Armstrong v Mulcahy Pastoral Holdings Pty Ltd
[2011] VCC 350
•1 April 2011
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-09-01632
| SUSAN ARMSTRONG | Plaintiff |
| v | |
| MULCAHY PASTORAL HOLDINGS PTY | Firstnamed Defendant |
| LTD (Deregistered)(Leave being given to alter the title of this Defendant to THE VICTORIAN WORKCOVER AUTHORITY) | |
| and | |
| QBE Workers Compensation (Vic) Limited | Secondnamed Defendant |
| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 & 29 March 2011 |
| DATE OF RULING: | 1 April 2011 |
| CASE MAY BE CITED AS: | Armstrong v Mulcahy Pastoral Holdings Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 350 |
| RULING AS TO COSTS |
Catchwords: Accident Compensation Act 1985 – dispute as to whether plaintiff suffered injury whilst kicked by a cow in the course of her employment or whether injury arose in some other way – claim for statutory benefits – claim for resumption of benefits – claim insofar as it relates to capacity and weekly payments referred to Medical Panel – finding by Panel that no current work capacity existed but situation not likely to continue indefinitely – decision of Medical Panel challenged by plaintiff – previous hearing in this regard in which the sole issue argued and determined was as to decision of Medical Panel and its effect upon entitlement to weekly payments – decision reserved and ultimately given in favour of defendants – further hearing approximately three months later – Statement of Claim amended by deleting reference to weekly payments and inserting reference to s.98C – declaration sought in relation to medical and like expenses and s.98C – sole issue argued and determined related to causation – finding in favour of the plaintiff – whether defendants entitled to their costs in regard to plaintiff’s unsuccessful weekly payments claim or whether plaintiff entitled to her costs in relation to both hearings – factors to be considered.
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Ryan | Nowicki Carbone |
| For the Defendant | Mr J O’Brien | Thomsons Lawyers |
| HIS HONOUR: |
(a) General background 1 The plaintiff in this case originally sought the resumption of statutory benefits payable to the provisions of the Accident Compensation Act 1985 (“the Act”). The benefits which had been terminated were weekly payments of compensation and payment of medical and like expenses.
2 The matter came on for hearing before me on 19 October 2010. Mr T Ryan of counsel appeared on behalf of the plaintiff. Mr J O’Brien of counsel appeared on behalf of the defendants. I shall deal with what occurred at that hearing shortly. I reserved my decision and delivered it on 14 December 2009, having forwarded to the parties the opportunity to make written submissions should they so desire. On 14 December 2010 I found in favour of the defendants. The matter came on for hearing again on 28 March 2011. An Amended Statement of Claim deleting the relevant reference to weekly payments was put before the court. Declarations in relation to medical and like expenses and s.98C of the Act were sought. On this occasion evidence was taken from some five witnesses concerning the issue of causation. I reserved my decision only briefly, determining in favour of the plaintiff on 29 March 2011.
3 A dispute has now arisen in relation to costs. The defendants seek their costs in relation to the hearing on 19 October 2010 and associated with the delivery of my decision on 14 December 2010 but otherwise do not oppose the making of a costs order in favour of the plaintiff. The plaintiff seeks costs, including those related to the hearing of 19 October 2010 and the delivery of the decision. There is also a lesser dispute concerning the scale of costs payable to the plaintiff.
4 In order to rule upon the principal dispute before me, it is necessary to look at the relevant parts of the history of the litigation and at what occurred at each of the hearings.
(b) The history of the litigation 5 The plaintiff alleged injury when kicked by a cow on 20 April 2004. On 13 May 2004 she lodged a compensation claim in respect of it. On 1 July 2004 an agent of the Victorian WorkCover Authority informed the plaintiff that her claim in relation to weekly payments of compensation and the payment of reasonable medical and like expenses had been accepted. On 1 August 2007 the plaintiff was advised of the termination of both weekly payments and payment of medical and like services. On 21 April 2009 the plaintiff issued a Writ with attached Statement of Claim out of this Court. That Statement of Claim in essence sought a declaration that the plaintiff is entitled to compensation pursuant to s.93 of the Act and to the payment of ongoing medical and like expenses. There was a later amendment dealing essentially only with formalities (the employer, originally named as first defendant, had been deregistered). A defence dated 27 May 2009 was filed which denied that the plaintiff had suffered injury arising out of or in the course of her employment but also claimed that the plaintiff had received weekly payments for periods in excess of 104 weeks and had a current work capacity, or, if the plaintiff had no current work capacity, such incapacity was not likely to continue indefinitely.
