Dowling v Myers Street Family Medical Practice Pty Ltd (Ruling as to Costs)
[2018] VCC 2314
•20 September 2018
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-03822
| FIONA LOUISE DOWLING | Plaintiff |
| v | |
| MYERS STREET FAMILY MEDICAL PRACTICE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE COISH | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 3, 4, 5, 6 and 13 September 2018 | |
DATE OF RULING: | 20 September 2018 | |
CASE MAY BE CITED AS: | Dowling v Myers Street Family Medical Practice Pty Ltd (Ruling as to Costs) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2314 | |
RULING AS TO COSTS
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Subject:COSTS
Catchwords: Application by plaintiff for certification of counsels’ fees in circumstances where plaintiff rejected offer of settlement of pain and suffering serious injury certificate, proceeded to judgment but did not succeed in obtaining serious injury certificate with respect to loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB; WorkCover (Litigated Claims) Legal Costs Order 2016; County Court Civil Procedure Rules 2008
Cases Cited:Gellard v Victorian WorkCover Authority [2017] VCC 1919; Traumanis v State of Victoria (Unreported, County Court of Victoria, 26 May 2017)
Ruling: Not appropriate to certify for plaintiff’s counsels’ fees.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms R Dal Pra (Mr I Jupp, solicitor, on 20 September 2018 to hear Ruling) | Ryan Carlisle Thomas |
| For the Defendant | Mr A J McG Moulds QC with Ms G J Cooper (Ms S Koochew, solicitor, on 20 September 2018 to hear Ruling) | Wisewould Mahony |
HIS HONOUR:
1I have been asked to rule on an application by the plaintiff for certification of barristers’ fees in circumstances where the plaintiff rejected an offer of settlement of a pain and suffering serious injury certificate only made by notice dated 13 March 2018, proceeded to judgment on 6 September 2018 but did not succeed in obtaining a serious injury certificate with respect to loss of earning capacity. It is necessary to briefly describe the background to this costs dispute.
2The plaintiff suffered a low back injury in the course of her employment as a nurse on or about 9 November 2007. The six-year window in respect of “without injury” earnings was therefore from 9 November 2004 to 9 November 2010. On 13 April 2017, the plaintiff served a serious injury application in respect of both pain and suffering and loss of earning capacity, with appropriate supporting documentation.
3In the covering letter from the plaintiff’s solicitors to the Dispute Management Division of WorkSafe Victoria, the plaintiff’s solicitors sought informal discovery and inspection of documents and information in respect of the plaintiff’s employment, including the plaintiff’s earnings and the earnings of comparable employees. As the defendant rejected the serious injury application, the plaintiff issued an Originating Motion, which was served on 11 September 2017.
4On 13 March 2018, the defendant’s solicitors served a notice pursuant to the WorkCover (Litigated Claims) Legal Costs Order 2016 (“the Legal Costs Order”). That notice stated:
“Notice pursuant to s4 Part A of WorkCover (Litigated Claims) Legal Costs Order 2016. The Victorian WorkCover Authority gives notice it is satisfied that the injury of Fiona Dowling alleged to have been incurred on 9 November 2007 to her lower back satisfies the requirements of s134AB(38)(b)(i) but not the requirements of s134AB(38)(b)(ii).”
5Thus the defendant was satisfied of serious injury with respect to pain and suffering but not loss of earning capacity.
6On 13 March 2018, the plaintiff’s solicitors wrote to the defendant’s solicitors in these terms:
“We refer to your letter dated 13 March 2018, enclosing notice pursuant to the WorkCover (Litigated Claims) Legal Costs Order 2016. Please advise the hourly rate for a full time practice nurse (RND1). Please provide this information by return mail.”
7I note the plaintiff’s solicitors did not specify a relevant date for this hourly rate.
8On 15 March 2018, the defendant’s solicitors wrote to the plaintiff’s solicitors in these terms:
“We refer to your facsimile dated 13 March 2018. We are instructed that the current hourly wage rate for a nurse in the employee of the defendant is $32.33 per hour.”
9The plaintiff’s solicitors were provided with the current hourly wage rate.
10On 16 March 2018, an affidavit was sworn by Durham Edward Green, the plaintiff’s employer.
11On 20 March 2018, the defendant’s solicitors served a Notice to Produce on the plaintiff in respect of the TNM Trust returns from 2004 to 2015 and the plaintiff’s bank statements from 2007 to date. On 13 April 2018, the plaintiff’s solicitors served a Notice to Produce upon the defendant. On 16 May 2018, the plaintiff’s solicitors served a supplementary Notice to Produce upon the defendant. The hearing commenced before me, sitting at Geelong, on 3 September 2018.
12On 4 September 2018, the parties agreed upon a “without injury” hourly rate of $27.32. On 5 September 2018, I granted leave for the plaintiff to re-open the plaintiff’s case shortly before I was due to deliver judgment to enable the plaintiff to tender financial statements in respect of the plaintiff’s earnings in 2017-2018. On 6 September 2018, I delivered judgment. The defendant had conceded serious injury with respect to pain and suffering. I found the plaintiff’s application with respect to loss of earning capacity to have not been proven. I found that whilst the plaintiff had proven the requisite 40 per cent loss of earning capacity at the date of hearing, I was not satisfied the plaintiff would, after the date of hearing, continue permanently to have a loss of earning capacity which would be productive of financial loss of 40 per cent or more.
13The plaintiff’s counsel seeks certification of counsels’ fees. This is opposed by the defendant. It is submitted on behalf of the plaintiff that Part B, item 5 of the Legal Costs Order is prescriptive. It is in these terms:
“Part B.
