Omerasevic v Kotzman
[2016] VSC 429
•2 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 06893
| SMAJL OMERASEVIC | Plaintiff |
| v | |
| DR DAVID KOTZMAN AND OTHERS | Defendants |
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JUDGE: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 27 July 2016 |
DATE OF JUDGMENT: | 2 August 2016 |
CASE MAY BE CITED AS: | OMERASEVIC v KOTZMAN |
MEDIUM NEUTRAL CITATION: | [2016] VSC 429 |
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COSTS – Order quashing part of opinion of medical panel – Defendant successful as to part – Plaintiff’s solicitors disclosing evidence relied upon at early stage of proceeding.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Schilling | Zaparas Lawyers |
| For the Defendants | Mr M Fleming QC Mr R Kumar | Minter Ellison |
HIS HONOUR:
Following the publication of reasons on 22 July 2016,[1] the parties agreed that the following form of orders was appropriate:
[1][2016] VSC 383 (‘Reasons’).
1.The opinion of the medical panel comprised by the first to fourth defendants (the Medical Panel) certified in writing dated 4 November 2014 on questions 2 to 5 of the medical questions referred on 15 August 2014 pursuant to s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Referred Medical Questions) be quashed insofar as that opinion concerns the injuries alleged in questions 1(a), 1(b) and 1(d) of the Referred Medical Questions.
2.Questions 2 to 5 of the Medical Questions insofar as they concern the injuries alleged in questions 1(a), 1(b) and 1(d) of the Referred Medical Questions (the Remitted Questions) be remitted to the same Medical Panel to be reconvened by the Convenor of Medical Panels for the purpose of determining the Remitted Questions:
(a)in accordance with the Plaintiff’s description of his work duties referred to in paragraph 48 of the reasons for judgment of this Court dated 22 July 2016; and
(b) in accordance with law.
However, the question of costs is disputed. It was contended on behalf of the plaintiff that the appropriate order for costs was that the defendants should pay the plaintiff’s costs. The defendants contended that there should be no order as to costs.
Relevant facts
The plaintiff commenced the proceeding by originating motion dated 24 December 2014 in which the plaintiff sought to quash the opinion of the Medical Panel on the basis of the Medical Panel failing to take into account the nature of the plaintiff’s work duties involving his hands and wrists and, in particular, the Additional Duties Description, which were defined at [54] of the reasons.
The amended originating motion dated 27 January 2015 was filed pursuant to leave granted by Derham AsJ on 9 April 2015. The plaintiff alleged that the error of the Medical Panel was in failing to take into account the work history, involving his hands and wrists, in particular, the Additional Duties Description, in accordance with statements made by the plaintiff to the Medical Panel at the examination on 13 October 2014.
By letter dated 19 March 2015 to the defendants’ solicitors, the plaintiff’s solicitors enclosed the witness statement of the plaintiff dated 16 March 2015 and the witness statement of his daughter dated 17 March 2015 and stated as follows:
We are providing you with this evidence before any order is made for its filing to enable your client to consider its position on the appeal.
It is our position that it is clear from the evidence filed by the Plaintiff that the Medical Panel formed its opinion on the basis of an incorrect understanding of the Plaintiff’s work duties.
In particular, as a result of misinterpretation by the interpreter present at the examination, the Medical Panel did not proceed on the basis that the job of removing the cardboard off-cuts was a job that the Plaintiff completed by hand. It is clear from paragraph 2 of page 10, and paragraph 5 of page 11 of the reasons that this was a critical matter in the formation by the Medical Panel of its opinion on the referred questions.
It is the instruction of the Plaintiff’s daughter, Enisa Hajdarevic, who attended the Medical Panel examination with her father on 13 October 2014, that the interpreter misinterpreted the Plaintiff’s description of his work duties. We consider that such errors appear to have led the Medical Panel to ignore the contrary description set out in the reports included with the referral material, in particular the medical report of Dr Middleton, which provided a detailed description of the Plaintiff’s work duties and which provides objective reinforcement of the Plaintiff’s evidence. As a result of this error we consider that (sic) Plaintiff will succeed in establishing, at the very least, that the Medical Panel failed to take into account a relevant consideration and took into account an irrelevant consideration.
