Price v Minesco Pty Ltd

[2021] VCC 1703

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

WORKCOVER LIST

Case No. CI-20-03320

KATHRYN PRICE	Plaintiff
v
MINESCO PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2021
DATE OF JUDGMENT:	4 November 2021
CASE MAY BE CITED AS:	Price v Minesco Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VCC 1703

REASONS FOR JUDGMENT
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Catchwords:  Workplace Injury Rehabilitation and Compensation Act 2013 – exacerbation of asthma – agreement in relation to principal issue – costs dispute – issues of appropriate scale; whether case required two counsel; whether there should be certification of fees and, if so, quantum of same.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Over with Mr L Perilli	Maurice Blackburn Lawyers
For the Defendant	Mr A Middleton	Lander & Rogers

HIS HONOUR:

1.General background

1This matter has ultimately come before me by way of a dispute which relates to costs only. Its background lies in the provisions of Part 5 of the Workplace Injury Rehabilitation and Compensation Act 2013, (hereinafter referred to as “the Act”). The claim relates to the exacerbation of asthma. The parties resolved the substantial issue in the proceeding, but a limited dispute in relation to legal costs remained. I would refer to Transcript (hereinafter referred to as “T”) 1. As I understand it, this matter was fixed for hearing as a contested matter and was in the Hearing List on 19 July last. The matter resolved. The defendant accepted liability for the plaintiff’s impairment benefit claim under the Act for exacerbation of asthma only. A notice rejecting the plaintiff’s claim for weekly payments and for medical and like expenses was maintained. There was an agreement that the defendant pay the plaintiff’s costs on the appropriate Magistrates’ Court scale to be assessed in default of agreement. It is against this background that this costs dispute has arisen.

2Mr P Over of counsel with Mr L Perilli of counsel appeared on behalf of the plaintiff.  Mr A Middleton of counsel appeared on behalf of the defendant.  Helpful and detailed submissions were made on behalf of each party.

3The issues in dispute are threefold.  Firstly, there is the question of the appropriate Magistrates’ Court scale.  Secondly, there is the issue of whether this case warranted the briefing of two counsel.  Thirdly, there is the issue of whether there should be certification of counsels’ fees and, if so, the quantum of same.

4I shall now turn to a summary of those submissions. 

2.The submissions on behalf of the plaintiff

5The submissions of Mr Over and Mr Perilli on behalf of the plaintiff could be summarised as follows. 

6In relation to the issue of the appropriate scale, liability has been accepted for the payment of an impairment benefit.  That has not yet been calculated, but there has been an impairment assessment performed by Dr Jonathon Burdon in his report of 15 July 2020.  The assessment has been done in accordance with the Asthma Guidelines.  The impairment as assessed by Dr Burdon is one of 30 per cent, which, in monetary terms, is $87,440.  That is above the cut-off point of $70,000, being the lower range on Scale G.  Accordingly, Scale G is the appropriate scale and costs should be assessed on that basis. 

7In relation to the second issue, the submission on behalf of the plaintiff is that the case is one which warranted the retention of two counsel.  The case was complex, it being alleged that the injury was an exacerbation of asthma from exposure to mould in the workplace.  Had the matter proceeded, the plaintiff would have called five medical witnesses.  Apart from Dr Burdon, the plaintiff would also have called her treating thoracic physician, Dr Stephen Vincent; Associate Professor Jeremy Goldin, respiratory and sleep physician; Dr Ryan Hoy, who is also a respiratory and sleep physician; and Dr Hung Phan, general practitioner.  An expert from an entity called Mould Lab, who had analysed samples collected from the plaintiff’s place of employment, would also have given evidence.  The defendant had obtained opinions from three experts, who presumably would have been called to give evidence.  Dr Malcolm Brown, occupational physician, had provided two reports.  Professor Michael Pain is a respiratory physician and had provided his opinion to the defendant.  There was also an expert who had provided evidence in relation to the analysis of mould levels at the place of employment.

8In this regard, it is to be noted that the case was not one of a frank injury.  There was a causation issue concerning the development of the disease.  Complexities arise in disease cases.  This was a case that warranted the retention of two counsel. 

9Thirdly, the plaintiff is seeking certification for two counsel for one day, with one hour of special conferencing.  Leading counsel’s fee should be fixed at $4,400 a day, along with $440 in respect of the hour of special conferencing.  The fees of Mr Perilli should be fixed at 50 per cent of those figures.  The fees being sought in respect of leading counsel are greater than the amounts set out in Scale G of the Magistrates’ Court Scale of Costs.  This Court has a discretion in that regard.  Reference is made to the decision of Ellery v Banks Pty Ltd [2017] VCC 2392.

