Grech v Victorian WorkCover Authority (Ruling as to Costs)
[2020] VCC 968
•7 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04813
| SHAUN GRECH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | JUDICIAL REGISTRAR GURRY | |
WHERE HELD: | Melbourne | |
DATE OF DIRECTIONS HEARING: | 29 April 2020 | |
DATE OF RULING: | 7 July 2020 | |
CASE MAY BE CITED AS: | Grech v Victorian WorkCover Authority (Ruling as to Costs) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 968 | |
RULING AS TO COSTS
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Subject:COSTS
Catchwords: Application by plaintiff for certification for counsels’ fees
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; WorkCover (Litigated Claims) Legal Costs Order 2016; Accident Compensation Act 1985; Civil Procedure Act 2010
Cases cited:Barman v Victorian WorkCover Authority (Ruling as to Costs) [2020] VCC 380; Gellard v Victorian WorkCover Authority [2017] VCC 1919; Dowling v Myers Street Family Medical Practice Pty Ltd(Ruling as to Costs) [2018] VCC 2314; Traumanis v State of Victoria (Ruling) (unreported, VCC); Monty v CSR Viridian Operations Pty Ltd (Ruling) [2013] VCC 686; Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; Calderbank v Calberbank [1975] 3 All ER 333; Peile v Nobel (Australasia) Pty Ltd [1966] VR 433
Ruling:Orders made certifying for Senior and Junior Counsels’ fees on brief.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Frederico | Maurice Blackburn Lawyers |
| For the Defendant | Ms B Myers | Thomson Geer |
HIS HONOUR:
1 This proceeding was set down for hearing on 29 April 2020 as a serious injury application.
2 On 28 April 2020, the defendant’s solicitors wrote to the Court advising that the proceeding had, in essence, resolved, but requested “that the originating motion be re-listed as a directions hearing for the issue of certification of plaintiff counsels’ fees to be decided”.
3 The directions hearing proceeded by way of audio-visual link before me on 29 April 2020. I heard submissions from counsel for the parties and made the following Orders:
“1. All persons shall appear, give evidence and make submissions in this proceeding this day by audio visual link.
2. The Direction Hearing of 29 April 2020 is adjourned sine die.
3. The Plaintiff is to provide written submissions and any material in support by 13 May 2020.
4. The Defendant is to provide written submissions in reply by 27 May 2020.
5. The Plaintiff is to provide reply by 7 June 2020.
6. Costs of today and costs of submissions are reserved.”
4 Written submissions, together with material in support and a Reply have been received.
5 The plaintiff seeks certification for counsels’ fee, being Senior Counsel’s fee brief on hearing, $6,000, and Junior Counsel’s fee brief on hearing, $3,000.
6 The defendant submits that there should be no order certifying for counsels’ fees; however, in the event that I make an order certifying for counsel, then I should certify for experienced Junior Counsel briefed and not for Senior Counsel. The quantum of certification is not in dispute.
7 On 11 October 2019, the plaintiff issued an Originating Motion seeking leave to bring proceedings for the recovery of damages for personal injuries arising throughout the course of his employment with his employer, including but not limited to 1 December 2015, in accordance with s327 of the Workplace Injury Rehabilitation and Compensation Act 2013.
8 A proper basis certificate was signed by Ben McIlwain, solicitor for the plaintiff, on 11 October 2019. An overarching obligation certificate was signed by the plaintiff on 14 October 2019.
9 An appearance was filed by Thomson Geer, solicitors for the defendant, on 28 October 2019.
10 On 29 October 2019, I made timetabling orders, which included setting the proceeding down for hearing on 29 April 2020.
11 The plaintiff was born in 1990. In the course of his employment with SGA Engineering (Australia) Pty Ltd as a rigger, on 1 December 2015, he sustained a severe crush injury to his right hand. The plaintiff’s hand was crushed between the basket of a boom lift and a steel column, and he suffered the following injuries:
(i) Right ulnar compound fracture;
(ii) Right ulnar non-union;
(iii) Right thumb and right index finger dysfunction;
(iv) Claw fourth and fifth fingers;
(v) Right ulnar nerve dysfunction.
12 The plaintiff underwent four surgeries arising from the injury.
13 The plaintiff sought leave to commence proceedings for pain and suffering and loss of earning capacity.
14 The defendant served notice pursuant to s4, Part A, of the WorkCover (Litigated Claims) Legal Costs Order 2016 (“the LCO”) on 18 November 2019. The notice stated that WorkSafe Victoria was satisfied that the injury sustained by the plaintiff satisfied the requirements of s325(2)(b)(i) but not s325(2)(b)(ii) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the notice”) (“the offer”).
