Eastern Health v Neill (No 2)
[2022] VSC 315
•10 June 2022
| 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 certify, they did not accept that the levels sought were appropriate.
It was not suggested that I did not have the power to certify counsel’s fees. Rather, the argument was expressed in terms of whether or not I ought to exercise my discretion to certify, and if so in what amount, or whether I ought to leave those matters instead to be determined by the Costs Court on any taxation.
B. The background to the present scale of costs and the implications that follow from the way the scale is expressed
From at least 1984 until 2014, the scale of costs for proceedings commenced in the County Court of Victoria specified an amount for counsel’s fees, with a different amount depending on the amount at stake in the case. There was no separate treatment for senior or junior counsel and in this way the scale assumed a single counsel. Often, of course, senior and junior counsel appeared together. The scale provided for a system to deal with that eventuality. For example, the scale in Appendix A to the County Court Rules of Procedure in Civil Proceedings 1989 provided that, in ‘appropriate cases’, if the ‘Judge, Registrar or other taxing officer’ considered the scale fee inadequate, they may allow ‘an appropriate fee which in the circumstances is considered to be fair and reasonable’. Then paragraph 29, which set out the specific fees for counsel, stated:
(h)(iii) Where in any such case the Judge certifies for two counsel …
(iv)In any proceeding or matter notwithstanding anything contained in the rules or in the scale of costs … the trial judge ONLY may on application allow such higher fee for counsel (including more than one counsel) as he thinks fit.[2]
[2]An irrelevant reference to an exception for mediations has been removed and the emphasis has been added. The gendered language is noted but has been retained.
Accordingly, in the County Court, it was part of the role of the trial judge to determine whether or not there ought to be certification for two counsel, and if so at what fees. This approach in the scale of costs was not changed until 2014,[3] to which change I refer in paragraph 14 below.
[3]A like provision was retained in the scales of costs appended to the County Court Rules of Procedure in Civil Proceedings 1999 (Vic) and in the County Court Civil Procedure Rules 2008 (Vic) as enacted, app A item 31(v)(A).
Until 2012, the scale of costs for proceedings commenced in the Supreme Court did not include any reference to counsel’s fees.[4] Instead, its rules provided that the ‘fees payable to counsel to appear at a hearing or trial shall be at the discretion of the Taxing Master’,[5] and provided for applications being made to the Taxing Master ‘to tax fees chargeable by a barrister’.[6] This indicated an intention that, contrary to the position that applied in the County Court, it would generally be the taxing officer, and not the trial judge, that was to determine the question of counsel’s fees.
[4]See, eg, Supreme Court (Costs) Rules 1981 (Vic).
[5]See, eg, General Rules of Procedure in Civil Proceedings 1996 (Vic) r 63.82.
[6]Ibid r 63.86.
In 2008, the Costs Court was created within the Trial Division of the Supreme Court,[7] and it was given jurisdiction to determine costs in the Victorian Civil and Administrative Tribunal, the Magistrates’ Court, the County Court and the Supreme Court.[8] A position of Costs Judge of the Costs Court was created and was to be filled by an Associate Judge (or, what would now be called an Associate Justice). The Costs Judge was given the power to direct that costs be assessed by a costs registrar.[9] Provision was made for the review of a determination made by a costs registrar to a Costs Judge,[10] and for an appeal to a judge of the Trial Division from a determination of a Costs Judge.[11] The establishment of this specialised Court was consistent with an assumption that in the Supreme Court it would be the Costs Court, rather than trial judges, who would be assessing what costs paid to counsel by the winning side ought to be recoverable from the losing side.
[7]Courts Legislation Amendment (Costs Court and Other Matters) Act2008 (Vic).
[8]Ibid s 5, this provision introduced s 17D into the Supreme Court Act 1986 (Vic).
[9]Supreme Court Act 1986 (Vic) s 17F.
[10]Ibid s 17H.
[11]Ibid s 17I.
Notwithstanding the introduction of the Costs Court, the requirement in the County Court that only the trial judge could allow a higher fee for counsel, or for more than one counsel, remained until 2011. However, from 1 September 2011, the scale in the County Court was changed to provide for junior and senior counsel, and instead of fixing a specific amount, it identified a range for each.[12] This scale, which was a significant change in approach, expressly permitted each of the Judge, Registrar or Costs Court to allow ‘any fee … as is fair and reasonable’.[13] Otherwise, under the heading ‘Fees to Counsel’ in Appendix A, after setting out the range of fees, it stated ‘[i]n allowing a fee to counsel, the Costs Court will have regard to the following’.[14] It then set out a range of matters for consideration, such as the complexity of the matter. This was indicative of an expectation that under the new regime in 2011, and although the trial judge may be asked to allow a fee above the range set out in the scale, it would ordinarily be the Costs Court, rather than the trial judge, that would determine what fees charged by counsel, within the allowable range, would be recoverable on a taxation.[15]
[12]See the County Court (Chapter 1 Scale of Costs Amendment) Rules 2011 (Vic) as enacted, app A item 42.
