Nokolov v Poulos Bros (Wholesale) Pty Ltd [2000] NSWCC 6 (15 February 2000)

Last Updated: 30 October 2000

(2000) 19 NSWCCR 329

NIKOLOV v POULOS BROS (WHOLESALE) PTY LTD

[2000] NSWCC 6

Compensation Court of New South Wales: Neilson J

15 February 2000

Workers compensation - Costs - Meaning of expression "without proper justification" - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 112(4)

Words and phrases - "without proper justification" - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 112(4)

A.P. Monaghan, for the applicant

D.A. Baker, for the respondent

Ex tempore

1 NEILSON J: This is an application for costs. Early today I granted leave to the applicant to discontinue the current proceedings. The respondent consented to the discontinuance on terms that the applicant pay the respondent's costs of the application. I granted leave to the applicant to discontinue proceedings but then entertained the respondent's application for costs.

2 The application for costs has been opposed by Mr Monaghan of counsel and he said everything that could possibly be said on the applicant's behalf.

3 The background of this claim is that there were earlier proceedings between the same parties. Those proceedings were Matter No. 2447 of 1995, which came on for hearing before me in Sydney on 21 September 1995. On that day I gave liberty to the applicant to file in Court a document "Proposed further amended" application for determination, which I substituted for the initiating process. As typed, that document claimed weekly payments of compensation from 27 May 1995 to date and continuing, as well as lump sum compensation under s 66 of the Workers Compensation Act 1987 (the Act) for a 25 per cent permanent impairment of the back, 5 per cent loss of efficient use of the right leg at or above the knee, 3 per cent loss of efficient use of the left leg at or above the knee and a consequential lump sum for pain and suffering pursuant to s 67 of the Act.

4 The claim for weekly payments was withdrawn on 21 September 1995. I then continued with the claims under s 66 and s 67 and entered an award for the respondent.

5 My earlier reasons for judgment are Exhibit 2-2 on this application.

6 In the earlier proceedings the applicant relied upon an injury in the course of his employment on 16 June 1995 when he was pushing a trolley with five boxes of fish when he slipped and fell.

7 In the current proceedings the applicant relies on the very same injury. In the current proceedings the applicant claims weekly payments pursuant to s 40 of the Act from 28 June 1994 to date and continuing.

8 It has been conceded that the applicant was in fact paid full wages or compensation up until 27 May 1995. Therefore there would appear to be no entitlement to any weekly payment between 28 June 1994 and 27 May 1995. The claim for weekly payment should properly commence on 28 May 1995.

9 As I have earlier pointed out the claim for weekly payments in the first set of proceedings commenced on 27 May 1995 but was withdrawn on 21 September 1995. The reason why it was withdrawn is clear at 4 of my reasons for judgment in the earlier proceedings when I pointed out that the applicant lost no time from work since January 1995 and had performed his full usual work since May 1995.

10 On the evidence before me in the earlier proceedings there was no claim possible for weekly payments commencing from some date in May 1995.

11 The gravamen of my reasons for judgment in the earlier proceedings was that the applicant had an underlying constitutional or degenerative condition that was not caused by the work injury relied upon.

At 9 in my reasons for judgment I said this:

Dr Scarfe points out that the applicant's discomfort may well be related to the inexorable process of a degenerative change. That appears to be on the evidence to be the probability. Accordingly, it appears to me that the ongoing problem that the applicant has relates to the degenerative changes in his facet joints in his lumbar back, which were not caused by the work injury and the evidence does not persuade me that there is any ongoing aggravation, acceleration or exacerbation of the underlying condition.

Whilst I accepted that the applicant may have had some impairment in his back, it was not related to the injury in question, the effects of which had passed away at some time prior to my giving judgment on 21 September 1995.

12 I made no specific finding as to when the effects of any aggravation, acceleration, exacerbation etc. would have passed away, but it appears that I was greatly persuaded by the opinion of Dr Scarfe, who in fact saw the applicant on 3 July 1995.

13 The evidence in the earlier proceedings indicates there was no possible claim for any payments up until 21 September 1995. That appears to have been acknowledged by the worker who withdrew the claim for weekly payments on that day.

14 Clearly the effect of my reasons for judgment is that the applicant could have no ongoing entitlement to any form of compensation after 21 September 1995 because of my findings in the earlier proceedings. The matter was res judicata.

15 In these circumstances it appears to me that the claim currently before the Court, which was withdrawn this morning, was made without proper justification.

16 I should add the following remarks:

In Bruce v Grocon Ltd [1995] NSWCC 10; (1995) 11 NSWCCR 247, I pointed out at 267, that where a claim could have been litigated in earlier proceedings but was not, there may be a costs penalty. This is such a claim. I also point out that the standard of proof in an application of this nature is the civil standard of proof as held by the Court of Appeal in Pascoe v Barrier Crash Repairs Pty Ltd [1978] 52 WCR (NSW) 156.

17 Mr Monaghan has submitted to me that the words "without proper justification", ought to be interpreted as meaning "without any possible justification"[dagger]. I am unable to accede to that submission. That would be to interpret the words "without proper justification" as meaning "without any justification" or "without justification".

18 It appears to me that the word "proper" when used in the expression "without proper justification", modifies the strictness of the word "justification" just as in the phrase "reasonably necessary", the word "reasonably" modifies whether something is necessary or not. Strictly something is necessary or it is not. To make something reasonably necessary modifies the strictness of the necessity.

19 It appears to me that the appropriate synonym for "proper" in the phrase with which I am now dealing is "genuine" or "real" or "appropriate", being the second and third major meanings of the word "proper" as recited in the Shorter Oxford Dictionary.

20 There must be an appropriate justification. Here there is not any appropriate justification and indeed in the light of the facts recited in my earlier reasons for judgment, there would not appear to be any justification at all.

21 Accordingly I order the applicant to pay the respondent's costs in these proceedings.

Orders accordingly

Solicitors for the applicant: Papanicolaou & Antiniou

Solicitors for the respondent: Dexter Healey