Williams v Coles Supermarkets Aust Pty Ltd
[2017] VSC 318
•6 June 2017 (on the papers)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 05743
| MELINDA WILLIAMS | Plaintiff |
| v | |
| COLES SUPERMARKETS AUST PTY LTD | First Defendant |
| ASSOCIATE PROFESSOR PETER GIBBONS (Deputy Convenor of Medical Panels) | Second Defendant |
| MEDICAL PANEL (constituted by MR JOHN BOURKE & MR ROY CAREY) | Third Defendant |
| BEVENDALE PTY LTD | Fourth Defendant |
---
JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF JUDGMENT: | 6 June 2017 (on the papers) |
CASE MAY BE CITED AS: | Williams v Coles Supermarkets Aust Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2017] VSC 318 |
---
JUDICIAL REVIEW — Medical Panel — Threshold for non-economic claim — Amendment to threshold — Retrospective effect — Panel applied wrong threshold — Opinion quashed — Remitted for redetermination — Wrongs Act 1958 Part VBA; Wrongs Amendment Act 2015 s 11.
COSTS — Defendant adopting a Hardiman approach during proceeding— Cost consequences
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Arnold Thomas & Becker | |
| For the First Defendant | Colin Biggers & Paisley | |
| For the Second and Third Defendants | Moray & Agnew | |
| For the Fourth Defendant | HWL Ebsworth Lawyers |
HIS HONOUR:
The plaintiff, on 18 December 2013, commenced an action in the County Court of Victoria against the first and fourth defendants (‘the primary proceeding’). That proceeding included a claim for non-economic loss which is subject to the provisions of Part VBA of the Wrongs Act 1958 (‘the Wrongs Act’).[1] The plaintiff, the first and fourth defendants, whom I shall describe as ‘the parties’,[2] filed a ‘joint memorandum on resolution of judicial review application’.
[1]The facts set out in this judgment are taken from the joint memorandum on resolution of judicial review application, the written submissions of the first and fourth defendants and the affidavit of the fourth defendant’s solicitor.
[2]The second and third defendants adopted a Hardiman stance: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
The fourth defendant on 23 December 2014 referred the plaintiff to the Medical Panel for determination of a medical question as to whether she met the threshold for claiming damages for non-economic loss under Part VBA of the Wrongs Act. The first defendant subsequently referred the plaintiff to the Medical Panel for the same purpose and the two referrals were consolidated on 29 January 2015.
The Medical Panel on 5 May 2015 determined that the plaintiff did not meet the threshold for claiming non-economic loss damages under Part VBA of the Wrongs Act. The plaintiff then commenced this proceeding to seek judicial review of the Medical Panel’s determination.
On 21 December 2016, the Court of Appeal in Mitchell v Latrobe Regional Hospital[3] found that the new thresholds for claiming general damages inserted into s 28LB of the Wrongs Act by s 11 of the Wrongs Amendment Act 2015 had retrospective effect. The decision applied even in circumstances where a medical panel had made a determination based on the old thresholds. The Medical Panel’s determination had referred to an old threshold and, as a consequence of the decision in Mitchell, the plaintiff was now entitled to be assessed by reference to the new Wrongs Act threshold. The parties submitted that the Court should remit the matter for consideration to a different medical panel.
[3][2016] VSCA 342 (‘Mitchell’).
