Hodson v Scott Transport Industries Pty Ltd [1994] NSWCC 3; (1994) 10 NSWCCR 19 (11 February 1994)

[1994] NSWCC 3; (1994) 10 NSWCCR 19 (Matter no: 14995-92)

HODSON v. SCOTT TRANSPORT INDUSTRIES PTY LTD

Compensation Court of New South Wales: Truss J

11 February 1994

Proceedings to obtain compensation - Costs - Conduct of worker - Discontinuance - Worker electing to seek common law damages - Common law claim compromised - Worker obliged to discontinue - Compensation Court Act 1984, section 18

T. Meakes, for the applicant

P. Perry, for the respondent

Cur adv vult

TRUSS J: This matter comes before me for argument in relation to costs following the filing on 19 November 1993 by the applicant of a notice of discontinuance.

The relevant facts are as follows:

1. On 26 June 1991 the applicant was injured in a motor vehicle accident on her way to work.

2. These proceedings were commenced by application filed in December 1992.

3. In its answer the respondent alleged, inter alia, that the applicant's injury was caused partly or wholly by fault on her part. I was advised by the parties that this was "a real issue" in the case.

4. The application came before Judge Bishop on 22 October 1993 when it was not reached.

5. In addition to the application in this Court, proceedings were also commenced on behalf of the applicant in the District Court at Campbelltown in relation to the same accident seeking damages pursuant to the Motor Accidents Act 1988.

6. In those proceedings the defendant pleaded contributory negligence on the part of the applicant.

7. On 8 November 1993 the District Court proceedings settled. I am informed that the settlement was on a compromise basis but that the applicant did recover damages.

8. Upon resolution of the District Court proceedings, there being no legal basis for the proceedings in this Court, the application was discontinued by the filing of a notice of discontinuance on 28 January 1993.

9. On 23 December 1993 the applicant filed a notice of motion seeking an order that the respondent pay her costs of the application upon the grounds set out in the affidavit of her solicitor, John Arthur Parker, sworn the same day.

The respondent does not seek an order of costs against the applicant pursuant to the discontinuance nor does it seek any costs in relation to this application.

Counsel for the applicant did not rely upon any particular provision in the Act or Rules nor any authorities but submitted that my general discretion in relation to costs entitled me to make the order sought.

It was submitted that the worker was entitled to her costs of these proceedings because on 22 October 1993, through no fault of hers, the matter was unable to be determined. It was further submitted that these costs should include the costs of preparing this matter for hearing on that day, including counsel fees on a refresher basis.

Counsel for the respondent submitted that as the applicant discontinued the proceedings because they were no longer sustainable, the respondent ought not be required to pay her costs. He further submitted that I should not exercise my discretion in a matter such as this where an applicant had elected to avail herself of a remedy in another Court which obliterated her claim to compensation in this Court.

Counsel for the respondent described this application as "brave". It is certainly novel.

Part 16, rule 7 of the Compensation Court Rules 1990 deals with costs in the event of withdrawal or discontinuance. This provision does not assist the applicant.

Section 18 of the Compensation Court Act 1984 provides that:

" (2) Subject to this Act and the rules and subject to any other Act:

(a) costs in or in relation to any proceedings are in the discretion of the Court; ..."

I have not been persuaded that I should exercise my discretion in favour of the applicant. She elected to commence proceedings in two jurisdictions in relation to the same injury. In doing so, she accepted the risk that the common law proceedings could be determined first and become a legal bar to the proceedings in this Court.

I was referred to an unreported and untranscribed decision of Commissioner Ashford in Cameron v. Conaust Australia Ltd (Compensation Court, No. 11890/92, 28 September 1993, unreported) where, I was informed, the Commissioner made an order for costs in favour of the applicant in a similar situation. I have spoken to Commissioner Ashford who checked her bench book. She advised me that the applicant in those proceedings had also issued common law proceedings against the respondent in the Supreme Court in relation to the same injury. The claim was settled at common law and included an agreement that the proceedings in this Court be struck out with the respondent to pay the applicant's costs. What the Commissioner was required to determine was a dispute as to costs for a specific period. The decision is therefore of no assistance to me.

I therefore refuse the application and make no order as to costs.

Solicitors for the applicant: Smith Kerrison & Foster

Solicitors for the respondent: Abbott Tout