CGU Workers Compensation (Vic) Ltd v Rees - [2003] VSCA 18

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3763 of 2002

CGU WORKERS COMPENSATION (VIC) LTD
CGU WORKERS COMPENSATION (VIC) LTD	Appellant
v.
THELMA GRACE REES	Respondent

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JUDGES:	WINNEKE, P., PHILLIPS and BATT, JJ.A.
WHERE HELD:	WARRNAMBOOL
DATE OF HEARING:	5 March 2003
DATE OF JUDGMENT:	6 March 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 18

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Costs –As between party and party – Travelling expenses – Of plaintiff in driving to attend medical experts in preparation of then intended case – Calculated at rate per kilometre – Not disbursement nor otherwise allowable “costs”, “disbursements” - County Court Rules, Ch.I, rr.33.05, 63A.29, 63A.66, 63A.77.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J. Ruskin, Q.C. and Mr M. Fleming	Wisewoulds
For the Respondent	Mr T.P. Tobin, S.C. and Mr T.P. Keely	Tait Leishman Taylor

WINNEKE, P.:

In this matter I will invite Batt, J.A. to deliver the first judgment.

BATT, J.A.:

On 1 April 1999, the respondent, Thelma Grace Rees, who lives at Ellerslie near Mortlake, as plaintiff filed in the County Court at Warrnambool a writ with annexed statement of claim against the appellant, CGU Workers Compensation (Victoria) Ltd (“CGU”), as defendant, seeking, principally, an order that lump sum compensation for permanent disability pursuant to s.98A of the Accident Compensation Act 1985 be paid in respect of injury sustained by her while acting in the course of her employment with a Mrs Mary Salmon. At all material times CGU was the latter’s accident compensation insurer.

In or about October 1999, the County Court proceeding was compromised. On or about 7 October 1999, consent orders were made in the County Court proceeding in accordance with minutes of consent orders filed on 6 October. The orders were:

1. The defendant pay the plaintiff’s costs on County Court Scale D.
2. Otherwise the proceeding be struck out.

It should be recorded in passing that neither party suggested here, or in the earlier hearings in the County Court referred to later, that s.50(2A) of the Accident Compensation Act precluded the making of such an order or that there were facts making s.50(4) of that Act applicable.

On or about 30 April 2002 the plaintiff (as it is convenient to call her) served a bill of costs on the defendant (as it is likewise convenient to call it). In the bill the plaintiff claimed items 61 to 64 as “travel expenses” under a sub-heading reading “To disbursements”. The four items were in chronological order, referred to four different medical practitioners, and totalled $551. Item 61 may be taken as typical. It reads:
“61. 19/1/98 - P. Scott
Ellerslie to Melbourne and return
480 km @ 50c/km $240.00.”
The dates, destinations, distances and money amounts differed in each item. The latest date was 3 July 1998. By these items in the bill the plaintiff was claiming a total of $551 for the “travelling expenses” of her attending four medico-legal examinations arranged on her behalf by her solicitors. The calculation of the claimed expenses, as particularised in the items, involved multiplication…

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 CGU Workers Compensation (Vic) Ltd v Rees

Details

AGLC: CGU Workers Compensation (Vic) Ltd v Rees [2003] VSCA 18
Case: [2003] VSCA 18
Decision Date: 6 March 2003

CaseChat Overview and Summary

The matter before the court was an appeal by CGU Workers Compensation (Vic) Ltd against a decision made by a trial judge in the County Court of Victoria. The plaintiff, Rees, had incurred expenses related to travel for medical appointments in preparation for a potential legal case. CGU contested the allowance of these expenses as part of the costs recoverable under the County Court Rules. The core issue was whether these travel expenses were properly classifiable as "costs" or "disbursements" under the relevant provisions of the County Court Rules.

In determining the matter, the court considered the definitions and scope of "costs" and "disbursements" as outlined in the County Court Rules. It was established that "costs" typically referred to fees and charges directly associated with the legal proceedings, while "disbursements" referred to out-of-pocket expenses necessary for the conduct of the case. The court held that travel expenses incurred by the plaintiff for medical consultations were not directly related to the proceedings themselves but were preparatory expenses for a potential case that did not eventuate. As such, these expenses did not fall within the definition of "costs" or "disbursements" under the Rules. The appeal was allowed, and the trial judge's decision to award these expenses was set aside.

The final orders of the court were that the plaintiff's claim for reimbursement of travel expenses was dismissed. The court ruled that such expenses were not recoverable as "costs" or "disbursements" under the County Court Rules. Consequently, CGU Workers Compensation (Vic) Ltd was not required to pay the travel expenses claimed by Rees.

Orders