Golden City Support Services v Forrest (No 2) - [2021] VSC 718

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…

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: [2021] VSC 718
Decision Date: 4 November 2021

CaseChat Overview and Summary

The case of Golden City Support Services v Forrest (No 2) involved a judicial review proceeding under the Workplace Injury Rehabilitation and Compensation Act 2013. Forrest, the applicant, sought to have the decision of a medical panel set aside, which had determined that he was not entitled to a particular medical treatment. The respondent, Golden City Support Services, opposed the application. The matter was heard in the Supreme Court of Victoria.

The central legal issues in this case were whether the Court should certify counsel’s fee for the hearing of the proceeding and, if so, what amount should be certified. The Court considered the relevant statutory provisions, the case law, and the specific circumstances of this case in making its decision.

The Court found that it was appropriate to certify counsel’s fees for the hearing of the proceeding. It noted that the case involved complex issues under the Act and required detailed consideration of medical evidence and expert opinion. The Court referred to Talevska v Ensign Services (Aust) Pty Ltd [No 2] and O’Brien v Greater Bendigo City Council; Lea v Fosterville Gold Mine (costs ruling) as authority for its decision. Ultimately, the Court certified the fees as reasonable and appropriate in the circumstances of the case.

The Court ordered that Golden City Support Services pay to Forrest’s counsel the certified amount of $21,450, which represented the reasonable and necessary costs incurred in relation to the proceeding.

Orders