Death v Workers Compensation (Dust Diseases) Authority (No 2) [2020] NSWDC 104

District Court New South Wales

Medium Neutral Citation: Death v Workers Compensation (Dust Diseases) Authority (No 2) [2020] NSWDC 104 Hearing dates: 16 March 2020 Date of orders: 17 March 2020 Decision date: 17 March 2020 Jurisdiction: Civil Before: Neilson DCJ Decision: Application for costs dismissed. Catchwords: Costs in the Compensation Jurisdiction of the District Court – Successful defendant must prove on the balance of probabilities that the application to this Court was frivolous, vexatious, fraudulent or brought without proper justification – Defendant relies on "without proper justification" – Court not so persuaded where question of statutory interpretation was res integra. Legislation Cited: Compensation Court Act 1984 District Court Act 1973 Workers' Compensation (Dust Diseases) Act 1942 Workplace Injury Management and Workers' Compensation Act 1998 Cases Cited: Miles v SASTC [2016] NSWDC 56; [2017] NSWCA 86; [2018] HCA 55 West v The Workers' Compensation (Dust Diseases) Board (1999) 18 NSWCCR 60 Category: Costs Parties: Appellant Elizabeth Ann Death

Respondent Workers Compensation (Dust Diseases) Authority Representation: Appellant J.L. Sharpe & B. Williams

Respondent B. Epstein File Number(s): RJ00319/19 Publication restriction: Nil.

Judgment 1. HIS HONOUR: This is an application for costs made by a successful defendant. In West v The Workers' Compensation (Dust Diseases) Board (1999) 18 NSWCCR 60 commencing at [21] I considered the question of costs in an appeal under the Workers' Compensation (Dust Diseases) Act 1942. I pointed out that the power to award costs in appeals under s 8I of that Act was granted at that time by the Compensation Court Act 1984, s 18. However, s 18 was subject to s 112 of the Workplace Injury Management and Workers' Compensation Act 1998. 2. The same obtains at the current time under s 142K of the District Court Act 1973. Section 112 of the Workplace Injury Management and Workers' Compensation Act extends to any proceedings in the Compensation Jurisdiction of the District Court, not merely to proceedings under the 1998 Act. 3. Therefore, the costs regime to which I adverted in West still obtains. The defendant must establish on the balance of probabilities that the application to this Court was frivolous, vexatious, fraudulent or made without proper justification. The defendant relies on the formulation "without proper justification". The application was hardly frivolous. The plaintiff is suffering from epithelial mesothelioma and mesothelioma is a recognised dust disease. That condition was diagnosed on 15 March 2019 and as I understand it, the plaintiff's prognosis is extremely poor. The costs that she has incurred in seeking to treat the condition are significant. In the circumstances where there was an arguable case that she was entitled to compensation under the Dust Act, it appears to me that it would be inappropriate to describe the application as frivolous. The application is certainly not vexatious. To be vexatious the claim must be brought at least twice. The claim is certainly not fraudulent. 4. The question is, was the application made without proper justification? The question here involved was one of statutory interpretation. Minds differ. Minds can differ on the proper approach to statutory interpretation in any case where the subject arises; for example in the Miles v SASTC [2016] NSWDC 56; [2017] NSWCA 86; [2018] HCA 55. I determined a question of statutory interpretation, my decision was reversed by a majority in the Court of Appeal but my ultimate decision was restored by a unanimous judgment of five judges of the High Court of Australia. The question in that case might be thought to have been unarguable, but clearly the argument won in the Court of Appeal. 5. In the circumstances where the matter was without any prior decision, I cannot accept the submission that the matter was brought without proper justification. If the matter were not res integra, then I should have found that the case was without proper justification, but now the matter is the subject of authority, if the same argument were again raised it might be appropriate to consider the matter as being brought without proper justification. However, in the present circumstances, I am not so persuaded. 6. The application for costs is dismissed.