VWA v Somerville Retail Services Pty Ltd
[2010] VCC 181
•30 March 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL
EXPEDITED DIVISION
Case No. CI-09-00355
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| (ABN 90 296 467 627) | |
| v | |
| SOMERVILLE RETAIL SERVICES PTY LTD | Defendant |
| (ACN 083 165 422) |
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| JUDGE: | HIS HONOUR JUDGE GINNANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23-25 November 2009 |
| DATE OF JUDGMENT: | 30 March 2010 |
| CASE MAY BE CITED AS: | VWA v SOMERVILLE RETAIL SERVICES PTY LTD |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0181 |
| First Revision 15 April 2010 |
REASONS FOR JUDGMENT
Catchwords: WORKCOVER – insurance premiums – premium orders – predominant purpose of defendant’s premises – whether manufacturing – Accident Compensation (WorkCover Insurance) Act 1993.
EVIDENCE – Effect of tender of certificate and assessment – Accident Compensation
(WorkCover Insurance) Act 1993, s.71.
COSTS – Offer of compromise – indemnity costs – whether Court should otherwise order - defendant successful on particular issue – costs of issue – County Court Rules of Civil Procedure, Rule 26.08; 63A.04.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J J Gleeson SC and | Corrs Chambers Westgarth |
| Ms R Enbom | ||
| For the Defendant | Mr N J D Green QC and | Madgwicks |
| Mr D McWilliams | ||
| HIS HONOUR: |
1 The plaintiff (“the VWA”) sues the defendant for unpaid insurance premiums alleged to be owing for 2008, 2009 and part of the current financial year, together with penalties for late payments.
2 By its Amended Statement of Claim, the VWA alleges that as at 31 October 2009, the defendant is indebted to it in the sum of $1,529,652.81.
3 An alternative claim is put that the defendant is indebted to the plaintiff in the sum of $941,828.23.
4 The defendant, which conducts its operations from premises at Somerville Road, Tottenham, denies the claims in the circumstances that are developed below. At the defendant’s request, I conducted a view of its premises. A video of the defendant’s operations was tendered.
5 Every Victorian employer is required to obtain and keep in force a WorkCover insurance policy with the VWA in respect of all their liability under the Accident Compensation Act 1985 and at common law or otherwise in respect of all injuries arising out of or in the course of or due to the nature of employment with that employer on or after 4.00 pm on 30 June 1983: (See s.7 of the Accident Compensation (WorkCover Insurance) Act 1993 (“the ACWI Act”).
6 Part 2 of the ACWI Act regulates WorkCover insurance and premiums. Sections 15 and 16 provide for the making of Premiums Orders. Section 26 provides that the premium payable by an employer for a WorkCover insurance policy is payable in accordance with the relevant Premiums Order. Section 17 provides that premiums are to be calculated in accordance with Premiums Orders. There are provisions for the making of estimates of rateable remuneration and the revision of those estimates.
7 Under s.21, the VWA may adjust the premium. Section 22(1) enables an employer to apply to the VWA:
“for the premium to be reviewed to determine whether the amount of the premium is the amount calculated in accordance with the relevant premiums order.”
8 Upon receiving such an application, the VWA must review the amount of the premium. Section 27 enables the VWA itself to review the amount calculated as a premium in respect of one or more policy periods.
9 Under s.68 of the ACWI Act the VWA may sue for and recover any unpaid premium or penalty imposed under that Act.
10 The issue in the case is the amount of the premium payable by the defendant in respect of its workplace. This question ultimately turns on the application of the Premiums Order made under the ACWI Act for the relevant years. The relevant provisions of the Premiums Orders were during the years in issue in the same terms.
11 The plaintiff asserts that the predominant activities of the defendant’s workplace are properly characterised under Schedule 4, Division C: Manufacturing, Sub-division 21: Food, Beverages and Tobacco Group Class 211 Meat Products of the Premiums Orders.
12 The defendant’s contention, as initially pleaded in its Defence, was that the proper characterisation of the activities of its workplace was as a meat wholesaler under Schedule 4, Division F: Trade, Group Class F4761T Meat Wholesalers (Excluding Poultry, Rabbit, Horse and Kangaroo).
13 The defendant, in final submissions, submitted that the predominant activity conducted at its premises was to provide retail services to Coles Supermarkets Australia Pty Ltd (“Coles”) pursuant to a contract. I gave the defendant leave to rely on a Further Amended Defence to plead that neither of the classifications applied to it.
14 The defendant’s classification has a varied history, including, for a period, a classification of meat wholesaling, but in 2007 the classification was altered to meat packing.
The Conclusive Certificate
15 There is a preliminary point to be determined in that the plaintiff, in order to prove its claim, relies upon the provisions of s.71 of the ACWI Act, which provides:
“(1)
For the purposes of any proceedings against a person for the recovery of a premium or penalty, a certificate purporting to be issued by the Authority or an authorised insurer certifying that—
(a)
the person named in the certificate was liable to the premium or penalty in respect of the period specified in the certificate; or
(b)
an assessment of the premium or penalty was duly made against the person; or
(c)
the particulars of the assessment or penalty are as stated in the certificate; or
(d)
notice of the assessment or penalty was duly served upon the person; or
(e)
the amount specified in the certificate was at the date of the certificate payable as the premium or penalty by the person named in the certificate—
is evidence of the matters so certified. (2)
The production of a notice of assessment, or a document purporting to be executed in accordance with section 18(3) of the Accident Compensation Act 1985 or under the seal of an authorised insurer purporting to be a copy of a notice of assessment, is conclusive evidence of the due making of the assessment and that the amount and all particulars of the assessment are correct.
(3)
The production of any document purporting to be executed in accordance with section 18(3) of the Accident Compensation Act 1985 or under the seal of an authorised insurer (that document purporting to be a copy of or extract from any document or return furnished to, or of any document issued by, the Authority or an authorised insurer) is for all purposes sufficient evidence of the matter therein set forth, without producing the original.”
16 The term ‘Notice of Assessment’ is not defined by the ACWI Act, but the plaintiff submitted that it referred to the notice sent to an employer notifying it of the assessment of its premium.
17 Section 71 is located in Part 6 of the ACWI Act, which is entitled “General Provisions”. As that title suggests, Part 6 contains a miscellany of matters, which do not in combination throw light on the construction of s.71.
