Bloomfield v J and R Jones Plumbers Pty Ltd (Ruling)

[2011] VCC 956

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-03163

DARREN ARTHUR BLOOMFIELD	Plaintiff
v
J & R JONES PLUMBERS PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2011
DATE OF RULING:	26 May 2011
CASE MAY BE CITED AS:	Bloomfield v J & R Jones Plumbers Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2011] VCC 956

RULING

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Catchwords: Section 134AB(12) Accident Compensation Act 1985 – statutory offers – stay pending resolution of appeal.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S J Carson	Maurice Blackburn Pty Ltd
For the Defendant	Mr S A O’Meara	Lander & Rogers
HER HONOUR:

1          A stay is sought by the plaintiff in relation to a judgment of 10 February 2011 when leave was granted to the plaintiff to bring proceedings for damages in relation to pain and suffering. An application in relation to loss of earning capacity was dismissed.

2          Since that date, the plaintiff has appealed that judgment in so far as it relates to the dismissal of the loss of earning capacity application.

3 Section 134AB(12) of the Accident Compensation Act (“the Act”) sets out a statutory offer procedure that commences at a date described as the “determination date.” For the purposes of this application, that date is the date of judgment, 10 February 2011.

4          From the determination date there is a statutory requirement that an offer and counter offer be made by the parties; the last step in that process is the plaintiff’s statutory counter offer which is to be made pursuant to that statutory timetable by 29 May 2011.

5          The Act is silent on what happens to the operation of that timetable in the case of an appeal.

6          Counsel for the plaintiff seeks a stay of the judgment until resolution of the appeal. The power to make such an order is set out in Order 66 Rule 14 and also pursuant to s.39(1) of the Act.

7          This course is sought because of the risks faced by the plaintiff in making a statutory offer not knowing the outcome of the appeal.

8          As counsel for the plaintiff pointed out, if at the present time, before the appeal was resolved, the plaintiff made a statutory counter offer that was low, fearing the costs consequences of making a higher offer, the plaintiff would face the risk of the defendant accepting this lower figure.

9          Further if the plaintiff chose to make no statutory offer, he would be deemed pursuant to Section 134AB(14) to have offered the statutory maximum.

10        These scenarios are not part of the risk of normal litigation as submitted by counsel for the defendant.

11 Prior to the outcome of the appeal, the plaintiff cannot make a realistic statutory counter offer pursuant to the Act.

12 In the circumstances, I am prepared to grant a stay of the judgment and also stay the operation of Section 134AB(12) of the Act until the resolution or abandonment of the appeal.

13        Such an order remedies any unfairness to the plaintiff and does not prejudice the defendant.

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