Victorian WorkCover Authority v Kaplan Built Pty Ltd & Anor (Ruling)

[2025] VCC 942

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-24-00770

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
KAPLAN BUILT PTY LTD (ACN 635 616 894)	First Defendant
and
ICON SCAFFOLDING	Second Defendant

---

JUDGE:	HER HONOUR JUDGE MYERS
WHERE HELD:	Melbourne
DATE OF HEARING:	1 July 2025 (written submissions provided on 2 July 2025)
DATE OF RULING:	18 July 2025
CASE MAY BE CITED AS:	Victorian WorkCover Authority v Kaplan Built Pty Ltd & Anor (Ruling)
MEDIUM NEUTRAL CITATION:	[2025] VCC 942

RULING
---

Subject:ACCIDENT COMPENSATION – RECOVERY PROCEEDING

Catchwords: Workplace accident – indemnity under s369 of the Workplace Injury Rehabilitation and Compensation Act2013 – worker’s proceeding dismissed – whether the recovery action should be dismissed with liberty to apply – discretionary considerations

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act2013; Occupational Health and Safety Regulations 2017; County Court Civil Procedure Rules2018

Cases Cited:Victorian Workcover Authority v Roman Catholic Trusts Corporation for Archdiocese of Melbourne & Anor [2013] VSC 26

Ruling:  Proceeding dismissed with liberty to apply on written notice to the defendants.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L B R Allan	Hall & Wilcox
For the First Defendant	Mr D Churilov (no appearance)	Barry Nilsson
For the Second Defendant	Mr G A Worth	Sparke Helmore

HER HONOUR:

Introduction

1In this proceeding, the plaintiff, the Victorian Workcover Authority (“the VWA”) claims an indemnity from the defendants under s369 of the Workplace Injury Rehabilitation and Compensation Act2013 (“the Act”) for payments made by it under the Act to Mr Mohammad Adib (“the worker”).

2Pursuant to an order dated 8 July 2024, this proceeding was heard consecutively with proceeding number CI-24-01002 (“the worker’s proceeding”). 

3In the worker’s proceeding, the worker sought damages against his employer and the defendants in this proceeding. 

4The worker’s proceeding was heard by a civil jury of six between 17 and 30 June 2025.

5On 30 June 2025, the jury in the worker’s proceeding delivered its verdict.  The worker’s claims in negligence and breach of the Occupational Health and Safety Regulations 2017 (Vic) failed against each defendant.

6Following the jury’s verdict, Counsel for the VWA advised the Court that the VWA did not oppose an order that its proceeding against each defendant be dismissed, subject to the proviso that there be liberty to apply on written notice to either defendant.  The proviso was sought to accommodate a circumstance where the worker successfully appealed the dismissal of his claims in the worker’s proceeding.

7The first defendant, Kaplan Built Pty Ltd (“Kaplan”) submitted that this proceeding should be dismissed without reservation of liberty to apply.

8The second defendant, Icon Scaffolding (“Icon”) consented to the dismissal of the proceeding against it with the reservation of liberty to apply.

9On 10 July 2025, orders were made dismissing this proceeding against each defendant with liberty to apply on written notice.  These are my reasons for so ordering.

VWA’s submissions

10Counsel for the VWA submitted that the worker may seek leave to appeal from the final orders made in his claim.  The outcome of such appeal may have the effect of setting aside the jury’s verdict and orders in favour of Kaplan.  Were that to occur, the VWA would be prejudiced if it were not permitted to reagitate its claim against Kaplan, or if it were required to bring a fresh proceeding to do so.

11Counsel for the VWA submitted that a similar proviso had been made by Dixon J in Victorian WorkCover Authority v Roman Catholic Trusts Corporation for the Archdiocese of Melbourne & Anor.[1]

[1][2013] VSC 26 (“Roman Catholic Trusts”)

12The payments made by the VWA to the worker commenced on and from 17 October 2019.  If the worker was successful in an appeal in relation to his claim against Kaplan, absent an order giving liberty to apply which would allow this proceeding to be re-enlivened, any claim by the VWA for payments made more than six years prior to the commencement of any new proceeding following such appeal would be statute barred.

