VWA v Hardwicks' Meat Works Pty Ltd
[2009] VCC 672
•6 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
| AT MELBOURNE CIVIL DIVISION SERIOUS INJURY |
Case No. CI-08-02309
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| HARDWICKS' MEAT WORKS PTY LTD and | Defendant |
| Ors. |
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| JUDGE: | HER HONOUR JUDGE HOGAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 May 2009 |
| DATE OF RULING: | 6 May 2009 |
| CASE MAY BE CITED AS: | VWA v Hardwicks’ Meat Works Pty Ltd & Ors |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0672 |
| REASONS FOR RULING |
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Catchwords:
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J | Moore | QC | and | P | Wisewoulds |
Montgomery
| For the First Defendant | P B Jens | ||
| For the Second Defendant |
|
1 (Revised)
2 (Her Honour Judge Hogan)
3 R U L I N G
4 HER HONOUR: In this matter, an issue has arisen as to fees and costs claimed by
5 the plaintiff on the issue of daily fees.
6 May I say that this matter had a complexity, both factually and legally
7 over and above most personal injury cases. There were three defendants, the
8 first an occupier of premises, the second an employer of the plaintiff and
9 unusually, the third alleged also to be an employer, (which allegation was
10 denied).
11 An added layer of complexity was occasioned by the plaintiff deciding
12 to "make a clean breast of" the alleged fact that he had been receiving cash in
13 hand payments from the third defendant allegedly with the knowledge of the
14 second defendant.
15 I have no doubt that a prudent solicitor faced with these complexities,
16 on top of the other issues of medicine and ergonomics, should have briefed a
17 very experienced senior counsel of Mr Meldrum's status and a junior
18 counsel well-acquainted with the personal injuries area, as Mr Caldwell is, by
19 reason of in excess of a decade as a solicitor and in more recent years as
20 counsel.
21 I have determined that the plaintiff should be entitled to the costs of
22 the second day upon which the matter was listed, namely 5 May 2009,
23 notwithstanding that Mr Meldrum of senior counsel for the plaintiff admitted
24 late service of contentious particulars of special damage.
25 On 4 May 2005 I had reserved the costs of adjourning the matter from
26 4 to 5 May and those reserved costs have been agreed to be paid by the
27 defendants as part of their settlement with the plaintiff. It was my clear
28 impression from what was said by all counsel in court and from the time
29 asked, for negotiations, that Mr Meldrum's provision of oral and also written
30 particulars of the plaintiff's evidence on the issue of alleged cash payments
31 (which evidence he was not obliged to so provide,) acted as an impetus for all
1 three defendants to seriously apply themselves to the issue of contribution and
2 make an offer of settlement to the plaintiff in final resolution of the matter.
3 Prior to that time there had been no admission of liability by any of the
4 defendants and a firm denial of any contract of employment by the third
5 defendant.
6 Given that this is how the second day was spent, I consider it
7 appropriate to allow the plaintiff’s costs of the second day as sought, but only
8 as against the second and third defendants against whom the alleged
9 agreement in relation to cash in hand payments applied.
10 I am singularly unimpressed by much of what apparently has occurred
11 in relation to this case. Mr Moore of senior counsel on behalf of the second
12 defendant said yesterday and I quote from pp.70 and 71 of the transcript: "We
13 join with Mr Jens in the application with respect to one day's fee only in
14 circumstances where it is so clear that all transpired probably for most of both
15 days, but particularly at least one day, involved issues arriving out of frankly,
16 the now declared illegality of the plaintiff and what arose from that, that should
17 be a solicitor/client consideration."
18 Suffice to say that there could not have been any illegality on behalf of
19 the plaintiff by way of receiving cash in hand payments for work performed as
20 alleged unless the second and/or the third defendants had acted to allow that
21 to occur. I do not propose to say anything further on this very serious matter.
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DRAFT
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