6 The plaintiff, by her solicitors, sought referral of certain questions to a Medical Panel. These questions concerned the nature of the plaintiff’s injury and, importantly, her work capacity. They were sent on 10 September 2009. The questions have been set out in my decision of 14 December 2010, and I shall not recite them again in their entirety. Suffice to say that the answers of the Panel were to the effect that the plaintiff had no current work capacity but the Panel was of the opinion that the plaintiff was not likely to continue indefinitely to have no current work capacity. In other words, prima facie, the effect of the Panel’s answer’s was that she was not entitled to the resumption of weekly payments. It was against this background that the matter came on for hearing before me on 19 October 2010.
(c) The hearing of 19 October 2010 7 On this occasion, whilst the plaintiff’s case was opened in broad terms by Mr Ryan, including references to the issue of causation (whether the plaintiff suffered the relevant injury by reason of a cow kick or because of a fall unrelated to employment), comparatively quickly it became apparent that the issue that I was firstly to determine related to the answers of the Medical Panel and their effect.
8 In his submission in this costs dispute, Mr Ryan stated that, on 19 October 2010, the plaintiff had come to court seeking, amongst other things, payment of medical and like expenses, “but before we go down that pathway your Honour determined that it would be better off and more practical to be determining the impact of the Medical Panel decision”. Whilst that may be ostensibly true, what such a statement overlooks is my determining that I would deal at the outset with the impact of the Medical Panel’s decision was a course of conduct adopted not upon some whim of mine but at the request of the parties, and particularly at the request of Mr Ryan. I would refer to the following extracts from the transcript:
(i) “HIS HONOUR: You mentioned before how the questions that were referred to the panel relate to the issue of capacity as opposed to the grounds upon which claims were terminated.
MR RYAN: Yes.
HIS HONOUR: Yes. I wasn’t sure whether you were mentioning that in the context of some legal argument that was been conciliated and what has not or whether that was just part of the history. I wasn’t sure whether you were heading towards some legal argument in relation to the validity of the Medical Panel’s opinion or determination or both.
MR RYAN: Through a very long-winded process I concede, your Honour, that is where I am heading to and I think the parties jointly are – that is to a legal argument effectively as to the import of 93CC(1).” (T 17 and 18)
(ii) “HIS HONOUR: Is the question of the effect of the Medical Panel’s finding to be determined as a preliminary issue so we know what the boundaries ---
MR RYAN: That is exactly right, your Honour, and I finally got to that point. That’s exactly what is envisaged – that we look at that as a preliminary issue, preliminary legal issue. As you say, to define the boundaries, and once that’s decided – as I have heralded, your Honour – insofar as the medical expenses are concerned, that then brings into play as I understand it, whether it was the woodpile or the cow shed – so we need to go into evidence about all of that, just purely to determine the medical expenses.
HIS HONOUR: Yes.
MR RYAN: That’s as I read it, your Honour. I’m ready to go into argument…” (T 23)
9 Whilst there was some further discussion, including some opening observations by Mr O’Brien, concerning the case generally and the issue of causation, what then followed were submissions which dealt solely with the Medical Panel, its answers, and s.93CC of the Act. No argument or submissions of any substance were advanced in relation to the question of entitlement to medical and like expenses, and indeed counsel have agreed that this was so. I would refer to the following discussion at page 136 of the transcript as follows:
“HIS HONOUR: Was anything argued at all about medical
expenses on 19 October? MR RYAN: No, it wasn’t. MR O’BRIEN: No.”
10 That accords with my recollection and the transcript. Certain arguments and the possibility of certain evidence in relation to causation was referred to, but the only submissions and arguments advanced in any meaningful fashion related to the Medical Panel, the issue of capacity and the operation of the Act.
11 At the end of submissions, which concluded sufficiently late on 19 October 2010 for the case to be shown as part heard in the following day’s list (which it was not), I expressed the view that, with some regret, I would not be able to move on with the case. I discussed the complexity of what had been argued before me, with Mr Ryan agreeing that it was not straight forward and it was “pretty foreign territory unfortunately”. I expressed the view that, whilst people liked to see litigation concluded, because of the technical nature of the submissions advanced the matter would have to be adjourned part heard, and I would not be giving an immediate decision in relation to the matter. Further, counsel were given the opportunity to present written submissions within the next seven days, an opportunity which both accepted. There is no suggestion that such written submissions were to address anything other than the capacity, weekly payments and Medical Panel issues. Accordingly, I adjourned the matter, saying that there would be no decision in relation to such issues for at least seven days. As matters eventuated, written submissions were received and a quite lengthy decision handed down on14 December 2010.
