PARTIES:	WORMALD INTERNATIONAL (AUST) PTY LTD

	AND:

	BARRY LESLIE AHERNE

TITLE OF COURT:	Supreme Court of the Northern Territory of Australia

JURISDICTION:	Supreme Court of the Northern Territory of Australia exercising Territory jurisdiction

FILE NO:	Nos. 28 of 1994; 48 of 1994; 65 of 1994

DELIVERED:	23 June 1995

HEARING DATES:	22 May 1995

JUDGMENT OF:	MILDREN J 

CATCHWORDS:

Appeal and new trial - Appeal - General principles - In general and right of appeal - Workers Compensation - Appeal from Work Health Court to Supreme Court - Questions of law only - No power to remit - Power to “vary” decision includes power to substitute new orders - Work Health Act 1994 (NT), s.116 -
Practice - NT - Workers Compensation - non-compliance with orders of Work Health Court - contumelious interest on arrears and punitive damages -
Costs - General rule - costs follow the event - Whether to depart from general rule - both parties partly successful - Work Health Act 1994 (NT) s116(2), Supreme Court Rules Order 63 -

Legislation

Work Health Act 1994 (NT) s.109, 110 and 116
Supreme Court Rules, Order 63.

Cases

Holmes v Angwin (1906) 4 CLR 297 - considered.
Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192 - considered.
Barbaro v Leighton Contractors Pty Ltd (1979) 23 ACTR 25 - applied. 
ANZ Executors and Trustees Pty Ltd v Nader Jones (1986) 2 NTJ 904 - applied. 
Somerville Community Services v Lovatt (1988) 91 FLR 310 - applied. 
Meyering v Northern Territory of Australia (1987) 47 NTR 21 - applied. 
Wilson v Lowery (1993) 110 FLR 142 - mentioned. 
Rabuntja v Minister for Education (1982-3) 19 NTR 5 - mentioned. 
Stepney Borough Council v Joffe (1949) 1 KB 599 - considered. 
Scott Pools Pty Ltd v Salisbury Corporation (1979) 22 SASR 406 - applied. 
The Queen v Industrial Court; Ex parte Mount Gunson Mines Pty Ltd (1982) 30 SASR 504 - applied. 
Douglass v Gillman (1990) 19 NSWLR 570 - applied. 
Fitzgerald v Pattiselanno (unreported decision of Kearney J No. 34 of 1994) - applied. 
Ritter v Godfrey (1902) 2 KB 47 - followed.
Jelbarts Pty Ltd v McDonald (1919) VLR 478 - followed. 
O'Sullivan v Morton (1911) VLR 249 - considered. 
Greeves v Freshwater (1938) 55 WN (NSW) 113 - considered. 
Nixon v Howes (1907) 24 WN (NSW) 156 - considered. 
Alexander v McDonald (1923) 40 WN (NSW) 158 - considered. 
Sheehey v Mitchell Crane Hire Pty Ltd (1991) 102 ACTR 1 - not followed. 

REPRESENTATION:

Counsel:
	Appellant:	De Silva Hebron
	Respondent:	Ward Keller

Solicitor:
	Appellant:	B. Cassells	
	Respondent:	J. Clift	

JUDGEMENT CATEGORY:	CAT  B
JUDGEMENT ID NUMBER:	MIL95006
NUMBER OF PAGES:	11

MIL95006

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

										No 28 of 1994
										      (9320199)
										No 48 of 1994
										      (9405638)
										No 65 of 1994
										      (9320199)

						IN THE MATTER of an appeal under the Work Health Act

						BETWEEN:

						WORMALD INTERNATIONAL (AUST) PTY LTD
										Appellant
						
						AND:

						BARRY LESLIE AHERNE
										 Respondent

CORAM:   MILDREN J

	REASONS FOR DECISION
	(Delivered 23 June 1995)

On 21 June 1994, I published my reasons for judgment in these Appeals.  Appeals numbered 28 and 65 of 1994, were dismissed, and Appeal Number 48 of 1994 was allowed, and certain orders made by the Work Health Court were set aside.  Two matters were left unresolved.  The first of these matters related to what orders should be made in relation to Appeal 48 of 1994.  The second matter related to the question of costs.    Both of these matters were adjourned to a date to be fixed.  For various reasons, these matters did not come on for further hearing until 22 May 1995.  At that time I made certain    orders as to costs, and I indicated that I would publish my reasons for those orders at a  later date.  I also heard some brief submissions as to the appropriate orders to be made in respect of Appeal No.48 of 1994, and granted leave to the parties to supplement their oral submissions with written submissions. These submissions now having been received, I now publish my reasons for decision in respect of those matters. 

