Wang v Costa Holdings Pty Ltd - [2022] WADC 119

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   WANG -v- COSTA HOLDINGS PTY LTD [2022] WADC 119
CORAM:   BOWDEN DCJ
HEARD:   11 NOVEMBER & 9 DECEMBER 2022
DELIVERED          :   22 DECEMBER 2022
FILE NO/S:   APP 49 of 2021
BETWEEN:   LI FANG WANG
Appellant
AND
COSTA HOLDINGS PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKCOVER WA ARBITRATION SERVICE
Coram:   ARBITRATOR FLETCHER
File Number            :   A61509 & A61651

Catchwords:

Leave to appeal from costs decision under the Workers' Compensation and Injury Management Act 1981 (WA) and cross-appeal - Turns on its own facts

Legislation:

Workers' Compensation (Legal Profession and Registered Agents) Costs Determination 2018 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Arbitration Rules 2011 (WA)
Workers' Compensation and Injury Management Conciliation Rules 2011 (WA)
Workers' Compensation and Injury Management Regulations 1982 (WA)

Result:

Leave to appeal on some matters granted
Leave to cross-appeal granted

Representation:

Counsel:

Appellant	:	Mr B L Nugawela
Respondent	:	Mr D P Coster

Solicitors:

Appellant	:	AH2 Legal
Respondent	:	Moray & Agnew Lawyers

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

Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bray v Ryan [1999] WADC 66
Browne v Browne [2019] WASCA 1
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
Inghams Enterprises Pty Ltd v Gashaw Beyene [2009] C14-2009
Jankovic v Southern Coast Transport WACC C15-2009
Norbis v Norbis (1986) 161 CLR 513
Pacific Industrial Co v Jakovlievic [2008] WASCA 60
Player v Avery [2022] WASCA 147
Slater v BHP Billiton Iron Ore Pty Ltd [2016] WADC 148
Smith v WA Plantation Resources Pty Ltd [2018] WADC 158
Sun Alliance Insurance Ltd v Massoud [1989] VR8

BOWDEN DCJ:

The appellant seeks leave to appeal from two cost decisions of the learned arbitrator pursuant to s 246 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).
The appellant had sought costs orders in the total sum of $70,916.38, however, costs were assessed at $22,704.20. The cost related to two substantive applications commenced in July 2019 and discontinued in June 2020.
The respondent seeks leave to cross-appeal against the arbitrator's decision to award the appellant the costs of the cost assessment.

The background to the costs applications

The appellant was working for the respondent as a mushroom packer and her worker's compensation claim was accepted it appears on the basis of Dr Meyerkort's first report stating that her employment had contributed to an occupation overuse syndrome.
Subsequently Dr Meyerkort prepared a second report in which he formed the conclusion that the appellant did not sustain any workplace related injury and was able to return to her pre-injury duties without restriction. Dr Meyerkort said the appellant's condition was due to a pre-existing age-related degeneration because he was satisfied that there were no overhead duties performed following his site inspection and discussions with the respondent's representatives.

Obviously,…

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.

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Details

Case: [2022] WADC 119
Decision Date: 22 DECEMBER 2022

CaseChat Overview and Summary

Wang was the plaintiff and Costa Holdings Pty Ltd was the defendant in a workers' compensation matter. Wang sought leave to appeal from a decision on costs under the Workers' Compensation and Injury Management Act 1981 (WA). The cross-appeal by Costa was also considered. The primary issue was whether the arbitrator had erred in law when determining the costs and whether the reasons provided were adequate. The court had to determine if the arbitrator had exercised his discretion correctly and if the reasons provided were sufficient for the litigant to understand why they were unsuccessful and for an appeal court to determine if there was an error.

The court held that an error in law could arise from incorrectly determining whether an item should be allowed or by the taxing officer exercising their discretion in a manifestly wrong manner or by establishing that no taxing officer acting reasonably could ever have taxed the particular item in the amount in question. Regarding the adequacy of reasons, the court stated that reasons need not be lengthy or elaborate but should disclose the intellectual process that led to the decision. The reasons must engage with the central elements of the losing party's case and explain why that case failed. The reasons must be read as a whole and in the context of the evidence, and an appellant court may take into account what can legitimately be inferred from the reasons. The adequacy of the reasons will depend on the circumstances of the case.

The court found that the arbitrator had not erred in law in disallowing certain costs. The arbitrator had considered the relevant legislation, the appropriate hourly rate, and the criteria for assessing a fair and reasonable amount. The reasons provided by the arbitrator were adequate as they engaged with the central elements of the plaintiff's case and explained why the plaintiff's case failed. The reasons were read as a whole and in the context of the evidence. The court dismissed the appeal and the cross-appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

An error in law can be constituted in determining whether an item should be allowed: Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 or by the taxing officer exercising his discretion in a manner that is manifestly wrong or not exercising it at all or by establishing that no taxing officer acting reasonably could ever have taxed the particular item in the amount in question. In relation to adequacy of reasons, the law clearly establishes that:1.Reasons for decisions need not be lengthy or elaborate.2.Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved an appellant error.3.It is not necessary to refer to every submission advanced by a party however a tribunal or court must engage with the central elements of a losing party's case and explain why that case failed, considering that party's submission is an aspect of what procedural fairness requires.4.In determining the adequacy of the reasons, the reasons must be read as a whole and if necessary, considered in the context of the evidence. An appellant court may take into account what can legitimately be inferred from the reasons, whether the reasons are adequate will dependent upon the circumstances of the case and that matters which arose for consideration: Browne v Browne [2019] WASCA 1; Player v Avery [2022] WASCA 147. Allowance must be made for the nature of the task undertaken by the arbitrator which was a Costs Determination. The content and details of reasons will vary according to the nature of the jurisdiction the court is exercising. Accordingly, the arbitrator's reasoning process will be less developed and more imprecise then in other areas in which judicial reasons are required and provided. What is required is the identification of findings on material factors that have informed the decision and expressed reasoning so as to inform an understanding of why the costs were disallowed: Player. The bill of costs (hereinafter referred to as the bill, attached to the affidavit of Mr Sim sworn 1 October 2020, 4T MAB) had schedules attached which the appellant says were to guide the taxation officer as to work that was actually done (AT 3). For the taxation the appellant provided the arbitrator with a supplementary book of approximately 230 (unpaginated) pages in length which they say contained the relevant documents (AT 23). The appellant also provided written costs submissions and responsive submission to the respondent's cost submissions. The arbitrator's decision at 5S of the MAB must be considered in its entirety and not by isolating any one particular paragraph. The arbitrator had regard to the relevant legislation (Reasons [9]) and the appropriate hourly rate (Reasons [10]). He was aware that a party was not entitled to recover costs that were unreasonably incurred and that a taxing officer must consider whether it was reasonable to carry out the work to which the costs relate and must consider what is a fair and reasonable amount of the costs for the work concerned (Reasons [12]). The arbitrator was clearly aware of the criteria under reg 18H(2) that may be considered in assessing what is a fair and reasonable amount.