DARRELL LEA CHOCOLATE SHOPS PTY LTD v TIRICOVSKI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, HANDLEY and POWELL JJA 21 February 1994, 21 February 1994 [1994] NSWCA 79 Practice — Workers Compensation — Appeal — Review — Costs Practice — Workers Compensation — Appeal — Review — Costs Respondent worker applied for compensation alleging injury while on a "daily or other periodic journey". Senior Commissioner dismissed application on grounds (1) no "daily or other periodic journey"; (2) in any event deviation substantially increasing risk of injury. Respondent applied for review. Review conducted solely on written submissions. Written submissions do not refer to costs of review. Application dismissed on ground that "applicant did not sustain his injuries on a journey between his place of abode and place of employment'. Judge without giving further reasons concludes "in the exercise of my discretion I make no order for costs against applicant'. HELD: No special circumstances justifying no Order as to costs. Powell JA On 7th July 1988, the Respondent, Mr Tiricovski, who was then employed by the Appellant, Darrell Lea Chocolate Shops Pty Ltd, as a storeman, at its premises at 200 Rocky Point Road, Kogarah, was injured in a motor accident which occurred in Beauchamp Road, Matraville. In March 1989, the Respondent, who claimed that the motor accident occurred while he was in the course of a "daily or other periodic journey" from his home to the Appellant's premises, caused to be filed in the Compensation Court an Application seeking compensation for his injuries and what were said to be his continuing disabilities. The Senior Commissioner's findings will readily be understood when I record, first, that, if the Respondent were to drive by the shortest convenient route from his home in Stanley Street, Arncliffe to the Appellant's premises, which were situated almost due South from the Respondent's home, the distance covered would be only about 6.4 kilometres and the time occupied only about 10 minutes; and, second, that the journey upon which the Respondent was, at the time of the accident, engaged - taking his father to his place of employment near the intersection of Beauchamp Road and Bunnerong Road, Matraville, well to the East and North of Stanley Street, Arncliffe, before retracing his steps and then driving South to the Appellant's premises - covered a distance of 23.6 kilometres and customarily occupied 35 minutes, or thereabouts. The Application was heard, at first instance, by Senior Commissioner Hopkins in March 1990, following which the Senior Commissioner, on 20th April 1990, delivered a Judgment in which he held that the journey upon which the Respondent was engaged at the time of the accident was not "a daily or other periodic journey" for the purposes of the Workers' Compensation Act 1987, or if it were, that, at the time of the accident, the Respondent had deviated from the relevant journey to an extent which substantially increased the risk of injury. Accordingly the Senior Commissioner entered an Award for the Appellant. 2 UNREPORTED JUDGMENTS Being dissatisfied with the decision of the Senior Commissioner, the Respondent, in May 1990, caused to be filed a Notice of Motion seeking a review of the Senior Commissioner's decision. Although the appeal papers do not establish that this was so, it seems to be agreed by counsel who have appeared for the respective parties today that the argument on the review was not an oral argument but was one confined completely to written submissions which, in September 1990, were provided by counsel for the respective parties to the Compensation Court. In those written submissions neither counsel advanced any submission as to what was the appropriate Order for costs in the event that the Respondent was to fail in his application for a review of the Award made by the Senior Commissioner. The Judge assigned to deal with the review appears to have been the late Judge H H Gibson, who delivered his Judgment on the review on 12 December 1990. In his Judgment - which is very short - His Honour, after referring to the views expressed by Burke CCJ in Mansini v Director-General of Education and by Davidson CCJ in Watson v Hanimex Colour Services Pty Ltd as to the approach proper to be adopted on a review, and after referring briefly to the submissions, concluded: - "T agree with the Senior Commissioner that the applicant did not sustain his injuries on a journey between his place of abode and place of employment. In those circumstances I think that it is unnecessary to consider whether the applicant established that there was no material increase in the risk of injury. I dismiss the application for review but in the exercise of my discretion I make no order for costs against the applicant." Being dissatisfied with so much of His Honour's Judgment as dealt with the question of costs, the Appellant filed a Notice of Appeal in which it claimed (inter alia) that his Honour was in error in making no Order as to costs upon the grounds, first, that he had failed to have regard to the provisions of s18(6) of the Compensation Court Act as amended in 1989, and, second, that he had failed to give adequate reasons for the purported exercise of his discretion on the question of costs. So far as is relevant, s18 of the Compensation Court Act