Martin v Amaca Pty Limited (No. 2)

[2017] NSWDDT 11

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Martin v Amaca Pty Limited (No. 2) [2017] NSWDDT 11

Hearing dates:

3 November 2017

Date of orders:

10 November 2017

Decision date:

10 November 2017

Before:

Judge D. Russell

Decision:

1. Dismiss the defendant’s application to vary the costs order made on 15 September 2017.

 2. Order the defendant to pay the plaintiff’s costs of and incidental to the defendant’s application for a variation of the costs order made on 15 September 2017.

Catchwords:

COSTS – application for variation of primary costs order – whether defendant should pay plaintiff’s costs of evidence by a forensic accountant – some assumptions made by the accountant not established by evidence – some conclusions of accountant not accepted

Legislation Cited:

Civil Procedure Act 2005

Cases Cited:

Martin v Amaca Pty Limited [2017] NSWDDT 8

Category:

Costs

Parties:

Karen Martin (plaintiff)
Amaca Pty Limited (defendant)

Representation:

Counsel:
Mr S. Tzouganatos (plaintiff)
Mr J. Sheller (defendant)

   

Solicitors:

  Turner Freeman (plaintiff)
Mills Oakley (defendant)

File Number(s):

28/2017

Judgment

1. Judgment for the plaintiff against the defendant for $472,586 was delivered on 15 September 2017 – Martin v Amaca Pty Limited [2017] NSWDDT 8. The defendant was ordered to pay the plaintiff’s costs. Liberty was granted to apply if any different costs order was sought by either party.

2. The matter was listed again on 3 November 2017 at which time the defendant sought a different costs order. No explanation was provided as to why it took the defendant seven weeks to bring the matter back before the court to seek a different costs order. It is unsatisfactory that the costs issue remained in abeyance for so long. In future, my judgments will grant seven days only for a party to apply for a different costs order.

SUBMISSIONS FOR THE DEFENDANT

3. The defendant seeks to vary the original costs order so that the costs of the reports and oral evidence of Mr Thompson are excised from the costs which the defendant has to pay to the plaintiff, so that each party pays its own costs associated with and incidental to the reports and evidence of Mr Thompson. The defendant relies upon the court’s general discretion contained in s 98 of the Civil Procedure Act 2005.

4. Mr Thompson was a forensic accountant engaged by the solicitors for the plaintiff. He provided two reports, gave oral evidence and was cross-examined.

5. The defendant submitted that the costs order should be varied because Mr Thompson’s evidence was predicated upon assumptions he was asked to make, which were baseless or which the plaintiff never sought to prove. In brief it was said that the evidence did not marry up with the case which was pleaded and particularised.

6. The assumptions made by Mr Thompson, which were said to be baseless or unproven, were:

1. Mr Martin’s pre-injury weekly earning capacity was approximately $855;

2. Mr Martin had suffered a loss of capacity since at least 1 January 2016;

3. Mr Martin’s personal maintenance was $100 per week;

4. Mr Martin would have worked as a trade carpenter if his business did not succeed.

CONSIDERATION

7. In the primary judgment I dealt with the calculation of past economic loss at paragraphs [52]-[70]. My finding was that such past economic loss was to be calculated at $530 nett per week. I reached that figure from the consideration of the tax returns of the late Mr Martin, and adjusted the figures in the tax returns to reflect to anomalies in the business deductions identified by Mr Thompson – see paragraphs [61] and [62] of the primary judgment.

8. The figure which I found to be the weekly nett loss was significantly less than that of Mr Thompson. However, it is not unusual in cases involving self-employed claimants for the court to reach a figure different from that calculated by the forensic accountant for either side, and different from that which is in the tax returns. That is what happened in this case. The weekly figure put forward in the Thompson reports was one which was clearly arguable on the facts. Mr Martin analysed not only the tax returns, but the books of account, the invoices, the business income and expenditure, the trading stock and the Business Activity Statements.

9. The fact that the court concluded that a weekly figure to reflect the loss of earnings for the past was different to that put forward by one forensic accountant is not a reason to find that the successful plaintiff should not have the costs of the report of that forensic accountant. It is to be noted that my ultimate finding as to nett weekly loss was not the same as that calculated by the forensic accountant engaged for the defendant. If the submission of the plaintiff be valid, it would be a reason in just about every case for both parties to be denied the costs of their forensic accountant.

10. I record that I did obtain assistance from the reports of Mr Thompson, as he identified the anomalies in the past expenditure. This caused me to adjust the business income of the late Mr Martin upwards.

11. Mr Thompson was instructed to assume a loss of capacity running from an earlier date than that supported by the evidence. That is not a reason to deny the plaintiff the costs of the Thompson evidence. Firstly, there was little if any cost to the defendant in demonstrating that the loss of capacity ran from a later date than 1 January 2016, as assumed by Mr Martin. As pointed out in the written submissions for the defendant, this date did not accord with the evidence of Mr Martin, who put a later date upon his inability to work. Secondly, it is not unknown in cases in this Tribunal for a plaintiff who is near death to give evidence which varies from his or her initial instructions. For all I know that may have happened in this case. In any event, I had little difficulty in finding the date of commencement of the incapacity, as I relied upon the evidence of Mr Martin rather than the bare assumption given to Mr Thompson.

12. The evidence about personal maintenance of $100 per week became irrelevant after the death of Mr Martin, as future loss of earning capacity could no longer be claimed. The Tribunal simply did not have to investigate whether that figure, or some higher figure, was the appropriate deduction for the “lost years”.

13. Finally, in relation to the assumption that Mr Martin would have worked as a trade carpenter if his business did not succeed, while that was not the ultimate finding of the Tribunal, such evidence is commonly admitted for several reasons. Firstly, it provides an alternative basis for calculation, should the court reject the claimant’s evidence about his or her earnings. Secondly, such evidence about industry earnings provides a useful check against which to measure whether the claimed income of the plaintiff is realistic. In this case the late Mr Martin said that he was content to work at a lower level than that earned in industry, and that was the ultimate finding made in the judgment. I regard it as completely proper to put forward an alternative basis for calculation, being industry earnings. The fact that I did not choose to adopt the alternative formulation of economic loss is not a reason to deny the plaintiff the costs of the Thompson evidence.

14. For the above reasons, I decline to vary the costs order made in the primary judgment on 13 September 2017. I will order the defendant to pay the plaintiff’s costs of this application.

ORDERS

15. My orders are:

1. Dismiss the defendant’s application to vary the costs order made on 15 September 2017.

2. Order the defendant to pay the plaintiff’s costs of and incidental to the defendant’s application for a variation of the costs order made on 15 September 2017.

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Decision last updated: 10 November 2017