Bassett v Woolworths Limited (Ruling)

[2012] VCC 1855

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No.  CI-11-04946

CAROLYN BASSETT	Plaintiff
v
WOOLWORTHS LIMITED	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2012
DATE OF RULING:	27 November 2012
CASE MAY BE CITED AS:	Bassett v Woolworths Limited (Ruling)
MEDIUM NEUTRAL CITATION:	[2012] VCC 1855

RULING
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SUBJECT:  COSTS            
CATCHWORDS: Application for certification to counsel and fixing of counsels’ fees –  whether that should be left to the Costs Court

LEGISLATION CITED: Accident Compensation Act 1985; WorkCover (Litigated Claims) Costs Order 2010 and Supreme Court Act 1986

RULING:  Application refused.                

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell SC with Ms Pilipasidis	Maurice Blackburn Lawyers
For the Defendant	Mr I Gourlay	Gadens Lawyers

HIS HONOUR:

Introduction

1 The plaintiff commenced a proceeding by Originating Motion seeking leave of the Court to bring a proceeding pursuant to s134AB of the Accident Compensation Act 1985.

2       Mr Mighell SC appeared with Ms Pilipasidis of Counsel for the plaintiff.  Mr Gourlay of Counsel appeared for the defendant.

3       The proceeding was listed for trial before me.  It settled.  I was informed by Mr Mighell that the defendant conceded serious injury for both pain and suffering and loss of earning capacity.

4       Mr Mighell applied for a certificate for two counsel.  He submitted that I was in a better position than the Costs Court to determine whether it was appropriate for the plaintiff to retain two counsel, and to measure the complexity of the proceeding to determine whether fees ought to be fixed at a particular level.

5       Both Mr Mighell and Mr Gourlay informed me that the WorkCover (Litigated Claims) Costs Order 2010 specifies the costs and disbursements payable by the defendant to a legal practitioner acting on behalf of a claimant.  However, it does not affect the discretion of the Court to certify counsels’ fees and fix them at a particular level.

The Application for Costs

6       Mr Mighell informed me that the Costs Court has now dealt with a number of proceedings in which two counsel were retained.  In some, fees for two counsel were denied, and in others, fees for two counsel were reduced below what was previously fixed by judges of this Court.

7       Mr Mighell and Ms Pilipasidis provided me with a short written submission dated 23 November 2012 to which were attached decisions of three determinations of Costs Registrars.  In the matter of Boserra a Costs Registrar delivered a ruling in writing, dated 1 August 2012, allowing a fee for senior counsel only.  In the matter of Hazdic, a Costs Registrar delivered a ruling in writing, dated 9 November 2012, allowing a fee for junior counsel only.  In the matter of Curran, a Costs Registrar delivered a ruling in writing, dated 16 November 2012, allowing fees for two counsel. 

8       Mr Mighell and Ms Pilipasidis submitted that the because of the delay in the Costs Court dealing with the costs and what was said to be the uncertainty and inconsistency in the rulings of the Costs Court, that I should deal with the matter myself.

9 Division 2B of the Supreme Court Act 1986 established the Costs Court. It has jurisdiction to hear and determine the assessment, settling, taxation or review of costs in proceedings in the County Court: s17B.

10      My usual practice is to order that a costs order be assessed by the Costs Court, save in exceptional circumstances where it makes good sense to depart from that practice.  My own enquiries reveal that my practice is consonant with the practice of other judges in this Court.

11      The question raised by this application is whether I should depart from my usual practice.  The fact that the Costs Court determines whether fees should be certified for two counsel, and what those fees should be, is a matter to be determined by the Costs Court in accordance with practices developed by the Costs Court.

12      I am conscious that this ruling may be used more broadly by the profession if further applications are made of this kind for a judge of this Court to certify for two counsel and fix counsels’ fees.  This ruling should not be looked at in that way.  Indeed, I considered making no ruling at all, but given the nature of the application, I took a cautious approach, deciding to give consideration to it.

Orders

13      I propose to make orders for costs in favour of the plaintiff in the form attached to this ruling.

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