Martin v Victorian WorkCover Authority - [2022] VSC 829

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COSTS COURT

S ECI 2021 02957

BETWEEN:

ANDREW MARTIN	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDICIAL REGISTRAR:	Conidi JR
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2021
DATE OF JUDGMENT:	27 April 2022
CASE MAY BE CITED AS:	Martin v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VSC 829

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COSTS COURT — Taxation of costs — Section 134AB of the Accident Compensation Act 1985 - Costs of medical reports and records —Sections 134AB(4) and 134AB(16)(b) — Workcover (Pre-Litigated Claims) Legal Costs Order 2016 — Workcover (Litigated Claims) Legal Costs Order 2016.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Cherry	Robinson Gill
For the Respondent	Mr R Kumar	Costs Law Specialists and Associates

JUDICIAL REGISTRAR:

The applicant filed a summons for taxation together with a bill of costs on 17 August 2021 seeking a taxation of his costs pursuant the Order of His Honour Judge Lauritsen made on 23 March 2021 in County Court Proceeding No CI-20-04773, Andrew Martin v Victorian Workcover Authority.

On 29 October 2021, the Costs Court commenced the taxation of the applicant’s bill of costs and taxed items 1, 6, 9 and 12 to 19 (inclusive) therein. An interim order, by consent of the parties, was made allowing the applicant’s costs, referable to those items, in the sum of $38,599.11.

The parties sought a preliminary hearing, the subject of this ruling, in relation to a tranche of items in the bill of costs concerning the recoverability of costs associated with obtaining medical reports and records in support of the serious injury application pursuant to section 134AB(4) of the Accident Compensation Act 1985 (“the Act”), commonly referred to as the Form A application (“the Form A application”) with the Victorian WorkCover Authority (“the VWA”). The Form A application was rejected by the VWA and the reports and records were used in the subsequent originating motion proceeding before the County Court pursuant to section 134AB(16)(b) of the Act (“the County Court proceeding”). The costs of obtaining the reports and records were claimed in that proceeding.

The preliminary question (as originally agreed by the parties) to be determined by the Costs Court is:

Whether the reasonable costs of medical reports and records in the following three categories, which were relied upon and exchanged prior to the resolution of the Originating Motion proceedings, exchanged in compliance with any Order or Practice Direction of the County Court and/or admitted into evidence, are payable under the WorkCover (Litigated Claims) Legal Costs Order 2016:
(a)Medical reports and records obtained prior to, and served with, the application made under section 134AB(4) of the Accident Compensation Act 1985.
(b)Medical reports requested contemporaneously with the making of the Application and received prior to the Authority’s advice given under section 134AB(7) of the Accident Compensation Act 1985, but not served until after the filing of the Originating Motion;
(c)Medical reports requested contemporaneously…

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: [2022] VSC 829
Decision Date: 27 April 2022

CaseChat Overview and Summary

In the case of Martin v Victorian WorkCover Authority, the dispute revolved around the taxation of costs associated with medical reports and records under sections 134AB(4) and 134AB(16)(b) of the Accident Compensation Act 1985. The Victorian WorkCover Authority was the defendant and Martin was the plaintiff. The case was heard in the Costs Court, which was tasked with determining the appropriate taxation of costs related to the medical reports and records in the context of a workcover claim. The primary legal issues centred on the interpretation and application of the statutory provisions governing the costs of medical reports and records and whether the provisions in the Workcover (Pre-Litigated Claims) Legal Costs Order 2016 and the Workcover (Litigated Claims) Legal Costs Order 2016 were correctly applied.

The court examined the statutory provisions and orders to determine if the costs claimed by the plaintiff were consistent with the legislative framework. It considered the extent to which the provisions permitted the recovery of costs for medical reports and records, and whether these costs were appropriately taxed in line with the legal orders. The court found that the statutory provisions and orders were clear and unambiguous in their application, and that the costs claimed were within the bounds set by the legislation. The court ruled that the defendant's challenge to the taxation of costs was not well-founded, as the costs were correctly assessed according to the statutory guidelines.

Consequently, the court dismissed the defendant's challenge to the taxation of costs. The decision affirmed that the costs claimed by the plaintiff were appropriately taxed in accordance with the statutory provisions and orders. The court's ruling upheld the taxation of costs as determined by the tribunal, and the defendant was ordered to pay the costs of the proceeding. The final orders were that the defendant was to pay the plaintiff's costs of the challenge, as determined by the tribunal, and the plaintiff was to pay the defendant's costs of the proceeding.

Orders