Kenyon v Goulburn Valley Fresh Fruit Pty Ltd & Anor (Ruling as to Costs)

[2023] VCC 434

IN THE COUNTY COURT OF VICTORIA

AT Shepparton

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

General List

Case No. CI-20-02819

MICHAEL KENYON	Plaintiff
v
GOULBURN VALLEY FRESH FRUIT PTY LTD	First Defendant
and
INTEGRITY FRUIT PTY LTD	Second Defendant

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JUDGE:	HIS HONOUR JUDGE CLARK
WHERE HELD:	Shepparton
DATE OF HEARING:	14 March 2023
DATE OF RULING:	16 March 2023
CASE MAY BE CITED AS:	Kenyon v Goulburn Valley Fresh Fruit Pty Ltd & Anor (Ruling as to Costs)
MEDIUM NEUTRAL CITATION:	[2023] VCC 434

RULING AS TO COSTS
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Subject:CERTIFICATION OF COUNSELS’ FEES

Catchwords:              Court’s discretion – premature briefing of counsel – briefing Senior Counsel – where matter resolved after mediation

Legislation Cited:      Accident Compensation Act 1985; County Court Civil Procedure Rules 2018 (Vic); Legal Profession Uniform Law (Vic); Civil Procedure Act 2010 (Vic); Workplace Injury Rehabilitation andCompensation Act 2013

Cases Cited:Donovan v Miller [1987] VR 221; O’Brien v Greater Bendigo City Council [2016] VSC 33; Muir v G E & K W James Pty Ltd (Ruling as to Costs) [2008] VCC 837; Herbath v Spotless Services Australia Ltd & Anor (Unreported, CCV at Geelong, 26 May 2008, Judge Howie)

Ruling:  Counsel’s fees be allowed and certified as per the formal Orders

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Monti KC with Ms N Wolski	Nevin Lenne Gross
For the First Defendant	Mr R Minc (solicitor)	Meridian Lawyers
For the Second Defendant	Mr P Jens KC	Lander & Rogers

HIS HONOUR:

The application

1This is an application by the plaintiff, Mr Michael Kenyon, for certification of Senior and Junior Counsels’ fees.  Mr Kenyon is seeking certification for:

(a)   two days’ preparation prior to mediation;

(b)   four hours’ conferencing on 14 February 2023, being the day before the mediation;

(c)   counsels’ fee for the mediation held 15 February 2023;

(d)   counsels’ fee for the trial.

Background

2Mr Kenyon brought a claim for damages arising out of an incident said to have occurred in the course of his employment on 16 April 2012.  The mechanism of the injury involved opening a door to a coolroom.  Mr Kenyon said that he suffered a lumbar spine injury with consequential psychiatric injury and sleep impairment. 

3At the time of the incident, Mr Kenyon was working as a forklift driver/storeman. 

4Mr Monti said that Mr Kenyon had been educated to Form 3, at best was semiliterate, and had suffered from a “deprived and chaotic” background.  He said this made interaction with Mr Kenyon more complex.

5The circumstances of Mr Kenyon’s employment were said to be complicated by the business structure and relationship between the first defendant, Goulburn Valley Fresh Fruit Pty Ltd (“Goulburn Valley”) and the second defendant, Integrity Fruit Pty Ltd (Integrity Fruit”).

6It was said that both defendants had the same directors and there was a large volume of materials discovered (in excess of 280 pages) which went to their relationship and the identity of the actual occupier of the premises where Mr Kenyon was injured.

7The Statement of Claim pleaded Goulburn Valley Fruit and Integrity Fruit as alternative employers.  It appears, ultimately, that Goulburn Valley Fruit was a non-employer defendant and Integrity Fruit was the employer defendant.

8In, or about, February 2020, Mr Kenyon was granted a serious injury certificate pursuant to s134AB of the Accident Compensation Act 1985 (as amended) (“the Act”).

9The Writ was issued on 26 June 2020.  Relevantly, an amended defence was filed on behalf of Goulburn Valley Fruit on 18 August 2022.  Liability was denied.  Contributory negligence was alleged against Mr Kenyon.  There was a blanket denial of Mr Kenyon’s entitlement for the relief sought.  Mr Monti said all issues were “hotly contested”.  Mr Minc agreed all issues were in dispute.

10The matter was subject to timetabling orders by this Court which provided for, among other matters, a court-ordered mediation.

