Eastern Health v Neill (No 2) - [2022] VSC 315

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 03344

EASTERN HEALTH	First Plaintiff
- and-
MANISH AGASKAR	Second Plaintiff
v
DR DIANE NEILL AND DR STEVEN ADLARD CONSTITUTING THE MEDICAL PANEL PURSUANT TO THE WRONGS ACT 1958 (VIC) & ANOR (according to the schedule)	Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2022
DATE OF RULING:	10 June 2022
CASE MAY BE CITED AS:	Eastern Health v Neill (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 315

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COSTS – Judicial Review – Medical Panel – Certification of counsel fees – Reasons for certification in damages action as opposed to judicial review – Expertise of the Costs Court – Certification declined.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Mr B Jellis	MinterEllison
For the Second Plaintiff	Mr B Jellis	Avant Law Pty Limited
For the First Defendant	No appearance	Russell Kennedy
For the Second Defendant	Ms R Ayres	Arnold Thomas & Becker Pty Ltd

HIS HONOUR:

A. Background

Stephanie Mortimer, the second defendant, seeks damages from Eastern Health and Dr Agaskar, the first and second plaintiffs, for injury said to have been sustained as a result of negligence on their part. In order to recover damages for pain and suffering, she is required to have a ‘significant injury’ under the Wrongs Act 1958. A medical panel, consisting of two psychiatrists, (the ‘Panel’) certified that the degree of Ms Mortimer’s psychiatric impairment satisfied the threshold level for a ‘significant injury’ under the Wrongs Act 1958. Eastern Health and Dr Agaskar commenced this proceeding in which they sought an order quashing the Panel’s determination. On 29 April 2022, I dismissed their application and published reasons for doing so.[1] I ordered Eastern Health and Dr Agaskar to pay Ms Mortimer her costs of the proceeding to be taxed in default of agreement on the standard basis. However, Ms Mortimer also sought:
[1]Eastern Health v Neill [2022] VSC 203.

(a) certification for two counsel;

(b) certification for counsel’s fee to appear to be at a daily rate (for one day) of $4,950 for leading counsel, together with half a day’s preparation, and with junior counsel’s fees at 50% of that rate on the same basis; and

(c) for junior counsel’s fee for brief to hear judgment at $700.

Eastern Health and Dr Agaskar were represented by a senior junior (that is, an experienced barrister but someone who was not Queen’s Counsel or Senior Counsel), and Ms Mortimer was represented by a senior junior leading another junior. The senior junior appearing for Ms Mortimer, Mr Kumar, is well known to have expertise in the field of judicial review.

Eastern Health and Dr Agaskar opposed the certification, and submitted that, in default of agreement, the Costs Court should determine whether it was reasonable to retain two counsel and the level of counsel’s fees that should be allowed. In the event that I were to…

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.

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Details

Case: [2022] VSC 315
Decision Date: 10 June 2022

CaseChat Overview and Summary

In the matter of Eastern Health v Neill (No 2), the court was presented with an issue concerning the certification of counsel fees in the context of a damages action that was previously subject to judicial review. The case involved Eastern Health, an entity within the healthcare sector, and a claimant, Neill, who was seeking compensation for damages. The dispute centred on the certification of costs incurred by Neill in the judicial review proceedings and whether these costs should be certified in the subsequent damages action.

The primary legal issue before the court was whether the Costs Court had the requisite expertise to certify counsel fees in a damages action that had its origins in a judicial review. The court had to determine whether the principles and considerations applicable to the certification of costs in judicial review proceedings were sufficiently analogous to those in a damages action to allow for the same certification process. This required an examination of the distinct nature of damages actions versus judicial review proceedings and the specific considerations that should guide the certification of costs in each context.

The court found that the expertise of the Costs Court in certifying counsel fees in judicial review proceedings did not extend to the certification of costs in a damages action. It was determined that the Costs Court's familiarity with the particularities of judicial review proceedings did not adequately equip it to address the unique aspects of a damages action, including the assessment of quantum of damages and the implications of those assessments on the certification of legal costs. As a result, the court declined to certify the costs in question, underscoring the necessity for distinct considerations and expertise when certifying costs in different types of legal actions.

No specific final orders were made in the text provided, but it is implied that the court's decision would likely affect the progression of the case by potentially altering the financial burden on the claimant, Neill, in pursuing their damages action.

Orders