Monty v CSR Viridian Operations Pty Ltd (Ruling)

[2013] VCC 686

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-10-04063

RUDY MONTY	Plaintiff
v
CSR VIRIDIAN OPERATIONS PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	16 and 17 April 2013
DATE OF RULING:	2 May 2013
CASE MAY BE CITED AS:	Monty v CSR Viridian Operations Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2013] VCC 686

RULING AS TO COSTS
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – costs – whether issues of two counsel and quantum of counsels’ fees should be certified by trial judge or referred to the Costs Court.

Legislation Cited:     Accident Compensation Act 1985; County Court Civil Procedure Rules 2008

Cases Cited:            Wadley v Ron Finemore Bulk Haulage Pty Ltd (No 3) [2013] VSC 181; Logan v Aberdeen Holdings (Aust) Pty Ltd [2011] VCC 1417; Turner v Metalsa Australia Pty Ltd & Anor (VCC, 14 February 2013); Stanley v Phillips [1966] 115 CLR 470; Peile v Nobel (Australasia) Pty Ltd [1966] VR 433; Hildebrand v Veolia Environmental Services (Aust) Pty Ltd (VCC, 8 April 2013); Huynh v Kenman Kandy Pty Ltd [2013] VCC 410.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison SC with Ms A Wood	Maurice Blackburn Lawyers
For the Defendant	Ms F Ryan	Lander & Rogers

HIS HONOUR:

1 In this matter, the plaintiff applied, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), for leave to bring a proceeding for the recovery of damages in respect of injury suffered by him in the course of his employment with the defendant.

2 The matter commenced on 16 April 2013. The plaintiff gave oral evidence and was cross-examined. During the course of that day, and whilst the plaintiff was still in the witness box, the parties requested that the matter be stood down. Later, I was advised that the matter had resolved on the basis that the defendant had agreed to issue a certificate to the plaintiff consenting to him bringing a proceeding for pain and suffering damages in respect of his injury. Although it was not specifically stated, I interpret this as meaning that the Victorian WorkCover Authority (“the Authority”) had issued a certificate pursuant to s134AB(16)(a) of the Act on the basis that it was satisfied that the plaintiff’s injury was a serious injury and, accordingly, had agreed to issue a certificate in writing consenting to the bringing of proceedings to recover damages.

3       The parties were in agreement as to part of the consequential orders sought by the plaintiff in respect of costs. I was advised that the parties consented to an Order that the defendant pay the plaintiff’s costs on Scale D of the County Court Scale of Costs up to and including 31 August 2011, and thereafter on the County Court Scale, such costs to be determined by the Costs Court in default of agreement.

4       Further, the parties agreed that I should certify for the reasonable cost of preparation and service of Court Books.

5       In addition, the plaintiff sought certification for:

(a)      Two Counsel;

(b)      Senior Counsel’s fee on brief fixed at $5,500 with two hours’ special   conferences at $550 per hour; and

(c)       Junior Counsel’s fee on brief fixed at $2,750 with two hours’ special conferences at $275 per hour. 

The defendant submitted that these matters should not be certified.

6       The defendant submitted that this was a relatively straightforward matter.  Although the plaintiff had initially sought leave to commence a proceeding for damages in respect of his injury based on pain and suffering and loss of earnings consequences, on the morning of the hearing, Senior Counsel for the plaintiff had advised Counsel for the defendant that the application was made only in respect of pain and suffering consequences.  That is, leave was only sought to commence a proceeding seeking pain and suffering damages. 

7       Counsel for the defendant submitted that there was nothing about the proceeding that took it out of the ordinary and that all matters pertaining to costs or certificates should be determined by the Costs Court.

8       In the event that I was of the view that such matters should be determined by me, Counsel for the defendant submitted that it was not a case which warranted certification for two counsel.  Counsel for the defendant informed the Court that, in the event that certification was made for two counsel, the defendant did not take issue with the fees on brief requested of $5,500 and $2,750 respectively, or the amounts requested to be certified for special conferences.

9       It follows that the matters to be determined are:

(a)      Whether the Court should determine issues related to the certificates sought or refer them to the Costs Court?

(b)      If the Court concluded that it should determine the certifications sought, whether this was a case appropriate to certify for two counsel?

10      I am aware of decisions of Judges of this and the Supreme Court where varying approaches have been taken to these issues.  Some of these are set out below.[1]  No doubt there are many others.

