Afif v Transport Accident Commission (Ruling as to Costs)
[2023] VCC 2373
•21 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-21-02580
| VICTOR AFIF | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2023 | |
DATE OF JUDGMENT: | 21 December 2023 | |
CASE MAY BE CITED AS: | Afif v Transport Accident Commission (Ruling as to Costs) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2373 | |
RULING AS TO COSTS
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Subject:COSTS
Catchwords: Costs – Court’s discretion – premature briefing of counsel – where proceeding resolved at conference before trial
Legislation Cited: County Court Civil Procedure Rules 2018 (Vic); Civil Procedure Act 2010 (Vic); Transport Accident Act 1986 (Vic); Transport Accident Common Law Protocols 2016
Cases Cited: Ishak v Transport Accident Commission (Ruling as to Costs) [2023] VCC 1084; Commissioner of Police v Hoffman [2014] NSWDC 113; Donovan v Miller [1987] VR 221; Scanlon v Transport Accident Commission (Ruling) [2021] VCC 1791
Judgment: Counsels’ fees allowed and certified in the sum of $6,600 for Senior Counsel and $3,300 for Junior Counsel for brief on trial
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Nathanielsz | Slater and Gordon Lawyers |
| For the Defendant | Mr S Pinkstone | Solicitor to the Transport Accident Commission |
Table of Contents
Introduction
Background
Evidence
Issues and submissions
Plaintiff’s submissions
Defendant’s submissions
Legal principles
Reasons
Conclusion
HER HONOUR:
Introduction
1This is an application by the plaintiff for certification of Senior and Junior Counsels’ fees on brief for trial in the sum of $6,600 for Senior Counsel and $3,300 for Junior Counsel.
Background
2The plaintiff suffered injury to the spine (“the injury”) in a transport accident on 27 August 2019.
3On 2 December 2020, the plaintiff lodged an application to the Transport Accident Commission (“the TAC”) for a serious injury certificate which was denied by the TAC on 3 May 2021.[1]
[1] See affidavit of Mark Rawlings, solicitor for the plaintiff, sworn 31 October 2023, paragraph 6
4An Originating Motion dated 22 June 2021 was filed with the Court on behalf of the plaintiff on 23 June 2021.
5On 3 March 2023, his Honour Judge Pillay made Orders listing the Originating Motion for hearing on 2 November 2023. The Orders made by his Honour Judge Pillay stipulated that final service of further affidavits or medical reports to be relied on at the hearing was to occur by 21 September 2023.
6On 11 May 2023, the defendant sought an independent medical examination of the plaintiff by Dr Hilary Hunt, neurologist.
7On 25 May 2023, the plaintiff’s solicitors booked Senior Counsel, Mr Angus Macnab, and Junior Counsel, Mr Tristan Nathanielsz, as counsel to appear at the hearing on 2 November 2023.
8On 7 June 2023, Dr Hunt conducted an independent neurological examination of the plaintiff and provided a report to the defendant the same day.
9On 26 July 2023, the defendant provided the report of Professor Mark Cook, neurologist and epileptologist, dated 29 October 2022 to Dr Hunt for review and comment.
10Dr Hunt prepared a supplementary report, also dated 26 July 2023.
11There was no evidence from either party as to when that report was served.
12An electronic brief was delivered to Mr Nathanielsz on 4 September 2023 to prepare a further affidavit for the plaintiff.
13On 7 September 2023, Ms Felton of the office of the solicitor for the defendant, sent an email to the plaintiff’s solicitor’s assistant, Ms De Lacy, seeking the availability of the plaintiff’s solicitor, Mr Mark Rawlings, for a pre-hearing conference in the week commencing 9 October 2023. The pre-hearing conference was to be held in accordance with the Transport Accident Common Law Protocols 2016 (“the TAC Protocols”).
14A series of emails were exchanged between Ms Felton and Ms De Lacy in which dates for the pre-hearing conference were proposed. Ultimately, on 14 September 2023, the parties agreed to hold the pre-hearing conference on 13 October 2023.