15 On 20 April 2020, the plaintiff’s solicitors advised that the plaintiff would accept the pain and suffering certificate.
16 The essence of the defendant’s submissions is that no certification should be made, as the plaintiff should have accepted the offer within the time prescribed and not closer to the trial date.
17 The LCO prescribes and regulates the professional costs and disbursements that may be paid by the Authority or a self-insurer to a legal practitioner acting on behalf of a worker in respect of any claim or proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 or s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013. It is divided into parts: Part A regulates the professional costs of solicitors, whilst Part B deals with disbursements. Part B states that in addition to sums payable under Part A, the worker or worker’s legal practitioner shall be entitled to be paid as a disbursement:
“5. the cost of counsel’s fees (including brief fee) incurred not more than 28 days prior to day 1 of the hearing. The counsel fees payable will be calculated in accordance with the Scale of Costs or any other sum which is agreed or ordered by the Court.”
18 Part C states:
“In respect of an item in Part B, if a dispute arises in relation to the allowance of an item claimed or the reasonable cost of the item, the County Court Rules of Civil Procedure will apply to the dispute resolution process.”
19 I do not believe it is in dispute between the parties that one of the purposes of the LCO is to encourage early resolution of applications for serious injury and ensure legal costs and disbursements are reasonable to promote the financial viability of the scheme.
20 The parties agreed that I have a discretion to certify or not.
21 The question is, what is the test and what are the factors I should consider in exercising my discretion to certify or not?
22 The parties referred me to several rulings of judges of this Court on the issue.[1] All Judges made their decision having considered the evidence available.
[1]Barman v Victorian WorkCover Authority (Ruling as to Costs) [2020] VCC 380 (“Barman”), per Judge Lauritsen; Gellard v Victorian WorkCover Authority [2017] VCC 1919 (“Gellard”), per Judge Dyer; Dowling v Myers Street Family Medical Practice Pty Ltd(Ruling as to Costs) [2018] VCC 2314; (“Dowling”) per Judge Coish; Traumanis v State of Victoria (Ruling) (unreported, VCC, 26 May 2017) (“Traumanis”) per Judge Carmody; Monty v CSR Viridian Operations Pty Ltd (Ruling) [2013] VCC 686 (“Monty”) per Judge Smith
23 What is indisputable is that I should not have recourse to hindsight in making this decision.
24 Consideration must also be given to issues which arise for the plaintiff’s practitioner. These include acting upon instructions from the client, the obligations of a solicitor to the client, and the obligations of both the client and practitioner pursuant to the Civil Procedure Act 2010 (“the CPA”). In particular, the signing of a proper basis certificate and the overarching obligations pursuant to the CPA.
25 I note that s42(3)(c) of the CPA states that for the purposes of the section, a determination by a legal practitioner –
“… as to whether any claim, response to a claim, question posed or response to a question posed has a proper basis, on the factual and legal material available, must be based on a reasonable belief that the claim, response to a claim, question or response to a question has a proper basis.”
26 That section references the determination “on the factual and legal material available”. The use of the word “available” in this context is significant. What is common with all litigation is that the evidence may change over the course of the proceedings, therefore the determination and obligations of a practitioner are not confined to only at the time of the signing of the certificate.
27 In Barman,[2] Judge Lauritsen said, at paragraph 6 of his Ruling:
“In each [of three rulings referred to], the test emerges as the unreasonable rejection or non-acceptance of an offer. This is the test stated by the Court in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2)[3] when dealing with Calderbank[4] offers:
‘The critical question is whether the rejection of the offer was unreasonable in the circumstances.’”
[2][2020] VCC 380
[3](2005) 13 VR 435 at paragraph [23]
[4]Calderbank v Calderbank [1975] 3 All ER 333
28 His Honour noted that in Hazeldene, the Court said, at paragraph 24:
“The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations.”
29 His Honour noted that the Court, in Hazeldene, had set out a non-exhaustive list of factors to be considered.
30 I also note that Judge Coish, in the matter of Dowling,[5] said it is:
“… incumbent upon the plaintiff and her lawyers to carefully consider that notice and the plaintiff's application in respect of loss of earning capacity.”
