Melton v Metro Trains Pty Ltd (Costs)

[2021] VSC 506

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 01537

LEWIS MELTON	Plaintiff
v
METRO TRAINS PTY LTD	First Defendant
ASSOCIATE PROFESSOR PETER GIBBONS (CONVENOR OF MEDICAL PANELS)	Second Defendant
MEDICAL PANEL CONSTITUTED BY ASSOCIATE PROFESSOR MIRON GOLDWASSER AND DR ALAN ANDREWS	Third Defendant

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 April 2021
DATE OF JUDGMENT:	18 August 2021
CASE MAY BE CITED AS:	Melton v Metro Trains Pty Ltd & Ors (Costs)
MEDIUM NEUTRAL CITATION:	[2021] VSC 506

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COSTS – Judicial review – Costs where plaintiff successful on some grounds – Considerations where some grounds of appeal abandoned or refined – Costs on a standard basis or whether parties should bear their own costs – Certification of counsel’s fees by trial judge – Discretion to certify for counsel’s fees – Certification declined – Costs awarded on standard basis to plaintiff.

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HER HONOUR:

Background

1. The plaintiff sought judicial review of the Medical Panel’s decision about his impairment under the Wrongs Act 1958 (Vic). The Court allowed the review and made orders in the nature of certiorari quashing the certificate of opinion of the Medical Panel and referring the matter to a differently constituted medical panel.

1. The parties were invited to make submissions in respect of costs.

1. Each of the parties provided short written submissions in support of their respective positions as to costs.[1]

   [1]Lewis Melton, ‘Submissions of the plaintiff as to costs’, Submission in Melton v Metro Trains Pty Ltd & Ors, S ECI 2020 01537, 15 August 2021; Metro Trains Pty Ltd, ‘Submissions on costs on behalf of the first defendant’, Submission in Melton v Metro Trains Pty Ltd & Ors, S ECI 2020 01537, 16 August 2021.

1. The plaintiff’s position is that he seeks an order that the first defendant pay the plaintiff’s costs of the proceeding, including any reserved costs on a standard basis to be assessed by the Costs Court in default of agreement.  The plaintiff also seeks certification for counsel of one day of hearing in the sum of $4,400.

First Defendant’s submissions

1. The first defendant opposes the plaintiff’s claim for costs and seeks an order that each party bear their own costs of the proceeding, including any reserved costs.  The first defendant says that in circumstances as it alleged occurred here, where there was a major shift in the plaintiff’s case, the usual award of costs for a successful party ought not follow.  It was argued that none of the pleaded grounds set out in the written submissions were ultimately put at the hearing and the plaintiff’s affidavit was resiled from in his evidence in chief and expressly not relied upon.  The first defendant argued that it incurred significant wasted costs in considering the plaintiff’s written case, obtaining the medical panel’s members’ notes and preparing affidavits for its evidence, preparing written submissions meeting the plaintiff’s case and preparing for the hearing.

1. The first defendant alleges that all those costs were thrown away by reason of the manner in which the plaintiff put his case at hearing.  The first defendant concedes that whilst costs would ordinarily follow the event, the circumstances of this case strongly merit a departure from the usual course.  Consequently, the first defendant submits that it is appropriate for each party to bear their own costs of the proceeding including any reserve costs.

Plaintiff’s submissions

1. The plaintiff submitted that there was no reason in this case to depart from the usual order that costs follow the event.  The plaintiff acknowledged that one ground of appeal as identified and fleshed out in written submissions was not pursued at the hearing.  This was done on the basis that counsel briefed for the hearing formed the view that the most effective use of the Court’s time was to focus on the first two alleged grounds of appeal which were assessed by counsel as stronger points to be argued.

1. The plaintiff submitted that it is not unusual or indeed improper for the plaintiff to include all arguable grounds of appeal in court documents preparing a matter for hearing.  Indeed it was viewed as nothing short of appropriate that Council refine arguments before the Court based on consideration of all of the material served prior to the hearing.  The plaintiff ought not to be punished for trying to make the best use of the Court’s time by advancing its strongest arguments.  The plaintiff rejected the allegation that the two remaining grounds of appeal were substantially amended.  The plaintiff conceded that the plaintiff’s oral arguments were expanded on at the hearing however the oral arguments were still confined to a consideration of whether the Medical Panel had properly assessed the plaintiff in accordance with Table 2 in Chapter 13 of the AMA Guides to the Evaluation of Permanent Impairment (4th edition).  It was argued further that the oral submissions relied only upon documentation already within the joint court book and upon authorities included in the book of combined authorities.

