Koetsveld v Whitehorse City Council
[2009] VCC 545
•20 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES - GENERAL DIVISION
Case No. CI-08-02055
| MARY KOETSVELD | Plaintiff |
| v | |
| WHITEHORSE CITY COUNCIL | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 and 30 April, 1, 4, 5, 6,7 and 8 May 2009 |
| DATE OF RULING: | 20 May 2009 |
| CASE MAY BE CITED AS: | Koetsveld v Whitehorse City Council |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0545 |
| RULING AS TO COSTS |
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Catchwords: Industrial jury trial – costs – brief fee for counsel for the plaintiff – refresher or daily fee.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with | Maurice Blackburn |
| Mr A Pillay | ||
| For the Defendant | Ms J A Dixon SC with | Thomson Playford Cutlers |
| Ms P A Cefai | ||
| HIS HONOUR: |
1 This was an industrial jury trial which commenced on the 29th April 2009 in which the plaintiff sought damages for injury suffered as a result of a falling incident at work premises on the 19th October 2001. At the time, the plaintiff was employed by the defendant as a carer at the premises.
2 On the first day of the hearing, Ms Dixon, on behalf of the defendant, admitted negligence, however stated that contributory negligence remained an issue in the proceeding. On the 7th May 2009, I ruled that the issue of contributory negligence be taken from the jury.
3 The proceeding thus became an assessment only, as to both pain and suffering damages, and pecuniary loss damages. In the course of my charge to the jury on the 8th May 2009, the proceeding resolved.
4 There were significant issues on the question of damages before the jury, including:
• The age to which the plaintiff would have worked had the injury not occurred. • Whether the plaintiff had the capacity for employment after injury and the level of earnings to which she would have been entitled. • While it was accepted by the defendant that the plaintiff had suffered injury in the incident, the nature, extent and consequences of that injury and the effect, particularly upon the plaintiff’s work capacity was contested. 5 Save as to the matters above, there was nothing particularly complex nor novel about the trial, nor the issues raised therein.
6 In the course of the trial a range of doctors was called, mainly by the plaintiff, “before and after” witnesses and rehabilitation experts. Upon resolution of the proceeding, orders as to costs were agreed save that Mr Mighell, on behalf of the plaintiff, applied for:
ƒ A brief fee of $6000; ƒ Eight further daily fees, each of $6000 per day; ƒ A fee upon brief for junior counsel at $3000; ƒ Eight further daily fees, each of $3000 per day.
7 Ms Dixon, on behalf of the defendant, submitted it was appropriate to award a brief fee for senior counsel at $5500 and refreshers only, at two-thirds of brief fee. Further, she submitted it was appropriate to award fees to junior counsel at scale, with refreshers.
8 Order 63A.82 of the County Court Civil Procedure Rules 2008 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 a 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. (2) Where such fees are fixed on the basis of daily fees—
(a)
the daily fee for the second or any subsequent day of the hearing or trial, shall, unless the Judge determines otherwise by reason of the special circumstances of the case, include all time spent by counsel in preparation and conferences on that day of the hearing or trial as well as the actual time spent by counsel in Court on the hearing or trial on that day; and
(b)
the Judge may allow differing amounts in respect of various days of the hearing or trial.
(3)
Where such fees are fixed on the basis of a brief fee and refreshers and where a hearing or trial occupies either on the first day or partly on the first day and partly on a subsequent day or days more than six working hours (including any luncheon adjournment) without being concluded—
(a)
the Judge may allow a refresher fee for every five working hours (including any luncheon adjournment) subsequent to the expiration of the first six hours; and
(b)
the final refresher may be allowed for any period less than five hours that the hearing or trial may occupy.”
9 Item 31 of the Scale of Costs in the County Court, being Appendix A to the Civil Procedure Rules, provides for a brief fee, depending upon the scale involved, and a refresher fee. While there is no reference in the scale to a daily fee, the fact that it is not so provided does not, in my view, mitigate against a daily fee being allowed. That is clear from the opening words of Order 63A.82(1).
10 It was submitted by Mr Mighell that the current practice as between solicitors and counsel, be they briefed in serious injury applications, or trials, is for counsel for both the plaintiff and defendant to charge and be paid on a daily fee basis. That reflects my experience at the Bar over many years. Ms Dixon, on behalf of the defendant, did not seek to persuade me otherwise. I accept this submission.
11 In written submissions provided by the defendant, reference was made to Magna Alloys & Research Pty Ltd v Kevin Lindsay Coffee (No2).[1] In that case, it was said that the time honoured basis of charging counsel’s fees remained as to a brief fee and refreshers of two-thirds, and the onus is upon a party who seeks a departure from that traditional and usual basis to satisfy the Court that some other basis was more appropriate or that the traditional method could not be reasonably followed. With respect, there have been significant changes in the manner in which counsel’s fees are charged and paid since the decision in Magna, and regard ought be had to the changed practice of briefing since that time.