[5](Supra) at paragraph [22] (Transcript of Ruling at page 6, lines 20-23)
31 The defendant’s submissions referred to the medical evidence available at the time of the offer to the plaintiff. It was submitted at that time, the plaintiff had, and was exercising, a capacity for full-time employment as a dogman. This had been since July 2018, which was for more than fifteen months. In addition, the plaintiff was exercising a capacity to undertake overtime during the period and his earnings were more than double his pre-injury earnings.
32 The plaintiff had initially returned, in mid-January 2016, to his pre-injury employer, performing alternative duties; however, he was made redundant by that employer in mid-2016. He then obtained employment on a casual basis working as a dogman in July 2018. In his affidavit in support of the application dated 30 May 2019, he set out, at paragraphs 41 to 45, the evidence in relation to this employment and his irregular hours worked.
33 However, his position as a dogman was made permanent in July 2019, approximately four months before the offer.
34 The plaintiff conceded his wages have increased in his role as a dogman and that he was earning significantly more than he was prior to his injury. However, it is the plaintiff’s submission that the issue was whether he can sustain full-time employment as a dogman.
35 It is further submitted that the plaintiff was under twenty-six years of age at the time of the accident. As such, the plaintiff was not bound by the provisions of s134AB(38)(e) of the Accident Compensation Act 1985 and the three-year pre and post “without injury” earnings figure to establish a 40 per cent pecuniary loss. The plaintiff submitted that the common law position prevails with respect to establishing a 40 per cent loss of earning capacity.
36 Herein, I believe, lies the difficulty for the plaintiff at the time when the offer was made. The plaintiff, in electing not to pursue loss of earning capacity, abandons his common law rights for that head of damage permanently.
37 Counsel for the defendant submitted that at the time the offer was made, the plaintiff had the benefit of the medical report of Mr John Buntine, hand, plastic and reconstructive surgeon, dated 21 November 2018. From that report, the defendant relies upon the statement by Mr Buntine that the plaintiff was working more than full time as a dogman, and Mr Buntine acknowledged that this was a credible effort.
38 However, I note that in Mr Buntine’s report, at page 5, in the heading “Limitations at Work”, he reported:
“Mr Grech said function of his right hand is not good enough for him to work as a rigger but that he can work as a dogman as he can hold on with his left hand and that he could make some use of his right hand to do a certain amount of driving of a forklift vehicle but that driving a forklift all day would cause unacceptable pain in his right arm.”
39 The plaintiff is right-hand dominant.
40 At page 7, Mr Buntine stated:
“There is a considerable impairment of function of the right hand due to both sensory and motor impairments, observations relating to which are included above.
Moderately severe current signs, symptoms and complaints are discussed above. His right hand is clawed, movement of his right thumb is impaired, sensation of the little and right fingers and of the index is impaired, the right hand grip is weak and he still experiences significant pain in the hand.”
41 At page 8, under “Prognosis”, Mr Buntine stated:
“The prognosis is for little change to occur.”
42 The plaintiff’s solicitors obtained a report from Mr Christopher Pullen, orthopaedic surgeon specialising in upper limb surgery, dated 9 December 2019, after having examined the plaintiff on 2 December 2019. The offer was made on 18 November 2019. Mr Pullen, at page 6 of his report, under the heading “Prognosis”, stated:
“… The prognosis for Mr Grech’s right upper limb condition is poor. … .”
43 Mr Pullen went on to state:
“… he will have persistent problems with right forearm pain, right hand stiffness and weakness and clawing of his fingers for the foreseeable future.”
44 At page 7, Mr Pullen stated:
“Based on the information provided by Mr Grech he will be restricted in his ability to perform pushing, pulling, lifting and writing as a consequence of his work injury. Repetitive and or prolonged use of the right arm will also be limited. … .”
45 Later, Mr Pullen stated:
“Based on the information provided by Mr Grech, he will be unable to return to full-time, unrestricted work in his pre-injury position of employment for the foreseeable future as a consequence of his work injury.”
46 At page 8, Mr Pullen stated:
“Based on the information above and the nature of Mr Grech’s upper limb injuries he will be able to perform part-time employment as a Dogman only for the foreseeable future as a consequence of his work injury.”
47 I note that the defendant’s solicitors arranged for the plaintiff to be examined by Dr Dominic Yong, specialist occupational physician, who provided a report dated 24 February 2020. In that report, at page 10, Dr Yong stated that he noted Mr Grech’s pre-injury role as a rigger and the tasks which he performed. Dr Yong concluded that these duties would exceed the current restrictions. He further stated:
“Thus, Mr Grech does not have a capacity to work his pre-injury employment.
