Victorian Workcover Authority v Cranbourne Turf Club Inc & Anor (Ruling)
[2023] VCC 2064
•14 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-23-03830
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| CRANBOURNE TURF CLUB INC. | First Defendant |
| and | |
| SALOON PARK PTY LTD (ABN 20054226989) | Second Defendant |
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JUDGE: | JUDICIAL REGISTRAR J B GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 October 2023 and 3 November 2023 | |
DATE OF RULING: | 14 November 2023 | |
CASE MAY BE CITED AS: | Victorian Workcover Authority v Cranbourne Turf Club Inc & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2064 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Common issues for trial, Appropriate timetabling orders for trial, Application of Civil Procedure Act 2010 for case management.
Legislation Cited: Civil Procedure Act 2010, Workplace Injury Rehabilitation and Compensation Act 2013, Sentencing Act 1991 (Vic)
Cases Cited:Stevens v Baxter [2009] VSC 257
Ruling: Proceedings CI-23-03830, CI-22-03200 and CI-22-03482 to be listed for trial together with appropriate timetabling orders
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms L Glass | Wisewould Mahony Lawyers |
| For the First Defendant | Ms A Csorgo (Solicitor) | Meridian Lawyers |
| For the Second Defendant | Mr B Rissman (Solicitor) | Colin Biggers & Paisley |
HIS HONOUR:
Summary
1On 30 August 2019, Mikaela Claridge, (the deceased) riding a horse called “Dharma” in the course of employment, in tragic circumstances was fatally injured. The incident has been the subject of a coronial inquest and a workplace health and safety investigation, and prosecution. It is not necessary to go into further detail in relation to the factual circumstances for the purpose of this ruling.
2Arising from the incident, there have been three proceedings brought by parties which were the subject of a directions hearing before me on 18 October 2023 and 3 November 2023. The direction hearings were for the purpose of determining appropriate timetabling orders for trial and case management of the proceedings to trial.
3The initial application for a directions hearing was initiated by the plaintiff in these proceedings. The proceedings which have been commenced are:
(a)CI-23-03830, where the plaintiff is the Victorian WorkCover Authority, the first defendant is Cranbourne Turf Club Inc. and the second defendant Saloon Park Pty Ltd (ABN 20054226989) (the “VWA” proceedings).
(b)CI-22-03200, where Colleen Claridge and others (the “Claridge” proceedings) are the plaintiffs, the first defendant is Cranbourne Turf Club Inc. and the second defendant is Saloon Park Pty Ltd. The plaintiffs in those proceedings are represented by Arnold Dallas McPherson.
(c)CI-22-03482, where the plaintiff is Jamie Ferguson (the “Ferguson” proceedings) and Saloon Park Pty Ltd is the first defendant and Cranbourne Turf Club Inc is the second defendant. The plaintiff in those proceedings is represented by Arnold Thomas & Becker Pty Ltd.
4For all three proceedings, the defendant Saloon Park Pty Ltd is represented by Colin Biggers & Paisley and Cranbourne Turf Club Inc is represented by Meridian Lawyers.
5We have three plaintiffs represented by different law firms, but two defendants in each proceeding represented by the same solicitors.
6Solicitors for the VWA wrote to the Court on 26 September 2023 with a directions hearing application form. The form also requested a directions hearing for the related Claridge proceedings seeking orders they be heard together on the question of liability with appropriate timetabling orders. However, the Ferguson proceedings had not been identified.
7The current status of each proceeding will be discussed together with submissions made by the respective plaintiffs. I note for all three proceedings, the defendants have joined with the VWA in their requested proposed orders. This ruling will apply for all three proceedings.
Consideration / reasons
8Section 47 the Civil Procedure Act 2010 (“CPA”) provides considerable judicial powers of case management to further the overarching purpose and to actively case manage proceedings. Sub-section (1) says that the Court may give any direction or make any order it considers appropriate for the purpose of furthering the overarching purpose.
9Sub-section (3) of section 47 identifies how a court may actively case manage civil proceedings which includes:
(a)giving directions to ensure the civil proceedings are conducted promptly and efficiently;
(e ) controlling the progress of the civil proceeding, including, but not limited, to:
(i)fixing timetables;
(ii)dealing with as many aspects of a civil proceeding as it can on the same occasion.
