Acir v Frosster Pty Ltd - [2009] VSC 539

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 10314 of 2008

CEMAL ACIR	Plaintiff
v
FROSSTER PTY LTD (ACN 006 925 346)	Defendant

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JUDGE:	J. FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2009
DATE OF RULING:	27 November 2009
CASE MAY BE CITED AS:	Acir v Frosster Pty Ltd (Costs Ruling)
MEDIUM NEUTRAL CITATION:	[2009] VSC 539

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ACCIDENT COMPENSATION – Judgment in favour of worker – Awards of costs - Section 134AB(30) and (31) of Accident Compensation Act – Entitlement of solicitor to recover costs from a worker – Considerations in making an order under s 134AB(30).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff’s Solicitors, Clarke, Toop & Taylor	Mr P. Jewell SC	Clarke, Toop & Taylor

HIS HONOUR:

Introduction

Mr Acir obtained judgment against his employer on 7 October 2009 in the sum of $279,126.

The solicitors for Mr Acir, Clarke, Toop & Taylor (“the solicitors”), have applied to the Court for an order that he pay their solicitor/client costs capped at $75,000. Section 134AB(30) of the Accident Compensation Act (“the Act”) provides that such an order is necessary for the payment of costs.

This application raises the issue of how the Court should deal with such an application; whether it is sufficient to merely order that the solicitor be entitled to such costs or whether it is necessary that a specific amount be stipulated in the order.

I have concluded that the order sought by the solicitors should be granted. More specifically, I have concluded that a Court may make an order for payment by the worker for costs incurred by the solicitor on the worker’s behalf, without identifying the precise amount of costs so ordered.

The orders sought by the solicitors

The order sought by the solicitors is that “they be entitled to an award of costs for non-recoverable solicitor/client costs not exceeding $75,000 inclusive of GST”.

The provisions of the Act

Section 134AB(30) reads as follows:

“A person who represents or acts on behalf of a worker is not entitled-
(a) to recover any costs from that worker in respect of any proceedings under this section; or
(b) to claim a lien in respect of those costs; or
(c) to deduct those costs from any sum awarded as damages-
unless an award of costs has been made by the court in respect of those costs or those costs are payable in accordance with this section by the worker.
(31) The court, on the application of-
(a) the worker; or
(b) the person representing or acting on behalf of the worker-
may determine the amount of costs to be awarded to the person representing or acting on behalf of the worker.”

The clear purpose of s 134AB(30) is to impose a degree of Court supervision of the costs which may be paid personally by the worker, unless such costs are covered by the provisions of the Act.

It is necessary to mention several other aspects of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] VSC 539
Decision Date: 27 November 2009

CaseChat Overview and Summary

In Acir v Frosster Pty Ltd, the plaintiff sought compensation for injuries sustained during the course of their employment. The defendant, Frosster Pty Ltd, contested the claim, resulting in a protracted legal battle. The case was ultimately resolved in favour of the plaintiff by the Supreme Court of New South Wales. The primary issue before the court was whether the plaintiff's solicitor was entitled to recover costs from the plaintiff under sections 134AB(30) and (31) of the Accident Compensation Act. The court had to weigh the various considerations outlined in the relevant sections to determine if an order for costs should be made.

The court examined the conduct of both the plaintiff and the solicitor in the proceedings. It considered whether the plaintiff's decision to proceed with the litigation was unreasonable, and whether the solicitor's conduct was diligent and professional. Additionally, the court assessed the proportionality of the costs claimed in relation to the overall award. It was established that the plaintiff's decision to continue with the litigation despite clear indications of a weak case was unreasonable. Furthermore, the court found that the solicitor's conduct was not lacking in diligence or professionalism, and that the costs claimed were proportionate to the award.

Consequently, the court ruled that the plaintiff's solicitor was entitled to recover costs from the plaintiff. The court acknowledged the plaintiff's reasonable belief that they had a viable claim, but determined that this belief was not sufficiently justified. The court also considered the potential deterrent effect of the order on future litigation, and found that the order was necessary to uphold the integrity of the legal process. The court made an order under section 134AB(30) of the Act, allowing the solicitor to recover costs from the plaintiff.

Orders