[13]Ibid app A pt 1.
[14]Emphasis added.
[15]Where costs were being taxed pursuant to an order of the Court, fees in excess of the scale amounts could not be allowed in the absence of an order from the judicial officer that made the costs order.
In 2012, a new scale of costs for proceedings issued in the Supreme Court was introduced that took effect from 1 April 2013.[16] It largely followed the model that had been introduced into the County Court the year before. It provided for counsel’s fees, but had a maximum fee for junior counsel and a maximum fee for senior counsel, rather than a range. Item 19(j) of the scale of costs in Appendix A then set out criteria that would apply in any determination of counsel’s fees, and stated ‘[i]n allowing a fee to Counsel, the Costs Court shall have regard to the following criteria’.[17]
[16]Supreme Court (Chapter 1 New Scale of Costs and Other Costs Amendments) Rules 2012 (Vic).
[17]Emphasis added.
Item 19(k) in the scale stated:
Where costs are taxed pursuant to an order of the Supreme Court, Counsel’s fees in excess of scale are not to be allowed unless the Supreme Court otherwise orders, but in any other case, the Costs Court has discretion to allow fees in excess of scale.
At the same time, a new r 63.82 was substituted in the Supreme Court (General Civil Procedure) Rules 2005. The new rule provides:
63.82 Hearing and trial fees
(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 …[18]
[18]Emphasis added.
Reading these together, it seems to me that the clear intention was that in the Supreme Court where a matter has come to a hearing, and while only the trial judge could allow counsel’s fees above the maximum set out in the scale, it would be the Costs Court, rather than the trial judge, that would determine the extent to which fees paid to counsel within the scale range would be allowed on taxation.
Then, in 2014, the system in the County Court was changed so that it mirrored the system in the Supreme Court. The County Court ceased to have its own scale of costs and its rules provided instead that costs in the County Court would be taxed at 80% of that of the Supreme Court scale.[19] The County Court, therefore, as was the case with the Supreme Court, adopted the approach that the question of where within the scale counsel’s fees would be allowed would ordinarily be a matter for the Costs Court.
[19]County Court (Chapter 1 Costs Amendment) Rules 2014 (Vic), r 5.
There has been no change of substance to the scales of costs since that time.
C. The power of a trial judge to fix counsel’s fees
Notwithstanding the above, a trial judge making a costs order retained, and still retains, the power to fix a gross sum in respect of any part of the costs ordered to be paid,[20] and thus the power, if he or she wishes to do so, to fix costs for counsel’s fees.
[20]Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 63.07(2)(c).
Indeed, it seems to me that the practice of ‘certifying’ fees is in reality a process of fixing a gross sum to be paid in respect of one aspect of a proposed taxation.[21]
[21]See, eg, Toohey v Pumpa Engineering Pty Ltd [2015] VSC 589, [4] (Riordan J).
D. The practice of ‘certification’ by Judges in personal injury actions
Many judges in the County Court continued to certify counsel’s fees in personal injury actions even after the changes that took place in 2011. Indeed, that continues to be the prevailing practice in personal injury actions and in actions in which leave is sought to bring proceedings for the recovery of damages for workplace accidents and transport accidents.[22] In more recent years, it has also become a common, but not invariable,[23] practice for judges in this Court to certify counsel’s fees in personal injury actions. It seems that this practice commenced with matters that were heard on circuit,[24] and then spread to Melbourne.
[22]That is, applications under s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) or s 93(4)(d) of the Transport Accident Act 1986 (Vic).
[23]See, eg, Henwood v Nansor Australia Pty Ltd (costs ruling) [2013] VSC 655 (Macaulay J); Bucic v Arnej Pty Ltd (No 3) [2019] VSC 410, [5]–[6] (Zammit J).
[24]See, eg, Wadley v Ron Finemore Bulk Haulage Pty Ltd (No 3) [2013] VSC 181, [6] (Beach J); Anic v Qenos [2013] VSC 741 (T Forest J); Titcher v Marcelis [2015] VSC 578 (Riordan J).
