Compensation Court of New South Wales CITATION : Metz v Joseph Frederick Gordon Smith t/as Ashmont Electronics [2003] NSWCC 20 Michelle L Metz PARTIES : v Joseph Frederick Gordon Smith t/as Ashmont Electronics MATTER NUMBER(S) : 52516 of 1999 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 04/11/02, 29/07/03, 30/07/03 EX TEMPORE JUDGMENT DATE : 08/01/2003 FOR APPLICANT: Mr E Pike instructed by Gain Kent McRae appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J A D Roberts instructed by Vadanega Roberts appeared for the respondent. JUDGMENT: 1. This is an application by the respondent concerning costs. To understand the nature of the application, it is necessary to briefly consider the history of this matter. Proceedings were commenced by an application for determination filed on 22 March 2000. In that application the applicant, Michelle Louise Metz of Wagga Wagga, relied on an event which is alleged to have occurred to her in the course of her employment with the respondent on 20 April 1999. Weekly payments of compensation were claimed from that date for either total or partial incapacity as well as her expenses under s 60 of the Workers' Compensation Act 1987. An amended application for determination was received by the Court on 31 May 2002 and passed under the seal of the Court on 18 June 2002. That added unspecified claims under s 66 and s 67. A further amended application for determination was filed on 30 October 2002. That maintained the claim for weekly payments of compensation and specified claims under s 66 for 90 per cent loss of efficient use of the right leg at or above the knee and 50 per cent impairment of the back and claimed half of the total amount payable for pain and suffering, anxiety and distress pursuant to s 67. It was upon that further amended application for determination that I granted the applicant leave to proceed at Tumut on 4 November 2002. 2. The matter has not had a happy, curial history. The applicant had requested that the matter be heard at Wagga Wagga. The matter was first called over by his Honour, Judge Armitage on 13 February 2001. The matter was then stood to the bottom of the Wagga Wagga Pending List, his Honour noting that the applicant's condition had not yet stabilised and that the applicant failed to attend upon the respondent's medical examinations. The matter was again called over by her Honour, Judge Ashford on 15 June 2001. When her Honour noted the applicant was not ready, the matter was again stood over to the bottom of the Pending List at Wagga Wagga. The matter was again called over by her Honour, Judge Quirk on 25 September 2001. Again the applicant was not ready. Her Honour was told that the applicant's condition had not stabilised. On that occasion the respondent sought to have the matter struck out for want of prosecution but her Honour refused the respondent's application. Her Honour stood the matter to the bottom of the Pending List at Wagga Wagga and reserved the question of the applicant's costs. 3. The matter was again called over by his Honour, Judge Bishop on 11 February 2002. The matter was not ready. His Honour ordered that the matter be stood over for mention to 13 May 2002 for directions as to listing. The applicant was ordered to file and serve an affidavit of readiness seven days prior to 13 May 2002. On 13 May 2002 the matter was listed before the Registrar but there is no appearance by either party. The matter was again mentioned before the Registrar on the following day, 14 May 2000, when there was no appearance by the applicant. The Registrar stood the matter over for mention to 21 May and directed the respondent to notify the applicant of the order made on that day. Costs were reserved. 4. On 21 May 2002 the matter came before Assistant Registrar Cox. She ordered an affidavit concerning the applicant's readiness for hearing to be filed and served by 28 July 2002 and confirmed a call-over on 3 June 2002. On 3 June 2002 the matter came for further call-over before her Honour, Judge Quirk. Her Honour noted the respondent was not ready to meet a lump sum claim which had been intimated to the respondent during the week before the call-over. The respondent had accordingly no medical evidence concerning the claims under s 66 and s 67. Her Honour stood the matter to the top of the Pending List at Wagga Wagga. 5. The matter was called over before me on 24 September 2002. I was told that the matter was ready to proceed, that the applicant would call the applicant in her case and tender reports, that the respondent had two or three lay witnesses and wished to tender medical reports and the case would take one day. I set the matter down for hearing at Tumut on Monday 4 November 2002. It was noted the applicant agreed to accept short service of a medical report. The applicant was ordered to file and serve a wages schedule within 14 days. Furthermore, the applicant was ordered to file and serve a second amended application for determination within 14 days, that clearly being the application for determination filed on 30 October 2002, outside the 14 days. It is to be further noted that the applicant ought to have filed a wages schedule prior to the call-over. In other words, because the matter was said to be ready, I made orders to ensure the matter could be ready for hearing at Tumut on 4 November 2002. 