Robotham v Sapphire Bay Holdings Pty Ltd [2000] NSWCC 5; (2000) 19 NSWCCR 295 (25 January 2000)

Last Updated: 30 October 2000

[2000] NSWCC 5; (2000) 19 NSWCCR 295

ROBOTHAM v SAPPHIRE BAY HOLDINGS PTY LTD

[2000] NSWCC 5

Compensation Court of New South Wales: Burke J

25 January 2000

Workers compensation - Costs - Of conciliation - Conciliation certificate that matter more appropriately dealt with by Court - Application for order that costs be paid forthwith - Court has discretion - No order made - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 88, s 112 - Workers Compensation (General) Regulation 1995 (NSW), cl 51D

M.H. Best, for the applicant

P.A. Rickard, for the respondent

Ex tempore

1 BURKE J: The matter comes before the Court on summons brought by the worker seeking orders in respect of costs of conciliation proceedings before the Workers Compensation Resolution Service (WCRS) in two nominated matters and also of this summons. Why there should or should not be two such matters is not the subject of any dispute. The applicant duly made claims in respect of weekly payments and medical expenses upon the employer. The six weeks thereafter, allowed for some response, duly elapsed without acceptance or rejection of the claims. On 17 August 1999 the applicant, as he was entitled to, and even obliged to do, sought conciliation. The WCRS on 23 August 1999, having considered the matter, issued a certificate of conciliation which effectively determined that the matter was best dealt with by the Court.

2 It is not really submitted that costs are not payable by the employer, but the question raised is rather as to when that should occur. The worker submits that such costs are due now and should be paid now. The employer is of the view that the substantive matter being unresolved, the payment should abide finalisation of the disputed claim.

3 The structure of the now Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), s 101 and s 102 in respect of weekly payments and lump sums, provides that a worker cannot commence court proceedings until there is a dispute, conciliation and certificate. There is no argument that the claim was made, that there was a dispute, the dispute existing when there is a failure to respond, that there has been conciliation and that a certificate has issued. What the worker did was a necessary precondition to commencing court proceedings.

4 Section 78 of the 1998 Act provides for the referral of a dispute to conciliators. Section 88 of that Act provides that regulations may require all or any of the costs of conciliation be paid by the employer. Clause 51D(1) of the Workers Compensation (General) Regulation 1995 (the Regulation) starts off with that magnificent little phrase, "The employer is to pay", and then goes on about the costs of conciliation. Clause 51D(2) makes that obligation subject to any other order of the Principal Conciliator. Such further order of the Principal Conciliator is subject to review by the Court. No such further order was made by the Principal Conciliator in this matter.

5 This Court's general power in respect of costs arises out of s 112(2) of the 1998 Act, which commences, "Subject to this Act and the regulations and the rules of the Compensation Court and subject to any other Act ... costs in or in relation to any proceedings are in the discretion of the Court". I think patently these costs are not in the proceedings before the Court. You cannot commence a proceeding in the Court until after the conclusion of the particular proceeding now in question. Ex hypothesi such cannot strictly be costs in a proceeding before the Court.

6 However, it is, in my view, a proceeding in relation to a proceeding in the Court, and therefore comes within the ambit of s 112. Indeed the matter number accorded the application for conciliation by the WCRS is the same matter number accorded by the Court to the subsequently instituted proceeding before it.

7 Costs are discretionary as has been emphasised by the employer. The primary rule on costs, subject to any statutory inhibitions, is that costs follow the event.

8 What happens here? The worker necessarily sought conciliation, because the employer, whilst not actually declining to meet the claim, remained mute, and all things happened and all times elapsed, necessary to entitle the worker to get the matter moving, the necessary first step being conciliation, so what the worker did, he was obliged to do if he wished to enforce any rights.

