AB v XYZ Pty Ltd (No 2)

[2022] VCC 1304

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

AB	Plaintiff
v
XYZ PTY LTD	Defendant

---

JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	19 August 2022
CASE MAY BE CITED AS:	AB v XYZ PTY LTD (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1304

RULING
---

Subject:COSTS

Catchwords: Costs – Application for costs – Defendant made application for costs following judgment in its favour – Consideration of s344(1) Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – No reason to deviate from usual course that costs follow the event – Plaintiff’s submission regarding Defendant not calling a witness is not relevant to question of costs

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Cases Cited:AB v XYZ Pty Ltd [2022] VCC 1005; Footscray City College v Ruzicka (2007) 16 VR 498; Northern Territory v Sangare (2019) 265 CLR 164;  Austen v Ansett Transport Industries (Operations) Pty Ltd [1993] FCA 403

Ruling:  Application granted

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The Plaintiff appeared in person
For the Defendant	Ms D Manova with Ms J Clark	Russell Kennedy

HIS HONOUR:

1The history of this proceeding is set out in my judgment handed down on 12 July 2022 (“reasons”).[1] The Defendant now makes an application for costs following the delivery of the judgment in accordance with section 278(1)(a) of the Workplace Injury Rehabilitation And Compensation Act 2013 (Vic) (“WIRCA”).

[1]        AB v XYZ Pty Ltd [2022] VCC 1005 (“AB v XYZ”)

2I find that in accordance with section 278(1)(a) of the WIRCA, the Plaintiff should pay the Defendant’s costs. I find no reason to deviate from this section or the usual course that costs should follow the event.

Reasons

3Section 278(1) sets out the general costs principles in relation to applications made under the WIRCA:

“(1) Subject to this Act, in proceedings brought before a court under this Act, the Accident Compensation Act 1985 or the Workers Compensation Act 1958 , by a person other than the Authority, an employer or a self-insurer, the court—

(a)  must award costs against the party against whom a judgment or decision is made; and

(b)  may, if it considers it appropriate, include in an order under paragraph (a) an award of costs to the representative of a worker in whose favour a judgment or decision is made; and

(c)   must not otherwise make an award of costs.”[2]

[2]        Workplace Injury Rehabilitation And Compensation Act 2013 (Vic) (“WIRCA”) s 278(1)

4The Victorian Supreme Court of Appeal determined in Footscray City College v Eva Ruzicka[3] that the equivalent provision of the Accident  Compensation Act 1985 (Vic) “…compelled the unsuccessful claimant to pay the respondent’s party and party costs.”[4] Accepting this decision, I consider that I am bound to order that the Plaintiff pay the Defendant’s costs of the proceeding, being the costs of the first hearing and the re-hearing of the proceeding.

[3] (2007) 16 VR 498 (“Ruzicka”)

[4]        Ruzicka at [20]-[21]

5Even if I am entitled to some discretion as to whom costs are to be awarded, such a discretion must be exercised judicially, only by reference to considerations and facts relevant to the litigation.[5] I do not find that there are special circumstances justifying a departure from the usual course that costs should follow the event.[6]

[5]        Northern Territory v Sangare (2019) CLR 164 at [24]

[6]        Austen v Ansett Transport Industries (Operations) Pty Ltd [1993] FCA 403 at [58]

6The Defendant submits that costs payable by the Plaintiff should be fixed at $50,000. I do not propose to make a determination as to the amount for the award of costs.

The Plaintiff’s submissions

7I interpolate to note that Ms AB’s submissions raise matters including the Defendant not calling Mr Richard Sicora[7] as a witness in the proceeding. AB submits that this is indicative of the Defendant’s lack of disclosure and candour in the proceeding.[8] I have addressed the matter of the Defendant not calling Mr Sicora as a witness in my reasons.[9] This issue, and the inference subsequently  drawn, are not matters that affect my determination of costs.

[7]        A pseudonym

[8]        The Plaintiff’s written submissions regarding costs at paragraphs [5]-[6]

[9]        AB v XYZ at [53]

8AB’s submissions also raise issues about whether the Defendant properly discovered material.  This is not a matter agitated in great detail and I do not consider it displaces the statutory provision or my general discretion.

Conclusion

9I find that the Plaintiff is to pay the Defendant’s costs of the first hearing and the re-hearing of the proceeding.