Apostolopoulos v Victorian Workcover Authority (Ruling as to Costs)
[2025] VCC 33
•4 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-02491
| JOHN APOSTOLOPOULOS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 January 2025 | |
DATE OF RULING: | 4 February 2025 | |
CASE MAY BE CITED AS: | Apostolopoulos v Victorian Workcover Authority (Ruling as to Costs) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 33 | |
RULING
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Subject:Costs
Catchwords: Application by the plaintiff for certification of Counsel’s fees.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic); WorkCover (Litigated Claims) Legal Costs Order 2016 (Vic); County Court Civil Procedure Rules 2018 (Vic)
Cases Cited:Apostolopoulos v Victorian WorkCover Authority (Ruling) [2024] VCC 176; Gellard v Victorian Workcover Authority [2017] VCC 1919; Matthews v Latrobe Regional Hospital [2021] VCC 1161; Dowling v Myer Street Family Medical Practice [2018] VCC 2314; Barman v Victorian WorkCover Authority [2020] VCC 380; Hristovska v Victorian WorkCover Authority (County Court of Victoria, Myers J, 13 April 2023); Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2) (2005) 13 VR 435; [2005] VSCA 298; Traumanis v State of Victoria (County Court of Victoria, Carmody J, 26 May 2017)
Ruling: Not appropriate to certify for plaintiff’s Counsel’s fees.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Frederico | Zaparas Lawyers Pty Ltd |
| For the Defendant | Ms K Bradey | Wisewould Mahoney |
HER HONOUR:
1The current dispute between the parties relates to an issue of costs and specifically the certification of the plaintiff’s counsel’s fees incurred for the hearing listed on 28 November 2023, for the preparation of submissions on the issue of admissibility, for the attendance at a Directions Hearing on 14 March 2024, the hearing on 3 June 2024 and 4 June 2024 and the Mention on 29 January 2025.
Relevant background
2In order to properly understand the current dispute, it is necessary to briefly refer to the background of this claim.
3The plaintiff, John Apostolopoulos, sought leave to commence a proceeding for pain and suffering damages and pecuniary loss damages relying on paragraph (a) of the definition of “serious injury” under the Workplace Injury Rehabilitation and Compensation Act (Vic) (‘the Act”).
4His claim was in respect of an injury to his right knee sustained in the course of his employment with Hickory HR Pty Ltd on 10 April 2021. (“the Serious Injury application”).
5The Serious Injury application was issued in this Court on 24 May 2023.
6The Serious Injury application was originally listed for hearing before me on 28 November 2023. Prior to the plaintiff formally opening his case, Senior Counsel for the plaintiff raised an objection to the admissibility of the defendant’s ”Suitable Employment Report” dated 19 September 2023 prepared by Janette Ash of Recovre (“the first Recovre report”). The objection was made without notice to the defendant.
7The Court directed the parties to file and serve written submissions and adjourned the hearing.
8A ruling in relation to the first Recovre report was delivered on 29 February 2024 in which the Court determined that parts of the report were inadmissible.[1]
[1] Apostolopoulos v Victorian WorkCover Authority (Ruling) [2024] VCC 176.
9After the ruling had been delivered, the Court held a Directions Hearing on 14 March 2024 at which time the Serious Injury application was relisted for hearing before me commencing on 3 June 2024.
10The Serious Injury application proceeded before me on 3 June 2024 and 4 June 2024. Judgement was delivered on 12 December 2024.
11The plaintiff was partially successful in his Serious Injury application as the Court granted the application for leave to issue proceedings for pain and suffering damages but dismissed the application for leave to issue proceedings for pecuniary loss damages.
12The plaintiff seeks the following orders:
1.Leave granted under subparagraph (a) to proceed in respect to pain and suffering damages relating to an injury suffered on 10 April 2021.
2.The defendant to pay the plaintiff’s costs, including reserved costs, pursuant to the WorkCover (Litigated Claims) Legal Costs Order 2016 to be agreed or determined by the costs Court in default of agreement.
3.Certification of the Counsel as follows:
a)Brief on hearing (28 November 2023)
i.Senior Counsel brief on hearing $6600 with two hours of special conferences at $660 per hour;
ii.Junior Counsel brief on hearing $3300 with two hours of special conferences at $330 per hour.
b)Preparation of submissions
i.Senior Counsel 8 hours at $660 per hour;
ii.Junior Counsel 4 hours at $330 per hour.
c)Junior Counsel appearance at Directions Hearing on 14 March 2024 of $500.
d)Brief on hearing (3 June 2024 and 4 June 2024)
i.Leading Counsel $5500 brief on hearing for two days;
ii.Junior Counsel $2750 brief on hearing for two days.
e)Counsel’s appearance at Mention on 29 January 2025 of $1100.
4. The proceeding be otherwise dismissed.
13The Defendant opposes the orders sought by the plaintiff in respect of counsel’s fees. The defendant agrees that the plaintiff is entitled to an order for professional costs in accordance with Clause 4, Part A of the WorkCover (Litigated Claims) Legal Costs Order 2016 (“the LCO”).
