Kalogiannopoulos v Pacific Brands Pty Ltd and Anor (Ruling)

[2010] VCC 1460

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-09-05902

CHRIS KALOGIANNOPOULOS	Plaintiff
v
PACIFIC BRANDS HOLDINGS PTY LTD	First Defendant
(trading as DUNLOP FOAMS)
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 and 20 September 2010
DATE OF RULING:	24 September 2010 (Revised)
CASE MAY BE CITED AS:	Kalogiannopoulos v Pacific Brands Pty Ltd & Anor (Ruling)
MEDIUM NEUTRAL CITATION:	[2010] VCC 1460

RULING

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Catchwords: ACCIDENT COMPENSATION – Serious Injury – Certification for costs above scale and for two counsel – s.134AB(29) – s.78 and 78A County Court Act 1958 – Orders 63A.02, 63A.34A, 63A.82(1) – Appendix “A”, paragraph 31, items (h)(iv) & (v).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Rattray	Ellis Palmos & Co
For the Defendants	Mr D Masel	Thomson Playford Cutlers
HIS HONOUR:

1 This proceeding was commenced by Originating Motion. The plaintiff sought leave under sub-section 16(b) of section 134AB of the Accident Compensation Act 1985 (“the Act”) to commence a proceeding for damages on the basis of a “serious injury” within section 134AB(37) of the Act.

2          The proceeding was in the Reserve List of cases for trial in the Court on 2 September 2010. The Court’s Civil list for that day shows that I had another matter listed before me for trial. That other matter ultimately settled and this proceeding then came before me from the Reserve List.

3 When the matter was called on, Mr N Rattray of counsel appeared for the plaintiff and the solicitor appeared for the defendants. I was told from the Bar Table the proceeding had been settled on or about 13 August 2010 when the defendants’ insurer advised the plaintiff’s solicitors by letter that it would issue the necessary certificate relating to the plaintiff’s degree of impairment under sub-section 16(a)(ii) of section 134AB of the Act. This meant the proceeding did not need to go to trial.

4 In a written outline of submissions, Mr Rattray, at paragraph 11, states: “The trial was listed for hearing on 2 September 2010. His Honour Judge Lacava was the trial Judge.” At paragraph 12 of the submission, Mr Rattray states: “The proceeding was called on for hearing and appearances announced.” And at paragraph 13: “At the commencement of the trial, the plaintiff sought orders in respect of leave pursuant to s.134AB(16)(b) and as to costs in the proceeding in the form of proposed orders filed at Court on 2 September 2010 before Judge Lacava.”

5 These factual matters are not correctly stated. The proceeding was never called on for hearing as a trial. There was no need for me to make orders under section 134AB(16)(b) as the defendants’ insurer had already issued or agreed to issue the necessary certificate relating to the plaintiff’s degree of impairment under sub-section 16(a)(ii) of section 134AB of the Act. The trial for the relief sought in the originating motion at no stage “commenced”.

6          Because the proceeding effectively settled, I was asked to make some orders for costs by consent and to rule on some aspects of the orders sought by the plaintiff where there was no agreement.

7          The parties had agreed that an order should be made by consent as follows:

“3	Defendants to pay the Plaintiff’s costs of these (sic) proceedings (including any reserved costs) on County Court Scale D, to be taxed in default of agreement.
And
4	Defendants to pay for the reasonable costs of preparation, service and filing of Court Books; the first copy of 117 pages on Scale and any necessary additional copies at a commercial rate to be determined by the Costs Court.
And
5	Liberty to Apply”

8          The plaintiff’s solicitors had set out the above proposed orders in a document entitled “Minutes of proposed Consent Orders”.

9 Paragraph 1 of the Minutes related to the granting of a certificate under section 134AB(16)(b). Both parties agreed that order did not have to be made for the reason set out above. The insurer had already issued or agreed to issue the necessary certificate under section 134AB(16)(a)(ii) of the Act.

