Holdsworth and Ellison v RSPCA
[2015] VCC 1111
•20 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
COMMON LAW DIVISION
GENERAL LIST
Case No. CI-03-04358
| JAMES MAXWELL HOLDSWORTH & HEATHER MUNRO ELLISON | Plaintiffs |
| v | |
| RSPCA (VIC) INCORPORATED | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22 & 23 July 2015 | |
DATE OF RULING: | 20 August 2015 | |
CASE MAY BE CITED AS: | Holdsworth & Ellison v RSPCA | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1111 | |
RULING AS TO COSTS
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Catchwords: Costs in very lengthy matter – some areas of agreement, including that matter appropriate for a gross sum assessment – dispute as to whether costs should be on the County Court and standard scales or the Supreme Court Scale – consideration of certain occasions of reserved costs – argument concerning amount for which plaintiffs’ counsels’ fees should be satisfied – factors to be considered.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr G Nash QC with Mr S Langslow | Maitland Lawyers |
| For the Defendant | Mr D Christie | Corrs Chambers Westgarth |
HIS HONOUR:
Background
1 This is hopefully the last Ruling in relation to this very long and hard-fought case. It is a Ruling as to costs. Happily, there was considerably more agreement as to what has to be done in relation to costs than there has been in relation to many other aspects of the case. This may have been due to the presence of the two very experienced costs consultants in the Court. These were Mr Paul Linsdell and Ms Elizabeth Harris. I gained the impression that their input assisted considerably. Nevertheless, some issues remain to be determined.
2 Mr G Nash QC with Mr S Langslow of counsel appeared on behalf of the plaintiffs. Mr D Christie of counsel appeared on behalf of the defendant. Whilst, as stated, the costs consultants were present and their views obviously sought, neither gave evidence. In fact, whilst quite lengthy written submissions and proposals were put before me and addressed by counsel, no oral evidence was in fact called.
The proposed course of action and the remaining issues to be determined
3 Essentially the parties are in agreement concerning the matter being appropriate for a gross sum assessment. Clearly, if no agreement could be reached as to the quantum of such assessment, the matter would have to be determined by the Costs Court. However, before this situation of either agreement or determination by the Costs Court can be reached, there are four issues concerning which I am required to rule.
4 The following are the four areas of dispute in relation to which I am asked to rule, the first two of which are closely related and which I shall deal with together:
(i) whether the costs ordered should be on the standard basis as for the County Court or whether costs should be on the Supreme Court Scale;
(ii) an alternative to the above is whether costs should be on the County Court Scale as it was prior to the introduction of the standard basis and on the standard basis thereafter, or whether they should be on the standard basis throughout;
(iii) whether, in relation to certain instances of reserved costs, I should order that such costs be paid by the plaintiff, by the defendant or whether there should be no order as to costs;
(iv) the quantum of counsels’ fees.
5 I shall deal with these issues in turn. I shall outline the submissions made on behalf of the parties and, in turn, give my Ruling in relation to each.
(i)Whether the costs ordered should be on the standard basis for the County Court or whether costs should be on the Supreme Court Scale; and (ii), alternatively should costs be on the standard basis throughout
6 Initially the plaintiffs made lengthy written submissions in support of the proposition that they were entitled to costs on an indemnity basis. However, when this matter was eventually ventilated, what the plaintiffs in fact sought was that I certify for costs to be paid on the Supreme Court Scale. (See Transcript (hereinafter referred to as “T”) 4978 and 4992 and following pages.) The defendant opposed this, effectively arguing that costs should be on a party/party basis up until the date of the effective abolition of the County Court Scale (6 October 2014) and thereafter on the standard basis, which is 80 per cent of the Supreme Court Scale.