[1]Wadley v Ron Finemore Bulk Haulage (No 3) [2013] VSC 181 per Beach J; Logan v Aberdeen Holdings (Aust) Pty Ltd [2011] VCC 1417, a decision of Judge Parrish; Turner v Metalsa Australia Pty Ltd & Anor (an unreported decision of Judge Hogan on 14 February 2013); Hildebrand v Veolia Environmental Services (Aust.) Pty Ltd (an unreported decision of Judge Jordan on 8 April 2013; Huynh v Kenman Kandy Pty Ltd [2013] VCC 410, a decision of Judge O’Neill.

11      Counsel for the defendant did not dispute that the Court has discretion as to whether to refer the issues in contention to the Costs Court or to make the decision itself as to whether the certificates requested by the plaintiff should be granted.  I consider that Item 42(m) of Appendix A to the County Court Civil Procedure Rules 2008 makes it clear that a judge of this Court has jurisdiction to certify for two counsel.

12      I have concluded that it is appropriate in the circumstances for me to decide whether or not the additional certificates should be granted.  The parties are presently before the Court.  Counsel before the Court were cognisant of the facts of the case.  There is likely to be some delay in determining the issues if the matter was to be referred to the Costs Court.  Neither Counsel were able to provide any accurate estimate of that delay but it seems to me likely that it would be a delay of at least some months. 

13      A separate referral to the Costs Court is likely to require appearances by solicitors and perhaps counsel, and be an additional cost to the parties.  There is, of course, no guarantee that counsel involved in this hearing and with detailed knowledge of the facts of the case, will be available to appear before the Costs Court.  I have had the opportunity of hearing at least some of the evidence intended to be led by the plaintiff and of reading the material contained in the Court Books provided by the parties containing medical reports and other material intended to be tendered by one or other of them.  I am apprised of the facts of the case.  I consider that I am probably in a better position to appreciate the facts and issues associated with the proceeding than the Costs Court would be at some undetermined time in the future.

14      Further, it may well be that the issue of certification for two counsel will be the only matter concerning costs that is in issue.  If I determine the issue now, there may well be no need for the parties to be involved in proceedings before the Costs Court at all.

15      For the reasons expressed above, I have come to the conclusion that it is more convenient and efficient, in terms of time and cost, for me to consider the issue of the additional certificates requested.

16      In Stanley v Phillips,[2] Barwick CJ said:

“In my opinion, the result of the authorities and the meaning of the regulation is that the taxing master is to allow the fees of more than one counsel where he is satisfied that the nature and circumstances of the case are such that the services of two counsel are required if the case is to be presented to the court in such a manner that justice can be done between the parties.

Of course, a litigant must make for himself a judgment on this question at the time he decides to incur the expenditure. He cannot be required to do more than act reasonably and prudently in relation to that matter.  Consequently, in determining what is necessary or proper, the taxing officer must consider whether it was reasonably necessary or proper in the sense I have indicated, for the litigant to decide at the appropriate time in the course of the litigation to engage more than one counsel.”[3]

[2][1966] 115 CLR 470

[3]at page 37

17      Taylor and Owen JJ, in the same case, said:

“That question is, of course, a practical one and what may be regarded as a prudent course or an over-cautious course can be determined only by considering whether the case was one which the plaintiff's advisers might reasonably have regarded as calling for skill and experience beyond that of the junior bar.  We agree with his Honour and with the dissenting judge of the Full Court that the case was a ‘simple one’ and not a ‘heavy one’ and that it did not present any features which could be said reasonably to call for skill and experience beyond that of the junior bar.”[4]

[4]at page 40

18      In Peile v Nobel (Australasia) Pty Ltd,[5] Starke J said that the question that should be posed was:

“Would a reasonable and prudent, but not over-cautious man, in all the circumstances, seek the services of two counsel, notwithstanding the expense?  In determining this question, the Taxing Officer should take into consideration and should balance both the attainment of justice and the interests of the party in the successful outcome of the litigation, and should bear in mind that there is an inner and outer Bar, and that as a general rule the most skilful and the most experienced counsel are within the inner Bar.  The Taxing Master must look at the matter from the point of view of the party who has to make the decision before the trial, at the time when it is proper, in the circumstances of the case, that counsel should be briefed.  He should guard against having recourse to hindsight in making his determination.  The facts in any particular case which should lead the Taxing Master to allow two counsel are as various as is litigation itself, and each case must depend on its own facts.”

(my emphasis).