10        Paragraph 2 of the document entitled “Minutes of proposed Consent Orders” is the controversial paragraph requiring this ruling. It reads as follows:

“2 Certify for 2 Counsel, with Senior Counsel’s Fee on Brief fixed in the sum of $5,500.00 nett of the 20% reduction pursuant to Section 134AB(29) of the Accident Compensation Act 1985 and Junior Counsel’s fee on Brief fixed in the sum of $2,750.00 nett of the 20% reduction pursuant to Section 134AB(29) of the Accident Compensation Act 1985.” (sic)

11        The solicitor for the plaintiff opposed the making of these orders.

12        After some discussion, I reserved ruling on the question of costs pending full argument, which I heard on 23 September 2010. Appropriately, the defendants agreed to meet the plaintiff’s costs of this argument.

13 Section 78(1)(a) of the County Court Act 1958 empowers the majority of Judges of the Court to make rules regulating matters relating to the costs of proceedings in the Court.

14 Section 78A(1) of the County Court Act 1958 provides the costs of and incidental to all proceedings are in the discretion of the Court, which may order that the costs be, inter alia, “assessed, settled, taxed or reviewed by the

Costs Court”.

15 Pursuant to the power in section 78(1)(a) of the County Court Act 1958, a majority of judges of the Court have made rules relating to “all costs taxed by the Costs Court”.

16        Order 63A.02 provides that the discretion of the Court as to costs “shall be exercised subject to and in accordance with this order”.

17        Order 63A.34A deals with Costs and Fees on taxation. In this proceeding, all costs taxed are to be taxed according to “the Scale of Costs contained in Appendix A”: see Order 63A.34A(1)(a).

18        Order 63A.82(1) provides:

“(1)

Notwithstanding anything to the contrary in Appendix A, the fees payable to counsel to appear at a hearing or trial shall be at the discretion of a Judge who may fix such fees-

(a)	on the basis of daily fees;
(b)	on the basis of brief fee and refreshers;
(c)	as a lump sum fee covering the whole of the hearing or trial; or
(d)	on such other basis as the Judge considers appropriate.”

19 Whilst section 78A of the County Court Act 1958 undoubtedly gives the Court the power to award costs in its discretion, in my view, on a proper construction of the Act and the Rules, where costs are to be taxed, Appendix A proscribes how the discretion is to be exercised and how a taxation is to proceed.

20        Paragraph 31 of appendix “A” deals with “Fees to Counsel”. Item (h)(iv) provides:

“(iv) In any proceeding or matter notwithstanding anything contained in the rules or in the scale of costs, apart from item 21, the trial Judge ONLY may on application allow such higher fee for counsel (including more than one counsel) as he or she thinks fit.”

21        Item (h)(v) provides:

“(v)	Despite anything contained in these Rules–
(A) where a trial has commenced, the Judge ONLY may allow such higher fee for counsel for the trial and may allow fees for more than one counsel as the judge thinks fit, save that this sub item does not apply to the allowances set out in item 21.
(B) where no trial has commenced, the Registrar or Costs Court may allow such higher fee for counsel and may allow fees for more than one counsel as the Registrar or Costs Court thinks fit.”

22        I have added my emphasis above.

23        Appendix A has been in its current form since about 1997. In its original form it did not include item (h)(v) which was added after the decision of Justice Tadgell in Arthur v McLeish [1996] 1 VR 411. At page 417, his Honour said that the expression “trial Judge”, where used in what was then paragraph 29, items (h)(iii) and (v), should be given a flexible meaning “such as will accord it a practical and sensible operation in the context in which it is used”.

24        The form of paragraph 29 in Appendix A as it was at the time of Arthur v McLeish (supra) is set out in Wightman v Johnson (1995) 2 VR 637 at 645. Paragraph 29, item (h)(v), was in the same terms as paragraph 31, item (h)(iv), at the present time.