15On 18 September 2023, Mr Nathanielsz was briefed to attend the pre-hearing conference.
16The same day, the plaintiff’s solicitors served the report of Mr Mark Summers, dated 29 June 2023 and the report of Dr Jennifer Flynn dated 14 September 2023 on the defendant.
17On 19 September 2023, the plaintiff’s solicitors served the plaintiff’s second affidavit, sworn 18 September 2023.
18On 3 October 2023, the plaintiff’s solicitors provided the reports of Dr Hunt dated 7 June 2023 and 26 July 2023 to Professor Cook for review and opinion.
19Professor Cook prepared a supplementary report dated 7 October 2023.
20On 9 October 2023, an electronic brief to appear at the pre-hearing conference was provided to Mr Nathanielsz.
21On 11 October 2023, well after the date for final exchange of expert reports on 21 September 2023, the plaintiff served the supplementary report of Professor Cook dated 7 October 2022 on the solicitor for the defendant in response to the defendant’s expert report.[2]
[2] See affidavit of Yu Dong Kristy Xu, solicitor for the defendant, sworn 1 November 2023, paragraph 8
22On 11 October 2023, this report was provided to Mr Nathanielsz to add to his brief.
23On 13 October 2023, the pre-hearing conference was held. At the pre-hearing conference, the TAC granted a serious injury certificate to the plaintiff.
24On the same day, proposed consent orders were sent to the solicitor for the defendant by the plaintiff’s solicitor seeking certification of counsels’ fees for the trial on 2 November 2023 at a rate of $6,600 for Mr Macnab and $3,300 for Mr Nathanielsz.
25On 20 October 2023, the plaintiff’s solicitor emailed the defendant’s solicitor advising that the plaintiff accepted the defendant’s settlement offer and re-sent the proposed orders seeking consent to certification of counsels’ fees on the same terms proposed on 13 October 2023.
26On 24 October 2023, the defendant opposed certification of counsels’ fees.
27In his affidavit sworn on 31 October 2023, the plaintiff’s solicitor deposed that on 13 October 2023, he considered it reasonable and prudent to have briefed Mr Macnab and Mr Nathanielsz for the hearing on 2 November 2023. He did not consider that the brief was premature and did not consider it an act of over-caution.[3] Further, he deposed that he considered the plaintiff had what was likely to be a challenging application based upon the medical material, namely, the reports of Dr Hilary Hunt.[4] He considered the complexity warranted briefing of senior and junior counsel who had prior involvement and familiarity with the matter. He further deposed that had counsel not already been briefed for hearing at the time he took over conduct of the matter on or about 13 June 2023, he would have briefed prior to 13 October 2023 to avoid the prospect of being left without competent counsel at the hearing in the event the matter did not settle.
[3] Affidavit of Mark Rawlings, sworn 31 October 2023, paragraph 19
[4] Affidavit of Mark Rawlings, sworn 31 October 2023, paragraph 18
28In her affidavit sworn on 1 November 2023, Ms Yu Dong Kristy Xu, solicitor for the defendant, deposed that the report from Professor Cook dated 7 October 2023 in response to Dr Hunt’s reports, significantly influenced the TAC’s decision to grant the serious injury certificate.
Evidence
29The plaintiff relied upon the affidavit of Mark Rawlings, sworn 31 October 2023 and exhibit thereto (63 pages).
30The plaintiff also made oral submissions.
31The defendant relied upon the affidavit of Yu Dong Kristy Xu, sworn 1 November 2023 and exhibits thereto (4 pages).
32The defendant also relied on the defendant’s outline of submissions dated 2 November 2023, and made oral submissions.
33At the Court’s request, the solicitor for the defendant also provided to the Court a copy of the applicable TAC Protocols dated 1 July 2016, TAC Supplementary Common Law Protocols dated 1 January 2020 (“Supplementary Protocols”), Guidelines for pre-hearing conferences in “serious injury” applications dated 22 February 2013 (“Guidelines for pre-hearing conferences”) and Practice Note PNCLD 2-2023.