In addition to the sums specified in Part A above, the worker or worker’s legal practitioner shall be entitled to be paid as a disbursement:
…
5. the cost of counsel’s fees (including brief fee) incurred not more than 28 days prior to day 1
oneof 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."
14If this submission is not accepted, it is submitted on behalf of the plaintiff that I ought, in the exercise of my discretion, certify for the costs of the plaintiff’s counsels’ fees. In support of this submission, the plaintiff’s counsel relies upon the failure to agree upon the hourly rate for “without injury” earnings until the hearing commenced, the late provision of comparative earnings figures and the reasonableness of the plaintiff’s refusal to accept the notice offer of a serious injury certificate for pain and suffering only.
15It was submitted on behalf of the defendant that Part B, item 5 is not prescriptive. The defendant’s counsel relied upon Part C, which states:
“Part C.
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.”
16It was submitted on behalf of the defendant that here a dispute has arisen in relation to the allowance of item 5 in Part B and, accordingly, this must be determined by the Court.
17It was submitted on behalf of the defendant that this involved the application of a general discretion and this ought not be exercised in favour of the plaintiff as the plaintiff’s lawyers were well aware of the issues in dispute in respect of loss of earning capacity. They were provided with the hourly rate they requested. They must have appreciated that the plaintiff was at a very significant risk of losing the argument in respect of loss of earning capacity and all relevant material in respect of the plaintiff’s “with injury” earnings was in the possession of the plaintiff.
18I have been provided with a copy of a Ruling by his Honour Judge Dyer in Alison Gellard v Victorian WorkCover Authority.[1] In that case, his Honour Judge Dyer refused to certify for counsels’ fees when the plaintiff had received a serious injury pain and suffering notice but had delayed acceptance until the date of the hearing. There is a reference in that Ruling to a decision of his Honour Judge Carmody in Traumanis v State of Victoria[2] in which his Honour Judge Carmody refused to certify counsels’ fees.
[1][2017] VCC 1919
[2]Unreported, County Court of Victoria, Judge Carmody, 26 May 2017
19The policy underlying the Legal Costs Order and this notice is to manage legal costs and encourage resolution of disputes. I do not accept that Part B, item 5, is prescriptive. This is not consistent with Part C. There is a dispute and, accordingly, the County Court Civil Procedure Rules will apply to the dispute resolution process. I do have a discretion in respect of the certification of counsels’ fees. In my opinion, in the circumstances of this case, it is not appropriate to exercise this discretion in favour of certification.
20I have arrived at this conclusion for these reasons. This application in respect of loss of earning capacity was determined on the basis of a failure to prove the requisite loss of earning capacity would be productive of financial loss permanently. As stated in my reasons for decision, there was a marked absence of evidence on this vital issue. This application in respect of loss of earning capacity involved a detailed analysis of the plaintiff’s “without injury” earnings and “with injury” earnings.
21The plaintiff and her husband were 50 per cent shareholders in two family businesses. Profits from those businesses were paid into two family trusts, then distributed to beneficiaries. The plaintiff, her husband and accountant had access to all relevant financial evidence in respect of the plaintiff’s past “with injury” earnings and the likely course of those earnings in the future.
22An analysis of the plaintiff’s past “with injury” earnings revealed that she was at times within and at other times outside the relevant 40 per cent loss. At the date of hearing, she had the requisite loss of earning capacity but, as I found, this was by the barest of margins. When the plaintiff received the notice on or about 13 March 2018, it was, in my opinion, incumbent upon the plaintiff and her lawyers to carefully consider that notice and the plaintiff’s application in respect of loss of earning capacity.
23I do not accept that her failure to accept the notice was reasonable. The plaintiff did not produce evidence to satisfy the statutory formula in respect of permanence. Given the issues in dispute, the importance of the plaintiff’s “with injury” earnings and the remarkable closeness of those earnings to the requisite 40 per cent loss in the past, I agree with the submission made on behalf of the defendant that had the plaintiff and her lawyers undertaken a thorough analysis of the plaintiff’s case, they must have appreciated the plaintiff faced a significant risk of losing the claim with respect to loss of earning capacity.
24It is, in my opinion, of little consequence that the parties agreed on an hourly “without injury” rate on the second day of the hearing. The plaintiff knew what her job was, her income, her intent to work full time, her duties in the family businesses and the earnings of those businesses. The requisite information in respect of the claim for loss of earning capacity was within the knowledge of the plaintiff or capable of being discovered by the plaintiff or her lawyers.
25I do not accept the submission made on behalf of the plaintiff that because this may have been an unusual case, or a finely balanced case, the plaintiff’s counsels’ fees should be paid by the defendant even though the plaintiff has failed in her claim in respect of loss of earning capacity. I do not accept that this situation raises real issues about access to justice. The plaintiff has been able to run her case, she was given every opportunity to adduce all relevant evidence and she has failed to prove the requisite loss of earning capacity. In these circumstances, I am not prepared to certify for the plaintiff’s counsels’ fees.
26During the course of submissions, application was made on behalf of the defendant for an order that the plaintiff pay the defendant’s costs of 5 September 2018. I do not propose to make such an order. During a busy civil circuit I did grant the plaintiff the indulgence of allowing the plaintiff to re-open her case to tender recent financial records.
27It was in the interests of justice to do so. This information only came into the plaintiff’s lawyer’s possession on 5 September 2018. In the circumstances, I allowed this evidence to be adduced and I allowed both parties an opportunity to address me further upon this evidence and the application generally.
28In these circumstances, it is not appropriate to make a costs order in favour of the defendant for 5 September 2018.
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