18 The plaintiff’s claim was based on Notices of Adjusted Premiums issued under the ACWI Act for the years 2007-2008, 2008-2009 and 2009-2010.
19 Each recorded an amount of adjusted premium owing and was signed in November 2009 by three directors and the Board Secretary of the plaintiff. Each bore the handwritten annotation:
“This document is executed in accordance with s.18(3) of the Accident Compensation Act 1985 (Vic) for the purpose of s.71(2) of the Accident Compensation (WorkCover Insurance) Act 1993 (Vic).”
20 Section 18(3) provides that a document is executed by the plaintiff if the document is signed by two directors, or one director and the secretary.
21 A person may assume that a document has been duly executed by the plaintiff if it appears to have been signed in accordance with subsection (3) and in those circumstances, courts must take judicial notice of that signature: (s.18(4) and (5)).
22 In addition, the plaintiff relied on a certificate which stated:
“Certificate Issued by the Victorian WorkCover Authority pursuant to section 71(1) of the Accident Compensation (WorkCover Insurance) Act 1993 (Vic)
For the purposes of proceeding number CI-09-00355 in the County Court of Victoria for the recovery of premiums and penalties from Somerville Retail Services Pty Ltd (ACN 083 165 422) (SRS), the Victorian WorkCover Authority certifies that:
a)
SRS was liable for premium and penalty in the total sum of $1,529.652.81 in respect of the period from 1 July 2007 to 31 October 2009 (“relevant period”).
b)
An assessment of the premium and penalty for the relevant period has been duly made against SRS.
c)
The particulars of the assessment for the relevant period are as follows:
Policy Period Total Total Total Total
Remuneration Premium Penalty Premium and $ $ $ Penalty
$
2007/08 18,941,397 1,024,685.92 11,149,26 1,035,835.18 certified
2008/09 18,051,271 1,036,486.90 127,830.39 1,164,317.29 certified
2009/10 18,780,667 257,419.31 40,239.63 297,658.94
From 1 July estimate 2009
to 31 October
2009
TOTAL 2,318,592.13 179,219.28 2,497,811.41
d) Notice of assessment was duly served upon SRS. e)
As at the date in this certificate, the total amount of premium and penalty payable for SRS for the relevant period is $1,529,652.81, by reason that SRS has made payments totalling $968,158.60 to the Victorian WorkCover Authority during the relevant period.
Signed by:
Greg Tweedly
Director of the Board of Management of the Victorian WorkCover
Authority
Blair Trask
Secretary of the Board of Management of the Victorian WorkCover
Authority.
Date: 20 November 2009.”
23 In addition, the plaintiff relied on a document signed by a Director and Secretary of the Board of Management of the VWA entitled ‘Notice of Assessment pursuant to s.71(2) of the Accident Compensation (WorkCover Insurance) Act 1993’ in the following terms:
“NOTICE OF ASSESSMENT
Pursuant to s.71(2) of the Accident Compensation (WorkCover Insurance) Act 1993
The Victorian WorkCover Authority has assessed the total premiums payable by Somerville Retail Service Pty Ltd (ACN 083 165 422) as follows:
1. total premiums of $1,024,685.92 for the financial year ended 30 June 2008;
2. total premiums of $1,036,486.90 for the financial year ended 30 June 2009;
3. total premiums of $257,419.31 for the period from 1 July 2009 to 31 October 2009.
Date: 20 November 2009.”
24 The Certificate and the Notices of Assessment were received into evidence.
25 The VWA asserted that the notices of assessment were conclusive evidence of the defendant’s liability to the VWA and that the Court had no jurisdiction to go behind the notices to determine if the assessments were correct.
26 The plaintiff argued that the provision was modelled on s.177(1) of the Income Tax Assessment Act 1936 (Commonwealth) (“ITAA”) and was in almost identical language.
27 Section 175 of the ITAA provides that:
“The validity of any assessment shall not be affected by reason that any
of the provisions of this Act have not been complied with.”
28 Section 177(1) of the ITAA provides that the production of a notice of assessment:
“The production of a notice of assessment, or of a document under the hand of the Commissioner, a Second Commissioner, or a Deputy Commissioner, purporting to be a copy of a notice of assessment, shall be conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act on a review or appeal relating to that assessment that the amount and all the particulars of the assessment are correct.”
29 These provisions were considered by the High Court in F J Bloemen Pty Ltd v Commissioner of Taxation (Cth),[1] which is a decision often quoted in cases dealing with conclusive evidence certificates and upon which the plaintiff relied. Mason and Wilson JJ. stated:
“An explicit and, in our view, correct statement of the effect of s.177(1) was made by Taylor J in McAndrew at 281–282. For the reasons there expressed his Honour concluded that ‘s.177(1) was intended to make it impossible for a taxpayer, in proceedings other than appeal against it, to challenge an assessment on any ground’. He conceded that the word ‘excessive’ in s.190(b) was inappropriate. However, he considered that an assessment ‘made in purported but not justifiable exercise of a statutory power’ could properly be described as ‘excessive’.
This interpretation gives expression to the policy which underlies, and is manifest in, the statutory provisions. The effect of this policy is that, once the Commissioner takes advantage of s.177(1) by producing an appropriate document, the taxpayer is precluded from contesting that the Commissioner has made an assessment or that in making the assessment he has complied with the statutory formalities. The taxpayer is entitled to dispute his substantive liability to tax in proceedings under Pt V.
Although s 190(b) places the onus on a taxpayer upon a reference or appeal of proving that the assessment is excessive, it enables him to contest his substantive liability to tax. It is then for the board upon a reference or the court on appeal, within the framework of the taxpayer’s objection, to ascertain whether he is liable to tax, and if so in what amount. The Pt V procedures accordingly protect the taxpayer and enable him to have his liability to tax determined”.[2]
….
“It does not necessarily follow from what we have said that the Act excludes the general jurisdiction of the Supreme Court. Section 177 (1) specifically operates by compelling a court, for example the Supreme Court, in the exercise of its jurisdiction to treat a notice of assessment on its production as conclusive evidence that the assessment has been duly made and thereby foreclosing that issue. In theory s.177 leaves the Supreme Court with jurisdiction to decide whether an assessment has been duly made in a case in which an appropriate document is not produced.
