O'Neill v T D Williamson (No 2)

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7982 of 2005

NARELLE DEARNE O'NEILL Plaintiff
v
T D WILLIAMSON (NO 2) Defendant

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JUDGE:

CAVANOUGH J

WHERE HELD:

Melbourne

DATE OF HEARING:

14 October 2008

DATE OF JUDGMENT:

20 October 2008

CASE MAY BE CITED AS:

O'Neill v T D Williamson (No 2)

MEDIUM NEUTRAL CITATION:

[2008] VSC 430

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COSTS – Accident compensation – Common law claim – Statutory restrictions on orders as to costs – Costs of and occasioned by application at trial for leave to amend statement of claim – Costs of interlocutory steps in permitted common law industrial accident cases generally – Whether orders for costs may be made before outcome of entire proceeding is known – Held that requisite power exists – Orders for costs made accordingly – Accident Compensation Act 1985 ss 50(1), (2) and (2A), 134AB(12), (22), (27), (28), (29), (30), (31), Supreme Court Act 1986 s 24(1) – Supreme Court (General Civil Procedure) Rules 2005 r 36.01, 47.04, 63.02, 63.03, 63.04, 63.17.

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr A Keogh Clark and Toop
For the Defendant Ms S Hinchey Herbert, Geer and Rundle

HIS HONOUR:

  1. On 7 October 2008, for the reasons set out in my judgment of that date, I granted the plaintiff leave to amend her statement of claim.  On 14 October 2008 the defendant applied for an order that the plaintiff pay its costs of and occasioned by the application to amend, including its costs thrown away by reason of the adjournment of the trial, its costs of the written submissions filed in connection with the application to amend, and its costs of the hearings on 7 and 14 October 2008. 

  1. The plaintiff submits that the Court has no power to make the order sought. Indeed she submits in effect that where a proceeding is brought pursuant to s 134AB of the Accident Compensation Act 1985 (“the Act”) after a statutory offer was made or deemed to have been made[1], the costs of any interlocutory step in the proceeding cannot be dealt with individually but only as part of the overall costs of the proceeding, and then only in accordance with the regime specified in s 134AB(28), being a regime which operates by reference to the final outcome of the proceeding.

    [1]The debate has proceeded on the basis that a statutory offer was made or was deemed to have been made in this case.

  1. Subsection 134AB(28) provides:

“(28)    In proceedings for the recovery of damages commenced in accordance with this section after a statutory offer was made, or deemed to have been made, under subsection (12)—

(a)if no liability to pay damages is established, the worker must pay the party and party costs of the employer, Authority or self-insurer and the worker's own costs;

(b)if judgment is obtained or a settlement or compromise is made in an amount not less than 90 per cent of the worker's statutory counter offer under…

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Details
Case
[2008] VSC 430
Decision Date

CaseChat Overview and Summary

The case of O'Neill v T D Williamson (No 2) arose from a dispute concerning the costs incurred in a common law claim for accident compensation. The respondent sought to recover costs that were associated with an application for leave to amend the statement of claim and other interlocutory steps. The matter was heard in the Supreme Court of New South Wales. The court was required to determine whether it had the power to order costs before the outcome of the entire proceeding was known, in light of statutory restrictions on costs orders in accident compensation cases.

The legal issues before the court involved interpreting sections of the Accident Compensation Act 1985, which impose limitations on costs orders in personal injury actions, and determining whether these restrictions applied to costs associated with interlocutory applications. The court had to balance the statutory provisions against the principles of procedural fairness and the general law relating to costs, particularly in light of the Supreme Court Act 1986 and the Supreme Court (General Civil Procedure) Rules 2005.

The court found that it possessed the requisite power to make orders for costs in such circumstances, even before the entire proceeding was concluded. The court reasoned that the statutory restrictions were intended to limit the circumstances in which costs could be awarded in the final judgment, rather than to restrict the court's ability to order costs for interlocutory steps. The court concluded that it was appropriate to exercise its discretion to order costs in this case, taking into account the nature of the application and the principles of procedural fairness.

The final orders of the court included granting the respondent's application for costs associated with the interlocutory steps, and directing that the application for leave to amend the statement of claim be heard at the same time as the substantive hearing. The court's decision provided clarity on the power of courts to order costs in accident compensation cases, and the extent to which statutory restrictions apply to interlocutory steps.

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