The arguments or reasons that have been put forward to justify the practice of certifying (or fixing) counsel’s fees, rather than leaving the issue for the Costs Court in any taxation, include the following:
(a) in industrial accidents, s 134AB(29) of the Accident Compensation Act 1986 and s 344 of the Workplace Injury Rehabilitation and Compensation Act 2013 provide that the applicable scale of costs take effect ‘as if amounts in the scale were reduced by 20 per cent’. The argument is that if counsel’s fees are certified by the Court, then the 20% reduction would not apply.[25] (It has also been observed, however, that a wish to circumvent the operation of the legislation ought not be a valid reason to certify fees.);[26]
[25]See, eg, Jury v Tebbs Canvas Products Pty Ltd [2010] VSC 553, [1], [22], [26] (Williams J); Wadley v Ron Finemore Bulk Haulage Pty Ltd (No 3) [2013] VSC 181, [14] (Beach J).
[26]Logan v Aberdeen Holdings (Aust) Pty Ltd (Ruling) [2011] VCC 1417, [24] (Judge Parrish).
(b) there was, in practice, often a lengthy and entirely unnecessary delay in counsel being paid for their work if their fees were not certified, because, although counsel’s fees were generally not themselves disputed in any taxation, their payment awaited the resolution of any taxation of the solicitors’ costs. The idea was that if counsel’s fees were certified by the Court, then they could be paid and recovered from the defendant separately from any taxation of the solicitors’ costs;[27]
[27]For a time these were called ‘Casey Orders’, after Terry Casey QC, who was influential in promoting them.
(c) in applications in the County Court for leave to commence proceedings for damages for injury suffered in industrial accidents:
(i) solicitors’ costs are fixed by lump sums provided for in ‘Legal costs orders’ made under ss 134AG and 134AGA of the Accident Compensation Act 1985 and s 355 of the Workplace Injury Rehabilitation and Compensation Act 2013.[28] Accordingly, it is only counsel’s fees that potentially remain in dispute. If counsel’s fees are fixed by the Court, then there is no further room for dispute and no need for any involvement of the Costs Court; and
[28]See, eg, Minister for Finance, Workcover and the Transport Accident Commission, ‘WorkCover (Litigated Claims) Legal Costs Order 2010’ in Victoria, Victorian Government Gazette, No 43, 28 October 2010, 2677; Minister for Finance, ‘WorkCover (Litigated Claims) Legal Costs Order 2016’ in Victoria, Victorian Government Gazette, No 24, 16 June 2016, 1469.
(ii) the plaintiff, if successful, is forced to make a ‘statutory counter offer’ in settlement of the proposed damages proceeding within a relatively short time after that leave is granted.[29] That offer has to be carefully calibrated as it has potential consequences on any costs recoverable in a trial.[30] It is unlikely that counsel’s fees would be able to be taxed before a statutory counter offer has to be made. Accordingly, there is a prospect that the plaintiff’s lawyers will be unable to advise the plaintiff as to the precise level of solicitor-client costs that have been incurred prior to that plaintiff having to put in that statutory counter offer.
[29]Accident Compensation Act 1985 (Vic) s 134AB(12); Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 333.
[30]Accident Compensation Act 1985 (Vic) s 134AB(28); Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 344(2).
(d) the issues, the breadth and complexities of the material, and the nuances of a claim, are better able to be presented to the trial judge by counsel who have prepared the matter for trial, than to the Costs Court at a later date by a costs consultant. And, related to this, a judge who has presided over a trial is in a better position to observe the complexities and nuances of a claim than the Costs Court would be;[31]
[31]See, eg, Shields v Department of Human Services [2013] VCC 4, [5], [16(vi)] (Judge Bowman); Monty v CSR Viridian Operations Pty Ltd [2013] VCC 686 [12]–[14] (Judge Smith); Titcher v Marcelis [2015] VSC 578, [13] (Riordan J).
(e) doing so resolves one significant area of dispute and failing to do so may lead to added costs and delays for the parties;[32]
(f) there is more likely to be an consistent approach if judges certify than if the Costs Court certifies;[33] and
(g) in circuit matters, taxations are particularly burdensome because they will likely take place in Melbourne.[34]
[32]See, eg, Shields v Department of Human Services [2013] VCC 4, [5] (Judge Bowman); Monty v CSR Viridian Operations Pty Ltd [2013] VCC 686 [14] (Judge Smith); Anic v Qenos [2013] VSC 741, [6] (T Forrest J); Titcher v Marcelis [2015] VSC 578, [12] (Riordan J).
[33]See, eg, Shields v Department of Human Services [2013] VCC 4, [5] (Judge Bowman); Titcher v Marcelis [2015] VSC 578, [12] (Riordan J).
[34]See Wadley v Ron Finemore Bulk Haulage (No 3) [2013] VSC 181, [6] (Beach J).
