Quilligan v Copyshift Group (No 2) - [2019] VSC 221

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2018 02200

BETWEEN:

JOHN FRANCIS QUILLIGAN	Plaintiff
v
COPYSHIFT GROUP PTY LTD (ACN 007 230 006)	First Defendant
MELBOURNE PACKAGING SUPPLIES PTY LTD (ACN 005 605 952)	Second Defendant
SWIFT TRANSPORT SERVICES PTY LTD (ACN 101 606 400)	Third Defendant
BENJAMIN CALLOS	Fourth Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	8 April 2019
CASE MAY BE CITED AS:	Quilligan v Copyshift Group (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 221

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COSTS — Third defendant’s application for indemnity costs - Plaintiff’s application for Serious Injury Certificate and negligence action failed on causation ground — Third party’s Calderbank offer before it was joined as third defendant — Calderbank offer that plaintiff not issue proceeding against it and bear his own costs — Plaintiff’s refusal of offer not unreasonable — Third defendant’s costs while a third party — Standard costs ordered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Slater & Gordon Lawyers
For the Third Defendant	Moray & Agnew Lawyers

HIS HONOUR:

In this proceeding, I dismissed the plaintiff’s claims against all the defendants. I refused the plaintiff’s application for a Serious Injury Certificate and dismissed his proceeding for damages for a workplace injury said to have occurred at the first defendant’s premises on 24 June 2016.[1]
[1]Quilligan v Copyshift Group & Ors [2018] VSC 784.

Following delivery of judgment, the third defendant, Swift Transport Services Pty Ltd (‘Swift Transport’), sought an order that:

The plaintiff pay the costs of the third defendant of the proceeding up to and including 21 September 2018 on a standard basis and thereafter on an indemnity basis.

The order that it sought included that the plaintiff pay its costs directly for the period when it was a third party and prior to it being joined by the plaintiff as a defendant.

The plaintiff opposed the third defendant’s application and instead argued that he should be ordered to pay the third defendant’s costs on a standard basis only, as he had been so ordered to pay the costs of the other defendants.

In the judgment I found Swift Transport vicariously liable for the actions of its employee. I found that an incident occurred on 24 June 2016 that caused discomfort to the plaintiff’s, Mr Quilligan’s, right foot and first right toe and I generally preferred his evidence about the incident to Mr Callos’ (the fourth defendant). I stated that I considered it more probable that Callos was involved in starting the Crown Lift Machine and moving it back to the truck, and that as it started, it came into contact with Quilligan’s right first toe and right foot and that that was a breach of his duty of care to Quilligan. There was a conflict of medical opinion as to causation, but I preferred Associate Professor Lording’s evidence that there was no causal link between the breach…

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: [2019] VSC 221
Decision Date: 8 April 2019

CaseChat Overview and Summary

In the matter of Quilligan v Copyshift Group (No 2), the plaintiff, Quilligan, sought indemnity costs from the third defendant, Copyshift Group, following a failed attempt to obtain a Serious Injury Certificate and initiate a negligence action. The case was heard in the Federal Circuit Court of Australia. The primary legal issues were whether the third defendant was entitled to indemnity costs and, if so, whether these costs could be awarded while the third defendant was still a third party.

The court examined whether the plaintiff's refusal to accept the third defendant's Calderbank offer, which was made before the third defendant was joined as a party to the proceedings, was unreasonable. The Calderbank offer stipulated that the plaintiff would not issue proceedings against the third defendant and would bear his own costs. The court found that the plaintiff's refusal was not unreasonable, as the offer was made before the third defendant was properly joined to the action. The court also noted that the standard costs while the third defendant was a third party were appropriate. Ultimately, the court ordered the third defendant to pay standard costs.

The final orders of the court were that the third defendant, Copyshift Group, was to pay the plaintiff's costs on the standard basis, reflecting the circumstances under which the third defendant was joined to the proceedings.

Orders