Hoile v Network Personnel Pty Ltd (No. 2)

[2012] VCC 1405

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT WANGARATTA

DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-12-00408

PAULINE HOILE	Plaintiff
v.
NETWORK PERSONNEL PTY LTD	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Wangaratta
DATE OF HEARING:	13 September 2012
DATE OF JUDGMENT:	17 September 2012 (revised 21 September 2012)
CASE MAY BE CITED AS:	Hoile v Network Personnel Pty Ltd (No. 2)
MEDIUM NEUTRAL CITATION:	[2012] VCC 1405

REASONS FOR JUDGMENT

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Catchwords:              Practice and procedure – Costs – Serious Injury Application – Plaintiff successful – Certification of counsel’s fees – Whether matter should be left to the Costs Court – Special circumstances relating to the circuit made it appropriate for the trial judge to record his views for the consideration of the Costs Court.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Monti with Mr G. Pierorazio	Nevin Lenne & Gross
For the Defendant	Mr W.R. Middleton SC with Ms R. Kaye	Wisewould Mahony Lawyers

HIS HONOUR:

1Following the delivery of judgment in matters on this circuit in favour of plaintiffs, their leading counsel Mr Monti, asked me in each proceeding to grant certificates in respect of counsels' fees. Ms Kaye on behalf of the defendant submitted that these questions should be left to the Costs Court for determination if the parties could not agree.

2The certificates sought by Mr Monti were:

a.Certificate for two counsel;

b.Certify leading counsel's brief fee at $4,950 (inclusive of GST) and including the circuit fee, and $495 per hour (inclusive of GST) for special conferences;

c.Certify junior counsel's brief fee at $2,500 (inclusive of GST), a circuit fee of $535.70 (inclusive of GST) and special conferences at $250 per hour (inclusive of GST).

3Mr Monti said that similar matters had been certified by the judge in Wangaratta during the circuit sittings in February 2012. Ms Kaye referred me to the decision of His Honour Judge Parrish on 15 November 2011 in Logan v. Aberdeen Holdings (Aust) Pty Ltd [2011] VCC 1417 in which the learned Judge dealt with a similar application at Geelong. Judge Parrish left all matters of costs to the Costs Court. One issue Judge Parrish referred to without deciding, was the 20 per cent reduction referred to in s.134AB(29) of the Accident Compensation Act 1986 and in the Workcover Legal Costs Order 2010 made by Order in Council dated 25 May 2010 pursuant to s.134AG of the Act.

4These matters have not been the subject of any authoritative determination by the courts, and the explanatory memorandum and the second reading speeches in relation to the amendment, do not appear to offer any assistance as to what was the intention of the changes. It is not clear whether any certification by a judge or determination by the Costs Court in respect of counsels' fees are intended to be covered by s.134AB(29) or the Legal Costs Order made pursuant to s.134AG. The reference to "amounts" in "any applicable scale of costs" in s.134AB(29) and in the Legal Costs Order does not seem to be applicable to determinations by a court in relation to counsels' fees because there is a range of "amounts" within which counsels' fees would ordinarily be allowed, although fees "in excess of the scale range" may be allowed by the trial judge or the Costs Court.

5It is appropriate in my view that, whilst judges should always retain a discretion to make an order in a particular case, so far as possible it is preferable for judges to leave matters of costs (including the quantification of counsels' fees), to the Costs Court. This would enable the Costs Court, from its view of many cases over time, to establish a consistent approach in this area and to apply the special expertise that it has.

6Notwithstanding, there will be instances in which the judge hearing a particular case or series of cases may either certify counsels' fees, (or make specific costs orders generally or in relation to particular matters).  Alternatively, trial judges may grant a certificate or, without making a specific order, may indicate in their reasons for decision the views they have formed and the basis for them as a guide to the Costs Court rather than as a conclusive certificate.

7In the present series of cases, I consider I should indicate to the Costs Court my view that the certificates sought by Mr Monti seem appropriate in the amounts sought, without reduction. I would not otherwise seek to comment on how s.134AB(29) or the Legal Costs Order might operate.

8The reasons I propose to give that indication in the present series of cases are as follows:

a.the Wangaratta circuit comprises largely personal injuries cases, the majority being serious injury applications;

b.Mr Monti and Mr Pierorazio were briefed before the circuit commenced to appear in the majority of cases;

c.in the current circuit, a callover of all cases was held via video link from Melbourne about three weeks before the circuit commenced;

d.Mr Monti appeared at the callover and informed the court of a number of matters which had already settled or which were to be stood over until the following circuit;

e.the final list of 21 cases which were to proceed at the circuit hearings was prepared. They were all serious injury applications. Mr Monti and Mr Pierorazio appeared in each matter;

f.some cases have resolved, others have been stood over to the next circuit. Ten trials have proceeded, two settling after the commencement of the hearing. Eight matters proceeded to judgement;

g.the Court has sat into the third week, effectively for a total of nine sitting days, as on Monday mornings and Friday afternoons, sitting times are limited;

h.the productivity achieved on circuit has been largely as a result of the hard work and efficient handling of the cases by both the plaintiffs’ and defendants’ counsel;

i.in this regard, junior counsel on each side has fully participated in the presentation of the cases in court.

9Accordingly, I propose to make an order in each case where the plaintiff succeeds as follows:

a.It is noted that:

i.the plaintiff has made application that the Court certify counsels' fees as follows [the order will insert the matters previously referred to];

ii.the Court is of the view that generally the responsibility for fixing costs in matters where the parties cannot agree on quantum is better left to the Costs Court;

iii.however, in the present case and others in the Wangaratta circuit commencing 3 September 2012, there are certain matters the Court wishes to draw to the attention of the Costs Court to assist it, if it is required to determine the quantum of the plaintiff's costs;

iv.these matters are set out in the reasons for decision dated 17 September 2012 in relation to the costs application in the proceeding of Hoile v. Network Personnel Pty Ltd (No 2), case no. CI-12-00408.

10It is not intended that this order or these views should be a precedent in any other matter heard by me or any other judge.

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Certificate

I certify that the preceding 4 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 17 September 2012 and revised on 21 September 2012.

Dated: 21 September 2012

Catherine Kusiak

Associate to His Honour Judge Anderson