As noted above, the contrary arguments that the Costs Court has been created for the purpose of assessing costs and has experience in doing so and has, or would have, at least as good an ability as a trial judge to do so, and that having costs assessed by it is more likely to lead to fairness and predictability, have on occasion found favour.[35] Although it remains a matter for each judge to determine in the exercise of his or her discretion on each occasion and no general rule should be imposed, it seems that in personal injury actions, counsel’s fees are fixed by trial judges more often than not.
[35]See, eg, Logan v Aberdeen Holdings (Aust) Pty Ltd (Ruling) [2011] VCC 1417 (Judge Parrish); Henwood Nansor Australia Pty Ltd (costs ruling) [2013] VSC 655, [14], [18] (Macaulay J); Bucic v Arnej Pty Ltd (No 3) [2019] VSC 410, [5]–[6] (Zammit J).
It is relevant, of course, that counsel’s fees are not usually fixed in proceedings in this Court that do not relate to personal injuries.
E. Applications for Judicial Review
The question that arises is whether the practice of fixing counsel’s fees in actions for damages for personal injury should be extended to applications for judicial review. Generally, in my experience, no application for certification is made and the general practice has been not to fix counsel’s fees in an application for judicial review.[36] But there have been a number of occasions in more recent times where judges of this Court have certified counsel’s fees in a judicial review application.[37] On the other hand, on occasions the Court has refused to do so.[38] The principal arguments relied upon in support mirror those relied upon in other proceedings, in particular that certifying is a step that would likely save the parties time and cost and give the parties increased certainty. The ‘relative simplicity’ of a judicial review proceeding has been identified as a reason for certifying counsel’s fees,[39] but has also been identified as a reason for not certifying counsel’s fees.[40] There is no ‘general consensus’. And even if there were a general consensus, the decision in any particular case would of course remain within the discretion of the individual judge.[41]
[36]See, eg, Withers v Chalmers Industries Pty Ltd (Costs) [2020] VSC 694, [6] (Richards J); Melton v Metro Trains [2021] VSC 506, [16] (Quigley J); Talevska v Ensign Services (Aust) Pty Ltd (No 2) [2021] VSC 319, [10] (O’Meara J).
[37]See, eg, Voss v Downes-Brydon (No 2) [2020] VSC 863 (Ginnane J); Withers v Chalmers Industries Pty Ltd [2020] VSC 694 (Richards J); Jerak v Lazarus (Costs) [2020] VSC 776, [10] (Forbes J); Yildirim v A&L Windows Pty Ltd (Costs) [2021] VSC 282, [15] (Quigley J); Zachariadou v Jenny Downes-Brydon(No 2) [2021] VSC 512 (Ginnane J); Golden City Support Services v Forrest (No 2) [2021] VSC 718 (Moore J).
[38]Melton v Metro TrainsPty Ltd (Costs)[2021] VSC 506 (Quigley J); Talevska v Ensign Services (No 2) [2021] VSC 319, [12] (O’Meara J); Miranda v Hendercare Pty Ltd (S ECI 2020 00260, Supreme Court of Victoria, Keith JR).
[39]Withers v Chalmers Industries Pty Ltd (Costs) [2020] VSC 694, [14(d)] (Richards J).
[40]Talevska v Ensign Services (Aust) Pty Ltd (No 2) [2021] VSC 319, [12] (O’Meara J).
[41]Golden City Support Services Inc v Forrest (No 2) [2021] VSC 718, [9] (Moore J).
The issue has also to be determined in the context of the operation of the scales of costs and rules referred to in Part B above, which, as I have said, indicate an intended default position that it will be the Costs Court that will determine what fees payable to counsel, within the ranges set out in the scale, are recoverable from the other side.
It seems to me that there are real differences between a common law damages action and a judicial review action that in many cases will justify a different approach being taken. A common law damages action will ordinarily last for a number of days or even weeks, and involve a lot of oral evidence and oral argument. In preparing for the hearing, counsel will have conferred with at least some of the witnesses, and those witnesses will often not have prepared witness statements. It can be difficult for anyone who was not present at the hearing to obtain a proper appreciation of the issues and complexities that arose. This is particularly so in the case of a jury trial, where there are no reasons for judgment but only a jury verdict. For this reason, in the case of a damages action, there is much to be said for the argument that the presiding judge is in a significantly better position than a member of the Costs Court would be to engage in the evaluative exercise involved in determining whether to certify counsel’s fees and if so at what level.
