Independent Contractors of Australia v Victorian WorkCover Authority (Costs Ruling)
[2022] VSC 804
•21 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 00427
| INDEPENDENT CONTRACTORS OF AUSTRALIA INC (trading as SELF EMPLOYED AUSTRALIA) | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY (trading as WORKSAFE VICTORIA) | Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | The parties filed written submissions |
DATE OF RULING: | 21 December 2022 |
CASE MAY BE CITED AS: | Independent Contractors of Australia v Victorian Workcover Authority (Costs Ruling) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 804 |
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COSTS – Originating motion filed out of time – Defendant did not contend originating motion filed out of time prior to the issue being raised by the Court – Proceeding dismissed – Whether costs should follow the event – Appropriate to order costs on an issues basis – Defendant ordered to pay plaintiff’s costs of written submissions opposing summons for trial of separate questions – Plaintiff otherwise ordered to pay defendant’s costs on a standard basis – Supreme Court (General Civil Procedure) Rules 2015, r 47.04, 56.02 – Occupational Health and Safety Act 2004, s 131.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No Appearance | |
| For the Defendant | No Appearance |
HIS HONOUR:
On 2 December 2022 the Court delivered judgment dismissing the proceeding.[1] I concluded that the originating motion filed by the plaintiff (‘SEA’) on 14 February 2022 was filed outside of the 60-day period prescribed by r 56.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’). I also concluded that the plaintiff failed to establish special circumstances warranting the grant of an extension of time.
[1]Independent Contractors of Australia v Victorian Workcover Authority [2022] VSC 743.
I provided the parties with an opportunity to file written submissions as to costs. I expressed a provisional view that:
(a) VWA should pay SEA’s costs incurred during the period 14 February 2022 to 2 August 2022 referrable to VWA’s failure to contend that the proceeding was filed out of time; and
(b) SEA should pay VWA’s costs for the period subsequent to 2 August 2022.
The reference to 2 August 2022 reflects the consideration that prior to this date VWA did not contend that SEA’s originating motion had been filed out of time.
In their written submissions the parties advanced significantly divergent positions. SEA submits that there should be no order as to costs. Alternatively, it submits that the Court should make final orders in accordance with the provisional view expressed in the judgment delivered 2 December 2022. VWA submits that SEA should be ordered to pay all of its costs of the proceeding on a standard basis, including costs incurred prior to 2 August 2022. It submits that as the proceeding has been dismissed, costs should follow the event. It submits that there is no justification for ordering it to pay any of the costs incurred by SEA prior to 2 August 2022. It submits that there is nothing about its conduct prior to that date which warrants a departure from the usual practice whereby costs follow the event.
The proceeding involved two discrete issues. The first issue concerned VWA’s application by summons filed 23 March 2022 for the trial of separate questions. The second issue, which arose as a consequence of the Court’s correspondence with the parties on 2 August 2022, concerned the question of whether the originating motion, filed on 14 February 2022 was filed out of time and, if so, whether special circumstances warranted the granting of an extension of time.
The Court has a broad discretion in relation to costs and may in an appropriate case award costs on an issues basis.[2] VWA has succeeded in establishing that the originating motion was filed out of time and that there are no special circumstances which justify the grant of an extension of time. As to VWA’s summons filed 23 March 2022 neither party has achieved a successful outcome, as the summons has not been the subject of any final judicial determination. The summons was adjourned on 21 June 2022 to allow VWA to reformulate the questions to be the subject of its application for a separate trial. However, SEA did successfully resist VWA’s application for a separate trial of the questions as set out in the summons filed on 23 March 2022.
[2]McSteen v Architects Registration Board [2018] VSCA 136, [7]; APN Fund Management Ltd v Australian Property Investments Strategic Pty Ltd (No 2) [2012] VSC 365, [10]–[11].
SEA characterises the costs which it has incurred in resisting the summons of 23 March 2022 as costs thrown away which should be paid by VWA. In effect, it submits that these costs would not have been incurred if VWA had contended at an earlier stage of the proceeding that the originating motion was filed out of time. On the other hand, VWA submits that the only reason it had occasion to file the summons of 23 March 2022 was the fact that SEA had commenced a proceeding against it on 14 February 2022. It submits that in circumstances where the Court has determined that the originating motion was filed outside of the 60-day time limit prescribed by r 56.02, there is no justification for SEA to be the beneficiary of a costs order in its favour.