12 The end result of that decision was that the court accepted as final and conclusive the opinion of the Medical Panel and I was not prepared to set aside the Notice of Termination of Weekly Payments, being, effectively, the relief sought in that regard. I indicated that I would hearing argument as to the future conduct of the matter.
13 I repeat that it is quite clear to me that what was argued before me on 19 October 2010 and determined by reason of my determination of 14 December 2010 was the discrete issue involving matters referred to above and that alone, and my ultimate finding was that I was not prepared to set aside the Notice of Termination of Weekly Payments.
(d) The hearing of 28 and 29 March 2011 14 A Further Amended Writ and Statement of Claim, these being dated 17 February 2011, were put before the court. The Statement of Claim included two significant changes. A declaration that the plaintiff was entitled to an assessment of impairment pursuant to s.98C was included, together with reference to the administrative steps that had been taken in this regard. Sub- paragraph (a) in the prayer for relief in which the plaintiff had sought the declaration that she was entitled to compensation pursuant to s.93 of the Act (the weekly payments issue) had been deleted. In other words, the issue of weekly payments was now “a dead letter” and, indeed, subsequently Mr Ryan agreed that the plaintiff’s claim for weekly payments could be dismissed.
15 Accordingly, no further argument or evidence concerning employment capacity was advanced. No further submissions concerning the Medical Panel and the effects of its answers were advanced. The question of any setting aside of the Notice of Termination of Weekly Payments or entitlement to any further weekly payments had been decided, and decided in favour of the defendants.
16 The evidence and arguments then advanced on 28 and 29 March 2011 dealt solely with the issue of causation. The five witnesses called all gave evidence concerning the events of 20 April 2004 and the histories recorded. Ultimately I found that the plaintiff had discharged the burden of proof and that, on the balance of probabilities, the injury sustained by her resulted from her being kicked by a cow whilst in the course of her employment. As a result, she was entitled to the declarations sought in relation to ss.98C and 99 of the Act.
Ruling 17
Against that background, I make the following Ruling. In my view, whilst the plaintiff is entitled to legal costs in respect of what occurred other than on 19 October 2010 and 14 December 2010, the defendants are entitled to their costs in respect of those days. I might say that there was no contest from Mr O’Brien in relation to the plaintiff’s entitlement to costs other than for the two days referred to above.
18
I have arrived at this decision for the following reasons. What was heard by me on 19 October 2010 was a separate and discrete matter from those dealt with by me on 28 and 29 March 2011. This was not a situation where some purely procedural or comparatively subsidiary interlocutory issues were to be determined. This was a discrete and quite technical matter which, by agreement, was to be determined at the outset. The other issues in the case were quite separate from it and, indeed, not relevant to it other than by way of background. The other central issue in the case – causation – involved totally separate arguments and considerable oral evidence, none of which had any bearing on what was argued before me on 19 October 2010. The plaintiff had requested that certain questions go to a Medical Panel. One such answer effectively was fatal to the plaintiff’s claim for resumption of weekly payments, which constituted a particularly significant part of the case. In essence, the plaintiff wished to challenge that answer. She did so, and lost. The other issues in the case were left to one side whilst such challenge occurred, and pending a decision in relation to it. Indeed, had I for some reason been unavailable on 28 March 2011 the case relating to ss. 98C and 99 could have been heard and determined by another judge. No evidence or submissions had been received in respect of it. Only some part of the openings may have needed repeating and, at least to some extent, this occurred in any event.
19
Secondly, in my opinion a “decision” was exactly what I handed down on 14 December 2010. The word “decision” was defined in Winter & Calder v Winter [1933] NZLR 289 as follows:
“‘Decision’ implies the exercise of a judicial determination as the
final and definite result of examining a question.”