Appeal No. 48 of 1994

This appeal concerned orders made by the Work Health Court for interest and punitive damages. For the reasons given by me previously, those orders were set aside. The question which remained to be resolved was:

1. 	whether or not I should now make such orders as the Court below should have made;

2. 	whether the matter should be remitted back to the Work Health Court; or

3. 	whether no further order should be made. 

The primary submission of Mr Cassells, counsel for the appellant, was that I had no   power to remit the matter to the Work Health Court, and that I ought to make no further orders. Mr Clift, counsel for the respondent, also submitted that I had no power to remit. His primary submission was that I ought reach my own conclusions as to what orders should have been made by the court below and substitute those orders accordingly. 

Section 116 of the Work Health Act provides as follows:

"116. APPEALS
(1)	A party to a proceeding before the Court who is aggrieved by a 
decision or determination of the Court may appeal against the decision or determination on a question of law to the Supreme Court within the time and in the manner prescribed by the Rules of the Supreme Court.

(2)	The Supreme Court shall decide the matter of appeal under this 
section and may either dismiss the appeal or reverse or vary the decision or determination appealed against and may make such order as to the costs of the appeal or the proceeding before the Court, or both, as it thinks fit." 
I am satisfied that I have no power to remit this matter.   It is well established that whenever a new Court is established, there is no appeal from it unless it is conferred by Statute: Holmes v Angwin (1906) 4 CLR 297 at 304, per Griffiths CJ.  It is a necessary corollary of that principle that both the nature of the appeal and the powers of the Court    in disposing of the appeal must be found in the wording of the Statute: Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192 at 202 per Windeyer J. As s.116(2) does not expressly confer a power to remit, the power does not exist: Barbaro v Leighton Contractors Pty Ltd (1979) 23 ACTR 25 at 29 per Blackburn CJ;   ANZ Executors and Trustees Pty Ltd v Nader Jones (1986) 2 NTJ 904 at 933, per Asche J   (as he was then); Somerville Community Services v Lovatt (1988) 91 FLR 310 at 311, per Asche CJ; Meyering v Northern Territory of Australia (1987) 47 NTR 21 at 23 per Muirhead AJ. 

An appeal from the Work Health Court to this Court is limited to questions of law. What are questions of law have been authoritatively stated by the Court of Appeal in Wilson v Lowery (1993) 110 FLR 142 at 145-147 and need not be repeated.  However, the precise powers of this Court, pursuant to s.116(2) of the Work Health Act, if the appeal     succeeds, do not appear to have been previously discussed. Section 116(2) provides that the Court "may either dismiss the appeal or reverse or vary the decision or determination appealed against".  The section does not go on to say "and may give such judgment as ought to have been given in the first instance ...":     c.f. s.37 of the Judiciary Act 1903 (Cth) as discussed in Da Costa, supra; nor is it provided that the court may substitute its own determination for that determination ...":   c.f. s.86 of the Land Acquisition Act (NT) as discussed in Meyering v Northern Territory of Australia, supra;   nor "make such order as it sees fit": c.f. s.66(7) of the Education Act, 1979 (NT), as discussed in Rabuntja v Minister for Education (1982-3) 19 NTR 5.   Nevertheless, the words of s.116(2) to which I have referred, have been judicially construed so as to give an appellate court "the fullest power to deal with the appeal from every point of view": see Stepney Borough Council v Joffe [1949] 1 KB 599 at 603, 604.   Although in that case the appeal was not restricted to a question of law, I see no reason why the language of the section should be read down. The power to "vary" the decision appealed from gives to this Court, if necessary, the  power to discharge the orders made below and to substitute for those orders, the orders which should have made:  see Scott Pools Pty Ltd v Salisbury Corporation (1979) 22 SASR 406 at 412 per Jacobs J; The Queen v Industrial Court; Ex parte Mount Gunson Mines Pty Ltd (1982) 30 SASR 504 at 512-13 (Full Court); Douglass v Gillman (1990) 19 NSWLR 570.  As there is no power to remit, the power must include, in a proper case, a power to make such findings on the evidence which ought to have been made and a power to exercise such discretions as ought to have been exercised in order to properly decide   the appeal. 

