Muir v G E & K W James Pty Ltd (Ruling as to Costs)
[2008] VCC 837
•20 June 2008 (revised)
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
| DAMAGES LIST |
Case No. CI-07-02887
| GRAHAM BERNARD MUIR | Plaintiff |
| v | |
| G E & K W JAMES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 18 June 2008 | |
DATE OF RULING: | 20 June 2008 (revised) | |
CASE MAY BE CITED AS: | Muir v G E & K W James Pty Ltd (Ruling as to Costs) | |
MEDIUM NEUTRAL CITATION: | [2008] VCC 0837 | |
RULING AS TO COSTS
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Subject:COSTS
Catchwords: Serious injury application – resolved before commencement of circuit – allowance of fee to junior and senior counsel for the plaintiff – whether reasonable to brief counsel three months prior to circuit – consideration of Donovan v Miller [1987] VR 221
Legislation Cited: County Court Civil Procedure Rules 2008, r63A.29 and r63A.30; Accident Compensation Act 1985, s134AB
Cases Cited:Donovan v Miller [1987] VR 221; Hancock v Tynan (CCV, unreported, 8 June 1984)
Ruling: Defendant pay the plaintiff’s costs of the application including reserve costs on Scale D.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T J Casey QC | Ryan Maloney Anderson |
| For the Defendant | Ms N Wolski | Hall & Willcox |
HIS HONOUR:
1The plaintiff in this proceeding sustained injury on 3 August 2005 in the course of his employment with the defendant. On 3 April 2007, his solicitors, Messrs Ryan Maloney Anderson of Mildura, made application to the Victorian WorkCover Authority for the grant of a “serious injury” certificate, pursuant to s134AB of the Accident Compensation Act 1985.
2By letter dated 30 July 2007, the application was rejected and on the same day the plaintiff’s solicitors issued an Originating Motion out of the Registry of this Court at Mildura.
3On 1 October 2007, Mr Ryan, the plaintiff’s solicitor, wrote to Mr Terry Casey QC seeking to engage his services on behalf of the plaintiff, not only in this application but in a range of other matters to be heard in the circuit of the Court conducted at Mildura in 2008. Mr Casey attended Mildura on 14 November 2007 and conferred with the plaintiff. A settlement conference was arranged between the parties to take place on 22 November 2007. Shortly prior to that, Ms Meyer, solicitor for the defendant, telephoned the plaintiff’s solicitor to advise that there would be no offers made in the course of the conference. In her affidavit of 17 June 2008, Ms Meyer stated that she indicated that she would like the conference to proceed in order to have “discussions”. It is difficult to understand why the conference would proceed if there was to be no settlement discussion. Understandably, Mr Ryan abandoned the conference.
4On 31 January 2008, the plaintiff’s solicitor wrote to Mr Casey and Mr Bruce Anderson, as junior counsel, to retain them in approximately sixteen matters to be heard in the sittings of the Court at Mildura, commencing in June 2008. Over the period from 3 March to 5 March 2008, Mr Anderson attended at Mildura to confer with the various plaintiffs, update the affidavit material, advise as to evidence and to take any further necessary steps in order for the matters to be properly prepared for hearing in June 2008.
5After these conferences, on 7 March 2008, the briefs in this proceeding and other proceedings in the list were prepared by the plaintiff’s solicitor. According to the endorsement on the briefs to Mr Casey and Mr Anderson, there is stated: “Date delivered – 11 March 2008”.
6On 12 March 2008, the defendant’s solicitor spoke to a clerk at the plaintiff’s firm and advised her not to send the plaintiff to two medical appointments which had been arranged by the defendant with Mr Sim and Dr Baynes respectively for 31 March and 4 April 2008. On 19 March 2008, the defendant’s solicitors sent a letter to the plaintiff’s solicitors notifying them that a certificate as to serious injury would be granted. In the normal course of events, this letter could be expected to have been received on 20 March 2008.
7The plaintiff’s application is for a brief fee to be certified for senior and junior counsel for the plaintiff: senior counsel in the sum of $5,500, and junior counsel in one half of that sum.
8The defendant resisted the application and says that there ought be no brief certified for either senior or junior counsel, and, further, that if a fee is certified, the fee to senior counsel ought be the sum of $4,950, and to junior counsel upon scale.
9There are a number of matters to consider when solicitors brief counsel for circuit sittings. The circuit at Mildura occurs only once a year. In the event a proceeding cannot be heard, it is adjourned across to the next circuit in the next year.
10According to the affidavit of Mr Ryan sworn 17 June 2008, in respect of each matter to be heard at the Mildura circuit there were between two and five lever-arch folders comprising the brief. On any view, the amount of material to be consumed by counsel for the plaintiff is substantial. As serious injury applications are initiated by originating motion, evidence is by affidavit, with medical and like reports being tendered. Each party has the opportunity to cross-examine witnesses of the other side. It is important in such proceedings that all of the appropriate material be up-to-date, and comprehensively sets out the case of the plaintiff to be presented. If there is some significant gap in the plaintiff’s evidence, then the application may fail, or be adjourned to the next sittings.