[1] [1982] VR 97
12 In Prudential Finance Ltd v Davander Nominees Pty Ltd & Ors,[2] Ashley J (as he then was), said:[3]
“Where a case is such as to require considerable out of court work during trial, recompense for that out of court work has been traditionally provided by an increase in the brief fee - and hence each refresher. However, there may be cases where a daily fee on brief should properly be allowed. In 1982, Fullagar J.[4] said that such cases ‘must necessarily be exceptional’, although he observed that the complexity and difficulty of litigation had in his opinion substantially increased over the preceding 30 years. As I have already said, it is my clear impression that, in the last decade, the course of litigation has become generally more complex still. It may well be that the ‘exceptional’ case of a decade ago is now a more common phenomenon.”
[2] [1992] 1 VR 468
[3] page 474
[4] in Magna Alloys (supra)
13 It is undoubtedly the case since the decision in Prudential, that generally speaking cases in this Court have become more complex. Briefs are far more substantial, require a considerable period to read and comprehend and the law, particularly in the area of accident compensation, is becoming more complex each day.
14 In Brenner v First Artists’ Management Pty Ltd,[5] Byrne J presided over a trial which continued over 33 days and, by reason of the quantum of the judgment, involved an assessment of costs on the County Court Scale. He fixed the fee for counsel at above scale and at a daily rate. That case was one of considerable commercial complexity, and involved lengthy preparation and conferences. His Honour[6], in awarding daily fees, reconciled what he said were two important principles. First, although the costs awarded to the plaintiffs would not indemnify them for all of the costs incurred, they were entitled to “all costs necessary or proper for the attainment of justice…”.[7] This objective was not achieved by denying them the reasonable costs of preparation and trial, nor by assuming they ought be represented by counsel of inadequate competence and experience. The second was that the defendant ought not bear a greater burden as to costs than the rules and practice of the Court customarily imposes upon unsuccessful parties. His Honour concluded that the fee provided in item 29 of Appendix A (now item 31) was inadequate to provide for the work actually and necessarily done.
[5] [1993] 2 VR 221
[6] At p280
[7] Order 63A.29
15 Further, in Patton v State of Victoria & Anor.,[8] His Honour Judge Punshon of this Court refused fees on a daily basis in a serious injury application as firstly, that there was a bias towards allowing fees on a brief and refresher basis in item 29 (now item 31) of Appendix A, secondly, the practice of this Court was, and had been, to award fees to counsel on that basis, and further, there was nothing of particular difficulty nor complexity about the proceeding to justify the exercise of his discretion.
[8] [2003] VCC 710, at para 24
16 It may be that in another case of particular complexity, or a case with the requirement for very extensive preparation, that a daily fee ought be awarded in the exercise of the Court’s discretion. However in the present case, there were not particularly complex nor novel issues, and even accepting that the quantum of the settlement to the plaintiff, which I was informed was in excess of $400,000, the trial struck me as relatively straightforward. There was nothing before me in this case to suggest there was the need for very extensive preparation as in Brenner. It seems to me that the awarding of “all costs necessary and proper for the attainment of justice” can be achieved by certification of a costs order as to brief and refreshers.
17 I bear in mind on the one hand that in a practical sense fees are charged and paid on a daily basis both to plaintiff and defendant’s counsel. On the other hand, there should not be a departure from the recent and current practice of awarding fees to counsel, even in jury trials, on a brief and refresher basis, unless there is good reason to do so.
18 There may be cause to argue that the Court Rules and Costs Scales ought be reviewed to provide for counsel to be paid on a daily basis so as to reflect commercial reality. In fact this Court is undertaking a review of its Scale of Costs and that very matter will no doubt be the subject of consideration.
19 In the interim however, I am of the view that there is nothing particularly about this trial which ought justify a departure from the current practice of awarding fees on a brief and refresher basis.
20 Accordingly, I propose to allow a brief fee to Mr Mighell of Senior Counsel at $6000. It is common practice in this Court to certify fees to senior counsel at $5,500 on serious injury applications and given the additional complexity of a jury trial, it seems to me to be appropriate to allow a brief fee at that higher figure.
21 As Junior Counsel, Mr Pillay played a significant role in the trial. He took a number of witnesses in examination and cross-examination, and I am satisfied that it is appropriate to allow his fee at one-half of Senior Counsel’s fees.
22 Accordingly, I shall make orders to reflect this ruling.
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