Victorian WorkCover Authority v Dundas Ridge Pty Ltd (Ruling as to costs)
[2021] VCC 654
•25 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-03630
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| DUNDAS RIDGE PTY LTD (ACN 006 731 522) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 May 2021 | |
DATE OF RULING: | 25 May 2021 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Dundas Ridge Pty Ltd (Ruling as to costs) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 654 | |
RULING AS TO COSTS
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Subject:COSTS
Catchwords: Application for indemnity costs following a Calderbank offer for the plaintiff to withdraw and bear costs – whether offer to capitulate – whether unreasonable for the plaintiff to refuse the offer
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited: Victorian WorkCover Authority v Dundas Ridge Pty Ltd [2021] VCC 506; Calderbank v Calberbank [1975] 3 All ER 333; Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No.2) (2005) 13 VR 435; Victorian WorkCover Authority v O’Brien & Ors (Costs Ruling) [2017] VSC 68; Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398; Berrigan Shire Council v Ballerini & Anor (No 2) [2006] VSCA 65; Truenergy Pty Ltd v Dispute Resolution Panel (No 2) [2009] VSC 612; Pepe v Platypus Asset Management Pty Ltd (No 2) [2011] VSC 21
Ruling: Application refused .
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Manova | Hall & Wilcox |
| For the Defendant | Mr R H Stanley | Norris Coates |
HIS HONOUR:
1Following a nine-day trial, I gave judgment for the defendant in this recovery proceeding pursuant to s369 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).[1] The plaintiff, the Victorian WorkCover Authority (“VWA”) had sought an indemnity against the defendant as it alleged an injury to a worker, Mr Paul Saultry, occurred in circumstances creating a liability in the defendant to pay damages.
[1]Victorian WorkCover Authority v Dundas Ridge Pty Ltd [2021] VCC 506
2Well prior to the commencement of the proceeding, the solicitors on behalf of the defendant made an offer to resolve the proceeding, said to be in accordance with the principles of Calderbank v Calberbank[2] and Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2).[3] The offer was that the defendant would bear its own costs of the litigation if the plaintiff withdrew the action. The offer was said to be open for fourteen days.
[2][1975] 3 All ER 333
[3](2005) 13 VR 435
3Much of the evidence in the proceeding was concerned with whether Mr Saultry turned his ankle in a pothole at the defendant’s premises, and, if so, the nature and size of that pothole. The determination of these issues hinged upon the reliability and credibility of various witnesses called on both sides.
4An issue of significance in the case was in relation to photographs of the premises where the injury occurred which were said, at the outset, to have been taken by another truck driver the day after the injury. When an examination of the defendant’s shipping container records was made in the course of the trial, it became clear that those photographs were not, in fact, taken until several months later. Those container records were not discovered by the defendant. In the course of submissions, Mr Stanley, for the defendant, said it was not reasonable in the circumstances for those records to be discovered. Ms Manova, counsel for the plaintiff, contended they ought to have been discovered at an early time as they were relevant to an issue in the proceedings.
5In Victorian WorkCover Authority v O’Brien & Ors (Costs Ruling),[4] J Forrest J examined the principles in relation to whether an offer to capitulate in a proceeding was a genuine offer, and whether it was unreasonable for such an offer to be refused. His Honour examined various cases[5] and concluded that the determination as to whether an offer was unreasonable, and thus not accepted, depended upon all the circumstances of the particular case.
[4][2017] VSC 68 (“O’Brien”)
[5]Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398; Berrigan Shire Council v Ballerini & Anor (No 2) [2006] VSCA 65; Truenergy Pty Ltd v Dispute Resolution Panel (No 2) [2009] VSC 612 and Pepe v Platypus Asset Management Pty Ltd (No 2) [2011] VSC 21
6His Honour said an issue to be examined was whether the offer was a true attempt to settle the case, and whether the case of the party to whom the offer was directed at the time of the offer, was hopeless.
7Mr Stanley submitted the costs of the proceeding, following a lengthy trial, were substantial. Many of the cases referred to in O’Brien[6] turned on their own facts. He submitted the offer of August 2020 represented a genuine attempt to resolve the proceeding at an early stage and ought to have been accepted.
[6]Supra
8As earlier noted, the determination of the case hinged upon the reliability and credibility of various witnesses called on behalf of both the plaintiff and the defendant. It was only after a careful analysis of all of the evidence, including the photographs, that I was able to determine that the injury suffered by Mr Saultry did not occur in circumstances giving rise to a liability in the defendant. At the time the offer was made, both sides had available evidence to support their respective cases. Available to the plaintiff was the evidence of three truck drivers, all of whom said they observed potholes in the area where the plaintiff fell. In August 2020, the evidence relied upon by the plaintiff was far from hopeless.
9There was also evidence available to the defendant to the effect that the injury suffered by Mr Saultry occurred when he slipped as he was climbing down from his truck. Although I did not accept this evidence at the end of the day, nonetheless up until the trial, and in fact several days into the trial, it was far from clear which version of events would be accepted.
10In my view, it was not unreasonable on the part of the plaintiff to refuse the offer. I say that for the following reasons:
(a) There was evidence available to the plaintiff from a number of witnesses at the time of the offer, and including up until the time of trial, which supported its contention that the injury to the worker arose in circumstances creating a liability with the defendant. Its case was far from hopeless;
(b) The defendant’s offer to withdraw and bear costs was little more than an invitation for the plaintiff to capitulate. I was informed that the payments made by the Victorian WorkCover Authority to the worker up to the time of trial were in the order of $225,000. The legal costs of the proceeding would be in excess of $100,000. In my view, an offer to withdraw in those circumstances was not an offer genuinely designed to resolve the proceeding when each party had available, at the time, reasonably credible evidence in support of their respective cases.
11In the circumstances, it was not unreasonable for the plaintiff to reject the offer. The application for indemnity costs is refused. The plaintiff should pay the defendant’s costs on a standard basis. I will make appropriate Orders.
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