McEvoy v Transport Accident Commission (Ruling)

[2015] VCC 574

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-12-00921

MEREDITH McEVOY	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	24 March 2015
DATE OF JUDGMENT:	6 May 2015
CASE MAY BE CITED AS:	McEvoy v Transport Accident Commission (Ruling)
MEDIUM NEUTRAL CITATION:	[2015] VCC 574

RULING
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Subject:  COSTS

Catchwords:             Overarching obligations in civil proceedings – obligations of a practitioner – failures in preparation of first application – level of affidavit material – fixing of costs which should be appropriately recovered  

Legislation Cited:     Civil Procedure Act 2010

Cases Cited:Yara Australia Pty Ltd v Oswal [2013] VSCA 356; Davies v Nilsen & Transport Accident Commission [2014] VSCA 278

Ruling:Order of the Court dated 20 April 2015 amended to include any costs associated with obtaining the medical evidence relied upon by the plaintiff in the first trial, or in the trial by Judge Saccardo, be recoverable.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B W Collis QC with Mr A D B Ingram	Arnold Thomas & Becker Pty Ltd
For the Defendant	Mr G A Lewis QC with Ms F S Spencer	Solicitor to the Transport Accident Commission

HIS HONOUR:

1       In the course of submissions in this application I quoted to the parties the statement by the Court of Appeal in Yara Australia Pty Ltd v Oswal,[1] namely:

“[8]    One of the main purposes of the Act is ‘to provide for an overarching purpose in relation to the conduct of civil proceedings to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’ The Act provides for ‘overarching obligations for participants in civil proceedings to improve standards of conduct in litigation’, and ‘expanding the powers of the courts in relation to costs in relation to civil proceedings’.

[9] The court is obliged to give effect to the overarching purpose of the Act ‘to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute’.  The court is directed to further the overarching purpose by having regard to the objects and matters articulated in s 9 of the Act which include the efficient use of judicial and administrative resources and dealing with the proceeding in a manner proportionate to the complexity and importance of the issues and amount in dispute.

[10] The overarching obligations apply to any person who is a party, any legal practitioner, legal representative or law practice acting for or on behalf of a party.  … .”

[1][2013] VSCA 356

2       The Court of Appeal, in Davies v Nilsen & Transport Accident Commission,[2] when dealing with an appeal in relation to a serious injury application, made the following comment which is of particular relevance to this application:

“[107]Although the matter was not raised in argument, it seems to me that applicants under the legislation are subject to the obligations under the Civil Procedure Act 2010. As part of the mandatory over-arching obligations under the Civil Procedure Act applicants are bound to present their evidence to the court in a comprehensive and comprehensible manner. … .”

[2][2014] VSCA 278

3       In my view the preparation of the first hearing in this case failed every test in terms of the obligation of a practitioner under the Civil Procedure Act, and I have already indicated the reasons for that statement in the course of my discussion with counsel.  It is appropriate however that I repeat in short compass what I have earlier said, namely that:

·        Each affidavit prepared on behalf of the plaintiff in that application failed comprehensively to identify the relationship between the discrete injury relied upon by the plaintiff and the consequences of that injury;

·The level of the affidavit material was so poor that I raised with Senior Counsel, who appeared on behalf of the plaintiff on that occasion, why it was thought appropriate that the matter should have been presented to the Court in a state in which he described the  primary affidavit relied upon by the plaintiff in that application in the following terms:

“There seems to be a lot of waffle in the affidavit of 2012. It is just not helpful.”[3]

[3]Transcript 81

4       My enquiry in this respect was met with an answer which was essentially non responsive, Senior Counsel citing the late timing of the delivery of the brief, which he described as being the norm in this jurisdiction.

5       In the course of the current application, the following exchange took place between myself and counsel:

COUNSEL:

“Your Honour, and I’d have to say that, as Your Honour would be well aware, serious injury applications are heard all the time, and frequently, much of the affidavit material that’s used is not particularly well drawn.”

HIS HONOUR:

“You see, that statement is a statement which should not be made to any court, because what it amounts to is an acceptance that practitioners breach their obligations under the structure of the rules of this court and the Civil Procedure Act. Affidavit material which is inappropriately prepared in circumstances in which a case is going to be conducted on the basis of that affidavit material is not a process that should be accepted by anyone as being appropriate.”

6       That experienced Counsel[4] could make such a statement in an attempt to defend the quality of the affidavit material prepared in support of the first hearing highlights the issue which arises in this instance, namely the inappropriate practice by a limited group of legal practitioners of adopting an approach to applications of this type that close enough is good enough, the current affidavits being an extreme example of that practice.

[4]I wish to make it clear that Counsel making this submission was not Senior Counsel to whom I have previously referred.

7       There is no issue that I am bound by the Order of the Court of Appeal in this instance that the costs of the hearing before her Honour Judge Bourke must abide the result of the re-hearing.

8       I am satisfied, however, that within the stricture of that Order, it remains to me to fix the costs which should be appropriately recovered on behalf of the plaintiff in respect of the work undertaken by the plaintiff's then-solicitors in their preparation and the conduct of the first trial. 

9       I make it clear, as I have time and time again, that the plaintiff's current solicitors have no part to play in that.  To suggest however that costs should be awarded with respect to work that was done which, by reason of the sub-standard nature of that work, made it impossible, I think, for the defendant to evaluate this case and to come to any informed decision as to the merit of the application in the first instance, seems to me to be a process which flies in the face of every obligation of the Court to ensure that litigation is managed in a timely and cost-effective manner. 

10      I am satisfied that there are some costs which should be recoverable with respect to the first proceeding. Whilst I have described those costs in my Order as allowing the recovery of the costs associated with the obtaining of the medical evidence relied upon by the plaintiff in the hearing before me, I am satisfied that I should vary the Order by increasing its breath to include any costs associated with obtaining the medical evidence relied upon by the plaintiff in the first trial or in the trial before me to be recoverable.

11      Otherwise, I will make the orders indicated in my Order of 20 April 2015.

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