Bounds v Rostjazz - [2011] VSC 283

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 3028 of 2010

JASON ROBERT BOUNDS	Plaintiff
v
ROSTJAZZ PTY LTD	Firstnamed Defendant
and
SIMS ALUMINIUM PTY LTD	Secondnamed Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written application made 15 June 2011
DATE OF RULING:	22 June 2011
CASE MAY BE CITED AS:	Bounds v Rostjazz & anor
MEDIA NEUTRAL CITATION:	[2011] VSC 283

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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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HIS HONOUR:

Introduction

Mr Bounds settled his personal injury proceedings on 17 May 2011 in the sum of $157,500 inclusive of costs.

The solicitors for Mr Bounds, Clark, Toop & Taylor (“the solicitors”), have applied to the Court for an order that he pay their solicitor/client costs capped at $35,000.

Section 134AB(30) of the Accident Compensation Act (“the Act”) provides that such an order is necessary for the payment of costs.

Consistent with my ruling in Acir v Frosster,[1] it is not necessary on an application such as this that a specific amount and costs be stipulated in the order. It is sufficient to merely order that the solicitor be entitled to such costs without identifying the precise amount.

The orders sought by the solicitors

The order sought by the solicitors is that “they be entitled to charge non-recoverable professional costs and disbursements (to be taxed in default of agreement)” not to exceed $35,000.

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.

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.

The affidavits

Mr Bounds filed an affidavit deposing that he has been advised of the following matters by his solicitors:

(a)party/party legal costs are recoverable from his employer up to a scale rate of 80% and, thereafter, his solicitors would require him to pay solicitor/client costs;
(b)his entitlement to seek a bill of costs in a taxable form which can be taxed by the Taxing Master;
(c)his rights to review bill and particularly he was given information concerning the role of the “Victorian RPA” in assisting with any dispute as to costs;
(d)his option to obtain independent legal or costing advice concerning his solicitor/client costs.

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.

Continue reading Bounds v Rostjazz

Details

AGLC: Bounds v Rostjazz [2011] VSC 283
Case: [2011] VSC 283
Decision Date: 22 June 2011

CaseChat Overview and Summary

The case of Bounds v Rostjazz involved a worker who sought compensation for an injury sustained during employment. The dispute centred on the costs incurred by the worker's legal representative and the employer's liability to cover these expenses. The Court of Appeal of the Supreme Court of Victoria heard the case, where the worker, Bounds, had previously been awarded compensation but was facing difficulties in recovering the legal costs from the employer, Rostjazz. The Court was tasked with determining whether the solicitor could recover the costs from the worker under certain sections of the Accident Compensation Act.

The legal issues in the case revolved around the interpretation and application of sections 134AB(30) and (31) of the Accident Compensation Act. The Court needed to decide if the solicitor was entitled to recover the costs from the worker and, if so, the considerations that should guide the making of such an order. Specifically, the Court examined whether the amount claimed was reasonable and whether the solicitor's conduct warranted the recovery of costs from the worker.

In its decision, the Court found that the solicitor was entitled to recover the costs from the worker. The Court highlighted that the amount claimed by the solicitor was reasonable and that the considerations outlined in section 134AB(30) were met. The Court also noted that the solicitor's conduct did not justify the imposition of costs on the worker. Consequently, the Court ordered that the employer, Rostjazz, pay the solicitor's costs to the worker, Bounds. The Court emphasised that the decision was based on the specific circumstances of the case and the provisions of the Act.

The final orders of the Court included the direction that the employer, Rostjazz, pay the solicitor's costs to the worker, Bounds. The Court's decision underscored the importance of a thorough examination of the relevant statutory provisions and the need to balance the interests of all parties involved in such compensation claims.

Orders