Karam v Palmone Shoes Pty Ltd - [2011] VSCA 144

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0031
S APCI 2010 0032

AKRAM KARAM	Applicant
	v
PALMONE SHOES PTY LTD (ACN 005 663 141)	Respondent

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JUDGES	TATE JA and HARGRAVE AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 April 2011
DATE OF JUDGMENT	16 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 144
JUDGMENT APPEALED FROM	Karam v Palmone Shoes Pty Ltd (No 2) [2010] VSC 82 (T Forrest J)

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APPEAL – Application for leave to appeal costs orders – Two proceedings brought by applicant under Accident Compensation Act 1985 and were heard together – Whether the two proceedings had become fused for the purposes of awarding costs – Leave to appeal granted – Accident Compensation Act 1985, ss 134AB(28), 135BA.

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Appearances:	Counsel	Solicitors
The Applicant in person
For the Respondent	No appearance	Minter Ellison
For Lennon Mazzeo Lawyers	Mr S R McCredie	Lennon Mazzeo Lawyers
For Aloe & Co Pty Ltd	Mr J Aloe	Aloe & Co Pty Ltd

TATE JA:

Mr Karam seeks leave to appeal from costs orders made by T Forrest J on 23 February 2010[1] following the joint trial of two compensation claims under the Accident Compensation Act 1985 (‘the Act’). Lennon Mazzeo Lawyers, former solicitors for Mr Karam, also make an application for security for costs by payment into court of the sum of $15 000 should leave be granted.
[1]Karam v Palmone Shoes Pty Ltd (No 2) [2010] VSC 82 (‘Reasons’).

The two compensation claims were made against Palmone Shoes who employed Mr Karam between 2002 and 2006. The proceedings can be referred to respectively as the ‘cancer case’ and the ‘asthma case’. The proceedings were heard together and both arose out of the exposure of Mr Karam to toxic chemicals, namely, benzene and its derivatives in glues and solvents, when working for Palmone Shoes.

In the cancer case (proceeding number 9113 of 2009), Mr Karam was unsuccessful, ultimately failing to establish liability on the part of Palmone Shoes primarily because of a failure to prove that the exposure to the relevant chemicals caused the cancer. However, he was successful in the asthma case (proceeding number 9926 of 2009).

Before the trial of the asthma case, Palmone Shoes made a statutory offer of $180 000 and Mr Karam made a counter offer of $270 000 which was rejected. When Mr Karam succeeded in establishing liability at trial, judgment was eventually entered for him in the sum of $196 315.

On 23 February 2010, the trial judge made the following orders:

(1)There be judgment for [Palmone] in [the cancer case].
(2)[Mr Karam] pay [Palmone’s] costs of [the cancer case].
(3)The payment of those costs is stayed until the resolution of the appeals by [Mr Karam] relating to both matters.
(4)There be judgment for [Mr Karam] in [the asthma case] in the sum of $196 315.
(5)[Palmone] pay into Court the proceeds from the judgment sum in [the asthma case], to be held by the Senior Master or…

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: [2011] VSCA 144
Decision Date: 16 May 2011

CaseChat Overview and Summary

In the case of Karam v Palmone Shoes Pty Ltd, the applicant sought leave to appeal costs orders made in two separate proceedings brought under the Accident Compensation Act 1985. The two proceedings were heard together, and the applicant challenged the decision of the primary judge who determined that the proceedings had not become fused for the purpose of awarding costs. The court of appeal was required to determine whether the primary judge's decision was correct and, if not, whether the applicant should be granted leave to appeal.

The court considered whether the two proceedings had become fused for the purpose of awarding costs. The court noted that the two proceedings were related, as they both involved the same parties and related to the same incident. However, the court held that the proceedings had not become fused as they involved different causes of action and different factual issues. The court also noted that the primary judge had not erred in his determination that the proceedings had not become fused.

The court held that the primary judge's determination that the proceedings had not become fused was correct, and that the applicant was not entitled to have the costs of the two proceedings assessed on a fused basis. The court also held that the applicant was not entitled to costs for the appeal to the court of appeal, as the appeal did not result in a substantial change in the applicant's favour.

The court granted the applicant leave to appeal the costs orders, but did not set aside the costs orders made by the primary judge. The court held that the primary judge's determination that the proceedings had not become fused was correct, and that the applicant was not entitled to have the costs of the two proceedings assessed on a fused basis. The court also held that the applicant was not entitled to costs for the appeal to the court of appeal, as the appeal did not result in a substantial change in the applicant's favour.

Orders