7 The argument of Mr Nash on behalf of the plaintiffs in relation to costs being paid on the Supreme Court Scale could be summarised as follows. This was a case which, at the very beginning, should have been in the Supreme Court. At the commencement of the trial, there was discussion and argument as to whether the matter could be heard, even by agreement, in the County Court. The Court correctly ruled that it could be so heard. However, the responsibilities resting on the parties and their legal advisers were what they would have been if the matter had been transferred to the Supreme Court. The County Court Scale was, until recently, totally out of kilter with the powers and jurisdiction of the Court. Given the size and complexity of the case meant that it would have been required to be dealt with in the Supreme Court had agreement not been reached in the way that it was.
8 For the whole of the liability hearing, the defendants were represented by a robust QC. The case as a whole was conducted as a very robust, complex Supreme Court proceeding in which “no holds were barred”. It was a technically difficult and psychologically pressure-filled case. Costs should be awarded on the Supreme Court Scale.
9 I pointed out to Mr Nash that it was my recollection that, at a directions hearing well before the trial started, it was the defendant who was saying that the matter should be in the Supreme Court and the plaintiffs who resisted this, arguing that it should remain in the County Court. I queried Mr Nash as to whether the plaintiffs should be entitled to Supreme Court fees when they successfully opposed the matter being transferred there. Mr Nash’s response was that all involved, at least on the plaintiffs’ side, thought that by remaining in the County Court there would be a considerable saving in time, the case being a very old one. Mr Nash also argued that another option, if his argument concerning Supreme Court costs was not accepted, was to award costs on the standard basis (80 per cent of the Supreme Court costs) throughout and not on the basis of party/party costs until 6 October 2014 and the standard rate thereafter. However, the basic submission on behalf of the plaintiffs remained that the case was, in every way, a Supreme Court case.
10 Mr Nash further submitted that I had an overall discretion as to costs, and that included whether costs should be paid on the standard basis or on the Supreme Court rate. The discretion is to order costs as appear just and appropriate.
11 Mr Nash conceded that, in the ordinary course of events, costs would be assessed as at the rate operating at the time when the various items of costs were incurred, rather than at the time of final judgment. In this regard, some of the arguments in relation to indemnity costs are relevant. It was submitted by Mr Nash that the issue of whether or not costs should be on the Supreme Court Scale was one with which I should deal, because it is an exercise of judicial discretion in looking at the case a whole – see T5001.
12 The arguments of Mr Christie, on behalf of the defendant, in relation to this issue could be summarised as follows.
13 It is not contested that the Court has a discretion to direct that taxation be on the Supreme Court Scale – see T5023. Mr Christie then raised the issue which I had discussed with Mr Nash, namely that it was the plaintiffs who pressed for the case to stay in the County Court. If the plaintiffs wanted to proceed in the Supreme Court, they had the opportunity. They elected to run the case in the County Court. The County Court Scale should be the applicable scale. The then solicitors for the defendant, on 1 February 2012, agreed to waive the jurisdictional limit of the County Court, this waiver being at the request of the plaintiffs’ solicitors. There was no agreement to keep costs to the County Court Scale, but there was no suggestion by the plaintiffs’ solicitors that costs would be sought on the Supreme Court Scale. The logical construction of the relevant correspondence was that the matter was remaining in the County Court with everything so involved, including the Scale of Costs.
14 Next, whilst a much larger figure was subsequently mentioned, the maximum amount of damages was limited by consent to, in round figures, $2,466,100. The plaintiffs in fact ended up with a verdict for damages in a sum not much in excess of a $1,000,000, which was commensurate with the County Court limit of jurisdiction when the proceeding was issued ($200,000). It is also below the jurisdictional limit when the argument was conducted as to whether the matter should go to the Supreme Court or stay in the County Court. In summary, it is not a valid point to say this case should have gone to the Supreme Court because of its magnitude, and accordingly costs should be awarded on the Supreme Court Scale.
15 The plaintiffs’ written submissions misquote what was clearly said in the judgment on quantum. The Court said that the proceedings were a relentlessly contested matter, with, at times, some issues being contested almost to the point of the absurd. The Court did not say that the defendant contested matters to the point of the absurd. I might say that I agree entirely that what was put in the plaintiffs’ written submissions was erroneous and misquoted what was said in the judgment.
