Burgess v Marcelis - [2015] VSC 588

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2014 01727

CLARE ROSEMARY BURGESS	Plaintiff
v
MICHIEL MARCELIS	Defendant

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 OCTOBER 2015
DATE OF JUDGMENT:	21 OCTOBER 2015
CASE MAY BE CITED AS:	BURGESS v MARCELIS
MEDIUM NEUTRAL CITATION:	[2015] VSC 588

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COSTS – Personal injury litigation – Fixing of counsel’s fees – Fees payable for trial under r 63.82 of the Supreme Court (General Civil Procedure) Rules 2005 – Discretion under r 63.07 – Liability admitted – Claim for pain and suffering only – Order fixing counsels’ fees made.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Monti QC	Nevin Lenne Gross
For the Defendant	Ms B de Brouwer	DLA Piper

HIS HONOUR:

This proceeding was brought by the plaintiff claiming damages for personal injuries arising out of a motor vehicle accident on 13 March 2011. The trial was listed at the Wangaratta sitting of the Supreme Court commencing on 19 October 2015.

The claim was settled at a mediation on 13 October 2015 and, accordingly, when the matter came back before me on 14 October 2015, orders were sought by consent that the plaintiff have leave to file an amended statement of claim (deleting any claim for loss of earnings or loss of earning capacity), the proceeding be dismissed and the defendant pay the plaintiff’s costs. The residual issue to be resolved is that the plaintiff sought that counsels’ fees be determined by this Court as follows:

(a)       Brief fee for senior counsel at $8,800 (inclusive of GST);
(b)      Three hours of conferences at $880 per hour (inclusive of GST);
(c)       One day’s preparation at $8,800 (inclusive of GST);
(d)      Junior counsel’s fees fixed at 50 per cent of the above.

The defendant submitted that counsels’ fees should be taxed by the Costs Court and made no submissions as to the amounts that should be allowed if I propose to fix the fees.

The fixing of counsels’ fees by the Court is commonly referred to as “certification” and there is no question that it is within the discretion of the Court to determine the amount that a party shall be entitled to recover with respect to counsels’ fees.[1]
[1]Henwood v Nansor Australia Pty Ltd [2013] VSC 655 [9]-[12]; Wadley v Ron Finemore Bulk Haulage (No 3) [2013] VSC 181 [3].

The relevant rule is r 63.07 of the Supreme Court (General Civil Procedure) Rules 2005 which provides as follows:

(1)Subject to this Order, where by or under these Rules or any order of the Court costs are to be paid to a party, that party shall be entitled to taxed costs.
(2)Where the Court orders that costs be paid to a party, the Court may then or thereafter order that as to the whole or any part of the costs specified in the order, instead of taxed costs, that party shall be entitled to –
(a) a portion specified…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burgess v Marcelis

Details

AGLC: Burgess v Marcelis [2015] VSC 588
Case: [2015] VSC 588
Decision Date: 21 OCTOBER 2015

CaseChat Overview and Summary

Burgess v Marcelis was a case heard in the Supreme Court of Victoria where the plaintiff, Burgess, sought to recover personal injury damages from Marcelis. The dispute centred on the appropriate amount of legal fees to be awarded to Burgess's counsel under rule 63.82 of the Supreme Court (General Civil Procedure) Rules 2005. The matter was resolved after Marcelis admitted liability, leaving only the quantum of damages for pain and suffering to be determined.

The court was required to decide the appropriate exercise of its discretion under rule 63.07 to fix counsel's fees. This involved considering the nature of the dispute, the complexity of the case, and the role of counsel in achieving a resolution. The court also needed to determine the fee structure, given that the case was resolved at a relatively early stage and only involved a claim for pain and suffering, which is typically associated with a lower quantum of damages.

The Supreme Court examined the specific circumstances of the case, including the fact that liability had been admitted, which reduced the complexity and potential duration of the trial. The court also considered the work undertaken by counsel, the skill and expertise required, and the overall efficiency with which the case was managed. Ultimately, the court exercised its discretion to fix the counsel's fees at a level that reflected the nature of the work done and the early resolution of the case. The court found that the fees were reasonable and just under the circumstances.

The final orders included an award of damages for pain and suffering, along with an order fixing counsel's fees at the determined amount. The court's decision provided clarity on the appropriate application of rule 63.82 and the exercise of discretion under rule 63.07 in personal injury litigation where liability has been admitted early in the proceedings.

Orders