Kalinic v Acron Engineering Pty Ltd & Anor [2013] VSCA 363 (17 December 2013)

JOSIP KALINIC	Appellant
JOSIP KALINIC

v

ACRON ENGINEERING PTY LTD & VICTORIAN WORKCOVER AUTHORITY	Respondents
ACRON ENGINEERING PTY LTD & VICTORIAN WORKCOVER AUTHORITY

JUDGES	WARREN CJ, OSBORN JA and ROBSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	28 November 2013
DATE OF JUDGMENT	17 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 363
JUDGMENT APPEALED FROM	Kalinic v Acron Engineering Pty Ltd (No 2) [2012] VCC 1052 (Judge K Bourke)

COSTS – Apportionment of costs – Appellant partly successful - Appeal allowed against decision in respect of pain and suffering arising from serious impairment of body function and loss of earning capacity – Appeal dismissed against decision in respect of pain and suffering arising from serious disfigurement and permanent severe or behavioural disturbance or disorder – Applicable principles – Appellant entitled to 60 per cent of his costs of the appeal – Chen & Ors v Chan & Ors [2009] VSCA 233 applied.

APPEARANCES:	Counsel	Solicitors

For the Appellant	Mr J Richards SC with Mr P Montgomery	Victorian Compensation Lawyers

For the Respondents	Mr S O’Meara SC with Ms M Norton	Herbert Geer

1 The appellant was partially successful in his appeal from a decision refusing leave to proceed with a serious injury claim under s 134AB(16) of the Accident Compensation Act 1985.[1]

2 The appellant relied on 14 grounds of appeal, one of which included nine sub-grounds. Accordingly, the respondents answered the appellant’s written submissions and prepared for the oral hearing on the basis that all issues raised were at large. At the commencement of the hearing, the appellant abandoned all but four grounds.[2]

3 Ultimately the appellant succeeded in respect of his appeal against the trial judge’s decision to refuse leave to bring proceedings in respect of pain and suffering arising from serious impairment of body function and loss of earning capacity. This was the primary focus of the argument before us. His appeal against the trial judge’s findings in relation pain and suffering arising from serious disfigurement, and permanent severe behavioural disturbance or disorder was unsuccessful and the relevant grounds were dismissed.

5 The principles relevant to the award of costs in the context of an appeal where both parties succeeded in part were relevantly set out by the Court of Appeal in Chen & Ors v Chan & Ors:

(1) The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim.

(2) The Rules of Court permit significant flexibility in determining questions of costs. In particular, the Court is entitled to examine the realities of the case and will attempt to do ‘substantial justice’ as between the parties on matters of costs.

(3) Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.

(4) A Court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.

(5) Where a Court determines to make an order apportioning costs, then it does so primarily as ‘a matter of impression and evaluation,’ rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.[3]

6 This Court has a broad discretion in making an award of costs under the Rules [4]. In addition to the principles set out above, the Civil Procedure Act 2010 (‘CPA’), which was not in force at the time Chen was decided, guides the exercise of this discretion. This Court is obliged to give effect to the overarching purpose of the CPA, which is ‘to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.’[5] In addition, the CPA makes plain the overarching obligation on parties to narrow the scope of the issues in dispute.[6] As the Court of Appeal held in Yara Australia Pty Ltd & Ors v Oswal, ‘the Act [CPA] does not merely reaffirm the existing inherent powers of the court but provides a powerful indication of the will of the Parliament about the values sought to be achieved by the way in which cases are managed in the courts and the balances that have to be struck.’[7]

7 Informed, as we are, by the conduct of the hearing of the appeal and the provisions of the CPA, we consider a percentage of the costs of the appeal should be allowed for. We adopt this approach since it is undesirable for intermediate appellate courts to become immersed in the minutiae of determining specific issues of costs distribution, which is properly a matter for the Costs Court, and because a single order for costs of the appeal will facilitate the agreement or taxation of costs.

8 The appellant has succeeded on his appeal, in part, but also failed in part. As noted above, a significant number of the grounds of appeal were abandoned at the commencement of the hearing. In all the circumstances, we consider that the appellant is entitled to 60 per cent of his costs of the appeal and order accordingly.

2. The costs of the trial before her Honour Judge K Bourke be costs in the cause in the retrial.

^[2] Grounds 1(vii) and (ix), 5, 6 and 13 were the only grounds prosecuted on the hearing of the appeal.

^[3] [2009] VSCA 233 [10] (citations omitted) (Maxwell P, Redlich JA and Forrest AJA) (‘Chen’); see also McFadzean & Ors v Construction Forestry Mining and Energy Union & Ors [2007] VSCA 289 (Warren CJ, Nettle and Redlich JJA).

^[7] [2013] VSCA 337 [21]. See also Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, [56]-[57] (French CJ, Kiefel, Bell, Gageler And Keane JJ). There the High Court discussed the exercise of powers under the Civil Procedure Act 2005 (NSW), which pursues the overriding purpose of facilitating ‘the just, quick and cheap resolution of the real issues in the proceedings’ and held that:

The evident intention and the expectation of the CPA is that the court use these broad powers [available under the CPA] to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.

That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.

Supreme Court of Victoria - Court of Appeal

Kalinic v Acron Engineering Pty Ltd & Anor [2013] VSCA 363 (17 December 2013)