Bedggood v Ballarat Health Services and Anor (Ruling)
[2017] VCC 1066
•10 August 2017
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-04960
| LYNNETTE MARIE BEDGGOOD | Plaintiff |
| v | |
| BALLARAT HEALTH SERVICES (ABN 39 089 584 391) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 31 July 2017 | |
DATE OF RULING: | 10 August 2017 | |
CASE MAY BE CITED AS: | Bedggood v Ballarat Health Services & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1066 | |
RULING
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Subject: COSTS
Catchwords: Costs of counsel – counsel fees incurred more than twenty-eight days prior to day one of the hearing – whether Part C of the WorkCover (Litigated Claims) Legal Costs Order 2016 applies
Legislation Cited: Accident Compensation Act 1985; Transport Accident and Accident Compensation Legislation Amendment Act 2010; Legal Profession Uniform Law Application Act 2014; Workplace Injury Rehabilitation and Compensation Act 2013; Civil Procedure Act 2010; Supreme Court Act 1986; County Court Act 1958; Accident Compensation (Common Law and Benefits) Act 2000; County Court Civil Procedure Rules 2008
Ruling: Application for costs dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Seccull QC with Mr K Mueller | Saines & Partners Pty Ltd |
| For the Defendants | Mr B Waites (Solicitor) | IDP Lawyers |
HIS HONOUR:
1 This Ruling concerns whether the defendants have a liability to pay certain counsels’ fees following the resolution of a Serious Injury Application.
Background facts
2 Those acting on behalf of the plaintiff rely on an affidavit in support sworn by Ian William Vinson on 27 June 2017. Various exhibits accompany the affidavit in support.
3 Those acting on behalf of the defendants rely on an affidavit in support sworn by Howard Peter Gouldthorpe on 28 July 2017. Various exhibits accompany such affidavit.
4 On the basis of such affidavit material, there is no dispute in relation to the following matters:
(a)On 1 July 2016, the solicitors acting on behalf of the plaintiff served on the Victorian WorkCover Authority a Form A application dated 3 June 2016, together with a variety of other documents, and by so doing, made an application under s134AB of the Accident Compensation Act 1985, as amended (“the Act”). Such application sought leave to bring common law proceedings for both pain and suffering damages and pecuniary loss damages within the meaning of s134AB of the Act;
(b)The application was listed for hearing in the sittings at Ballarat which ran from 24 April 2017 to 12 May 2017 (“the last sitting”);
(c)Prior to the last sitting, Mr T Seccull QC and Mr K Mueller of counsel received briefs to appear for the plaintiff on the application at the last sitting and, subsequently, if not reached;
(d)Prior to the last sitting, Junior Counsel was briefed to confer with the husband and the plaintiff and subsequently, drew an affidavit to be sworn by the husband of the plaintiff and a further affidavit to be sworn by the plaintiff. Such affidavits were served on the defendants on or about 11 April 2017. I was also informed from the Bar table that Senior and Junior Counsel conferred with the plaintiff prior to the last sitting in preparation of the matter being reached during that circuit;
(e)The most recent report obtained on behalf of the plaintiff was a report from Mr Andrew Byrne, orthopaedic surgeon, dated 16 March 2017 which was also served on the defendants on 11 April 2017. The most recent report obtained on behalf of the defendants, the report of Mr Phillip Sharp, dated 20 April 2017, was served on the solicitor for the plaintiff on 21 April 2017;
(f)The application for leave to proceed was ready to commence in the last sitting but was not reached. The application was adjourned to the next Ballarat sitting commencing on 31 July 2017;
(g)No further material was served on behalf of the plaintiff on the defendants after 11 April 2017;
(h)On 7 June 2017, the solicitors for the defendants served on the solicitor for the plaintiff a Serious Injury Certificate certifying that the plaintiff had suffered a “serious injury” within the meaning of s134AB(38)(b)(i) and (ii) of the Act and that leave was given to bring proceedings for the recovery of pain and suffering damages and pecuniary loss damages;
(i)On 9 June 2017, the solicitor for the plaintiff forwarded to the solicitors for the defendants, a copy of proposed orders, including the costs of counsel briefed since before the last sitting. Such proposed orders read:
“1.The hearing listed for the Ballarat Sitting commencing 31 July 2017 be vacated.
