Marianis v 7-Eleven Stores Pty Ltd
[2010] VCC 1710
•15 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
WORKCOVER DIVISION
Case No. CI-08-00343
| ANNA MARIANIS | Plaintiff |
| v | |
| 7-ELEVEN STORES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25, 26 & 27 August 2010 | |
DATE OF RULING: | 15 September 2010 | |
CASE MAY BE CITED AS: | Marianis v 7-Eleven Stores Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2010] VCC 1710 | |
REASONS FOR RULING
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Catchwords: Accident Compensation Act 1985 – claim for statutory benefits – costs – complicated matter – whether two counsel required – Order 63A of County Court Civil Procedure Rules – quantum of fees.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I. McDonald with Ms M. Pilipasidis | Maurice Blackburn |
| For the Defendant | Mr N. Chamings | Lander & Rogers |
HIS HONOUR:
Ruling as to costs
General background and the areas of dispute
1 This costs dispute arises from a claim by a 40 year old woman who has had multiple back operations, namely three to the lumbar spine and, finally, surgery to an abscess which subsequently developed in her thoracic spine. The work-related injury alleged was in the nature of an aggravation. Causation and whether employment was a significant contributing factor to the injury were issues that were very much in dispute. An additional question that was involved was whether the spinal abscess was related to the earlier surgery and hence arguably related to the initial injury. A further question was, if the abscess was not so related, whether it represented an intervening, unrelated factor that effectively destroyed any capacity for employment which the plaintiff had retained. It should be added that the plaintiff is now largely confined to a wheelchair.
2 I delivered the principal Judgment in this matter on 10 September last. In essence, I found that the plaintiff was successful in establishing that she was entitled to compensation, and specifically to weekly payments of compensation at the appropriate rate as for a person with no current work capacity within the meaning of the Act. I also found that she was entitled to payment of reasonable medical and like expenses, and to a determination or declaration that the defendant was liable to her pursuant to ss.98C and 98E of the Act. After I handed down Judgment and costs were being discussed, a dispute arose as to certification for two counsel, the quantum of counsel’s fees and, particularly in relation to that, the number of refreshers to which one counsel was entitled.
3 Mr I McDonald with Ms M Pilipasidis, both of counsel, appeared on behalf of the plaintiff. Mr N Chamings of counsel appeared on behalf of the defendant during the hearing, but Mr Priday of Lander & Rogers, solicitors for the defendant, attended at the handing down of my Judgment and presented the costs argument on behalf of his client.
4 No dispute exists but that the defendant will pay the plaintiff’s costs on Scale D, including a certificate for hearing reserved judgment for one counsel, that fee also being on Scale D. There was no argument but that the usual order as to court books should be made. Mr McDonald sought a certificate for two counsel. He sought that his fee on brief be fixed at $3,600, together with certification for three refreshers at $2,400 per refresher. He also sought three hours of special conferences at $360 per hour. In relation to Ms Pilipasidis’ fees, he sought a fee on brief on Scale D, three refreshers and three hours of conferences also on that scale.
5 Mr Priday submitted that there should not be a certificate for two counsel and, additionally, that Ms Pilipasidis had not been present on the last day of the hearing and should not be entitled to three refreshers. Whether the quantum of Mr McDonald’s proposed fees was in dispute was not made entirely clear, but I shall treat his fees as not being the subject of consent.
Ruling
(i) Certification for two counsel
6 I disagree with the submission of Mr Priday that this was not a difficult case and that it was, factually and legally, quite simple. In my opinion, this was a complicated matter. The facts, the medicine and the law were complex rather than simple. It is perhaps a barometer of this that my Judgment ran to some 26 pages.
7 This was not a case where causation hinged upon a single traumatic incident. The system of work, upon which reliance was placed, took quite some understanding and the extent of the plaintiff’s role in it was strongly disputed and was the subject of conflicting evidence. The injury alleged was in the nature of an aggravation, so that ss.82(2C) and 5(1B) became applicable. Thus, the plaintiff’s previous medical history also became relevant, and consideration of other factors required by the legislation was necessary.
8 The sequence of events after the plaintiff first suffered major symptoms was also complicated. She went on leave. She returned to work. She sought medical attention. She was referred to a specialist. She was referred to a neurosurgeon. She underwent quite complicated surgery. The plaintiff then resumed work in a limited capacity, had an unrelated surgical procedure, resumed work again and then suffered a further increase in back symptoms. She had been referred to a specialist consultant in pain rehabilitation and pain medicine. Ultimately she underwent further back surgery of some magnitude. She then required psychiatric assistance. The plaintiff returned to work again and it was alleged that some difficulties, including harassment, occurred. Ultimately, and after some discussion, she ceased work, and this was closely followed by further complex surgery.
9 I have set out in a very summary form the sequence of events in relation to medical treatment, combined with attempted returns to work, which ensued after the onset of symptoms in order to give some basic idea of the somewhat involved developments that occurred. Greater detail can be obtained from the Judgment handed down.