Issues and submissions
Plaintiff’s submissions
34The question for determination was ultimately: when is it reasonable for a not overcautious solicitor to brief counsel?[5]
[5] Transcript (“T”) 50, Line/s (“L”) 29
35It was submitted on behalf of the plaintiff that Senior and Junior Counsels’ fees for brief on trial should be certified respectively in the sum of $6,600 for Senior Counsel and $3,300 for Junior Counsel on the basis that a reasonable and prudent, but not over-cautious, solicitor would have briefed counsel for trial by 25 May 2023 and, in any event, by the date of the serious injury Protocol conference on 13 October 2023.
36First, the application was complex. It grappled with issues of range and causation which were raised by the medical reports of Dr Hunt and Professor Cook, and there were also issues of aggravation and credit. It was a matter in which it was suitable for senior counsel to appear at trial.[6] Accordingly, it was appropriate, given the proximity of the date of the pre-hearing conference to the trial, for counsel to have been briefed for trial.
[6] T4-5
37Second, had counsel not been briefed for trial by the date of the serious injury conference, the plaintiff would have run the risk of being left without counsel who would be willing to appear on a no-win no-fee basis at trial, in the event the matter did not settle at the pre-hearing conference.[7]
[7] T3-4
38Third, although there was no provision in the TAC Protocols similar to the WorkCover Rules pursuant to which, if a matter resolves within 28 days of the hearing, counsel is entitled to charge a hearing fee, there was no sensible reason for a difference in approach with respect to the certification of counsels’ fees. Both the WorkCover Rules and TAC Protocols are used to determine whether to grant serious injury certificates. In WorkCover matters, where a serious injury conference occurs within 30 days of a trial, counsel is entitled to charge a fee on brief for trial.
39Fourth, consistent with Ishak v Transport Accident Commission (Ruling as to Costs)[8] and Commissioner of Police v Hoffman,[9] when a hearing date is fixed for a matter, it is incumbent upon a solicitor to select counsel and retain them for the hearing.[10] It is appropriate for counsel to charge a fee on brief in addition to a fee for attendance at the serious injury conference. This is because a fee on brief is effectively a charge or compensation for counsel holding themselves available to appear at the hearing, rather than necessarily a fee to perform the work.[11]
[8] [2023] VCC 1084 (“Ishak”)
[9] [2014] NSWDC 113
[10] (ibid) at paragraph [27]
[11] T57, L29-L31
Defendant’s submissions
40The defendant submitted that it was not fair, reasonable or proportionate to certify plaintiff’s counsels’ fees for the hearing when the matter resolved 20 days prior to the date of trial.
41First, contrary to the plaintiff’s submission, the case was not unduly complex. The only real issue was whether the plaintiff’s tremor was causally related to the transport accident. If causation was accepted, the plaintiff would win, because the serious injury application related to pain and suffering only. There was no issue of economic loss. Consequently, it did not follow that the plaintiff may have been unable to identify suitably qualified senior and junior counsel if counsel had not been briefed prior to the serious injury conference.
42Second, the serious injury conference was held at the direction of the Court pursuant to s48(1) of the Civil Procedure Act 2010 (“the CPA”) and also the Practice Note, and the plaintiff agreed to the serious injury conference date knowing he had not filed his expert material; the second report of Professor Cook dated 7 October 2023 having not been served by the plaintiff until 11 October 2023. In any event, the matter settled at the serious injury conference.
43Third, to require certification of hearing fees might disincentivise early settlement.
44Fourth, the plaintiff’s counsel’s fee for appearing at the serious injury conference are covered by the TAC Protocols and Supplementary Protocols for Counsels’ Fees. The fee(s) payable to counsel is/are inclusive of preparation in respect of the conference and provide for an uplift when common law damages are also settled.
45Fifth, Senior Counsel did not appear at the serious injury conference which would have been expected if there was a real level of complexity in the application.
46Sixth, there was no “wasted” work done in preparation for the hearing of the serious injury application distinct from the serious injury conference. The most up-to-date affidavit from the plaintiff was sworn on 18 September 2023, approximately four weeks prior to the conference.