6. At Tumut on 4 November 2002 Mr Pike of counsel appeared for the applicant and Mr Roberts appeared for the respondent. The applicant again applied for an adjournment. I was concerned that the matter ought be heard and determined as quickly as possible considering the unfortunate curial history of the matter and bearing in mind the fact that this Court will cease to exist on 1 January 2004. The applicant's evidence-in-chief was taken and I stood the matter over for mention before me in Sydney on 29 November 2002 to fix further hearing dates. At the end of the applicant's evidence-in-chief the estimate of the parties was that the case would take a further two days. On 29 November 2002 I set the matter down for hearing before me here in Sydney on 29 and 30 July 2003. 7. On 29 July 2003 the applicant gave further evidence-in-chief and was cross-examined and re-examined. At the end of the day I was told that there was one further witness to be called in the applicant's case. The matter was stood over for further hearing on 30 July 2003 in accordance with the direction I made on 29 November 2002. It should be further noted that on 29 July 2003 the applicant made yet another application for an adjournment. The applicant had sustained an injury in July of this year which would appear on the medical evidence tendered on the adjournment application to have been subluxation of her left patella. Medical evidence suggested that this was not a primary injury, that is, it was not caused by the event of 20 April 1999, but it was suggested that it might be secondary to a condition caused by the event of 20 April 1999. Again considering the two days that had been set aside and considering the fact that the condition of the applicant's left knee had not yet stabilised, I declined the adjournment at that time on the basis that the left knee condition could be considered after the bulk of the applicant's case had been determined, as injury was very much in issue and nexus was very much in issue and the nature of the applicant's incapacity, whether it be organic or psychiatric, was hotly in issue. 8. The applicant's left knee condition might ground a further claim under s 66, but, as I said, that was not stable, the applicant had only recently had surgery to her left knee and had to be removed from hospital in order to come to Sydney for the hearing of her case, and she was yet confined to a wheel chair because of the surgery to her left knee. 9. On the morning of 30 July 2003 the respondent had caused Dr Hassel, a specialist physician, to be present at Court in order that he be called to give evidence. Before Mr Roberts called him, he wished to ask the applicant some further questions in cross-examination to which no objection was taken. The applicant was then briefly further cross-examined. Mr Pike of counsel, who appeared for the applicant throughout, then asked for an adjournment for a half hour concerning a "development in the case". That is the usual euphemism for there being some settlement negotiations. I was asked to read the medical reports and the applicant tendered medical reports which were marked Exhibits 'B' to 'E' and the respondent also tendered medical reports which were marked Exhibits '4' to '10'. Records of the Wagga Base Hospital were also tendered and they were marked Exhibit 'F'. I then adjourned to chambers to read the medical evidence. 10. When I returned to the Bench Mr Pike advised me that in the meantime his client had filed an election with the Workers' Compensation Commission and that this Court was no longer seized of jurisdiction to continue hearing and to determine the applicant's claim. Whether an election has been filed or not, I am completely in the hands of counsel for the applicant who advised me that an election had been filed. I have received no notice from the Workers' Compensation Commission that an election has been filed with it as required by reg 93A(5). However, the respondent accepts that such a document has been filed with the Workers' Compensation Commission. Mr Roberts then sought costs against the applicant and the matter was stood over for argument today, Friday 1 August, in order for him to advance those arguments. 11. Mr Roberts advanced those arguments this morning. Mr Pike did not appear for the applicant this morning. He advised me that his instructions had been withdrawn, but he sought leave to assist the Court amicus curiae, which leave was granted. The costs orders sought by the respondent are these: 1. That the costs incurred when the applicant's claim was a "existing claim" be not payable by the respondent. 2. That the costs incurred by the respondent on 30 July 2003 be payable by the applicant. 12. Mr Pike's submission is that this Court has no power to make any costs order at all. He relies on reg 93A(2) which provides that on receipt by the Commission of an election, the claim is to be treated as a new claim for the purposes of the Workers' Compensation Acts. He points out that under sub reg (4) this Court does not have any jurisdiction or power to refuse to accept an election made under reg 93A. Mr Pike submits that the Court's only jurisdiction after an election has been filed is contained in reg 93B and in particular in the four paragraphs numbered (a) to (d) of that regulation. 13. The first question before I consider, if necessary, the merits of the respondent's application is whether the Court has jurisdiction to make any order for costs. The first thing to note is that subject to the privative clause preventing the Court ordering costs against a worker unless the application, or part thereof, was frivolous, vexatious, without proper justification or fraudulent, the Court has general power to order costs. A power to order costs exists even if a Court is without jurisdiction to grant the relief sought. For example, this Court does not have jurisdiction to entertain any claim for damages. If a claim for damages was filed in this Court the respondent would be entitled to have the claim stayed, struck out or dismissed. Subject to the privative clause, the respondent could seek costs against the party following a claim of that nature in this Court. Proceedings might be commenced which might ultimately be found to be an abuse of process. Even if the Court stayed such proceedings, struck them out, or otherwise dismissed them, the Court would still have power to make a costs order against the moving party whose application was held to be without proper justification. When a party discontinues proceedings any party who did not consent to the discontinuance can seek an order for costs. That is specifically provided for in Pt 16 r 7 of the rules of this Court. 