On the evidence before the Work Health Court, it was not until the appellant received the respondent's letter of 15 February 1994 that the respondent was in a position to calculate the amount of the weekly payments ordered to be paid by Mr Hannan SM on 18 January 1994. I reject as unsound a submission made by the respondent that the appellant had a duty to ascertain the amount of the respondent's T.P.I. pension.  Mr Hannan's order was that the worker was required to bring his pension into account and this clearly implied   that it was the respondent's obligation to advise the appellant of the amount of his   pension.  Further, the uncontested evidence before Mr Gray CSM was that thereafter the appellant made no effort to comply with the order.    Mr Gray CSM found, in effect, that the order of Mr Hannan SM had not been complied with at all, and that this failure was contumelious.    It is not entirely clear when the appellant received the respondent's letter of 15 February but I think it is reasonable to infer that the appellant was in a position to comply with the order within a few days thereafter.    I consider that the order which should properly have been made by Mr Gray CSM pursuant to s.109(2) of the Act is for  the appellant to pay interest on the amount of all outstanding arrears of interim compensation due as at the 14 March 1994, (the date in Mr Gray CSM's order) calculated from the date such arrears fell due, being a date not earlier than 18 February 1994, until payment of such arrears at the appropriate rate.    As to the rate, I consider, having regard to s.89 of the Act, that the appropriate rate was 20 per centum per annum. Thus, all payments of interim compensation in respect of the period between 7 October 1993 and   18 February 1994 would be totalled, and that total sum would bear interest at the rate of 20% per annum from 18 February until payment; any weekly payments of interim compensation falling due between 18 February 1994 and 14 March 1994 would bear interest at the same rate from the date those payments severally fell due, until payment. Interim payments falling due after the date of that order could not be ordered to be the subject of interest at that stage as they had not yet fallen due, and therefore were not  within the purview of s.109(2). 

As to punitive damages, I consider that the appropriate order which Mr Gray CSM ought  to have made, having regard to his findings, was that the appellant pay the respondent by way of punitive damages that sum which represents 100% of the interest so ordered to be paid. 

As to the orders which in my opinion Mr Trigg SM should have made, it was not open to him, in my opinion, to order interest or punitive damages to be paid on or in respect of arrears which had already been the subject of an order by Mr Gray CSM. Section 109 of the Act does not empower the Court to order interest on interest. Nor would it have been open to Mr Trigg SM to alter the rate fixed by Mr Gray CSM in respect of these arrears.  At the time of the hearing of the application before Mr Trigg SM on 18 March 1994, the only arrears in question were those which had fallen due between 14 March 1994 and 18 March 1994.   Seventh October 1993, the date arrears of interim compensation commenced, was a Thursday; 18 January 1994 was a Tuesday, 14 March 1994 was a Monday and 18 March 1994 was as Friday.  It is inevitable that at least one further payment fell due between the period 14 to 18 March. Having regard to the form of Mr Hannan's original order of 18 January 1994, I consider that all payments ordered to be   paid after 18 January 1994 fell on a Tuesday, and that therefore the payment in question fell due on Tuesday 15 March 1994. I consider therefore that the only order which Mr Trigg SM could have made is an order that the appellant pay interest on the payment of interim compensation which fell due on 15 March 1994 at the rate of 25 per centum per annum calculated from 15 March 1994 until payment. As to punitive damages, I consider that the order which Mr Trigg SM ought properly to have made is an order that the appellant pay that sum by way of punitive damages which represents 100% of the interest ordered to be so paid in respect of the payment which fell due on 15 March 1994. There will therefore be orders as follows:

In substitution for the orders of Mr Gray CSM dated 14 March 1994:

1. 	That the appellant pay to the respondent interest on all outstanding amounts of interim compensation due as at 14 March 1994 pursuant to the order of Mr   Hannan SM dated 18 January 1994 calculated from the date such payments of compensation fell due (being a date not earlier than 18 February 1994) until payment of such compensation, at the rate of twenty per centum per annum.

