Ishak v Transport Accident Commission (Ruling as to Costs)

[2023] VCC 1084

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No.  CI-22-04107

GHAZWA EL SAYED ISHAK	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE TSIKARIS
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2023
DATE OF RULING:	30 June 2023
CASE MAY BE CITED AS:	Ishak v Transport Accident Commission (Ruling as to Costs)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1084

RULING AS TO COSTS
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Subject:COSTS

Catchwords:              Costs – Court’s discretion – premature briefing of counsel – where proceeding resolved at conference before trial

Legislation Cited:      County Court Civil Procedure Rules 2018 (Vic); Civil Procedure Act 2010 (Vic); Transport Accident Act 1986 (Vic)

Cases Cited:Donovan v Miller [1987] VR 221; Commissioner of Police v Hoffman [2014] NSWDC 113; Scanlon v Transport Accident Commission(Ruling) [2021] VCC 1791; Warren v Transport Accident Commission (Ruling) [2021] VCC 1907; Muir v G E & K W James Pty Ltd (Ruling as to Costs) [2008] VCC 837; Kenyon v Goulburn Valley Fresh Fruit Pty Ltd & Anor (Ruling as to Costs) [2023] VCC 434

Ruling:  Counsel’s fees allowed and certified.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L B R Allen	Shine Lawyers
For the Defendant	Mr S Pinkstone	Solicitor to the Transport Accident Commission

HER HONOUR:

The application

1This is an application by the plaintiff, Ms Ghazwa Ishak, for certification of counsel’s fees. 

2Ms Ishak is seeking certification for counsel’s fee on brief in the sum of $5,000.

Background

3The plaintiff suffered injuries to the spine and right shoulder (“the injuries”) in a transport accident on 3 September 2018 (“the first accident”) when the vehicle she was in, was hit from behind.

4The plaintiff was involved in a subsequent transport accident on 22 February 2020, aggravating the injuries.

5In March 2021, she made an application to the Transport Accident Commission (“the TAC”) for a serious injury certificate in respect of the first accident.

6An Originating Motion was filed on 3 October 2022.

7On 10 October 2022, his Honour Judge Pillay made Orders, listing the Originating Motion for hearing on 24 May 2023 and requiring final service of material by 12 April 2023.

8On 7 November 2022, the plaintiff’s solicitor booked Mr Lachlan Allen of counsel to:

(a)   confer with the plaintiff on 1 December 2022 and prepare a second affidavit on her behalf; and

(b)   appear at the hearing on 24 May 2023.

9An electronic brief was delivered to Mr Allen on 23 November 2022 and the brief was updated with new material from time to time.

10On 31 January 2023, Mr Allen was briefed to confer with the plaintiff on 8 March 2023 and prepare the plaintiff’s third affidavit.

11On 27 March 2023, the parties agreed for a pre-hearing conference to be held on 4 May 2023. 

12On 28 April 2023, Mr Allen was briefed to confer with the plaintiff and attend a pre serious injury hearing conference with the TAC on 4 May 2023.

13On 4 May 2023, the pre-hearing conference was held at which the TAC granted to the plaintiff a serious injury certificate.  The defendant made a final offer to settle the plaintiff’s damages claim on the same day.

14On 8 May 2023, the plaintiff accepted the defendant’s settlement offer. 

15Mr Allan rendered a fee on brief in the amount of $5,000 for the hearing on 24 May 2023.

16The defendant opposed certification of counsel’s hearing fees.

17The plaintiff’s solicitor swore an affidavit on 23 May 2023 and deposed that as at 4 May 2023, she considered that it was reasonable and prudent to have briefed Mr Allan for the hearing on 24 May 2023 due to his longstanding involvement in the matter and her desire to have counsel who was familiar with the plaintiff’s proceeding, appear on her behalf at the hearing.  Further, she deposed that in her experience, it was often difficult to find experienced counsel who would appear on a no win, no fee basis in a serious injury proceeding if a booking was not made, and the brief not delivered until close to the hearing date.  She considered that this was particularly the case in the plaintiff’s application as it was likely to be a challenging application and based on the medical material, she anticipated that the defendant would have disputed the application on whether there was an organic basis to the plaintiff’s complaints and whether the injuries fell within the “range” of impairments.

18Exhibited to the affidavit were copies of medical reports from Dr Anthony Menz, consultant orthopaedic surgeon, dated 27 February 2023 which was addressed to the defendant’s solicitors, and Mr Russell Miller, orthopaedic surgeon, dated 11 January 2023 and 20 April 2023, addressed to the plaintiff’s solicitors, to give the Court an awareness into the issues in dispute.