Without any further improvement with any potential further medical or surgical treatment, he will be unable to return to this type of role in the future.”
48 Dr Yong, in looking at the plaintiff’s role as a full-time dogman, noted that the plaintiff said he was doing the required role without any particular issues. Dr Yong said, at page 11 of his report:
“This appears to comply with the restrictions, and thus would be considered suitable to perform.”
49 In the decisions where judges were not prepared to certify, what is evident is that the evidence available indicated that there was little prospect of success in a claim for economic loss at the time of the offer.
50 Judge Carmody, in his Ruling in Traumanis,[6] said:
“… However, based on what I have been told, that is that all doctors have said at all times the plaintiff had a work capacity all along, it is not until recently the plaintiff had obtained work brings to the fore that the offer of - that the November offer, 2016, should have been accepted at that time. … .”
[6]Transcript of Ruling at page 7, lines 20-25
51 In Gellard,[7] where the legal costs order was served on 8 March 2017, the plaintiff had worked on following her injury between September 2012 and November 2015. Judge Dyer noted the reports from the plaintiff’s general practitioner in that case, Dr Kelvin Mah, in December 2013 and March 2015, were not supportive of a viable case in respect of pecuniary loss. At page 9, paragraph 37 of the Ruling, Dr Mah is quoted as saying:
“She is currently doing her normal duties with no restrictions and her prognosis is very good.”
[7]Supra
52 That is not the case here. At the time the offer was made, the employment prospects of the plaintiff and his capacity to work were most uncertain. Medical opinion gave no clear indication. Further, within a month of the offer having been made, Mr Pullen expressed an opinion that the plaintiff could only perform part-time employment as a dogman in the foreseeable future.
53 The plaintiff was born in April 1990 and was twenty-five years old at the time of the accident and, at the time of the offer, was twenty-nine years old. He was right-hand dominant. He sustained a significant injury to his right hand and underwent four surgeries. There was no issue raised about the credibility of the plaintiff.
54 For those reasons, it could not be said that it was unreasonable for the plaintiff not to accept the offer at the time it was made. The plaintiff and his solicitor faced a very difficult decision regarding the offer.
55 When the offer was accepted it was after the involvement of Senior and Junior Counsel, the obtaining of further medical evidence and the knowledge by the plaintiff that he had been able to perform his role as a dogman for a further five months.
56 I consider this serious injury application was a complex one on any view, and an important one for the plaintiff. It could not be considered a simple or straightforward matter.
57 For those reasons, I am not satisfied that the non-acceptance of the LCO notice at the time, was unreasonable. I am therefore prepared to certify for counsels’ fee.
58 The further submission of the defendant was that I should certify for experienced Junior Counsel only. I do not agree with that submission, and consider this matter was appropriate for Senior and Junior Counsel, and will certify accordingly. As I have said, this was a complex matter. It was reasonable for a prudent solicitor in the position of the plaintiff’s solicitor to brief both Senior and Junior Counsel in order to present the plaintiff’s case as efficiently and as well as it could.
59 In the decision of Monty,[8] Judge Smith considered a number of authorities and cited what Starke J said in Peile v Nobel (Australasia) Pty Ltd[9] on the question that should be posed:
“… Would a reasonable and prudent, but not over-cautious man, in all the circumstances, seek the services of two counsel, notwithstanding the expense? In determining this question, the Taxing Officer should take into consideration and should balance both the attainment of justice and the interests of the party in the successful outcome of the litigation, and should bear in mind that there is an inner and outer Bar, and that as a general rule the most skilful and the most experienced counsel are within the inner Bar. The Taxing Master must look at the matter from the point of view of the party who has to make the decision before the trial, at the time when it is proper, in the circumstances of the case, that counsel should be briefed. He should guard against having recourse to hindsight in making his determination. The facts in any particular case which should lead the Taxing Master to allow two counsel are as various as is litigation itself, and each case must depend on its own facts. … .”
[8]Supra
[9][1966] VR 433 at 437-438
60 The plaintiff has only one go at this application. The consequences of an unsuccessful application are fatal to the plaintiff. Further, there are many occasions when the Authority has also briefed senior counsel where it considered appropriate. The reasons I ruled for certification equally apply to the decision on the appropriateness of briefing Senior and Junior Counsel.
61 Accordingly, I shall make the following orders:
(1) I certify for Senior Counsel’s fee on brief at $6,000;
(2) I certify for Junior Counsel’s fee on brief at $3,000.
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