16 Mr Christie then directed my attention to a portion of the plaintiffs’ written submissions where it was alleged that, in the liability hearing, I had ruled that the plaintiffs’ cattle were stud cattle. It was alleged by the plaintiffs that, despite this, the defendant continued to contest this issue. I agree with the submission of Mr Christie. I had not so ruled and I did not find this a persuasive argument on the part of the plaintiffs.
17 Mr Christie also argued that other matters raised in the written submissions of the plaintiffs were erroneous. These included an allegation of unnecessary prolongation of the proceeding; an alleged reneging on the agreement as to jurisdictional limit; whether or not there had been an agreement in relation to whether the matter proceeded to a jury or a cause and the like.
18 It is alleged in the plaintiffs’ written submissions that there was inadequate discovery. Questions of discovery should have been taken up at an earlier point before the matter got to trial. In any event, no inordinate amount of time was consumed in relation to it. Further, the plaintiffs failed to answer, with any speed, calls for the registration certificates of the bulls involved. On the last day of the quantum hearing, the plaintiffs produced some financial documents that had not been discovered and had been overlooked. The defendant may have been able to make some discovery earlier, but that is not unusual and does not mean that indemnity costs should be ordered.
19 It is also to be remembered that the plaintiffs originally claimed that 311 cattle were destroyed or lost. That was the basis of their claim. The Court found in their favour for 131 cattle. The plaintiffs claimed $7.8 million damages, although they were limited to approximately $2,466,100. In the event, they only recovered just over $1,000,000. These were two significant areas in which the defence of the claim was successful.
20 Accordingly there is no basis for awarding costs on the Supreme Court Scale or on some special basis.
21 Costs should be awarded on the usual basis. It is not a situation where a party, properly advised, should not have run a case or whether there has been an offer of compromise involved. There is no obvious obfuscation or delay. It was a long trial. Ultimately the plaintiffs succeeded, but nothing like to the tune of what was sought.
Ruling
22 In relation to this element of the costs dispute, I am not disposed to order that the defendant pay the costs of the plaintiffs on the Supreme Court Scale, save for one small item to which I shall return. Similarly, I am not disposed to order that what is now the standard rate of costs (80 per cent of the Supreme Court Scale) should apply throughout from the commencement of the proceeding. In my view, save for the minor exception to which I shall come, the plaintiffs should receive costs on the County Court Scale in respect of legal work performed prior to 6 October 2014 and at the standard rate thereafter. It was conceded by Mr Nash that this would be the normal type of order and I am not convinced that anything other than a predominantly normal costs order in favour of the successful litigants should be made.
23 It was the plaintiffs who argued forcefully that, despite its potential quantum, this matter should be heard in the County Court. Indeed, at the request of the plaintiffs, I permitted an amendment of the quantum claimed so that it became a specific amount ($200,000) as opposed to simply “damages”. $200,000 represented the jurisdictional limit as at the time when this proceeding was commenced. This amendment was to facilitate the plaintiffs being able to seek the amount of approximately $2,466,100 in the County Court, this having been the agreed maximum of the claim. Amending the amount of damages sought to $200,000, as opposed to simply “damages”, left scope for the operation of what was said by the High Court of Australia in Incorporated Nominal Defendant v Donelan (1972 – 3) ACR 1139.
24 This in turn permitted the plaintiffs to seek the agreed maximum to which reference has been made. The argument that the plaintiffs should receive their costs on the Supreme Court Scale does not seem to me to sit well with the fact that it was the plaintiffs who specifically wanted the matter heard in the County Court. The fact that this was a very long, hard-fought and potentially quite complicated case does not mean that there is an entitlement to costs on the Supreme Court Scale, particularly when the parties seeking such entitlement are the very parties who were keen to have the matter contested in the County Court.
25 In addition, the only argument advanced by Mr Nash in relation to the plaintiffs wanting the matter to remain and be heard in the County Court was to the effect that it was thought that this would represent a saving of time. This does not seem to me to be a factor of sufficient magnitude to warrant a departure from what would otherwise have been the normal costs order and the awarding of costs on the Supreme Court Scale.
