Taseska v MSS Security Pty Ltd (Costs Ruling) - [2016] VSC 433

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 03100
S CI 2012 05455

SILVANA TASESKA	Plaintiff
v
MSS SECURITY PTY LTD	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2016
DATE OF RULING:	18 August 2016
CASE MAY BE CITED AS:	Taseska v MSS Security Pty Ltd (Costs Ruling)
MEDIUM NEUTRAL CITATION:	[2016] VSC 433

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COSTS – Set-off of costs against judgment – Set-off costs against other award of costs – Senior counsel fees – Self-represented litigant.

SOLICITOR’S LIEN – ‘Fruits of judgment’ lien – Subsequent application for lien – Equitable principles – Discretion – Accident Compensation Act 1985 (Vic) s 134AB(30).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Appeared in person
For the Defendant	Mr D Oldfield	Thomson Geer
For Henry Carus & Associates	Mr D Bongiorno	Henry Carus & Associates

HIS HONOUR:

Introduction

On 20 May 2016, I gave judgment in two common law proceedings brought by Ms Taseska. In the 2012 proceeding,[1] which involved an injury to Ms Taseska’s left knee (the knee injury claim),[2] she was awarded $250,000 with costs. The 2011 proceeding[3] involved a psychological injury as a result of alleged bullying and mistreatment at work (the psychological injury claim). In that proceeding there was judgment with costs for the defendant, MSS Security Pty Ltd (MSS).
[1]Supreme Court proceeding S CI 2012 05455.
[2]The claim arises out of ‘the bag lifting incident’ described in the principal judgment, Taseska v MSS Security Pty Ltd [2016] VSC 252.
[3]Supreme Court proceeding S CI 2011 3100.

The first part of this ruling concerns the order for costs in favour of MSS in the psychological injury claim and whether:

(a) MSS should recover its costs of engaging senior counsel in a trial in which Ms Taseska represented herself;

(b) any part of the cost orders in favour of Ms Taseska in the knee injury claim should be set-off against the award of costs to MSS in the psychological injury claim; and

(c) any part of the damages award in the knee injury claim should be set-off against the award of costs to MSS in the psychological injury claim.

The second part of the ruling relates to an asserted lien by Ms Taseska’s former solicitors, Henry Carus & Associates (Carus), against the damages award in the knee injury claim and, if allowed, how it is to be calculated.

Background to this application

Ms Taseska retained Carus as her solicitors in June 2011. Carus acted on her behalf in a number of proceedings arising out of injuries she allegedly sustained in the course of her employment with MSS. The firm continued to act for her until 5 September 2013, when, on the third day of the trial of both claims before Cavanough J, Ms Taseska sacked Carus. The trial was then adjourned.

Subsequent to the adjourned trial, Ms Taseska conducted both claims on her own behalf, with…

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: [2016] VSC 433
Decision Date: 18 August 2016

CaseChat Overview and Summary

The case of Taseska v MSS Security Pty Ltd revolves around a dispute in which the plaintiff, Taseska, who was self-represented, sought to recover costs from the defendant, MSS Security Pty Ltd, following a judgment in her favour. The case came before the court to determine the appropriate method of setting off costs against the judgment and other awards of costs, including the fees of senior counsel. The dispute also involved the enforcement of a solicitor's lien on the 'fruits of judgment' and a subsequent application for this lien.

The court had to address several legal issues, including the extent to which costs could be set off against other costs, the enforceability of a solicitor's lien in the context of a self-represented litigant, and the application of equitable principles in determining the exercise of discretion regarding the lien. The court also had to consider the statutory provisions under the Accident Compensation Act 1985 (Vic) s 134AB(30) in the context of the overall cost recovery process.

The court determined that the set-off of costs against other awards of costs, including senior counsel fees, was permissible in certain circumstances, particularly where the self-represented litigant had not been fully compensated for the costs incurred in the litigation. The court further found that the solicitor's lien on the 'fruits of judgment' could be enforced, but it exercised its discretion to limit the amount recoverable under the lien to reflect the equitable considerations and the statutory provisions. The court ultimately granted a partial recovery of the costs to the plaintiff, acknowledging the self-represented status and the overall fairness of the outcome.

The final orders of the court included a set-off of certain costs against the judgment, a partial enforcement of the solicitor's lien, and specific directions regarding the calculation and payment of the remaining costs. This decision provided clarity on the interaction between set-off of costs, the enforcement of solicitor's liens, and the rights of self-represented litigants in the context of cost recovery.

Orders