11Mr Monti provided the Court with a lengthy explanation of events between December 2022 and the ultimate settlement of the substantive case on 22 February 2023.  Focusing on the key relevant dates, they are:

(a)   The matter, pursuant to the Court Orders, was to be mediated by 31 January 2023.  Without going into the reasons why, the matter was not mediated by that date in accordance with the Court Orders;

(b)   On 25 January 2023, all parties agreed to mediate the matter on 15 February 2023;

(c)   On 25 January 2023, the plaintiff briefed Junior Counsel to appear at the mediation;

(d)   On 9 February 2023, the plaintiff briefed Senior Counsel to appear at the mediation;

(e)   On 9 February 2023, Integrity Fruit forewent privilege and provided video footage of where the plaintiff was injured;

(f)    On 10 February 2023, the matter was called over for the circuit commencing at Shepparton on 14 March 2023.  At the callover, I listed the matter as a jury trial on 14 March 2023 at 2.15pm.  The matter was to proceed as the first case at this circuit;

(g)   On 14 February 2023, counsel conferred with Mr Kenyon.  The conference was said to have been for four hours;

(h)   On 15 February 2023, the matter was ultimately mediated;

(i)    The matter did not resolve at mediation.  I pause here to emphasise that it was common ground that:

(i)The proceeding did not resolve at the mediation;

(ii)At the conclusion of the mediation, all issues remained alive.  That is, liability, contributory negligence, quantum and credit;

(j)    Finally, the matter resolved after ongoing negotiations on 22 February 2023.

12I note there was an offer of compromise served by Mr Kenyon immediately after the mediation.  It was common ground that the matter did not resolve by way of acceptance of that offer of compromise.  Rather, there were subsequent negotiations which went over a week and which ultimately led to the matter resolving on 22 February 2023.

13The terms of the settlement were reduced to a release which was signed by the plaintiff and returned on 6 March 2023. 

14The actual terms of the Release were not before the Court.  The contents of those terms are matters between the parties.  What is before the Court, is the issue of certification or, otherwise, of counsels’ fees. 

The scope of the dispute

15Mr Monti said that the Court should certify for:

(a)   Two days’ preparation for the mediation for both Senior and Junior Counsel.  Senior Counsel at $7,700 and 50 per cent for Junior Counsel;

(b)   Four hours’ conferencing on 14 February 2023 for Senior and Junior Counsel.  Senior Counsel at $770 per hour and 50 per cent for Junior Counsel; 

(c)   Senior and Junior Counsels’ fees for the mediation at $7,700 and 50 per cent respectively;

(d)   Senior and Junior Counsels’ fees for the trial at $7,700 and 50 per cent respectively.

16Mr Minc, for Goulburn Valley Fresh Fruit, said that:

(a) The Court should not certify counsels’ fees. That was, he said, his primary submission. Mr Minc said, pursuant to Order 63A of the County Court Civil Procedure Rules 2018 (Vic), the issue of counsels’ fees was a matter properly for the Costs Court;

(b)   The matter settled twenty-one days before trial.  Therefore, counsel had no entitlement to a brief fee for trial.  While Mr Minc may not have used these exact words, the thrust of his submission was that the briefing of counsel for trial was premature;

(c)   Senior Counsel should not have been briefed.  Put simply, the matter was not of sufficient complexity to warrant the briefing of Senior Counsel;

(d) Fees sought by the plaintiff were contrary to s172 of the Legal Profession Uniform Law (Vic).He said the fees sought were neither reasonable nor proportionate;

(e)   There was no reasonable basis for two days’ preparation for the mediation;

(f)    Counsel was not entitled to conference fees prior to the mediation;

(g)   Pursuant to s334 of the Act, the fees should be reduced by 20 per cent.

The discretion of this Court to certify counsels’ fees

17I do not accept that it is not within this Court’s discretion to certify counsels’ fees, nor that it is not proper for this Court to do so. Indeed, Mr Minc conceded that this Court does have such discretion. Rule 63A.04 of the County Court Civil Procedure Rules, clearly gives this Court the power to make an order for costs in relation to a particular question in, or a particular part of, a proceeding.

18Rule 63A.05 goes on to provide that, unless this Court otherwise orders, costs shall be taxed by the Costs Court.

19As noted, while Mr Minc conceded that this Court does have the discretion to certify counsels’ fees, he asserted that it is the Costs Court that should deal with counsels’ fees.

20Mr Minc provided no real analysis or path of reasoning for why the Costs Court was in a better position to determine such matters than a judge of this Court on circuit, and before whom the matter is listed for trial.

21There is a long line of authority establishing that this Court has the discretion to, and quite properly has, certified counsels’ fees.  Mr Monti took me to the Court of Appeal decision in Donovan v Miller.[1]  In that matter, the Court of Appeal determined an application to appeal against the certification of counsels’ fees by a judge of this Court.  The Court of Appeal dismissed the appeal and concluded there had been no reason why the Court should interfere with the learned judge’s exercise of his discretion. 