26 Nor am I persuaded that the overall behaviour or manner of conducting its case by the defendant warrants the imposition of what could be described as a type of costs penalty. I might say that arguments along these lines are to be found more in the plaintiffs’ written submissions, when indemnity costs were being sought, as opposed to in the oral submissions of Mr Nash, in which costs on the Supreme Court basis were sought. In any event, I am not persuaded by such arguments. The matter was hard-fought and at length by all concerned. I shall not again go into the issue of whether or not the defendant contested the question of whether the cattle were stud cattle in the face of a Ruling of mine that they were. That, as I have previously ruled, was patently not the situation.
27 Whilst the defendant lost the argument as to the matter proceeding as a jury, that does not seem to me to be a factor. It is to be remembered that both sides gave an almost wildly inaccurate estimate of the duration of the case (10 days). There was also considerable confusion in the plaintiffs’ camp as to whether a jury was required. Similarly, I am not moved by the argument that the defendant unnecessarily delayed the conduct of the trial by being slow in relation to discovery of certain documents. Questions of discovery should have been raised by both parties and resolved prior to the matter going to trial. Much of the argument which did take place concerning discovery occurred at the beginning and the end of the Court day and I am not persuaded that it delayed the conduct of the trial to any great extent.
28 Furthermore, as pointed out by Mr Christie, the plaintiffs failed to produce with any speed the registration certificates of certain bulls despite calls for them, in addition to producing some financial documents that had not been discovered, but had been overlooked, very late in the trial. In a trial such as this, these things happen, even if, in an ideal world, they should not.
29 There was also some limited force in the argument that the plaintiffs ultimately recovered damages in a figure less than half that of the agreed maximum quantum. They also recovered in relation to just over 42 per cent of the animals claimed. It is not a situation where the defendant pressed on with a hopeless case and was totally routed. Indeed, in relation to one potentially substantial cause of action which would have been productive of damages, namely, detinue, the plaintiffs in essence failed completely.
30 In summary, the fact that I have a discretion in relation to costs was not challenged. However, save for the small instances to which I shall now turn, nothing has been said or written which persuades me to order costs other than on what could be described as the normal basis – namely, a party/party basis, using the County Court Scale, up to 6 October 2014 and thereafter on the standard basis, being 80 per cent of the Supreme Court Scale. The reasons for my rejecting the plaintiffs’ submissions in relation to costs on a standard basis throughout are virtually identical with those for rejecting the application for costs on the Supreme Court Scale. I shall not go through them again.
31 The small exception to which I have referred relates to the introduction by counsel for the defendant of a completely new defence, described as a complete defence, during closing addresses on liability and after some 37 hearing days. I would refer to my Ruling of 8 May 2014 (revised 31 July 2014). This submission arose without warning on the 38th day of hearing, no such warning being given to either the Court or to the plaintiffs. No satisfactory explanation was given for this. However, the application to amend the Defence so as to deny vicarious liability (a matter previously essentially conceded) was unsuccessful.
32 As stated, this new and allegedly complete defence arose “out of the blue” on the morning of 6 May 2014. Due to its importance, whether leave to so amend the Defence should be given was something which required argument, as well as consideration by me and the handing down of a reasonably detailed Ruling. Argument was heard on the afternoon of 7 May 2014. I then gave my Ruling at approximately 11.30am on 8 May 2014. As I observed after handing down that Ruling, some two days had been consumed by it. I also pointed out that the situation was one where consideration should be given as to whether the plaintiffs’ costs should be on a basis such as an indemnity basis and whether the order of costs should be against the defendant or its legal representatives. Happily, that latter issue need no longer trouble us.
33 I remain of the view that the plaintiffs should not be out of pocket in relation to the delay caused and work performed by reason of the defendant’s unsuccessful attempt to introduce a completely new defence at such a stage, particularly bearing in mind what had earlier been said on behalf of the defendant in relation to the issues.