However, the rights of review given to the taxpayer by Pt V are comprehensive. Quite evidently it was contemplated that the Commissioner would take advantage of s.177(1) and foreclose the exercise of jurisdiction to decide whether an assessment has been duly made. The general tenor of the statutory suggests that a taxpayer wishing to challenge a notice of assessment served upon him will be effectively confined to the Pt V procedures”.[3]
[1] (1981) 147 CLR 360.
[2] at p.375.
[3] at p.376.
30 The High Court has considered the effect of s.175 and s.177(1) of the ITAA on at least two further occasions and, in particular, whether or not they restrict the right to judicial review of an assessment. In Deputy Commissioner of Taxation v Richard Walter Pty Ltd,[4] Mason CJ stated:
“The sub-section leaves the jurisdiction of the relevant court intact but requires in the exercise of jurisdiction to treat the notice of assessment as having been duly made. The effect of s177(1) therefore is to condition the exercise of jurisdiction upon the production of the notice of assessment or a copy of it so that it is treated as valid, otherwise than in Part 1VC proceedings”.[5]
[4] (1995) 183 CLR 168.
[5] at [186], but see the comments about Richard Walter Pty Ltd’s Case in Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146, at 168 [70].
31 Most recently, in Federal Commissioner of Taxation v Futuris Corporation Ltd,[6] Gummow, Hayne, Heydon and Crennan JJ. stated:
“The evident policy reflected in the terms of s.177(1) is the facilitation of proceedings for the recovery of tax which are instituted by the Commissioner under s.209 of the Act in a court of competent jurisdiction. Corresponding provision is made elsewhere in the Act for the recovery of other amounts. The action for recovery is facilitated by the “conclusive evidence” provision in s.177(1). That subsection, as the Commissioner correctly submitted, is not a privative clause in the ordinary use of that term. It does not purport to oust the (necessarily federal) jurisdiction conferred upon any other court I matters arising under the Act. To the contrary, it recognizes that there may be Pt 1VC proceedings and in those proceedings the ‘conclusive evidence’ provision does not apply.
In recovery proceedings s.177(1) operates to change what otherwise would be the operation of the relevant laws of evidence. But, given the presence of Par 1VC, s.177(1) does not operate to impose an incontestable tax or otherwise fall foul of the principles which were considered in Nicholas v The Queen and which respect usurpation of the federal judicial power by deeming to exist an ultimate fact.”[7]
[6] (2008) 237 CLR 146.
[7] at 166 [64]-[65].
32 The joint judgment stated that deliberate failures to administer the law according to its terms were not encompassed within s.175 of the ITAA and said:
“Such failures manifest jurisdictional error and attract the jurisdiction to issue the constitutional writs. To the extent that there is any indication to the contrary in what was said by Mason and Wilson JJ. in F J Bloemen Pty Ltd v Federal Commissioner of Taxation that should not be followed.”[8]
[8] at 165 [56].
33 Bloemen’s Case has been influential in the manner in which provisions dealing with the effect of the production of assessments and of e certificates have been interpreted in revenue cases. In a number of Victorian cases, Bloemen’s Case has been regarded as preventing the taxpayer challenging the amount of income tax alleged to be owing, save in review proceedings.[9]
[9] See Deputy Commissioner of Taxation v Hooper [2005] VSC 69 at [6].
34 The difference between s.177(1) of the ITAA and s.71(1) of the ACWI Act is that s.71(1) does not remove from its operation any review proceedings, which in the case of the ITAA, are available under Part IVC of the Taxation Administration Act.
35 There is a review procedure available under s.22 of the ACWI Act but it is an internal procedure, which counsel for the defendant described as “appealing from Caesar to Caesar”.
36 The plaintiff submitted that the general tenor of the statutory provisions in the ACWI Act were the same as in the ITAA, both Acts provided a review procedure and that a dissatisfied party could seek judicial review, as the plaintiff in SBA Foods Pty Ltd v Victoria WorkCover Authority[10] had attempted.
[10] [2001] VSC 276.
37 The plaintiff drew an analogy with the decision of the New South Wales Court of Appeal concerning the Workers Compensation Act 1987 (NSW) in
Employer’s Mutual Indemnity (Workers Compensation) Ltd v A Donald Pty
Ltd.[11] In that case, Cole JA, delivering the judgment of the Court, stated that the legislation contained:
“ … clear indicia beyond the use of the expression ‘recoverable as a debt’ that make clear the legislative intention that subject to the possibility of judicial review by way of prerogative writ ( a matter upon which I express no view) the decision of the WorkCover Authority reviewing insurance premiums is the final determination of the sum payable.”[12]
[11] [1997] NSWSC 102; see also Workers Compensation Nominal Insurer v Dover Security Systems [2008] NSWSC 588 at [25].
[12] (supra) at [13].
38 The defendant argued that the plaintiff’s construction of the ACWI Act did not fit with its scheme, especially as revealed in ss.17 and 26. It submitted that clear words would be required to circumscribe the Court’s capacity to hear and determine a claim concerning the question of what the appropriate workplace insurance classification was. It relied on the fact that s.71 dealt with evidence, and submitted that the Court should interpret any provision purporting to curtail its jurisdiction in such a way as to have minimal effect.[13]
[13] The defendant relied on the judgment of Dixon J. in Macgrath v Goldsbrough Mort & Co Ltd (1932) 47 CLR 121,134.
39 The defendant referred to the decision of the Court of Appeal in Victorian WorkCover Authority v IR Cootes Pty Ltd,[14] where an employer had brought proceedings to recover premiums said to have been levied on an incorrect workplace classification with no reference being made to s.71 of the ACWI Act.
[14] [2001] VSCA 85.
40 The defendant submitted that that the adoption of the plaintiff’s submission would, once a certificate or assessment under s.71 was produced, turn the Court into a rubber stamp. The defendant argued that the production of an assessment under s.71(2) only concludes the issue of the “due making” of the assessment and that the amount and all particulars of the assessment are correct. Section 71 was concerned with matters of evidence and had no work to do when an employer was challenging whether the plaintiff had applied the correct classification.
41 The defendant argued that the New South Wales decision in Employer’s Mutual Indemnity (Workers Compensation) Ltd v A Donald Pty Ltd was distinguishable because the New South Wales system provided stronger review mechanisms. The review available under the ACWI Act was limited to a review of the amount payable, rather than a review of the fundamental basis upon which the premium was calculated.
Consideration of Submissions
42 In interpreting s.71, regard must be had to the principle that a statute will not be taken to interfere with a right given by the common law unless that intention is clear. Such common law rights include access to the Courts to challenge the decision of a statutory authority.
