Rothwell v BAE Systems [2011] NTMC 39

Rothwell v BAE Systems [2011] NTMC 39 - NTMC 2011 case summary — Zoe

Parties

Applicant/Plaintiff:

# Rothwell

Respondent/Defendant:

BAE Systems \[2011\] NTMC 39

Cases Cited (15)

Judgment ID number: [2011] NTMC 039

In addition to the rehabilitation purpose generally of the Act and the specific rehabilitation purpose identified in ss75(1) in Division 4 of Part V of the Act, we must take into account the fact that it is beneficial legislation. Mildren J said of this Act in Thompson v GEMCO Ltd [2003] NTCA 05 at page 8.9 as follows:

"There is no doubt that this legislation is beneficial legislation, and therefore the provisions of the Act must be beneficially construed so as to provide the most complete remedy of the situation with which they are intended to deal and which are consistent with the actual language employed and to which its words are fairly open(emphasis added)… This approach is not confined to cases of ambiguity; see Woodroffe v NT of A [2000] NTCA 8; (2000) 10 NTLR 52 at 62. There is also the principle of statutory interpretation which deals with the absurdity of consequences of the literal interpretation. This rule is particularly significant bearing in mind the purposive approach which the Courts are now obliged to adopt (emphasis added)."

Mildren J went on to quote with approval from Tickle Industries Pty Ltd v Hann & Richardson [1974] HCA 5; (1974) 2 ALR 281 where at 289 Barwick CJ said:

It was not disputed by Mr Rothwell at the hearing that the entitlement to interest payable on past weekly benefits pursuant to s.89 of the Act arises only where a Worker first has the entitlement to be paid those weekly benefits - see Passmore v Plewright [1997] NTCA 140; [1997] 118 NTR 28. Such an entitlement would become established where an Employer has accepted a Worker's claim, or where it is deemed to have accepted the claim, or where it has failed validly to dispute the claim, or where the Court has ordered such compensation is payable, or where an Employer subsequently accepts the claim at a later time, after having first validly disputed it.

The Employer contends that the delay was not unreasonable, on 2 grounds. The first ground was that it had a defence based on the concept of "disease" under the Act, namely the interpretation of subsections 4(6A) and (8) of the Act. Although the Employer conceded its awareness of High Court of Australia Decisions which establish that the occurrence of a physical injury in the course of employment eliminates the need for consideration of the concept of underlying disease, it submitted the position might be, or might have been, different in the Northern Territory. It said this was so because there had been no judicial consideration of subsections 4(6A) and (8) in the Act in this context until June 2011, leaving the issue open to argument at least until then - see Keating v Global Insulation Contractors [2011] NTMC 02 per Morris SM. However, the Employer did not submit any analysis of subsections 4(6A) and (8) which might have distinguished the position in the NT from the interstate positions considered by the High Court.

Punitive damages are also known as exemplary damages. They are awarded in tort quite distinctly from compensatory damages. In Lamb v Cotogno [1987] HCA 47; (1987) 74 ALR 188 at pages 191-192 the High Court said: "Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like. Exemplary damages, on the other hand, go beyond compensation and are awarded "as a punishment to the guilty, to deter from any such proceeding for the future and as to proof of the detestation of the jury to the action itself " ".

The High Court of Australia considered this question in the context of different but not broader legislation, in the matter of Grincelis v House [2000] HCA 42; [2000] 201 CLR 321. There the severely injured plaintiff Mr Andrew Grincelis was awarded an amount for past gratuitous personal services provided by his parents. The majority of the High court was satisfied that interest should be awarded on that sum, even though it had never in fact been expended and would never have to be. It allowed a commercial rate of interest on the amount, just as it had for past actual expenditures - paragraph 14.

The law establishes that costs will normally be allowed only on the standard basis, unless there is something warranting a departure from this basis. Examples of this include "a wilful disregard of the facts or clearly established law"- see Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd ([1986] [1988] FCA 202; 81 ALR 397 at 400-401. In Botany Municipal Council v Secretary Department of Arts, Sport, Environment, Tourism And Territories (1992) 34 FCR 412 at 415 Gummow J said that a costs order of this sort was not limited by the relevant Federal Court legislation to the case of "an ethically or morally delinquent party".

In J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA Branch) (No 2) [1993] FCA 70; (1993) 46 IR 301 at 303 French J (as he then was) said it was not necessary to find "… a collateral purpose or some species of fraud be established. It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen as a hopeless case".

(2000) 10 NTLR 52

(1974) 2 ALR 281

(1987) 74 ALR 188

(1992) 34 FCR 412

(1993) 46 IR 301

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Judgment (12 paragraphs)

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Cases Cited (15)