I have concluded that the appropriate order as to costs in relation to the summons of 23 March 2022 is an order that each party bear their own costs, save for those costs which are the subject of the Court’s order of 21 June 2022, and the costs of SEA’s written submissions dated 11 May 2022. The order of 21 June 2022 required VWA to pay SEA’s costs of and incidental to the 21 June 2022 hearing on a standard basis to be taxed in default of agreement. Neither party has submitted that the order of 21 June 2022 should be set aside. SEA’s written submissions were not covered by the order made on 21 June 2022. The costs of those submissions were reserved.
By its summons of 23 March 2022, VWA applied for the determination of the following questions pursuant to r 47.04 of the Rules:
1. Has the defendant conducted an investigation of the matter complained of in the request date 29 September 2020 for the purpose of s 131 of the Occupational Health and Safety Act 2004 (Vic) (Act)?
2. If the answer to 1 is “yes”, did s 131 of the Act required the defendant to:
a. give reasons under s 131(2A)(a)(ii)? or
b. take any step under s 131(3) of the Act?
During the hearing of 21 June 2022, the Court noted that question 1 may involve the resolution of a question of mixed fact and law, and as such, may not be appropriate for determination under r 47.04 of the Rules.[3] The Court noted that there could be a formulation of a question of law which could dispose of the proceeding.[4] The Court observed that any such question would need to address the meaning of ‘matter’ in s 131 of the Occupational Health and Safety Act 2004.
[3]Transcript of Proceedings, T 7 L 6–7; T 38 L 9–12 (21 June 2022).
[4]Ibid T 38 L 31 – T 39 L 1.
Mr Craig KC, who appeared for VWA on 21 June 2022, applied for an adjournment of the summons to enable VWA to reformulate the questions to be the subject of the application for a separate trial. The application for an adjournment was granted. VWA was ordered to pay SEA’s costs of and incidental to the hearing on 21 June 2022. The costs of the written submissions filed by SEA in advance of the hearing were reserved.
On 8 July 2022, VWA filed further written submissions which proposed a reformulated question for resolution under r 47.04 of the Rules:
By reference to the request pursuant to s 131(1) of the Occupational Health and Safety Act 2004 (Vic) (OHS Act) made by Mr Ken Phillips, the Executive Director of the plaintiff, on 29 September 2020, what is the “matter” for the purposes of ss 131(2), (2A), (3) and (4) of the OHS Act?
On 15 July 2022 SEA filed submissions in reply in which it opposed the application for determination of the reformulated question.
SEA’s written submissions of 11 May 2022 set out the basis of its opposition to the resolution of the questions in the summons dated 23 March 2022. SEA succeeded in opposing the determination of those questions. VWA will be ordered to pay SEA’s costs of the written submissions dated 11 May 2022. Each party will otherwise bear their own costs of the summons dated 23 March 2022, including the costs of the further submissions filed after the hearing on 21 June 2022.
VWA’s success in establishing that the proceeding was commenced out of time does not justify a costs order in its favour in relation to the summons of 23 March 2022. The costs in respect of the summons are discrete from the costs incurred in respect of the issue of whether the proceeding was brought out of time. Equally, the fact that VWA did not contend prior to 2 August 2022 that the originating motion was filed out of time does not justify an order that VWA should pay all of SEA’s costs referrable to the summons of 23 March 2022. Since 14 February 2022 VWA has been a party to proceedings which were commenced out of time. To the extent that SEA has incurred costs resisting VWA’s summons of 23 March 2022 this was a consequence of SEA having commenced a proceeding against VWA which the Court has determined was commenced out of time. The appropriate order as to costs in respect of the summons of 23 March 2022 is an order that each party bear their own costs, save for SEA’s costs of the written submissions dated 11 May 2022 and the costs which are the subject of the order made 21 June 2022.
The Court will make the following orders:
1. The proceeding is dismissed.
2. Subject to paragraph 3, the plaintiff pay the defendant’s costs on a standard basis to be taxed in default of agreement.
3. Each party is to bear their own costs in respect of the defendant’s summons dated 23 March 2022, save for the plaintiff’s costs of its written submissions dated 11 May 2022 and the costs the subject of the order made on 21 June 2022.
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