Lewis v Infosys

[2015] VMC 21

IN THE MAGISTRATES COURT OF VICTORIA

AT MELBOURNE

WORKCOVER DIVISION

Case No.E12319780

SHANNON LEWIS	Plaintiff
v
INFOSYS TECHNOLOGIES LIMITED	Defendant

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MAGISTRATE:	S GARNETT
WHERE HELD:	LATROBE VALLEY - MELBOURNE
DATE OF HEARING:	22 JUNE 2015
DATE OF DECISION:	26 JUNE 2015
CASE MAY BE CITED AS:	LEWIS v INFOSYS

REASONS FOR DECISION

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Catchwords: Costs Order – Counsel Fees - Certification of Counsel Fees or according to Scale: S 50 Accident Compensation Act 1985 – Magistrates’ Court General Civil Procedure Rules 2010 – S 131 Magistrates’ Court Act – not persuaded that proceeding ‘necessarily exceptional’ so as to warrant departure from Scale. Lukac v Nextt Health [2015] VMC 13 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Dimsey	Hounslow & Associates
For the Defendant	Ms Tueno	Russell Kennedy

HIS HONOUR:

1 On 11 June 2015, I published reasons for finding that Mr Lewis is entitled to weekly payments of compensation and reasonable medical and the like expenses in accordance with the provisions of the Accident Compensation Act 1985 as a consequence of injuries sustained by him which arose out of and in the course of his employment with the defendant. My decision followed a contested hearing which proceeded over 3 days on 1, 2 and 5 June. I heard evidence from 7 witnesses in total including 3 treating doctors and numerous documents, medical records and reports were tendered.

2       The parties have agreed that in accordance with my decision the appropriate Magistrates’ Court Scale of Costs is G. However, the parties have been unable to agree on the appropriate costs orders in relation to Counsel. It was submitted on behalf of Mr Lewis that counsel fees should be certified and in particular, certification for brief on hearing for 1 June in an amount of $2,458, a refresher for 2 June in an amount of $1,747 and brief on hearing fee for 5 June in an amount of $2,458. Counsel also seeks certification for 2 hours of conference fees in an amount of $315 per hour.

3       The defendant submitted that the court should follow the usual position as between party and party costs in that counsel fees should be ordered to be paid on a brief fee and refresher basis on scale G. If the court adopts this position, Counsel fees are payable in an amount of $2,458 for 1 June and one refresher in an amount of $1,747 which is applicable for the hearing conducted on 2 June and 5 June. The defendant does not dispute that if a conference fee is payable it is to be according to scale at $315 per hour.

4       Mr Dimsey contended that his fees should be certified having regards to the issues involved in the case, the number of witnesses and the fact that the matter was adjourned at 12.30 p.m. on 2 June until 3 p.m. on 5 June to enable Miss Newton to give evidence via video link from Shanghai, China. He contended that the adjournment of the hearing to enable that evidence to be given was due to a late decision by the defendant to require her to give evidence. The defendant responded by contending that the need to call viva voce evidence from Miss Newton rather than relying on the contents of a statement made by her on 13 January 2015 was due to the evidence given by Mr Lewis.

5       In support of his submission that counsel fees should be certified, Mr Dimsey relied on a recent ruling made by me in the matter of Lukac v Nextt Health [1].

[1] [2015] VMC 13 28 April 2015.

6 In support of its contention, the defendant filed comprehensive written submissions regarding the operation and application of the Civil Procedure Rules, Accident Compensation Act and Magistrates’ Court Act as they relate to costs orders and the differences between this matter and the issues in Lukac.

7       In summary, the defendant submitted that the costs scale should not be departed from because;

·    the reference to the scale of costs in s 50 of the ACA;

·    the absence of a specific provision for daily fees as appears in the Scale of costs in other courts;

·    that it is not relevant to take into consideration the basis of fees paid to Counsel representing the defendant;

·    that the costs scale in the Magistrates’ Court makes allowance for an increase or decrease in an item amount if the court considers the specified amount is inadequate or excessive but does not allow the court to substitute a different scale or to restructure an item;

·    an increase or decrease in the scale item should only occur if the court considers the item amount inadequate or excessive and the exercise of this power should only be applied in exceptional circumstances;

·    the court has not been provided with information concerning the fee arrangement under which Mr Dimsey accepted the brief which may be relevant when assessing the merits of the application;

·    the seniority or otherwise of Counsel as relied on in Lukac is not a relevant consideration;

·    the certification of Counsel fees will not necessarily address the real cause of delay in payment of costs;

·    to entertain argument on counsel fees when the vast majority of costs claims are resolved by agreement encourages disputation and delay;

·    the essential difference between this matter and the Lukac proceeding which involved 4 days hearing and 5 witnesses (including 3 doctors) giving evidence and them being subject to a detailed and thorough cross examination; and,

·    the parties in this proceeding made allowance for the unavailability of Mr Dimsey on the morning of 5 June for him to retain briefs in other matters which was not the case in Lukac.

8       It is not in dispute that the court has the discretionary power to certify counsel fees and order that they be fixed on a daily fee basis. The question is whether the court should exercise its discretion in this matter and therefore depart from the usual order that they be determined in accordance with the applicable Scale. I am not persuaded that it should. In this proceeding, five of the seven witnesses who gave viva voce evidence were in the witness box for 20 minutes or less. The substantive evidence was given by Mr Lewis and Dr Blair-West and the tendered documents were not voluminous. Initially, the defendant did not intend to call evidence from Ms Newton and a statement made by her to Mr Harper was to be tendered by consent. However, in light of evidence given by Mr Lewis the defendant made a forensic decision to call evidence from her. It was beyond the defendant’s control that she was not able to give evidence via video from Shanghai until the afternoon on 5 June. If it were not for these issues which arose during the running of the case the hearing would have concluded on the second day.

9       I have also taken into account that the issues to be determined by the court were not overly complex or difficult notwithstanding reliance by the defendant on the special defences contained in s 82 (2A), s 102 and s 103 of the Act.

10      I do not consider that this proceeding as being “necessarily exceptional’ so as to warrant a departure from the usual order being made that the defendant pay the plaintiff’s counsel fees on a brief fee and refresher basis according to Scale.

11      Accordingly, I will order that the defendant pay the costs of the plaintiff on Magistrates’ Court Scale G to be taxed in default of agreement. Counsel for the plaintiff is to be paid a Brief Fee on Hearing in an amount of $2,458 and one Refresher at $1,747 with 2 hours of conference fees at $315 per hour.