LEWIS SCHINCKEL v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA [2023] SASCA 39

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (THE FULL BENCH) [2022] SAET 43 Applicant: LEWIS SCHINCKEL Counsel: MR M ROBERTS WITH MS C HARRIS - Solicitor: TINDALL GASK BENTLEY Respondent: RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA Counsel: MR B ROBERTS KC - Solicitor: SPARKE HELMORE LAWYERS Hearing Date/s: 30/03/2023 File No/s: CIV-22-004245 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. SCHINCKEL v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA (No 2) [2023] SASCA 39 Judgment of the Court of Appeal (The Honourable Justice Bleby, the Honourable Justice David and the Honourable Auxiliary Justice Mazza) 13 April 2023 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS Application for costs. On 30 March 2023, the Court granted leave to appeal from a decision of the Full Bench of the South Australian Employment Tribunal on a question of law and allowed the appeal. The appellant now seeks an order that the respondent pay his costs of the appeal. The respondent contends that there should be no order as to costs, as: • once the respondent accepted that the Full Bench had erred, it did not seek to take advantage of the error; • the parties were unable to reach a consensus as to the disposition of the appeal in circumstances where the appellant was contending for an order in this Court determining the date of injury; and • with respect to the history of the matter, the complications that arose could not be said to be the fault of one party to the exclusion of the other. Held (by the Court): -- 1 of 5 -- 1. There is not any special circumstance or other reason warranting departure from the ordinary position that costs should follow the event. 2. The respondent is to pay the appellant’s costs of the appeal, to be agreed or taxed. Return to Work Act 2014 (SA) ss 4(10), 4(11), 36, 188(1), referred to. Ruddock v Vardalis (No 2) (2001) 115 FCR 229; Schinckel v Return to Work Corporation of South Australia [2023] SASCA 32, considered. -- 2 of 5 -- SCHINCKEL v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA (No 2) [2023] SASCA 39 Court of Appeal – Civil: Bleby and David JJA and Mazza AJA 1 THE COURT: On 30 March 2023, this Court granted leave to appeal from a decision of the Full Bench of the South Australian Employment Tribunal on a question of law and allowed the appeal.1 The appellant now seeks an order that the respondent pay his costs of the appeal. The respondent contends that there should be no order as to costs. It relies on an affidavit of a solicitor for the respondent, Michael Dwyer, dated 6 April 2023. This exhibits correspondence between the parties in advance of the appeal and directed to its disposition. The correspondence includes an open offer by the respondent.2 2 The history of the matter, and the difficulty in its progression, is set out in the primary judgment. Ultimately, the question of law by which the jurisdiction of this Court was confined was expressed as follows: Was the tribunal required to determine the applicant’s deemed date of left wrist injury pursuant to s 188(1) and s 4(11) of the Return to Work Act 2014 (SA) (‘RTWA’) by applying the statutory definition of partial incapacity pursuant to ss 4(10) and 36 of the RTWA? 3 The Court answered this question in the affirmative and made the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. Order 1 made by the Full Bench of the South Australian Employment Tribunal on 5 May 2022 is set aside. 4. The matter is remitted to the Full Bench of the South Australian Employment Tribunal for the purpose of: 4.a. the entry of orders setting aside the following orders made by Gilchrist DPJ on 29 June 2021: orders 1 to 3, 5 and that part of order 7 incorporating reference to paragraph 5 of the orders of Gilchrist DPJ; and 4.b. facilitating the remittal of the matter to the trial judge to determine the remaining jurisdiction of the Tribunal on the application and to exercise that jurisdiction according to law. 5. In respect of the costs of appeal, within 7 days of the making of these orders, the parties are to file submissions of not more than 3 pages together with any evidence in respect of the issue of costs. 1 [2023] SASCA 32. 2 [2023] SASCA 32 at [73]. -- 3 of 5 -- [2023] SASCA 39 The Court 2 4 In resisting an order that the appellant should have his costs of the appeal as following the event, the respondent relied on several matters. First, as this Court noted in the primary judgment, once the respondent accepted that the Full Bench had erred, it did not seek to take advantage of the error;3 the appeal became more concerned with how best to address the error. To this end, the respondent had made an open offer to resolve the matter in the terms recited in the judgment.4 However, the Court concluded that in the circumstances of the history of the matter, that offer was not sufficient to protect the interests of the appellant. 5 Secondly, the respondent observed that the parties were unable to reach a consensus as to the disposition of the appeal in circumstances where the appellant was contending for an order in this Court determining the date of injury. That relief was not available on an appeal on a question of law.5 That much was accepted by counsel for the appellant in the course of the hearing of the appeal, at least. Nonetheless, the determination of the question of law and the grant of leave have had the effect of putting the appellant in the position where he is able to have a date of injury determined according to law. That relief was not available to him absent Orders 3 and 4 made by this Court. 6 Thirdly, the respondent pointed to the history of this matter, which is recounted in the primary judgment. The respondent submitted, fairly, that the complications that arose could not be said to be the fault of one party to the exclusion of the other. It further submitted that this history complicated its endeavours to preserve the appellant’s rights, while avoiding a remittal to a rehearing directed at hypothetical ends. That much may also be accepted. However, in the event, the respondent’s position was that leave should be refused, albeit that this position softened during the course of the oral hearing.6 The orders made by the Court were fashioned to avoid the risk of a hypothetical hearing. There remained utility in a grant of leave and this Court concluded that a grant was appropriate. 7 In Ruddock v Vardalis (No 2), Black CJ and French J summarised the principles relating to costs as follows:7 Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that:  Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order.  Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. 3 [2023] SASCA 32 at [83]. 4 [2023] SASCA 32 at [73]. 5 [2023] SASCA 32 at [62], [78]. 6 [2023] SASCA 32 at [69]. 7 (2001) 115 FCR 229 at [11]. -- 4 of 5 -- [2023] SASCA 39 The Court 3  A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. See Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136; approved by the Full Court in Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 17 FCR 211 at 222. 8 In the present matter, there was considerable positioning by the parties, prior to the hearing of the appeal, having regard to their respective cases and the historical difficulties attending upon the matter.8 It may be accepted that the respondent did not attempt to take undue advantage of the errors on the part of the Full Bench. However, in the result, the Court granted leave to appeal on the question of law over the respondent’s opposition, answered the question in the appellant’s favour and fashioned orders to give effect to that answer. The respondent’s open offer was unable to achieve that conclusion. 9 The appellant did not (and could not have) achieved a finding in this Court as to the date of injury. However, he achieved the outcome necessary for the date of injury to be determined according to law. 10 In those circumstances, we do not consider that there is any special circumstance or other reason warranting departure from the ordinary position that costs should follow the event. We order that the respondent is to pay the appellant’s costs of the appeal, to be agreed or taxed. 8 Affidavit of Michael Dwyer, 6 April 2023. -- 5 of 5 --