Golden City Support Services v Forrest (No 2)
[2021] VSC 718
•4 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 04095
| GOLDEN CITY SUPPORT SERVICES INC | Plaintiff |
| v | |
| DEBRA FORREST | First Defendant |
| ASSOCIATE PROFESSOR EVANGE ROMAS | Second Defendant |
| ASSOCIATE PROFESSOR ANDREW HARDIDGE | Third Defendant |
| DOCTOR ROBERT SHIELDS | Fourth Defendant |
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JUDGE: | MOORE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 4 November 2021 |
CASE MAY BE CITED AS: | Golden City Support Services v Forrest (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 718 |
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COSTS – Judicial review proceeding under the Workplace Injury Rehabilitation and Compensation Act 2013 – Decision of medical panel not set aside – Whether Court should certify counsel’s fee for the hearing of the proceeding – Appropriate to certify counsel’s fees – Talevska v Ensign Services (Aust) Pty Ltd [No 2] [2021] VSC 319 – O’Brien v Greater Bendigo City Council; Lea v Fosterville Gold Mine (costs ruling) [2016] VSC 33.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Hall & Wilcox | |
| For the First Defendant | Mr R Kumar | Arnold Dallas & McPherson |
| For the Second to Fourth Defendants | No appearance | DLA Piper |
HIS HONOUR:
In my reasons for judgment in this matter delivered on 15 September 2021, I determined to dismiss the plaintiff’s application for judicial review of an opinion of a medical panel in relation to the assessment of the first defendant’s whole person impairment in a statutory impairment benefit claim.
A proposed minute of order prepared by the first defendant was provided to chambers on 20 October 2021. It is uncontroversial that, given that the plaintiff was unsuccessful, the plaintiff will be required to pay the first defendant’s costs of the proceeding on a standard basis.
The remaining issue for determination is whether I should certify the first defendant’s counsel’s fees. Although the plaintiff acknowledged that it was within the Court’s discretion to make an order certifying counsel’s fees and no issue was taken with the quantum of counsel’s fees proposed to be certified, the plaintiff submitted that I should decline to certify fees for counsel.
The plaintiff emphasised that this was a proceeding for judicial review, not a substantive claim for personal injury compensation, and that the Court does not consistently certify counsel’s fees in judicial review proceedings brought under order 56 of the Supreme Court (General Civil Procedure) Rules 2015. Reliance was placed upon the judgment of O’Meara J in Talevska v Ensign Services (Aust) Pty Ltd [No 2][1] in which his Honour refused an application for certification for the successful party’s counsel. His Honour rejected the submission that there was an ‘emerging’ or ‘usual’ practice to certify counsel’s fees and observed that considerations bearing upon the exercise of discretion arise on the particular facts of the case.[2]
[1][2021] VSC 319 (‘Talevska’).
[2]Ibid [10], [11].
The plaintiff submitted that the practice of certifying counsel’s fees for claims brought subject to the Workplace Injury Rehabilitation and Compensation Act 2013 should be viewed in the particular context of the rules regarding cost recovery which regulate and reduce the standard costs recoverable, being matters of no relevance to this proceeding. Further, it was submitted that there is no practice of certifying counsel’s fees in relation to proceedings for statutory impairment benefits, with such proceedings typically being litigated in the Magistrates’ Court rather than this Court.
The plaintiff argued that, because the issue in the case concerned an impairment benefit, there was no underlying statutory benefits or common law proceeding at all. The case was said to turn on a narrow legal point regarding the assessment of impairment under the AMA Guides. No witnesses were called. The material was not voluminous and the facts were largely uncontroversial. The hearing, which proceeded largely on the basis of written submissions, took half a day.
It was also submitted that there is nothing to suggest that, in the absence of certification, there is regularly a dispute regarding counsel’s fees, where costs on a standard basis are ordered in judicial review proceedings. If costs remains in dispute after discussion between the parties, the appropriate place for such dispute to be resolved is the Costs Court with the benefit of its specialisation and expertise.