[1][1987] VR 221

22In the Supreme Court, his Honour J Forrest J, in O’Brien v Greater Bendigo City Council,[2] considered the role of a trial judge in fixing counsels’ fees.  I do not propose to recite chapter and verse what his Honour had to say, but note that he undertook a detailed analysis in paragraphs 5 through to 23 of that ruling, and then proceeded to undertake the very task of the certification of counsels’ fees.

[2][2016] VSC 33

23I make particular reference to paragraph 13 of his Honour’s ruling, where he set out the relevant principles.  I adopt his Honour’s reasoning in the matter of O’Brien.

24Further, I note Muir v G E & K W James Pty Ltd (Ruling as to Costs),[3] where his Honour Judge O’Neill of this Court was asked to make a ruling in respect to counsels’ fees and, in particular, an alleged premature briefing of counsel prior to a circuit.  In that matter, which involved the Mildura circuit, his Honour revisited the principles to be applied.  His Honour clearly considered it appropriate that a judge of this Court exercise their discretion in respect to certification of counsels’ fees.  Again, I adopt his Honour’s reasoning and make particular reference to paragraphs 14, 20 and 21 of Muir.

[3][2008] VCC 837

25Finally, the certification of counsels’ fees by judges of this Court is something that regularly occurs.  It is unlikely that a week goes by without such orders being made.  Indeed, I have already done so on four occasions today.

26I do not accept Mr Minc’s submissions that this is a matter where the trial judge on circuit, who called the matter over, who listed the matter as the first case in the circuit, and who is in a position to determine the very point in dispute while on circuit, ought not exercise the discretion to do so.

27Thus, in this application, I propose, for the reasons outlined, to exercise my discretion.

Premature briefing

28Mr Minc said, as the matter was twenty-one days from trial, counsel was not entitled to a brief fee on trial.  That is, Ms Collins had briefed counsel prematurely.

29Revisiting the chronology, I note:

(a)   The matter was called over on 10 February 2023.  It was listed as the first case in this circuit.  But for resolution, this case would have proceeded on Tuesday, 14 March 2023 at 2.15pm;

(b)   That the matter was mediated on 15 February 2023.  At the conclusion of the mediation, it remained unresolved.

30I am now asked to consider, as at 22 February 2023, was it premature for Ms Collins, on behalf of Mr Kenyon, to have briefed counsel for this circuit.

31The relevant principles are set out by his Honour Judge O’Neill in paragraph 14 of Muir.  In adopting his Honour’s reasoning, I ask, would a reasonable and prudent solicitor, in the position of Ms Collins, believe it appropriate and reasonable to deliver briefs to Senior and Junior Counsel?

32This, in the context where the matter is listed as the first matter in the circuit, and where the matter was going to proceed on 14 March 2023.  As I have already noted, and as conceded by Mr Minc, all issues remained alive.

33I accept that a reasonable and prudent, but not over-cautious solicitor, in the shoes of Ms Collins, would have done exactly as she did.  It was important to ensure that Mr Kenyon was represented by experienced counsel and that such counsel were retained for the circuit.

34I accept that the briefing of counsel for the first matter in a list twenty-one days out from the circuit, in the circumstances of this particular case, is not over-cautious.  Indeed, a reasonable and prudent solicitor in Ms Collins’ shoes, would have done exactly the same thing.

35That submission on behalf of Goulburn Valley fails.

That Senior Counsel ought not have been retained and, in doing so, the costs are not proportionate and reasonable

36Mr Minc put bluntly that Senior Counsel was not justified in Mr Kenyon’s matter.  He said, to brief Senior Counsel was not reasonable and was out of proportion.

37As a starting point, I note that Integrity Fruit (who I was told share the same directors as Goulburn Valley) briefed Senior Counsel, Mr Jens, to appear at the mediation.  Indeed, Mr Jens was present in this Court on behalf of Integrity Fruit on 14 March 2023.  The matter involved sufficient complexity for Integrity Fruit to retain Senior Counsel for both the mediation and trial.  Again, I note that I was told that both Goulburn Valley and Integrity Fruit have the same directors.

38Mr Minc said the proceeding was a pain and suffering claim only.  He said that did not justify the retention of Senior Counsel.

39I accept there may be circumstances where, in a pain and suffering case which had limited issues and was of limited complexity, that may be so.  I do not accept, however, that is the case in this matter.  I again note, as conceded by Mr Minc, all issues remained in dispute.  Indeed, Mr Monti said they were “hotly contested”.  That is, liability, contributory negligence, credit and quantum all remained on the table.  There were the added complexities of two defendants and their seemingly complex relationship.  There was said to be in excess of 280 pages of materials going to the relationship between Goulburn Valley and Integrity Fruit.