provides: (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. (4) Subject to this section, the Court may not order the payment of costs by a person claiming compensation unless the Court is satisfied that the application for compensation was frivolous or vexatious, fraudulent or made without proper justification. (6) If a person claiming compensation applies under s36 for a review of the decision of a commissioner, costs in or in relation to the review are to be paid by the unsuccessful party unless the Court in special circumstances otherwise orders. Mr J Poulos QC, who has appeared for the Appellant, has submitted that, while one accepts a degree of legal shorthand in the judgment of trial judges, it is clear from the passage at the conclusion of his Honour's judgement, to which I have URJ DARRELL LEA CHOCOLATE SHOPS PTY LTD v TIRICOVSKI (Mahoney AP) 3 referred, that His Honour did not turn his mind to the question of the existence, or otherwise, of special circumstances and, thus, that the purported exercise of his discretion was fatally flawed. By contrast, Mr MJ Joseph, who has appeared for the Respondent, has submitted, first, that the form of the Notice of Motion seeking a review of the Senior Commissioner's Award made it clear that issue of costs was squarely raised for determination on the review; and, second, that, there being no discretion available to be exercised by His Honour unless His Honour had first determined that there were special circumstances, it was implicit in the Order which His Honour made that he had found that there were special circumstances, it following that the Order which he made was properly founded. With respect, I am unable to accept the submissions made by Mr Joseph for two reasons, they being, first, that, there having been no submission as to costs made by either party in the written submissions, it must follow that the present Respondent did not seek to have the Court find that there were special circumstances which would justify an Order other than that provided for by s18(6) of the Act not operating; and, second, that despite the matters to which Mr Joseph has drawn our attention in his submissions on the present appeal, I am unable to find anything in the case that would constitute special circumstances. It is sufficient, in my view, to say that, on the facts as I have shortly outlined them, it was not only clearly open to the Senior Commissioner to find that, at the relevant time, the Respondent was not undertaking "a daily or other periodic journey" and that the evidence justifying him in doing so called for no great examination of the facts or legal principles applicable to them. For these reasons, I would propose that the Appeal be allowed with costs. Further, it being agreed by both counsel that, in the special circumstances of this case, it would be appropriate for the Court so to do, I would also propose that so much of the Award made by His Honour Judge Gibson as provided that there be no Order as to costs be set aside and that, in lieu thereof, it be ordered that the present Respondent pay the costs of the review before His Honour Judge Gibson. Mahoney AP I agree with the order proposed by Mr Justice Powell. In my opinion the Judge was entitled to deal with the issue of costs. A separate hearing is not required. Special cases apart, the Court would expect counsel in making submissions to deal with any order to be made as to cost and if no submissions are made then the matter is left to the Judge to make the order for costs without any further hearing. I myself am inclined to think that the Judge intended to exercise the power under s18(6) by what he said as to discretion. But however that be, there is no evidence upon which he could make a finding of special circumstances such as would warrant the order be made. I agree with what Mr Justice Powell has said in that regard. Mr Joseph has referred to the portion of his own written submissions in which he dealt with the question of special circumstances and suggested matters which should be held to be special circumstances. If there was evidence upon which the Judge could exercise his discretion' then of course in this regard and upon the present submissions, this Court would not interfere. But, with respect, I am of the opinion there was nothing in the circumstances of the case which could constitute special circumstances within s18(6). Upon that ground, I would uphold the appeal. UNREPORTED JUDGMENTS I note that counsel have very sensibly agreed that this Court should make the appropriate order. That will avoid any doubt as to the matter and avoid the necessity, should it otherwise exist, of the matter going back to the Compensation Court. I agree with the orders that have been proposed. Handley JA I agree with the orders that have been proposed, and I agree substantially with the reasons given by the other members of the Court. 1. 2. 3. 4. Appeal allowed with costs. So much of Award of Compensation Court as provided that there be no costs of the review be set aside. In lieu thereof Respondent to pay costs of the review. Respondent to have a certificate under the Suitors Fund Act 1951. Counsel for the Appellant: J Poulos QC Solicitors for the Appellant: Hickson Lakeman & Holcombe Counsel for the Respondent: MJ Joseph Solicitors for the Respondent: Muggleton & Associates