Akram Karam v Palmone Shoes Pty Ltd Akram Karam v Palmone Shoes Pty Ltd

[2011] HCASL 142

AKRAM KARAM
v
PALMONE SHOES PTY LTD

AKRAM KARAM
v
PALMONE SHOES PTY LTD
 [2011] HCASL 142
M50/2011
M51/2011

1. The applicant made claims for compensation in the Supreme Court of Victoria against the respondent, his employer, under the Accident Compensation Act 1985 (Vic) ("the Act"), for exposure to certain toxic chemicals arising in the course of his employment with the respondent. The two claims were heard together before T Forrest J and judgment was delivered on 23 February 2010. One claim, referred to as the "cancer case" failed for lack of causation; the other claim, referred to as the "asthma case", was successful and judgment was entered in those proceedings in the sum of $196,315. Before the trial of the asthma case, the respondent made a statutory offer of $180,000 and the applicant made a counter offer of $270,000, which the respondent rejected. T Forrest J ordered the applicant to pay the respondent's costs in the cancer case pursuant to s 135BA(2) of the Act, and that each party bear its own costs in the asthma case pursuant to s 134AB(28)(d) of the Act. His Honour also made ancillary orders that the applicant's solicitors (there being two separate firms) have liens (excluding any legal fees relating to the cancer case) over the proceeds of the judgment sum in the asthma case.

2. The applicant sought the leave of the Court of Appeal to appeal from the costs orders made by T Forrest J. On 16 May 2011, Tate JA (with whom Hargrave AJA agreed) granted the applicant leave to appeal. Her Honour noted that, whilst emphasising the separateness of the two proceedings for the purposes of s 134AB(28), the trial judge emphasised the overlap between the two proceedings when considering the question of the solicitors' liens. Her Honour found that it was reasonably arguable that the cancer case and the asthma case should have been treated, for the purposes of an award of costs, as a single proceeding subsumed within the provisions of s 135BA of the Act, with the result that s 134AB(28)(d) would not be applicable to the asthma case, and the rejection of this proposition by T Forrest J was attended with sufficient doubt to warrant a grant of leave to appeal. Her Honour also found that treating the proceedings as a single proceeding may have implications for the solicitors' liens because the terms of s 134AB(30) of the Act may not be satisfied, and unless satisfied, the declaration of liens was precluded. Her Honour rejected the applicant's other grounds of appeal relating to professional negligence and misconduct on the part of various legal practitioners engaged by the applicant. Her Honour was satisfied that the trial judge's findings of fact regarding the competence of the applicant's legal representatives should not be disturbed, and that the allegations of errors of law and apprehended bias by the trial judge were unmeritorious.

3. The substantive appeal following the grant of leave has yet to be heard.  The applicant's applications for special leave are addressed to the grounds for which leave was not granted by the Court of Appeal.  The applications to this Court do not advance any questions of law as would justify a grant of special leave.  There is no reason to doubt the correctness of the conclusions of the Court of Appeal as to the grounds in respect of which the applicant was unsuccessful.

4. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the applications.

W.M.C. Gummow	S.M. Kiefel
8 September 2011