2.The defendants pay the plaintiff’s costs of the proceeding pursuant to the WorkCover (Litigated Claims) Legal Costs Order 2010 such cost to be determined in default of agreement by the Costs Court.
CERTIFICATION
(i)for two Counsel;
(ii)the Senior Counsel’s brief fee fixed in the sum of $6,000.00;
(iii)for Junior Counsel’s brief fee fixed in the sum of $3,000.00;
(iv)for two hours conference by each Counsel at the rate of $600.00 per hour for Senior Counsel and at the rate of $300.00 per hour for Junior Counsel;
3. The proceeding to be otherwise dismissed.”
(g)On 13 June 2017, the solicitor for the defendants wrote to the solicitor for the plaintiff asserting that there was no entitlement to counsels’ fees and in turn attached Proposed Minutes of Consent Orders. Such proposed orders were in the same terms as those sent by the solicitor for the plaintiff, save there was no provision for counsels’ fees.
5 In his affidavit, the solicitor for the defendants deposes, in part:
“7. Section 4 Part B Clause 5 of the Litigated Costs Order (Clause 4 in the 2010 Order) provides that a worker or worker’s legal practitioner shall be entitled to be paid as a disbursement the cost of counsel’s fees ‘incurred not more than 28 days prior to day 1 of the hearing’. Day 1 of hearing is defined in Clause 3 of the said order to be when a matter is next listed to be heard when a case is not reached. Now produced and shown to me and marked ‘HPG3’ is a true copy of the WorkCover (Litigated Claims) Legal Costs Order 2016.
8. In all the circumstances it is respectfully submitted that the plaintiff is not entitled to an order for payment of counsels’ fees given that they were incurred more than 28 days prior to the hearing on 31 July 2017 following the resolution of this proceeding on 7 June 2017.”
Relevant legal principles
6 Section 134AG of the Act, inserted by the Accident Compensation (Common Law and Benefits) Act 2000 (No. 26/200) provides that the Governor in Council may by “Order in Council make a legal costs order”. The section states, relevantly:
“(1) The Governor in Council may by Order in Council make a legal costs order—
(a) specifying the legal costs that may be paid by the Authority or self-insurer by a legal practitioner acting on behalf of a worker in respect of any claim, application or proceedings under section 134AB, 135, 135A or 135B; and
(b) prescribing or specifying any matter or thing required to give effect to the legal costs order.
(2) A legal costs order—
(a) must be published in the Government Gazette;
(b) takes effect on and from the date on which it is published or any later date of commencement as may be specified in the order;
(c) applies to legal costs incurred on or after the date of commencement of the order.
(3) A legal costs order may—
(a) apply generally or be limited in its application by reference to classes of proceedings, costs, circumstances or factors;
(b) apply differently according to different circumstances or factors of a specified kind;
(c) specify different methods of calculation whether by reference to formulas, scales, tables or other means;
(d)apply, adopt or incorporate (with or without modification) the method whether as formulated, issued, prescribed or published at the time the order is made;
(e)authorise any specified person or body to determine or apply a specified matter or thing.
(4) Section 134AB(29), 135A(13B) or 135B(7) does not apply in proceedings to which a legal costs order applies.
(5) This section and any legal costs order made under this section has full force and effect notwithstanding anything to the contrary in the Legal Profession Act 2014, the Supreme Court Act 1986 or the County Court Act 1958 or the Civil Procedure Act 2010 or in any regulation, rules, order or other document made under any of those Acts.
(6) Legal costs in respect of any claim, application or proceeding referred to in subsection (1)(a) cannot be recovered from the Authority or self-insurer except in accordance with an order under this section.”
7 By way of the Transport Accident and Accident Compensation Legislation Amendment Act 2010 (Act 80/2010), s134AFA and s134AGA were inserted into the Act. Section 134AFA states:
“A legal practitioner acting on behalf of a worker in respect of any claim, application or proceedings under section 134AB, 135, 135A or 135B is entitled to be paid legal costs, of a kind specified in a legal costs order made under section 134AG or 134AGA from the Authority or self-insurer.".
8 Section 134AGA states:
“(1)Subject to subsection (2), the Governor in Council may by Order in Council make a litigated claims legal costs order—
(a)specifying the legal costs that may be recovered from the Authority or self-insurer by a legal practitioner acting on behalf of a worker in respect of any claim, application or proceedings under or in accordance with section 134AB, 135, 135A or 135B; and
(b)prescribing or specifying any matter or thing required to give effect to the legal costs order including procedures for resolving any dispute that arises in relation to the costs payable under the order.