1. In the course of the hearing, counsel for the first defendant commented that the plaintiff’s submissions had moved beyond written submissions, but, importantly for the issue as to costs, no adjournment was applied for and the matter proceeded.

1. The plaintiff also made submissions seeking certification of counsels fees in the sum of $4,400 for one day of hearing. The plaintiff argued that whilst it is acknowledged that the long-standing position has been that an order certifying counsel’s fees is not usually made in a judicial review proceedings brought under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015, more recently the Court has found it appropriate in a number of cases to make such an order.[2]

   [2]See Voss v Downs-Brydon (No 2) [2020] VSC 863; Jerak v Dr Lazarus & Ors [2020] VSC 729; Withers v Chalmers Industries Pty Ltd (Costs) [2020] VSC 694.

Costs awarded

1. Costs are in the discretion of the Court. It is the usual position that where a party is successful in obtaining the orders it seeks that costs will follow the event.  However, there may be circumstances where costs are unnecessarily incurred or thrown away which would persuade a court in the exercise of its discretion to make a different decision.

1. I am not satisfied that in the manner in which the litigation has been conducted that the plaintiff ought not recover its costs on a standard basis, including any reserve costs.

1. In my view, it is common that the questions of law and grounds upon which the proceeding is originally based are refined both through the course of the preparation of the matter and more finely tuned for presentation at the ultimate hearing.  Whilst it is clear that the plaintiff was not successful on all grounds initially relied upon, I accept that it is legitimate for decisions to be made by counsel (and those instructing counsel) in the preparation of the case for hearing which will mean only the best points are argued before the Court.

1. This judicial review matter was unusual in that oral evidence was given by the plaintiff and cross examination of him occurred.  The cross-examination elicited a concession from the plaintiff that he could not be sure about the circumstances of the examination and whether he was asked specific questions about his injury . Ultimately this led to the Court not being satisfied that the grounds which relied upon this evidence could be made out.

1. I do not consider in this case that being unsuccessful in part is sufficient to move from the usual order that costs follow the event.  It is appropriate, indeed expected that the most effective use of the Court’s time requires refinement of the arguments, which are put to the Court at the hearing.  I do not accept that the plaintiff’s case was so changed and that it was transformed such that the preparation of the first defendant’s case was wasted to the degree that would change my view about where costs should lie.  Indeed, the first defendant was prepared to meet the arguments relied upon by the plaintiff and did so with competent professionalism.  I am not persuaded that there was work done or thrown away unnecessarily by the narrowing of the arguments put by the plaintiff such that a cost penalty ought to be imposed in this matter.

Certification for Counsel

1. I accept that it has been a long-standing position that an order certifying counsel’s fees is not usually made in a judicial review proceeding.  This is not however an absolute rule and the Court has power to make an order certifying counsel’s fees.[3]

   [3]O’Brien v Greater Bendigo City Council (Costs ruling) [2016] VSC 33 [13].

1. Certification of counsel’s fees was not addressed in the submissions of the first defendant.

1. The plaintiff submitted that this is a matter where it would be appropriate to certify for counsel’s fees, and at a rate of $4,400 based on the following matters:

(a)   the applicable rate for counsel’s fee on brief is a dispute of narrow compass on a single issue and would result in the resolution of at least this part of the costs dispute at an early stage;

(b)  the Court has been called upon to consider the standard costs order in any event;

(c)   the sum of $4,400 is an appropriate sum having regard to the level of complexity of the questions before the Court, counsel’s level of experience, the sum sought being in line with fees certified for counsel of similar standing in like matters and the sum sought being considerably less than the maximum set out in the Supreme Court Scale Of Costs.

1. Whilst I am of the view that the amount of counsel’s fees seems to be an appropriate sum, and the certification of counsel’s costs at this early stage may assist in the settlement of the costs assessment overall, I am not satisfied that this is not a matter which should be properly dealt with by the Costs Court if the parties are unable to reach agreement.  I decline to exercise my discretion to make an order in this regard.