10In giving effect to furthering the overarching purpose the Court must, as set out in s(9)(1), have regard to:
(a) the just determination of the civil proceedings;
(c) the efficient conduct of the business of Court;
(d) the efficient use of judicial and administrative resources.
11Sub section (2)(f) requires the Court to have regard to any prejudice that may be suffered by a party as a consequence of any order given by the Court.
VWA proceedings
12The VWA proceedings were commenced by Writ dated 19 July 2023. The Statement of Claim pleads the first defendant, Cranbourne Turf Club Inc., were the occupiers of the premises and conducted a business as a horse-racing club and training facility. Further, the second defendant was the employer of Ken Keys. The deceased was riding track work for Ken Keys.
13The plaintiff seeks to recover, pursuant to s369 payments made under the Workplace Injury Rehabilitation and Compensation Act 2013.
14No timetable orders have been made, and there is no trial date.
15Normally for VWA recovery proceedings, where a worker is pursuing damages, the Courts practice is to list first the worker’s damages proceeding, usually for hearing by a Judge and jury then the recovery proceeding before the same Judge as a cause. As set out in the Court’s timetabling orders booklet, appropriate orders are made by the Court relevant to discovery, interrogatories and expert evidence for both proceedings.
Claridge proceedings
16The Claridge proceedings were commenced on 11 August 2022 by way of Writ. In those proceedings there are five plaintiffs. Those plaintiffs are the mother and father of the deceased, her two brothers and a former partner.
17The plaintiffs plead, as Particulars of Injury, adjustment disorders with depressive features.
18As with the VWA proceedings, no trial date has been set, nor are there any timetabling orders applicable to this proceeding.
19At the directions hearing on 3 November 2023, supported by an affidavit of the plaintiff’s solicitor, an application was made for the Claridge proceedings to be adjourned pending the resolution of a s85B Sentencing Act 1991 (Vic) application for compensation. The Court was informed that, on 10 October 2023, the applications for compensation had been lodged and they were listed for a directions hearing at this court on 31 January 2024. It was submitted these proceedings should be adjourned to allow resolution of the s85B application as that may narrow the issues in dispute between the parties.
20Section 85B(1) empowers the Court to make a compensation order in favour of a person who as suffered an injury as a direct result of an offence. Sub-section (2) provides that the Compensation Order may comprise pain and suffering, expenses incurred inclusive of medical and other expenses. However, while the Order for compensation is determined by the application, where relevant on common law principles, the Order, itself, is one for compensation, not damages. In Stevens v Baxter,[1] J Forest J summarised the relevant principles.
[1][2009] VSC 257
21If I grant the plaintiff’s application to adjourn the Claridge proceeding, this would mean, in effect, that the VWA and Ferguson proceedings would continue in the absence of the Claridge proceeding.
22Further, I note no proposed orders were submitted by the plaintiffs’ solicitors, so this must mean no step is to be taken in the proceeding until after the S85B application has been resolved.
Ferguson proceedings
23The Ferguson proceedings were commenced by Writ dated 25 August 2022. An amended writ was filed and served by Order of the Court dated 26 July 2022. In the Statement of Claim, it is pleaded that the plaintiff was the husband of the deceased and has suffered severe nervous shock and loss and damage.
24In this proceeding, Judge Pillay, on 25 September 2023, made the standard timetabling orders listing it for trial on 25 September 2024 before a judge and jury. The solicitor for the plaintiff has informed the Court that they wish to maintain the trial date but are in the hands of the Court on appropriate timetabling orders for the proceedings.
25In both the Claridge and Ferguson proceedings, both defendants filed a notice of jury but at the directions hearing on 3 November 2023, I was informed they would not proceed with a request for a trial by jury. That concession, noting that the plaintiffs Claridge and Ferguson have not nominated a jury, makes my decision for the conduct of the trial considerably easier.
Orders
Trial
26For all three proceedings, there are common issues in regard to negligence and questions for determination by the trial judge. Therefore, as all proceedings are to proceed as a cause, it is entirely consistent with the provisions of the CPA that they be listed on the same trial date, before the same trial judge for determination of the issue of negligence.
27I am not satisfied that the Claridge proceedings should be delayed pending the outcome of the s85B application. That application is based upon an order of the Court for compensation arising from a sentence. The issues of negligence that are to be determined will not be dependent on that application.
