Munro v Peninsula Health (No 3)

[2023] VCC 1755

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-21-03895

SCOTT MUNRO

v

PENINSULA HEALTH

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JUDGE:	HIS HONOUR JUDGE CLARK
WHERE HELD:	Melbourne
DATE OF HEARING:	28, 29, 30, 31 August, 1 and 4 September 2023
DATE OF RULING:	6 October 2023
CASE MAY BE CITED AS:	Munro v Peninsula Health (No 3)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1755

RULING
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Subject:COSTS APPLICATION – COUNSEL CERTIFICATION

Catchwords:              Costs – application for indemnity costs – where defendant failed to disclose the existence of relevant documents – where defendant made late discovery – counsel certification – costs following the discharge of the jury

Legislation Cited:      Civil Procedure Act 2010; County Court Civil Procedure Rules 2018

Cases Cited:Munro v Peninsula Health (Ruling) [2023] VCC 1463; Munro v Peninsula Health (Ruling No 1) [2023] VCC 1573; Kenyon v Goulburn Valley Fresh Fruit Pty Ltd & Anor (Ruling as to Costs) [2023] VCC 434

Ruling:The defendant pay the plaintiff’s costs of 27 February 2023 and they bethrown away by reason of the adjournment on an indemnity basis.  Certification for counsels’ fees for the 27 February 2023 listing at: one day’s preparation of $8,800 for Senior Counsel and 50 per cent for Junior Counsel; four hours’ conferences at $880 for Senior Counsel and 50 per cent for Junior Counsel; on brief at $8,800 for Senior Counsel and 50 per cent for Junior Counsel. The plaintiff pay the defendant’s costs of 28 August 2023.  For the 29 August 2023 trial, certification of counsels’ fees for: one day’s preparation at $7,700 for Senior Counsel and 50 per cent for Junior Counsel; five days’ trial fee at $7,700 for Senior Counsel and 50 per cent for Junior Counsel.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram KC with Mr P Haddad	Redlich’s Work Injury Lawyers
For the Defendant	Mr S Smith KC with Ms C Willshire	Wisewould Mahony

HIS HONOUR:

Introduction

1This matter has been listed for hearing on three separate occasions:

(a)   on 27 February 2023 before his Honour Judge Purcell;

(b)   on 19 July 2023 before his Honour Judge Pillay;

(c)   on 28 August 2023 before myself.

2Mr Munro’s substantive claim ultimately resolved on Monday, 4 September 2023.  While the defendant, Peninsula Health, consented to an order that they pay Mr Munro’s costs to be taxed in default of agreement, there remained in dispute:

(a)   whether Mr Munro was entitled to indemnity costs for the 27 February 2023 listing;

(b)   certification of counsels’ fees for the 27 February 2023 listing;

(c)   whether I could and/or indeed should:

(i)certify counsels’ fees for the 24 August 2023 listing;

(ii)remit the matter back to Judge Pillay for further consideration and orders;

(d)   the Costs Order (if any) applicable to 28 August 2023 listing when I discharged the jury;

(e)   certification for counsels’ fees for the trial, which ultimately commenced before a fresh jury on 29 August 2023 and resolved on 4 September 2023.

Background

3It is necessary to revisit the history of this matter prior to its resolution on 4 September 2023.  This will provide context.

4Mr Munro was employed by Peninsula Health as a patient service assistant (“PSA”).  He commenced work with Peninsula Health on 28 February 2011.

5On 3 September 2016, in the course of his employment, Mr Munro injured his neck.  In particular, he prolapsed the C6-7 disc.  Mr Munro said this occurred as a result of manoeuvring two heavy bariatric patients (“the incident”).

6Mr Munro issued a writ on 10 September 2021 seeking damages resulting from the incident.

7Peninsula Health, in their defence of 14 October 2021, said:

(a)   they denied both common law liability and breach of statutory duty;

(b)   they did not admit the injuries alleged by Mr Munro;

(c)   Mr Munro had been contributorily negligent.

8The proceeding was listed for the first time before Judge Purcell on 27 February 2023.  On that day, his Honour vacated the trial date and adjourned the matter to 19 July 2023.  His Honour reserved the question of costs.

9The matter was next listed before Judge Pillay on 19 July 2023.  The matter proceeded to hearing on 19, 20, 21 and 24 July 2023.  Ultimately, his Honour vacated the trial.  His Honour:

(i)    relisted the matter for 28 August 2023;

(ii)   determined that the issue of who bears the costs of the adjournment of the trial was to be the subject of further submissions and ruling.

