Eskay Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT LD AT WELLINGTON Decision No. 204 / 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ESKAY LIMITED of Petone, Lower Hutt Appellant (Appeal No. DCA 305/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON COSTS This issue has come before me for decision because I directed on 25 June 1997 that as the parties required to introduce additional evidence and as the tapes of the evidence taken at the review hearing were in parts unintelligible, the respondent was to convene a new review hearing at which all parties could be present and all the evidence heard by the review officer. Since the introduction of this Act and the ability of an employer/ employee and the Corporation to appeal against a review decision numerous appeals come before the Court in which there are inadequacyes in the manner in which the review hearing has taken place. Unfortunately the legislation did not make specific rules for the manner in which various possible parties to appeal hearings could be involved earlier in the process of decision-making. The unfortunate situation which has arisen in this appeal is that Ms Wilson was found by the respondent to be suffering from a work injury which entitled her to weekly earnings. Her employer, the appellant, applied for a review of that decision which was declined by the review officer. The appellant then appealed to this Court 2 against that decision. When I directed that a new review hearing should be convened Ms Wilson's counsel directed the Court to the fact that as Ms Wilson was not the applicant in respect of the review hearing the review officer had no power to make an award of costs in her favour. Furthermore, she has an interest to protect her own position so that it is essential that she be represented at the hearing. Prior to my direction of 11 July 1997 Ms Wilson's counsel had provided a lengthy submission, together with additional affidavit evidence for the purpose of the appeal hearing. As the result has been my direction that a further review hearing be convened, counsel for Ms Wilson has requested an award of costs for the work in which he has been involved in respect of the now abandoned appeal. I have had the benefit of submissions from counsel for Ms Wilson in which he has indicated that she had incurred full costs of $2,296.50. Counsel for the respondent has acknowledged that in view of the work undertaken by counsel for Ms Wilson an award of costs in the region of $800 would be appropriate. The appeal is lodged in the District Court so that the District Courts Act and Rules apply. The Court has a wide discretion on the question of an award of costs and I consider that the appropriate award to be made to this appellant is $1,800. I order that that sum be paid by the respondent to Ms Wilson for the costs incurred up to the present time. I do not know Ms Wilson's financial position as I do not have the full file available to me, but it may well be that because of the manner in which the review hearing has to be conducted and as she is not the applicant in that proceeding, she should consider the question of whether or not she is eligible for a grant of legal aid. DATED at WELLINGTON this &Cth day of Clober 1997 Quumadub A W Middleton District Court Judge (c309-96.doc(rd)