Shirreff v Elazac Pty Ltd (No 2) - [2010] VSC 508

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 5803 of 2009

LINTON SHIRREFF	Plaintiff
v
ELAZAC PTY LTD	Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2010
DATE OF JUDGMENT:	11 November 2010
CASE MAY BE CITED AS:	Shirreff v Elazac Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2010] VSC 508	Amended 11 November 2010

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PERSONAL INJURY – plaintiff obtained judgment in a proceeding commenced under s 134AB of the Accident Compensation Act 1985 – application for costs – whether statutory counter offer valid – if invalid plaintiff required to pay own costs – if valid defendant to pay plaintiff’s costs – whether counter offer complied with s 134AB(12)(c) – consideration of Ministerial Directions on construction of “offer” for purpose of s 134AB(12)(c) – statutory counter offer valid – s 134AB of the Accident Compensation Act 1985

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin SC and Ms M Pilipasidis	Kenyons
For the Defendant	Mr D E Curtain QC and Ms B Y Knoester	Hall & Wilcox

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY............................................................................................ 1

THE RELEVANT LEGISLATION.................................................................................................. 1

DISCUSSION..................................................................................................................................... 5

RELEVANT AUTHORITIES........................................................................................................... 8

DO THESE DECISIONS AFFECT THIS CASE?......................................................................... 9

HIS HONOUR:

INTRODUCTION AND SUMMARY

On 2 September 2010, judgment was entered for the plaintiff in the sum of $897,620.80. The plaintiff had succeeded in a claim for damages for pain and suffering and pecuniary loss damages arising out of injuries he suffered in a lift well whilst employed by the defendant in proceedings brought under s 134AB of Accident Compensation Act 1985 (“the Act”).

The plaintiff seeks an order that the defendant pay the plaintiff’s costs including any reserved costs. The defendant opposes the order. The defendant contends that contrary to s 134AB(12)(c) of the Act and the relevant ministerial direction the plaintiff failed to make a statutory counter offer. As a result the defendant says that under s 134AB(14) of the Act, the plaintiff is deemed to have made a counter statutory offer of the maximum amount that may be awarded as damages under sub-s 134AB(22)(a) and (b). The parties agree that if that is the case then s 134AB(28)(d) applies and each party must bear its own costs. In that event, the plaintiff’s application would be dismissed.

For the following reasons I find that the plaintiff did make a valid statutory counter offer and I will make the order for costs sought by the plaintiff.

THE RELEVANT LEGISLATION
Section 134AB
….
(12)The worker must not commence proceedings in accordance with this section, other than an application under subsection (16)(b) or the commencement of proceedings with the consent of the Authority under subsection (20) or (20A), unless—
(a)the worker and the Authority or self-insurer hold, or begin, a conference within 21 days after the response date; and
(b)the Authority or self-insurer makes a statutory offer in writing in settlement or compromise of the claim at that conference, or after 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: [2010] VSC 508
Decision Date: 11 November 2010

CaseChat Overview and Summary

In the case of Shirreff v Elazac Pty Ltd (No 2), the plaintiff, having obtained a judgment following a proceeding initiated under section 134AB of the Accident Compensation Act 1985, applied for costs. The core dispute revolved around the validity of a statutory counter offer made under the Act and the subsequent implications for cost allocation. The court was tasked with determining whether the statutory counter offer was valid, which in turn would determine whether the plaintiff or the defendant would bear the costs of the litigation. The outcome of this decision had direct consequences on the financial burden placed on the parties involved.

The legal issues before the court included the interpretation of the statutory counter offer under section 134AB(12)(c) of the Act, and whether it complied with the necessary requirements. Additionally, the court needed to consider the relevant Ministerial Directions to understand the proper construction of "offer" for the purposes of the section in question. The primary focus was on whether the statutory counter offer was valid, and if not, whether the plaintiff would be required to bear their own costs, or if the defendant would be responsible for paying the plaintiff’s costs.

In its reasoning, the court found that the statutory counter offer was indeed valid. The court considered the Ministerial Directions which provided guidance on the interpretation of "offer" within the context of section 134AB(12)(c). By finding that the counter offer complied with the statutory requirements, the court concluded that the defendant was liable for the plaintiff's costs. The court's decision was based on a meticulous examination of the statutory language and the relevant Ministerial Directions, ensuring that all legal standards were appropriately applied.

The final orders of the court mandated that the defendant, Elazac Pty Ltd, pay the plaintiff's costs associated with the proceeding. This outcome was directly influenced by the court’s determination that the statutory counter offer was valid, thus adhering to the legislative framework outlined in the Accident Compensation Act 1985.

Orders