Lukac v Nextt Health

[2015] VMC 13

IN THE MAGISTRATES COURT OF VICTORIA

AT MELBOURNE

WORKCOVER DIVISION

Case No.E12285556

MARINA LUKAC	Plaintiff
v
NEXTT HEALTH PTY LTD	Defendant

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MAGISTRATE:	S GARNETT
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 APRIL 2015
DATE OF DECISION:	28 APRIL 2015
CASE MAY BE CITED AS:	LUKAC v NEXTT HEALTH

REASONS FOR RULING

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Catchwords: Costs – applicable Court Scale of Costs and Counsel Fees.     

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Ryan	Hounslow Lawyers
For the Defendant	Ms Clare	Russell Kennedy

HIS HONOUR:

1       On 31 March 2015, I provided a written decision finding in favour of Ms Lukac after a contested hearing which proceeded over 4 days on 18 February, 5, 6 and 10 March 2015.

2       The parties appeared before me on 17 April and indicated that they were unable to agree on the appropriate order as to the Court Scale of Costs and Counsel fees following the decision made on 31 March.

3       In short, it was submitted by Mr Ryan that the defendant should be ordered to pay the plaintiff’s costs on Court Scale E ($20,000 - $40,000) and that Counsel fees should be certified at $1,874 per day for each of the four hearing days together with 2 hours of conferences, preparing and consulting at the rate of $328 per hour.

4       It was submitted on behalf of the defendant that it be ordered to pay the plaintiff’s costs on Court Scale D ($7,500 - $20,000) with the usual order in relation to Counsel fees, that being a Brief fee on hearing in an amount of $1,501, one refresher at $999 and conference, preparation and consulting at $304 per hour.

5       As indicated in my decision on 31 March, Mrs Lukac sustained injury on the first day of her employment with the defendant. She had only worked for a period of 3 hours. She had indicated on the her WorkCover claim form that her usual pre-tax hourly rate was $22.35. She was employed on a casual basis as a personal care attendant and was to be paid in accordance with the Social, Community, Home Care and Disability Services Industry Award 2010. Her contract of employment indicated that she would be paid between $17.48 and $21.50 per hour for home care work and between $18.17 and $22.35 per hour for personal care work. The court was informed that for the purposes of her entitlement to weekly payments her pre-injury average weekly earnings have been calculated at $60 per week. Her entitlement to weekly payments commenced on 8 June 2014. When allowance is made for payment of reasonable medical treatment expenses (which does not include the cost of surgery), the applicable Cost Scale is D ($7,500 - $20,000) as contended by the defendant.

6       In support of the application for certification of a daily hearing fee, Mr Ryan relied on a number of matters. Firstly, he submitted that defendant’s counsel are paid a minimum daily fee of $2,269 regardless of whether they are appearing in the Magistrates’ Court or County Court. He said in circumstances where the Victorian WorkCover Authority have an agreement with their Counsel to pay daily fees causes a disadvantage to plaintiff’s counsel and is unfair when plaintiff’s counsel are paid pursuant to the Scale only. Secondly, he submitted that as Counsel with over 30 years experience in the workers compensation jurisdiction, he should be paid at a higher rate than the scale permits. Thirdly, he submitted that in order to avoid a protracted dispute and delay in payment of his fees, the court should certify the amount payable.

7 Mr Ryan submitted that as the court has a discretion in relation to costs it ought to be exercised in this matter. In support of this submission, he referred the court to a number of authorities and s 50 (1)(b) of the Accident Compensation Act 1985, s 131 Magistrates’ Court Act 1989 and Order 63 of the Magistrates’ Court General Civil Procedure Rules 2010.

8       The case proceeded over 4 days and involved 5 witnesses (including 3 doctors) giving evidence. All witnesses were subjected to a detailed and thorough cross examination. In addition, numerous documents, medical records and reports were tendered together with the provision of Court Books to assist the court. The matter involved some complexity, hence the need for evidence to be given by Mrs Lukac, Ms Andovska on behalf of the defendant, the treating general practitioner, treating neurosurgeon and Dr Kostos, medico legal expert for the defendant.

9       I am persuaded in the circumstances of this case that there is merit in fixing the brief fees of Mr Ryan. Accordingly, I propose  to make the following Orders;

1. The defendant pay the plaintiff weekly payments of compensation at the rate for no current work capacity from 8 June 2014 in accordance with the Act.

2. The defendant pay the plaintiff’s medical and like expenses from 8 June 2014 to date and continuing in accordance with the Act.

3. The defendant pay the plaintiff’s costs, including any reserved costs, on Magistrates’ Court Scale D, to be assessed by the Costs Court in default of agreement.

4. The court certifies plaintiff’s Counsel’s fees on hearing at $1,501 per day together with 2 hours of conferring, preparing and consulting at $175 per hour for 2 hours (Item 51).

5. The proceeding is otherwise dismissed.