VWA v Playcorp Pty Ltd and Kagan Bros Consolidated Pty Ltd (No 2)

[2011] VCC 139

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

GENERAL DIVISION

Case No. CI-05-01595

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
PLAYCORP PTY LTD	First Defendant
(ACN 006 277 363)
and
KAGAN BROS CONSOLIDATED PTY LTD	Second Defendant
(ACN 006 444 355)

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 6, 7, 8, 9 and 10 December 2010 and 2 February 2011
DATE OF JUDGMENT:	4 February 2011
CASE MAY BE CITED AS:	VWA v Playcorp Pty Ltd & Kagan Bros Consolidated Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2011] VCC 139

REASONS FOR JUDGMENT

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Catchwords: COSTS.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F I O’Brien SC with	Thomsons Lawyers
Ms E M James
For the First Defendant	Mr R W Dyer	Norris Coates
For the Second Defendant	Mr C Granger	Minter Ellison
HIS HONOUR:

The Quantum of the Judgment

1 It is agreed between the parties that payments made by the plaintiff in respect of the worker's injury total $116,579. It is submitted by the second defendant that the judgment to be entered against it pursuant to the provisions of s.138(3)(a) of the Accident Compensation Act (“the Act”) should be reduced to take into account the degree to which I have apportioned responsibility for the cause of the worker's injury to the second defendant.

2 In making this submission, it is put by the second defendant that the provisions of s.138 of the Act envisage an adjustment being made in the obligation of a tortfeasor to indemnify the Victorian WorkCover Authority with respect to compensation paid by reason of an injury to a worker, to reflect the responsibility of the relevant tortfeasor for the happening of that injury.

3 In my opinion, there is no substance in this submission as it does not accord with the plain wording of the provisions of s.138 of the Act.

4 When one considers the provisions of s.138(3)(a) and contrasts them with the provisions of s.138(3)(b), it is clear that the apportionment of responsibility in a third party for the cause of a worker’s injury is to be taken into account when fixing the sum which needs to be calculated pursuant to the formula created by s.138(3)(b). The absence however, within the wording of s.138(3)(a), of any mention of the concept of the extent of default or negligence of the tortfeasor as is employed in s.138(3)(b), speaks, in my opinion, definitively against the proposition contended for by the second defendant.

5 Further, the second defendant’s position does not accord with the approach adopted by any of the courts which have dealt with recovery proceedings brought under the provisions of s 138 of the Act. See, for example, the decision of the Court of Appeal in Esso Australia v Victorian WorkCover Authority [2000] VSCA 74

Interest

6          With respect to the point which arises as to interest, it is agreed that interest should be calculated over one thousand days. It is agreed that the rate to be applied is an average rate of 11 per cent.

7          I consider that some account must be taken of the fact that during the period in which interest has been claimed, the payments of compensation the subject of the proposed award of interest increased by 57 per cent from $69,433.47 at the time of issuing the proceedings to $116,579 being the time at which the judgment was entered.

8          Taking into account the fact that this increase in payments occurred over a period of some 1,561 days and that I have been asked to fix interest over a period of a thousand days, I am satisfied that the course which I should take is to allow the interest which is claimed, namely interest calculated at 11 per cent for the period of one thousand days, but reduce the figure so calculated by 50 per cent to reflect the matters to which I have referred.

9          I have made the following calculations with respect to interest. The rate which I have applied over the period of the one thousand days is 30.2 per cent. Applying that rate to the sum of $116,579 produces a figure of $35,206. This figure, when reduced by 50 per cent, results in an award for interest in the sum of $17,603.

The Calderbank Letter

10        The plaintiff seeks to rely upon a Calderbank letter which was served by it on 1 June 2010. The offer made by the plaintiff in that letter was delivered after 4.00 pm on that day. It remained open for acceptance for less than 48 hours.

11        Putting to one side the issue which arises as to the validity of the offer, in that it was a joint offer, in applying the test which I am required to do as set out in Hazeldene Chicken Farm v. Victorian WorkCover Authority (2005) VSCA 229 - namely whether the offeree's failure to accept the offer was, in all the circumstances, such that it warrants a departure from the usual orders as to costs – I am of the opinion that the short period during which the offer remained open to be accepted must result in a finding by me that the second defendant's failure to accept the offer was not so unreasonable that warrants a departure from the usual orders for costs

The Application for a Bullock Order with Respect to Costs

12        In Berrigan Shire Council v Ballerini & Anor No. 2 (2006) VSCA 65, the Court set out the process which should be undertaken in considering whether a Bullock or Sanderson order should be made namely:

“An order would not ordinarily be made unless:

(a)	the plaintiff's claim against the two defendants are interdependent, or essentially alternative claims and;
(b)	it is reasonable for the plaintiff to have joined the successful defendant, and the conduct of the unsuccessful defendant has been such as to make the order just.”

