Chelberg v Urban Maintenance Systems Pty Ltd (Ruling)
[2011] VCC 974
•20 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04213
| PETER CHELBERG | Plaintiff |
| v | |
| URBAN MAINTENANCE SYSTEMS PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7, 8 and 9 March 2011 |
| DATE OF RULING: | 20 May 2011 |
| CASE MAY BE CITED AS: | Chelberg v Urban Maintenance Systems Pty Ltd (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 974 |
RULING
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.50(3) – claim only for arrears of weekly payments of compensation – whether costs awarded on County Court scale or Magistrates’ Court scale
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mrs R Jordan | Shine Lawyers Pty Ltd |
| For the Defendant | Mr P Burke | Herbert Geer |
| HIS HONOUR: |
1 On 20 May 2011, in this matter I made the following orders:
(a) decision of the agent of the Victorian WorkCover Authority dated 27 May 2010 be overturned; (b) reinstatement of weekly payments from 14 June 2010 pursuant to s.93C(2)(b) and for such payments to be paid in accordance with law to date and continuing; (c) defendant to pay interest pursuant to s.114E(1)(c) of the Act; (d) reserve the issue as to scale of costs – although there is no issue as to the granting of two refreshers, two hours of special conferences and brief to hear deferred judgment; (e) defendant to pay the reasonable costs of the preparation, filing and service of the Court Books, first copy to be on Scale D of the County Court scale of costs and thereafter any further necessary copies to be at a commercial rate to be assessed by the Costs Court; and (f) liberty to apply. 2 The issue in relation to costs arises as the defendant submits that the appropriate scale of costs is Scale “F” of the Magistrates’ Court scale whereas it was submitted on behalf of the plaintiff that the appropriate scale is Scale “D” of the County Court scale of costs.
3 In support for an award of County Court costs, it was submitted on behalf of the plaintiff that:
(a)
the “complexity” of the matter warranted it being heard in the County Court rather than the Magistrates’ Court. In this respect, the plaintiff points out that up to a short number of days prior to the hearing, “causation” was a live issue and indeed, Senior Counsel had been originally briefed; and
(b)
the amount of arrears of compensation is in the order of $65,000 and continuing.
The Legislation
4 Section 50(3) of the Accident Compensation Act 1985 as amended (“the Act”) states:
“Costs awarded to a worker or claimant by the County Court in proceedings brought by the worker or claimant in which the judgment or decision is a judgment or decision that could have been made by the Magistrates’ Court, had the proceedings been brought in the Magistrates’ Court, must be awarded as if the scale of costs applicable in the Magistrates’ Court applied.”
5 The Magistrates’ Court has a like jurisdiction to the County Court unless expressly excluded by the Act.[1]
[1] See generally s.43 of the Act
6 I refer to Colac Otway Workforce Pty Ltd v Dwyer,[2] a decision of the Court of Appeal which examined the inter-relationship between s.43 and s.50 of the Act. Nettle JA, who delivered the judgment on behalf of the Court, stated, in part:
“As the judge held, it is plain that s.50 of the Act confines a plaintiff's costs to the Magistrates' Court scale where the outcome of the proceeding could have been achieved within the jurisdiction of the Magistrates' Court, and that is so regardless of whether the outcome is achieved by way of judgment or decision or settlement or compromise. The only question was whether the result of the consent orders could have been achieved by a judgment or decision made by the Magistrates' Court if the proceeding had been brought in that court.”
(my emphasis)
[2] [2005] VSCA 230
7 In that proceeding, the Court of Appeal upheld the trial judge’s decision to award County Court scale costs. Nettle JA stated:
“To put it in the sort of terms that were used by Byrne J in WorkCover Authority v Taylor, where a plaintiff brings a proceeding in a particular court of limited jurisdiction, the plaintiff thereby expresses an assessment that the matter is within the jurisdiction, and the court may ordinarily assume that the plaintiff's assessment is accurate, unless and until the assessment is successfully challenged.
