Pham v Aperio Group (Australia) Pty Ltd (Ruling)
[2013] VCC 687
•2 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-02855
| HANH HONG PHAM | Plaintiff |
| v | |
| APERIO GROUP (AUSTRALIA) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 April 2013 | |
DATE OF RULING: | 2 May 2013 | |
CASE MAY BE CITED AS: | Pham v Aperio Group (Australia) Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 687 | |
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; WorkCover (Litigated Claims) Legal Costs Order 2010
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 WR Middleton SC with Ms N Wolski | Slater & Gordon |
| For the Defendant | Ms H Donmez | Wisewould Mahony |
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 injuries suffered by him in the course of his employment with the defendant.
2 The matter commenced on 17 April 2013. The plaintiff gave oral evidence and was in the course of cross-examination at the close of proceedings on that date.
3 The following morning the parties informed me that the proceeding 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 and loss of earning capacity damages in respect of his injuries. Although it was not specifically stated, I infer from this 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 had suffered a serious injury in the course of his employment with the defendant, consenting to the bringing of proceedings to recover such damages.
4 I was informed by counsel for the parties that the resolution had occurred at approximately 6.00pm the previous evening.
5 Consequential costs orders were sought by the plaintiff, some of which were by consent and some of which were opposed.
6 The parties consented to orders that the defendant pay the plaintiff’s costs of the proceeding in accordance with the WorkCover (Litigated Claims) Legal Costs Order 2010 to be assessed by the Costs Court in default of agreement and further, that the proceeding be otherwise dismissed.
7 In addition, the plaintiff sought certification for two counsel: for Senior Counsel’s fee on brief fixed at $5,500 for each of two days; for two hours of special conferences at $550 per hour; and that Junior Counsel’s fee on brief and conference fees be one half of those of Senior Counsel. The defendant opposed the requested certifications.
8 The defendant submitted firstly, that all issues regarding such certifications should be referred to the Costs Cost and should not be determined by me. Secondly, the defendant submitted that, in the event that I found that these issues should be determined by me, that it was not a case in which there should be certification for two Counsel.
9 Counsel for the defendant did not dispute that the Court had a 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.
10 The matters to be determined are:
(a) Whether I should determine issues related to the certificates sought or refer them to the Costs Court?
(b) If I conclude that I should determine the certifications sought, whether this was a case appropriate to certify for two counsel and, if so, what fees should be allowed?
11 I am aware of decisions of Judges of this and the Supreme Court where varying approaches have been taken to the first of 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 of 19 March 2013.
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.
13 There is likely to be some delay in determining the issues if the matter was to be referred to the Costs Court. Although there was no evidence before me as to the length of such delay, it seems to me likely that it would be a delay of at least some months.
14 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.
15 I have had the opportunity of hearing 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.
16 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.
17 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.
18 Counsel for the defendant submitted that it was not a case which warranted certification for two counsel.
19 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
20 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
21 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
22 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.
23 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.
24 If a plaintiff fails in such an application, it is a fatal result. His or her common law rights are lost permanently.
25 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.
26 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.
27 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 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?
28 Senior Counsel for the plaintiff advised me that, some weeks prior to the hearing date, the defendant had served a notice requiring some thirteen medical practitioners whose reports had been exchanged by the plaintiff’s solicitors to be available for cross-examination at the hearing of this matter. Senior Counsel informed me that he anticipated that, come the hearing date, the defendant would probably not require that number to attend for cross-examination, although he would not know which were required until the morning of the hearing.
29 This was a claim based on both paragraphs (a) and (c) of the definition of “serious injury” in s134AB(37) of the Act. By reason of s134AB(38)(h), such a claim necessarily involves identification and presentation of evidence of which consequences of injury relate to physical loss or impairment of the relevant body function and which relate to the alleged mental or behavioural disorder. Such cases, in my opinion, involve considerable complexity.
30 Although it appears that the defendant conceded the plaintiff had suffered some injury in the course of his employment, the medical evidence was that he had suffered significant pre-existing degenerative changes in his lumbar spine that were not work related. The degree of aggravation brought about by the work injury was likely to be difficult issue.
31 The plaintiff’s credit was plainly in issue. In cross-examination (incomplete at the time of settlement) it was put to the plaintiff, in effect, that his resignation from employment with the defendant was the result of an unsuccessful application by him for a voluntary redundancy package that had been offered by the defendant to its employees. It had been put to the plaintiff that his application made no mention of any injury and the inference was that he had resigned not because of his injury but because he was upset at missing out on the package.
32 The plaintiff’s English language skills were poor and he required an interpreter. I consider it likely that communication between counsel and client would be more difficult in such circumstances when compared with a client with good English language skills.
33 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.
34 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.
35 I am conscious that for more than fifteen years, the Victorian WorkCover Authority (“the 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.
36 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.
37 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.
38 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.
39 I note that the Authority continues to brief both senior and junior counsel in virtually all serious injury applications heard on circuit in Victoria.
40 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.
41 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.
42 I am satisfied that this was a case involving some complexity. I consider 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.
43 Accordingly, I shall order that there be certification for two Counsel.
44 The quantum of Counsels’ fees on brief and fees for conferences, although not a matter of formal consent, were not the subject of submissions by counsel for the defendant. I am satisfied that the amounts claimed are reasonable and in line with those certified for by this Court for many years.
45 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 daily rates requested. 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.
46 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 or in consideration of scale 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].
47 Accordingly, I shall make the following orders:
(1)The defendant pay the plaintiff’s costs of the proceeding in accordance with the WorkCover (Litigated Claims) Legal Costs Order 2010 to be assessed by the Costs Court in default of agreement.
(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 attendance on the second day of the hearing fixed at $1,375;
(3)The proceeding be otherwise dismissed.
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