Ellery v Banks Pty Ltd
[2017] VCC 1682
•17 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-02392
| MARK ELLERY | Plaintiff |
| v | |
| BANKS PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 November 2017 | |
DATE OF RULING: | 17 November 2017 | |
CASE MAY BE CITED AS: | Ellery v Banks Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1682 | |
REASONS FOR RULING AS TO COSTS
---
Catchwords: Accident Compensation Act 1985 and Workplace Injury and Compensation Act 2013 – resolution of claim in relation to lung cancer on behalf of plaintiff employed as a welder – limited life expectancy – case of considerable gravity and complexity – dispute as to whether plaintiff entitled to statutory benefits – counsel’s fees – whether these should be confined to scale items applicable in the Magistrates’ Court – whether any discretion exists in relation to quantum of counsel’s fees – factors to be considered.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Pillay | Maurice Blackburn |
| For the Defendant | Mr S Williams of Lander & Rogers |
HIS HONOUR:
1 This matter comes before me by way of a costs dispute. It concerns counsel’s fees in a claim for statutory benefits pursuant to the Accident Compensation Act 1985 (hereinafter referred to as “the AC Act”) and the Workplace Injury and Compensation Act 2013 (hereinafter referred to as “the Workplace Act”). The relevant period of the plaintiff’s employment with the defendant straddles both of these Acts. Nothing hinges upon that.
2 In essence, the dispute involves whether there exists any discretion in this Court to fix counsel’s fees at an amount greater than the basic figures set out in the Scale of Costs applicable in the Magistrates’ Court. In this regard, I would refer to s278(5) of the Workplace Act, which is identical to s50(3) of the AC Act. In the dispute before me, no issue is taken as to the operation of the respective Acts. It had been alleged that the plaintiff, over the course of his employment as a welder with the defendant and which employment straddled both of the abovementioned Acts, contracted lung cancer. It was asserted that, in essence, such employment was responsible. The plaintiff had previously engaged in welding work for some 16 years prior to commencing to perform such work for the defendant in 2008. Thereafter, he is alleged to have been so engaged until 2016. Thus, this was not a simple factual background against which the plaintiff was seeking a determination that he had an entitlement to benefits pursuant to each of the Acts referred to above. The plaintiff’s condition is terminal. He has a limited life expectancy. Apart from any urgency that may be related to the plaintiff’s state of health, the issues, both factually and medically, obviously had their share of complexity.
3 Fortunately, the matter essentially resolved, which is a credit to both parties. The only outstanding matter in dispute relates to counsel’s fees. As stated, it involves the operation of s50(3) of the AC Act and s278(5) of the Workplace Act.
4 Mr A Pillay of Counsel appeared on behalf of the plaintiff. Mr S Williams appeared as solicitor for the defendant. No oral evidence was called. Essentially, the dispute proceeded by way of submissions.
The ambit of the dispute
5 The ambit of the dispute is as follows. Mr Pillay, who is an experienced junior counsel, conducted this matter without a leader. All other aspects of the dispute having been resolved, he sought as his fee on brief the sum of $3,300. He also sought an additional $3,300 in respect of a day’s conferring and preparation. During argument, I indicated that I had no difficulty with the quantum of these fees. For counsel of Mr Pillay’s experience and bearing in mind the nature of the case, a total fee of $6,600 for a day’s preparation and on brief for hearing seemed to me to be reasonable. Indeed, this is not a proposition that was challenged.
6 Rather, the argument of Mr Williams was that the operation of the relevant provisions confines the fees to those payable on Magistrates’ Court scale “G”, so that the appropriate figure for the fee on brief is $2,557. In short, Mr Williams argued that the fees for counsel for the plaintiff were restricted to those appropriate for scale “G” of the Magistrates’ Court Scale of Costs. I might add these submissions were advanced fairly and comprehensively.
Ruling
7 This decision really turns upon whether or not I have a discretion in relation to counsel’s fees. If I do have such a discretion, in my opinion, and as I indicated during the hearing, Mr Pillay is entitled to the fees which he seeks, these certainly not being excessive given the nature of the case and his standing as counsel.
