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[2000] SAWCT 126
General information, not legal advice.
Workers Compensation Tribunal (SA)
2000-08-18
Original judgment source is linked above.
1 This is an application for costs following my decision published on 2 June 2000 wherein I confirmed the Corporation's decision to suspend the worker's weekly payments of compensation upon him ceasing to reside in Australia and in rejecting his subsequent claim for compensation. The worker seeks costs. The Corporation opposes that application and submits that pursuant to s 95(3) of the Act that the worker acted unreasonably, frivolously or vexatiously in pursuing his claim such that in all the circumstances the appropriate order is that the worker pay its costs.
2 Having reviewed my findings I am clearly satisfied that the worker acted unreasonably in relation to the conduct of these proceedings.
"The worker commenced his evidence with a lie about his date of birth. I do not think that the quality of his evidence improved significantly from that point on. Much of what he said was confused and inconsistent. Some of his evidence was completely unbelievable. Indeed, at times, I thought he was being downright dishonest."
4 I did not make these observations lightly. The worker deceived medical examiners, his solicitors, and this Tribunal about matters that were highly relevant to his case. Amongst other things, he pretended to be a man 12 years his junior. This is but one of a number of matters in respect of which I did not believe the worker.
5 As I noted in Disotto v WorkCover JD92/1999, s 95(3) contemplates a scale of degrees of unreasonableness. I said "at one end of the scale there might be cause to make an award of costs in favour of the worker but to reduce the amount payable. At the other end of the scale it might be appropriate to make an award of costs in favour of the Corporation against the worker".
6 In applying this scale I think it has to be recognised that an order that a worker pay all of the compensating authority's costs has to be reserved for the most extreme case.
7 Here there were two issues before me. In respect of the first concerning Corporation's decision to suspend the worker's weekly payments of compensation upon him ceasing to reside in Australia the worker was in my view being dishonest in suggesting that he had permission to leave Australia and in suggesting that he continued residence in the Philippines was beyond his control. In relation to this aspect of the case the worker's conduct warrants the full measure of the sanctions provided for by s 95(3).
8 The position in respect of the second issue concerning the Corporation's rejection of his subsequent claim for compensation is not so clear. The worker told some lies in respect of some relevant matters but on other matters I cannot put it as high as that. Whilst I did not believe him I cannot exclude the possibility that some of what he said may have been true. As I indicated in my reasons, I was left with "a profound lack of confidence in the worker's credibility". As a result I could not accept what he said. The degree of the worker's unreasonableness on this issue is at the upper end of the scale, but not at its outer limit.
9 I also think it appropriate to factor the fact that some of the attendances before me could have been avoided had the Corporation acted more diligently in deciding whether or not to prosecute the worker.
10 In all the circumstances I think that the appropriate order for costs is that the worker pay 75 per cent of the Corporation's costs of this judicial determination to be agreed or taxed and I order accordingly.
Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.
Chapman
Workcover/Royal & Sun Alliance