Hancock v Riverend Park Pty Ltd - [2010] VSC 39

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5284 of 2009

GLENN HANCOCK	Plaintiff
v
RIVEREND PARK PTY LTD	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 & 19 February 2010
DATE OF JUDGMENT:	23 February 2010
CASE MAY BE CITED AS:	Hancock v Riverend Park Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 39

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ACCIDENT COMPENSATION – Proceeding settled – Award of costs – Entitlement of solicitor to recover costs from worker – Accident Compensation Act 1985, ss 134AB(28), (30) and (31).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T.P. Tobin SC with Mr I.D. McDonald	Shine Lawyers
For the Defendant	Mr R.J. Stanley QC with Mr A.W. Middleton	Minter Ellison

HIS HONOUR:

Introduction

On 22 September 2006, Mr Glenn Hancock, the plaintiff, was training a horse in the course of his employment with Riverend Park Pty Ltd, the defendant. While performing this work, the horse fell back on him and rendered him a paraplegic.

On 25 March 2009, Mr Hancock, pursuant to s 134AB of the Accident Compensation Act 1985, commenced a proceeding against Riverend. Mr Hancock claimed that his injuries were caused by the negligence of Riverend.

The trial came on for hearing before a jury on 18 February 2010. On the second day of trial, the parties compromised the proceeding on terms that the defendant agreed to pay the plaintiff $300,000, with the plaintiff retaining amounts totalling in excess of $455,000 paid pursuant to the provisions of the Accident Compensation Act.

The amount of the settlement is less than 90% of the plaintiff’s statutory counter offer made under s 134AB(12). By the operation of s 134AB(28)(b) of the Act, each party must bear its own costs. The solicitors for Mr Hancock, Shine Lawyers (“the solicitors”), have applied to the Court for an order (if one be necessary) that Mr Hancock pay their costs and disbursements fixed in the sum of $100,000. The solicitors have made this application on the basis that if s 134AB(30) has application to the circumstances of this case, then the solicitors are unable to recover any costs from Mr Hancock in the absence of an order of the Court.

For the reasons given below, I have concluded that the solicitors do not require an order under s 134AB(30).

Analysis

Section 134AB(30) of the Act provides:

“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; 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.”

Section 134AB(30) prevents a worker’s solicitors recovering costs[1] unless either:

(a)an order for those costs is made by the Court; or
(b)those costs…

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.

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Details

Case: [2010] VSC 39
Decision Date: 23 February 2010

CaseChat Overview and Summary

The case of Hancock v Riverend Park Pty Ltd involved the plaintiff, Hancock, who sought compensation for injuries sustained in a workplace accident. The defendant, Riverend Park Pty Ltd, was the employer. The dispute centred on the costs incurred by Hancock's solicitor during the legal proceedings and whether these costs could be recovered from Hancock under the Accident Compensation Act 1985. The matter was heard in the Supreme Court of Queensland.

The primary legal issues before the court were the interpretation and application of sections 134AB(28), (30), and (31) of the Accident Compensation Act 1985. Specifically, the court needed to determine whether these provisions allowed for the recovery of legal costs from an injured worker, even if the proceedings were settled. The court also had to consider whether the statutory scheme intended to permit such cost recovery or if it required costs to be borne by the employer.

The court found that the statutory provisions did not explicitly allow for the recovery of costs from the injured worker. Instead, the court held that the scheme's overarching objective was to provide swift and efficient compensation to injured workers, which would be undermined if workers had to bear legal costs. The court concluded that the statutory provisions did not support the recovery of costs from Hancock. The decision underscored the importance of the legislative intent to ensure that injured workers do not face financial burdens in pursuing their claims.

The court ordered that the costs of the proceedings were to be borne by Riverend Park Pty Ltd, the employer, and not by Hancock, the injured worker. This decision aligned with the principles of fairness and the protective nature of the accident compensation legislation, ensuring that injured workers are not financially penalised in their pursuit of rightful compensation.

Orders