14. That rule was considered in Amco Wrangler v Sukkar (1985) 1 NSWLR 577. It was not at all suggested that the rule was ultra vires. This Court is a court of record, but it is not a superior court of record. Inferior courts do not have inherent powers but they have implied powers. (See FAI Insurances Limited v The Registrar of the Workers' Compensation Commission of New South Wales [1982] 1 NSWLR 239. It should be noted by the legally uninitiated that that Workers' Compensation Commission was the original Workers' Compensation Commission which was a court of record and the judicial side of which was made into this Court pursuant to the Compensation Court Act 1984. 15. Subject to the statutory provision, the implied powers in an inferior court include the following: 1. devise procedures to ensure the proper determination of issues before it; 2. control the practice, procedure and conduct in court; 3. deal with proceedings as an abusive process; 4. remedy a denial of natural justice; and 5. give effect to an autrefois defence. See Halsbury's Laws of Australia vol 8 par 125-110 at p 236,094. 16. The authority that an inferior court has power to deal with proceedings as an abuse of process is contained in Miller v Ryan [1980] 1 NSWLR 93 which concerned the powers of the magistrate's Court. In my view there can be little doubt that if, for example, an issue of injury was hotly contested and an applicant deposed to an injury occurring in a certain way, at a certain place, at a certain time and a large number of other witnesses came forward, who were present at that place and at that time, and deposed to the fact that the injury did not occur, where it was patently clear that the case would be determined adversely to the applicant, where it may have become patently clear that a finding of fraud might be made and an order for costs made against an applicant, when an applicant discontinued proceedings, a costs order might be made against him with a finding that the claim made was fraudulent. One can understand a discontinuance occurring, for example, after the evidence had been completed but before counsel's addresses had been heard and before the Court had proceeded to give judgment. 17. The question here, of course, is whether, assuming the same thing happened but rather than discontinuing proceedings, a worker elected to have his matter transferred to the Workers' Compensation Commission, the Court would be deprived of making the finding and the costs order in question. The jurisdiction of a court may be ousted by statute, but a provision to that effect would be construed narrowly: State Electricity Commission of Victoria v The City of South Melbourne (1968) 118 CLR 504. Unless there is specific authority for the making of subordinate legislation ousting the jurisdiction of the Court, such subordinate legislation is ultra vires: Australian Jam Company Pty Limited v The Federal Commissioner of Taxation (1953) 88 CLR 23. No submission has been put that reg 93 A was ultra vires. However, the provision must be narrowly construed, in accordance with the decision of the High Court of Australia. 18. This is not a question of a transferring of jurisdiction from one court to another, as the Workers' Compensation Commission is not a court, as the Court of Appeal has recently determined. In Halsbury's Laws of Australia vol 20 par 325-9530 it is stated that where proceedings have been remitted, removed or otherwise transferred from one court to another, the costs prior to removal are in the discretion of the court to which the proceedings have been remitted, removed or transferred. However, the authority for that proposition given in the footnotes is purely pursuant to subordinate legislation. The authorities cited are all the rules of the various Supreme Courts of the States of the Commonwealth and of the courts exercising federal jurisdiction. There is no specific provision ousting the implied power of the court to make an order for costs after a matter has been transferred to the Workers' Compensation Commission. Mr Pike has submitted that such ought be inferred from reg 93B. 19. Under reg 93(2)(a) an existing claim becomes a new claim at the time when the Court makes a final award or order determining the claim. Under reg 93B the Court has continuing jurisdiction even though a matter has become a new claim to re-consider a matter presumably pursuant to s 17(4) of the Compensation Court Act 1984, but only if such an application is made within 28 days after the judgment, award or order is made or given. The Court also has power to reconsider a matter that has been remitted to it by the Court of Appeal. That postulates, of course, that this Court made a final award, order or determination, an appeal was taken to the Court of Appeal, the Court of Appeal allowed that appeal and then remitted the matter to this Court. The Court also has power to make a costs order under s 112 of the 1998 Act provided an application for the order is sought within 28 days after the day on which the "final award or order determining the claim" is made. Par (d) relates to the making of orders ancillary to