Parties’ submissions

The Plaintiff’s submissions

19Mr Allen referred me to the decision of Donovan v Miller[1] and submitted that the test to be applied to determine whether it was premature for counsel to be briefed, as at 4 May 2023, in respect of the Originating Motion set down for 24 May 2023, was whether a reasonable and prudent but not over-cautious solicitor would have briefed.  He submitted that in the circumstances, it was well understood by his instructor that if preferred counsel had not been booked at that time, there was a real risk that less than a month out from hearing, appropriate counsel would not be able to be secured.  Counsel might take on a full fee-paying brief at the last minute but it was not as easy to find counsel at the last minute on a no win, no fee basis, particularly if it was not a “rolled gold” matter.  Indeed, his instructor deposed as to difficulties encountered in securing suitable counsel for trial.

[1] [1987] VR 221

20Mr Allen submitted that the defendant was wrong in its submission that the relevant test to be applied is “what is a reasonable time for payment of counsel’s fees when a matter settles prior to a trial date”.

21The medical material raised issues of whether the plaintiff’s injuries had an organic basis and whether the injuries met the serious injury threshold.  It was not a straightforward application and had a level of complexity, even though there was no substantial economic loss component, with the result that the plaintiff could fail in her application.  His instructor formed the view that it was not necessary to brief senior counsel to appear at the hearing and that an experienced junior counsel should be briefed.  Moreover, it was desirable for one counsel to be retained throughout, given he was retained at the outset, had prepared the affidavits and was familiar with the issues.

22He also referred me to the decision of the Commissioner of Police v Hoffman[2] which contains an analysis of what is involved when counsel is briefed to appear in contrast to counsel charging a cancellation fee.  The Court noted, in that case, that it was incumbent for a solicitor to brief when a matter was fixed for hearing.  Counsel have a number of obligations and if they are not retained for a hearing, they are required under the cab-rank rule (which is similar in Victoria), to accept other work if it becomes available.  The fee on brief is a charge or compensation for counsel holding themselves available to appear at the hearing, not for performing the work.  The only matter that may have disentitled counsel to charge the fee would have been if that counsel picked up another brief to appear. 

[2][2014] NSWDC 113

23Mr Allen informed the Court that he had not secured a replacement brief.  He also submitted that the fees under the TAC Protocols were for completely different work, for which he was entitled to be paid.  The fee for the settlement conference was different to blocking out his diary and not taking other work on the day listed for hearing. 

The Defendant’s submissions

24The defendant provided the Court with written submissions in addition to making oral submissions. 

25Mr Pickstone submitted that the Court has a discretion in respect of costs and, in exercising its discretion, the Court should be guided by what is fair, reasonable and proportionate in the circumstances of each case.  The question in contention was when, in the circumstances of any given case, is a reasonable time for payment of counsel’s fees when a matter settles prior to a trial date.

26Whilst the plaintiff’s serious injury application involved some initial disentanglement as between the consequences of the two accidents, it was not an unduly complex case. 

27The serious injury pre-hearing conferences are held in accordance with the directions of the Court pursuant to s48(1) of the Civil Procedure Act 2010 as set out in County Court Practice Note PNCLD 3-2020, which stipulates that:

“… it is the expectation of the Court that the parties in all TAC serious injury applications will have endeavoured to facilitate resolution of the application in accordance with the voluntary alternative dispute resolution processes in the TAC Transport Accident Act Common Law Protocols – 1 July 2016 (‘the TAC protocols’) and the Guidelines for pre-hearing conferences in ‘serious injury’ applications under s93 of the Transport Accident Act (‘the Guidelines’)”.

28The defendant submitted that certification of hearing fees should not be linked to, nor intrude upon, the serious injury prehearing conference and to do so may disincentivise early settlement and undermine the directive of the Court.  The plaintiff’s counsel’s fees payable for appearing at the conference are covered by the TAC Protocols and Supplementary Protocols for Counsels’ Fees. 

29There was no ‘wasted’ work done in preparation for the hearing of the serious injury application, as distinct from work done in preparation for the serious injury conference. 

30The question of counsel’s fee for trial was not raised during any settlement discussions.

31There is no evidence that Mr Allen was left without remunerative work on 4 May 2023.

32The TAC Guidelines for pre-hearing conferences in “serious injury” applications under s93 of the Transport Accident Act are silent on the issue of hearing fees where a matter settles at a conference.

33The 28-day practice which applies in serious injury applications brought pursuant to the Accident Compensations Act or the Workplace Injury Rehabilitation and Compensation Act by reason of the WorkCover (Litigated Claims) Legal Costs Order 2016 has no application in serious injury applications made pursuant to s93 of the Transport Accident Act.

34Both parties acted reasonably in agreeing that the conference be held on 4 May 2023, which was 20 days prior to trial.

35The defendant’s counsel referred me to a ruling (unreported) of his Honour Judge Dean on 4 February 2020 in which his Honour refused to certify counsel’s trial fee where the matter resolved 19 days prior to hearing.

36I was also referred to two rulings of Judicial Registrar Gurry, being Scanlon v Transport Accident Commission(Ruling)[3] and Warren v Transport Accident Commission (Ruling).[4]  In Scanlon, Judicial Registrar Gurry observed that “Section 47 [of the Civil Procedure Act] gives a power to a court when considering case management to encourage the parties to use appropriate dispute resolution”. 