10It is also submitted that this Court should decide the issues, rather than this being done by the Costs Court.  This Court is aware of the distinction between disease cases and frank injury cases and the complexities involved.  It has experience in terms of the experts involved and the type of opinions that might be advanced and, in particular, experience with witnesses such as the respiratory physicians.  It is in a strong position to assess the costs issues, particularly having consideration to the distinction between disease cases and frank injury cases.

3.The submission on behalf of the defendant

11The submissions of Mr Middleton on behalf of the defendant could be summarised as follows.

12In relation to the Scale of Costs, matters of this nature, including disease cases, are dealt with in the Magistrates’ Court on a regular basis, where claims for weekly payments and medical and like expenses are not successful, but the impairment benefit part of the claim, seeking a declaration of liability, remains alive.  The usual practice is that costs are awarded on Scale D, or, in a few instances, Scale E.  In many of the cases there is uncertainty regarding the amount of the impairment benefits claim.  If there is such uncertainty, the matter is usually referred to the Costs Court.  This matter should be so referred, as there will be more certainty in relation to the potential amount of the impairment benefits claim at a later date.

13In answer to a question of mine, Mr Middleton said that the only assessment of the present level of respiratory impairment was that of Dr Burdon and was 30 per cent.  That was on the basis of the plaintiff being asymptomatic and requiring no asthma treatment prior to her employment with the defendant.  However, the clinical notes, which had been provided to Dr Burdon, indicate that the plaintiff had been treated since childhood for asthma.  She had been on Ventolin and, occasionally, on other treatments prior to her employment with the defendant.  Further, the assessment of Dr Burdon did not take into account the pre‑existing condition of sinusitis and problems involving it.  Now that Professor Pain has referred to aggravation and exacerbation, assessments will be made for the purposes of the impairment benefits claim.  In similar circumstances in the past, the matter has been referred to the Costs Court, which is likely to have more information available at that time.

14The issue of two counsel should also be referred to the Costs Court.  It is an exacerbation case.  Further, the plaintiff continued working for the defendant until taking up a new job and then moving permanently to Queensland.  Her medical treatment has remained basically the same, in that a Ventolin spray was used by her before her employment with the defendant and continued to be so used.  There was also the occasional use of steroids, both before and after the employment.  There was nothing in this case that makes it special or different from most disease cases that are heard by the Magistrates’ Court.  It is perfectly suited for determination by the Costs Court.

4.Further submissions

15Mr Over answered some questions which I raised with him.  I would refer to T7.  I expressed my preliminary view that I believed that I was in a reasonably sound position to assess whether the case warranted two counsel and as to the quantum of counsels’ fees.  However, in relation to the appropriate Scale, and given the possibility of further impairment assessments to come, I would be assisted by anything additional which those on behalf of the plaintiff wished to advance.

16Mr Over stated that he could not argue with the proposition that there might be further impairment assessments conducted.  It is agreed that the only impairment assessment at the moment is that of 30 per cent according to the Asthma Guidelines, this being the assessment of Dr Burdon.  A decision based on that report would exceed the range for Scale G.  The plaintiff was simply not in a position to make any submission in relation to that.

17I then raised the question of whether or not it might be premature for me to fix the Scale on the basis of one impairment assessment, when there were probably more to come.  Mr Over said that he could not take the matter any further – see T8. 

18Mr Middleton then raised the issue of whether, with additional assessments to come, the matter might be sent to the Medical Panel for assessment.  Accordingly, it was unclear as to what the future held in relation to the impairments benefit claim.  Mr Over’s response was that, as with any litigant in the court, there was always going to be a degree of uncertainty concerning legal costs.  There is a time and a need for some clarity, so that solicitors know what resources are appropriate.  If it is said that all this is going to be determined at a later stage on the basis of assessments that are not before the Court, that judgment cannot be made.  Practitioners need to have some direction concerning what the Scale might be and what are the resources that could be put into a case.

19He further submitted that there was nothing to stop the defendant from obtaining an impairment assessment, but it had elected not to do so.  The assessment of Dr Burdon has been available for well over a year and the defendant has not produced any evidence in respect of its position.  Decisions have to be taken on the basis of the assessment of the appropriate scale on the material that is available. 

20Mr Middleton then emphasised again that Dr Burdon had reported on the basis that there had been no asthma treatment prior to the employment with the defendant, when the notes and histories given to other doctors clearly made that incorrect.  That appears to have been the basis of his failure to apportion.