Consideration
The principles concerning the certification of counsel’s fees were summarised as follows by J Forrest J in O’Brien v Greater Bendigo City Council; Lea v Fosterville Gold Mine (costs ruling):[3]
(a)The Court possesses an overriding discretion in relation to the fixing of an award of costs, including allowances for counsel’s fees.
(b)The Costs Court is empowered by the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’) to fix counsel’s fees for attending a hearing or trial as ‘subject to the provisions of any applicable scale’.
(c)There is no uniform practice in the Court in relation to certification of counsel’s fees. It is open to a judge to refer questions of this nature to the Costs Court in these circumstances. Alternatively, a judge may consider it appropriate to resolve the issue at or around the time of trial.
(d)Some judges certify for two counsel; some certify for two counsel and fix the brief fee. Others prefer to let the Costs Court sort the issue out. It is entirely up to the judge.
(e)The Court’s discretion in fixing a fee is to be exercised subject to a number of factors, such as: the complexity of the matter, the extent of the legal practitioner’s involvement in the matter, and any specialised knowledge or skills required.
(f)The Supreme Court scale of costs 2015 – 2016 makes provision for counsel’s fee for certain types of work. Whilst the scale cannot fetter a judge’s discretion in the fixing of costs, it is regarded as a cogent guide to the appropriate allowance.
[3][2016] VSC 33, [13] (citations omitted).
Although it would appear that the usual practice has been that certification is not ordered in judicial review proceedings, the fact that certification has been ordered in a number of recent judicial review cases underlines that there is no fixed rule and that everything must depend upon the exercise of the Court’s discretion by reference to the facts and circumstances of each case.[4] Argument about whether or not there exists a ‘usual practice’ in relation to the certification of counsel’s fees in respect of particular types of proceedings tends to distract from the need to focus on whether the facts and circumstances of a case warrant the exercise of the discretion.
[4]See, for example, where certification was ordered: Withers v Chalmers Industries Pty Ltd (Costs) [2020] VSC 694 (Richards J); Jerak v Dr Lazarus & Ors (Costs) [2020] VSC 776 (Forbes J); and Voss v Downes-Brydon (No 2) [2020] VSC 863 (Ginnane J).
There are two particular features of this proceeding and the attendant circumstances of the litigation which I consider do justify the making of an order certifying counsel’s fees.
First, the proceeding involved legal issues of some complexity, including the significance and application of the judgment of the Court of Appeal in Linfox Transport (Aust) Pty Ltd v Toohey,[5] related concepts of ‘injury’ and ‘impairment’ and the interpretation and application of the provisions of the AMA Guides. Notwithstanding the effort now made by the plaintiff to diminish the complexity of the proceeding, it saw fit to brief senior and junior counsel at the hearing of the proceeding. It is a case which may be contrasted with Talevska in which the central issue in dispute was largely factual and which O’Meara J observed did not attract issues of legal or other complexity of the kind that can attend other cases.[6]
[5][2004] VSCA 233.
[6]Talevska, (n 1), [12].
Secondly, as in Withers v Chalmers Industries Pty Ltd (Costs),[7] fixing costs is likely to avoid or at least reduce the effort, expense and delay involved in a taxation of costs and in doing so further the overarching purpose of s 7 of the Civil Procedure Act 2010 ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’. In the circumstance of this case, as the trial judge I am well placed to decide the issue. It is a simple exercise and the amounts sought to be certified are modest, uncontroversial and appropriate given the nature of the litigation. The fact that this proceeding concerns a statutory impairment claim tends to underline the utility in efficiently and quickly resolving the issue of costs, rather than allowing for the possibility of further time and expense being incurred in unnecessary disputation about costs.
[7][2020] VSC 694.
I will therefore certify for the first defendant’s counsel’s fees in the terms proposed by the first defendant.
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