10Having received written submissions, on 24 August 2023, Judge Pillay delivered his ruling in respect to the costs flowing from the adjournment.  His Honour awarded Mr Munro costs for a total of four days on an indemnity basis.  No specific orders or certification were made in respect to counsels’ fees.

11Between 24 July 2023 and 22 August 2023, Peninsula Health made Further and Better Discovery.  There was no dispute that this further discovery totalled some 16,000 documents.

12The matter was subject to a mediation on 24 August 2023.  The matter remained unresolved.

13I had been allocated the 28 August 2023 trial prior to the mediation.  Given the history of this matter, I listed the matter for a directions hearing on 25 August 2023.  I did so to deal with any preliminary matters and with the hope that the matter would be able to proceed on 28 August 2023 without delay.

14On 25 August 2023, Peninsula Health sought leave to amend their defence.  I granted leave.  In the Amended Defence, Peninsula Health:

(a)   admitted negligence;

(b)   admitted breach of statutory duty;

(c)   admitted injury and, in particular, that Mr Munro had suffered a C6-7 disc prolapse by reason of the incident;

(d)   withdrew the allegation of contributory negligence against Mr Munro.

15On the morning of 28 August 2023, a jury was empanelled.  Mr Ingram commenced his opening on behalf of Mr Munro.  Just prior to lunch, Peninsula Health applied to have the jury discharged.  I ordered that the jury be discharged.  I refer to Ruling (No 1) which sets out the basis for that order.

16On Tuesday, 29 August 2023, a fresh jury was empanelled.  The matter proceeded.  The matter ultimately resolved on Monday, 4 September 2023.

17In the course of submissions in respect to the outstanding costs issues, Mr Munro said that Peninsula Health, as at the resolution of the matter, still had not served a further affidavit of documents for the further discovery which had been received on 17 and 22 August 2023.  No issue was taken to this submission by Peninsula Health.

Certification of counsels’ fees

18While no specific point was taken by Peninsula Health, for the sake of completeness, I accept that it is open to, and appropriate, for this court, in appropriate circumstances, to certify counsels’ fees.[1]

[1]I refer to my analysis on this issue between paragraphs [17]-[27]; Kenyon v Goulburn Valley Fresh Fruit Pty Ltd & Anor [2023] VCC 434

19I will deal separately with each of the issues identified in paragraph 2 of this ruling.

Reserved costs of 27 February 2023

20On 27 February 2023, the trial before Judge Purcell did not proceed because:

(a)   Peninsula Health’s discovery was incomplete;

(b)   that created issues involving the provision of further expert reports.

21Mr Ingram said that Mr Munro should be awarded indemnity costs for the work associated with that listing.  He said the costs associated with this listing were completely wasted.

22I have the benefit of the Ruling of Judge Pillay of 24 August 2023.[2]  In particular, his Honour’s analysis in respect to the entitlement to indemnity costs set out in paragraphs 3 to 9 of that ruling.  With respect, I accept his Honour’s analysis of the principles and I will not repeat such analysis in this ruling.

[2]Munro v Peninsula Health (Ruling) [2023] VCC 1463

23Turning now to the state of Peninsula Health’s discovery.  I note:

(a)   That there was further discovery provided by Peninsula Health prior to the 27 February 2023 listing.  I have no better details save to note this was said to be a basis for the adjournment of the trial at that time.

(b)   That at the time the matter came before Judge Pillay on 19 July 2023, despite the effluxion of nearly five months, Peninsula Health had still not made full and complete discovery.

(c)   Peninsula Health filed and served a third further affidavit of documents which was sworn 10 August 2023.

(d)   That, as late as 22 August 2023, further discovery was still being provided by Peninsula Health.

(e)   Peninsula Health conceded that there were some 16,000 pages of further discovery provided between the date of when Judge Pillay adjourned the hearing on 24 July 2023 and the matter coming back before the Court on 28 August 2023.

(f)    As at 4 September 2023, Peninsula Health had not filed and served a further affidavit of documents incorporating the documents served on 17 and 22 August 2023.

24I accept that Peninsula Health breached:

(a) its obligations pursuant to s26 of the Civil Procedure Act 2010;

(b)   Regulation 29.01.01 of the County Court Civil Procedure Rules 2018.

25Like Judge Pillay, I accept that special circumstances do exist which warrant an award of indemnity costs.

26Further, I accept as events have unfolded, and in particular the breach by Peninsula Health of its discovery obligations, the listing of the matter on 27 February 2023 was a futile exercise.

27I will order that Mr Munro’s costs of 27 February 2023 be thrown away by reason of the adjournment on that date and be paid by Peninsula Health on an indemnity basis.