11In his affidavit, Mr Ryan deposes that from the time the briefs were delivered until the trial, there were regular phone calls and emails passing to and from counsel in relation to this and other matters in the list concerning the preparation and presentation of the applications.
12Further, given the distance between Melbourne and Mildura, and the nature of the circuit, a prudent plaintiff’s solicitor would retain counsel of his choice in such a manner to ensure there was no risk of a conflict between counsel’s commitments in Melbourne and the circuit. This of itself requires careful planning and a commitment from counsel to be available for the circuit.
13Both counsel in their submissions referred to Donovan v Miller.[1] Reference in that case was made to a decision of the Chief Judge of the County Court in Hancock v Tynan,[2] in which the learned Chief Judge refused to allow brief to counsel to appear when that brief was delivered some two weeks prior to the date of trial. He found the delivery of the brief to be premature and disallowed counsel’s fee. However, as the Full Court noted, that case was “uncomplicated and unexceptional” and could not be said to lay down any rule nor prescription for the timing of the delivery of briefs to counsel. As the Court stated, each case must be determined upon the particular circumstances prevailing.
[1] [1987] VR 221, a decision of the Full Court of the Supreme Court of 1986
[2] CCV, Unreported, 8 June 1984
14The Court determined that the appropriate test to be applied as:
“Would a reasonable and prudent, but not over-cautious, solicitor in all the circumstances consider that the time for doing the work has arrived?”
15In other words, to apply the particular circumstances of this case, would a reasonable and prudent solicitor, in the position of Mr Ryan, on 11 March 2008, believe it appropriate and reasonable to deliver briefs to senior and junior counsel?
16On behalf of the defendant, Ms Wolski submits that order 63A.29 applies. That rule states:
“63A.29
On a taxation on a party and party basis all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed shall be allowed.”
17She emphasises the words “necessary or proper”. Further, in relation to solicitor and client costs, order 63A.30 provides:
“63A.30
On a taxation on a solicitor and client basis all costs reasonably incurred and of reasonable amount shall be allowed.”
18I am of the view, however, that neither of these Rules particularly bear upon the argument. What is necessary and proper for the attainment of justice is what a reasonable solicitor would do in the circumstances.
19Further, Ms Wolski submits that in the circumstances of this case, it was not appropriate for the plaintiff’s solicitor to brief counsel on 11 March 2008, some two-and-a-half months prior to the commencement of the circuit. She submits that advice was provided to Mr Ryan’s assistant on 12 March 2008, that instructions had been received to grant a serious injury certificate. However, according to the affidavit of Ms Meyer, the communication on that day was, rather, to advise that the plaintiff should not attend the medical appointments arranged, and, according to Ms Meyer’s note, there is no reference to the grant of a certificate. Regardless of whether there was any mention, however, by 11 March 2008, the briefs had been delivered to senior and junior counsel.
20Ms Wolski further makes reference to the fee being charged by counsel as a “cancellation fee”. It is clear such a fee is not recoverable, even on a solicitor and own client basis. However, it is clear that the fee sought by senior and junior counsel is not a cancellation fee. The fee being sought is a fee upon brief. The dispute is as to whether it was reasonable for the plaintiff’s solicitor to brief senior and junior counsel at the time he did.
21Even notwithstanding that senior and junior counsel were briefed a considerable period prior to the commencement of the circuit, given the particular circumstances which existed and are referred to above, I am of the view that a reasonable and prudent, but not over-cautious, solicitor in the shoes of Mr Ryan would have done exactly as he did. As stated, it is important for the retention of experienced counsel well prior to the circuit commencing, particularly in a town as far away as Mildura. It is important not only to ensure that the application is properly presented, but there is certainty as to the retention of those counsel. Further, given the volume of the materials provided, and the number of applications involved in the circuit, prudence would dictate the retention of counsel at an early time. I am of the view that briefing counsel as at 11 March 2008 for the circuit commencing from the beginning of June 2008 was reasonable and prudent in the circumstances.
22I ruled in a number of matters in the course of the circuit as to the quantum of counsels’ fees. I am satisfied that it is appropriate that the fee for senior counsel be fixed and certified in the sum of $5,500. I accept the submissions of Mr Casey in this and other matters of the involvement of Mr Anderson, the nature and extent of his preparation of this proceeding and am aware from my own experience of the work to be undertaken by junior counsel in the course of a circuit such as this. In these circumstances, I allow one-half of senior counsel’s fee to junior counsel. I will make orders as attached.
Order
(1)Defendant pay the plaintiff’s costs of the application including reserve costs on Scale D.
Certify:
(a)for two counsel for the plaintiff;
(b)brief fee for senior counsel in the sum of $5,500;
(c)brief fee for junior counsel in the sum of $2,750.
(2)The proceeding be otherwise dismissed.
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