5.Ruling

21I turn now to my ruling in relation to these three issues.  On two of them I find in favour of the plaintiff.  On the third, I find in favour of the defendant. 

22Firstly, I shall deal with the issue of whether I should deal with the question of whether this is a case that warranted the retention of one or two counsel or whether such question should be determined by the Costs Court.  It is to be remembered that this case was in the Hearing List and has remained there.  Apart from the costs issue, it has resolved as a matter in the Hearing List.  I am of the opinion that I am in a position to determine whether this is a case that warranted the retention of two counsel by the plaintiff.  I see no reason why it should not be determined forthwith.

23In my opinion, it is a case that warranted the retention of two counsel and a prudent solicitor would have briefed accordingly.  Firstly, this is a disease case as opposed to one of frank injury.  That in itself has the potential to lead to complexities.  Secondly, in addition to evidence from the plaintiff and her treating general practitioner, expert evidence would have been called from a total of seven witnesses.  Thirdly, in its Defence the defendant was denying that the plaintiff’s employment with it was a significant contributing factor to the alleged injury sustained; that the plaintiff was incapacitated within the meaning of the Act; and that the incapacity resulted from or was materially contributed to by the injury. 

24While some issues may now have been resolved, the potential existed for an almost completely contested action.  Further, the plaintiff is a 57 year old woman who, as I understand it, was employed in what could be described as a clerical capacity as an administration officer.  The allegations of production or aggravation of asthma essentially resulting from exposure to mould seems to me to lift the case out of the type of setting more frequently encountered in industrial disease cases.  When all of these matters are considered, it seems to me that the plaintiff’s solicitors were fully entitled to retain two counsel and could not be criticised for so doing. 

25The second matter in which I find in favour of the plaintiff relates to the quantum of counsels’ fees.  I am of the view that a discretion exists to fix such fees over and above Scale.  I would refer to my earlier decision in Ellery v Banks Pty Ltd [2017] VCC 2392. The views expressed therein remain my opinion. In relation to Mr Over, who is leading counsel, a fee of $4,400 on brief for a barrister of his experience and competence seems to me to be reasonable. Fifty per cent of that for Mr Perilli also seems to me to be reasonable. The conference fees, namely $440 and $220 respectively, are also appropriate. Accordingly, I fix counsels’ fees in those amounts.

26The third issue which I am asked to determine is as to the appropriate Magistrates’ Court Scale of Costs.  Counsel for the plaintiff have urged me to fix that Scale as being Scale G.  Mr Middleton, on behalf of the defendant, has argued that this figure is based upon the only percentage assessment of impairment which has been received to date.  That assessment is from Dr Burdon.  If accepted, the result would be a figure which would warrant costs on Scale G.  However, as argued by Mr Middleton, the assessment made by Dr Burdon would appear to be based upon an understanding or assumption that the plaintiff had not suffered from asthma prior to the employment and upon the alleged exposure to mould in the course of that employment.  Other histories would point to previous problems with asthma.  This could well affect the estimate of permanent impairment attributable to employment with the defendant.  Mr Middleton also argued that, at this point in time, there has only been one impairment assessment obtained, that being the assessment of Dr Burdon.  A further impairment assessment or assessments may well be obtained and such could well be based upon a more complete history.  Essentially, counsel for the plaintiff argued that the defendant has had the opportunity to obtain impairment assessments and has not done so. 

27I agree that the defendant cannot expect matters to go on indefinitely without the obtaining of an impairment report, assuming that it does make a decision so to do.  I am not prepared to make a ruling as to the appropriate Scale at the moment.  Nor am I prepared to refer the matter to the Costs Court.  That may or may not be the ultimate outcome.  In other words, I accept the submissions of Mr Middleton in general terms as to the fixing of a Scale in the present circumstances.  For the moment, I reserve my decision as to whether this issue should be determined by me or by the Costs Court.  Of course, that means I also reserve any decision as to the appropriate Scale, but in any event that will be subject to my deciding that I would fix the Scale, as opposed to referring the matter to the Costs Court.

28In summary, I am of the view that this was an appropriate case for the retention of two counsel on behalf of the plaintiff.  Mr Over’s fee should be fixed in the sum of $4,400 on brief, with a conference fee of $440.  Mr Perilli’s fee is fixed at 50 per cent thereof.  I reserve my decision in relation to whether I shall determine the question of the appropriate Magistrates’ Court Scale of Costs, what such Scale should be and whether it is a matter which I shall determine or whether it should be referred to the Costs Court.

29Apart from the costs issue, the consent orders outlined by the parties shall be made.  I reserve liberty to apply.