20 In my view that is what has occurred. On 14 December 2010 I made a decision in relation to the substantial and discrete issue ventilated before me on 19 October 2010. If that be so, s.50(1) of the Act appears to me to have application. It reads:
“Subject to this Act, in proceedings before the County Court under this Act or the Workers Compensation Act 1958 being proceedings brought by a person other than the Authority, employer or result insurer, the Court –
(a)
must award costs against the party against whom a judgment or decision is made…”
21 In the peculiar circumstances of this case, I am of the view that a decision within the meaning of that section has been made. If that be so, the Act requires me to order costs against the party against whom the decision was made – that is, the plaintiff. Further, I would point out that the provision referred to above refers to a judgment or decision. This seems to me to be a reference to something more than a final or all-embracing judgment. Also, the type of decision referred to seems to be one in the context of a court, or at least not necessarily confined to an administrative decision.
22 I might say that, were it a matter of discretion, I would be exercising that discretion in favour of the defendants. The plaintiff opted to seek that the Notice of Termination of Weekly Payments be set aside despite the answers of the Medical Panel and pursued this in the manner referred to above. There was a separate hearing requiring a separate decision, and the plaintiff failed. I would exercise my discretion, if I had one, in favour of the defendants.
23 Even though this was far from being a standard or frequently encountered interlocutory argument, there may well be circumstances in which the successful party is entitled to costs following such an argument. In O’Neill v TD Williamson (No.2) [2008] VSC 430, Cavanough J stated that:
“…I conclude that the courts do have a power to make orders at any stage as to the costs of interlocutory or other individual steps in a proceeding under s.134AB…”
24 I appreciate that s.50(1) involves different wording to that contained in s.134AB, but some of the observations of his Honour are of interest. For instance, in paragraph 8 of his Judgment his Honour observed as follows:
“Where a party seeks and obtains an indulgence from the court whereby additional costs are incurred on one or other or both sides, it is usual to require the party obtaining the indulgence to meet the additional costs, regardless of the eventual outcome of the proceeding as a whole and regardless of any prior offers or counter offers in respect of the overall disposition of the case.”
25 Of course, his Honour was dealing with different provisions and with what could be described as a frequently encountered interlocutory situation – namely, costs thrown away by reason of an adjournment resulting from an application to amend the pleadings. Given the nature of what occurred before me, which was a considerably different situation, I shall leave it to another day (and hopefully to another person) for a decision to be made in respect of costs relating to “standard” interlocutory applications in the context of s.50 of the Act. However, his Honour’s observation in O’Neill do seem to me to be in accord with and lend some support to the conclusion at which I have arrived.
26 There remains the question of the scale of costs in each instance. The indication clearly given to me by Mr Ryan and Mr O’Brien was that agreement had been reached that the costs payable by the defendants to the plaintiff were to be on County Court Scale C – see T 127. When Mr Ryan realised that Mr O’Brien was asking for the defendants’ costs associated with the hearing on 19 October 2010, with some indignation, and perhaps in a fit of pique, he stated: “Well I’ve now upped them to D…”. (See T 129) No material or argument was advanced as to why this should be so. I see no reason why I should do this.
27 The defendants are prepared to pay the plaintiff’s costs on County Court Scale C in relation to the items for which they are responsible. That seems to me to be appropriate. The relief granted to the plaintiff has been in the form of declarations, the monetary value of which is difficult to determine, but I agree with Mr O’Brien that the scale of costs ordered might considerably have been on B or on a Magistrate’s Court Scale. Given that the plaintiff’s costs be paid on Scale C seems to have been agreed initially, and, as I understand it, the defendants have not resiled from that position, I shall order that the defendants pay the plaintiff’s costs of this matter, save for costs associated with the hearing on 19 October 2010 and the delivery of my decision on 14 December 2010, on County Court Scale C, such order to include reserved costs. Whether or not such order includes costs associated with court books is something concerning which I am not entirely clear. Similarly, items of costs associated with conferences have not been spelt out. Hopefully the parties can agree on these matters.
28 In relation to costs associated with the hearing of 19 October 2010 and the handing down of the decision on 14 December 2010, the plaintiff is to pay the defendants’ costs which, in my opinion, should be on County Court Scale D. Whilst no precise figures have been given to me in relation to weekly payments, had the plaintiff been successful in this regard the arrears of compensation alone would have been for a period in excess of three years. That is without making any allowance for the value of ongoing payments. In the circumstances, costs on Scale D seem to me to be appropriate.
29 I have not spelt out the precise details of costs orders. Hopefully the parties can agree on these and the final version of all orders required can be presented. Of course, I shall hear the parties as to any dispute which might remain.