Venture Campbellfield Pty Ltd v Kemal Isitman (No. 2)

[2016] VSC 680

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2016 00879

VENTURE CAMPBELLFIELD PTY LTD	Plaintiff
v
KEMAL ISITMAN	First defendant
ANDREW GIBSON	Second defendant
DAVID FISH	Third defendant
STEVEN LIETL	Fourth defendant

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JUDGE:	T Forrest J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2016
DATE OF JUDGMENT:	8 November 2016
CASE MAY BE CITED AS:	Venture Campbellfield Pty Ltd v Kemal Isitman & Ors (No. 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 680

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COSTS – Judicial review of a Medical Panel decision – Order 56 Supreme Court (General Civil Procedure) Rules 2015 - Whether or not an appeal for purposes of Appeals Costs Act 1998 – Error of Medical Panel no fault of first defendant – Indemnity certificate granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S. Gold	Hall & Wilcox
For the First Defendant	Mr N. Dunstan	Zaparas Lawyers Pty Ltd

HIS HONOUR:

1. The plaintiff in this matter sought orders in the nature of certiorari and mandamus concerning an opinion provided by a Medical Panel in the context of compensation proceedings between the plaintiff and first defendant. I was ultimately satisfied that the Panel’s decision was infected by jurisdictional error, and I have made the orders sought. The plaintiff submits that the first defendant ought pay its costs of the appeal proceeding. The first defendant does not oppose the plaintiff’s costs application, but applies for an indemnity certificate pursuant to s 4(1) of the Appeals Costs Act 1988 (‘Act’). The plaintiff does not oppose this application for an indemnity certificate.

1. I am satisfied that this proceeding was an appeal within the meaning of ss 3 and 4 of the Act.  I am also satisfied that the medical panel is a court for the purposes of those sections of the Act.  Section 3 provides that a "court" includes any tribunal or other body from whose decision there is an appeal to a superior court on a question of law. In those circumstances, s 4(1) of the Act provides me with a discretion in the event of a successful appeal to grant an unsuccessful respondent with an indemnity certificate in respect of costs.

1. In this case, as set out in the reasons of the substantive judgment,[1] there was no fault on the worker's behalf or that of his legal practitioners that led to the fatal denial of procedural fairness. True it is that the worker, through his practitioners, could have elected not to contest the appeal, but on balance I consider the justice of the case calls for an indemnity certificate.

   [1]Venture Campbellfield v Kemal Isitman & Ors [2016] VSC 665.

1. The end result was a relatively ‘close run thing’, and in my view it was reasonable for the worker's solicitors to try to retain their original Medical Panel victory. Given that the primary fault was not that of the worker, who did no more than respond to the questions of the Medical Panel, but rather of the statutorily constituted body before whom the worker was presented at the employer’s insurer’s request, I consider that it would be harsh for me to refuse the application for an indemnity certificate. I am fortified in this conclusion by the decision of Cavanagh J in Barrett Burston Malting Co Pty Ltd v Kotzman & Ors.[2]

   [2][2013] VSC 248, see [54].

1. I shall order that the first defendant pay the plaintiff’s costs of the review proceeding, and shall incorporate in my general form of order under ‘Other Matters’ that the court has granted the first defendant an indemnity certificate under s 4(1) of the Appeals Cost Act 1998 in respect of costs.