Walker v Aussie Disposals Pty Ltd - [2016] VSC 255

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2014 06094

BETWEEN:

GRAZIELLA WALKER	Plaintiff
v
AUSSIE DISPOSALS PTY LTD (ACN 054 646 025)	Defendant

---

JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2016
DATE OF JUDGMENT:	19 May 2016
CASE MAY BE CITED AS:	Walker v Aussie Disposals Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VSC 255

---

COSTS – Personal injury damages – Defendant’s application for set-off – Amount of damages less than pre-trial statutory offer – Amount of damages at trial less than costs awarded against plaintiff – Court’s inherent and equitable jurisdiction to make order for set-off – Sivritas v Sivritas (No 2) (2008) 23 VR 349 and Slaveski v State of Victoria [2013] VSC 76 cited – Court’s jurisdiction to award set-off not precluded by s 134AB(28) of the Accident Compensation Act 1985 – Spotless Services Australia Ltd v Herbath and Anor (2009) 26 VR 373 relied upon – Plaintiff dependent for many years on WorkCover benefits – Relevance of plaintiff’s parlous financial position in circumstances where the defendant had admitted its negligence a cause of her injuries – No evidence that plaintiff would dissipate judgment sum with intention of depriving defendant of award of costs – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Pilipasidis	Maurice Blackburn Lawyers
For the Defendant	Mr P Hamilton	Minter Ellison

HIS HONOUR:

Introduction

In this proceeding the plaintiff made a claim for damages for injuries sustained by her in the course of her employment with the defendant, which she alleged were caused by the defendant’s tortious conduct.

Very shortly prior to the commencement of the trial the defendant conceded liability. The jury trial proceeded as an assessment. As a consequence of a verdict delivered by the jury on 21 April 2016, T Forrest J on the same day made orders that:

1.There be judgment for the plaintiff against the defendant in the sum of $89,077.
2.The plaintiff pay the defendant’s costs, to be assessed by the Supreme Court of Victoria Costs Court in default of agreement.
3.There be a stay of 21 days for payment of the judgment sum.

By summons dated 3 May 2016, the defendant has applied to set off the costs award in its favour against the damages awarded to the plaintiff. The application is supported by an affidavit of the solicitor for the defendant, sworn 3 May 2016. Written and oral submissions were made by each party.

Background

The plaintiff was born on 16 July 1963 and is now 52 years of age.

By her statement of claim, the plaintiff pleaded that she was employed by the defendant from 2004, and that in the course of her employment she was required to carry out heavy work as a storeperson. The plaintiff alleged that in the course of performing that work on about 8 January 2008 she suffered injury to her lumbar spine, and that the injury was caused by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Walker v Aussie Disposals Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] VSC 255
Decision Date: 19 May 2016

CaseChat Overview and Summary

The dispute in Walker v Aussie Disposals Pty Ltd arose from a personal injury claim brought by the plaintiff, Walker, against the defendant, Aussie Disposals Pty Ltd. The plaintiff alleged that she sustained injuries due to the defendant’s negligence. The case was heard in the County Court of Victoria. The primary legal issue before the court was whether the court had the inherent and equitable jurisdiction to order a set-off against the damages awarded to the plaintiff, given that the amount of damages awarded was less than the statutory offer made by the defendant prior to trial and also less than the costs awarded against the plaintiff. The defendant sought to set off its liability for costs against the damages awarded.

The court examined the principles set out in Sivritas v Sivritas (No 2) and Slaveski v State of Victoria, which established that the court has inherent and equitable jurisdiction to order a set-off in appropriate circumstances. The court noted that the statutory provision, s 134AB(28) of the Accident Compensation Act 1985, did not preclude the court from exercising its jurisdiction to make a set-off order. The court referred to Spotless Services Australia Ltd v Herbath to support its jurisdiction in this regard. The court considered the plaintiff's financial dependency on WorkCover benefits and the defendant’s admission of negligence as relevant factors, but found no evidence that the plaintiff would dissipate the judgment sum to deprive the defendant of its costs award. Consequently, the court determined that the application for set-off was not justified.

The court dismissed the defendant's application for set-off. The court found that the equitable considerations, including the plaintiff’s financial circumstances and the defendant’s admission of liability, did not warrant a set-off order. The court emphasised that there was no evidence to suggest that the plaintiff intended to dissipate the judgment sum to deprive the defendant of its costs award. Therefore, the court upheld the plaintiff's entitlement to the full amount of damages awarded.

Orders