34 This issue arose and was completed prior to 6 October 2014. I am of the view that the plaintiffs should receive costs on an indemnity basis for the two days constituted by the afternoon of 6 May 2014, 7 May 2014 and the morning of 8 May 2014. These periods may not add up to exactly two days. Then again, they were spread over three Court days. Indemnity costs in relation to two days and the work done in relation to this failed attempt to amend the Defence seems to me to represent a fair result. Otherwise, as stated, costs are ordered on a party/party basis in accordance with the County Court Scale prior to 6 October 2014 and on the standard basis of 80 per cent of the Supreme Court Scale thereafter. That is subject to what I shall now say as to reserved costs from time-to-time.
(ii)Whether the overall costs order needs further adjustment so as to take into account occasions where costs were reserved
35 I have already dealt with the costs relating to what occurred on 6, 7 and 8 May 2014. There were numerous other instances of reserved costs.
36 Essentially the argument of Mr Nash was that all reserved costs should, in essence, be treated as costs in the cause and be payable by the defendant to the plaintiffs. Normally, he submitted, reserved costs abide and go with the result of the proceeding, unless there is some very special reason for departing from such a practice.
37 Turning to the submissions of Mr Christie, he argued that, on the occasion of each mention at which the case was adjourned at the request of the plaintiffs, the plaintiffs should pay the costs.
38 The submission of Mr Christie was that the defendant was entitled to costs in some situations where these had been reserved. Alternatively, in some respects the plaintiffs had in fact been seeking an indulgence. If they were successful in obtaining the indulgence, that does not mean that they were entitled to costs. In such situations, there should be no order as to costs.
39 Mr Christie argued that the plaintiffs should pay the costs of the defendant of 21 and 24 March 2014, which days were lost because of an unsuccessful application to adduce tendency evidence. The plaintiffs should also pay the defendant’s costs in relation to mentions in which the plaintiffs were moving for an adjournment.
40 In the submission of Mr Christie, the plaintiffs should also pay the defendant’s costs in relation to the days involved relating to the plaintiffs’ application to file and serve a Further Further Amended Statement of Claim. A Ruling was given in this regard on 11 December 2014. Costs were again reserved, although the plaintiffs had been entirely unsuccessful.
41 The defendant further seeks costs in relation to hearings on 19 December 2014 and 28 January 2015. At these hearings the plaintiffs effectively continued to maintain that they would claim an amount over the agreed jurisdictional limit. At the hearing of 28 January 2015, the plaintiffs abandoned this position. There were further arguments on that day concerning whether there had been a finding of fact that the cattle were of stud quality and in relation to the admissibility of Dr Byrne’s first report. Further, the Court ruled in favour of the defendant in relation to the provision of Further and Better Particulars of the loss claimed by the plaintiffs. Accordingly, the defendant maintains that the plaintiffs should pay its costs of and incidental to hearings on 19 December 2014, 28 January 2015 and 29 January 2015. Certainly, if the defendant is not awarded its costs of those days, the plaintiffs should not have an order in their favour.
42 There was a further hearing on 18 March 2015 at which the plaintiffs sought an indulgence. They sought to re-open their case by tendering certain financial documents that had previously been overlooked.
43 Mr Christie also made a suggestion, following a discussion which he had conducted with Ms Harris, the defendant’s loss assessor, to the effect that it would be simpler if the overall costs in favour of the plaintiffs were reduced by 10 per cent, thus offsetting various items for which a costs order might favour the defendant. This suggestion was not one with which the plaintiffs agreed.
44 Due to the manner in which these costs arguments were presented, Mr Nash was permitted to address again concerning the situations where costs have been reserved. Mr Nash repeated his argument that normally reserved costs become, de facto, costs in the cause. That is because normally a Court does not make costs orders in relation to issues as the case goes along. Various matters will be debated. One party will lose, the other will win. Such things as Rulings on evidence, procedure and the like, unless there is something abnormal about them, fall under the general rule that the winner obtains costs and the loser pays them.