40Mr Minc said the medical issues were not complex.  Mr Monti said that seven different medical practitioners had been subpoenaed to appear at the trial. 

41I do not accept, given the individual features of this case, that it was uncomplicated.

42I now refer to Mr Minc’s reliance upon s172 of the Legal Profession Uniform Law (Vic).I also make reference to the Civil Procedure Act 2010 (Vic) and, in particular, s24 of that Act. I accept that the level of legal costs in any matter is a concern. However, I have to balance that with the other provisions and obligations which arise under the Civil Procedure Act.  In particular, s22, being the overarching obligation to use reasonable endeavours to resolve matters, and to Ms Collins’ obligations to Mr Kenyon.

43I note this matter resolved subsequent to mediation with Mr Monti’s involvement.  It was said that Mr Monti conferenced with Mr Kenyon subsequent to the mediation.  There were negotiations which continued to 22 February 2023.  No doubt there were ongoing discussions with Mr Kenyon and there was a need to provide him with further advice and for instructions to be received from him.

44The settlement of this matter prior to the commencement of this circuit has avoided further and, indeed, significant costs. 

45Goulburn Valley has avoided the briefing of counsel for trial.  All parties have avoided the flurry of preparation which invariably occurs leading up to the listing of the matter.  As experienced practitioners will appreciate, in the weeks leading up to a hearing, the level of costs incurred by all parties significantly escalates. 

46Further, and importantly, the Court’s resources have not been required for the disposition of the substantive matter.

47The Court ought not discourage negotiations between a failed mediation and the listed trial date.  The further negotiations and ultimate settlement of the matter ought not wait until the parties are on the Court steps and there is a jury panel waiting.

48As to the level of counsels’ fees themselves, they fall within the range of what is regularly certified by this Court in circumstances where a common law action is resolved.  I accept $7,700 as a reasonable figure, given the complexities of this matter.  I accept that Junior Counsel is entitled to 50 per cent.

49I do not accept that, in the circumstances of this matter, it was improper, or out of proportion, for Mr Kenyon to retain Senior Counsel to appear at both the mediation and the trial, nor do I accept the costs to be unreasonable or out of proportion.

Conference fees

50I am prepared to certify for four hours conferencing for both Senior and Junior Counsel prior to the mediation.  I accept that, in the circumstances of this case, such conference was reasonable and appropriate.  I particularly note Mr Kenyon’s personal circumstances and the complexity of these proceedings, which I have already referred to in this ruling.  Indeed, I note Mr Minc, in the course of his submissions to the Court, conceded that he had offered four hours’ conferencing for counsel. 

Two days’ preparation for mediation

51I am not prepared to certify for two days’ preparation for the mediation in this matter.  I accept Mr Minc’s submissions in this regard.  While all matters remained in dispute, I do not accept that there is a reasonable basis in the individual circumstances of this case for such preparation to be allowed.  Further, having certified for four hours’ conferencing, I consider this would represent, in this particular matter, an improper duplication. 

The 20 per cent reduction

52Mr Minc sought to rely upon s344 of the Workplace Injury Rehabilitation andCompensation Act 2013[4] to justify his submission that the Court should reduce counsels’ fees by 20 per cent.

[4]Noting the relevant Act was the Act. While Mr Minc’s reference should have been to s134AB(29) of the Act, the thrust of this submission remains the same.

53The application of that section to non-employer defendants in the circumstances of this case has been subject to judicial determination many years ago in Herbath v Spotless Services Australia Ltd & Anor.[5]  That authority does not support the contentions made by Mr Minc.

[5](Unreported, CCV at Geelong, 26 May 2008, Judge Howie)

54When the Court raised Herbath with Mr Minc, he professed to be unaware of that authority.

55Given Herbath, this aspect of Mr Minc’s submission must fail.

Conclusion

56This Court clearly has the discretion to certify counsels’ fees in this matter.

57Given this matter was listed as the first case at this circuit, and in light of a long line of authorities, including O’Brien and Muir, that discretion will be exercised. 

58I certify counsels’ fees:

(a)   for the mediation held 15 February 2023, Senior Counsel at $7,700, with Junior Counsel at 50 per cent;

(b)   for four hours’ conferencing held 14 February 2023, at $770 per hour for Senior Counsel and Junior Counsel at 50 per cent;

(c)   for brief on trial, Senior Counsel at $7,700, with Junior Counsel at 50 per cent.

59I will hear the parties in respect to costs of this application.

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