25        After Arthur v McLeish (supra) was decided, Appendix A was altered, introducing the dichotomy now found in item (h)(v). The dichotomy is between on the one hand “where a trial has commenced” and, on the other, “where no trial has commenced”.

26        But when that dichotomy was introduced into Appendix A, item (h)(iv) was left. Had it been the intention to take away from “the trial judge” the power to certify for higher fees or for two counsel “where no trial has commenced”, there would be no need for retention of item (h)(iv).

27        In my view, I must apply a flexible meaning to the expression “the trial Judge” in item (h)(iv) in conformity with Arthur v McLeish (supra). Mr Masel submitted that item (h)(v), as set out above, having been introduced then expressio unius est exclusio alterius (an express reference to one matter indicates that other matters are excluded), I should ignore item (h)(iv) and should not invoke it as a source of discretionary power.

28        I do not accept that is the correct approach. Paragraph 31, item (h)(iv), is intended to have some role to play even where the trial has not commenced. An example of where item (h)(iv) would apply to give the trial Judge power to certify for two counsel and for fees above scale would be where a trial of a proceeding is stood down while parties discuss and ultimately settle a proceeding without actually commencing the trial. In my view, in such an example, it would be appropriate for a judge before whom such a trial was listed to make orders as to costs, including certification as to the number of counsel and the amount of fees. Doubtless there are other examples.

29 However, in this matter, I am of the view that whilst the proceeding ultimately came before me for the purposes of making costs orders and for certification of matters for the purposes of Appendix “A”, it did not come before me for “trial”. I do not regard myself as being “the trial Judge” in this proceeding for the purposes of paragraph 31, item (h)(iv). That is because there was no issue on the originating motion left to be tried. When the defendants’ insurer advised the plaintiff’s solicitors by letter that it would issue the necessary certificate relating to the plaintiff’s degree of impairment under sub-section 16(a)(ii) of section 134AB of the Act, there was no longer any matter before the Court to be tried. This matter is very different to that faced by Tadgell J (as he then was) in Arthur v McLeish (supra). It is more akin to that faced by Judge Wodak in Goucher v Hii [2008] VCC 1645.

30        In my view, in the circumstances of this proceeding item, I am not “the trial Judge” within Appendix A, paragraph 31(h)(iv), and item (h)(v)(b) operates to proscribe who will exercise the discretionary power. No trial having commenced, the appropriate person to deal with the applications for certification for two counsel and for certification of counsel’s fees is the Registrar or the Costs Court.

31        I add, if I am in error and I ought to have regarded myself as the trial Judge within item (h)(iv), in the circumstances of this case, I would not give the necessary certificates. The case settled well before trial. There is nothing in the circumstances of the case as summarised in the plaintiff’s outline of submissions which would have persuaded me to exercise my discretion to certify either for two counsel or for fees above the appropriate scale.

32        As to the question of making orders fixing the amount of counsel’s fees “nett

of the 20% reduction pursuant to Section 134AB(29) of the Accident

Compensation Act 1985” in my view, were I to do so, I would fall into error. The making of such an order would be completely contrary to the clear intent of the operation of section 134AB(29). In my view, it is not the role of “the trial Judge” when certifying for costs to make an order, the effect of which would be to negate the operation of the section. I note section 134AB(29) in terms does not give the Court to make orders the effect of which would be to prevent its operation. There is no basis for the Court to make orders fixing the net amount of counsel’s fees leaving other recoverable fees to be reduced by 20 per cent.

33        Accordingly, I order as follows:

(1)	The defendants pay the plaintiff’s costs of and incidental to this proceeding (including any reserved costs and the hearing on 2 and 20 September 2010 and to hear judgment) in default of agreement to be taxed on County Court Scale D.
(2)	The defendants to pay for the reasonable costs of preparation, service and filing of the plaintiff’s Court Books; the first copy on Scale and any necessary additional copies at a commercial rate to be determined by the Costs Court.
(3)	There be reserved liberty to the parties to apply.

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