28To adjourn the Claridge proceedings would place an unnecessary burden on the defendants with respect to costs and trial preparation and is not an efficient use of court resources. It would mean witnesses may be required to give evidence on more than one occasion and could possibly create a situation of inconsistent findings.
29I will make a further order that, upon the determination of the issue of negligence, and subject to any further order of the trial judge, the proceedings for damages in relation to the Ferguson and Claridge proceedings is to be determined. It will follow that the indemnity entitlement to the plaintiff in this proceeding will follow from those determinations.
30I have considered whether it was appropriate to adjourn the damages trial for the Claridge proceeding pending the outcome of the s85B application. However, to do so, would again pose an unnecessary burden on the defendants, delay the proceedings and place a further burden on court resources. I do not consider this will cause any substantial prejudice to the plaintiffs in the Claridge proceeding.
31I will order that all 3 proceedings be listed for trial on 25 September 2024.
Discovery
32For discovery on liability documents and documents in support of compensation and damages, it is appropriate that an order be made that the parties serve and complete disclosure of documents on the same dates for all three proceedings. Further, that documents produced in one proceeding can be used for the purpose of the related proceedings.
33Additionally, that the parties in all proceedings have leave to inspect and copy the material produced under subpoena in a proceeding, which has been released to the parties in those proceedings.
34I will order that for all three proceedings parties must serve any notice for discovery by 24 November 2023.
35Compliance with the notice is to be by 19 January 2024.
Interrogatories
36The plaintiffs in all proceedings will have similar issues and questions upon which to interrogate the defendants. For that reason, I see no reason why one set of interrogatories could not be served on behalf of all three plaintiffs, for the examination of the respective defendants. This would be consistent with the CPA and avoid unnecessary costs to the parties. The orders that I make reflect that the plaintiffs in each proceeding are to agree upon a common set of interrogatories for the first and second defendants by an ordered date.
37The date for the plaintiffs to agree on a common set of interrogatories for each defendant is 2 February 2024.
38However, I consider, from the defendants’ perspective, they should interrogate each of the plaintiffs separately as they may not be in a position, due to issues in dispute between them, to agree on one set of interrogatories for each plaintiff.
39The date for service of interrogatories by all parties is 16 February 2024.
Expert reports
40Each party should be allowed an opportunity to serve any medical and/or expert reports concerning damages and liability.
41I do not believe this is a matter where a joint expert report can be ordered. However, I encourage the defendants to agree for the plaintiffs in the Claridge and Ferguson proceedings for them to be examined by on one medical expert in each discipline, as a joint medical examination.
42The date for service of medical and or expert reports is 19 June 2024.
Particulars of special damage/compensation paid
43I have ordered the date for the plaintiffs in each proceeding to serve Particulars of Special Damage or Particulars of Compensation Paid as the 19 June 2024.
44I have further ordered that, consistent with the normal court timetabling, updated Particulars of Special Damage and Particulars of Compensation Paid are to be served by 28 August 2024.
Mediation
45All proceedings should be mediated before the same mediator on the same day. However, the order in which each matter is to be mediated will be at the discretion of the appointed mediator.
46However, I have ordered that the parties are to reach agreement on the appointment of a mediator by 28 June 2024. If, for any reason, there is a dispute on the choice of mediator or the conduct of the mediation, the matter is to be brought on for a directions hearing before me for further determination.
47Mediation is to be by 14 August 2024.
48If the defendants have not agreed on contribution, and negligence is still an issue, then the defendants are to have held a pre-mediation conference by 12 August 2024. They must at that conference and the mediation with the plaintiffs have in attendance a person with authority, to provide instructions to resolve the proceedings.
Final service
49I have made the usual order that no new medical or expert reports on damages and liability must be exchanged after mediation except with leave of the Court.
Post-mediation directions hearing
50I have ordered the proceedings be listed for a post-mediation direction hearing on 28 August 2024. It is most important, given the issues in dispute and the need to maintain the trial date, that there be a directions hearing rather than an administrative mention.
Costs
51For this matter, and the related proceedings, the order for costs on the application and directions hearing be costs reserved.
52Finally, attached to this ruling is a copy of the orders in the three proceedings, together with an appearance sheet for all matters when they came before me.
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