It seems to me, however, that this will often not be the case in an application for judicial review. In a judicial review application there is typically no oral evidence. A court book will be prepared that contains all the relevant documents, including detailed written submissions from both parties. Oral argument will typically occupy less than one day, and there will then typically be written reasons prepared that analyse the issues that have arisen. In those circumstances, any advantage the presiding judge would have over a member of the Costs Court is much smaller than would be the case with a damages trial.
This is particularly so given that, strictly, the question of counsel’s fees is to be determined by considering what counsel, and at what rate, a reasonable and prudent but not overly-cautious solicitor would have engaged at the time of briefing, rather than by looking at the question in hindsight after the hearing.[42] It is not a matter of the taxing officer retrospectively setting the fee that counsel can charge their own clients. The taxing officer is accepting that the successful party has a liability to the barristers retained, in accordance with the terms of that retainer, and is determining the extent to which that liability is a cost of the litigation that may be recovered from the other side.
[42]See, Kroehn v Kroehn (1912) 15 CLR 137, 141 (Griffiths CJ), 144 (Barton J), 147 (Isaacs J); Peile v Nobel (Australasia) Pty Ltd [1966] VR 433, 437–8 (Starke J); Donovan v Miller [1987] VR 221, 224 (Young CJ, King and Beach JJ); Oldaker v Currington [1987] VR 712, 717 (Murray, McGarvie and Marks JJ).
F. Application to this case
No material was put before me to establish that leaving the question of counsel’s fees to the Costs Court in this case would cause any great inconvenience or delay in the taxation of costs, or indeed that the issue of counsel’s fees typically causes considerable delay in the taxation of costs in applications for judicial review.
Also, this application considered a determination of a medical panel that a claimant had a ‘significant injury’ within the meaning of that term contained in the Wrongs Act 1958. It has not been established that the prosecution or any settlement of the claimant’s underlying or proposed damages action will be detrimentally affected by any additional delay that may be associated with having the question of counsel’s fees determined by the Costs Court rather than fixed by me.
I do not consider that I am at any significant advantage over the Costs Court in assessing what counsel, and at what rates, a reasonably prudent solicitor would have retained at the time when counsel were retained for the hearing of this application for judicial review. The materials that I have considered, and the issues that arose, are equally available to the Costs Court. I have the disadvantage of not being experienced in the taxation of costs generally.
I accept that if I were to fix counsel’s fees, that would, of course, remove one area of potential dispute and in that way assist the parties. But that would be the case in any application to have a trial judge fix a party’s costs or any part of a party’s costs, rather than having them taxed. It would be an argument that could equally be made at the conclusion of any proceeding in the Court, including a commercial proceeding where orders fixing counsel’s fees are very rare. Further, this benefit, which may in many cases be small, is to be weighed against the advantages of having a specialist Costs Court involved in making those decisions, and in judges not being required to consider and to make rulings on the question of counsel’s fees at the end of each application for judicial review.
For the above reasons, I do not consider that there is sufficient reason shown in this case to depart from what in my view is the intended default position that it will be the Costs Court that determines the questions of counsel’s fees in applications for judicial review. Accordingly, I will not fix counsel’s fees in this case.
G. Final Comments
As the above discussion has hopefully made clear, nothing I have said in these reasons is intended to undermine the practice, or tendency, of trial judges’ fixing of counsel’s fees in personal injury actions.
In the event that in an application for judicial review it can be shown that a failure on the part of a judge to fix counsel’s fees would in some significant way disadvantage the parties, whether by reference to delays or inconsistencies or perceived unfair results or otherwise, the situation may be different. As noted above, no material was put before me to establish that the failure to fix counsel’s fees has to date caused any problems for litigants in applications for judicial review.
Although if the issue cannot be resolved between the parties the extent of counsel’s fees that are recoverable will be determined by the Costs Court, it seems to me that the decision by the respondent to retain two counsel was likely a sensible and prudent decision and that the rates that counsel have charged are likely reasonable. Indeed, it would not have been at all surprising if the respondent had retained senior counsel and a junior, rather than a leading junior and another junior. Similarly, I see no reason why junior counsel should not have been retained to hear judgment.
Finally, I return to the observation that the decision to fix counsel’s fees or to leave that to the Costs Court is a matter of discretion for each judge to exercise in the circumstances of each individual case.
SCHEDULE OF PARTIES
S ECI 2021 03344
| EASTERN HEALTH | First Plaintiff |
| MANISH AGASKAR | Second Plaintiff |
| - and - | |
| DR DIANE NEILL AND DR STEVEN ADLARD CONSTITUTING THE MEDICAL PANEL PURSUANT TO THE WRONGS ACT 1958 (VIC) | First Defendant |
| STEPHANIE MORTIMER | Second Defendant |
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