Ghassan Merhi and v Ford Motor Company of Australia Limited and
[2015] VSCA 13
•11 February 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 00048
| GHASSAN MERHI |
| Appellant |
| V |
| FORD MOTOR COMPANY OF AUSTRALIA LIMITED |
| Respondent |
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| JUDGES: | NEAVE, TATE and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 September 2014 |
| DATE OF JUDGMENT: | 11 February 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 13 |
| JUDGMENT APPEALED FROM: | Merhi v Ford Motor Company of Australia (Unreported, County Court of Victoria, Judge Bourke, 28 March 2011). |
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COSTS – Whether respondent should pay the costs of the appeal in the circumstances where the appeal succeeds only by reason of the admission of fresh evidence – Whether the Court should apportion costs of the trial at first instance and appeal – Whether costs of the trial at first instance should abide by the outcome of the remittal – Burden on Costs Court of Complex costs orders – Orders made.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A D B Ingram | Slater & Gordon |
| with Ms N Wolski | ||
| For the Respondent | Mr S O’Meara QC | Thomson Geer |
| with Ms R Kaye |
NEAVE JA
TATE JA
SANTAMARIA JA:
On 12 December 2014, this Court made orders allowing an appeal by Mr Ghassan Merhi (‘the appellant’) against the judgment and orders of her Honour Judge Bourke, whereby her Honour had held that the appellant had not suffered a serious injury falling within s 134AB(37)(a) or (c) of the Accident Compensation Act 1985 (‘the Act’) and was therefore not entitled to a grant of leave to commence common law proceedings against the Ford Motor Company of Australia Limited (‘the respondent’) to recover damages for injuries suffered in the course of his employment.[1]
[1]Merhi v Ford Motor Company Australia, (Unreported, County Court of Victoria, Judge Bourke, 28 March 2011) (‘Reasons’).
This Court held that the grounds of appeal alleging error on the part of the trial judge were not made out, but that the appellant should be given leave to adduce fresh evidence relating to the effects of a back operation performed on the appellant after the trial judge had handed down her decision. Leave was also given to the respondent to rely on fresh evidence of video surveillance of the appellant conducted after his back operation. The Court remitted the matter to the County Court to determine, on the whole of the evidence (including the fresh evidence) whether the appellant is now suffering from a serious injury falling within s 134AB(37)(a) of the Act.[2] The Court ordered, at the time of giving judgment, that, failing agreement, the parties should make written submissions as to costs.
[2]The fresh evidence adduced by the appellant related only to a physical injury, therefore s 134AB(37)(c) of the Act is irrelevant for the purposes of the remittal.
Counsel’s Submissions
The respondent conceded that the respondent should pay the costs of the appeal and submitted that each party should be required to pay the other party’s costs of their respective applications to adduce fresh evidence. It was also submitted that the costs orders made by Judge Bourke, requiring the appellant to pay the respondent’s costs of the application for leave to commence common law proceedings, should not be set aside, despite the order that the matter be remitted to a second hearing in the County Court. The respondent argued that the Court had found no error in Judge Bourke’s reasons and that the appeal was allowed solely because the appellant’s application to adduce fresh evidence had succeeded. It was submitted that although the costs orders relating to the first hearing should normally await determination of the issue remitted to the second hearing,[3] it would be unjust to delay the making of orders in this case because the appellant had chosen to proceed with the original hearing before having his back operation. In these circumstances the appellant’s decision would result in the respondent incurring additional costs because the appellant’s choice resulted in the respondent having to participate in a rehearing.
[3]Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd [2014] VSCA 78.
In the alternative, the respondent submitted that:
(a) The respondent should pay 60% of the appellant’s costs of the appeal;
(b) The respondent should pay the costs of the appellant’s application for leave to adduce fresh evidence;
(c) The appellant should pay the costs of the respondent’s application for leave to adduce fresh evidence; and
(d) The costs of the initial serious injury application should abide the outcome of the rehearing.
The appellant submitted that the respondent should pay the appellant’s costs of the appeal and that determination of the costs of the first serious injury application should abide the outcome of the rehearing. It was argued that the fact that the new trial would take account of the availability of the fresh evidence did not justify departure from the principle under which the costs of the first hearing are usually determined by the court which rehears the matter.
Conclusion
We deal first with the costs of the first hearing. In Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd[4] Whelan JA said that:
In relation to the costs of the first trial, upon the assumption that there will need to be a second trial, the general rule is that costs of the first trial abide the result of the second. But that general rule will not apply where the justice of the case requires a different course.[5]
[4]Ibid.
[5]Ibid at [63].
An example of a case where departure from the normal approach may be justified is where the second trial was necessitated by the conduct of counsel.
