Johnson v Denwest Nominees Pty Ltd T/as Cunderdin Roadhouse

[2017] WASCA 200

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Workers' Compensation
2. › Application for weekly payments
3. › Successive proceedings for same compensation
4. › Whether application constituted abuse of process
5. › Whether settlement agreement with director precluded fresh claim against employer
6. › Workers' Compensation and Injury Management Act 1981 (WA), ss 58, 174, 174AA, 254
1. Practice and Procedure
2. › Abuse of process
3. › Successive proceedings
4. › Re-litigation of issues previously resolved by agreement and judgment
5. › Whether broader context of litigation history relevant to abuse of process determination
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Whether abuse of process finding justified departure from ordinary costs order
1. Appeal
2. › Leave to appeal
3. › Workers' compensation appeal
4. › Whether decision attended with sufficient doubt
5. › Whether substantial injustice demonstrated
6. › Whether costs of appeal disproportionate to issues at stake
7. › Workers' Compensation and Injury Management Act 1981 (WA), s 254

Quick Take

A workers' compensation claimant who has resolved a claim through conciliation, obtained judgment in a court for the conciliated amount, and then settled all related proceedings with a mutual release, cannot make a fresh application under the Act for the same weekly payments without risking a finding of abuse of process and indemnity costs. The broader litigation history is relevant to the abuse of process inquiry, not merely the immediate prior proceeding. Appeals to the Court of Appeal concerning only the basis of a costs order (indemnity vs ordinary) face a high threshold for leave, particularly where the difference in quantum is not demonstrated and the costs of the appeal would be disproportionate.