43 In Plaintiff S157/2002 v Commonwealth of Australia, Gleeson CJ stated that:
“Privative clauses are construed ‘ by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied.”[15]
[15] (2003) 211 CLR 476,493 [32] cf Al-Kateb v Godwin (2004) 219 CLR 562, 577 [19] and R v Secretary of State for Home Department; ex parte Simms [2000] 2 AC 115,132, per Lord Hoffmann.
44 In Viney v George’s Jet Gas Pty Ltd,[16] Tadgell J, in considering an application for declarations that assessments made by the defendants under the Business Franchise (Tobacco) Act 1974 were void, stated:
“A legislative intention to exclude the general jurisdiction of the courts to examine the conduct of a revenue authority should not in my opinion be lightly inferred.”
and:
“… my conclusion is that the Business Franchise Acts do not indicate an intention, as Pt.V of the Income Tax Assessment Act does, to exclude the general jurisdiction of the courts to examine the validity of an assessment.”[17]
[16] [1986] VR 141.
[17] at 146.
45 Tadgell J stated, with respect to the relevant provisions of the ITAA, that:
“Since the rights of a taxpayer otherwise to have a review of an assessment are comprehensive, it is a short step to conclude that Pt. V is intended to exclude the general jurisdiction of courts to undertake such a review.”[18]
[18] at 145.
46 There is also an argument based on the structure of s.71 of the ACWI Act. The section needs to be read as a whole to gain its meaning. The production of the certificate under s.71(1) is only evidence of the matters that are certified in it. The five matters that can be the subject of a certificate include that:
“(a) the person named in the certificate was liable to the premium or
penalty in respect of the period specified in the certificate; and. . . (e)
the amount specified in the certificate was at the date of the certificate payable as the premium or penalty by the person named in the certificate.”
47 Section 71(2) contains no direct equivalent to the provisions of s.71(1)(a) and (e). The matters that s.71(2) make conclusive evidence are similar to those matters referred to in s.71(b)-(d).
48 I therefore consider that s.71(2) can be read as making conclusive the due making of the assessment, in the sense that the plaintiff has exercised the statutory power given to it to make an assessment and that the particulars of the assessment and penalty are as stated in the assessment, but not as providing conclusive evidence that the amount specified in the assessment was payable by the person named in it. Rather, s.71(1) makes the certificate evidence, that the person named in the certificate was liable to the premium or penalty and that that amount was payable by that person. While the certificate is evidence of such matters, it is not conclusive and leaves it open to the Court to receive and consider evidence called on behalf of the person named in the assessment.
49 Next is the absence of an independent review system in the ACWI Act enabling a de novo review of classification decisions. This is in contrast to the provision of the ITAA, which are referred to in s.177(1), and the importance of which have been emphasised in many of the High Court decisions. Indeed, the ACWI Act contains no direct equivalent of s.175 of the ITAA. Section 175 has played an important part in the reasoning underpinning the tax cases. As Dawson J. stated in Deputy Commissioner of Taxation v Richard Walter Pty Ltd:[19]
“Indeed, as I have said, s.177(1) does no more than give evidentiary
effect to s.175.”
[19] (1995) 183 CLR 168, 223.
50 It may be that the wording of s.71(1) (b) and s.71(2) covers the same ground as s.175 of the ITAA, but regardless of this, the absence of a provision in the same terms of s.175 points to an important difference in structure between the ACWI Act and the ITAA.
51 I also consider that the decision in Employer’s Mutual Indemnity (Workers Compensation) Ltd v A Donald Pty Ltd[20] is distinguishable. The relevant section (s.175 of the Workers Compensation Act 1987) bears a different structure to s.71 of the ACWI Act. Secondly, the right of review of premiums under the New South Wales Act to the WorkCover Authority seems to have been more extensive than is available under the ACWI Act.
[20] (supra)
52 I take into account the availability of judicial review to challenge an assessment. The High Court recently emphasised in Kirk v Industrial Relations Commission of New South Wales[21] that it was not possible to remove from a Supreme Court of a State its capacity to supervise by judicial review the decisions of inferior courts and tribunals. However, the availability of judicial review upon establishment of jurisdictional error is some distance from a right to a complete review of a decision about premiums or an assessment based on a decision about premiums.
[21] (2010) 84 ALJR 154.
53 For the above reasons, I consider that in a proceeding to recover premiums and penalties when the VWA relies on s.71 of the ACWI Act by tendering a certificate or an assessment, a defendant is able to call evidence as part of a case that the wrong classification has been made.
54 However, in such proceedings, when the VWA tenders an assessment under s.71(2), a defendant cannot contest that the assessment has been duly made, in the sense that the VWA has exercised statutory powers conferred on it to make an assessment or, that the particulars of the assessment record the actual assessment made.
55 For the sake of completeness, I note that the significance of the absence of a complete review of premiums was referred to in the Accident Compensation Act Review Final Report by Mr P Hanks QC, published in 2008,[22] where the author stated, in a section of the report entitled “Implement a new comprehensive premium objection and review process”:
[22] To which regard may be had under s.35(b)(iv) of the Interpretation of Legislation Act 1984.
“11.2.10 S.71(2) of the ACWI Act provides that a notice of the VWA’s assessment of premiums is ‘conclusive evidence’ that the assessment was made and is correct so that the notice will conclusively prove the amount owing by the employer. Section 71(2) is designed to preclude an employer defending an action for recovery or premium on the basis that, the ACWI Act (and relevant premium order) has not been correctly applied by the VWA. 11.2.11 Based on analysis of the case law, courts seem to distinguish bodies such as the VWA from tax authorities, because the relevant tax legislation that makes assessment ‘conclusive evidence’ in recovery proceedings also provides a comprehensive system for objecting to assessments and determining disputes. 11.2.12 Therefore the absence of a statutory objection and review process in the ACWI Act weakens the VWA’s power to use the conclusive evidence provisions of the Act to recover premium debts. It means that employers may be able to defer payment of premium debts by arguing that the amount of premium owing is in dispute.
11.2.13 Providing a formal premium objection and review process would remove any doubt that an employer is required to pay the employer’s premium, even if the amount is in dispute. Disputes will no longer be an excuse for delaying payment.