9 Clause 51D(1) of the Regulation is patently sourced in s 88 of the 1998 Act, and specifically envisaged by the section that the regulation would provide exactly what it does provide. It provides that the employer "is" to pay. It does not say may be required to pay, could be payable or anything else. In my view it is as mandatory as you can get. They could have said "shall", at least that's the future tense rather than the present, and even that is usually considered mandatory. I think the present tense is probably more mandatory, because it says "is", now is. If I say it is raining I mean now, not in three months or three years time. As a matter of pure grammar, though you could never trust the draftsmen of the Workers Compensation Acts and Workplace Injury Management Acts, the regulations or anything else. They use "substantial contributing factor" in the statute and everybody knows "contributing" is actually otiose, redundant, tautologous. A factor is an element which contributes to a given result. If it doesn't contribute, it isn't a factor. A factor cannot be anything but a contributing factor, and the "contributing" is unnecessary.

10 So, one should not rely too much on the finesses of grammar in construing our statute, or statutes now, there are so many of them.

11 The real argument of the employer is simply that even if costs are payable it is not now, rather than not ever, just not now, let us wait until the whole thing is wound up and finished and we know who got what, and then we can adjust the costs. That, to my mind of course, is a very sensible suggestion. When all is said and done and the results are on the board is the time to tidy up ancillary matters like costs. True, this Court, even in proceedings before it, will on occasion make mandatory orders for costs to be observed in any event. If an employer raises some fancy answer on the listed date of hearing, it being a genuine defence, but not raised, and which could not be met, certainly they will get the adjournment, but they will also get a mandatory order for costs then, to pay the cost of and incidental to the listing of that day's hearing, et cetera, in any event. Once again, that does not carry any impression of time, it does not say immediately, and I have never had to really contemplate before, when you make an order for costs, I guess you really say, "Well, here is an extant order now", and what follows from that is if you do not get it, you can probably get a certificate from the Registrar after you do all that taxing or whatever they do these days, and--fortunately costs are so messy that most people would not bother about that. However, the real argument, as I apprehend it then, is not so much as to the costs being payable, but as to when they are payable, are they payable now or are they payable at the conclusion of the entirety of the litigation in respect of the subject matter both of the conciliation and the current proceedings.

12 The parties have given me lots of light reading, which fully occupied my lunchtime, in fact I would have liked to have read it a little longer: Finemores v WorkCover Authority (NSW), NSWSC, No. ALD 30075/98, Dunford J, 14 December 1998, not quite in point but it deals with germane matters; the decision of Armitage J in Smith v State Rail Authority (NSW), NSWCC, No. 10630/96, 11 October 1999, unreported; and the decision of Quirk J in Little v State Rail Authority (NSW) (1999) 19 NSWCCR 69. Armitage J and Quirk J clearly took the view that while costs may be payable, they are not payable by instalments, as it were. You do not get it bit by bit, wait until the end and it is all over. As I said, that appeals to me as being eminently sensible. Unfortunately, you do not always get room to be sensible, sometimes you have to make decisions that you think are questionable, even silly.

13 The problem as I see it is simply this. My power comes under s 112. That is subject to the Act, the regulations and the rules. The rules I can play around with, no doubt about that, but the regulations and the Act are fairly immutable as far as I am concerned, if anybody wants to alter that, it has to be somebody else, not me. The Regulation uses "is". The statute says the costs are in the discretion of the Court. As a matter of discretion, as I said, costs normally follow the event. The problem is, of course, what is the event. I will come back to that.

14 In effect, in the cases touched upon in argument, there was envisaged situations which could arise in the future conduct of the litigation and which were canvassed before Quirk and Armitage JJ. It may be that the applicant is the greatest liar unhung, he never had the injury in the first place, he is not entitled to anything by way either of weekly payments, lump sums or otherwise, and in fact, he is likely to get an order for costs against him, to carry on as he did. If cl 51D means what it says, the employer is to pay--is, present, continuous, operative--the costs of the conciliation. If it means that, then certainly I have a discretion, but it is a judicial discretion to be exercised judicially.

