Carney v Australian Super Pty Ltd
[2010] VCC 726
•23 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-07-03594
| PATRICK KEVIN CARNEY | Plaintiff |
| (AS EXECUTOR OF THE ESTATE OF VERONICA CARNEY) | |
| v | |
| AUSTRALIAN SUPER PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 June 2010 |
| DATE OF RULING: | 23 June 2010 |
| CASE MAY BE CITED AS: | Carney v Australian Super Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0726 |
| RULING AS TO COSTS |
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Catchwords: Total and permanent disablement – superannuation insurance policy – plaintiff successful – limited quantum of claim – complex and technical matter with claim persisting over many years – proceeding without oral evidence – costs in favour of plaintiff – whether prudent solicitor would have engaged two counsel – limited appearance at hearing by senior counsel – whether appropriate to certify for two counsel – whether any amount should be allowed for input of senior counsel – discretion to be exercised – factors to be considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird | Maddens Lawyers |
| For the Defendant | Ms P Neskovcin | Holding Redlich |
| HIS HONOUR: |
General background
1 I have previously ruled in this matter. Only the issue of costs remains to be determined. This action has a long and complicated background, and I would refer to my judgment of 10 June 2010. In essence, this claim which dates back to 1994, but which effectively lay dormant for a period in excess of ten years, was one in which the plaintiff, suing as executor of his late wife’s estate, was successful in establishing that she satisfied the required definition of total and permanent disablement set out in the relevant trust deed and insurance policy.
2 A dispute has now arisen in relation to certain issues as to costs. Those issues revolve around counsel’s fees. In particular, they centre upon whether or not I should certify for two counsel, with particular attention as to whether or not the matter warranted the retention of same and also as to the ostensibly limited input of senior counsel into the conduct of the hearing. A further argument centred upon the question of whether hours of special conferences should be included in, or be additional to, junior counsel’s fees.
Ruling 3
As I stated from the Bench, the circumstances of this particular case are somewhat singular. It is a claim which commenced in excess of 15 years ago. The defendant always denied the proposition that Mrs Carney fell within the definition of total and permanent disablement. The matter came on before His Honour Judge Robertson in September 2008. At that time both Mr Brookes SC and Mr Bird had been retained by the plaintiff. The matter was opened by Mr Brookes, but, following some discussion, was adjourned. Certain difficulties in proving the plaintiff’s case were foreshadowed, and those on behalf of the plaintiff accepted the opportunity to assemble further evidence. I might add that, in my opinion, this turned out to be a particularly prudent course to follow. The material subsequently gathered from lay witnesses and from Dr Hall was, in my opinion, evidence of a nature that was of great assistance to the plaintiff. The discussion before His Honour, and the work that was subsequently undertaken by those on behalf of the plaintiff, seems to me to have been of signal importance. I also accept that there was a substantial amount of work to be done in this regard.
4
I appreciate that two counsel had been retained prior to the hearing before His Honour. Whether or not a prudent solicitor would, prior to the discussion before His Honour, have retained two counsel may be debatable. I appreciate that the quantum of the claim was limited, but it had a long and chequered history, albeit that nothing, if anything, had occurred during a ten year period.
5
In addition, these are quite complicated and technical matters at the best of times, and this particular matter was even more involved. However, leaving that to one side, it seems to me that a solicitor acting reasonably and prudently would have retained two counsel in order to prepare the matter in the light of the deficiencies revealed in the discussion before His Honour Judge Robertson. In relation to the appropriate time at which the decision to retain counsel should be considered, I would refer to the decisions in cases such as Oldaker v Currington [1987] VR 712 and Peile v Nobel (Australasia) Pty Ltd [1966] VR 433. Those decisions also contain a warning to be on guard against hindsight, and reference in that regard is also made in the decision of the High Court of Australia in Stanley v Philips (1996) 115 CLR 470.
6
It is difficult for me to say with any confidence that a prudent solicitor would have engaged two counsel prior to the hearing before Judge Robertson. The case was capped to a figure of $30,000 together with interest and, at that time, the amount of evidence by way of witness statements and medical reports was more limited.
7
Following the hearing before Judge Robertson, there was a considerable amount of work to be done. The matter, already quite technical and complex, became considerably more complicated. It seems to me that, at this point in time, the plaintiff’s advisors might reasonably have regarded the engagement of two counsel, and particularly of senior counsel, as being necessary for the adequate presentation and preparation of the case. As I observed in the costs ruling in Kawka v Australian Super Pty Ltd (delivered 23 March 2010), this area of law is technical and intricate. Quantum of the claim is far from being the sole determinant.
8
However, when the matter ultimately came on before me, and after considerably more material had been gathered, the case was in fact opened and the plaintiff’s primary submissions made by Mr Bird. Mr Brookes was not present. That remained the situation throughout the first day of the hearing. Mr Bird concluded his submissions, and Ms Neskovcin, on behalf of the defendant, made very considerable inroads into hers.