It follows that, if the plaintiff in this case had brought her claim in the Magistrates' Court rather than the County Court, the plaintiff would have been taken to have made an assessment that the matter was within the jurisdiction conferred on the Magistrates' Court by s.43, and it is possible that the Magistrates' Court would have proceeded on that basis, until and unless that assumption were successfully challenged.
Turning then to the application of s.50 in County Court proceedings, it does not follow from the fact that the Magistrates' Court may be entitled to make assumptions about its s.43 jurisdiction in Magistrates' Court proceedings that a judge of the County Court is bound to conclude that s.50 applies in County Court proceedings. To the contrary, as I see it, where as here a plaintiff brings his or her proceeding in the higher court, the plaintiff is seen to have made an assessment that the matter is properly to be dealt with by the higher court, and the higher court may ordinarily assume that the plaintiff's assessment is accurate unless and until that assessment is successfully challenged.
In accordance with ordinary principles, once a plaintiff regularly invokes the jurisdiction of the higher court and the defendant seeks to avail itself of a provision as to costs like s 50, the defendant bears the burden of establishing that the section has been engaged. Hence, unless and until the defendant discharges the burden of demonstrating that the plaintiff could have brought the proceeding within the limited jurisdiction of the lower court, it is neither possible nor appropriate for the higher court to rule that s 50 applies.”[3]
[3] Colac Otway Workforce Pty Ltd (op cit) paragraphs 14 to 17
8 In the Colac Otway matter, the Court was unable to ascertain the amount of medical and like expenses or indeed, the value of the potential s.98C claim for which a declaration of liability had been made. In such circumstances, the defendant could not successfully challenge the assumption made by the plaintiff that the matter should have been brought in the County Court.
9 I was also referred to the matter of Di Paolo v Victorian WorkCover Authority,[4] a decision of his Honour Judge Bowman. That matter essentially involved whether or not the plaintiff’s employment was connected with the State of Victoria in connection with s.80 of the Act. A determination was made by consent that the plaintiff’s employment was connected with the State of Victoria and thus the injury be compensable under the Act. Furthermore, the nature of the injury resulted in paraplegia and Judge Bowman understandably stated that given the compensability of the injury, arrears of compensation and in particular, medical and like expenses associated with the paraplegia, would be of some magnitude. In such circumstances, he awarded costs on the County Court scale.
[4] [2010] VCC 1327
10 There is no issue in the present proceeding that the plaintiff suffered a compensable injury and had been incapacitated up until at least 13 June 2010. Payments were terminated on that date on the basis that the plaintiff had a “capacity for work”. Having found that the plaintiff did suffer an “incapacity for work”, an order was made reinstating weekly payments as from 14 June 2010 and for such payments to be paid in accordance with law to date and continuing.
11 Medical and like expenses, or for that matter s.98C, were not issues in the proceeding. The arrears of compensation were ascertainable and as already indicated, the parties agreed such arrears were in the order of $65,000.
Conclusion
12 I am of the view that it is appropriate to award costs to the plaintiff on Scale F of the Magistrates’ Court scale rather than Scale D of the County Court scale of costs. I have formed such view for the following reasons:
(a)
Clearly, the outcome of the proceeding could have been achieved within the jurisdiction of the Magistrates’ Court.
(b)
There are no ancillary matters such as medical and like expenses or a s.98C declaration giving rise to indeterminate assessments of the value of the compensation gained.
(c)
Because of the arithmetical calculation of arrears, it can be said that the defendant has successfully challenged the assessment of the plaintiff that the proceeding be issued in the County Court.
(d)
I tend to the view that the wording of s.50(3) of the Act does not lend itself to considerations of “complexity” as suggested by the plaintiff in this proceeding.
13. Accordingly, I order the defendant to pay costs on Scale F of the Magistrates’ Court scale of costs together with two refreshers, two hours of special conferences and a brief fee to hear the deferred judgment.
14. For the sake of completeness, I note that there is no provision in the Magistrates’ Court scale of costs for court books but in all the circumstances, consider such books were of great advantage to the Court and to the parties in the running of this matter and in all the circumstances, I exercise my discretion to allow such item on Scale D of the County Court scale of costs.
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