[3][2021] VCC 1791 (“Scanlon”)

[4][2021] VCC 1907 (“Warren”)

37In Warren, Judicial Registrar Gurry refused to certify counsel’s fees for trial in circumstances where the matter settled at a pre-hearing conference twenty days prior, and emphasised the importance of the “concept of alternative dispute resolution endorsed by the Court in its Practice Note and as prescribed in the TAC Protocols.  To certify in these circumstances would be inconsistent with the [Civil Procedure Act] and its overarching purpose.”

38The defendant submits the reasoning of his Honour in Scanlon and Warren is compelling, and the plaintiff has not demonstrated good reason to depart from it.

Reasons

39There is no question that the Court has a discretion with respect to costs, which is to be exercised subject to the County Court Civil Procedure Rules 2018.

40The relevant test to apply in this matter, is set out by the Court of Appeal in Donovan v Miller:[5]

“... although we do not wish to encourage the premature delivery of briefs we wish to emphasize that the proper conduct of litigation in the interests of a party require a solicitor to prepare a brief to counsel in good time.  What is ‘good time’ will of course vary from case to case but it must governed principally by consideration of the interest of the solicitor’s client.  …  In determining whether a step taken by a solicitor in an action has been taken prematurely the test to be applied is: Would a reasonable and prudent, but not over-cautious, solicitor in all the circumstances consider that the time for doing the work has arrived?”

[5]Supra at 224

41His Honour Judge O’Neill, in Muir v G E  & K W James Pty Ltd,[6]  accepted that was the appropriate test to apply.  Whilst Muir involved briefing counsel for a circuit, the relevant principles are apposite.  Although it was a decision that predated the introduction of the Civil Procedure Act and the TAC Protocols, I note that it was referred to with approval by his Honour Judge Clark in Kenyon v Goulburn Valley Fresh Fruit Pty Ltd & Anor (Ruling as to Costs).[7] 

[6][2008] VCC 837 (“Muir”)

[7][2023] VCC 434

42Although Mr Pinkstone submitted that I should adopt Judicial Registrar Gurry’s reasoning that to impose upon the defendant the requirement to pay for Senior and Junior Counsel for a trial that was not going to proceed, was not consistent with the concept of alternative dispute resolution endorsed by the Court in its Practice Note and the intentions of the Court to comply with the Civil Procedure Act in case management matters, I am of the view that neither the Civil Procedure Act or the TAC Protocols displace the principles identified in Donovan v Miller.[8] 

[8]Supra

43I am required to determine whether a reasonable and prudent but not overly-cautious solicitor in the shoes of the plaintiff’s solicitor would have acted in the same manner as she did.  What is necessary and proper for the attainment of justice is what a reasonable solicitor would do in the circumstances. 

44In my view, it was important to ensure that the plaintiff was represented by experienced junior counsel at the hearing of the Originating Motion.  Although the parties may have had an expectation or hope that the proceeding would resolve at the prehearing conference, the plaintiff’s solicitor would have been attuned to the potential that the case may not settle.  If the TAC had not granted the serious injury certificate at the settlement conference, then the plaintiff’s solicitor would have been left scrambling to secure counsel and may well have been met with the unavailability of suitable counsel that was prepared to accept a no win no fee brief less than three weeks out from trial.  Indeed, Mr Pinkstone conceded that it was reasonable for the plaintiff’s solicitor to have briefed when she did, although he emphasised that was not the test, and he submitted it was not a reasonable timeframe for the payment of counsel’s fee by his client.

45Judge O’Neill said in Muir that “it is important not only to ensure that the application is properly presented, but that there is certainty as to the retention of counsel”. 

46As in the cases of Scanlon and Warren, there was no suggestion here that either party unnecessarily delayed the holding of the settlement conference.  Even though counsel briefed marked a fee for appearing at the settlement conference, that was for work undertaken in appearing at the conference which was separate and distinct from the fee on brief.  Retaining counsel to appear at the hearing at the time when the solicitor assesses it is reasonable and prudent to do so, and not being over-cautious, does not detract from the parties’ obligations to participate in alternative dispute resolution processes nor their obligations under the Civil Procedure Act. 

47It is clear from the authorities that each case is to be determined on a case by case basis and the test that is to be applied guards against the delivery of a premature brief.  I could well understand that a reasonable and prudent solicitor might delay briefing counsel to appear at a hearing some twenty days from the hearing date in a straightforward and uncomplicated matter where funds were in trust to cover the fee.  This is, however, not such a case.  There was a level of complexity in the application and counsel briefed to appear at the hearing was intimately involved in the preparations in anticipation of the hearing.  Plaintiff’s counsel described the matter as not a “rolled gold” one and I accept it was prudent for the solicitor of the plaintiff to have junior counsel briefed as at the time that she did.

Order

Certify brief fee for counsel in the sum of $5,000.

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