We would reject the respondent’s argument that the costs orders made by Judge Bourke should stand, despite the remittal of the matter for a second hearing. The appellant could have sought an adjournment in order to have his back operation before pursuing his application for leave to commence common law proceedings. But we do not consider that he should be penalised by having a costs order made against him because he did not do so.
Up until April 2009, the medical specialists treating the appellant considered that surgical intervention, although an option, was not recommended. In April 2009, Mr O’Brien, a Neurosurgeon treating the appellant, recommended a less invasive localised procedure to treat his pain,[6] and said that ‘surgical intervention at this point would await his response to regional pain relieving techniques’. The respondent refused to fund this procedure[7] and the appellant did not have it.[8]
[6]Mr O’Brien referred the appellant to Dr Verrills, a pain specialist, for medial branch block treatments, a procedure involving injecting anaesthetic products into the appellant’s lower back.
[7]Reasons, [55].
[8]In the first hearing, the appellant also claimed that he had a serious knee injury. That claim failed. In the medico-legal report prepared by orthopaedic surgeon, Mr Ian Jones, it was indicated that the appellant had been advised that he should not have any necessary back surgery before having knee surgery. It appears that the insurer declined to pay for the knee surgery. The trial judge found that it was unreasonable for the appellant to refuse to place himself on a public waiting list to have the knee surgery or to pay for it himself.
Moreover at the first hearing the respondent challenged the appellant’s claim that back surgery was required. At that time, the appellant’s treating doctor, Dr Rowais, was the only medical practitioner who considered that immediate back surgery was necessary.
We further note that the preparation for and rehearing of the second application should not take a great deal of time. The respondent will be able to rely on the evidence adduced at the first hearing and the new video surveillance evidence, and to cross-examine the appellant on any inconsistencies between his evidence at the second hearing and the evidence he gave at the first hearing. In these circumstances we do not consider it unjust that costs orders relating to the first hearing be postponed until the results of the second hearing are known.
We now turn to the costs of the appeal. Although a respondent to an appeal will normally be liable for the costs of a successful appellant, in some cases it is appropriate to depart from that principle.[9] In Investec Bank (Australia) Limited v Glodale Pty Ltd[10] this Court apportioned the costs between the appellant and respondent, to take account of the fact that each party succeeded on some of the issues raised on appeal and cross-appeal.
[9]For the general principles applicable to costs orders where both parties succeeded in part on an appeal see Chen v Chan [2009] VSCA 233, [10].
[10][2009] VSCA 113. See also Zacharaides v Allforks Australia Pty Ltd (2009) 26 VR 47 where the respondent was ordered to pay 50% of the appellant’s costs of the appeal and Tayles v Davis(No 2) [2010] VSCA 107, where each party was ordered to bear their own costs of the appeal.
This case is not on all fours with cases in which a respondent has been ordered to pay only a percentage of the appellant’s costs of appeal because the appellant has failed to make out a number of the grounds relied upon. But it is sufficiently analogous to such cases to justify an apportionment of the costs of the appeal and the appellant’s application. Here the appellant failed in making out any of his grounds of appeal, but succeeded in having the matter remitted to a second hearing as a consequence of his successful application to admit fresh evidence. The respondent’s application to admit fresh evidence was bound to succeed, once leave was granted to the appellant.
In these circumstances, we consider it appropriate to order that the respondent pay 60% of both the costs of the appeal and the appellant’s application to admit fresh evidence. We do not consider it necessary to make separate orders relating to the costs of the appeal and the costs of the appellant’s and respondent’s applications. As the Court observed in Kalinic v Acron Engineering Pty Ltd & Victorian Workcover Authority[11] it is not desirable for this Court to spend time determining the precise costs to be attributed to specific issues, because orders of this kind impose an unnecessary burden on intermediate appellate courts and the specifics of costs distribution is properly a matter for the Costs Court. Excessive complexity also unnecessarily burdens the Costs Court.[12] The appeal and the application to adduce fresh evidence were heard at the same time and required consideration of related issues. In these circumstances we consider it unnecessary to make separate orders differentiating between the costs of the appeal and the costs of the appellant’s and respondent’s applications. The 60% figure is intended to take all these matters into account.
[11][2013] VSCA 363, [7].
[12]See the similar comments made on issue based orders in Marriner v Australian Super Developments Pty Ltd (No 2) [2012] VSCA 290, [18].
The orders of the Court are as follows:
(e) The costs orders made on 28 March 2011 by her Honour Judge Bourke, in proceeding number CI-10-01624, be set aside.
(f) The respondent pay 60% of the total of the appellant’s costs of the appeal and the appellant’s application for leave to adduce fresh evidence, to be taxed on a standard basis.
(g) The costs of the initial serious injury application be determined by the judge presiding in the re-hearing.
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