Bucic v Arnej Pty Ltd (No 3)

[2019] VSC 410

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2015 05539

MARIN BUCIC	Plaintiff
v
ARNEJ PTY LTD	Defendant

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2019
DATE OF RULING:	19 June 2019
CASE MAY BE CITED AS:	Bucic v Arnej Pty Ltd (No 3)
MEDIUM NEUTRAL CITATION:	[2019] VSC 410

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COSTS – Counsel’s fees – Certification – Expertise of the Costs Court – Need for consistency in like cases – Counsels’ fees to be determined by Costs Court and taxed in default of agreement.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J B Richards QC with Mr D Dealehr	Carbone Lawyers
For the Defendant	Mr S A Smith SC	Moray & Agnew

HER HONOUR:

1. This ruling needs to be read in conjunction with my reasons in Bucic v Arnej Pty Ltd (No 2).[1] In that ruling I addressed the issue of costs, save for the plaintiff’s application for certification of counsels’ fees. This ruling concerns only a question of certification of counsels’ fees.

   [1][2019] VSC 394.

1. The plaintiff sought certification of senior counsel’s fees at $9,900 per day and junior counsel’s fee at 50 per cent thereof. It was submitted that certification in the above amounts be allowed for 18 days, which included three days preparation and half a day conferencing. It was submitted that the matter was of sufficient complexity to warrant certification at the upper level and the number of days sought.

1. The defendant submitted that the Court should certify for 16 days in total, which included one day for preparation and half a day for conferencing. The defendant further submitted that an appropriate allowance was $8,800 per day for senior counsel’s fees and junior counsel’s fee at 50 per cent thereof.

1. I refer to the decision of Macaulay J in Henwood v Nansor Australia Pty Ltd (costs ruling).[2] I adopt his Honour’s summary of the principles set out at paragraphs [13]–[16]. Unlike in that case, in the present case, neither party has sought an order that the taxation of costs be determined by the Costs Court in default of agreement. The sole issue is as to the certification of counsel’s fees.

   [2][2013] VSC 655 (‘Henwood’).

1. In my opinion, the associate judges in the Costs Court are in a better position to determine whether the amount claimed is excessive, or whether it falls within the usual ‘market’ of counsel’s fees for a matter of this kind. As Macaulay J said in Henwood: ‘individual judges, by reason of their past experience as counsel in a particular field, their continuing involvement with the profession, and the period of time since they practised as counsel, will have greater or lesser degrees of knowledge of what is a fair and reasonable fee in a particular practice area.’[3]

   [3]Ibid [18]. See footnote 14.

1. I do not consider that I am best placed to determine the issue of certification. There is benefit to the profession at large for there to be some guidance from the Costs Court in relation to a matter such as this one. All issues were in dispute and the plaintiff was required to call numerous witnesses, including medico-legal experts, to make good his proofs.

1. It was a relatively complex matter which required, for example, an assessment of damages in the context of pre-existing injuries and what, if any, reduction should be made. The principal judgment ran for over one hundred pages and, in particular, contained a detailed analysis of the medical evidence. I should add that, in my view, it was a matter in which it was appropriate for both senior and junior counsel to be briefed. It was not disputed that each counsel is entitled to fees.

1. I will make an order that counsels’ fees be determined by the Costs Court and taxed in default of agreement.