Compensation Court of New South Wales CITATION : Moultrie v Sutherland District Trade Union Club Ltd [2001] NSWCC 67 revised - 5/09/2001 Jan Moultrie PARTIES : v Sutherland District Trade Union Club Ltd trading as THE LOBSTER POT HOTEL MOTEL NORTH HAVEN MATTER NUMBER(S) : 12655 of 1997 JUDGMENT OF: Geraghty J at 1 Miscellaneous Matters :- Without proper justification CATCHWORDS: Costs LEGISLATION CITED: CASES CITED: Weereratne v Railway Services Authority 1999 18 WCCR 135 DATES OF HEARING: 26/02/2001, 27/02/2001, 07/03/2001 EX TEMPORE JUDGMENT DATE : 03/14/2001 FOR APPLICANT: Mr R Goodridge for Stacks - The Law Firm - previous solicitors, Mr B McManamey LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr Stuart - solicitor for McCulloch & Buggy JUDGMENT: 1. In the application of Jan Moultrie, the respondent claims that the applicant is not entitled to her costs incurred before she amended her application to include the second injury of 28 March 1995, and the further injury of 1 January 1996, (the amendment being made on 15 October 1998, though I was informed from the Bar table that at the hearing before Walker J. in Port Macquarie on 30 July 1998, the applicant, through her counsel, did inform the respondent's counsel that an amendment would be made to include the second injury). The respondent also submitted that the applicant should pay the costs of the respondent because the application was brought at least without proper justification, if not fraudulently, and that the provisions of s 112(4) of the Workplace Injury Management Act should be applied. I was referred to the decision of Curtis J in Weereratne v Railway Services Authority 1999 18 WCCR 135. 2. The respondent through its solicitor, Mr Stuart, quite properly conceded that maybe there were some costs incurred before the amendment had been made and to which the applicant might be entitled since issues, such as incapacity and the extent of injury, might have been canvassed before that time and they became relevant in final hearing. 3. Mr Goodridge, who acted on behalf of the applicant herself, briefly submitted that all issues had been in dispute from the beginning, that an answer had been filed on 16 September 1997 putting into issue the injury, the incapacity, and all other matters, except employment. 4. Mr McManamey, who appeared on behalf of Stacks Solicitors (who acted on behalf of Mrs Moultrie before the solicitors on the record took over the carriage of the matter), enhanced Mr Goodridge's submission by saying that in any event, the compensation payments had been made from November 1997, and he referred me to the case of Jackson in which he told me Dignam J expressed the conclusion that in such a matter the respondent must prove its case beyond reasonable doubt. I was not given a reference to this case. He said that in any event, the claim had been brought with proper justification, namely with a genuine, real justification, which, he said, was not the same as my finding that, on the balance of probability, I was satisfied the injury had occurred in the street on 28 March, and not satisfied that it had occurred in the motel. 5. The application which was originally filed on 4 June 1997, pleaded but one incident, that was an incident which occurred in the motel on 28 March 1995. An answer was filed to that claim on 16 September 1997, placing in issue the fact of injury, as well as the other usual matters, such as incapacity. 6. An amended application was filed on 31 December 1997 but it pleaded only the initial incident. 7. However, on 15 October 1998 a further amended application pleaded not only the original incident in the motel on 28 March, but a further incident in the street on the same day and in which it was alleged that the applicant had fallen in the street injuring her back and left leg. 8. In giving her evidence, the applicant claimed that she had been dramatically and seriously injured in a fall down stairs at the motel on 28 March, a fall in which she not only fractured her left leg but in which she injured her back and neck, and sustained eventually, she alleged, some brain damage. She also stated in her evidence that on that very same day, after driving her car to the liquor store, she had fallen in the street, and that she had not sustained any additional injuries, though in her application for determination she alleged that she had sustained an injury to her back and left leg in the fall in the street. 9. I found that on balance, it was the second incident which had caused the injury she complained of, namely, to her leg (though I found she had not injured her back in that incident), and therefore I found, at least by implication, that the incident at the motel had not occurred. She was so dramatic in her description of that first incident and its consequences that I could not but have found, (having found that the second incident was the one in which she had been injured) that the first incident was a fabrication. 10. The consequences of my judgment are that I rejected Moultrie's evidence in respect of the initial incident on the stairs. I found that she had constructed this evidence and, since on that very day the hospital recorded a history of a fall on stairs, by implication I found that she had constructed this evidence from the beginning. I note that she was paid compensation to November 1997, (a long time after March 1995) so that this payment must surely have been made on the basis of the evidence which she had constructed, since that was the story which she provided. 11. It seems to me an inevitable conclusion that part of the claim was brought without proper justification. There were probably some costs incurred because of the applicant's construction of evidence, but it seems to me that these costs would be limited, and probably difficult for any taxing officer to unravel. However, if, for example, investigations were undertaken by the respondent to inquire into the alleged incident at the motel, those costs were unnecessary and superfluous, and incurred by the fact that the applicant had constructed a story of injury at the motel which I did not accept. 12. The evidence of Mr Nicks and Mr Patrick became necessary only because the applicant was claiming to have been injured elsewhere than in the street. 13. Mr McManamey submitted from the Bar table that when he had been in the matter, he would have called Mr Nicks and Mr Patrick in any event. He did not need to make that decision. On the basis of the findings I made, their evidence would have been superfluous - if the applicant had not pleaded the motel incident, since their evidence went to the fact that she was injured in the street and, therefore, by implication, not in the motel. 14. I know of no other evidence or preparatory legal work which might have been unnecessary, though it might have been unnecessary to issue some subpoenas. The work involved will need to be argued, and I suspect will probably be argued at length before a taxing officer. In any event, it does seem that some of the costs incurred by the respondent would have been unnecessary but for the constructed evidence of the applicant. 15. In view of my findings that I was satisfied the applicant was injured in one place, and not in the other, and that it was at the motel that I found she was not injured, then part of her claim was brought without proper justification. Now, I know this will seriously complicate the matter of costs, but I cannot see any other way of resolving the question. 16. I therefore order, that the applicant is to pay the respondent's costs rendered unnecessary by my findings, because the claim in respect to the first incident was brought without proper justification. 17. Secondly, I find the respondent is not liable to pay the applicant's costs in respect to legal work rendered superfluous by my findings. 18. Otherwise, I order the respondent pay the applicant's costs, including an extra conference of counsel which I assess at $250. 19. As to today's costs, it seems that the proper order is that each party pay its own costs. Mr R I Goodridge instructed by Firths. appeared for the applicant Mr B G McMANAMEY instructed by Stacks the Law Firm appeared for Stacks Mr D Stuart (solicitor from McCulloch & Buggy) 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. 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