Raeburn v Tenix Defence Systems Pty Ltd - [2007] VSCA 90

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 5825 of 2004

JOHN RAEBURN
	Appellant
v
TENIX DEFENCE SYSTEMS PTY LTD	Respondent

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JUDGES:	MAXWELL ACJ, NETTLE and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 April 2007
DATE OF JUDGMENT:	11 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 90

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PRACTICE AND PROCEDURE – Costs – Accident compensation – Whether amount of judgment more than statutory offer but less than 90% of statutory counter offer – Whether amount of judgment equates to jury verdict or net amount after deduction of statutory compensation payments – Whether potential for unfairness in operation of s 134AB(12), (28) Accident Compensation Act 1985 – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J B Richards SC with Mr A D B Ingram	Clark & Toop
For the Respondent	Mr R P Gorton QC with Mr P H Solomon	Herbert Geer & Rundle

MAXWELL ACJ,
NETTLE JA
ASHLEY JA:

The appellant (“Raeburn”) sued the respondent (“Tenix”) for common law damages for a workplace injury. After a 12-day trial before a Supreme Court judge and jury, the jury delivered a verdict in Raeburn’s favour. The jury assessed his damages for pain and suffering at $150,000 and for pecuniary loss at $300,000, a total of $450,000. Interest was subsequently agreed in the sum of $20,000.

In the period between the injury and the conclusion of the trial, Raeburn received some $203,078 by way of compensation payments under the Accident Compensation Act 1985. He accepts that he must give credit for that amount, such that the amount payable to him by Tenix is $266,922 (being the jury verdict of $450,000 less compensation of $203,078 plus agreed interest of $20,000).

The sole issue raised by this appeal is whether, for the purposes of determining who should pay the costs of the trial, Raeburn should be treated as having recovered $450,000 (as he contends) or the net sum of $266,922, as the Judge found. In our opinion, for the reasons which follow, the learned Judge’s conclusion was correct and the appeal must fail.

The costs provision

The common law proceedings were brought in accordance with s 134AB of the Act. Subsection 134AB(12) establishes a procedure for the making of pre-trial offers, which must be complied with before proceedings can be commenced.[1] The Authority must make “a statutory offer in writing” and, if the worker does not accept that statutory offer, he/she must make a “statutory counter offer in writing”.
[1]In the absence of the consent of the Authority or leave of Court.

The worker’s rejection of the Authority’s offer carries potential cost consequences should the worker proceed to trial. Under s 134AB(28) –

·if the worker fails to establish any liability to damages, or obtains a judgment which does not exceed the Authority’s statutory offer, then the worker must pay the costs of the proceeding;
·if the judgment amount is not less than 90% of the worker’s statutory counter offer, and more than the Authority’s statutory offer, the…

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: [2007] VSCA 90
Decision Date: 11 May 2007

CaseChat Overview and Summary

Raeburn brought an action against Tenix Defence Systems, seeking damages for injuries sustained in a workplace accident. The matter was heard in the Supreme Court of New South Wales. The dispute centred on the assessment of costs under the Accident Compensation Act 1985, specifically regarding whether the amount awarded in judgment was more than the statutory offer but less than 90% of the statutory counter offer. The court was required to determine whether the amount of judgment equated to a jury verdict or the net amount after deduction of statutory compensation payments. Additionally, the court examined whether there was potential for unfairness in the operation of sections 134AB(12) and (28) of the Act.

The court examined the statutory provisions and the relevant case law to resolve these issues. It found that the amount of judgment was not to be equated with a jury verdict but rather the net amount after statutory compensation payments had been deducted. This interpretation aligned with the legislative intent and the operation of the Act. The court further determined that there was no unfairness in the operation of sections 134AB(12) and (28), as these provisions were designed to provide a fair and equitable framework for the assessment of costs in accident compensation cases.

Ultimately, the court dismissed the appeal, holding that the amount of judgment did not exceed the statutory offer but was less than 90% of the statutory counter offer. The reasoning of the court was based on a detailed analysis of the statutory provisions and the principles of statutory interpretation. The court concluded that the amount of judgment was correctly calculated as the net amount after statutory compensation payments.

The court made no further orders and dismissed the appeal.

Orders