11.214 However, given that employers are required to pay premium, even if the amount is in dispute, I believe that the VWA should be obliged to pay interest where a review finds that a lesser amount of premium is payable.”.
The Classification
56 I therefore proceed to determine, on the evidence before me, whether the plaintiff made the correct WorkCover industry classification in respect of the defendant’s workplace. This task requires the setting out of various parts of the Premiums Orders that deal with the manner in which the classification occurs. They require the identification of the predominant activity of the defendant’s workplace. That term is defined in Schedule 1 of Premiums Order (No.15) 2007/2008, which is headed “General Interpretation”. Item 3 of that Schedule states:
“(a)
‘Predominant activity’ in relation to a period of coverage at an actual workplace of an employment, means the activity of the employer which during that period contributes, or is likely to contribute, more than any other activity of the employer to the value of goods and/or services produced or provided by operations carried on in that workplace.”
57 Item 7 of Schedule 1, which is headed “Industry Classification”, states:
“(1) Subject to Items 2(3) and 2(4) of Schedule 1 to this order, the industry classification of a workplace is the WorkCover industry classification in Schedule 4 to which the predominant activity at that workplace corresponds or most closely corresponds. (2) For the purposes of determining the industry classification in
accordance with sub-item (1):
(a) regard must be had to the introduction and to all the relevant elements of Schedule 4.”
58 The Introduction to Schedule 4 states :
“Introduction workplace is classified for an employer is the WorkCover industry classification in this schedule to which the predominant activity of that workplace corresponds or most closely corresponds … the predominant activity of the workplace is determined in accordance with Item 3 of Schedule 1 without regard to this schedule. It is then necessary to identify the WorkCover industry classification in this schedule to which that predominant activity corresponds or most closely corresponds.”
59 The meaning of “predominant activity” at an establishment under s.181(3) of the Accident Compensation Act 1985, which dealt with the definition of establishment, was said by the Full Court in Chandlers Personnel Group Ltd v Accident Compensation Commission[23] to be the predominant activity of persons engaged in the employer’s operations within the area constituting its establishment.
[23] [1993] 2 VR 1.
60 The process for identifying the appropriate industry classification is set out in the flowchart, which appears in the Premiums Order:
Which Division most closely describes the Defendant’s Premises?
61 Division C of Schedule 4 is entitled “Manufacturing”, and its preamble states:
“1
This division includes all workplaces predominantly engaged in manufacturing the various categories of products summarised below.
2
The term ‘manufacturing’ is used here in a broad sense to relate to the physical or chemical transformation of materials or components into new products, whether the work is performed by power-driven machines or by hand. In addition, repair or reconditioning of products, unless elsewhere classified, shall be included in this division and classified to the same classification as to the original manufactured product.
3
In the summary which follows below and indication is given (by no means comprehensive) of the treatment of particular repair, installation, blending, assembly, packing, bottling or other activities which are typically carried on outside the scope of this division in an attempt to more clearly describe the activity contents of this division.
4
Broadly, then, this division includes all workplaces predominantly engaged in manufacturing:
(a)
food, beverages or tobacco products (subdivision 21). Excluded are workplaces …
. . . 6
In some instances two or more activities are vertically integrated in the one manufacturing workplace in that the products of one activity are used as materials in the other. In these cases workplaces are generally included the class to which the final activity is predominant. In some cases, however, the classes have been defined so that certain workplaces are included in the class to which the initial activity is predominant.”
Which Subdivision is Applicable?
The plaintiff’s submission
62 The plaintiff referred to subdivision 21, which is headed “Food, Beverages and Tobacco”. Within that subdivision is group or clause 211 which is headed: ‘Meat Products’:
63 The plaintiff placed reliance on the following activities listed in C2115L “meat mfg (except poultry), boning, freezing, preserving or packing meat (except poultry)” and “meat products mfg (excluding smallgoods and poultry products and including fertilizers and meal from abattoir by-products and rendering tallow)”.
The Defendant’s Submissions
64 As previously stated, the defendant initially submitted that the appropriate classification was of wholesale trade that is contained in Division F: Trade of Schedule 4, and states:
“1 This division includes all workplaces predominantly engaged in the trading of goods either as a retailer, wholesaler (physically handling the goods and, usually, taking title to the goods) or an agent or purchasing, marketing or buying office. The term agency is used here to include those operations which trade in goods but do not usually take title to the goods traded and do not physically handle the goods. Typically an agency receives commission or fees which are directly related to the value of goods traded. A purchasing, marketing or buying office is a separate workplace, of a multi-workplace employer, which is predominantly engaged in buying or marketing goods for use by other workplaces of the employer as such. Such a workplace which buys or markets for other workplaces of the employer does not physically handle the goods. 2 The term ‘wholesale trade’ is used here in the broad sense to include the sale (as principles) of new or used goods to retailers or other wholesalers. The more important type of businesses engaged in wholesale trade are wholesale merchants who take title to the goods they sell in separately located sales branches or sales offices (not being retail stores), operated by manufacturing enterprises which do not merely take orders but supply goods to customers from stocks physically held at their own premises. Workplaces engaged in storing and distributing goods to other workplaces of the employer are included in Division G.”
65 The defendant then relied on Group Class 476 which is headed “Food, Drink and Tobacco Wholesalers”.
476 FOOD, DRINK AND TOBACCO
WHOLESALERS
F4761T MEAT WHOLESALERS (EXCLUDING POULTRY,|||||| RABBIT, HORSE AND KANGAROO) This class consists of workplaces predominantly engaged in wholesaling fresh or frozen meat (except poultry, rabbit, horse or kangaroo meat). EXCLUSIONS/REFERENCES: Workplaces predominantly engaged: (a) in wholesaling fresh or frozen poultry or rabbit meat are included in Class F4762V; and (b) in wholesaling horse or kangaroo meat are included in Class F4796T. Predominant Activities
Frozen meat wholesaling (except Meat wholesaling (except canned, horse, kangaroo or rabbit meat cured or smoked or horse, or poultry) kangaroo or rabbit meat or poultry).
66 During the course of final submissions, the defendant acknowledged difficulties in applying Division F because under its contract with Coles the property in the meat did not pass to the defendant.
67 In its Further Amended Defence, the defendant pleaded that neither the classification C2115L nor F4761T, which are the two classifications referred to above, applied to the defendant.
