Hooper v Citywide Service Solutions (No 2)

[2022] VSC 293

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2021 00169

JULIE HOOPER	Plaintiff
v
WORKFORCE RECRUITMENT AND LABOUR SERVICES PTY LTD (ACN 142 782 296)	First Defendant
CITYWIDE SERVICE SOLUTIONS PTY LTD (ACN 066 960 085)	Second Defendant

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JUDGE:	O’Meara  J
WHERE HELD:	Melbourne
DATES OF HEARING:	On the papers
DATE OF JUDGMENT:	1 June 2022
CASE MAY BE CITED AS:	Hooper v Citywide Service Solutions (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 293

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COSTS – Certification sought for the fees of counsel – Discretion – Final orders made.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	TP Tobin SC with JJ Fitzpatrick	Fittipaldi Injury Lawyers
For the Second Defendant	CJ Blanden QC with J Valiotis	Transport Accident Commission

HIS HONOUR:

1. On 19 May 2022 I published reasons for decision in respect of the plaintiff’s claim for damages.[1] I found that negligence of the second defendant was a cause of the plaintiff’s injury, loss and damage and that the plaintiff’s damages were to be assessed as summarised in those reasons at [206]. I allowed the parties time to consider the reasons and propose final orders.

   [1]Hooper v Citywide Service Solutions [2022] VSC 239.

1. The essential substance of the orders giving effect to the judgment for the plaintiff are agreed, including in respect of interest.  It is also agreed that the plaintiff should have an order for costs on an indemnity basis and that the judgment should be stayed for 28 days.[2]

   [2]The second defendant having not accepted an offer of compromise in terms more favourable than the judgment that will be obtained following trial.  The stay was also agreed.

1. Presently, the only issue concerns certification of the fees of counsel.  In that connection, counsel for the plaintiff submit, by reference to the rule of Court concerning indemnity costs together with a particular authority,[3] that fees for senior counsel should be certified to the following effect –

   [3]Titcher v Marcelis [2015] VSC 578.

(a)   two days in preparation and views;

(b)  eight days in trial;

(c)   one day on the weekend, preparing final submissions;

(d)  all at $10,500 per day for senior counsel (said to comprise the sum of $8,800 per day with an uplift of 20 per cent rounded down to the lowest $100);

(e)   a further allowance of $4,950 for senior counsel in connection with taking judgment, negotiations concerning various ancillary matters and the preparation of submissions on costs; and

(f)    junior counsel, in respect of all of the above, at 50 per cent.

1. For its part, the second defendant takes no specific issue with much of the above, save that it contends that –

(a)   the daily fee for senior counsel should be $8,800 per day, with 50 per cent of that figure for junior counsel; and

(b)  the allowance in connection with the taking of judgment ought to be for junior counsel only in the sum of no more than $2200.

1. The defendant further submits that –

…there is no allowance for Counsel’s fees to be uplifted, regardless of costs being awarded on a standard basis or an indemnity basis.

1. It will be evident that the submissions of both parties are advanced at a relatively high level of generality and otherwise by reference to the Court rule concerning indemnity costs and one authority (which is not on all fours with the present circumstances and, in particular, does not address either the consequence of an entitlement to indemnity costs or the question of any ‘uplift’).

1. I am also conscious that the fees presently sought to be certified in respect of senior counsel are close to the maximum appearing in the scale.[4]

   [4]Supreme Court (General Civil Procedure) Rules 2015 (Vic), Appendix A – Supreme Court Scale of Costs, for work done on and after 1 January 2022. Item 19(1)(a)(i) provides, relevantly, for a maximum of $9,650 + GST, being a total of $10,615. Item 19(3) provides that regard may be had to certain criteria. Item 19(4) provides that the Court may otherwise order in respect of fees in excess of scale, but that the Costs Court otherwise has a discretion to allow fees in excess of the scale.

1. The Court has a discretion to make orders in respect of the certification of the fees of counsel.  In the present instance, however –

(a)   the submissions of the parties do not address in any detail the question whether the sums sought in respect of counsel are ‘unreasonable in amount or have been unreasonably incurred’ – except, perhaps, in the most general sense that one party seeks a particular sum, the other party proposes a lower sum and the plaintiff otherwise relies upon the proposition that any doubt should be resolved in her favour;

(b)  while the submissions for the plaintiff refer in passing to the criteria to be considered in allowing a fee to counsel, there are no submissions from either party directed to those criteria as enumerated;

(c)   except perhaps in only the broadest possible sense, the submissions of the parties do not otherwise address any of the potentially applicable considerations referred to in the only authority relied upon;

(d)  there are complexities in light of the plaintiff’s entitlement to costs on an indemnity basis, the dimension of the fees sought by plaintiff’s counsel and whether there can be any and if so what ‘uplift’; and

(e)   in particular, in light of the plaintiff’s entitlement to costs on an indemnity basis, I am not at all sure that it would be fair to the plaintiff simply to make orders for certification directed to the figures proffered by counsel for the second defendant.

1. In the circumstances, I do not consider it presently to be appropriate to make any orders certifying the fees of counsel.  The justice of the position is not clear.  The issue concerning the amounts sought in respect of the fees of counsel is better considered and determined by the specialist Costs Court, if necessary.

1. It will be ordered that the defendant pay the plaintiff’s costs, including reserved costs, on an indemnity basis to be assessed by the Costs Court in default of agreement. 

1. Final orders will otherwise be made as indicated and agreed between the parties.