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:

1. 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. 

1. 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.

1. 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.

1. 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].

1. 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 in the order of taxed costs;

(b)taxed costs from or up to a stage of the proceeding specified in the order;

(c)       a gross sum specified in the order instead of taxed costs;

(d)a sum in respect of costs to be determined in such manner as the Court directs.

1. Rule 63.82(1) makes provision with respect to hearing and trial fees of counsel and provides:

(1)Subject to the provisions of any applicable scale, the fees payable to counsel to appear at a hearing or trial shall be at the discretion of the Costs Court which may fix such fees -

(a)       on the basis of daily fees;

(b)as a lump sum fee covering the whole of the hearing or trial; or

(c)       on such other basis as the Costs Court considers appropriate.

1. Item 19 of Appendix A to Chapter I of the Supreme Court (General Civil Procedure) Rules 2005 (‘Appendix A’) provides for counsel’s fees to be allowed up to a maximum of:

(a)Senior counsel: $8,094 (excluding GST), which equates to $8,903.40 (including GST).

(b)Junior counsel: $5,396 (excluding GST), which equates to $5,935.60 (including GST).

1. Item 19(j) of Appendix A provides that, in allowing the fee to counsel, regard should be had to:

(a)        the criteria set out in item 17, which are as follows:

(i)      the complexity of the matter;

(ii)     the difficulty or novelty of the questions involved in the matter;

(iii)    the skill, specialised knowledge and responsibility involved and the time and labour expended by the legal practitioner;

(iv)    the number and importance of the documents prepared and perused, regardless of length;

(v)     the amount or value of money or property involved;

(vi)    research and consideration of questions of law and fact;

(vii)   the general care and conduct of the legal practitioner, having regard to the instructions and all relevant circumstances;

(viii)    the time within which the work was required to be done;

(ix)    allowances otherwise made in accordance with this Scale (including allowances for attendances in accordance with item 1);

(x)     any other relevant matter.

(b)        the other fees and allowances to counsel in the matter; 

(c)        payments made for interlocutory work where that work has reduced the work which would otherwise have been necessary in relation to the brief;  and

(d)       the standing of counsel.

1. Item 19(k) provides that ‘where costs are taxed pursuant to order of the Supreme Court, Counsel’s fees in excess of scale are not to be allowed unless the Supreme Court otherwise orders…’[2]

   [2]Supreme Court (General Civil Procedure) Rules 2005 app A item 19(k).

Should the brief fees for counsel be fixed?

1. In Titcher v Marcelis,[3] I considered the question of whether the Court should accede to applications to certify counsel’s fees.  After considering the authorities, I concluded that it would often be appropriate for a trial judge to do so.[4]  For the same reasons, I consider it appropriate in this case.

   [3][2015] VSC 578.

   [4]Ibid [12]–[16].

The assessment of counsel fees

1. Mr Monti QC, counsel for the plaintiff, in support of his submission, explained the circumstances of this case.  In summary, the plaintiff was driving a motor vehicle when it was involved in an accident caused by the defendant’s motor vehicle crossing onto the incorrect side of the road.  The circumstances were particularly tragic involving the death of the plaintiff’s father and injuries to her mother, who were passengers in the vehicle. Liability was admitted but the plaintiff suffered multiple injuries including a very serious psychological injury.  She claimed substantial damages for pain and suffering but she ultimately made no claim for loss of earnings or loss of earning capacity.

1. Although the trial would have been an assessment, I have no doubt that counsel would have had to apply considerable care and skill in assessing the plaintiff’s claim for pain and suffering; and in advising the plaintiff about a proposed compromise.  Overall, I would consider the claim to involve below average complexity for a personal injury claim in this Court.

1. I have had regard to a number of prior cases where counsel’s fees have been fixed and, in particular, to the following:

(a)   In Skinner v Gattuso Transport Pty Ltd,[5] a matter that settled during trial in November 2014, Rush J certified two counsel, with a daily figure for senior counsel of $7,700 plus a circuit fee of $533 with junior counsel at 50 per cent plus the circuit fee.

(b)   In Jackson v Escorted Outback Tours Pty Ltd,[6] a matter that settled after three days of trial in September 2015 in Ballarat, McDonald J certified fees for senior counsel at $8,800 inclusive of circuit fees with junior counsel at 50 per cent inclusive of circuit fees.

[5](Unreported, Supreme Court of Victoria, Rush J, 6 November 2014).  

[6](Unreported, Supreme Court of Victoria, McDonald J, 25 September 2015).

1. Having regard to the above matters and the maximum allowance under Appendix A, I propose to fix the fees (inclusive of GST) as follows:

(a)       Brief fee of $7,150.

(b)      Three hours of conferences fixed at $715 per hour.

(c)I do not propose to fix fees for preparation given that the defendant had applied for the matter to be adjourned; and I had indicated at the callover that the matter would not be brought on for trial prior to 4 November 2015.  However, I am not disallowing counsels’ fees for preparation but I consider that in the circumstances of this case the Costs Court would be in a better position to assess whether such fee was reasonably incurred.

(d)Junior counsel’s fees will be allowed at 50 per cent of fees allowed to senior counsel.

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