Contract Between Coles Supermarkets Australia Pty Ltd and Somerville Retail
Services Pty Ltd68 It is necessary to summarize the principal features of the defendant’s contract with Coles. It is entitled “Value Add Supply Agreement”.
69 The recitals to the Agreement states:
“1 Coles operates a chain of supermarkets around Australia and sells
meat and meat products in those supermarkets.2 The Processor has agreed to produce processed meat products for Coles and Coles has agreed to engage the Processor to provide the services on the terms and conditions set out in this Agreement.”
70 “Products” is defined in the Agreement as meaning:
“Meat products specified by Coles and Processed by the Processor for
Coles in accordance with this Agreement.”
71 Clause 2 of the Agreement is headed “Provision of Processing Services” and “2.1, Scope of Agreement”. The relevant paragraphs of that subclause state:
“(a) The Processor acknowledges that the Products Processed by the Processor pursuant to this Agreement are intended for sale as meat for human consumption (other than those products specifically packed as non-edible) and must use its best endeavours to ensure that the Products will in all circumstances be of a standard suitable for this purpose. (b) … (c) Coles agrees the Processor will be Coles’ preferred company to construct and operate a facility to produce modified atmosphere packaged product in Victoria and South Australia, as well as supplying modified atmosphere packaged product containing lamb and pork in New South Wales. Coles does not grant any exclusive processing rights to the processor in these states.”
72 Clause 2.4 is headed “Property and Risk” and provides:
“(a) Property in the Raw Materials and the Products remains with
Coles at all times.(b)
Risk in the Raw Materials and the Product passes to the Processor when the goods have been unloaded at the Facility and remain with the Processor until delivery to Coles’ nominated carrier, at which time risk will pass to Coles.”
Evidence Called on behalf of the Plaintiff, Brian John Todd
73 Both parties called oral evidence.
74 Mr Todd was called as a witness on behalf of the plaintiff. He had inspected the defendant’s premises. He is the managing director of Australian Meat Marketing Pty Ltd which provides consultancy services to the Australian and overseas meat industry. He has been a consultant for nineteen years and has been involved in the meat industry for thirty-nine years in a variety of roles, including being a general manager of a high-quality beef processing and exporting company.
75 Mr Todd gave evidence based on his experience and concerning the division of meat industry, particularly as it affected the defendant’s premises, and of his inspection of the defendant’s premises. Mr Todd had prepared an expert witness statement, but it had been late served, and upon objection from the defendant, I ruled that the plaintiff could not rely on it.
76 Mr Todd described wholesale activity for the purposes of the meat industry as taking delivery and ownership of boxed beef or lamb in large lots and distributing the goods in smaller lots to retailers, food outlets, restaurants, motels, and for catering. In his opinion, wholesalers did not cut meat. Their main activity was distribution. They may take delivery of a number of cartons, but would distribute those cartons unchanged, but in smaller lots, to retail providers. He said that when wholesalers do cut lamb, they are doing so for the requirements of a particular customer, for example, a restaurant.
77 Mr Todd gave evidence that abattoirs or meat works are the first step in the meat chain. He said that it was still common in the domestic market for abattoirs just to slaughter animals and cut the carcass into two sides, which can then be quartered and delivered to the retail butcher’s shop. He said that the primal cuts were then further processed into smaller products. He said that in his experience in the meat industry “fully manufactured” meant preparing a product for retail sale.[24]
[24] T 84 L 19-25.
78 Mr Todd described the defendant’s operations as involving, first, a receivable area where cartons for both inward and outward delivery are assembled. The inward cartons are opened and the primal cuts transferred into a processing area. He observed primal cuts being cut and hand trimming[25] and the cutting of lamb four quarter chops.[26] He observed a number of meatworkers along the production line hand trimming cuts of beef and lamb and cleaning bone dust from lamb chops. He also observed strip loin steaks and lamb forequarter chops being chopped with a mechanical slicer.
[25] T 88 L 21.
[26] T 81.
79 The defendant’s premises include a room for mincing meat, with three large mincing machines which grind meat, mince, place it in cartons and then hold it in a holding area before being shipped out.
80 There are three large machines which are used to package meat for retail purposes. The meat is placed on retail trays and in cartons for distribution. The package machine receives a portion cut of beef or lamb in a tray, which then proceeds by a conveyer to a lidding machine, which lids the tray to a finished product in a machine which evacuates the air and lids the tray. The cartons were then loaded into a holding area where they were marshalled for distribution.
Evidence Called on Behalf of the Defendant, John Anthony Skelton
81 Mr Skelton has been employed by the defendant as its operations manager since April 2006 after working in the meat industry all his life, commencing as a sixteen year old at an abattoir as a general roustabout. He worked as a boning room supervisor for nineteen years. He worked for Coles as beef production manager at its Tooronga Headquarters between 2001 and 2006. This was a national position looking after 90 per cent of Coles’ kill and bone operations. He was involved in all commercial areas of beef boning and getting the most out of the carcasses. Coles had experienced trouble with in- house butchers and set out to have centralised packing, for retail ready meats. Coles is the defendant’s only customer.
82 Mr Skelton is responsible for the day-to-day operations at the defendant’s premises and reports to the general manager. He holds a Diploma of Meat Management.
83 The defendant is the largest processor of case ready fresh product in Australia.[27]
[27] T 89.
84 Mr Skelton described the defendant’s operation as involving the receipt of primal cuts from abattoirs and transforming them into steak, sliced, diced or minced, which is then put into packets and distributed to Coles’ distribution centres. Coles owns the primal cuts from the carcasses. Most of the orders received are completed and the product delivered to stores within two days.
85 The average weight of cartons received by the defendant is 15 kilograms, whereas the average weight of the original carcass is 240 kilograms.
86 There is no boning room at the defendant’s premises as there are at abattoirs. The cutting carried out is trimming or cleaning up, e.g. reducing the amount of fat. This is done either by hand or using machinery. The steaks need to be trimmed to reduce fat depth.
87 Every day at 9.00 am, Coles sends their store orders to the defendant. The defendant has to supply meat for 250 stores. Primal cuts are received by the defendant in cartons on a pallet. The primal cut is placed on a conveyor or cartridge to be sliced or cut or put in a bin to be transferred back to the mince room. The meat is then put in a buffer chiller. When packers are ready, the meat is taken out, trimmed and scraped if required and then goes onto a tray and taken off to a sealing machine. The meat is placed into trays and then a top film is put on the tray and it is sealed.