2. 	That the appellant pay to the respondent by way of punitive damages that sum which is equal to one hundred per centum of the interest ordered to be paid by  order 1 above.

In substitution for the orders of Mr Trigg SM dated 18 March 1994

3. 	That the appellant pay to the respondent interest on the amount of interim compensation due on 15 March 1994 pursuant to the order of Mr Hannan SM  dated 18 January 1994 calculated from 15 March 1994 until payment of such compensation, at the rate of twenty five per centum per annum.

4. 	That the appellant pay to the respondent by way of punitive damages that sum which is equal to one hundred per centum of the interest ordered to be paid by  order 3 above. 

COSTS
On 22 May 1995 I made the following orders as to costs:

1. 	That the appellant pay the respondent's costs of and incidental to Appeal No. 28 of 1994, to be taxed; and I fixed one day's hearing time in respect of this appeal.

2. 	That the respondent pay 50% of the appellant's costs of and incidental to appeal  No. 48 of 1994, to be taxed; and I fixed one half day's hearing time in respect of that appeal.
3. 	That the appellant pay the respondent's costs of and incidental to appeal No.65 of 1994 to be taxed; and I ordered that no hearing time be allowed in respect of this
appeal. 

In order to explain these orders it is necessary to briefly set out some of the history of these appeals. 

Appeal No.28 of 1994
This was an appeal from the order of Mr Hannan SM on the grounds that the respondent had not established an arguable case that his condition was due to an injury arising out of the course of his employment, or that he would suffer hardship if an interim award was   not made. The hearing of all three appeals took two full days on 5 and 6 May, and the morning of 11 May 1994.  Approximately half of that time was taken up by this Appeal No. 28. After considering counsels' submissions I dismissed the appeal. 

Appeal No.65 of 1994
This was an appeal against the decision of Mr Trigg SM who refused to stay the orders of Mr Gray CSM and his own orders pending an appeal to this Court. 

This appeal was abandoned at the hearing and instead Mr Waters sought a stay of those orders pending my determination of the appeals, which I granted. Accordingly, at the conclusion of the hearing I dismissed this appeal. 

This appeal occupied no time of the court, though no doubt the respondent would have incurred some expense by reason of his solicitors and/or counsel having to consider and prepare for the matter. 

Appeal No. 48 of 1994
The time devoted to this appeal overall occupied approximately one day. Although the appellant succeeded, the appellant failed to make out a number of grounds of its appeal. I estimated that the time occupied by the Court dealing with the grounds which failed occupied about half the hearing time relating to this appeal.    In addition, the appellant filed an Amended Notice of Appeal on 7 April 1994 as well as a Further Amended Notice of Appeal at the original hearing. None of the grounds in any of the notices of appeal succeeded. The only grounds upon which the appellant did succeed were fresh grounds raised orally, and without objection, at the hearing. 

The Court's Power to Award Costs

An award of costs in the Work Health Court is at the discretion of the appeal judge by virtue of section 116(2) of the Work Health Act. Furthermore Order 63 of the Supreme Court Rules provides an unfettered discretion in the judge to award costs in any proceedings. However, the same well established principles as guide the exercise of a judge's discretion in civil litigation generally also apply in these proceedings. 

The general rule in both originating and appellate proceedings is that costs follow the event: see Fitzgerald v Pattiselanno (unreported decision of Kearney J No. 34 of 1994); Ritter v Godfrey [1920] 2 KB 47; Jelbarts Pty Ltd v McDonald [1919] VLR 478. Clearly the purpose of such an award is to compensate the successful party for the expense of the litigation. Accordingly, there must be exceptional circumstances to justify a judge in depriving the successful party of his costs:    see Lord Atkin's comments in Ritter v Godfrey (supra at page 60). 

