Eames v Transport Accident Commission (Ruling)
[2012] VCC 866
•30 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03188
| FIONA LEIGH EAMES | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 May 2012 | |
DATE OF RULING: | 30 May 2012 | |
CASE MAY BE CITED AS: | Eames v Transport Accident Commission (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 866 | |
RULING AS TO COSTS
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SUBJECT: COSTS
CATCHWORDS: Lodgement of an application for serious injury – steps taken by the parties pursuant to a pre-litigation protocol – plaintiff subsequently filed an Originating Motion – whether alleged failure to comply with the pre-litigation protocols to be considered in the context of an application for costs in a proceeding
RULING: the Originating Motion is dismissed with no order as to costs
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Harris | Maurice Blackburn |
| For the Defendant | Ms R Kaye | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 It is necessary to set out a short chronology in order to understand the ruling which I have been called upon to make.
2 The relevant chronology is as follows:
· 2 May 1991 – the plaintiff was injured in a transport accident.
· 3 May 2011 – the plaintiff lodged an application for serious injury with the defendant.
· 20 June 2011 – the plaintiff filed an Originating Motion seeking leave of the Court pursuant to s.93 of the Transport Accident Act 1986 to commence a common law proceeding.
· 21 October 2011 – Judge Davis conducted a directions hearing. A date for trial was fixed for 2 July 2012. The directions hearing was adjourned to an administrative mention on 24 February 2012, by which time the parties were to inform the Court of the timetabling orders which the parties required.
· 4 May 2012 – I conducted a directions hearing. Mr Harris appeared for the plaintiff, and Ms Kaye appeared for the defendant. I ordered that the directions hearing be adjourned to a further directions hearing on 25 May 2012. The reasons for the adjournment will be dealt with later in this ruling.
· 25 May 2012 – I conducted a further directions hearing. I was informed by Mr Harris and Ms Kaye that the defendant had conceded that the plaintiff had suffered a serious injury and either had, or was in the course of, granting a serious injury certificate, and that the question of the limitation defence had also been conceded by the defendant favourably to the plaintiff. The issue which was ultimately ventilated before me was whether the plaintiff or the defendant were entitled to their costs.
The Competing Submissions
3 The parties filed a significant quantity of material prior to the first directions hearing before me, and even more prior the second directions hearing before me.
4 The plaintiff filed an affidavit sworn by Ms Sarah Millen, solicitor with Maurice Blackburn, on 24 May 2012 with 49 exhibits. The defendant filed an affidavit sworn by Ms Tina Lawrence, solicitor to the defendant, on 17 October 2011.
5 In addition, Mr Harris provided me with written submissions dated 4 May 2012 in support of the submissions he made at the first directions hearing before me. Ms Kaye provided me with a chronology, to which relevant correspondence was attached, and at the second directions hearing before me she provided me with a revised chronology in the form of a paginated Court Book.
The Issues
6 What became apparent from the submissions made by Mr Harris and Ms Kaye was that following the plaintiff lodging her application for serious injury on 3 May 2011, the parties applied their energies to compliance with pre-litigation protocols which the plaintiff’s solicitors and the defendant had created.
7 The protocols were not produced, but I am familiar with them. They set out a very sensible course of conduct which includes, among other things, exchange of relevant medical and miscellaneous material so that the defendant can make a decision whether to concede serious injury or to deny it without the necessity for a claimant for serious injury needing to file an Originating Motion before worthwhile negotiations can take place.
8 The complaints made by Ms Kaye were that the plaintiff had dragged her feet and had not provided medical records from the Carrum Downs Medical Centre which the defendant considered to be critically important in its assessment whether to concede serious injury or to deny it. The correspondence exhibited to the affidavit of Ms Millen, and attached to Ms Kaye’s chronology, demonstrate an extraordinary exchange of correspondence between the plaintiff's solicitors and the defendant which commenced on 1 June 2011 and continued up until the eve of the second directions hearing I conducted.
9 The issue which I was initially requested to determine at the first directions hearing before me dissolved when Mr Harris and Ms Kaye obtained instructions that the medical records from the Carrum Downs Medical Centre, which the defendant wanted, had been located and would be exchanged, enabling the defendant to set about the task of determining whether to concede serious injury or to deny it. That was the reason why the directions hearing was adjourned.
10 Mr Harris and Ms Kaye informed me at the second directions hearing before me that the substance of the serious injury application and the limitation question had been resolved. They also informed me that each was applying for costs.
The Question of Costs
11 I was not in a position to digest the large amount of material which I was provided on the occasion of the second directions hearing which I conducted. Although my immediate reaction was that it involved a simple question, I considered that I needed to read Ms Millen's affidavits and Ms Kaye’s chronology and Court Book.
12 Mr Harris and Ms Kaye informed me that the reason why the plaintiff filed the Originating Motion on 20 June 2011 was primarily to stop time running in connection with the limitation question. Mr Harris informed me that the plaintiff was not seeking the costs of the Originating Motion, but only the costs associated with the directions hearings. Ms Kaye also informed me that the defendant’s application for costs was also limited to the costs associated with the directions hearings.
13 After hearing the submissions made by Mr Harris and Ms Kaye, I asked both of them whether the nub of where they parted company was that the plaintiff’s solicitors were attempting to obtain medical material in the face of some difficulties, and the defendant's attitude that the period of time taken by the plaintiff’s solicitors to finally obtain the relevant medical material was due to recalcitrance and a failure to comply with the relevant protocols. They both agreed that this was a simple crystallisation of where my consideration of the issue of costs was to start.
14 Whilst the plaintiff’s solicitors and the defendant are to be commended for creating pre-litigation protocols governing the manner in which a serious injury application is to be lodged for consideration by the defendant, that is ultimately a matter for the parties and not a matter of interest by the Court. It is only when an initiating process such as an Originating Motion is filed that the Court is seized of the proceeding and has the jurisdiction to make an order for costs.
15 I have now read the affidavits and Ms Kaye's chronology and Court Book. I am not persuaded that either party should obtain an order for costs. I am reluctant to give any credence to compliance or non-compliance with pre-litigation protocols in determining the question before me. However, that is not to say that a party who is utterly recalcitrant who could have obtained a result by complying with the protocols should then obtain an order for costs or all of that party's costs in a proceeding.
16 All I am able to determine is that when the application for serious injury was lodged by the plaintiff's solicitors, they were still to obtain material which was highly relevant to a determination by the defendant whether to concede serious injury or to deny it. Perhaps the plaintiff’s solicitors should have obtained all the material before lodging the application, but perhaps it was because of the additional problem posed to the plaintiff by a potential limitation question which prompted the plaintiff’s solicitors to lodge the application to stop time running against the plaintiff.
17 On the other hand, I can well understand the defendant’s frustration in expecting that the plaintiff would provide all of the relevant medical material pursuant to the protocols. The defendant's conduct is to be commended. Its concern was to be in a position to make a decision to serve the interests of the plaintiff.
18 It seems to me that neither party can demonstrate significant fault on the part of the other which would attract an order for costs. I reject the submission made by Mr Harris that because of the concessions made by the defendant, that costs should follow the event.
Conclusion
19 I will order that the Originating Motion be dismissed with no order as to costs.
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