13        In the present case, I do not consider that it can be said that the claims against the two defendants were interdependent or essentially alternative.

14        This was never a case in which, one or the other but not both of the defendants could have been found to be liable. Both of the defendants were occupiers with identical duties of care. Indeed, in closing submissions it was put on behalf of the plaintiff that both defendants were liable to it by reason of their respective breaches of the duty each of them owed to the worker as occupiers of the premises in which the worker was injured.

15        In the circumstances, I am not satisfied that the plaintiff has established that the first factor which is required to be made out before a Bullock or Sanderson order should be made has been established, and for this reason I decline to make such an order.

16        Having determined that the plaintiff is not entitled to a Bullock or Sanderson order, the application by the plaintiff that a Bullock or Sanderson order should be made in its favour with respect to the order for indemnity costs made against it in relation to the costs of the first defendant, falls away.

Fees of Counsel

17        My normal practice is to fix fees for counsel on a brief and refresher basis. I would normally fix for this type of action the fees of senior counsel at $5,500 for brief fee, and two-thirds of that for a refresher fee.

18        In the present matter, senior counsel's fees are sought on a daily basis by the plaintiff, fixed at $4,520.

19        No issue is taken by the second defendant as to the fixing of daily fees; however it is submitted that the rate at which such fees should be fixed should be $4,250.

20        I feel that there should be some reduction in the quantum of the fees which I would normally allow for a brief fee, having regard to the fact that fees fixed on a daily basis are more generous when those fees are compared to the fees allowed for refresher fees. In the circumstances, I am satisfied that I should fix the trial fees for senior counsel on a daily basis at $4,400 per day. I will allow fees at that figure for six days. I will further certify for pre-trial conference fees sought for senior counsel, namely five hours at $440 per hour.

21        During the six sitting days of this trial, junior counsel was present only for three days. Junior counsel took no witnesses and it is not clear to me what involvement junior counsel played in the preparation of the case. I observe, however, that I did not consider the case to be one of undue complexity.

22        It is submitted that I should allow no fees for junior counsel. I regard this to be an extreme position given that no issue is taken by the second defendant as to the retention by the plaintiff of senior counsel. In the circumstances, I consider it appropriate that I order that the plaintiff be entitled to recover the fees of junior counsel on scale for three days only. Those fees to be calculated on the basis of brief and refresher.

The Costs of the Application of 1 February 2001

23 I consider it likely that the misguided approach taken by the second defendant in relying doggedly upon ill founded submissions as to the quantum of the judgment which should be entered against it pursuant to s.138(3)(a) of the Act had the effect of stymieing any possibility of an agreement being reached in respect of the issues which I have now ruled upon. Indeed, those submissions occupied the bulk of the Court time involved in the application which proceeded on the first of February.

24        If I were satisfied that the sole reason for this matter occupying some two hours of Court time earlier this week, was the position taken by the second defendant as to quantum of the judgment which should be entered against it, I would have given serious consideration to making an award for indemnity costs against the second defendant. I cannot however be satisfied that this was the sole reason for the need for the parties to appear before me as I have ruled on other matters which were agitated both by the plaintiff and the second defendant.

25        Accordingly, I will order that the second defendant pay the costs of the plaintiff with respect of the application, which costs are to be taxed on Scale D in default of agreement. Having regard to the fact that the application was concluded in less than half a day, I consider it appropriate to certify fees for senior counsel in the sum of $3,000 and junior counsel in the sum of $1,500.

Orders
26	I propose to make the following orders, however I will reserve to the parties liberty to apply with respect to the orders once they consider them.
27	There will be judgment in the sum of $134,188.26, being the judgment sum of $116,579 together with interest in the sum of $17,009.26.
28	I will order that the second defendant pay the plaintiff's costs associated with the trial to be taxed on Scale D in default of agreement, including any reserved costs.
29	I have already indicated the orders that I propose with respect to counsels’ fees, both senior and junior, with respect to the trial. I have pronounced orders with respect to the costs associated with the initial application in this matter, which I made in favour of the second defendant, and the subsequent application, which I made in favour of the plaintiff.
30	I will stay my orders for thirty (30) days.
31	I will reserve liberty to the parties to apply.
32	I adjourn the matter for further mention at the convenience of counsel for the second defendant to deal with the matter raised by me this morning.

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