(2)…
(3)A litigated claims legal costs order—
(a)must be published in the Government Gazette;
(b)takes effect on and from the date on which it is published or any later date of commencement as may be specified in the order;
(c)applies to legal costs incurred on or after the date of commencement of the order;
(d)in the case of—
(i)the first litigated legal costs order to be made under subsection (1) after the commencement of section 99 of the Transport Accident and Accident Compensation Legislation Amendment Act 2010, must be reviewed by the Minister within 2 years of the commencement of the litigated legal costs order;
(ii)each subsequent litigated legal costs order made under subsection (1) after the litigated legal costs order specified in subparagraph (i) is made, must be reviewed by the Minister 3 years after commencement of each subsequent litigated legal costs order.
(4)Section 134AB(29), 135A(13B) or 135B(7) does not apply in proceedings to which a litigated claims legal costs order under subsection (1) applies.
(5)A litigated legal costs order under subsection (1) may provide for the amounts of costs specified in the order to be indexed in accordance with the all groups consumer price index for Melbourne as published by the Australian statistician.
(6)If a litigated claims legal costs order under subsection (1) is in force, legal costs in respect of any claim, application or proceeding referred to in subsection (1) to which the order applies cannot be recovered except in accordance with the order.”
9 The first WorkCover (Litigated Claims) Legal Costs Order 2010 (dealing with workers) began operating on 28 October 2010 and applied to proceedings by a worker under s134AB(16)(b) of the Act seeking leave to bring common law proceedings for damages for pain and suffering and or loss of earning capacity pursuant to s134AB(38)(i) and (ii) of the Act.
10 Given that the subject application was made on 1 July 2016, the WorkCover (Litigated Claims) Legal Costs Order 2016 is applicable (“the 2016 Order”). In his submissions, Senior Counsel for the plaintiff based his submissions on the WorkCover (Litigated Claims) Legal Costs Order 2016. I consider that for the purposes of this application, there are no material differences between the Costs orders made in 2010 (as referred to by the plaintiff’s solicitor) and the 2016 Order.
11 Paragraph 2 of the 2016 Order provides that such Order shall apply to proceedings issued by a worker, inter alia, in accordance with s134AB(16)(b) of the Act where that application was made on or after 1 July 2016 pursuant to s134AGA of the Act.
12 The 2016 Order specifies the professional costs that may be paid by the Authority or a self-insurer to a legal practitioner acting on behalf of a worker and the disbursements that may be paid to a worker or a legal practitioner acting on behalf of a worker in respect of any claim, or proceedings pursuant to, inter alia, s134AB(16)(b) of the Act.
13 The 2016 Order also provides that the entitlement to professional costs and disbursements under the Order replaces any other entitlement of a worker or a legal practitioner to be awarded legal practitioners’ professional costs and disbursements payable by the Authority or a self-insurer for and incidental to a proceeding under s134AB(16)(b) of the Act and has “full force and effect” notwithstanding anything to the contrary in the Legal Profession Uniform Law Application Act 2014, the Supreme Court Act 1986 or the County Court Act 1958 or in any “regulation, rules, order or other document made under any of those Acts”.
14 Item 3 of the 2016 Order sets out a variety of definitions, including the definition “Day 1 of hearing”, which is said to mean:
“… the day on which the application for leave referred to in section 134AB(16)(b) of the AC Act … is listed to be heard before the Court. Where a hearing date lapses due to an adjournment or the case is not reached, ‘Day 1’ is the day when the application for leave referred to in section 134AB(16)(b) of the AC Act … is next listed to be heard before the Court.”
15 Item 4 consists of three parts: Parts A, B and C.
16 Part A sets out what a worker’s legal practitioner shall be entitled to be paid in relation to professional costs and the entitlement to be paid disbursements by reference to the time of resolution and type of serious injury certificate granted or awarded by a court.
17 Part B of item 4 provides that in addition to the sums specified in Part A of Item 4, the worker or worker’s legal practitioner shall be entitled to be paid as a disbursement, inter alia:
“5.The cost of counsel’s fees (including brief fee) incurred not more than 28 days prior to day 1 of the hearing. The counsel fees payable will be calculated in accordance with the Scale of Costs or any other sum which is agreed or ordered by the Court.”
