Martin, Shane v Sport Centres Trust (Ruling No.2)

[2009] VCC 1501

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-08-04248

SHANE MARTIN	Plaintiff
v
STATE SPORT CENTRES TRUST	Defendant
(ABN 930 640 295 102)

---

JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	18, 19, 20, 21, 22, 25 and 26 August 2009
DATE OF RULING:	9 September 2009
CASE MAY BE CITED AS:	Martin, Shane v Sport Centres Trust (Ruling No.2)
MEDIUM NEUTRAL CITATION:	[2009] VCC 1501

RULING

---

Catchwords: Costs – Plaintiff recovers a sum by judgment which is less than 50 per cent of the jurisdictional limit of the Magistrates’ Court – Application under Rule 63A.24 – Factors relevant to exercise of discretion to award costs under County Court Scale.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G J Burns	M W Law
For the Defendant	Mr B R McTaggart	Deacons
HIS HONOUR:

1          In this proceeding, the plaintiff sought damages against the defendant for injuries suffered by him in an incident which occurred on 9 April 2006. The matter was heard before a jury. Prior to the commencement of the trial the parties agreed that the appropriate assessment figure for the plaintiff’s damages was $128,084.85. In these circumstances, the jury which was empanelled in the proceeding was required to determine only:

• The liability of the defendant with respect to the plaintiff’s accident;

• Whether the plaintiff was guilty of contributory negligence;

• The apportionment of responsibility if contributory negligence was made out.

2          On 25 September 2006, the jury returned a verdict in the proceeding in which:

(i)	It found the defendant had breached the duty of care which it owed to the plaintiff;
(ii)	It found that the plaintiff was guilty of contributory negligence;
(iii)	It apportioned 90 per cent of the responsibility for the accident against the plaintiff.

3          By reason of the verdict of the jury, the plaintiff is entitled to a judgment (subject to a small amount of interest which is to be agreed between the parties) for $12,808.48.

4          The plaintiff now applies for an order under Rule 63A.24 that the plaintiff’s costs should be allowed on County Court Scale B. Before making such an order, I accept that I must be satisfied that special circumstances exist to warrant a departure from the rule that the plaintiff is only entitled to have his costs as taxed on the Magistrates’ Court Scale[1]

[1]             O’Doherty v McMahon [1971] VR 625

5          The plaintiff submits that special circumstances warranting the exercise of my discretion in his favour exist for the following reasons:

(a)	The parties agreed that the assessment figure with respect to the plaintiff’s damages was $128,000, which figure exceeded the jurisdiction of the Magistrates’ Court;
(b)	The complexity of the factual and legal issues which the Court was required to consider were such that it was appropriate to bring the proceedings in the County Court;
(c)	The plaintiff’s verdict was the result of an apportionment of contributory negligence heavily weighted in the defendant’s favour. This result was unpredictable, given the range of possible apportionments which might have been found by the jury. In these circumstances, it was appropriate that the proceedings be commenced in the County Court;
(d)	The plaintiff desired a trial by jury, and this mode of trial was not available to him in the Magistrates’ Court.

6          In response the defendant contends:

(a)	That the plaintiff’s wish for a trial by jury is irrelevant, the rules directing my attention only to the amount recovered by judgment;
(b)	That the matter was not of such complexity that the plaintiff was justified in selecting the County Court above the Magistrates’ Court to determine the matter;
(c)	That Rule 63A.24 provides the plaintiff with significant leeway, as it comes into effect only when the judgment does not exceed 50 per cent of the jurisdictional limit of the Magistrates’ Court. The plaintiff’s verdict, which is less than 15 per cent of that jurisdiction, is such that I should not exercise my discretion to make an order which flouts the intention of a rule designed to encourage careful and informed decisions as to the jurisdiction in which a proceeding should be commenced.

The Complexity Argument

7          I am not satisfied that the issues raised in this case were so complex that they justified the plaintiff in issuing the proceeding in the County Court rather than the Magistrates’ Court. The issues involved a determination of the liability of the defendant as the occupier of premises pursuant to the provisions of the Wrongs Act. These are not issues which in my view are such that they could not be adequately managed by a magistrate.

The Quantum Argument

8          I am of the opinion that, in agreeing upon the assessment figure for the plaintiff’s damages at a sum which exceeded the jurisdiction of the Magistrates’ Court, the parties impliedly acknowledged that the County Court was the appropriate venue for the proceedings.

9          I was referred in argument to the decision by Williams J in Morton v Elgin- Stuczynski and Anor.[2] Whilst in that matter Her Honour observed that the operation of the Rule 63A related to the outcome of the proceeding, I consider that the circumstances of the present case should be distinguished from those with which Her Honour was presented. In Morton it could be reasonably argued that the plaintiff simply failed to establish his claim for the amount of the debt and the compound interest which he sought. In the present case the plaintiff succeeded (by agreement) in establishing that the claim as an assessment exceeded the jurisdiction of the Magistrates’ Court, and the reason for the modest judgment related solely to the apportionment of responsibility for the plaintiff’s injury between the plaintiff and the defendant.

[2] [2007] VSC 8 (2 February 2007)

10        I am satisfied that, whilst the assessment by the jury of the level of the plaintiff’s contributory negligence was one which was open, it was equally possible that the jury may have characterised the plaintiff’s actions as involving mere inadvertence rather than negligence, with the effect that a very different result may have been achieved.

11        In these circumstances, I do not consider the plaintiff’s action in issuing the proceeding in this Court to be indicative of the absence of a careful and informed consideration as to the jurisdiction in which the proceeding should be commenced. Nor do I accept that, in the present circumstances, the modest quantum of the judgment is indicative of the reasonableness of the plaintiffs decision to commence the proceedings in this court or to thereafter t maintain the proceedings in this Court

The Jury Argument

12        Having regard to the quantum of the claim as agreed by the parties, I am of the opinion that it was not inappropriate for the plaintiff to seek a trial by jury. The issues which were required to be determined by the jury in the proceedings were what might be regarded as classic jury questions Although I do not consider that the plaintiff’s wish to have a trial by jury should be given significant weight in determining the issue which I am required to consider, I do not accept the position of the defendant that it should be given no weight, particularly in the circumstances that pertain in the present case in which it was the defendant which elected to maintain the mode of trial by paying the jury fees during the trial

Conclusion

13        For the reasons set out above, I am satisfied that this is a proceeding which was both properly commenced and litigated in this jurisdiction. In these circumstances, I consider it appropriate to exercise the discretion provided by Rule 63A.24 to order that the plaintiff recover his costs on the appropriate County Court scale, namely Scale B.

14        I will hear submissions from counsel as to the precise nature of the order and as to the amount of interest which is to be applied to the judgment.

- - -