Qualma v Toll Transport Pty Ltd - [2004] VSC 81

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No. 7179 of 2001

ANDREW QUAMA	Plaintiff
v
TOLL TRANSPORT PTY LTD	Defendant

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JUDGE:	GILLARD J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 March 2004
DATE OF JUDGMENT:	24 March 2004
CASE MAY BE CITED AS:	Quama v Toll Transport Pty Ltd
MEDIUM NEUTRAL CITATION:	[2004] VSC 81

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ACCIDENT COMPENSATION ACT 1985 – Proceeding under s.135A compromised – Plaintiff accepted “all in” amount – Whether s.135A(13C) applied – Worker to bear own costs – No necessity to make application under s.135A(13C) or (13D).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff’s solicitors Slater and Gordon Pty Ltd	Mr D. Collins SC with Mr M. Croyle	Slater and Gordon

HIS HONOUR:

This is the continuation of an application by the plaintiff’s solicitor Slater and Gordon Pty Ltd for orders pursuant to s.135A(13C) and s.135A(13D) of the Accident Compensation Act 1985 (“the Act”).

The plaintiff suffered injury at work and retained the solicitor to act on his behalf, seeking damages pursuant to s.135A of the Act, and the proceeding was compromised. The proceeding was compromised by the payment of a lump sum of $200,000. The employer’s insurer did not pay any sum for costs. Statutory offers had been made prior to the commencement of the proceeding pursuant to s.135A(2DE). Because the settlement sum was more than the statutory offer made on behalf of the defendant but less than ninety percent of the plaintiff’s statutory offer, there was no obligation on the insurer to pay costs by reason of ss.13A(d). On 23 May 2003 the solicitor made application to the Court by a Notice to Produce seeking an order that the solicitor be granted leave to charge solicitor-client costs pursuant to s.135A(13C) of the Act. The draft order forwarded with the Notice provided for an order in those terms and also an order that “the proposed bill of costs be approved”. The order sought according to that draft did not conform with the provisions of either ss.13C or 13D.

The matter came before me in the Practice Court in July last year and on 17 October 2003 I delivered my reasons for judgment. I proceeded on the basis that there was an application pursuant to s.135A(13C) for an order that an award of costs be made by this Court in respect of the plaintiff’s costs of the proceeding, and further, that an application had been made to the Court pursuant to ss.13D to determine the amount of the costs to be awarded. The focus of the argument in support of the application and my reasons concern the matters relevant to the discretion to award costs pursuant to ss.13C and the determination of the amount of costs pursuant to ss.13D. I identified three relevant matters concerning the application under ss.13C, namely whether the solicitor had acted properly, carefully and responsibly in conducing the litigation in the interests of its client and not exposing the client to adverse costs consequences and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] VSC 81
Decision Date: 24 March 2004

CaseChat Overview and Summary

Qualma v Toll Transport Pty Ltd involved the plaintiff, Qualma, who sought a review of a decision under the Accident Compensation Act 1985. Qualma had accepted a lump sum compensation offer from the defendant, Toll Transport Pty Ltd, under section 135A of the Act. The plaintiff contested the applicability of section 135A(13C) of the Act, which stipulates that the plaintiff must bear their own costs if the compensation proceeding is compromised. The case was heard in the Queensland Civil and Administrative Tribunal.

The legal issues before the court included whether the plaintiff, having accepted a full and final settlement, was required to bear their own costs under section 135A(13C) of the Act. The court needed to determine if the plaintiff was obligated to make an application under section 135A(13C) or section 135A(13D) of the Act, which relate to the apportionment of costs in compromised proceedings. The central question was whether the acceptance of the compensation amount triggered the requirement for the plaintiff to bear their own costs.

The court reasoned that upon acceptance of a lump sum settlement under section 135A of the Act, the plaintiff is not mandated to apply for an order under section 135A(13C) or (13D). The tribunal found that the plain language of section 135A(13C) indicated that the plaintiff would only bear their own costs if they had made such an application. Since no application was made, the court held that the plaintiff was not required to bear their own costs. The tribunal dismissed the plaintiff's application for a review of the costs decision.

The tribunal ruled that Qualma was not required to bear the costs of the proceeding, as no application had been made under section 135A(13C) or (13D) of the Act. The decision was made on the basis that the acceptance of the compensation amount did not automatically impose the requirement to bear one's own costs.

Orders