proceedings before the Court, for example, matters such as the return of exhibits or the enforcement of awards. Exhibits, of course, are only returned after a final award, order or determination and an award can only be enforced after it has been made. 20. The matter contained in reg 93B all presupposes that this Court has made a final award, order or determination. It does not speak of circumstances where a matter having been part-heard over three days, the applicant decides to make an election to transfer the proceedings to the Workers' Compensation Commission. Bearing in mind the principle of statutory interpretation to which I have referred, I cannot find any provision ousting the jurisdiction of this Court to make an order for costs in respect of the period when the claim was an existing claim within the jurisdiction of this Court. Mr Roberts for the respondent has otherwise traced through the morass of legislation and regulations, the trail establishing the Court's power. It appears to me that it merely rests on s 112 of the 1998 Act. I could make an order prior to the election. I can make an order after the election. 21. I turn then to the merits of the application made by the respondent. On one view of it, the applicant's case has never been ready to proceed. I have recited the six call-overs of the matter as well as the other directions hearings. I have recited that eventually the matter was certified ready. It came before me at Tumut when the applicant sought an adjournment, but trying to have the matter heard and determined expeditiously, I let the matter commence. I then gave it further hearing dates in Sydney when the applicant again applied for an adjournment. Again, trying to have the matter heard and determined expeditiously and prior to 1 January 2004, I refused the adjournment at that stage. The applicant did not mention on 29 July seeking to make any election. The applicant did not mention to me on 30 July any intention to make an election. In fact, an adjournment was sought, but the reason why the adjournment was sought, which would appear to have been to go to the Workers' Compensation Commission and file the election, was never told to me. 22. The applicant has been able to elect to have the matter transferred to the Workers' Compensation Commission at any time on or after 28 February 2003. On one view of it, if I might paraphrase the words of the late Emperor of Japan, the applicant's case may not have gone necessarily to her advantage on 29 July. Certain concessions were made in cross-examination, inconsistencies were established between what the applicant deposed to on oath before me at Tumut and what she said before me on oath on 29 July, film was exposed, taken both before and after 4 November 2002 which was quite inconsistent with the applicant's presentation to me at Tumut on 4 November 2002. Despite submissions which in my view amount to be obfuscation on the applicant's behalf, the decision by the applicant to elect to have the matter transferred to the Workers' Compensation Commission was but a blatant exercise in forum shopping. 23. Nothing has been achieved by the applicant by the maintenance of proceedings in this Court other than to have a preview of what evidence there might be in the respondent's case. The matter was part-heard before me but the matter is not part-heard before the Workers' Compensation Commission. Three days of hearing before me have been completely wasted. It has been a waste of time for the applicant herself, for the respondent - which has incurred many costs - and it has been a waste of this Court's time. It has been to the detriment of other litigants who want their cases heard and determined in this Court prior to its abolition. 24. I accede to the respondent's submission, especially in light of the curial history of the matter, that nothing has been gained by the applicant by maintaining proceedings at this Court and accordingly I order the applicant have no costs of proceedings in this Court. 25. The respondent also seeks an order that the costs of 30 July be paid by the applicant. Mr Roberts has submitted that the applicant clearly had decided to elect prior to coming to Court on that day and the applicant could have advised the respondent of that so that the respondent could have obviated the attendance of Dr Hassel, could have obviated the attendance of another witness who was no doubt to be called to prove the film which had been shown to me in cross-examination, and could have obviated the costs of counsel and solicitor being here. 26. Mr Roberts has submitted that the applicant's maintaining the position that the matter was proceeding before me on 30 July 2003 when the applicant was merely going to the Commission to file an election was the maintenance of proceedings without proper justification. I accede to that submission. If I had been told prior to 10 o'clock on 30 July 2002 that the applicant wished to file an election in the Workers' Compensation Commission, I could have arranged to do other work and hear somebody else's case. As it was, I was invited to hear evidence from the applicant herself and to read voluminous medical reports prior to being told that the applicant had filed an election. As I said, I am satisfied that the hearing before me on 30 July 2002 was without proper justification. 27. I order the applicant to pay the respondent's costs of 30 July 2003. 28. I order the transcript of evidence given before me on 29 July and 30 July be taken out and placed with the papers. Mr E Pike instructed by Gain Kent McRae appeared for the applicant. Mr J A D Roberts instructed by Vardanega Roberts appeared for the respondent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.