Reid v Amaca Pty Ltd and Anor [No 2]

[2020] VSC 314

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
DUSTS DISEASES LIST

S ECI  2019 01558

BRUCE REID	Plaintiff
v
AMACA PTY LTD (UNDER NSW ADMINISTERED WINDING UP) (ACN 000 035 512)	First Defendant
and
SELTSAM PTY LTD (ACN 000 003 734)	Second Defendant

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	1 June 2020
CASE MAY BE CITED AS:	Reid v Amaca Pty Ltd & Anor [No 2]
MEDIUM NEUTRAL CITATION:	[2020] VSC 314

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COSTS – Counsel’s fees – Certification – Amount of preparation for de bene esse – Amount of preparation for junior counsel.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance	N/A
For the First Defendant	Mr Matthew Hooper	Mills Oakley
For the Second Defendant	Ms Roisin Annesley QC with Ms Kim Bradey	Colin Biggers & Paisley

HER HONOUR:

1. I delivered my judgment in this proceeding on 19 May 2020. The only remaining issue is costs.  The parties filed written submissions.

1. The issues in dispute are the:

(a)   certification of senior counsel’s fees;

(b)  amount of preparation claimed for the de bene esse examination for senior counsel; and

(c)   claim for two days of trial preparation for trial for junior counsel. 

Otherwise, the defendants agree that interest is payable from 16 December 2019 at the applicable rate.  Interest on $280,000 at 10% per annum equates to $76.5229 per day.  Interest until 1 June 2020 totals $12,932.32.[1] 

[1]The First Defendant and Second Defendant both provided written submissions as to costs, with different total amounts payable for interest. The First Defendant calculated the interest to 29 May 2020 as totalling $12,702.81. The Second Defendant calculated the interest to 26 May 2020 as totalling $12, 473.30. The amount allowed for interest is based on calculating interest up to the day of this judgment hand-down (1 June 2020) using the Debt Collection Interest Rate Calculator at

1. The first defendant seeks the brief fee of one day at $9000 for senior counsel to appear at the de bene esse examination on 29 November 2019. The second defendant submits that the Court should only allow half a day for the de bene esse examination and a reduction in rate to $8800 per day, therefore totalling $4400. 

1. I consider senior counsel fees ought to be certified in the sum of $8800 per day for trial and preparation, including the appearance at the de bene esse.  There was nothing out of the ordinary in this case.  It was a contribution claim between two asbestos manufacturers, familiar with the arguments before the Court.  The first defendant admitted that its product was present in the bathroom and that the plaintiff was exposed to it.  The factual issues that remained were whether the second defendant’s product was used in the construction of the property and if the plaintiff was exposed to it.  The second defendant had withdrawn its contribution proceeding before the commencement of the trial.  The number of witnesses required by the second defendant for cross-examination was limited and the hearing was completed in two days.  Detailed written submissions were filed.

1. Given the confined nature of the issues and limited facts in dispute in the case, I consider $8800 for senior counsel to be appropriate.  I note that there was no issue in relation to the amount claimed by junior counsel of $3960 per day. 

1. I will allow one day for senior counsel to appear at the de bene esse.  The de bene esse was not set down for only a half day and, as such, it is reasonable that senior counsel could not make themselves available for appearances or other work in the afternoon.

1. Finally, I will allow two days’ preparation for junior counsel.  I note that only one day preparation is claimed for the first defendant’s senior counsel.  It is reasonable and appropriate that junior counsel spend longer in the preparation phase of the trial, thereby reducing the time that needs to be spent by senior counsel.  I accept that given the amount of reading, including the de bene esse transcript, the reports, subpoenaed records, the drafting of a joint memorandum and general preparation for the trial, that junior counsel would have spent two days in preparation for trial. 

1. Accordingly, I will make the following orders:

1.        The second defendant is ordered to:

(a)       pay $292,932.32 including interest of $12,932.32 to the first defendant; and

(b)      contribute 70% to the whole of the plaintiff’s costs of the proceeding.

2.        The second defendant pay the first defendant’s costs of contribution of the contribution proceedings brought by each defendant.

3.        Certification for counsels’ fees as follows, with all other counsel fees to be assessed by the Costs Court:

(a)       senior counsel’s fee on brief for the de bene esse examination on 29 November 2019 at $8800;

(b)      senior counsel’s fee on brief for trial for one day of preparation and two days of hearing on 25 and 26 March 2020 at $8800 per day; and

(c)       junior counsel’s fee on brief for trial for two days of preparation and two days of hearing on 25 and 26 March 2020 at $3960 per day.