[5][1966] VR 433 at 437-8

19      I consider that the questions posed by the High Court in Stanley and by the Supreme Court in Peile are the questions to be determined in this application.

20      A serious injury claim from a plaintiff’s perspective is quite different in terms of importance and consequence when compared with the perspective from a defendant/employer.  

21      If a plaintiff fails in such an application, it is a fatal result.  His or her common law rights are lost permanently.

22      If the defendant/employer fails, in a sense, it loses little, if anything.  It is able to run each issue canvassed at the hearing of the originating motion again at the damages trial, should it desire to do so.  It can re-argue each issue raised by it at the earlier hearing regardless of the findings on those issues by the trial judge at that time.  It has the opportunity of learning from what occurred at the serious injury hearing, cross-examining witnesses differently, calling additional evidence and so on.

23      For that reason, I consider that, in many serious injury applications, it is appropriate for Senior Counsel to be briefed to present the plaintiff’s case.

24      Counsel for the defendant submits, in effect, that this is a simple, straightforward case which did not warrant Senior Counsel’s involvement.  Notwithstanding that suggested simplicity, it was not a case where the defendant, prior to the hearing, offered to the plaintiff a certificate entitling him to bring a proceeding for pain and suffering damages in respect of his work injury, as it eventually determined to do.  One might ask, if the matter was so simple and straightforward, why such a certificate was not granted well prior to the hearing date? 

25      Although there was some uncertainty, Senior Counsel for the plaintiff advised me that it was likely that the defendant had served a notice requiring each of the medical practitioners whose reports had been exchanged to be available for cross-examination.  There appear to be reports from seven medical practitioners together with two vocational consultants exchanged.  Counsel for the defendant took no issue with this.  Not surprisingly, the estimate given to the Court for the likely duration of the hearing was up to four days. 

26      Although the plaintiff sought leave to commence a proceeding in respect of his left knee injury for pain and suffering damages only, he had initially sought that leave on the basis also of loss of earning capacity damages.  It was only on the morning of the hearing that the defendant was advised that the application would only be made in respect of pain and suffering damages.  Counsel for the defendant submitted that this was never a claim in which loss of earning capacity was relevant because the plaintiff was in fact working on a full-time basis at the time the application was issued and had continued to do so since.  Her submission was that the application in respect of loss of earning capacity was, in effect, misconceived and never had any prospect of success.

27      Senior Counsel for the plaintiff submitted that this was an incorrect analysis.  I agree. There was medical evidence that the plaintiff’s condition may well deteriorate and prevent him from working at all.  For that reason, he submitted that it was quite proper for the plaintiff to have initially sought leave in respect of both heads.  Even following the issuing of the Originating Motion, there was a genuine risk that the plaintiff’s injury would deteriorate to the point that, at some stage before the hearing, his ability to work may have been reduced or eliminated.  Hence, it was argued that it was entirely proper for the plaintiff to leave it until virtually the last moment before abandoning the loss of earnings claim.  I agree.

28      However, whilst it may have been prudent to commence the proceeding on the basis of pain and suffering and loss of earning capacity, I am not convinced that it was appropriate to leave it until the morning of the hearing before determining upon which bases the application would proceed. Notification could and should have been given to the defendant some reasonable time in advance of the hearing date. Nevertheless I do not consider that this aspect is determinative of the issue in dispute.

29      The plaintiff had injured his left knee in the course of his employment with the defendant.  He had undergone surgery.  At a later time, he developed symptoms in his right knee which also required surgery.  He alleged deteriorating symptoms in both knees.

30      A significant issue between the parties was the relationship between the left knee injury and the later right knee symptoms.  As I understood the parties’ respective positions, the plaintiff intended to submit that the right knee symptoms were a consequence of the left knee injury in that, following that injury, he had favoured his right leg for a considerable period of time.  The defendant’s position appeared to be that the right knee symptoms did not relate to the left knee injury at all but were congenital or at least unrelated to his employment with the defendant.  Further, it was likely that there would be an issue as to whether the inclusion of the right knee symptoms in the consequences of the left knee injury amounted, effectively, to an attempt to aggregate the two injuries and, if so, whether that was permitted. 

31      I am satisfied that this application was a relatively complex one and, on any view, an important matter for the plaintiff.  I do not accept that it was a simple or straightforward matter. 

32      I am satisfied that a reasonably prudent solicitor in the place of the plaintiff’s solicitor was justified in briefing Senior and Junior Counsel in order to present the plaintiff’s case as efficiently and well as it could have been. 