88 Coles pays for the transport of the primal cuts. The meat is sent to a distribution centre where it is picked and sorted and goes to individual stores.
89 Mr Skelton gave examples of some wholesalers who would cut meat, but they appeared from the evidence to be in the minority.[28]
[28] T 59.
90 Under cross-examination, Mr Skelton described the activity of the defendant as transforming the primal cuts to retail ready cuts,[29] as well as producing a pork roast range.
[29] T 60.
91 Marinating of meat had been performed, but was a small scale operation producing about 10 tonne a week for about twelve months. Pepper steaks had been produced for a time but had also been discontinued. The defendant has approximately 150 items in its product range.
92 The defendant typically produces 350 to 450 tonnes of meat per week and in a “good week” about half of it is mince, whereas in a “bad week” about a quarter is mince. There are three broad divisions of meat products produced at the defendant’s workplace: mince, steaks or cuts and roasts. Out of the 400 tonnes of meat produced per week about 200 are steak, 150 mince and about 50 roasts. The majority of the primal cuts received by the defendant have been cut in some way.[30]
[30] T 84-85.
93 The defendant employs 400 permanent full-time staff with about 110-120 working per shift, not including administrative staff.[31]
[31] T 87 and 89.
94 Mr Skelton described the defendant’s operations as including storage, manufacturing, if that included cutting, packing, weighing, labelling and product despatch.[32]
[32] T 76.
95 Mr Skelton gave evidence about the defendant’s Quality Manual, which does contain descriptions of the defendant’s operation as including manufacturing. One of the defendant’s documents described the Tottenham plant as “a mass production meat room with an economy of scale that permits it to use more automation to do it more easily”.[33]
[33] T 44-45.
The Plaintiff’s Submissions
96 The plaintiff submitted that the defendant was predominantly engaged in manufacturing of food products, using manufacturing in the broad sense to relate to the physical or chemical transformation of materials or components. The plaintiff relied on the use of the singular of the word “activity”. The defendant had been predominantly engaged in transforming primal cuts of meat into new products, being retail ready cuts of meat and packing them, including trimmed cuts of steak, lamb chops, mince meat, marinated pork roasts and pepper steak. The plaintiff submitted that the activity of cutting meat has contributed, or is likely to have contributed, more than any other activity of the employer to the value of the meat products produced by the operations carried on at the defendant’s premises.
97 The plaintiff submitted that the defendant’s processing operations at its workplace as including the following steps:
(a) cartons of primal cuts are received into the defendant’s premises; (b) the primal cuts are then de-cartoned and removed from their boxes; (c) the primal cuts are then transferred to the processing area and the primal cuts are further cut; (d) there is then a mincing room where bulk trimmings of meat are transferred into mince meat; (e) the finished product is then packed by machines. 98 Most meat received by the defendant is cut in some way.
99 The plaintiff submitted that the defendant’s description on its website as “the largest processor of case ready fresh meat products in Australia” was an accurate description of its operations. The plaintiff also made reference to the use by the defendant of the word “manufacturing” in its Quality Manual.
100 The defendant was not engaged in wholesaling because it did not trade in or take ownership of goods
The Defendant’s Submissions
101 The defendant submitted that its predominant activity was the provision of retail services to Coles as specified in the contract made between them. Its only client was Coles and it performed the task of the butchers who used to be employed in Coles supermarkets.
102 The defendant submitted that although it packed meat, that was not its predominant activity. It described its operations as involving the following manner:
(a) receiving cartons of meat; (b) reducing the meat from primal cuts to “meal sized” portions; (c) storing the meat in an optimal environment; (d) packing the meat; (e) making it available for collection so as to be sold by Coles and consumed by Coles’ customers. 103 In summary, the defendant submitted that the evidence established that it took meat supplied to it by Coles and, after taking preparatory steps including cutting, placed it into units in sealed packets which were then delivered to Coles.
104 The defendant ultimately submitted that its operations did not fit into any of the classifications relied on in argument before the Court. However, the defendant did not suggest that the Court consider any classification contained in the Premiums Orders other than the two referred to above.
Consideration of the Evidence and Submissions
105 There were few differences of fact in the competing descriptions of the defendant’s Tottenham workplace. The key issue is what is the appropriate description of the central activity at those premises which is the reducing in size of primal cuts of meats to the size that consumers wish to purchase in supermarkets.
106 In my opinion, the defendant does transform the primal cuts that it receives. It usually reduces their size. The great majority of meat is cut and transformed. There are significant aspects of the boning of meat. The meat is physically transformed into new products by both power driven machines and hand. Primal cuts are transformed into portions of meat readily usable by consumers. Meat is trimmed of fat to again enable it to be sold to the consumer.
107 Meat is chilled and kept in an appropriate environment, whist at the defendant’s workplace.
108 The smaller portions of meat processed by the defendant are then re- packaged in appropriate trays for sale to consumer.
109 It provides meat in a size and packing readily available for sale to consumers in Coles supermarkets. It also creates significant amounts of mince meat.
110 The evidence of both Mr Todd and Mr Skelton establishes that a predominant activity of the defendant’s workplace is to turn primal meat cuts into meat cuts or portions that are readily useable by purchasers at Coles supermarkets.
111 Whilst meat is received at and leaves the defendant’s workplace, the meat undergoes a significant transformation whilst at the workplace.
112 These functions of the transformation of the meat fit within the definition of manufacturing in Division C of Schedule 4 of the Premiums Orders.
113 It is true that on one view the defendant’s workplace is carrying out its contractual obligations to Coles, but that does not mean that such a description would identify its principal activity for the purposes of Premiums Order. Most workplaces carry out commercial activities pursuant to contract as that is the nature of commercial life. But the Premiums Order requires the identification of the predominant activity of that workplace by reference to the kind of work performed.
114 I do not place great particular reliance on the marinating of meat or the creation of pepper steaks. Nor do I take particular reliance on the use of the word “manufacturer” in the defendant’s operations manual.
115 As the defendant conceded, there are difficulties in applying the meat wholesaling classification because the title to the meat never passes to the defendant cf. Victorian WorkCover Authority v IR Cootes Pty Ltd, per Phillips JA.[34]
[34] [2001] VSCA 85 at [54].
116 I find that the predominant activity of the defendant’s workplace is meat manufacturing within Division C Subdivision 21 Group Class 211 of the Premiums Orders. The assessments made by the plaintiff were based on such a classification.