18 Part C of Item 4 states:
“In respect of an item in Part B, if a dispute arises in relation to the allowance of an item claimed or the reasonable cost of the item, the County Court Rules of Civil Procedure will apply to the dispute resolution process.”
19 For completeness, I also refer to Item 5 of the 2016 Order, which provides that the Order will be varied in respect of any financial year beginning on 1 July 2016 pursuant to an indexation formula.
20 I also point out that s90 of Act No. 80 of 2010 also provided for the insertion of s134AGB which also is a Litigated Claims Legal Costs Order relevant to the Authority and self-insurers. Such Costs Order specifies the legal costs that may be recovered from a worker by a legal practitioner acting on behalf of the Authority or self-insurer in respect of any claim or proceeding under ss134AB, 135, 135A or 135B of the Act.
21 Senior Counsel for the plaintiff accepted that day 1 of the hearing, for the purposes of the Order, must be the first day of circuit – that is, 31 July 2017. He further accepted that the plain reading of Item 4 of Part B is that the fees incurred by him and his junior were more than 28 days prior to Day 1 of the hearing – that is to say, when the matter resolved on 7 June 2017.
22 However, Senior Counsel for the plaintiff submitted that Part C of the WorkCover (Litigated Claims) Legal Costs Order 2016 – properly construed - permits disputation to occur in relation to an allowance of an item contained in Part B – that is to say, counsels’ fees. In this respect, he submits that Part C should be construed widely rather than be limited to disputes about fees incurred only within the 28 days prior to day 1 of the hearing.
Conclusion
23 I reject the submission made by Senior Counsel for the plaintiff in relation to the construction that he contends for Part C of the Order. It is clear by the legislation that it is intended that a Legal Costs Order should be prescriptive of what costs are to be payable – in these circumstances – by the WorkCover Authority to the solicitors for the worker in a s134AB Application.
24 In particular, the opening words of Part C make it plain that any item where it is said that a dispute arises in relation to the allowance of the item claimed, or the reasonable costs of the item, must be an item in Part B. Part B sets out the various disbursements which a worker’s legal practitioner shall be “entitled” in addition to the sums specified in Part A. Such sums are to extend to counsel’s fees defined and limited by the terms of Item 5 of Part B.
25 Accordingly, when Part C refers to an item in Part B – in these circumstances – counsel’s fees – any disputation could only relate to the subject matter of Item 5 which is prescribed by the terms contained in Item 5.
26 In such circumstances, I consider that the general thrust of the legislation and in particular, the terms of the Order, make it clear that the disputation as contemplated in Part C only relates to items which are within Part B and, in particular, Item 5 of Part B. In this sense, disputation may relate to the amount of fees of counsel incurred within 28 days prior to day 1 of the hearing – for example the amount of the fees and or the number of conferences et cetera. In such circumstances, the County Court Civil Procedure Rules 2008 will apply to resolve such dispute.
27 I should add that there was no dispute, understandably, that counsel were briefed to appear on behalf of the worker and that due preparation had been undertaken in preparation of the hearing. Furthermore, there was no dispute that counsel were continuously retained to appear on the next hearing.
Some other comments
28 Although, clearly enough, the legislature has the power to determine what costs will be paid, there is always the risk that an unscrupulous defendant could choose not to resolve a matter during a circuit and allow the matter to be refixed for the next hearing and thereafter resolve the matter 28 days prior to the first day of the next circuit (and thus avoid paying counsels’ fees). Although one can appreciate that there might be a variety of circumstances why this would legitimately occur, it would always be expected that the Authority, consistent with its model litigant guidelines, would avoid any suggestion that a settlement be undertaken in such a way to minimise costs. I should quickly add that in no way was it put or inferred that the defendant had acted in an unscrupulous manner.
29 This issue was also highlighted when it was raised by the Court as to what would be the situation if there was ongoing discussions in relation to a particular matter which was not reached and refixed for hearing, say, on a Friday, being the last day of a circuit. Say within a few days after that date those discussions came to fruition and the matter was resolved. Clearly enough, such a resolution would presumably be outside the 28 days for the next first day of hearing. I was informed from the Bar table that this had occurred on one or two occasions and that the Authority had taken the view that costs would be payable as it was effectively a continuum of the circuit, notwithstanding the matter had been refixed. Such an approach, of course, is practical and sensible.
Orders
30 Accordingly, I dismiss the application for costs.
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