13The VWA submitted that no prejudice or inconvenience would befall Kaplan if liberty to apply was reserved as it would only operate if there were a successful appeal in the worker’s proceeding against the dismissal of the worker’s claims against Kaplan.

14In the alternative, the VWA sought an adjournment of this proceeding to an administrative mention after expiry of the appeal period in the worker’s proceeding.

Kaplan’s submissions

15Counsel for Kaplan submitted that there was a public interest in the finality of litigation.  Further, there was a private interest consideration, in that Kaplan would remain uncertain as to whether it would have to defend this proceeding at some indeterminate point of time in the future.  Counsel submitted that the “uncertainty may never dissipate since even past the expiry of the 42-day appeal period the worker could apply for an extension of time to seek leave to appeal”.  Counsel submitted that such uncertainty was undesirable.

16Counsel for Kaplan submitted that this case was significantly different to the circumstances in Roman Catholic Trusts.  There, the worker lodged an appeal prior to the Court’s ruling.  Here, the worker has not lodged an appeal nor suggested that an appeal would be lodged.

17Counsel for Kaplan submitted that the VWA’s approach to a recovery proceeding in the unrelated case of Victorian WorkCover Authority v Torrington Superannuation Pty Ltd (proceeding number CI-24-00849) was “instructive”.  There, the VWA consented to the dismissal of the recovery proceeding without the proviso being sought in this proceeding. 

18Counsel for Kaplan submitted that the alternative course proposed, of an adjournment to an administrative mention, should also be rejected.

VWA’s submissions in reply

19Counsel for the VWA submitted that the circumstances in Victorian WorkCover Authority v Torrington Superannuation Pty Ltd were materially different, as the worker’s employer was ordered to pay the claimed damages in the worker’s proceeding. 

Consideration

20Neither the VWA nor Kaplan made submissions regarding the Court’s power to dismiss this proceeding with liberty to apply.

21I am satisfied that I have the power to so order by reason of Order 59.01 of the County Court Civil Procedure Rules2018.

22In my view, it is undesirable to adjourn this proceeding to an administrative mention after the expiration of the appeal period for the worker’s proceeding.  As both the VWA and Kaplan recognised, even if an appeal was not filed in that time, there could be circumstances where an extension of time could be sought.  Further, Kaplan would be kept out of its costs in this proceeding in the meantime.

23The question whether this proceeding should be dismissed with or without liberty to apply is a discretionary decision which requires the Court to balance a number of factors.

24There is a public interest in the finality of litigation.

25I acknowledge that in Roman Catholic Trusts, the worker had filed a notice of appeal by the time the Court made its order in the associated recovery proceeding.    In contrast here, the worker has not as yet, and may not, seek to appeal the dismissal of his claims in the worker’s proceeding. 

26I am not assisted by reference to the unrelated proceeding of Victorian WorkCover Authority v Torrington Superannuation Pty Ltd.

27If the worker files an appeal, the outcome of it will not be known for some time.

28The VWA has accepted the liability finding in the worker’s proceeding in respect of Kaplan and Icon; however, that liability finding might be challenged on appeal.

29In my view, the discretionary considerations which were operative in Roman Catholic Trusts are as apposite here:

“As the recovery action is being dismissed on the basis of the jury’s verdict without any further adjudication on its merits, if the basis for that dismissal is later reversed and the circumstances then prevailing might permit the … [VWA] to establish its entitlement to a statutory indemnity, I see no impediment to resurrecting the recovery action … In case that circumstance arises, liberty to apply can be reserved.  Unless and until that occurs, the … [defendant] is entitled to the fruits of the judgment that it has earned.”

30The lack of finality in this proceeding is intrinsically linked to the lack of finality in the worker’s proceeding in the event of an appeal.  That consideration must be balanced against the potential injustice to the VWA if it were unable to claim payments made more than six years previously in a new recovery proceeding.

31Balancing the relevant factors, and in the exercise of my discretion, it is, in my view, appropriate to dismiss the proceeding against each defendant, with liberty to apply on written notice to the defendants.

- - -