Parker v Northern Health (Ruling as to costs)
[2024] VCC 340
•26 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-22-02591
| VICKI PARKER | Plaintiff |
| v | |
| NORTHERN HEALTH | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 March 2024 | |
DATE OF RULING: | 26 March 2024 | |
CASE MAY BE CITED AS: | Parker v Northern Health (Ruling as to costs) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 340 | |
RULING
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Subject:COSTS – ACCIDENT COMPENSATION
Catchwords: Jury trial – costs of trial adjournment – whether defendant was deficient in discovery obligations – whether plaintiff acted unreasonably in not identifying deficiencies in discovery earlier – costs allowance for preparation and special conferences
Legislation Cited: Workers Injury Rehabilitation and Compensation Act 2013, s343
Cases Cited:N/A
Ruling: Costs thrown away by reason of the adjournment. Certification for plaintiff for two and a half days preparation and four hours special conference.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M Pilipasidis SC with M Belmar | Ryan Carlisle Thomas Lawyers |
| For the Defendant | I McDonald KC with D Churilov | Hall & Wilcox |
HER HONOUR:
1On 14 March 2024, the jury returned a verdict in Ms Parker’s favour, following a 12-day trial.
2After discussions, the parties reached agreement in relation to the appropriate amount to enter for judgment in her favour, taking into account the jury finding of contributory negligence, Fox v Wood damages, reductions pursuant to s343 of the Workers Injury Rehabilitation Compensation Act 2013 and interest. The daily and hourly rates for senior and junior counsel were also agreed.
3Two issues remain in dispute:
(a) Who should bear the costs of the adjournment of the trial in November 2024;
(b) What allowance the Court should make for preparation and special conferences.
November adjournment
4The matter was listed for trial by judge and jury on 13 November 2023. On that day the parties were informed that a jury panel was not available until 2.15pm. The parties informed the Court that there were a number of matters they needed to discuss, including from the plaintiff’s perspective, an issue in relation to discovery.
5After lunch the plaintiff informed the court that some discoverable documents sought had been provided that morning, in particular two documents, version 7 and 8, of the defendant’s policy in relation to bariatric patients.
6The policy documents previously discovered included versions 6 and 9. Between version 6 and 9 there had been a change in the definition of bariatric patient, from someone over 110kg to someone over 120kg.
7The plaintiff said the additional documents exposed the existence, or potential existence, of other relevant documents, but also meant that the way the plaintiff put her case, and the way she opened to the jury, might need to be amended.
8Previously the plaintiff had no difficulty identifying that the two patients she was looking after, Patient A and Patient B, fell under the definition of bariatric. However, depending on the date that the definition changed, that case might not be quite so straightforward. Issues such as body shape, girth and whether a patient was suitable for standard equipment might become more relevant factors in the plaintiff’s case.
9The trial was adjourned to 14 November 2023 to give the parties an opportunity to see what developed after provision and review of additional documents.
10On 14 November 2023, the plaintiff made application to adjourn the trial on the basis that there was further material that had not been discovered that was highly relevant to the matter. The plaintiff submitted that over the course of the proceeding the plaintiff had identified many documents which had not been discovered, and that a proper examination by the defendant at the time of discovery would have identified much of the further relevant material that clearly existed at the time and ought to have been discovered.
11Part of the issue from the plaintiff’s perspective was that documents had been provided electronically which contained hyperlinks to other documents. The plaintiff’s lawyers had not been able to access the hyperlinked documents. Some of those hyperlinked documents attached to other documents appeared to be highly relevant to the issues in dispute. These included manual handling policies and framework documents, and a definition of hazardous manual handling.
12The defendant resisted any further discovery and opposed the application for adjournment. The defendant submitted it had made comprehensive discovery of all relevant documents. The defendant sought an opportunity to put on reply affidavit material, particularly in circumstances where it felt that allegations had been made about the manner and adequacy of its efforts in relation to discovery, which it felt caused the potential for reputational damage if left uncorrected on the Court record.
13On 15 November 2023, I made orders that the defendant was to discover various classes of documents and granted the plaintiff’s application to adjourn the trial, reserving the costs of that application.
