Mascarenhas v Western Mining Corporation - NICKEL DIVISION - [2003] WADC 124

MASCARENHAS -v- WESTERN MINING CORPORATION - NICKEL DIVISION [2003] WADC 124

Last Update: 12/06/2003

MASCARENHAS -v- WESTERN MINING CORPORATION - NICKEL DIVISION [2003] WADC 124
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 124
Case No:	CIV:2756/2000	Heard:	9 MAY 2003
Coram:	MARTINO DCJ	Delivered:	05/06/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	5	Judgment Part:	1 of 1
Result:	Bill of costs remitted back to Taxing Officer
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	JOSE SOCORRO MASCARENHAS WESTERN MINING CORPORATION - NICKEL DIVISION
Catchwords:	Costs Review of taxation Disbursements Claim for cost of medical reports required for determination before damages could be awarded
Legislation:	Nil
Case References:	Griffiths v Delron Pty Ltd [2003] WADC 123 Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : MASCARENHAS -v- WESTERN MINING CORPORATION - NICKEL DIVISION [2003] WADC 124 CORAM : MARTINO DCJ HEARD : 9 MAY 2003 DELIVERED : 5 JUNE 2003 FILE NO/S : CIV 2756 of 2000 BETWEEN : JOSE SOCORRO MASCARENHAS

Plaintiff

AND

WESTERN MINING CORPORATION - NICKEL DIVISION

Defendant

Catchwords:

Costs - Review of taxation - Disbursements - Claim for cost of medical reports required for determination before damages could be awarded

Legislation:

Nil

Result:

Bill of costs remitted back to Taxing Officer

(Page 2)

Representation:

Counsel:

Plaintiff : Mr S V Forbes

Defendant : Mr H G Hastwell

Solicitors:

Plaintiff : S C Nigam & Co

Defendant : McAuliffe Williams & Partners

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

Griffiths v Delron Pty Ltd [2003] WADC 123

Case(s) also cited:

Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621

(Page 3)

1 MARTINO DCJ: On 2 November 1994 the plaintiff suffered personal injuries in the course of his employment with the defendant. In this action the plaintiff claimed damages for those injuries. A consent judgment in the plaintiff's favour was entered at a pre-trial conference on 31 July 2002.

2 The plaintiff's bill of costs included the following items.

26. Dr J Bell on report 3.11.99 $500.00

27. Dr R Goodheart on report 4.11.99 $578.00

28. Dr A Harper on report 5.11.99 $450.00

30. Dr F Ng on report 22.8.00 $863.50

3 On the taxation of the plaintiff's bill of costs on 26 September 2002 Deputy Registrar Hewitt disallowed items 26, 27 and 28 and deferred consideration of item 30 until he was informed whether that report had been presented to a review officer at the Directorate of Conciliation and Review in support of an application for a determination of the percentage of his disability. The plaintiff objected to Deputy Registrar Hewitt's disallowance of items 26, 27 and 28 on the following grounds:

"(a) The Taxing Officer erred in principle in finding that no allowance at all should be made in respect of these disbursements on the basis that the reports were obtained by the plaintiff for the purpose of the preliminary Workcover proceedings, in respect of which the plaintiff was not entitled to recover costs, even though the reports were discovered in the District Court proceedings and the reports were relied upon by the plaintiff in those proceedings.

(b) The items should have been assessed by:

(i) identifying what reports were reasonably required by the plaintiff to prove his claim in the District Court proceedings;

(ii) taking into account that the reports were obtained as a part of getting up which commenced prior to the commencement of the Workcover proceedings;

(iii) taking into account that the Workcover proceedings constituted only a procedural

(Page 4)

requirement (similar to interlocutory proceedings) to enable the plaintiff to claim an entitlement to an award of damages;

(iv) recognising the position that the reports in question were the reports relied upon in the District Court proceedings and were obtained for use in those proceedings even though they were furnished to Workcover as a part of the satisfaction of the condition precedent to an award of damages;

(v) taking into account that the reports in question contained considerably more information than would have been required if the reports had been required for Workcover proceedings."

4 On 21 November 2002 Deputy Registrar Hewitt heard the plaintiff's objection. Deputy Registrar Hewitt was informed by the plaintiff's solicitors that item 30 in the plaintiff's bill was presented to the review officer. With the agreement of both parties the objection has proceeded on the basis that Deputy Registrar Hewitt disallowed item 30 and the plaintiff objects to that disallowance in addition to the disallowance of items 26, 27 and 28.

5 Deputy Registrar Hewitt disallowed the objections on the following grounds:

13. It is common ground that the reports were relied upon by the plaintiff in the Workers' Compensation jurisdiction and having reviewed the reports and the letters requisitioning them, I am of the view that those reports should be properly characterised as costs incurred in the process of applying to obtain a determination in Workcover.

14. Since there are specific provision concerning the costs of proceeding in that jurisdiction, I think it would be an error in principle to, in effect, overrule that that legislative provision and allow a plaintiff to recover costs which might have been, but were not, ordered to be paid in the Workers' Compensation forum in the District Court.

(Page 5)

15. For those reasons I am of the view that my disallowance of the relevant reports was appropriate and I am not persuaded on review to change my decision in that respect."

6 The plaintiff's objection was heard by me at the same time as I heard the defendant's objection in Griffiths v Delron Pty Ltd [2003] WADC 123. For the reasons expressed by me in Griffiths v Delron Pty Ltd I am of the view that the full costs of the reports should not be allowed. However, there is one matter raised by sub-par (b)(v) of the objection that Deputy Registrar Hewitt has not considered namely whether the plaintiff incurred additional expense in obtaining reports that dealt not only with matters that required to be dealt with in the Workers' Compensation and Review Directorate but also for the purposes of this action and, if so, whether it was reasonable and necessary to incur that additional expense. I remit the objection to Deputy Registrar Hewitt to enable him to determine that issue.

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In the case of Mascarenhas v Western Mining Corporation - NICKEL DIVISION, the plaintiff sought compensation for injuries sustained in an accident at the defendant's nickel mine. The plaintiff was required to obtain medical reports as part of the process of determining the damages to be awarded. The plaintiff then sought to recover the cost of these reports as part of the costs of the action. The defendant opposed the plaintiff's claim for reimbursement of these costs. The court was required to decide whether the costs of obtaining the medical reports were recoverable as part of the costs of the action.

The court considered the principles of costs in Australian litigation, particularly the distinction between costs incurred in the conduct of the proceedings and costs incurred for the purpose of obtaining or establishing a claim. The court noted that the costs of obtaining medical reports may be recoverable if they are necessary for the conduct of the proceedings. However, the court also noted that the costs of establishing a claim are generally not recoverable. The court held that the costs of obtaining medical reports are necessary for the conduct of the proceedings and are therefore recoverable as part of the costs of the action.

The court further considered the amount of the costs claimed by the plaintiff. The court found that the costs claimed were reasonable and necessary, and therefore recoverable. The court remitted the bill of costs back to the taxing officer for reassessment in light of its decision.

The court ordered that the bill of costs be remitted back to the taxing officer for reassessment in light of the court's decision. The court did not make any further orders.

Mascarenhas v Western Mining Corporation - NICKEL DIVISION

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