Victorian WorkCover Authority v Prolift Fleet Management Pty Ltd

[2009] VSC 648

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4299 of 2007

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
PROLIFT FLEET MANAGEMENT PTY LTD	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2009
DATE OF RULING:	11 March 2009
CASE MAY BE CITED AS:	Victorian WorkCover Authority v Prolift Fleet Management Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VSC 648

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LEGAL PRACTITIONERS – Senior Counsel appearing for WorkCover Authority in proceeding to recover compensation payments made to and on behalf of injured worker – Senior Counsel previously acting for common law claim for injured worker which settled – Application to prevent Senior Counsel acting for WorkCover Authority refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Philbrick SC and Mr B McTaggart	Wisewoulds
For the Defendant	Mr M Thompson SC and Ms C Harris	Norris Coates

HIS HONOUR:

1. Mr Thompson, Senior Counsel who appears with Ms Harris for the defendant in these proceedings, has raised with me the issue of the continued representation of the plaintiff by Mr Philbrick as Senior Counsel, who appears         on behalf of the Victorian WorkCover Authority with Mr McTaggart.  Mr Philbrick was briefed with Mr Chancellor of counsel to appear on behalf of Mr Wilson in proceedings against Sleepmaster Pty Ltd and Prolift Fleet Management Pty Ltd.  In those proceedings, Mr Wilson claimed damages for personal injury suffered in an industrial accident in April 2001.  That case came on for hearing yesterday and resolved.  The recovery action, in which Mr Philbrick now appears with Mr McTaggart, is brought by the Victorian WorkCover Authority against Prolift Fleet Management Pty Ltd to recover payments made to Mr Wilson by the WorkCover Authority in respect of the same injury, pursuant to the Accident Compensation Act.

1. The proceeding is brought pursuant to s 138 of that Act.

1. Mr Thompson has raised with me his client’s concerns about the continued representation of the WorkCover Authority by Mr Philbrick.  I should interpolate that Mr Philbrick, when he announced his appearance today on behalf of the WorkCover Authority, told me that he had confirmed with the Ethics Committee of the Victorian Bar that he was entitled to now accept the brief on behalf of the WorkCover Authority and that there was no ethical difficulty in him doing so.

1. I should also interpolate that I see nothing on its face untoward about Mr Philbrick accepting such a brief, and indeed it is advantageous to the expeditious disposition of this case, since essentially the claim brought by the WorkCover Authority is postulated on a common law claim which would be brought by Mr Wilson against Prolift.

1. However, Mr Thompson has raised with me his client’s concern that there were apparently two mediations, both of the common law claim and the claim now brought by the WorkCover Authority in which Mr Philbrick represented Mr Wilson.

1. Mr Thompson has told me that his client has a concern that at one or both of the mediations Mr Philbrick was party to negotiations on behalf of Mr Wilson with Prolift which did not include the WorkCover Authority or Sleepmaster.  He has told me that while no particular facts were conveyed to Mr Philbrick in the course of those negotiations which might cause difficulty in this proceeding, nevertheless Mr Philbrick may have become cognisant of an attitude which Prolift may then have had to the settlement of Mr Wilson’s claim, and, in those circumstances, his client has a concern about Mr Philbrick representing the WorkCover Authority in these proceedings.  In doing so, he drew to my attention the recent decision of Hollingworth J in GT Corporation Pty Ltd v Amare Safety Pty Ltd.[1]

   [1][2007] VSC123, especially at para [91].

1. In response, Mr Philbrick told me that his recollection is that there were in fact two mediations of both the common law proceeding and the recovery proceeding.  At the first mediation, Prolift and its representatives failed to attend and therefore the mediation proved futile.

1. In the second mediation, he has no recollection of any separate negotiations which he held with Prolift or its representatives.  His recollection is that there were absolutely no offers made in the course of the mediation and that the mediation came to a short conclusion.

1. That recollection of Mr Philbrick is confirmed by his now instructing solicitor, who has been the instructing solicitor to the WorkCover Authority in both proceedings.  It is also assisted by a note of Mr McTaggart of the mediation which indicates that no offers were made.

1. Certainly Mr Philbrick informs me, and I totally accept, that he has absolutely no recollection of any independent negotiations which he could have had with Prolift in relation to the common law claim made by Mr Wilson.

1. In those circumstances, there is no factual basis for the concern held by Mr Thompson’s client about Mr Philbrick continuing to represent the WorkCover Authority.  Mr Thompson quite correctly conceded to me that his client does not have any concern that Mr Philbrick may somehow have learnt of a fact through representing Mr Wilson relating to Prolift which he would not have in his possession now as counsel for WorkCover Authority.

1. Mr Thompson has not pointed to any unfair advantage which Mr Philbrick might have in presenting the case or in cross-examining witnesses or any other such advantage which might otherwise cause there to be some concern in the mind of a reasonably informed member of the public that the administration of justice, and the integrity of it, would be prejudiced by the continued retainer of Mr Philbrick in these proceedings.  In those circumstances, there is no factual basis in my view for me to give any direction to Mr Philbrick requiring him to stand aside from the brief.  I add to that that Mr Philbrick has told me that after this matter was properly brought to his attention by Mr Thompson, he sought a further ruling from the Ethics Committee.  The Ethics Committee has advised Mr Philbrick unanimously that there is no impediment to him acting in this case.

1. I am fortified by that view, particularly since my experience is that the Ethics Committee of the Victorian Bar has historically been and continues to be particularly rigorous in issues such as this, and it consists of very experienced and learned members of counsel, well seized of the requirements of counsel in matters such as these.

1. Based on those matters, I do not give any direction to Mr Philbrick in relation to his continuation as senior counsel.  There is nothing, in my view, brought to my attention which ought to prevent him from continuing to do so.