Plaintiff’s submissions
14The plaintiff submits she ought to get her costs of the application and the 13, 14 and 15 November because:
(a) Shortly prior to 13 November 2023, it became apparent that, despite numerous attempts to obtain further documents, the discovery of the defendant was incomplete;
(b) On 13 November 2023, the plaintiff was provided with versions 7 and 8 of the bariatric care policies which required examination and assessment and exposed the gap in discovery more generally;
(c) It was not until 14 November 2023 that the plaintiff became aware, through hyperlinks to documents previously provided, of the existence of other relevant documents;
(d) The plaintiff was not in a position to commence the trial given the late emergence of these documents because of the potential that they would be critical documents, require expert opinion and impact how the plaintiff put her case;
(e) The application to adjourn and for further discovery could have been dealt with in its entirety on 14 November 2023, and it was at the defendant’s request that the parties returned on 15 November 2023;
(f) The fact that the documents ultimately discovered did not necessarily form part of the plaintiff’s case is irrelevant to the question of whether her conduct in seeking the adjournment and obtaining orders for further discovery was appropriate and reasonable.
Defendant’s submissions
15The defendant says there was no need for further discovery or to adjourn the November trial and it ought to get its costs thrown away.
16In particular the defendant says that it had made adequate discovery and that the further discovery produced pursuant to my orders was not tendered, nor provided to the expert, Mr Hennessy, for his opinion.
17One document from the further discovery was sent to Ms O’Shea, an additional expert retained by the plaintiff after the adjournment of the trial, but those parts of Ms O’Shea’s report that referred to that document were ruled inadmissible.
18The defendant submits that, as none of the further discovered documents played a role in the way the plaintiff presented her case to the jury, the adjournment was not necessary and the interests of justice require that it get its costs thrown away.
Findings on adjournment
19As has been acknowledged by both parties, discovery is an ongoing and continuing obligation on parties to litigation.
20Despite best efforts, it is often the case that documents turn up late in the piece, or that one party identifies that something is or might be missing, only close to or even during a trial.
21This is never ideal. The question then becomes what do the interests of justice require?
22A party seeking an adjournment on the basis that documents may or do exist that may be important to the case, cannot know at the time of making the application whether those documents will turn out to be relevant. Upon inspection they may be critical, or they may be insignificant.
23The question is not whether the documents discovered ultimately turned out to be useful, though it would be unlikely that a party could contend that an adjournment was unwarranted where the documents were important.
24The question is whether, in the particular circumstances of the case there was a reasonable basis for believing that the documents could be useful, sufficient to justify an adjournment.
25I was satisfied that there was such a reasonable basis and accordingly ordered the adjournment. Having satisfied myself of that, the question of costs was reserved because it was not clear to me at that time where the “fault” if there was one, lay.
26Had the defendant, as submitted by the plaintiff, been deleterious in making discovery? Or had the plaintiff, as submitted by the defendant, failed to identify earlier documents it sought which could have been provided earlier and avoided the need for the adjournment?
27I do not consider that the defendant was deleterious in making discovery, indeed I am satisfied that it made good faith efforts to produce documents it identified as relevant.
28However I also consider that the plaintiff was justified in seeking the further material, particularly in light of the policy change that came into effect just prior to the period in which the plaintiff was injured.
29As it turned out, there was ultimately no dispute between the parties that both Patient A and Patient B were bariatric patients. However given that Patient B’s weight was 118kg, it was possible that the definition of bariatric patient and what protocols for handling a bariatric patient applied at the relevant time would be significant issues in dispute.
30It was conceivable that, as the policy appears to have changed shortly before the plaintiff’s injury, the defendant would argue that the bariatric handling procedures did not apply to Patient B and this could have impacted on the way the plaintiff presented her case.
31This, in turn, might have enlivened an issue in relation to whether the change had been communicated to the plaintiff, how and when that had occurred.
32It may be that the plaintiff could have identified earlier that she did not have version 7 and 8 of the policy, and could have identified other documents that she subsequently sought. The plaintiff might also have earlier identified that hyperlinks to documents were not working.
