VWA v Lindsay Australia Ltd [Ruling No 1]

[2016] VSC 195

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

S CI 2015 04666

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
LINDSAY AUSTRALIA LTD (ACN 061 642 733)	Defendant

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JUDGE:	BONGIORNO JA
WHERE HELD:	Melbourne
DATE OF HEARING:	8–11 March 2016
DATE OF RULING:	11 March 2016 (revised 24 February 2017)
CASE MAY BE CITED AS:	VWA v Lindsay Australia Ltd [Ruling No 1]
MEDIUM NEUTRAL CITATION:	[2016] VSC 195

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NEGLIGENCE – Workers compensation – Payment by Victorian Workcover Authority – Indemnity from tortfeasor/employer – Calculation pursuant to s 138 Accident Compensation Act 1985 – Whether value of ‘Factor C’ an integral part of Plaintiff’s case

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Hamilton	IDP Lawyers
For the Defendant	Mr J Brett QC with Mr M Hooper	HWL Ebsworth Lawyers

HIS HONOUR:

1. This action was commenced by writ with an appended statement of claim. It seeks a number of remedies in the nature of indemnities pursuant to s 138 of the Accident Compensation Act 1985 (‘the Act’). In particular it seeks a remedy by way of indemnity expressed in a monetary sum as provided by s 138(1) of the Act. The monetary sum is required to be calculated according to a formula set out in s 138(3)(b). ‘Factor C’ is an integral part of that formula.

1. In order to enable the Court to calculate the monetary value of the indemnity pursuant to s 138(3)(b) of the Act (assuming there is to be one) it is necessary for it to be informed of the actual money sum constituting the value of Factor C in the calculation. Without that information the Court cannot perform the necessary calculation to reach a conclusion as to the quantum of the plaintiff’s entitlement.

1. It was submitted by counsel for the defendant that the Court should consider the factual issues in the case (other than Factor C), deliver an interim judgment in respect of those issues and subsequently embark on the necessary calculations to which I have referred, after being informed of the value of Factor F. 

1. Having considered the matter I am of the view that Factor C is an integral part of the case as put on behalf of the plaintiff.  The plaintiff is and has been ready and able to provide the evidence concerning Factor C.  It has not done so pending this Court’s determination of the defendant’s submissions.

1. Undoubtedly, in an appropriate case, the Court could follow the path suggested by the defendant, pursuant to the Civil Procedure Act 2010, the Rules of Court or its inherent jurisdiction if there appeared a good reason to do so.  No such reason appears to exist in this case.  There is certainly no requirement for the Court to embark upon the defendant’s preferred course. 

1. As far as I can see there is no warrant in the legislation pursuant to which this claim for indemnity is being pursued for the Court to conduct a trial of the issues raised before it hears evidence as to the quantum of Factor C.

1. The action, commenced by writ should be concluded by a judgment. That judgment must include the calculation required by s 138 of the Act of the monetary value of the indemnity, if there is to be one, in order to conclude the case in accordance with the Act. In this case Factor C, the quantum of which is known to both parties, is a necessary part of the evidence which goes to the plaintiff’s case for indemnity. Without it the calculation required by s 138(3)(b) cannot be undertaken.

1. The plaintiff has leave to put the evidence of Factor C into the evidence of this case.