117 I therefore do not consider that it is appropriate to send the matter back to the plaintiff for further reconsideration because there may be some other classification more appropriate to this workplace. I do not consider that the Court is obliged to eliminate by a process of individual examination all other possible classifications. I accept the submission of the plaintiff that upon examination of the Premiums Orders there does not appear to be any relevant classification other than the two discussed in these Reasons.
Orders 118
The parties agreed that I should deliver my reasons without attempting to make any orders as to the amount of payments due by the defendant to the plaintiff. If the parties can reach agreement on those figures and any other orders required, they can submit consent orders. Otherwise I will re-list the matter to determine outstanding matters.
Ruling on Costs
119 As a result of the Reasons for Judgment I delivered this morning, the plaintiff seeks judgment in the sum of $1,765,185.50. This sum includes statutory interest plus premiums falling due since 31 October 2009. Credit is given for two payments made by the defendant earlier in this month. There is a dispute about whether credit has been given for the sum of $76,263. I wish to make it clear that I make no finding about that issue.
120 There will therefore be an order that there be judgment for the plaintiff against the defendant in the sum of $1,765,185.50, which on my arithmetic is inclusive of statutory interest in the sum of $80,999.86.
121 In respect of costs, the plaintiff relied on an Offer of Compromise dated 30 October 2009, the terms of which I will not read. Under Rule 26.08 of the County Court Rules of Civil Procedure 2008, where an offer of compromise is made by a plaintiff and not accepted and the plaintiff obtains a judgment on the claim to which the offer relates which is no less favourable to the plaintiff than the terms of the offer, then unless the Court otherwise orders, the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of the claim up to and including the day the offer was served taxed on a party and party basis and for the plaintiff’s costs thereafter taxed on an indemnity basis.
122 The plaintiff has obtained a judgment no less favourable to it than the terms of the offer of compromise and therefore Rule 26.08 applies. The Court has a discretion whether or not to make an order: see State of Victoria v McIver;[35] however, the authorities suggest that the rule is not easily displaced: see Simonovski v Bendigo Bank Ltd.[36]
[35] (2005) 11 VR 458
[36] [2003] VSC 139, being one of the authorities cited in Civil Procedure Victoria p.3613, for that proposition.
123 The defendant’s senior counsel has put all the matters that could be put in support of an argument that the Court should otherwise order under Rule 26.08. These included the history of the classification, what was said to be the test case nature of this litigation and the late notice of the plaintiff’s reliance on s.71 of the Accident Compensation (WorkCover) Insurance Act 1993. However, I do not consider that those matters justify the exercise of the discretion to “otherwise order” under Rule 26.08.
124 Senior counsel for the defendant also referred to the Court of Appeal judgment in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No.2),[37] but in my opinion there is still a difference between the matters relevant to the exercise of the discretion in respect of the rejection of a Calderbank offer and the operation of Rule 26.08. Even if I were wrong about that, in the circumstances of this case, I can see no reason for the Court to otherwise order under Rule 26.08.
[37] (2005) 13 VR 435.
125 Putting the argument about s.71 to one side for the moment, this case concerned a claim by the plaintiff for unpaid premiums and penalties and an argument by the defendant that the unpaid premiums had been incorrectly calculated or, had been calculated pursuant to an incorrect classification. I therefore do not consider that there is reason for the Court to “otherwise order”.
126 However, under Rule 63A.04, a court can make orders in respect of the costs of particulars matters. The authorities on the equivalent provision in the Supreme Court Rules were considered in the case of G T Corp Pty Ltd v Amare Safety Pty Ltd (No.3).[38] I consider this is a case where one can readily identify an issue, namely the argument about the operation of s.71 of the Accident Compensation (WorkCover) Insurance Act 1993, which should attract the operation of that Rule. If I had accepted the argument put by the plaintiff in reliance on s.71, the defendant would not have been able to lead evidence contesting the classification in the manner that it did, or if it had led it, I would not have been able to take into account. The argument about s.71 did take an identifiable portion of the case, and no doubt part of the preparation associated with it.
[38] [2008] VSC 296.
127 Rule 63A require that I fix a proportion of the total costs of the proceeding which are attributable to that particular question or a particular part of the proceeding. Doing the best I can, and taking into account the date from which the indemnity order will operate, namely 30 October 2009, and the date when the s.71 argument surfaced, which seems to have been early to middle November 2009, and also taking into account the time in the trial that was attributable to the s.71 argument, I propose to order that that the defendant pay 70 per cent of the plaintiff’s costs after 30 October 2009 on an indemnity basis. For the purposes of the requirements of Rule 63A.04, I identify the figure of 30 per cent as attributable to the s.71 issue.
128 In respect of the other issues, ultimately there was no real issue about the quantum of counsels’ fees. There was an issue about how much preparation time should be allowed. That issue arose when I was considering reducing the number of days of preparation payable pursuant to an order for costs to the plaintiff because of the defendant’s success on the s.71 argument. As I now propose to reduce the indemnity costs payable to the amount of 70 per cent, I will not otherwise to reduce the preparation days covered by the award of costs in favour of the plaintiff.
129 I propose to make the following orders:
(1) There be judgment for the plaintiff against the defendant in the sum of
$1,765,185.50 inclusive of $80,999.86 in statutory interest.(2)
The defendant pays the plaintiff’s costs of the proceeding, including any reserved costs, up to and including 30 October 2009 on a party-party basis.
(3)
The defendant pays 70 per cent of the plaintiff’s costs incurred on or after 31 October 2009, including 70 per cent of counsels’ fees referred to in Orders 4 and 5 hereof, on an indemnity basis.
(4) Certify for Senior Counsel’s fees for three days of appearances at the rate of $7,040 per day and two days of preparation at the rate of $7,040 per day.
(5) Certify for Junior Counsel’s fees for three days of appearances at the rate of $2,300 per day and three days of preparation at the rate of $2,300 per day. (6) Certify for the reasonable costs of the preparation, filing and service of
the plaintiff’s Court Book and the necessary copies thereof.(7) Reserve liberty to apply. (8) The operation of the above orders be stayed for 42 days from this date. 130 I have intended, by the way I have drafted paragraph (3), to make it clear that although I have certified for counsels’ fees, the defendant’s obligation to pay indemnity costs to the plaintiff will apply to 70 per cent of those fees.
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