O'Neill v T D Williamson (No 2)

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…