Jeffrey v Seeley International Pty Ltd

[2012] VCC 1686

IN THE COUNTY COURT OF VICTORIA (Un) Revised
(Not) Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-11-01615

NOEL VIVIAN JEFFREY & HELEN MARY JEFFREY	Plaintiffs
v
SEELEY INTERNATIONAL PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE MACNAMARA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2012
DATE OF JUDGMENT:	30 August 2012
CASE MAY BE CITED AS:	Jeffrey v Seeley International Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VCC 1686

REASONS FOR JUDGMENT

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Catchwords: Costs – argument in relation to costs certificates granted in Orders following substantive hearing – exercise of trial judge’s discretion to grant certificates given the sufficiently unusual characteristics of the proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A. Kelly SC with            Mr A. Clements	Ligetti Partners
For the Defendant	Mr N. Hopkins	Norton Rose

HIS HONOUR:

1       On 13 August 2012 I published reasons as to various costs issues arising out of my earlier determination of the substantive issues in this proceeding.

2       In the course of that determination I indicated that the various certificates which were sought on behalf of the plaintiff as to counsel’s fees and other matters should be given.  I have received further written submissions indicating that the parties are not agreed as to the effect of my determination in this regard.

3       In my costs determination I proceeded on the basis that the defendant made little substantial opposition to the grant of the certificates.  In fact, counsel for the defendant did not make any submissions as to the quantum of the certificates. 

4       A note from the defendant’s counsel, however, appears to indicate that I may have misunderstood the position that the defendant through its counsel was seeking to indicate opposition to the grant of the certificates.

5       Counsel referred to the observations I had made to the effect that the matters with which certificates were being sought were matters which, under the court’s recently adopted scale of costs, would be referred for determination to the costs court rather than left for certification by the trial judge.  It appears that insofar as I had expressed those misgivings, counsel for the defendant was seeking to embrace these views and contend that they should lead to my refraining from granting any certificates.

6       In addition, it is now submitted that insofar as Mr Kelly SC, on behalf of the plaintiff, had referred to the possibility of a less extensive provision of certificate, he had thereby altered the plaintiffs’ position as to these matters.

7       My understanding of Mr Kelly’s submissions was that the suggestion of some more restricted certification was not a true change of position but rather entailed the establishment of what one might describe as a “fall back”.

8       Accepting that the various matters for which certificates are now sought are generally appropriately to be left to the costs court, I am of the view that this proceeding was sufficiently out of the ordinary and exhibited sufficiently unusual characteristics to render it appropriate for me, as the trial judge, to depart from the usual practice and provide extensive certificates.  In my view, having regard to the length and the complexity of this proceeding, the certificates sought by the plaintiffs in their original form should be granted.

9       It follows that the judgment to be entered should be in the following terms:

“There be judgment for the plaintiffs in the sum of $308,000, together with damages in the nature of interest in the sum of …….

The Defendant pay the Plaintiffs’ costs of the proceeding, including any reserved costs, to be taxed on a party and party basis:

(a)on County Court Scale D in respect of costs incurred before 1 September 2011;

(b)on the Scale of Costs in respect of costs incurred on and from 1 September 2011.

There be the following certificates in relation to costs:

(a)Certify for the briefing of two counsel, with the fees of Senior Counsel and Junior Counsel in respect of view, preparation, conferences, advice on evidence, advice on liability and appearing at the adjournment application before Judge Pilgrim on 4 April 2012, and appearing at the trial to be certified in the amounts set out in the attached Schedule of Counsels’ Fees.

(b)Certify for brief to counsel to hear judgment in the sum of $454.50 (excl. GST).

(c)Certify for counsel settling Minute of Proposed Orders, including Schedule of Counsels’ Fees in the sum of $800 (excl. GST).

(d)Certify for the cost of transcript.

(e)Certify for the reasonable cost of the preparation, filing and service of the Plaintiff’s Court Books, with one copy at the rate allowed in accordance with the Scale of Costs and for such additional copies as the Costs Court may consider reasonable to be allowed at reasonable commercial rates to be determined by the Costs Court.”        

10      In accordance with Rule 60A.06, the form of judgment should be in Form 60D.

11      The interest should be calculated up to the date on which the judgment is authenticated.

The defendant pay the plaintiffs’ costs of the proceeding, including any reserved costs, to be taxed on a party and party basis:

(a)on County Court Scale D in respect of costs incurred before 1 September 2011;

(b)on the Scale of Costs in respect of costs incurred on and from 1 September 2011.

There be the following certificates in relation to costs:

(a)certify for the briefing of two counsel;

(b)certify for brief to counsel to hear judgment in the sum of $454.50 (excl. GST);

(c)certify for counsel settling Minute to Proposed Orders, including Schedule of Counsel’s Fees, in the sum of $800 (excl. GST);

(d)certify the costs of transcript;

(e)      certify for the reasonable costs of the preparation, filing and service of the Plaintiffs’ Court Books, with one copy at the rate allowed in accordance with the Scale of Costs and for such additional copies as the Costs Court may consider reasonable to be allowed at reasonable commercial rates to be determined by the Costs Court.”