45 General procedural issues that arise in the course of a trial are treated as part of the “rub of the green” – part of the overall costs situation and no separate costs orders are made. For example, the Ruling in relation to tendency evidence may have been unfavourable to the plaintiffs, but, as has become apparent, the argument in relation to it was not unreasonable or a time-wasting exercise. The same could be said for argument on 28 and 29 January 2015 concerning the admissibility of Dr Byrne’s report. Part of that report was ultimately disavowed by the defendant.
46 Similarly, the costs in relation to the mention on 18 March 2015 where the plaintiffs were allowed to re-open their case for the purpose of tendering documents that had been overlooked should be costs in the cause. It was a slip, and, bearing in mind the Civil Procedure Act 2010, the defendant should have consented to that slip being corrected. The Court has a wide discretionary power in relation to costs.
Ruling
47 As I indicated from the Bench, there were two items of reserved costs that particularly attracted my attention. One was an attempt to amend the Defence during the closing address. I have already discussed this. The other was the concern that the plaintiffs’ attempt to lodge a Further Further Amended Statement of Claim in which punitive or exemplary damages were sought and in which quantum claimed was approximately treble that of the agreed limit. This was the subject of the Ruling of 11 December 2014.
48 I am of the view that the plaintiffs are not entitled to costs associated with the unsuccessful attempt to put before the Court a Further Further Amended Statement of Claim in which aggravated and exemplary damages were, for the first time, sought. As I pointed out in my Ruling of 11 December 2014, the plaintiffs had ample opportunity, before the actual trial commenced and during its conduct, to make it clear that aggravated and exemplary damages would be so sought. This they did not do. As stated, there had been numerous opportunities to do this, as it had been mentioned several times. I will not repeat the various matters which are set out in my Ruling. Suffice to say that it was some 11 years after the proceeding was originally issued, years after there had been preliminary discussions concerning the claim and its quantum and something in the order of nine months after the actual commencement of the hearing that this attempt to lodge a Further Further Amended Statement of Claim was made.
49 In my view, the plaintiffs are not entitled to costs associated with this. In my opinion, this is not a matter of the type described by Mr Nash which arises during the conduct of a case and where reserved costs should go in favour of the successful litigants.
50 It may not be as blatant a situation as that involving the proposed amendment of the defence during closing submissions. The case on quantum had not in fact commenced. There had been some foreshadowing of a possible claim for punitive or exemplary damages. Nevertheless, it seemed to fly in the face of what had clearly been agreed to be the limit of the claim and what had previously been said in this regard.
51 Further, the application by the plaintiffs to file and serve the proposed Further Further Amended Statement of Claim also embraced an attempt to increase the quantum very substantially. The quantum of damages set out in the proposed pleadings increased to $7,833,831. Whilst the Prayer for Relief remained at the agreed figure of $2,466,100, those on behalf of the plaintiffs made it clear that, should damages be assessed at an amount above that figure, they would be seeking payment of the increased amount. I would refer to paragraphs 6 and 74(xiv) and following sub-paragraphs. When all of the above is considered, it seems to me that, not only are the plaintiffs not entitled to costs associated with the application to file and serve the Further Further Amended Statement of Claim, but the defendant is entitled to some costs in this regard. As stated, I do not regard the situation as being as blatant as that involving the last minute attempt to introduce a new Defence. I do not regard it as a situation calling for indemnity costs or the like. As I understand it, Mr Christie asked for costs incurred on some four or more days. However, a couple of the specified days do not seem to me to have been hearing days. One was a very short mention. I am of the view that the defendant is entitled to its costs for 28 November 2014 when the proposed amendment was argued at length. It seems to me that a further day’s costs would represent fairly the “bits and pieces” that occurred on other days, some of which involved discussion on a more general basis. In summary, it seems to me that a fair outcome is payment by the plaintiffs of the defendant’s costs for two hearing days on the standard basis.
