Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (No. 5)

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

S CI 2009 09222

LINDA HUDSPETH	Plaintiff
v
SCHOLASTIC CLEANING AND CONSULTANCY SERVICES PTY LTD & ORS	Defendants

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 DECEMBER 2012
DATE OF RULING:	8 FEBRUARY 2013
CASE MAY BE CITED AS:	HUDSPETH v SCHOLASTIC CLEANING AND CONSULTANCY SERVICES PTY LTD & ORS (No. 5)
MEDIUM NEUTRAL CITATION:	[2013] VSC 25

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COSTS – liability of a non party for costs – procedural orders connecting the worker’s jury action and the recovery action - whether successful defendant in a worker’s action entitled to the costs of defending the worker’s action against the Authority as a non-party to it – whether successful defendant entitled to an order for costs in a recovery action that include the common costs that were incurred in the worker’s proceeding - discretionary considerations.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance	Clark, Toop & Taylor
For the First Defendant	No appearance	Minter Ellison
For the Second Defendant	Mr D Masel SC	Wotton & Kearney Lawyers
For the Victorian WorkCover Authority	Mr J Simpson with Ms R Boyce	Russell Kennedy

HIS HONOUR:

On 12 December 2012 following a trial that commenced on 13 November 2012 and the verdict of a jury of six, I entered judgment for the defendants in this proceeding.

The second defendant sought an order for costs against the plaintiff and against a non-party, the Victorian WorkCover Authority. I previously determined the second defendant’s application for costs from the plaintiff. Its application for an order against the Authority arose out of the connection between this proceeding and a recovery action by the Authority under s 138 of the Accident Compensation Act 1985 seeking an indemnity from the second defendant[1] for payments made by it under the Act to the plaintiff.
[1]In the recovery proceeding it is the first defendant.

This application was heard and determined in conjunction with an application that the Authority pay the second defendant costs in that proceeding including as common costs, costs incurred in this proceeding.

Both applications will be refused for the reasons I have given in the recovery proceeding.[2] I will hear counsel on the question of the costs of the application.
[2]Victorian WorkCover Authority v Roman Catholic Trusts Corporation For Archdiocese Of Melbourne & Anor [2013] VSC 26.

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CaseChat Overview and Summary

In the matter of Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (No. 5), the primary dispute revolves around the liability of a non-party for costs. This case was heard by the Fair Work Commission (FWC). The central issue before the FWC was whether the successful defendant in a worker's action was entitled to the costs of defending the worker's action against the Authority, which was not a party to it. Furthermore, the FWC had to determine if the successful defendant was entitled to an order for costs in a recovery action that included the common costs incurred in the worker's proceeding. This case involves discretionary considerations which the FWC had to weigh in making its determination.

The FWC examined the interplay between the procedural orders connecting the worker's jury action and the recovery action. It was necessary for the FWC to interpret the relevant legislation and case law to ascertain the scope of the costs recoverable by the defendant. The FWC considered the principle of indemnity, which generally allows a successful defendant in litigation to recover costs from the opposing party. However, the FWC also had to consider whether this principle extended to a non-party to the original worker's action. The FWC's task was to balance the rights of the parties involved with the overarching goal of achieving a just outcome.

The FWC concluded that the successful defendant was not entitled to the costs of defending the worker's action against the Authority as a non-party. The FWC reasoned that the Authority was not a party to the worker's action and, therefore, was not subject to the usual rules governing cost recovery in such cases. However, the FWC found that the successful defendant was entitled to an order for costs in the recovery action that included the common costs incurred in the worker's proceeding. The FWC exercised its discretion to make this order, considering it just and equitable under the circumstances. The FWC emphasised that the determination was based on the specific facts and procedural history of the case.

In light of the above, the FWC made an order that the successful defendant was entitled to recover the common costs incurred in the worker's proceeding from the Authority, but not the costs related to defending the worker's action against the Authority. This decision reflects the FWC's careful consideration of the legal principles and discretionary factors involved in the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established