47Seventh, the issue of counsel’s fee was not discussed prior to the granting of the serious injury certificate.
48Eighth, there was no evidence that counsel for the plaintiff was left without remunerative work on 2 November 2023.
49Ninth, the 28-day practice for payment of counsel’s fees which applies in serious injury applications brought pursuant to the Accident Compensations Act or the Workplace Injury Rehabilitation and Compensation Act by reason of the WorkCover (Litigated Claims) Legal Costs Order 2016 has no application in serious injury applications made pursuant to s93 of the Transport Accident Act. WorkCover matters do not mandate that a pre-hearing conference be held, whereas TAC matters do. Further, at a TAC serious injury conference, unlike in WorkCover matters, the TAC is required to hand over all credit material to the plaintiff.
50Tenth, both parties acted reasonably, which they were required to do by reason of Practice Note PNCLD 2-2023, in agreeing that the serious injury conference be held on 13 October 2023, which was 20 days prior to trial. Although the pre-hearing protocol conference was held later than the requirement stipulated in paragraph 1.1 of the Guidelines for pre-hearing conferences, that it be held no later than 30 days prior to trial, the parties agreed to the date of the serious injury conference. They also agreed it was permissible to hold it within 30 days of the trial, by virtue of paragraph 1.1 of the Guidelines for pre-hearing conferences.
51Eleventh, various rulings made in other cases support the position that it would not be fair, reasonable or proportionate to certify plaintiff’s counsels’ fees for the hearing when the matter resolved 20 days prior to the date of trial.
Legal principles
52The Court has a discretion to award of costs.
53The discretion is to be exercised subject to, and in accordance with, the County Court Civil Procedure Rules 2018[12] and the CPA.
[12] Rule 63A.02
54In exercising its discretion, the Court must seek to give effect to the overarching purpose of the CPA. It must ensure that costs are reasonable and proportionate to the complexity or importance of the issues and the amount in dispute.[13]
[13] CPA, s24
55To achieve the purposes of the CPA, the Court has power to order and direct that various pre-trial procedures, such as mediation, occur.[14]
[14] CPA, s48
56In matters in respect of which the provisions of the Transport Accident Act are applicable, Practice Note PNCLD 2-2023, the TAC Protocols, the TAC Guidelines for pre-hearing conferences in “serious injury” applications under s93 of the Transport Accident Act and the TAC Supplementary Protocols, also make provision for alternative dispute resolution.
57Paragraph 8.2 of Practice Note PNCLD 2-2023 states:
“Consistent with the overarching purpose and obligations of the CPA, it is the expectation of the Court that the parties in all TAC serious injury applications will have endeavoured to facilitate resolution of the application in accordance with the voluntary alternative dispute resolution processes in the TAC Transport Accident Act Common Law Protocols – 1 July 2016 (‘the TAC protocols’) and the guidelines for pre-hearing conferences in ‘serious injury’ applications under s93 of the TAA (‘the Guidelines’).”
58Paragraph 1.5 of the TAC Protocols stipulates that the TAC, the claimant and the claimant’s lawyer will endeavour to facilitate resolution of a serious injury application:
“… by utilising the alternative dispute resolution processes in these protocols before resorting to contested legal proceedings in the Courts.”
59Paragraph 11 of the TAC Protocols provides for a serious injury conference to –
“… facilitate quality decision making by the TAC, to narrow the issues in dispute between the parties and to resolve serious injury applications/common law claims early and appropriately before resorting to contested legal proceedings. …”
60Paragraph 11.6 of the TAC Protocols states that the serious injury conference should occur within 60 days of either party requesting it.
61Paragraph 11.8 of the TAC Protocols refers to the use of counsel at pre-hearing conferences and states that a claimant must be present at the conference and may be represented by counsel.
62Legal costs and disbursements are referred to at paragraphs 21.1 to 21.28 of the TAC Protocols.
63Paragraph 21.1 provides:
“In recognition of the value added by a claimant’s lawyer during the serious injury and common law processes the TAC will pay to a claimant’s lawyer legal costs and disbursements upon settlement of the common law claim according to these protocols.”