In the circumstances we would invite your clients to re-consider their position on the appeal before both parties incur further costs in this matter.
There was no evidence of any response to this letter.
By the Outline of Plaintiff’s Submissions dated 21 September 2015, the plaintiff contended that the opinion of the Medical Panel should be quashed on the basis of the Panel’s failure to take into account the Additional Duties Description.
By the Fifth and Sixth Defendants’ Outline of Submissions dated 6 October 2015 drawn by Ms K E Judd QC with Mr R Kumar, the fifth and sixth defendants contended that the motion should be dismissed on the basis that the Court should not be satisfied that there was any mistranslation and that, in any event, the failure to take into account the Additional Duties Description did not constitute procedural unfairness or other jurisdictional error.
Shortly prior to the scheduled hearing on 14 April 2016, by the Plaintiff’s Supplementary Submissions dated 10 April 2016, the plaintiff contended that the reasons of the Medical Panel were inadequate with respect to the opinions expressed about the injuries to the plaintiff’s spine. The submissions, excluding formal parts, were approximately 2 pages in length.
By the Further Submissions of the Fifth and Sixth Defendants dated 12 April 2016, drawn by Mr M Fleming QC with Mr R Kumar, the fifth and sixth defendants:
(a)responded to the allegations with respect to the adequacy of the reasons about the injuries to the plaintiff’s spine (approximately 3 pages); and
(b)made further submissions with respect to the assertion in the plaintiff’s original submissions that the Medical Panel had fallen into jurisdictional error through the ‘material discrepancy between the facts recorded by the Medical Panel and the facts stated to the Medical Panel by Mr Omerasevic’ (‘the material discrepancy issue’) (approximately 5 pages) (‘the latter submissions’).
At the hearing on 14 April 2016, the plaintiff applied for an adjournment on the basis that the latter submissions with respect to the material discrepancy issue raised substantial questions of law and represented a reversal of the position adopted in their original submissions, which contemplated the acceptance of the line of authority represented by Ripper v Kotzman.[2] The fifth and sixth defendants accepted that the new line of argument had not been referred to in earlier submissions, but contended that the plaintiff had adequate time to deal with the latter submissions. I adjourned the proceeding and reserved the costs of the adjournment.
[2][2008] VSC 448.
By the Further Amended Originating Motion dated 16 May 2016, the motion was amended to incorporate the plaintiff’s claim with respect to the injuries to the plaintiff’s spine.
By the Plaintiff’s Supplementary Submissions dated 30 May 2016, the plaintiff expanded on its submissions with respect to the injuries to the plaintiff’s spine (approximately 5 pages).
By the Additional Submissions of the Fifth and Sixth Defendants dated 31 May 2016, the fifth and sixth defendants responded to the plaintiff’s submission with respect to injuries to the plaintiff’s spine (approximately 1 page).
By the Plaintiff’s Further Supplementary Submissions dated 15 June 2016, the plaintiff responded to the latter submissions (approximately 13 pages).
The hearing of the matter proceeded on 20 June.
The plaintiff’s submissions
On behalf of the plaintiff, it was contended that the fifth and sixth defendants should be ordered to pay the plaintiff’s costs for the following reasons:
(a)The plaintiff’s solicitors had raised the likely success of the plaintiff on the mistranslation of the Additional Duties Description issue and sought an early resolution of the matter by the letter of 19 March 2015.
(b)The mistranslation of the Additional Duties Description issue was the primary focus of all grounds of appeal and constituted the major part of the appeal as indicated by the concentration on that issue in the written submissions and the fact that in 174 pages of hearing transcript, the argument with respect to the injury to the plaintiff’s spine occupied only 18 pages.
(c)The argument with respect to jurisdictional error based on the failure to take into account a relevant consideration was principally related to the mistranslation of the Additional Duties Description issue, which the Court found it did not need to determine.
