Anic v Qenos

[2013] VSC 741

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5968 of 2013

ANIC	Plaintiff
v
QENOS	Defendant

---

JUDGE:	T FORREST  J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 December 2013
DATE OF JUDGMENT:	17 December 2013
CASE MAY BE CITED AS:	Anic v Qenos
MEDIUM NEUTRAL CITATION:	[2013] VSC 741

---

SUPREME COURT RULES - 

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	T. Monti SC	Nevin, Lenne & Gross
For the Defendant	Richard Stanley	Wisewould Mahony Lawyers

HIS HONOUR:

1. This matter was listed for hearing in the December 2013 Wodonga circuit.  Time constraints meant that it was not reached in that circuit.  I considered it eminently suitable for judicial mediation, and I accordingly referred it for same.  The matter has settled but for two aspects of what would otherwise be consent orders as to costs.

1. Fees for senior and junior counsel remain in dispute both for the mediation and for an interlocutory hearing that took place not long before that mediation.

Mediation

1. Mr Stanley, who appeared for the defendant at the mediation, argued that:

(a)the fees were incurred at a mediation;

(b)the court is no better position than the Costs Court to assess this aspect of the costs order;

(c)if this court made an order for costs after a successful settlement at mediation this Court would be acting as a quasi Costs Court itself given that the matter was not reached in the recent Wodonga sittings of this Court;

(d)alternatively, if this court were to consider the question of counsel’s fees it should do so by reference to Appendix A to Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2005 – Scale of Costs. Having used this scale to fix upon an amount for senior and junior counsel’s fees Mr Stanley then contended that that amount ought be reduced by 20% as provided for by s134AB(29) of the Accident Compensation Act 1985.

1. Mr Monti S.C. contended that this court, having exercised judicial control over the matter, including referring it for judicial mediation, is better placed than the Costs Court to determine the issue of counsel’s fees. He further submitted that the delays associated with a Costs Court determination was a factor that also militated against referring it. He submitted that it was inappropriate to have regard to the Scale of Costs in the way proposed by Mr Stanley and he submitted that if his full fee were allowed s 134AB(29) would not apply.

1. I am of the view that it is appropriate for this court to determine this issue.  This was a reasonably complex case involving injuries said to be the result of repetitive heavy duties over several years, although more particularly over the six months between October 2005 and March 2006.  A consulting engineer prepared a comprehensive report and was to give evidence (subject to admissibility arguments) concerning the plaintiff’s individual duties and the repetitive forces, postures and movements his duties required of him.  The plaintiff alleged negligence and statutory breach.  The defendant denied these allegations and, alternatively, alleged contributory negligence.  The plaintiff underwent two back operations said to be causally connected to his employment.  His obesity may have clouded the causal picture.

1. As I have observed, the matter was not reached in the recent sittings.  I referred it for judicial mediation, and had it not settled I would have listed it for hearing at a special fixture at a convenient time in 2014.  In the circumstances, I consider that not only am I well placed to hear this application but that it is in the interests of justice to do so.  I can deal with it immediately.  The parties have waited long enough for resolution of this matter (the cause of action was complete nearly eight years ago) and any delays in listing matters in the costs court can be avoided.[1] 

   [1]Mr Monti S.C. mentioned a delay of some months.  Mr Stanley did not address this.

1. I consider that it is reasonable to allow Mr Monti and his junior full fees for their representation of the plaintiff at the mediation.  This was a serious matter.  It was settled for more than $1 million including keep.  Both sides were ready to proceed at the Wodonga sittings, and had it not settled would have been required to proceed sometime soon.

1. I am unimpressed by the defendant’s argument that counsel’s fees ought be set by reference to the scale fee for mediations less 20%. There is no scale item for counsel’s fees at mediations. Mr Stanley propose Item 19(a)(ii) for Mr Monti - $3,750 for senior counsel for ‘any other matter […] per half day’. After the 20% discount Mr Stanley’s proposal would result in a brief fee for silk in a difficult $1 million plus case of $3,000 plus GST. I regard this as inadequate. I consider the better touchstone for an appropriate fee is the appropriate fee had this matter been settled during the circuit sittings, less perhaps his circuit allowance given that this matter settled in Melbourne.

1. I consider the sum sought to be reasonable in the circumstances.  Mr Monti is a vastly experienced and highly regarded jury advocate, who is a leader of the Common Law bar.  This was a complex case and it required all of Mr Monti’s undoubted abilities.  I certify senior counsel’s fee at $8,500 and junior counsel’s fee at 50% of that sum. These amounts are exclusive of GST.

The interlocutory argument

1. It is unnecessary to recite the unfortunate detail of this argument.  It is sufficient to observe that over the course of its preparation for trial the defendant’s solicitors either failed to file or filed late just about every document or affidavit required of them. By 25 November 2013, with the circuit well under way, the defendant entered into self-executing consent orders requiring, within three working days, a sworn Affidavit of Documents, a sworn copy of Answers to Interrogatories, a further Affidavit of Documents and further and better answers to interrogatories.  The defendant failed to comply with these orders, and on 6 December 2013 I heard an application concerning the fate of the defendant’s defence.  I had not ruled on this when the broader case settled.

1. Whilst the plaintiff’s position on the interlocutory argument was powerfully put by Mr Monti, I do not consider that senior counsel’s attendance was necessary.  Mr Seelig is a highly capable advocate himself, and the argument for the plaintiff essentially involved listing in chronological order the litany of failings attributable to the defendant’s practitioners.

1. Accordingly, I do not propose to allow a fee for senior counsel on the interlocutory hearing.  I consider an appropriate allowance for counsel would be $4,250 i.e. 50% of Senior Counsel’s fee in this matter.

1. The costs orders I will make are as follows.

(1)The defendants pay the plaintiff’s costs including reserved costs to be taxed in default of agreement with senior counsel's fee on brief certified at $8,500 plus GST and junior counsel's fee on brief certified at 50 per cent of senior counsel's fee. 

(2)Costs for 1 day’s mediation be certified at this rate.

(3)Costs for 1 day’s preparation be certified at this rate.

(4)Costs for the interlocutory hearing be certified for junior counsel at this rate.

(5)Conferences be certified for 4 hours.

1. I order that the proceeding otherwise be dismissed.