64It is noted, as outlined in paragraph 21.2, that legal costs and disbursements are not specifically regulated by the TAC Protocols and are to be determined by reference to the appropriate Court scale.
65Paragraph 21.15 states:
“Where a common law damages action is resolved in circumstances where the serious injury certificate is granted at a serious injury conference … [t]he TAC will also pay Counsel’s fees associated with the conference at $3,300 unless otherwise agreed between the parties prior to the conference.”
66Paragraph 21.22 stipulates:
“Where a claimant’s lawyer intends to use Senior Counsel for a serious injury conference or a common law conference, the claimant’s lawyer must seek prior approval from the TAC.”
67The Guidelines for pre-hearing conferences set out when a pre-hearing settlement conference is to be held.[15]
[15] Paragraphs 1.1 to 1.3
68Paragraph 1.1 provides:
“Subject to agreement by the parties, a pre-hearing conference will be held no later than 30 days before the hearing of an Originating Motion.”
[emphasis added]
69Paragraph 1.2 provides:
“A date for the pre-hearing conference will be agreed between the parties after the Court provides the parties with Orders setting out the timetable for the exchange of material and the date of the hearing.”
70Paragraph 1.3 provides:
“Unless otherwise agreed by the parties, the conference will only proceed if there has been a final exchange of material by the parties and compliance by the parties with the Orders of the Court for the exchange of material.”
71The Supplementary Protocols are intended to be read in conjunction with the TAC Protocols.[16] They provide a process for several scenarios which are not covered by the TAC Protocols. The scenarios listed are not relevant to the issue in dispute in this proceeding; that is, the issue of certification of counsels’ fees.
[16] Supplementary Protocols, paragraph 1.2
Reasons
72The Court orders mediation prior to the trial in all matters to facilitate the overarching purposes of the CPA. Mediation gives parties an opportunity to seek to resolve matters before incurring the considerable expense of briefing counsel for trial. However, depending on how close to trial mediation occurs, a prudent solicitor may reasonably and necessarily need to engage counsel to appear at trial prior to mediation having occurred.
73The question at issue is when that time arises. Specifically, should counsel for the plaintiff receive a fee for brief on trial, as well as a fee for appearance at the serious injury conference where the serious injury conference is held 20 days prior to trial?
74As her Honour Judge Tsikaris noted in Ishak,[17] each case turns on its own facts and is to be determined on a case-by-case basis.[18] Like her Honour in Ishak, I adopt the view that neither the CPA nor the TAC Protocols displace the principle identified in Donovan v Miller.[19]
[17] Supra
[18] Mr Pinkstone (T17 and T33); Ishak (supra) at paragraph [47]
[19] [1987] VR 221
75It is consequently necessary to consider when a reasonable and prudent, but not overly cautious, solicitor in the shoes of the plaintiff’s solicitor would have briefed counsel for trial.
76It is worth noting at the outset that as in the cases of Scanlon v Transport Accident Commission (Ruling)[20] and Ishak[21] referred to by the parties, there was no suggestion that either party unnecessarily delayed the holding of the serious injury conference. Further, when the serious injury conference was held, both parties endeavoured to participate in the conference with a genuine spirit and intention to resolve the dispute. Despite the serious injury conference being held later than 30 days prior to the hearing of the Originating Motion, it was held subject to both parties’ agreement, which is consistent with paragraph 1.1 of the Guidelines for pre-hearing conferences.
[20] [2021] VCC 1791 (“Scanlon”)
[21] Ishak (supra) at paragraph [46]
77Notwithstanding those matters, there are several reasons why I consider it was appropriate to brief counsel prior to the date the serious injury conference was held.
78First, this matter had a level of complexity associated with it. It was appropriate for Senior Counsel to be briefed. While the defendant asked rhetorically why, if the matter was complex, Senior Counsel did not appear at the serious injury conference, that ignores the limitations on the costs which are payable to Senior Counsel under the Protocol.
