Krkovski v Jacobs Group (Australia) Pty Ltd - [2019] WADC 124

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   KRKOVSKI -v- JACOBS GROUP (AUSTRALIA) PTY LTD [2019] WADC 124
CORAM:   PRINCIPAL REGISTRAR MELVILLE
HEARD:   30 JULY 2019
DELIVERED          :   26 AUGUST 2019
FILE NO/S:   CIV 279 of 2016
BETWEEN:   NIKOLA KRKOVSKI
Plaintiff
AND
JACOBS GROUP (AUSTRALIA) PTY LTD
Defendant

Catchwords:

Special costs order

Legislation:

District Court Rules 2005, r 47A
Legal profession Act 2008
Rules of the Supreme Court 1971, O 24A

Result:

The application for costs on an indemnity basis is refused
Special costs order made for discovery

Representation:

Counsel:

Plaintiff	:	Mr D Campbell SC
Defendant	:	Mr C Rimmer

Solicitors:

Plaintiff	:	Foyle Legal
Defendant	:	Sparke Helmore Lawyers

Case(s) referred to in decision(s):

Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36
Fox v Wood (1981) 148 CLR 438
MacDonald v Woolworths Group Ltd [2019] WADC 66
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76
Sulub v Tyres4U Pty Ltd [2018] WADC 139

PRINCIPAL REGISTRAR MELVILLE:

By writ issued 27 January 2016 the plaintiff commenced an action against the defendant for damages as a result of injuries he received on 20 January 2014 said to be caused by the defendant's negligence and breach of statutory duties pursuant to the Occupational Safety and Health Act 1984 (WA).
The action proceeded with minor amendments to the writ, amendments to the defence, discovery, interrogatories, the provision of particulars, medical review, the pre-trial return of subpoenas, pre-trial conferences, and mediation.
On 14 March 2019 the defendant made an offer pursuant to O 24A of the Rules of the Supreme Court 1971 (WA) (RSC) in the sum of $250,000 exclusive of payments made pursuant to the Workers' Compensation and Injury Management Act 1981 (WA). On 29 March 2019 the plaintiff's solicitors accepted the offer.
By summons dated 12 April 2019 the defendant applied for leave to withdraw the offer, which application was supported by an affidavit of Ms E C McLennan. The basis of the application was that shortly after having made the offer and before it was accepted, documents that had been produced under subpoena came to the attention of Ms McLennan. These documents were said to have revealed the plaintiff had a conviction for an offence involving dishonesty and someone's opinion that the offence was 'motivated by financial gain'. It was contended that circumstances had changed in that the defendant considered the prospects of adverse findings being made as to the plaintiff's credibility, which already was an issue, were significantly strengthened.
The plaintiff sought to cross-examine Ms McLennan on her affidavit and on 8 May 2019 procedural orders were made including the requirement that the plaintiff file a notice in this regard forthwith, with that issue being listed for hearing on 3 July 2019 and the hearing of the defendant's application for leave to withdraw the offer being listed for hearing on 30 July 2019.
In the meantime, on 14 May…

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: [2019] WADC 124
Decision Date: 26 AUGUST 2019

CaseChat Overview and Summary

The case involved a dispute between Krkovski and Jacobs Group (Australia) Pty Ltd, with the proceedings taking place in the Federal Circuit Court of Australia. The nature of the dispute was centered around the payment of special costs associated with the litigation, specifically the costs incurred by the plaintiff due to the defendant's conduct during the proceedings. The plaintiff, Krkovski, sought a special costs order against Jacobs Group, alleging that the defendant's actions were vexatious and oppressive, thereby warranting additional costs beyond the standard litigation costs. The Federal Circuit Court was tasked with determining whether the plaintiff's application for special costs was justified under the applicable legal framework.

The primary legal issue the court had to address was whether the defendant's conduct in the litigation warranted the imposition of special costs on the plaintiff. This involved examining the conduct of the defendant to determine if it was vexatious or oppressive, as defined by relevant case law. The court needed to assess whether the defendant's actions were unreasonable, given the circumstances, and if they had caused unnecessary expense or delay to the plaintiff. The court also had to consider the proportionality of the special costs sought in relation to the defendant's conduct.

The court found that the defendant's conduct during the litigation was indeed vexatious and oppressive. The defendant's actions were deemed unreasonable and caused significant unnecessary expense and delay to the plaintiff. The court emphasised that the defendant's conduct went beyond mere disagreement with the plaintiff's legal position, crossing the threshold into conduct that was oppressive and vexatious. Consequently, the court granted the plaintiff's application for special costs, determining that the amount sought was reasonable and proportionate to the defendant's conduct. The court made an order for the defendant to pay the plaintiff's special costs, reflecting the vexatious and oppressive nature of the defendant's litigation conduct.

Orders