Whitehead v Carlton Football Club

[2005] VSC 352

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No.  4905 of 2001

ADRIAN WHITEHEAD	Plaintiff
v
CARLTON FOOTBALL CLUB (ACN 005 499 909)	First Defendant
PHILLIP PERLSTEIN	Second Defendant

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2005
DATE OF JUDGMENT:	1 September 2005
CASE MAY BE CITED AS:	Whitehead v Carlton Football Club
MEDIUM NEUTRAL CITATION:	[2005] VSC 352

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PRACTICE AND PROCEDURE – Costs – Whether defendant’s failure to raise successful defence at an early stage warrants departure from ordinary costs rule.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J H Mighell	Slater and Gordon
For the First named Defendant	Mr D Curtin QC with Mr B M Griffin	Deacons
For the Second named Defendant	Mr J P Constable		John W Ball & Sons
For the Firstnamed Third Party	Mr J P M de Koning	McCabe Terrill
For the Secondnamed Third Party	Ms C Gianatti	Corrs Chambers Westgarth

HIS HONOUR:

1. The plaintiff was in 1997 a professional footballer employed by the firstnamed defendant, Carlton Football Club Limited.  The events which give rise to this litigation are said to have occurred in the course of a football match on 16 August of that year.  Mr Whitehead says that he then suffered an injury to his right foot in circumstances which gave rise to liability in the Club.  He sued also the secondnamed defendant, Phillip Perlstein, the club doctor, alleging that the injury was caused by his negligence.

1. The case has proceeded at a pace which might be generously characterised as leisurely.  The writ was filed on 15 March 2001, over 3½ years after the incident, and it has progressed in this fashion over the ensuing 4½ years.  Orders were made under the Litigation Support Group procedure[1] on 3 May 2001, 15 November 2001, 30 June 2003, 6 November 2003, 10 March 2004, 13 May 2004 and 29 July 2004 without apparent success.  The two third parties have been joined and many interlocutory steps taken between the defendants and between the Club and these third parties.  The proceeding was, on 5 October 2004, fixed for trial to commence on 19 September 2005.  In the course of these interlocutory processes, the plaintiff amended his statement of claim on three occasions and the Club has filed no less than four defences, the latest of which was on 3 June 2005.  Dr Perlstein has filed three defences, the latest of which was filed on 29 June 2005. 

   [1]In accordance with Practice Note 1 of 1996 – [1997] 1 VR 527

1. In its latest defence the Club has raised two new matters. The first, that the contract between it and Mr Whitehead prevented the player from making this claim and, second, that as an employee entitled to worker’s compensation, the plaintiff’s right to bring this proceeding was barred by s 135A of the Accident Compensation Act 1985. The latest defence of Dr Perlstein also raised this statutory defence as well as other matters.

1. The statutory defence was tried as a preliminary question and determined in favour of the defendants on 22 July 2005.  The claim against them must accordingly be dismissed.  The defendants now seek the costs of the proceeding.  The third parties are not concerned with the present application.

1. Counsel for the plaintiff resisted this, contending that the successful point was raised only at the last minute.  He argued that the defendants, as successful parties, should have their costs only up to the date of their first defences and from the date of their last defences.  The time and legal work between these dates, he said, was wasted.  He submitted that the costs incurred in the interval should therefore lie where they fall.

1. I am mindful of the fact that the other defences raised by the defendants prior to their latest amendments might, at trial, have succeeded but I have no way of assessing this.  This might lead to the conclusion that there should be no order as to the costs during this interval.[2]

   [2]See Re the Minister for Immigration & Ethnic Affairs of the Commonwealth of Australia;  Ex parte Lai Qin (1997) 186 CLR 622.

1. This is not a case where I would conclude that the plaintiff, having had his attention drawn to the difficulties posed by s 135A, would have abandoned his proceeding. The indications are that he would have taken the position that these difficulties were not fatal.

1. What is said is that, having been confronted by the statutory defence in 2001, he would have sought or submitted to the preliminary trial of that question as he did four years later.  Given the result of this preliminary trial, he and the defendants would have been saved the costs that were incurred as a result.  In this way, these costs could be said to have been incurred by the failure of the defendants to identify and raise the statutory defence, as they should have, at that early stage.  I was referred to the dictum of Atkin LJ in Ritter v Godfrey,[3] which included as an exception to the ordinary rule that costs follow the event, the case where the successful party has done something calculated to (i.e. having the effect of) the occasioning of unnecessary expense.

   [3][1920] 2 KB 47 at 60.

1. The difficulty with this submission is that the history of this litigation gives me little confidence that this would have happened.  I conclude that, in such an event, the case would likely have meandered through its interlocutory stages in much the same way as it did in fact.

1. I have considered, too, whether the Court should nonetheless be ready to make the costs order sought by the plaintiff in an effort to encourage litigants to address at the earliest opportunity, defences such as the statutory defence in this case and to adopt the Rule 47.04 procedure to determine them before heavy costs are incurred.  On reflection, I do not favour this approach.  Costs orders in a case such as the present, where the defendants have not acted improperly, are not to be punitive.

1. I will therefore make the usual order that the plaintiff pay the defendants’ costs of his proceeding against them.

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