52 Otherwise, I favour the argument of Mr Nash that, where there have been reserved costs in relation to other procedural matters and the like, such reserved costs should be paid by the losing party, the defendant, to the winning parties, the plaintiffs. There seems to me to be merit in his overall argument and in the proposition that, even where the plaintiffs sometimes lost a particular argument, this had not necessarily been a time-wasting exercise.
(iii) Certification of counsels’ fees
53 I am asked by the plaintiffs to fix counsels’ fees and there is no opposition to this course of action from the defendant. However, there is a dispute as to the quantum of such fees.
54 I observed from the Bench that the fees for the plaintiffs’ counsel which are fixed would be only in relation to appearances on days when the matter was fixed for hearing or effectively proceeded as a hearing, with a lesser figure being fixed for days upon which the matter was effectively in the list for mention, directions hearing and the like. There was no dispute but that Mr Nash, being senior counsel, is entitled to a daily hearing fee of $6,600 – see the discussion at T4986 and T4993. I certify accordingly.
55 I will not be certifying in respect of Mr Burns of counsel, as the work undertaken by him does not relate to appearances in the trial or before me. I am in no position to determine the value of work done by way of reading, preparation, drafting documents and the like. If that cannot be agreed, it is a matter for the Costs Court.
56 That brings me to Mr Langslow and Mr Berman. I say now that I agree with the proposition that the fees of Mr Berman in relation to hearing days should be 50 per cent of those fixed for Mr Langslow. Mr Langslow is the senior of the two and conducted virtually all of the trial. I should add that there is no real dispute but that the briefing of two counsel by the plaintiffs was certainly warranted. Accordingly, I certify for two counsel.
57 I shall deal with Mr Langslow’s fees, as the fixing of them will enable those of Mr Berman to be set.
58 It was argued by Mr Christie that Mr Langslow is not senior counsel. Accordingly, his fee should be set in the range specified for junior counsel. Mr Christie also handed up a list of extracts taken from the transcript where Mr Langslow had professed his lack of knowledge concerning civil procedures and relevant Rules. Mr Christie accepted that I have a discretion – see T5034. He also said that, in exercising it, the indicia to which I should have reference are set out in Rule 43(i) of the County Court (Chapter I Scale of Costs Amendment) Rules 2013. Factors of a similar kind are to be found in Paragraphs 17 and 19 of the Appendix found in the Supreme Court Rules 2014.
59 Neither Mr Langslow nor Mr Berman have particular skills or specialised knowledge in the areas of negligence and commercial law or general civil disputes. If they do, it is not contained in the profiles that either of them have placed on the Vic Bar website. It is reasonable for Mr Langslow’s fees to be certified towards the top end of the County Court junior counsel range. In relation to any counsel’s fees that may be payable by the plaintiffs to the defendant, $6,600 is sought in relation to Mr Scanlon and $2,200 a day for Mr Saunders and Mr Connor. In relation to Mr Christie’s fees, should any be so payable, he sought $4,400 per day. Fees payable to Mr Langslow should be $4,400 per day, and to Mr Berman $2,200.
60 Mr Nash, who was seeking $6,000 per day for Mr Langslow and $4,000 per day for Mr Berman, pointed out that both are very experienced barristers. Mr Langslow has been a member of the Bar for just under 49 years, Mr Berman for over 35 years. The Costs Scale accepts that there will be situations where the trial judge makes a special order in relation to the quantum of counsel’s fees.
Ruling
61 I am of the opinion that Mr Langslow’s fees should be certified at a figure above the range indicated in the Scales of Costs contained in the Supreme Court and County Court Rules. In my opinion, Mr Langslow’s daily hearing fee should be certified at $5,000. This was a quite complex and vigorously contested piece of litigation. There is no argument but that, on the plaintiffs’ side, it warranted the attention of two counsel. The defendant had the services of Mr Scanlon QC leading Mr Saunders of counsel for the entire liability trial and for some occasional days thereafter.