33      I am conscious that for more than fifteen years, the Victorian WorkCover Authority and Transport Accident Commission briefed Senior Counsel and Junior Counsel in virtually every serious injury application.  That practice was, in my view, a clear signal that both of those authorities considered that serious injury applications were important and that they were justified in briefing Senior and Junior Counsel in such matters.  It is not surprising that solicitors acting for plaintiffs in serious injury applications came rapidly to the same conclusion. 

34      In 2011, the Authority, but not the Transport Accident Commission, changed its policy.  The Authority appears to have determined, often but not always, to brief one Junior Counsel to act on behalf of the employer defendant in a serious injury application.  Plaintiff’s solicitors often do not know whether or not Senior Counsel is briefed for the defendant until arrival at Court on the day of the hearing. 

35      Regularly, on occasions where the Authority has elected to brief only Junior Counsel, it opposes certification for two counsel for the plaintiff, as it has done here. 

36      It appears to me that the Authority’s new policy is likely to reflect a somewhat belated recognition that plaintiffs probably get better results when represented by Senior and Junior Counsel.

37      I note that the Authority continues to brief both Senior and Junior Counsel in virtually all cases heard on circuit in Victoria. 

38      Nevertheless, I do not consider that the briefing policies of the Authority prior to and since 2011 should be seen as determining the question of whether a reasonably prudent and not over-cautious solicitor acting for a plaintiff in a serious injury application would brief Senior and Junior Counsel in this case.

39      The question as to whether the plaintiff’s solicitors might reasonably have regarded the case as one calling for the skill and experience of Senior Counsel is not to be looked at retrospectively.  It should be assessed at the time at which it was reasonable to brief counsel.  There was no evidence before me as to the date upon which Senior Counsel was briefed but I assume it was some weeks prior to the scheduled hearing date. 

40      In any event, I am satisfied that this was a case involving some complexity.  Issues concerning the extent of consequences of the left knee injury, the relationship between the right knee symptoms and the left knee injury, questions of aggregation of the two injuries and the unusual issue concerning the possible loss of earnings consequences of the injury to the plaintiff, enable me to conclude that the plaintiff’s solicitors, acting reasonably and prudently but not over-cautiously, would have considered that the services of Senior and Junior Counsel were warranted. 

41      Accordingly, I shall order that there be certification for two Counsel.

42      The quantum of Counsels’ fees on brief and fees for conferences is not an issue. 

43      Although the argument relating to costs extended into a second day, I do not consider that it would be appropriate to certify for a second day at the rate of $5,500 or $2,750 respectively.  The argument on the second day extended for approximately one hour or just under 10 per cent of the time occupied by a normal sitting day and including preparation time.  However, given the time at which settlement occurred, Counsel were obliged to attend Court on the following day and to present submissions in respect of disputed costs issues. Counsel could not realistically have accepted another brief for the following day. In the circumstances, I shall certify for Counsels’ fees for the second day of the hearing at one half of the fees on brief allowed for Counsel for the first day. 

44 Counsel for the defendant drew my attention to s134AB(29) of the Act.  The sub-section deals with the reduction by 20 per cent of any applicable scale of costs for the purpose of taxing of costs.  In this matter, I do not consider that I am involved in any taxation of costs.  For the reasons expressed by Beach J in Wadley (No 3)[6], I do not regard the sub-section as relevant to the matters under consideration here. It follows that the amounts I propose to fix in respect of Counsels’ fees do not fall to be the subject of any further reduction under s134AB(29) of the Act.

[6](Supra) at paragraphs [13] and [14]

45      Accordingly, I shall make the following orders:

(1)The defendant pay the plaintiff’s costs on Scale D of the County Court Scale of Costs up to and including 31 August 2011 and thereafter, on County Court Scale to be assessed, in default of agreement, by the Costs Court.

(2)I certify:

(a)That this was a proceeding in which it was appropriate for Senior and Junior Counsel to be briefed on behalf of the plaintiff;

(b)For Senior Counsel’s fee on brief at $5,500 with two hours’ special conferences at $550 per hour;

(c)For Junior Counsel’s fee on brief at $2,750 with two hours’ special conferences at $275 per hour;

(d)For Senior Counsel’s fee on brief for attendance on the second day of the hearing fixed at $2,750;

(e)For Junior Counsel’s fee on brief for the second day of the hearing fixed at $1,375;

(f)For the reasonable costs of preparation and service of Court Books.

(3)The proceeding be otherwise dismissed.

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