9
Mr Brookes in fact did not appear until the following, and final, day. Whilst he made some brief preliminary observations upon the recommencement of the case and before Ms Neskovcin had concluded her submissions, in essence the role of Mr Brookes was confined to a reply which, whilst of considerable assistance, occupies nine pages of transcript out of a total of 138. By no means is that meant to be a criticism of Mr Brookes or to be seen in any way as an attempt to minimise his contribution to the case, or to downplay its significance. The fact of the matter is that he was simply unable to be present on the first day of the hearing, so that the submissions on behalf of the plaintiff were presented by Mr Bird. Indeed, Mr Brookes’ involvement was not anticipated.
10
In such circumstances, it seems to me that it is difficult for the plaintiff to establish entitlement to a certificate for the appearance of two counsel, one of them being senior counsel, at the hearing. There was no attempt to postpone the commencement of the matter pending the arrival of Mr Brookes. There was no attempt to obtain a substitute senior counsel. Mr Bird, on behalf of the plaintiff and doubtless on instructions, opted to commence and present the case. At the time of so doing, it may well have been expected that the matter would finish within the day. Indeed, referring to Mr Brookes, Mr Bird stated that: “ … it’s unlikely, Your Honour, that he will be involved” – see T 1. Mr Bird did not see it as being a lengthy matter. He, and those instructing him, clearly did not regard the actual hearing as necessitating the appearance of two counsel.
11
In those circumstances, I am not prepared to certify for two counsel in respect of the actual hearing conducted before me. For the reasons stated above, I am prepared to certify for two counsel, one of them being senior counsel, for the work performed between 3 September 2008 (the date of the hearing and adjournment before His Honour Judge Robertson) and 17 May 2010 (being the date of the commencement of the hearing before me). My reference to such work is intended to include advices, conferring, preparation of witness statements, general preparation and the like. There is nothing before me to indicate what work was actually performed by counsel, and particularly by Mr Brookes. No fees have been suggested in this regard. Accordingly, I can do no more that certify in general fashion for the work done by two counsel between the dates specified, and, if agreement cannot be reached in this regard, refer the matter for taxation by the Costs Court.
12
One other aspect of the proposed costs orders was in dispute. Mr Bird asked me to certify for 4 hours of special conferences conducted by him, at the rate of $300 per hour. Ms Neskovcin argued that this amount should be included in his normal brief fee. Because of the nature of this matter, I am of the view that it is reasonable to certify for that number of hours of special conferences. There was a large number of witnesses to be interviewed. With the original claimant, who would doubtless have been the principal witness, unfortunately dead, the assembling of the necessary evidence and the conferring in this regard would have been more complicated and demanding than might otherwise have been the case. The material to be presented in order to remedy the apparent deficiencies in the case would have to have been identified and set out with some precision. All in all, it seems to me reasonable that I certify for 4 hours of special conferences.
13
I might add that, if Mr Brookes also participated in such conferring and it occurred prior to the commencement of the case (and I note that Mr Bird sought a similar order in respect of Mr Brookes in respect of conferring), I am of the view that it would also be reasonable to certify for special conferences in which Mr Brookes was involved. Again, that will be a matter of fact to be determined, but I am prepared to say certify at the rate of $600 per hour for Mr Brookes.
14 Accordingly, the costs orders which I make are as follows:
(i)
The defendant pay the plaintiff’s costs to be taxed on County Court scale “C” to be taxed in default of agreement, such costs to include reserved costs save for those reserved upon adjournment by His Honour Judge Robertson on 3 September 2008 in respect of which adjournment there will be no order as to costs.
(ii)
Certify for two counsel, including senior counsel, in respect of work done between 3 September 2008 and 17 May 2010, the quantum of such to be taxed in default of agreement.
(iii)
Mr Bird’s fee on brief for hearing fixed in the sum of $3,000 together with a certificate for one refresher fixed in the sum of $2,000.
(iv)
A certificate for Mr Bird for four hours special conferences at $300 per hour.
(v)
A certificate for Mr Brookes for special conferences at the rate of $600 per hour for such hours of conferencing as occurred between 3 September 2008 and 17 May 2010 but not in any event to exceed four hours.
(vi)
For fee on brief for Mr Bird to appear to hear judgment fixed in the sum of $500.
15
It should again be said that the quantum of Mr Bird’s fees was not in dispute save for the issue of whether the hours of special conferencing should be included as part of the brief fee to appear.
16
In addition to the costs orders, I also repeat the following orders concerning which there is no dispute:
(viii) Judgment in favour of the plaintiff in the sum of $30,000. (ix)
The defendant to pay interest on the judgment sum from 27 January 2010 at the rate of ten per cent per annum.
(x) Liberty to apply. 17
The parties will note that I have reserved liberty to apply lest there be any confusion or further discussion required in relation to the above orders.
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