10 The next complicating feature, and one of potentially considerable significance, related to the occurrence of the abscess in the thoracic spine. This made matters more involved. Attention had to be directed towards whether this abscess was related to the earlier spinal surgery and, given that it occurred some time after the third operation and at a different level of the spine, this was an issue that was far from clear cut. If the abscess and the resulting incapacity were not related to the earlier surgery, and hence to employment, arguments concerning an intervening episode or condition that was not work-related required consideration. This was particularly so given the wording of s.93CC(1) of the Act. Whether an ongoing capacity for employment had been destroyed by such an event was another issue that had the potential for involved and important argument.
11 Another complicating factor was that of the histories given by the plaintiff and the passage of almost two years that passed between the onset of serious symptoms and the lodging of a claim form by the plaintiff. It could well, and accurately, have been predicted that this aspect of the matter would have given rise to extensive and demanding cross-examination. A careful preparation and presentation, with a close examination of relevant documents, would have been required.
12 Finally, the magnitude of the potential quantum of the case is something which a prudent solicitor would have considered at the time of briefing. The plaintiff is aged 40 and spends a considerable amount of her time confined to a wheelchair. As I have found, her earning capacity has been destroyed and there is no prospect of this situation altering for the better in the foreseeable future. Thus, leaving to one side any consideration of the medical, hospital and like expenses that have been incurred, the magnitude of the amount involved was very considerable. In addition, as pointed out by Mr McDonald, this was an “all or nothing” situation.
13 When all of the above is taken into account, and bearing in mind authorities such as Oldaker v Currington [1987] VR 712, it seems to me that a prudent solicitor, at the time of briefing (which is the critical time), would have engaged two counsel. This was a big case in every sense of the word, involving complicated matters. Mr McDonald stated that his brief consisted of five lever arch files and two court books. Essentially this was not challenged, and I have no reason whatsoever to doubt it. There were a considerable number of potential witnesses. It seems to me that, in order to attain justice and enforce the plaintiff’s rights, a prudent person would have sought the services of two counsel. Such person would be fully justified in retaining the services of a very competent member of counsel, particularly experienced in this area of the law, together with a more junior but capable and experienced counsel to assist. Mr McDonald and Ms Pilipasidis could certainly be so described.
14 Whilst ultimately the case ran for only four days, and the number of witnesses was less than might otherwise have been expected, at the time of briefing this could not have been anticipated with confidence. Further, it is apparent that the solicitors for the plaintiff opted to engage two counsel long before the matter came on for hearing before me. I note that two counsel appeared for the plaintiff as early as 13 October 2008, when the matter was listed for hearing before His Honour Judge Wischusen but could not proceed on that day. In other words, the assessment of the case as being one which required two counsel was not taken by the solicitors for the plaintiff at the last moment, either in panic or in an attempt to gain some tactical advantage over the defendant. The case had long, and accurately, been seen as one in which it was prudent to engage two counsel.
15 In summary, and bearing in mind all of the above, in my view the retention by the plaintiff of two counsel was reasonable and appropriate, and something which a prudent person, at the relevant time, would have done.
(ii) The fees of Mr McDonald
16 As stated, I am uncertain as to whether the amount of Mr McDonald’s fees are in dispute. No argument against them was raised. The fee on brief requested by him, namely $3,600, is reasonable indeed given his competence, experience and standing. I note that he signed the Bar Roll in 1984. His expertise in this area of the law is well known. Exercising my discretion pursuant to Order 63A of the County Court Rules, I fix his fee on brief at $3,600. There was no dispute in relation to the number of refreshers as far as Mr McDonald was concerned, or as to the hours spent conferring. I certify for three refreshers at $2,400 each and for three hours of special conference at $360 per hour.
(iii) The fees of Ms Pilipasidis
17 The only argument in relation to Ms Pilipasidis’ fees related to whether or not she should receive a certificate for three refreshers, given that it was agreed that, because of a personal commitment, she was unable to be present on the fourth day of the hearing. I have carried out the appropriate check on sitting hours, and agree that these reveal that, for Ms Pilipasidis, they would not extend to a third refresher. It was not argued that some other reasons exists as to why there should be a certificate for a third refresher even though she was unable to be present. In the circumstances, whilst fixing Ms Pilipasidis’ brief fee on Scale D, and also certifying for three hours of special conferences on that scale, I certify only for two refreshers on Scale D.
Conclusion
18 I should add, that in accordance with Order 63A.05 and/or .07, I am specifically ordering that each of the sums referred to above not be taxed. Certain aspects of these costs orders were by consent, and I have specifically fixed the remainder rather than refer them for taxation. The fees of Ms Pilipasidis, which I have not fixed in terms of precise dollars, are to be on Scale D.
19 In summary, I certify for two counsel and the fees to be paid are those specified above.
20 I reserve liberty to apply.
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