15 True, all the things envisaged by Mr Rickard in this matter, and counsel appearing before her Honour, Quirk J, and his Honour, Armitage J, all those things that they envisage as perhaps might eventuate to call for the exercise of that discretion in the substantive proceedings before the Court would be squarely within s 112(2)(a). As indicated, I believe the relevant conciliation proceeding is incidental to a relevant proceeding before the Court, so I certainly have power to exercise a discretion in relation to that also.

16 I can exercise a discretion. On what basis would I exercise the discretion? In effect, the respondent is saying, why do you not just assume that some of these dreadful things could happen, and the applicant would not be entitled to anything at all? If asked, probably the worker would simply say, s 17(4) of the Compensation Court Act 1984 is adequate to remedy any such problem. If it does so come to pass, you can reconsider it. Any order I make today is not immutable in the sense that it can never be disturbed. Statistically, the chances of any of those dreadful things occurring is fairly slight, it does happen, but it does not happen all that often.

17 As the basis of the exercise of a judicial discretion I could never really be convinced that I should assume, as against the worker, that there will be some grievous default on his part that will disentitle him to an order for costs in the ultimate. So, really, I do not think there is any particular basis on the facts of the matter to warrant a discretionary refusal of the order sought. It came up, perhaps, before Armitage J in that matter of Smith where counsel was obviously disinclined to adduce any evidence on that costs application which might suggest a likelihood that such matters would, in fact, eventuate. Therein lies the inhibition of course, from the employer's point of view. You do not play your trump cards in a subsidiary little scrap like this, you save it for the real event. But as I said, I still do not think that I could be convinced that I could exercise a discretion vested under s 112 on the basis of a supposition that this might come to pass.

18 As against all that, my own feelings are reasonably clear. I think the regulation says the costs are payable and there is no prima facie reason I can see that, in the exercise of the discretion, I would say they are not. As I read the regulation they are payable in the sense of payable at the present time, as distinct from being subject to a condition subsequent.

19 However, as against that, I have the decision of her Honour, Quirk J, in Little, and the clear indication of the views of his Honour, Armitage J in Smith, and indeed he dismissed the motion so, he acted consonantly with those views, that the matter of costs should abide the end of the litigation.

20 While I am not convinced, that their Honours have directed their minds to all relevant elements in the interpretation of the relevant provisions, this will patently be a recurring matter. In my view, right or wrong, certainty is probably best, and there is always the doctrine of judicial comity. Judicial officers of equal status have ruled on this particular point, and prima facie, one should follow it unless something of which they were not aware, could affect the judgment. I think there are things which they have not considered, which probably were not suggested to them, were not suggested to me for that matter, which perhaps would call for some adjustment. But by and large, the process of litigation being what it is, proceedings before the WCRS are a necessary precondition to the initiating of the court proceedings, they are part and parcel of it, there is no reason why I would in the wide majority of cases make any interim order for costs in the proceeding--purely in respect of the proceeding before the Court. It seems to me that it could become bureaucracy run riot. If another step to be taken is introduced, and a similar provision for costs in relation to that step is introduced, the Court could spend most of its time entertaining application, for costs in ancillary proceedings rather than substantive matters.

21 So, while I am not convinced as to the legal basis of it, I think in comity, I should follow the decisions of Quirk and Armitage JJ, and while holding that the costs incurred by the applicant in relation to conciliation is payable by the employer, using the singular rather than the plural, I should make no further order to the effect that such be paid now. I think the motion should be dismissed. The relevant costs certainly will be paid, in my view, unless something dreadful happens on the way to the forum in the ultimate course of events. As a matter of the sheer convenient progress of litigation through the Court the least number of interlocutory procedures necessary, the better and in so far as multiplicity of interlocutory proceedings can be avoided, I think it should. The decisions of Quirk and Armitage JJ certainly have that beneficial effect. Therefore, I follow them.

22 The notice of motion is dismissed. No order for costs.

Orders accordingly

Solicitors for the applicant: Mitchell Playford & Radburn

Solicitors for the respondent: MMI Workers Compensation (NSW) Ltd