Rawlings and Stewart v Matheson and VWA

[2010] VCC 1204

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No.

DEBORAH ANN RAWLINGS (on behalf of	Plaintiffs
herself) and as litigation guardian for TORI STEWART
v
GARY MATHESON & VICTORIAN	Defendants
WORKCOVER AUTHORITY

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2010
DATE OF RULING:	10 September 2010
CASE MAY BE CITED AS:	Rawlings & Stewart v Matheson & VWA
MEDIUM NEUTRAL CITATION:	[2010] VCC 1204
REASONS FOR RULING

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Catchwords: Accident Compensation Act 1985 – claim by partner and child of deceased worker – costs – counsel’s fees – Order 63A of County Court Civil Procedure Rules – above scale amounts.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Waugh	Harris Lieberman
For the Defendants	Mr M Wheelahan SC with	Wisewould Mahony
Mr A Middleton
HIS HONOUR:

Ruling as to costs
General background and the areas of dispute

1          This costs dispute arises from a claim by the partner and child of a deceased worker. The claim had a complex factual and legal basis. It was settled at court on the day on which it was listed for hearing. It was settled in the sum of $200,000 in a situation where the maximum obtainable by the plaintiffs would be between $500,000 and $600,000. Given that an infant was involved, approval of this compromise was sought, such application being made, very sensibly, in the absence of those representing the defendants. Having heard a detailed account of the factual and legal issues involved, I approved the compromise.

2          Ancillary orders were also requested. The defendants largely consented to these. However, there is a dispute concerning the quantum of counsel’s fees as shall be discussed.

3          Mr M Waugh of counsel appeared on behalf of the plaintiffs. Mr M Wheelahan SC with Mr A Middleton of counsel appeared on behalf of the defendants, whose interests overlap entirely. Oral submissions were made by counsel.

4          No dispute exists but that the defendants will pay the plaintiffs’ costs on County Court Scale D including reserved costs, or that the usual order as to court books should be made. Mr Waugh sought certification for his fee on brief in the sum of $3,900. This figure was disputed, with Mr Wheelahan suggesting that an appropriate party and party brief fee was $3,000. Mr Waugh sought certification for 6.5 hours of special conferences. There was no dispute concerning this. However, there was a contest concerning the amount to be paid per hour, Mr Waugh seeking $390 being 10 per cent of his proposed fee on brief. Mr Wheelahan submitted that the appropriate rate per hour for the conferences would depend upon the fee on brief which I fixed, and I took this to mean that it was the submission of the defendants that the figure should be $300 per hour. Mr Waugh provided an advice to Law Aid. He suggested that his fee in relation to this should be $3,900, being the equivalent of a brief fee, as the advice in question required a lot of research, ran to some 50 pages in length, and took a number of days to complete. There was no dispute but that such an advice was required. Mr Wheelahan submitted that it ought to be the subject of taxation in the absence of agreement. He made a similar submission in relation to an Amended Statement of Claim drawn by Mr Waugh and for which the proposed fee was $660. Again, there was no dispute but that such an Amended Statement of Claim was required.

Ruling
(i) Counsel’s fee on brief
5	In my opinion this was a particularly complex case, both factually and legally. Without going into the details of the unfortunate death of the deceased, suffice to say that the case required evidence from engineering experts, expert medical evidence supplementing the engineering evidence and lay evidence.
6	Legally, the matter was complicated indeed. As Mr Waugh stated, and there was no dispute, preparing both the advice and the case required the researching of something like 100 years of law. This involved cases related to the course of employment, the so called “camp” cases and “on call” cases relating to when the course of employment starts and ceases, the law as to when private activities take a worker outside the scope of employment, and skylarking cases. In summary, it was a case of a complexity not frequently encountered in compensation law.
7	I note that the defendants not only opted to brief a very experienced and competent junior counsel in Mr Middleton, but also retained Mr Wheelahan SC to lead him. I can fully understand why this was so. I might say that, bearing in mind the principles set out in Oldaker v Currington [1987] VR 712, I would have had no hesitation in certifying for two counsel on behalf of the plaintiffs had that been necessary. However, the solicitors for the plaintiffs opted to retain Mr Waugh, a particularly competent counsel very experienced in compensation law and of some 28 years’ calling – in short, a “senior junior” ideally suited for a case such as this which required considerable attention to detail, a lot of research and skilful advocacy in a comparatively discrete area of the law.
8	Mr Wheelahan had no difficulty with me certifying Mr Waugh’s brief fee at a figure above scale. The defendants accepted that the case was one which warranted the briefing of experienced counsel. It was submitted that the fee for experienced counsel should be the same in all cases for which counsel of that experience is briefed regardless of the difficulty of the case. There may be some force in that argument, but that does not answer the question as to the amount at which I should fix counsel’s fee. Mr Waugh advised that his brief fee was regularly being certified in the sum of $3,900, a proposition that was not challenged. I certainly accept that. It accords with my experience in relation to counsel of similar standing, and may even err slightly on the side of modesty. It may be that counsel’s fee should not rise and fall according to the difficulty of the case, but it is the difficulty and complexity of the case which lead a prudent solicitor to engage particular counsel. It is not a question of whether counsel’s fees fluctuate according to the degree of difficulty (other than, in some circumstances, a consideration of the time consumed) but rather what should the fee be for the individual barrister who, because of his or her expertise and competence, is retained.
9	In my view $3,900 represents a reasonable and appropriate fee on brief for Mr Waugh. He has handled a case which well and truly “carried silk”, which is some indication of his standing. His suggested fee seems to me to be reasonable and appropriate. Exercising my discretion pursuant to Order 63A of the County Court Rules, I fix his fee on brief at $3,900.
(ii) Conference fees
10	As stated, there was no dispute concerning the necessity for 6.5 hours of special conferences. Given the nature of this case, that those hours of conferring were required is not surprising. Having fixed Mr Waugh’s fee on brief at $3,900, I fix the hourly rate for the special conferences at 10 per cent of that figure, namely $390.
(iii) The advice to Law Aid
11	There was no challenge to the proposition that this advice was necessary. There was also no challenge to the fact that it took Mr Waugh several days and a lot of research to complete the advice, or that the finished product ran to some 50 pages. In the circumstances, I am not minded to refer the matter to the Costs Court in default of agreement. I am of the view that it is more appropriate, and indeed cost effective, if I fix the fee in relation to this individual item. The equivalent of a daily brief fee seems to me to be reasonable, and, again, the figure requested strikes me as, if anything, modest. I fix Mr Waugh’s fee in relation to the Law Aid advice at $3,900.
(iv) The fee on drawing the Amended Statement of Claim
12	Again there is no dispute but that this was necessary. I accept that the original Statement of Claim required considerable revision. I also accept that the provision of the Amended Statement of Claim led to a greater definition and narrowing of the issues. Again, I am not of the view that the fee should be taxed in default of agreement, but am of the opinion that I should fix it. The requested figure of $660 seems to me to be highly reasonable and is the figure which I select.
13	I should add that, in accordance with Order 63A.05 and/or .07, I am specifically ordering that each of the sums referred to above not be taxed. Certain aspects of these costs orders were by consent, and I have specifically fixed the remainder rather than refer them for taxation.
14	The principal orders in this case have not yet been finalised in that some further mathematics as to the division of the agreed sum is to be completed and a trustee appointed in relation to the infant. Perhaps the parties could provide completed orders, including costs orders, after the finalisation of all aspects of the case.
15	I reserve liberty to apply.

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