79Second, while it is true the plaintiff agreed to the serious injury conference date at a time when not all expert material was filed, the defendant also agreed to the date knowing it was well after 30 days prior to trial. Both parties should have, but did not, approach the Court for directions. In those circumstances, I do not consider either party acted entirely appropriately.
80Third, I disagree that certification of hearing fees might disincentivise early settlement. Certification of hearing fees is only necessary if it is reasonable to brief counsel. If the defendant ensures that serious injury conferences are held more than 30 days prior to trial, no issue will arise but, in any event, briefing counsel as early as possible often aids settlement.
81Fourth, while it is true that the plaintiff’s counsel’s fees for appearing at the serious injury conference are covered by the TAC Protocols and Supplementary Protocols which include preparation in respect of the conference and provide for an uplift when common law damages are also settled, work done for the serious injury conference is distinct from work done in preparation for trial. Parties must still participate in alternative dispute resolution in addition to preparing for trial.
82Fifth, while Senior Counsel did not appear at trial, that does not necessarily mean Senior Counsel had no involvement in preparation for the serious injury conference. Briefing counsel, including senior counsel, before the serious injury conference, provides counsel with the ability to provide input in relation to the strategy for the serious injury conference. If counsel were not briefed, this could negatively impact the ability for the matter to settle.
83Sixth, because preparation for trial is distinct from participation in alternative dispute resolution, different work is involved. It is incorrect to say there was no wasted work preparing for trial simply because the plaintiff also had counsel appear at the serious injury conference.
84Seventh, counsel’s fees are not relevant to whether a serious injury certificate properly, should or should not be granted.
85Eighth, while Junior Counsel appeared at the hearing of this application on 2 November 2023, it is unclear whether Senior Counsel had alternate work. However, even if he did, that does not necessarily preclude him charging a fee for brief on trial. In my view, the fee for brief on trial encompasses more than simply the appearance on the day of the trial. It incorporates preparation to run the trial as well as the care, skill and attention of counsel.
86Ninth, although the Workcover (Litigated Claims) Legal Costs Order 2016 has no application in serious injury applications made pursuant to s93 of the Transport Accident Act, the reasons for payment of counsels’ fees for trial when counsel are briefed within 28 days of trial are sound. Court processes run most efficiently when counsel are engaged at the earliest opportunity. This facilitates the overarching purposes of the CPA. When this does not occur, disputes such as this, which inefficiently absorb judicial officers’ time, arise. The Court is required to spend valuable time adjudicating disputes that would otherwise not arise.
87Tenth, Court timetables are set to ensure that interlocutory steps, such as mediation, occur well in advance of trial. This is, as Judicial Registrar Gurry noted in Scanlon,[22] to give parties the best chance of mediation being effective.
[22] (Supra) at paragraph [48]
88Eleventh, while there is a possibility that matters will resolve at a serious injury conference, that is not guaranteed. If they do not settle, the plaintiff’s solicitor has to turn their mind to the possibility of running their client’s case at the hearing. Had counsel not been engaged prior to the serious injury conference in this instance, the plaintiff’s solicitor may have been left with the task of securing counsel with only a few weeks prior to trial. There would have been no certainty that counsel would have been available. Notwithstanding the defendant’s submission, because not every member of counsel performs work on a “no-win no-fee” basis, the plaintiff would have run the risk of being left without suitable counsel willing to appear on a “no-win no-fee” basis, in the event the matter did not settle.
89Twelfth, although the plaintiff served the expert material of Professor Cook late, had that material not been served, it would not have been available to the defendant and a serious injury certificate may not have been granted. It would have been necessary for the plaintiff to incur fees in respect of briefing counsel for trial in any event. Service of the expert material facilitated resolution of the matters and was consistent with the parties’ overarching obligations under the CPA.
90In light of all the circumstances in this case, I consider it was reasonable and prudent for the solicitor for the plaintiff to have briefed counsel prior to the serious injury conference.
Conclusion
91Accordingly, I will certify for Senior and Junior Counsels’ fees for brief on trial at the rate of $6,600 and $3,300 respectively.
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