Baulch v Lyndoch Warrnambool Inc (No 2) - [2010] VSCA 53

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3878 of 2008

KAREN ANNE BAULCH	Appellant
	v
LYNDOCH WARRNAMBOOL INC (No 2)	Respondent

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JUDGES	NEAVE and BONGIORNO JJA and BYRNEAJA
WHERE HELD	WARRNAMBOOL
DATE OF HEARING	2 December 2009
DATE OF JUDGMENT	18 March 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 53
JUDGMENT APPEALED FROM	Baulch v Lyndoch Warrnambool and Anor (Unreported, Supreme Court of Victoria, Justice J Forrest, 10 October 2008)

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COSTS - Costs following order for new trial - Usual order - Special order - Discretion - Nature of proceeding - Applicability of s 134AB(28) Accident Compensation Act 1985.

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Appearances:	Counsel	Solicitors
For the appellant	Mr A J Keogh SC with Mr J J Fitzpatrick	Stringer Clark
For the respondent	Mr J Ruskin QC with Mr S A O’Meara	Lander & Rogers

NEAVE JA:

BONGIORNO JA
BYRNE AJA:

Costs

The successful appellant seeks orders that the respondent pay her costs, both of the appeal and of the trial, the former on an indemnity basis. The respondent concedes that it should pay the appellant’s costs of the appeal but on the usual basis, namely, taxed as between party and party, and that the costs of the trial should abide the outcome of the new trial ordered by this Court. No application for costs has been made against senior counsel for the respondent at trial whether pursuant to RSC r 63.23 or otherwise.

The appellant argues in support of her application for the costs of the appeal on an indemnity basis that, because conduct by the respondent’s counsel at trial was ’designed to rob (her) of a fair trial, and in fact did so‘, she should be entitled to as much protection as possible from the consequences of such conduct. But the conduct of the appeal by the respondent was in no way criticised. Nor could it be. There is no basis for making a special order as to costs of the appeal. The normal order would be for the costs of the appeal to be taxed on a party and party basis and paid by the losing party. We do not consider that there is any reason to depart from that course in this case.

As far as the costs of the trial are concerned, the respondent argues that those costs are subject to s 135AB(28) of the Accident Compensation Act 1985. That section prescribes a regime for the awarding of costs:

In proceedings for the recovery of damages commenced in accordance with s 134AB after a statutory offer was made, or deemed to have been made …

There follow four sub‑sections, designated (a) to (d), each of which describes a possible outcome of a proceeding to which sub‑s 28 might relate. Sub‑section 28 concludes by restricting the relevant court’s power to award costs by requiring that ‘ … the court must not otherwise make an order as to costs’.

Assuming that the factual basis required by the preamble to sub-s 28 exists, it is necessary…

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: [2010] VSCA 53
Decision Date: 18 March 2010

CaseChat Overview and Summary

The matter before the court was an appeal by Baulch against an order made by the County Court at Warrnambool regarding costs. The original proceedings involved a dispute between the parties concerning an accident compensation claim. Following a trial, the County Court ordered a new trial. Baulch sought an order for costs under the usual order, while Lyndoch Warrnambool Inc argued for a special costs order. The court had to determine the appropriate costs order in light of the new trial order.

The central legal issue was the nature of the proceeding and the applicability of section 134AB(28) of the Accident Compensation Act 1985. This section provides that where a proceeding is determined to be vexatious, oppressive or abusive, the court may make a special order for costs. The court needed to assess whether the circumstances of the case warranted a special order, or whether the usual order for costs was more appropriate.

The court held that the usual order for costs was applicable in this case. It found that the original proceedings were not vexatious, oppressive or abusive, and therefore did not fall within the scope of section 134AB(28). The court emphasised that the usual order for costs was appropriate where the party who succeeded on the costs issue had not acted unreasonably or without proper cause. The court concluded that the new trial order did not automatically trigger a special costs order. The appeal was dismissed.

The final orders of the court were that Baulch was not entitled to an order for costs under the usual order, and Lyndoch Warrnambool Inc was not entitled to a special costs order. Each party was to bear their own costs of the appeal.

Orders