Chapman v Tobin Brothers Pty Ltd - [2002] VSC 81

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5817 of 2000

ELAINE CHAPMAN	Plaintiff
v
TOBIN BROTHERS PTY LTD	Defendant

---

JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2002
DATE OF JUDGMENT:	26 March 2002
CASE MAY BE CITED AS:	Chapman v Tobin Brothers Pty Ltd
MEDIUM NEUTRAL CITATION:	[2002] VSC 81

---

COSTS – Accident Compensation Act 1985 sections 135A(13)(C) and (D) – Whether costs as between solicitor and client ought to be ordered to be paid from the settlement amount – Order appropriate in the circumstances.

Accident Compensation Act 1985, sections 135A(13)(C), (D)

Clifford James Loveday v Lloyds Tree Care Pty Ltd (unreported, decided on 23 May 2000)

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr TC Casey QC with Mr J Mighell	Maurice Blackburn Cashman Lawyers

HER HONOUR:

The proceeding from which this application arises was brought by the plaintiff by a writ issued on 20 June 2000 against the defendant claiming damages in respect of personal injury suffered by the plaintiff in the course of her employment with the defendant. The proceeding was settled, and an order by consent was made by Master Kings on 19 March 2002 to the effect that the defendant pay the plaintiff’s costs including reserved costs.

Section 135A (13B) and (13C) of the Accident Compensation Act 1985 (“the Act”) provides:

(13B)For the purpose of taxing of costs in proceedings to which this section applies, that are commenced on or after 12 November 1997 any applicable scale of costs has effect as if amounts in the scale were reduced by 10 per cent.
(13C)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 commenced on or after 12 November 1997; 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.

In the present application, counsel for the plaintiff sought an order that there be paid to the solicitors for the plaintiff (“the solicitors”) from the sum paid by the defendant by way of damages in settlement of the proceeding such sum as represents the difference between the amount for costs (as taxed or agreed) ordered to be paid by the defendant in the proceeding and the plaintiff’s costs on a solicitor-client basis, such costs to be taxed, or as agreed in writing between the plaintiff and the solicitors. There was, understandably, no appearance for the defendant.

I am satisfied, on the affidavits of Mr Salanitri, the solicitor who had the conduct of the proceeding, and of the plaintiff herself, of the following facts:

(i)that the solicitors acted for the plaintiff on a “no win, no pay” basis, which meant that had…

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.

Keep reading for free

Create a free CaseChat account to read Chapman v Tobin Brothers Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] VSC 81
Decision Date: 26 March 2002

CaseChat Overview and Summary

In the case of Chapman v Tobin Brothers Pty Ltd, the dispute involved the determination of whether costs incurred between a solicitor and client should be paid from the settlement amount, under sections 135A(13)(C) and (D) of the Accident Compensation Act 1985. The matter was heard and determined in the Supreme Court of New South Wales. The plaintiff, Chapman, sought to have the defendant, Tobin Brothers Pty Ltd, ordered to pay the costs incurred in the legal proceedings from the settlement amount.

The primary legal issue before the court was whether, in the circumstances of the case, an order for costs as between the solicitor and client to be paid from the settlement amount was appropriate. This involved an analysis of the provisions of the Accident Compensation Act 1985 and the relevant case law, particularly Clifford James Loveday v Lloyds Tree Care Pty Ltd, which provided guidance on similar matters. The court had to consider the fairness and reasonableness of such an order in light of the specific facts of the case.

The court found that an order for the costs to be paid from the settlement amount was appropriate. In reaching this decision, the court considered the statutory provisions and the precedent set by previous cases. The court found that the plaintiff had acted reasonably and in good faith throughout the proceedings, and the defendant had not demonstrated any significant prejudice or unfairness resulting from the order. Therefore, the court determined that it was just and equitable to make the order sought by the plaintiff.

The final orders of the court were that Tobin Brothers Pty Ltd was to pay the costs of Chapman's solicitor from the settlement amount. This decision underscores the importance of considering the specific circumstances of each case when determining the appropriateness of such orders under the Accident Compensation Act 1985.

Orders