14The defendant provided a written outline of submissions dated 28 January 2025 and an Affidavit of Ashley MacDonald sworn on 28 January 2025 together with exhibits.
15The plaintiff did not file any Affidavit material.
16The full oral argument proceeded before me on 29 January 2025.
The Pain and Suffering Notice (“PSO Notice”)
17On 25 May 2023 the defendant, through its solicitors, served a Notice on the plaintiff pursuant to Clause 4, Part A of the LCO which stated:
“the Authority gives notice it is satisfied that the injury of John Apostolopoulos alleged to have been incurred on 10 April 2021 to the Right (sic) Knee (sic) satisfies the requirements of section 134AB (38)(b)(i) of the AC Act or section 325 (2)(b)(i) of the WIRC Act but not the requirements of section 134AB (38)(b)(ii) of the AC Act or section 325 (2)(b)(ii) of the WIRC Act, and that subject to the worker abandoning that part of the application seeking leave of the Court to bring proceedings for pecuniary loss damages, the Authority will issue a certificate.”
18Pursuant to Clause 4, Part A2 (ii), the plaintiff had 28 days to accept the PSO Notice, therefore the plaintiff had until 22 June 2023 to accept the PSO notice.
19The plaintiff did not accept the PSO Notice.
Case Law
20The defendant referred to the following cases: Gellard v Victorian WorkCover Authority;[2] Matthews v Latrobe Regional Hospital;[3] Dowling v Myer Street Family Medical Practice;[4] Barman v Victorian WorkCover Authority;[5] Hristovska v Victorian WorkCover Authority.[6]
[2] [2017] VCC 1919.
[3] [2021] VCC 1161.
[4] [2018] VCC 2314.
[5] [2020] VCC 380.
[6] (County Court of Victoria, Myers J, 13 April 2023).
21For the purpose of this ruling I have considered these cases as well as Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No.2)[7] and Traumanis v State of Victoria[8] and the LCO.
[7] (2005) 13 VR 435; [2005] VSCA 298.
[8] (County Court of Victoria, Carmody J, 26 May 2017).
Submissions
22The plaintiff submitted that it was reasonable for him to not accept the PSO Notice at the time it was made because, whilst there was no issue between the parties that the plaintiff was working at the time the PSO Notice was served, the real issue was the plaintiff’s “without injury earning capacity” which, the plaintiff asserted, had not been established during the relevant time period.
23It was further submitted on behalf the plaintiff that despite the fact the plaintiff did not produce any additional medical material from treating practitioners, the plaintiff obtained the medicolegal opinions of Mr Asaid and Dr Brasier and a report from Flexi Personnel after June 2023.
24Further, the plaintiff relied upon the fact that the defendant produced an affidavit of Ms Kiosses after June 2023. It was said that it was not apparent that the plaintiff would not meet the 40% threshold even though he was working.
25The defendant’s submissions were set out in its written outline. In summary, the defendant submitted that the plaintiff’s failure to accept the PSO was not reasonable as there was no medical or other evidence on 22 June 2023 which supported the assertion that the plaintiff had suffered the loss of earning capacity. Further, it was submitted the plaintiff’s work capacity had not changed since 23 June 2023. Accordingly, the defendant’s primary position was that the Court should not certify counsel’s fees as claimed.
26The defendant’s alternative argument regarding the certification of counsel’s fees incurred on 23 November 2023 falls away given the analysis set out below.
Analysis
27It was not an issue in this case that the LCO is a subordinate instrument and its proper interpretation must be one that will promote the purpose or object underline the enabling legislation.
28Accordingly the Court has regard to one of the purposes of the legislation which is to ensure that costs associated with litigated Serious Injury applications remain reasonable.
29In the cases referred to above, the Court has made it clear that the policy which underlines the LCO, and Notices served pursuant to it, is to manage legal costs and encourage resolution of disputes.
30In Dowling’s case, Judge Coish stated that when the plaintiff received the PSO notice it was incumbent on the plaintiff and her lawyers to carefully consider the notice and her application in respect of loss of earning capacity.[9]
[9] [2018] VCC 2314 at [22].
31Judge Coish further agreed with the submission made on behalf of the defendant that had the plaintiff and her lawyers undertaken a thorough analysis of the plaintiff’s case, they must have appreciated that the plaintiff faced a significant risk of losing the claim with respect to loss of earning capacity.[10]
[10] Ibid at [23].
32In this case at the time the PSO Notice was open for acceptance, the plaintiff’s medical evidence in relation to work capacity was non-existent. This is not a situation where there was medical support for the plaintiff having no work capacity or a limited work capacity.
33I do not accept the proposition that the plaintiff’s failure to accept the PSO Notice was reasonable.
34Consequently, in the exercise of my discretion I decline to certify the plaintiff’s counsel’s fees.
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