Chapman-Davis v State of New South Wales (No 2) [2015] NSWIC 13

Industrial Court New South Wales

Medium Neutral Citation: Chapman-Davis v State of New South Wales (No 2) [2015] NSWIC 13 Hearing dates: 14 and 28 August, 9 and 14 September 2015 (written submissions) Date of orders: 01 October 2015 Decision date: 01 October 2015 Before: Walton J, President Decision: The Court determines, declares and orders:

(1) At the time of her injury on 25 July 2011 the applicant was a 'paramedic' within the meaning and for the purposes of cl 25 of Pt 19H of Sch 6 of the Workers Compensation Act 1987.

(2) The respondents shall pay 80 per cent of the applicant's costs of these proceedings, as agreed or assessed. Catchwords: DECLARATION - orders – agreement as to final form of orders to reflect decision of the Court – declaration confined to the date of the applicant's injury

COSTS – partial agreement as to a costs order – residual contest related to early stages of proceedings and dispute as to costs itself – contest as to utility of applicant's original application – applicant filed amended application which contained second declaration – central issue for adjudication encapsulated by second declaration – applicant successful as to second declaration – first declaration refused by Court for lack of utility – third declaration abandoned – applicant sought award of costs for whole proceedings in accordance with the principle that 'costs follow the event' – respondents argued applicant should pay costs prior to amended application being filed and sought no order for costs as to disposition of contest as to costs – principles of the exercise of the Court's discretion to award costs – respondents should not be required to pay whole costs as a result of the course of proceedings prior to the amended application during which time costs were wasted – delay was occasioned by the manner in which the relief sought by the applicant was cast – further delay due to amended application replicating first and third declarations and pursuit of first declaration - circumstances of this matter necessitate a departure from the usual rule as to costs – the proceedings in relation to the first and third declarations were not a test case – respondent should also receive discount in relation to the contest as to costs itself as it was a proxy of the primary proceedings – in the circumstances it is appropriate to apportion costs rather than make a deduction by temporal segmentation – on balance respondents should pay 80 per cent of applicant's costs – issue raised as to whether both respondents or only first respondent should pay costs – both respondents active in proceedings and should pay costs – final form of orders referable to both respondents – costs ordered Legislation Cited: Industrial Relations Act 1996 (NSW) Workers Compensation Act 1987 Cases Cited: Chapman-Davis v State of New South Wales [2015] NSWIC 10 Chubb Insurance Company of Australia Limited v Moore (No 2) [2013] NSWCA 299 Cretazzo v Lombardi (1975) 13 SASR 4 CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 Earnshaw v Loy (No 2) [1959] VR 252 Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5; (2010) 182 FCR 84 Howitt v Alexander & Sons [1948] SC 154 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Stephen Bell v Commissioner of Police [2015] NSWIC 11 Tempo Services Ltd v Strezouski [2005] NSWIRComm 329 X v The Sydney Children's Hospitals Network [2013] NSWCA 320; (2013) 85 NSWLR 294 X & Y (by her Tutor X) v Pal (CA(NSW), 7 June 1991, unreported Category: Costs Parties: Lorelle Chapman-Davis (Applicant) State of New South Wales (First respondent) QBE Insurance (Australia) Limited, as an agent for NSW Self Insurance Corporation (Second respondent) Representation: Counsel: T M Ower of counsel (Applicant) P Ginters of counsel (Respondents)