Quama v Toll Transport Pty Ltd - [2003] VSC 404

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7179 of 2001

IN THE MATTER of an application by the plaintiff’s solicitors for costs orders pursuant to s.135A of the Accident Compensation Act 1985.

ANDREW QUAMA	Plaintiff
v
TOLL TRANSPORT PTY LTD	Defendant

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JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 July 2003
DATE OF JUDGMENT:	17 October 2003
CASE MAY BE CITED AS:	Quama v Toll Transport Pty Ltd
MEDIUM NEUTRAL CITATION:	[2003] VSC 404

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ACCIDENT COMPENSATION ACT 1985 – Proceeding under s.135A compromised – Plaintiff accepted offer inclusive of costs – Application by solicitors for costs pursuant to s.135A(13C) and (13D) – Necessity for costs to be taxed – Matters relevant to discretionary order.

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

HIS HONOUR:

This is an application by the solicitors acting for the plaintiff in the proceeding, Andrew Quama, for an award of costs payable by him pursuant to s.135A of the Accident Compensation Act 1985 (“the Act”).

On 12 September 1997, the plaintiff suffered an injury at work and subsequently retained Slater and Gordon Lawyers to act on his behalf. A writ was issued seeking damages pursuant to s.135A, and the proceeding was compromised. The amount paid pursuant to the compromise was a lump sum and the employer’s insurer did not pay any sum for costs.

The application by Slater and Gordon Pty Ltd (“the solicitors”) was filed with the court supported by affidavits of the solicitor and the plaintiff, both sworn 22 May 2003. The Prothonotary referred the application to me, as the judge sitting in the Practice Court, and after consideration of the file I decided to refer the matter into court for argument. Mr M. Croyle of Counsel appeared on behalf of Slater and Gordon Pty Ltd in support of the application. The application raises a number of important issues.

History of Litigation

It is necessary to briefly trace the history of the litigation in chronological order.

12 September 1997 - Plaintiff injured at work – injury to his back. Claim made for compensation and payments made.
26 October 1999 – Plaintiff retains the solicitors to institute a common law claim. Solicitors and plaintiff enter into a “no win-no fee” agreement.
11 August 2000 – Serious injury application made.
20 March 2001 - Employer’s insurer accepts that the injury suffered by the plaintiff was a “serious injury”. The plaintiff is entitled to bring the damages proceeding pursuant to s.135A of the Act.
15 June 2001 - The Victorian WorkCover Authority (“the Authority”) made a statutory offer in writing pursuant to s.135A(2DE)(b) of $175,000 together with retention of all benefits. At that stage the benefits paid were in the order of $30,000.
6 July 2001 - The plaintiff made a statutory counter-offer pursuant to s.135A(2DE)(c) of $620,000 plus retention of benefits paid.
16 August 2001 – Writ issued. Thereafter interlocutory steps take place.
December…

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: [2003] VSC 404
Decision Date: 17 October 2003

CaseChat Overview and Summary

The case of Quama v Toll Transport Pty Ltd involved a dispute under the Accident Compensation Act 1985. The plaintiff, Quama, had previously accepted a compromise offer from the defendant, Toll Transport Pty Ltd, which included costs. Quama's solicitors then applied for costs pursuant to sections 135A(13C) and 135A(13D) of the Act. The court had to determine if the costs were necessary and, if so, what matters should be considered in making a discretionary order.

The primary legal issue was whether the costs claimed by Quama's solicitors were justified and whether they were subject to taxation. The court needed to consider the provisions of sections 135A(13C) and 135A(13D), which allow for the recovery of costs in certain circumstances, but also require that these costs be taxed. The court had to balance the necessity of the costs against the statutory requirement for taxation, ensuring that the discretion was exercised fairly and in accordance with the relevant legal principles.

In reaching its decision, the court examined the nature of the compromise and the role of the solicitors in achieving it. The court noted that while the compromise was inclusive of costs, the specific application for costs by the solicitors required a separate assessment. The court concluded that the costs claimed were necessary and that they should be taxed. It considered various factors, including the complexity of the case, the skill and expertise required, and the time expended by the solicitors. The court found that a discretionary order for costs was appropriate, taking into account the statutory framework and the specific circumstances of the case.

The court ordered that the costs claimed by Quama's solicitors be taxed and that a discretionary order be made for the recovery of those costs. The court emphasised that the taxation process should ensure that the costs were reasonable and necessary, and that the discretion was exercised in a manner consistent with the statutory provisions. The final orders reflected the court's determination that the costs were justified and should be recovered from Toll Transport Pty Ltd.

Orders