33However it could equally be said that the defendant could have discovered version 7 and 8 at the time they discovered version 6 and 9, rather than waiting for the plaintiff to identify the gap. Likely this omission was inadvertent, but it is difficult to criticise the plaintiff for not identifying the omission earlier when the defendant had, it seems, also not identified it.
34The plaintiff was successful in her claim and is entitled to her costs. Having examined the circumstances that resulted in the adjournment I am not persuaded that the plaintiff acted unreasonably in not earlier identifying the deficiencies in discovery, nor am I persuaded that the adjournment was unwarranted. Accordingly, I am satisfied that the plaintiff is entitled to her costs thrown away by reason of the adjournment.
What costs ought to be allowed for preparation and special conferences?
35The plaintiff seeks, in total, 3 days of preparation and 8 hours of special conferences for senior and junior counsel.
36The parties agreed on the following:
(a) the rate for senior counsel for the November hearing should be $7,700 a day, and $770 per hour;
(b) the rate for junior counsel for the November hearing should be $3,850 a day and $385 an hour;
(c) the rate for senior counsel for the jury trial should be $8,020 per day and $802 an hour;
(d) the rate for junior counsel for the jury trial should be $4,010 per day and $401 per hour.
37The plaintiff says this was an unusually complicated case, the brief was over 6,000 pages, both court books exceeded 500 pages and there were numerous witnesses.
38Prior to the November date, counsel conferred with the plaintiff and her partner for over 4 hours and did four days preparation.
39That work was not “thrown away” but inevitably further preparation was required leading up to the jury trial, and one day is a reasonable allowance for that. In addition, during the trial, counsel had to confer with numerous witnesses at lunchtime and after hours, such conferences not covered by the usual brief fee.
40The defendant says the preparation for the November trial was not “thrown away” and the plaintiff ought not get an additional days preparation for the jury trial. Further one day of preparation is standard and sufficient in this case.
41Conferences are governed by r63A.82 of the County Court Civil Procedure Rules 2018 which provides that the daily fee for the second or any subsequent day of hearing include the time spent by counsel in preparation and conferences on that day as well as the actual time spent by counsel in court on that day, except as otherwise determined by the court by reason of the special circumstances of the case.
42While I accept that this was a case where all issues were in dispute and there were many witnesses with whom to confer, I do not consider this was an unduly complicated case with an unusually high number of witnesses, that would justify any additional order for conferences that occurred during the trial.
43I am satisfied that special conferences with the plaintiff and her partner prior to trial of four hours is reasonable, across the two trials, divided up 2 hours before the November hearing and 2 hours prior to the jury trial. I consider that a day of preparation prior to the November hearing and a day of preparation prior to the jury trial is also reasonable.
44Therefore I will certify as follows:
(a) Senior counsel for 1 day of preparation at $7,700 and 1 day of preparation at $8,020; 2 hours of special conferences at $770 and 2 hours of special conference at $802;
(b) Junior counsel for 1 day of preparation at $3,850 and 1 day of preparation at $4,010; 2 hours of special conferences at $385 and 2 hours of special conferences at $401.
Costs of the costs hearing
45Finally the plaintiff says there has been a great deal of time taken to resolve the issues in dispute after the jury verdict, including the correct rate of interest, the correct component for Fox v Wood damages and the appropriate reductions.
46The parties were able to come to an agreement on many matters but still needed to attend court to argue about the November costs hearing.
47In the circumstances the plaintiff says she ought to get a further day for senior and junior counsel, certified at the agreed rates.
48The defendant submits that no more than half a day is appropriate, if the plaintiff is to be awarded any costs at all.
49I accept that a significant amount of work was done post-trial to reach agreement on a number of issues, and that the parties needed to attend for adjudication on the outstanding costs matters.
50As the plaintiff has been successful in getting costs of the November adjournment, which was the more substantial part of the remaining dispute, she is entitled to costs of this hearing, but I consider half a day for senior and junior counsel is sufficient.
51Accordingly, the plaintiff is entitled to a further half a day certified at $4,010 for senior counsel and $2,005 for junior counsel.
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