8 In my opinion, that discretion does exist. The wording of s278(5) of the Workplace Act, is identical to that in the Accident Compensation Act, and is follows:
“Costs awarded to a worker or claimant by the County Court in proceedings brought by the worker or claimant in which the judgment or decision is a judgment or decision that could have been made by the Magistrates' Court, had the proceedings been brought in the Magistrates' Court, must be awarded as if the scale of costs applicable in the Magistrates' Court applied.” (My underlining)
9 It is important to appreciate that costs must be awarded “as if the scale of costs applicable in the Magistrates’ Court applied”. In other words, this Court must look at the Magistrates’ Court Scale of Costs and apply it. The Section does not state that costs must be awarded on the appropriate Magistrates’ Court scale. They are to be awarded as if the Scale of Costs applicable in the Magistrates’ Court has application.
10 If that be so, the next question to be asked is, “Does the Magistrates’ Court Scale of Costs allow for any discretion on the part of the Court?” The answer is that it does. One of the introductory clauses to the Scale of Costs reads as follows:
“If in any case the Court or registrar thinks that any item is inadequate or excessive, the Court or registrar may allow a greater or lesser sum than the scale provides.”
11 That is an integral part of the Magistrates’ Court Scale of Costs. Understandably, that the Magistrates’ Court possesses such a discretionary power, and particularly in relation to the certification of counsels’ fees, seems to be scarcely an issue of contention in that Court – see, for example, Lewis v Infosys Technologies Ltd, a decision handed down on 22 June 2015, where his Honour Magistrate Garnett said:
“It is not in dispute that the court has the discretionary power to certify counsel fees and order that they be fixed on a daily fee basis. The question is whether the court should exercise its discretion in this matter and therefore depart from the usual order that they be determined in accordance with the applicable Scale.”
Given the preliminary clause which I have set out above, the above observation seems to me to be patently correct.
12 If the Magistrates’ Court Scale of Costs permits such a discretion and s278(5) of the Workplace Act (in addition to the corresponding Section of the AC Act) provides that costs must be awarded as if the scale of costs applicable in the Magistrates’ Court applied, it would seem to me to be at odds with logic to argue that the Magistrates’ Court possesses a discretion which this Court does not have. If the Magistrates’ Court, pursuant to its Scale of Costs, possesses a discretion and the County Court is to deal with costs “as if the scale of costs applicable in the Magistrates’ Court applied”, surely the County Court possesses the same discretion. Apart from anything else, that seems to me to represent a compelling argument.
13 I am aware of the decision of the Court of Appeal in John Lewis Food Service Pty Ltd v Reynolds [2014] VSCA 162. However, that case involved a different issue. The Court of Appeal decided that, pursuant to s50(3) of the AC Act, the Magistrates’ Court Scale of Costs applied to a claim for statutory benefits pursuant to that Act. The Court found that no discretion exists in that regard. The Magistrates’ Court Scale of Costs is the scale which applies. However, the Court was in no way saying that, once that Scale is applied, no discretion exists. Given that the existence of such discretion is spelt out in the Scale, that is hardly surprising. There is a marked difference between saying there is no discretion but that the Magistrates’ Court Scale of Costs must be applied and saying that, when applying that Scale of Costs, the discretion stated to be contained within in it is not applicable – that is, a specific provision in the Scale is to be ignored, in the County Court, even though operative in the Magistrates’ Court. As stated, the decision in John Lewis Food Service Pty Ltd is to the effect that the Magistrates’ Court Scale of Costs applied and no discretion existed in relation to avoiding that situation. What was not said, because there was no reason to state it, was that, once the Magistrates’ Court scale is adopted and applied, there is then a discretion.
14 In summary, it seems to me to be almost an unchallengeable proposition but that the Magistrates’ Court possesses the discretion to which I have referred in relation to the fixing of costs and that discretion is found in its Scale of Costs. If the Scale of Costs applicable in the Magistrates’ Court is to be applied by the County Court, that discretion must continue to exist.
15 I am prepared to exercise that discretion in favour of the plaintiff and fix counsel’s fees as requested by Mr Pillay. As earlier stated, there was no real challenge to the quantum of such fees in the sense that argument centred principally upon the matter which I have just been discussing. In my view, given the complexity of this case and its importance to the plaintiff, a day of preparation and conferring is completely reasonable. The fee of $3,300 for that and a similar amount upon the brief to appear strike me as very reasonable fees in each instance.
Conclusion
16 I find in favour of the plaintiff. Counsel’s fee is fixed at $3,300 in respect of a day of preparation and conferring and $3,300 in relation to the appearance. I shall hear the parties as to any ancillary orders that are required.
- - -
0
1
0