Certification of counsels’ fees for the 27 February 2023 listing

28Turning now to counsels’ fees for the 27 February 2023 listing.

29In the course of submissions, Mr Ingram provided his back sheet setting out the fees written by him, including the fees associated with the 27 February 2023 listing.  In respect to that listing, I am not prepared to certify for the totality of the fees sought.  I will certify counsels’ fees for this listing as follows:

(a)   one day’s preparation at $8,800 for Senior Counsel and 50 per cent for Junior Counsel;

(b)   four hours’ conferences at $880 for Senior Counsel and 50 per cent for Junior Counsel;

(c)   for the 27 February 2023 hearing date, a brief fee of $8,800 for Senior Counsel and 50 per cent for Junior Counsel.

Counsels’ fees for the 19 July 2023 listing

30Mr Ingram said that it was open for me to revisit the costs awarded by his Honour Judge Pillay in his ruling of 24 August 2023.

31Mr Smith said that his Honour Judge Pillay had ruled and that was the end of the matter.

32I accept that the matter of Mr Munro’s costs have been finalised. In accordance with Order 64 of the Supreme Court (General Civil Procedure) Rules 2015, Mr Munro had twenty-eight days to appeal that ruling.

33While his Honour did not specifically deal with the certification of Mr Munro’s counsel’s fees, I am not prepared to look behind his Honour’s ruling.  It will be a matter for Mr Munro to either:

(a)   pursue this matter before the Costs Court; or

(b)   seek leave from his Honour Judge Pillay to have the matter relisted and ventilated before him.

34I am not prepared to make any orders in respect to the 19 July 2023 listing.

The costs associated with the 28 August 2023 listing

35On 28 August 2023, Mr Ingram commenced the opening on behalf of Mr Munro.  By reason of matters opened by him, I discharged the jury.  The circumstances of the discharge of that jury have been subject to my ruling (No 1).  I do not propose to repeat my reasons in this ruling.  Put simply, I accepted:

(a)   Mr Ingram, in his opening, overstepped what was appropriate to be opened to the jury;

(b)   it was not a matter which a direction could remedy.

36In the circumstances, Peninsula Health said that Mr Munro should pay the costs of 28 August 2023.  I agree.

37As to the terms of the consequential orders, Mr Smith said that Peninsula Health did not seek certification of its counsels’ fees.  Mr Smith said that Peninsula Health took the view that it was a matter to be determined by the Costs Court.

38In those circumstances, I shall make an order that Mr Munro pay Peninsula Health’s costs of 28 August 2023.

Certification of counsels’ fees for the trial which commenced 29 August 2023

39Mr Ingram said that a fee of $7,700 on brief for Senior Counsel and 50 per cent for Junior Counsel was the appropriate rate.  Peninsula Health did not take issue with this.  I accept this to be a reasonable fee given the nature and complexity of the matter.

40Mr Ingram said the fees, as recorded on his back sheet, represented the work which he had undertaken.  He said the Court should certify for:

(a)   on 23 August 2023, a review of discovery;

(b)   on 24 August 2023, mediation fees;

(c)   on 25 August 2023, a conference and preparation;

(d)   five days’ trial brief.

41In the course of submissions, Mr Ingram also made reference to work undertaken over the weekend between 25 August 2023 and 28 August 2023.

42Mr Smith said:

(a)   that what was sought on behalf of Mr Munro was excessive in all the circumstances;

(b)   that Mr Ingram had already had his preparation for trial certified for previous hearings and there ought not be a duplication;

(c)   it was not appropriate to certify for the mediation fee in the circumstances;

(d)   much of the work claimed formed part of the brief fee for hearing.

43When weighing the competing submissions, I take heed that:

(a)   there had been a provision of a very large volume of discovery by Peninsula Health prior to the 28 August 2023 listing;

(b)   the matter had previously been prepared for trial on two occasions by Mr Ingram;

(c)   there had been an admission of liability made at least by 25 August 2023, if not at the time of the mediation on 24 August 2023.

44Having considered the competing submissions, I will certify counsels fees’ for:

(a)   one day’s preparation (for clarity, this is inclusive of conferences, review of discovery and preparation) at $7,700 for Senior Counsel and 50 per cent for Junior Counsel;

(b)   five days’ trial brief fees at $7,700 for Senior Counsel and 50 per cent for Junior Counsel.

45In the circumstances, I am not prepared to certify counsels’ fees for the mediation.  That will remain a matter for the Costs Court.

Conclusion

46I will hear the parties as to the precise terms of the Orders to be made.  Alternatively, the parties can have consent orders forwarded to my chambers.

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