The defendants’ submissions
The fifth and sixth defendants contended that each party should bear their own costs for the following reasons:
(a)The multiplicity of submissions was the fault of the changes in position of the plaintiff.
(b)Of the two issues for consideration by the Court, the plaintiff succeeded on the mistranslation of the Additional Duties Description issue and the defendants succeeded on the injury to the plaintiff’s spine issue.
(c)The allegation that the Medical Panel had failed to give adequate reasons for its decision with respect to the spinal injury issue was a substantial issue.
(d)The fifth and sixth defendants had succeeded on their submissions with respect to the material discrepancy issue.
Conclusion
In my opinion, the vast majority of the plaintiff’s costs of this proceeding should be paid by the fifth and sixth defendants principally for the following reasons:
(a)The principal complaint of the plaintiff throughout the proceeding was the mistranslation of the Additional Duties Description issue, in respect of which the plaintiff was successful.
(b)In my opinion, the plaintiff’s solicitors acted responsibly and consistently with their obligations under s 22 of the Civil Procedure Act 2010 in sending the letter dated 19 March 2015 together with the evidence on which the plaintiff was to rely, and did rely, at the hearing. Such candid disclosure of the evidence at an early time, together with a request for consideration, prior to both parties incurring further costs, should be encouraged by the Court. In my opinion, there is a real prospect that, if the fifth and sixth defendants had responded constructively to the letter from the plaintiff’s solicitors dated 19 March 2015, the matter could have been resolved substantially in accordance with my ultimate conclusion. In particular, by the time of that letter, or shortly thereafter, the fifth and sixth defendants should have been able to recognise that they would be unable to challenge or contradict the evidence in the witness statements enclosed in that letter. Nonetheless the fifth and sixth defendants persisted to dispute the facts alleged in the witness statements of the plaintiff up to the trial despite the fact that they neither cross-examined the witnesses nor sought to lead contradictory evidence from the interpreter or otherwise.
The plaintiff did, however, shortly prior to the original hearing date for this proceeding, choose to expand the claim to seek relief with respect to the Medical Panel’s findings relating to the injuries to the plaintiff’s spine. In my opinion, it would not be just to require that the fifth and sixth defendants pay the additional costs incurred with respect to that issue. However, I do not consider that the expansion of the claim with respect to that issue contributed any additional days to the hearing of the proceeding. Accordingly, the only additional costs incurred with respect to the expansion of the claim were in the preparation of submissions and preparation for trial.
In my opinion, a fair allowance for the additional costs incurred would be a reduction in the plaintiff’s overall costs of 15%.
With respect to the costs reserved on the adjournment of this matter on 14 April 2016, I am satisfied that the adjournment was necessitated by the further submissions of the fifth and sixth defendants with respect to the the material discrepancy issue and accordingly will allow the plaintiff the costs of the adjournment. I therefore order as follows:
1.The opinion of the medical panel comprised by the first to fourth defendants (the Medical Panel) certified in writing dated 4 November 2014 on questions 2 to 5 of the medical questions referred on 15 August 2014 pursuant to s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Referred Medical Questions) be quashed insofar as that opinion concerns the injuries alleged in questions 1(a), 1(b) and 1(d) of the Referred Medical Questions.
2.Questions 2 to 5 of the Medical Questions insofar as they concern the injuries alleged in questions 1(a), 1(b) and 1(d) of the Referred Medical Questions (the Remitted Questions) be remitted to the same Medical Panel to be reconvened by the Convenor of Medical Panels for the purpose of determining the Remitted Questions:
(a)in accordance with the Plaintiff's description of his work duties referred to in paragraph 48 of the reasons for judgment of this Court dated 22 July 2016; and
(b) in accordance with law.
3.The fifth and sixth defendants pay the plaintiff’s costs thrown away by reason of the adjournment of hearing this proceeding on 14 April 2016.
4.Subject to Order 3 above, the Fifth and Sixth Defendants pay 85% of the Plaintiff's costs of the proceeding, including any reserved costs.
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