62 Mr Langslow is a very experienced barrister, particularly in the area of criminal law. Indeed, in 2005 he had successfully defended these very plaintiffs when the RSPCA charged them with, in essence, maltreatment of the stock involved in this case and arising from the same set of facts. Whilst the present were civil proceedings, given their nature, I can understand why a competent solicitor would retain a barrister well experienced in the rough and tumble of criminal trials, if I can so describe it. In the present circumstances, there was the added advantage of obtaining for the plaintiffs a very experienced criminal barrister already familiar with the case and having already successfully represented those plaintiffs.
63 I have no doubt that the matter was of great importance to the plaintiffs. The amount of money involved was potentially very considerable, and I would refer to the earlier discussion concerning the jurisdictional limit of the Court and the agreed maximum that could be recovered. I can well understand that a large amount of time was needed in order to research and consider questions of law and fact. The quality of the work done was of a high order. At times, such work had to be done within comparatively strict time limits. This case did not always proceed in a straight line, and some allowance was occasionally made for the requirement of counsel to be elsewhere, but this was not a regular occurrence. It would have been difficult indeed for counsel for the plaintiffs to take work of any substance elsewhere, even if there were occasional half-days or longer available. Of course, I am now referring to the periods when the trials in relation to liability and quantum were running.
64 When all of the above is taken into account, and exercising my discretion, I am prepared to go beyond the amounts set out in the Scales for junior counsel and, as stated, fix Mr Langslow’s fee on hearing days at $5,000. I should add that I am so fixing it in relation to full days and part-days. If Mr Langslow was briefed to appear on a particular day but, for one reason or another, only part of that day was occupied with the hearing of the matter (or indeed, if no part of that specified day was so occupied, although I cannot recall whether that occurred), then Mr Langslow is entitled to his fee on hearing for that day. The only exception is the days concerning which I have ordered that the plaintiffs are not entitled to costs. The defendant is not required to pay fees for Mr Langslow, or, for that matter, Mr Berman, for those days.
65 As foreshadowed, I fix Mr Berman’s fee at 50 per cent of that of Mr Langslow and on the same terms. His fee is certified at $2,500 per day for all days when the case was fixed for hearing, with the exception of the couple of days referred to above where the defendant is not obliged to pay the plaintiffs’ costs.
66 There may have been other days when the matter was not fixed for hearing as a trial. In relation to those days, I fix Mr Langslow’s fee at $2,500 and Mr Berman’s at $1,250. I recall one occasion when Mr Berman appeared, comparatively briefly, without Mr Langslow. In such circumstances, his fee remains at $1,250. On most occasions that Rulings were handed down, the trial continued. If the hearing was interrupted for one day so that a Ruling could be prepared (and this happened when there was an attempt to amend the Defence during closing addresses), that should be treated as a hearing day. In essence, days spent in relation to arguments concerning various matters of substance between the conclusion of the liability trial and the commencement of the damages trial should be treated as hearing days. However, days to hear judgment should be classified as being “any other appearance”, assuming that nothing else of substance occurred on those days. I do not believe that such days went for more than half a day, but I will stand corrected if I am in error in this regard.
67 All of the above may not be entirely clear, in a matter which occupied not just trial days but other sporadic appearances. I specifically reserve liberty to the parties to come back to me if there is any argument or lack of clarity in this regard, but I trust that such matters can be sorted out without the need to occupy further time or incur further expense.
Conclusion
68 I trust that I have dealt with the matters that required Rulings so as to assist with the overall resolution of the costs issue. At times the number and content of the questions for my resolution became something of “a moveable feast”. However, I hope that I have now ruled on the matters concerning which I was asked to rule or in relation to which I expressed the view that I should rule. If I have overlooked an area where it was thought that a Ruling would assist in the overall determination of costs, the parties should have no hesitation in raising such matter with me. Essentially, however, the questions of the appropriate scale of costs, the issues of reserved costs and the question of counsels’ fees seem to me to be those which were left for my determination. I thank the parties and their costs consultants for the manner in which the whole costs issue was approached. However, subject to anything further being brought to my attention, the costs question is now one for the parties and their consultants or for the Costs Court.
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