Kenneth Clarke v National Mutual Life Assurance Ltd , Suncorp Metway Pty Ltd , Second Respondent , Victorian WorkCover Authority , Third Respondent , Nexis Pty Ltd (No 2) and Fourth Respondent

[2010] VSCA 96

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3936 of 2008

KENNETH CLARKE	Appellant
	v
NATIONAL MUTUAL LIFE ASSURANCE LTD	First Respondent
	and
SUNCORP METWAY PTY LTD
	Second Respondent
and
VICTORIAN WORKCOVER AUTHORITY
	Third Respondent
and
NEXIS PTY LTD (NO 2)
	Fourth Respondent

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JUDGES	NEAVE and MANDIE JJA and HANSEN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 February 2010
DATE OF JUDGMENT	27 April 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 96
JUDGMENT APPEALED FROM	Clarke v National Mutual Life Assurance Ltd & Ors (Ruling) (Unreported, County Court of Victoria, Judge Misso, 15 December 2008)

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COSTS – Appellant’s applications to amend statement of claim and refer further questions to Medical Panel refused – Judge’s discretion miscarried – Not open to determine applications while appellant’s review proceedings in Trial Division pending – Appeal dismissed – Respondents sought costs of appeal, application for leave to appeal, and the reserved costs of the application to amend – Appellant succeeded on argument that he had appeal as of right but failed on the appeal – Discretion – Appellant ordered to pay costs of appeal and application for leave to appeal.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr A G Uren QC with Mr A D B Ingram	Holding Redlich
For the First and Third Respondents	Dr K P Hanscombe SC with Mr A S Pillay	Herbert Geer
For the Second and Fourth Respondents	Dr K P Hanscombe SC with Mr A S Pillay	Minter Ellison

NEAVE JA
MANDIE JA

HANSEN AJA:

1. On 15 March 2010 the Court dismissed the appeal[1] and reserved the question of costs.  The Court directed the parties to provide written submissions and stated that it would rule on the matter without a further hearing.  Counsel having provided written submissions we now deal with the question of costs.

   [1]Clarke v National Mutual Life Assurance Ltd [2010] VSCA 43.

1. The respondents seek the costs of the appeal, of the application for leave to appeal and of the application to amend in the County Court.  Alternatively, if the respondents are not entitled to all of the above costs, they seek such proportion thereof as the Court considers just.

1. The appellant opposes such orders, and submits primarily that the respondents pay the costs of the appeal and the application for leave to appeal.  Alternatively, the appellant submits that these costs be reserved for consideration when the appellant’s application for leave to amend the statement of claim is determined, or if no such application is made.

1. In our view the appellant should pay the respondents’ costs of the appeal and the application for leave to appeal.  We would leave the costs of the application in the County Court as they now are, that is, reserved for consideration in that Court.  Having regard in particular to the fact that in the County Court the matter was heard or discussed on three separate days, the learned judge who dealt with the application is in the best position to determine the just disposition of the costs in that Court.

1. Consideration of the relevant facts and circumstances concerning the application in the County Court indicates why it is appropriate that costs should follow the event of failure in this Court.

1. As mentioned in Hansen AJA’s earlier judgment, the appellant’s application in the County Court was made orally without a supporting summons or affidavit.  The transcript of the hearing on 24 October 2008 (the day following the initial hearing on 23 October 2008) records counsel for the respondents stating that the proposed amendment was provided to the respondents at 6.00pm on the day before the directions hearing on 23 October.  Counsel said that ‘there was no time for us to consider the legal issues’.

1. It was in this context of such short notice that on 23 October the judge refused an application by the respondents to adjourn the matter, proceeded to hear the application, indicated that he would allow the amendment and adjourned to the next day consideration of further questions to be referred to a Medical Panel.  On that day (24 October) the respondents were represented by counsel who sought an adjournment on the basis that the amendment raised issues which the respondents required time to consider.  After discussion the judge adjourned the further hearing of the application to 10 December 2008 to permit developed argument and with a direction for written outlines of argument.

1. It was in that context that the application was heard on 10 December.  As directed, each counsel provided a written outline of submissions.  The appellant’s outline referred to the Supreme Court proceedings to review and quash the decision of the second Medical Panel. It was submitted that even if that decision is quashed and the extant medical questions are remitted for consideration by a third Medical Panel the questions were inadequately drafted in terms of covering the appellant’s compensable injuries such that further difficulty was likely.  Hence the need for the amendment and the reference of further questions.  For present purposes this is a sufficient reference to the appellant’s submissions.  In his judgment Hansen AJA set out the parties’ submissions to the judge, and it is unnecessary to repeat them.

1. The fact is that when the application came before the judge the respondents were in the position, which they were entitled to take, of opposing an application the judge had already manifested a disposition to allow, and they did so on grounds that included that while the Opinion of the Medical Panel stood, it precluded the allowance of the amendments. 

1. This submission directly confronted the appellant with the question whether to press the amendment application or defer it until determination of the Supreme Court proceedings.  The appellant chose to press on, which was consistent with an earlier advised decision to do so notwithstanding the pending Supreme Court proceedings.

1. When the application came on for hearing on 10 December, the judge took the approach that, having heard counsel in support of the application on 23 October, he would first hear counsel for the respondents, and that is what happened.  That is, counsel for the appellant was not called on and did not address submissions until reply.  In particular, he said nothing as to whether it was appropriate for the judge to deal with his application prior to determination of the Supreme Court proceedings.  And, as mentioned in the judgment of Hansen AJA, in reply he positively encouraged the judge to proceed as though in disregard of those proceedings.

1. In those circumstances it was open to the respondents to make such submissions as they might be advised in opposition to the appellant’s application.  The submission that the amendment and reference of further questions was precluded by the Opinion of the second Medical Panel merely took advantage of the opportunity provided by the appellant proceeding as he did.  And, it might be added, the opportunity afforded by the judge in hearing the application notwithstanding the unresolved proceedings in the Supreme Court.

1. Counsel for the appellant submits that in view of the findings of this Court the respondents should have asked the judge to not deal with the application once they submitted that the second Medical Panel’s Opinion precluded the amendment.  It was even said that the judge might not have accepted that view.  It was submitted further that all that the appellant had done before the judge was to seek to meet the case put by the respondents.  In our view this submission was an attempt to turn the case on its head and to place blame for what had occurred on the respondents.  The attempt is misconceived.  It was not the respondents’ submission that caused the problem identified by this Court, but rather the appellant bringing and pressing the application to amend prior to the determination of the Supreme Court proceedings. 

1. Having proceeded in this way, which the appellant must be considered to have done advisedly, he ran the risk on costs that is inherent in a contested application, including of an appeal.  Moreover, in our view there was always the risk of the application being refused on the ground that it was premature before determination of the Supreme Court proceedings.  Indeed, that possibility was inherent in the respondents’ submission that while the second Medical Panel’s Opinion stood it precluded the amendment.

1. For these reasons, in our opinion the appellant should pay the respondents’ costs of the appeal and the application for leave to appeal.  We do not overlook that the appellant succeeded on the argument that he had a right of appeal but that does not alter the fact that the appeal has failed.  In our view, considering the matter overall, the just disposition on costs is as we have indicated.

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