Where proceedings involve claims and cross-claims it is often appropriate that a partial order as to costs should be made in favour of the party who, on balance, succeeded more than the other.   It may also be a proper exercise of the discretion to make an order in favour of each party for the issue or issues on which that party succeeded:   see O'Sullivan v Morton (1911) VLR 249; Greeves v Freshwater (1938) 55 WN (NSW) 113. 

Similar principles also apply with respect to actions and cross-actions where both parties succeed on one or more grounds: Nixon v Howes (1907) 24 WN (NSW) 156; Alexander v McDonald (1923) 40 WN (NSW) 158. 

The Parties' Submissions

I now turn to consider the present case. First, I did not disturb any orders as to costs     made by the learned magistrates in the court below. The only matter where I might have disturbed those orders related to Appeal 48 of 1994.     In my opinion the appellant, if it was only concerned with the forms of those orders, could have gone back to the Work Health Court to clarify or rectify those orders, so that they were properly expressed as to rate and period. It is clear that this was an after-thought raised during the hearing of the appeal for the first time. 

Mr Cassells submitted that I should make no order as to costs in respect of these appeals. He argued on general principles that as both parties succeeded in part it was appropriate that each bear its own costs. 

Mr Clift argued that prima facie costs should follow the event in respect of these appeals. Accordingly since the respondents won 2 out of the 3 appeals, costs should be awarded on a two thirds ratio in favour of the respondent. 

I did not consider either course to be an appropriate exercise of my discretion as to costs   in view of the time spent in arguing the various appeals, and the relative success or    failure of both parties in respect of each appeal. 

Mr Clift also relied on the decision of Higgins J in Sheehey v Mitchell Crane Hire Pty    Ltd (1991) 102 ACTR 1. This decision involved an appeal by an employee under s26 of the Workmen's Compensation Act 1951 (ACT) against a magistrate's decision under a similar legislative scheme to that created by the Work Health Act. His Honour found that the statutory scheme implied a real justification for applying a different rule for the awarding of costs where an employee has been wholly or partially unsuccessful in  bringing or defending proceedings in the lower court to establish his right to  compensation. 

After considering several authorities, His Honour held that it was in the public interest   that the representation of employees in workmen's compensation proceedings not be discouraged, and that accordingly, costs should not be awarded against a claimant worker unless the application was frivolous, vexatious, fraudulent, or made without proper justification. 

It is clear from that judgement at page 13, however, that His Honour drew a distinction between the situation where an employee is either wholly or partly unsuccessful before a lower court, as opposed to an appeal court. In His Honour's opinion, if an employee fails in the lower court and is also unsuccessful on appeal, the usual rules apply. 

In considering whether to award the appellant employee his costs of appeal Higgins J found that as the employee had almost entirely succeeded the prima facie rule should  apply and that an order for costs be made in his favour. However, His Honour observed that this was a case in which important issues of principle potentially affecting many claims fell to be decided.  Therefore, had the result been otherwise, this was the type of case in which a departure in whole or in part from the prima facie rule that an   unsuccessful appellant should pay the costs of the appeal would have been justified. 

I was satisfied, despite Mr Clift's submissions to the contrary, that no such issues of general importance fell to be decided in appeal No. 48 of 1994.   The matters raised by   the parties were for the most part routine questions of statutory construction and afforded no basis for departure from the general principles as to costs. In any event, I declined to follow that decision, to the extent that it is relevant to any question of costs in this appeal. In my opinion, in this Territory, there is no basis for departure from the usual rules as to costs on the grounds discussed by Higgins J.  Section 110 of the Work Health Act provides, in my opinion, the only basis for any limited departure from the usual rules. 

I did not consider that there was any reason for departing from the general rules so as to deprive the respondent of his costs with respect to Appeals No. 28 and 65 of 1994. 

Having regard to all the circumstances, so far as Appeal No. 48 of 1994 is concerned, I considered that the proper exercise of my discretion was to deprive the appellant of 50%  of its costs, and to limit the amount of court time to one half day. 

It is usually preferable to make an award of costs in favour of one party only in order to reflect the relative success of each. However, I did not consider that I had enough information before me to arrive at a just result by adopting that approach. 

As the respondent has in the main been successful on these further matters the appellant is to pay the respondents' costs of and incidental to the hearing on 22 May 1995 and of the respondent's written submissions. 

Orders accordingly. 

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