016
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