The parties sought the following orders to allow the plaintiff to be re-examined by the Medical Panel and assessed with reference to the new thresholds:
a)The certificate of determination by the Medical Panel issued pursuant to s 28LZGA(2) of the Wrongs Act 1958 dated 5 May 2015 is quashed;
b)The definition of ‘threshold level’ as defined in s 28LB of the Wrongs Act 1958, is, for the purposes of the assessment of the Plaintiff’s entitle[ment] to recover damages in proceeding CL–13–06518 in the County Court of Victoria, the ‘threshold level’ as substituted by s 11 of the Wrongs Amendment Act 2015;
c)The assessment of the Plaintiff’s level of permanent impairment is to be remitted to the Second Defendant for consideration by a differently constituted Medical Panel in accordance with any declaration made by this Court that the plaintiff does not satisfy the threshold for claiming non-economic loss in the primary proceeding. (emphasis added)
The Court cannot make consent orders in judicial review proceedings unless satisfied that they are appropriate. In this case, with one qualification and with the rephrasing of the orders set out above in the usual terms, I am so satisfied because the Panel applied the incorrect threshold for non-economic loss. The one qualification concerns the words emphasised in paragraph 5(c) above. No submission was advanced why any declaration to the effect contained in that part of paragraph 5(c) was appropriate and as the question is being remitted to a Medical Panel, I do not consider that such a declaration should be made.
The first and fourth defendants differed as to the appropriate order for costs. The plaintiff and the first defendant propose that the plaintiff’s standard cost of this proceeding be paid by the first and fourth defendants subject to a set-off of their standard costs relating to the hearing on 16 December 2015 as ordered by the Associate Justice on 3 May 2016.
The first defendant submitted that it and the fourth defendant were proper respondents for the purposes of Part VBA of the Wrongs Act in the plaintiff’s proceeding against them in the County Court. They both sought referral of the matter to the Medical Panel for the determination of a medical question as to whether the plaintiff met the threshold for claiming damages for non-economic loss and they were jointly liable for the costs of the referral. The effect of the Medical Panel’s determination was that the plaintiff could not claim non-economic loss from them and her claim was limited to pecuniary loss. The plaintiff challenged that decision and named both the first and fourth defendants as parties, although the fourth defendant was only joined as a party to the amended originating motion. The first and fourth defendants defended the plaintiff’s application to extend the time within which to bring the judicial review proceeding, but the Court granted that extension.
The fourth defendant wrote to the parties after the further amended originating motion was filed and served on 23 May 2016 to advise that it was electing not to defend the judicial review proceeding.
The fourth defendant submits that it should not have to pay the plaintiff’s costs from 23 May 2016 because thereafter it did not oppose the relief sought in the further amended originating motion and, like the second and third defendants, was prepared to accept the Court’s ruling. It had only been joined as a party because it referred the plaintiff to the Medical Panel. The fourth defendant distinguished the decision in Smith v Lloyd (No 2).[4]
[4][2007] VSC 436.
The first defendant submits that the fourth defendant should be jointly liable for the plaintiff’s costs. It argued that a party could not elect to cease participating in a proceeding which has been validly brought against it and expect that no orders for costs would follow. The fourth defendant elected to defend the judicial review proceeding, but it was not a government agency and therefore could not adopt a Hardiman[5] stance. Costs followed the event. The fourth defendant would have derived the benefit of the first defendant’s preparation and defence of the judicial review proceeding and the associated costs that it spent, if the application had been successful.
[5]R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
Conclusion
Costs are discretionary and in the circumstances of this case, I consider that it is appropriate to order that the plaintiff’s costs after 23 May 2016 be only paid by the first defendant. I consider that thereafter the case proceeded because the first defendant, unlike the fourth defendant, opposed the plaintiff’s further amended originating motion or, at the least, did not indicate that it was not opposing the relief sought.
The orders for costs will therefore be:
(a) The First and Fourth Defendants are to pay the Plaintiff's costs of the proceeding on a standard basis until 23 May 2016.
(b) The First Defendant is to pay the Plaintiff’s costs of the proceeding on a standard basis after 23 May 2016.
(c) From the costs payable pursuant to these orders by the First Defendant to the Plaintiff are to be set off the costs payable by the Plaintiff to the First Defendant as ordered by Associate Justice Ierodiaconou by order signed on 3 May 2016.
(d) From the costs payable pursuant to these orders by the Fourth Defendant to the Plaintiff are to be set off the costs payable by the Plaintiff to the Fourth Defendant as ordered by Associate Justice Ierodiaconou by order signed on 3 May 2016.
(e) The Second and Third Defendants are to bear their own costs of the proceeding.
0
3
0