Franck v Return to Work Corporation of South Australia and Wrightville Services P/L [2022] SAET 122 (8 September 2022)

In this case article we discuss the costs ramifications on an appeal that was pursued by the worker where no error of law was identified-

In the abovementioned appeal, Deputy President Judges Gilchrist, Crawley and Calligeros considered whether the trial judge’s findings of facts were errors of law and whether it was reasonable that Mr Franck pay both the Return to Work Corporation and Wrightville Services’ costs.

At trial it was held that Mr Franck did not injure his wrist at work and had in fact lied about injuring it at home. On appeal, Mr Franck argued that the trial judge “erred in holding that he bore the burden of proof”, when it was Wrightville who “had to make good its case that the claim should have been rejected.” The judges rejected this submission.

Mr Franck also complained that he was denied procedural fairness as it was never directly put to him that he had in fact lied. However, this submission was also rejected as the judges believed that Mr Franck was clearly put on notice that Wrightville was contending that he did not injure his wrist at work.

Mr Franck complained that the judge ignored the Briginshaw principle and erred in not applying the Jones v Dunkel inference. However, both of these complaints were rejected.

Mr Franck also argued that the Corporation had a duty to conduct further investigations prior to trial. However, this was rejected on the basis that the preparation of the case was conducted under the supervision of the Tribunal and Mr Franck never raised an issue about this during the process.

Mr Franck also made various other complaints about the findings made by the judge, all of which were rejected. The judges held that “in any event, we did not consider that the judge made incorrect findings of fact.”

Mr Franck made three arguments in relation to the costs order made by the trial judge: –

1) That notwithstanding his adverse credit finding, it would have been open for the judge to make an order in favour of his lawyers.

2) That it was beyond the judge’s power to direct him to pay Wrightville’s costs.

3) That the judge failed to give sufficient consideration to the Corporation’s passive role in the proceedings. He argued that had the judge taken this into account, the Corporation should have been awarded less than full costs.

Upon consideration of these arguments, the judges noted the difficulty of succeeding on appeal in respect of matters that attack discretionary judgements made by the trial judge,
as in the first and third arguments made by Mr Franck. As such, the judges stated that “… the submissions that Mr Franck put to us on this aspect of the costs appeal enjoyed no real prospect of success.”

In summary the judges held that “it was unreasonable for Mr Franck to have appealed the primary decision, but it was reasonable for him to have pursued an appeal on the question of costs.”

Despite this, after considering all of the matters, the judges ordered that no costs be payable to Mr Franck and that he pay the Corporation and Wrightville 65% of their costs of the appeal, including the costs of the argument regarding costs.

Disclaimer: this does not constitute legal advice and we do not represent it to be legal advice. If you seek advice on whether or not to pursue an appeal or on costs issues, please contact us on 7093 2350 or mail@melinolegal.com.au