Santos v Ss Formwork Pty Ltd (Ruling as to Costs)
[2019] VCC 2271
•30 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-02667
| EDUARDO JOHN SANTOS | Plaintiff |
| v | |
| SS FORMWORK PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2019 | |
DATE OF RULING: | 30 May 2019 | |
CASE MAY BE CITED AS: | Santos v SS Formwork Pty Ltd (Ruling as to Costs) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2271 | |
RULING AS TO COSTS
---
Subject:COSTS
Catchwords: Determination of counsel’s fees incurred in the course of a referral to a Medical Panel in a serious injury case
Legislation Cited: WorkCover (Litigated Claims) Legal Costs Order 2016; Accident Compensation Act 1985, s245(1); Workplace Injury Rehabilitation and Compensation Act 2013, s274
Cases Cited:United Doormakers (Vic) Pty Ltd v Amendola [2012] VSCA 331;
Ruling: See paragraphs 27 and 28 of this Ruling.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allan | Drakulic Lawyers |
| For the Defendant | Mr D Churilov | Russell Kennedy |
HIS HONOUR:
1In this proceeding, I referred medical questions to the Medical Panel on the application of the defendant on 22 November 2018. Subsequently, the Medical Panel provided its Certificate of Opinion in which it answered the questions the Court had referred in a way which led to the defendant granting to the plaintiff a certificate consenting to the bringing of a proceeding for the recovery of damages for both pain and suffering and pecuniary loss damages.
2The parties are in agreement that the defendant is to pay the plaintiff’s costs pursuant to the WorkCover (Litigated Claims) Legal Costs Order 2016 (“the Costs Order”), such costs to include any reserved costs generally and any reserved costs occasioned by reason of the Medical Panel referral, agreeing also that such reserved costs are to be determined by the Costs Court in default of agreement.
3The dispute raised for my determination today is the question of counsel’s fees pertaining to the referral process.
4The defendant submitted, by reference to the Costs Order, that the Court had no jurisdiction to certify for the appearance of, or to fix fees for, appearances by counsel in the referral process because, under Part B of the Costs Order as it appears on page 1473 of the relevant Government Gazette, the only disbursements to which the worker’s legal practitioner was entitled were counsel’s fees incurred not more than 28 days prior to Day One of the hearing. It was not in dispute that the fees for which certification was sought today did not fall within paragraph 5 of Part B of the Costs Order.
5In the end, the argument really turned on whether counsel’s fees could be recovered under Part A of the Costs Order under the heading “Interlocutory Proceedings”, which also appears on page 1473 of the Government Gazette.
6It provides that:
“… where the Court orders the defendant to pay the plaintiff’s costs of any interlocutory proceeding, a fee of $452 is payable for professional costs for any contested objections hearing … ."
I take this to be a reference to the objections hearings we often see concerning subpoenaed documents:
“… or $735 for any other interlocutory application made to a judge or other judicial official, plus any sum for counsel fees calculated in accordance with the Scale of Costs, plus any disbursements as described under Part B.”
7As to this, Mr Churilov of counsel appearing for the defendant, submitted that the defendant’s application to refer medical questions to a Medical Panel under the Act was not an interlocutory proceeding of the sort to which that part of the Costs Order pertains, and submitted that the fact that the application was made under the specific provision of the Act (s274) supported this contention, as did the fact that it was not an application “on summons”.
8The submission that such applications for referral are not interlocutory in nature was not supported by reference to the statute, to the Rules of the Court, or to authority. Properly, he did inform me that his Honour Judge Carmody of this Court, in an unreported and oral ruling,[1] had at an earlier time rejected a similar submission.
[1]Traumanis v State of Victoria (Ruling) (unreported, VCC, 26 May 2017, Judge Carmody)
9I should say that, as to whether the application is on summons or not, in my view, as the Judge in charge of the WorkCover List, to which nearly all applications to refer medical questions in serious injury cases are referred, there has never been a requirement that applications for medical panel referrals be commenced by summons. This is so in the interests of expediency and reduction of costs, and over the last couple of years, during which referrals to a medical panel in serious injury applications have become more common, the way in which such matters have been dealt with in this List shows that a less formal approach is both more efficient and cost effective for the parties, and time cost effective for the Court.
10In reply to the submission on the question of interlocutory proceedings, Mr Allan, who appeared for the plaintiff, pointed out that, in United Doormakers (Vic) Pty Ltd v Amendola,[2] the Court of Appeal was clearly in no doubt that an application under s45(1) of the Accident Compensation Act 1985, the precursor provision of s274 of the Workplace Injury Rehabilitation and Compensation Act 2013, was interlocutory in nature, and so the appeal, that is, to that Court, could only brought by leave.
[2][2012] VSCA 331
11Mr Allan submitted that the application to refer questions was clearly interlocutory. In this regard, recourse to the notes that are attached to Order 46 in Butterworths “Williams, Civil Procedure Victoria”, supports that submission.
12In my view, an application to refer medical questions to a medical panel is clearly interlocutory in nature. It does not finally decide any of the issues to be determined by the Court in a serious injury application. It simply decides whether, and in what form, medical questions may be referred to a medical panel. In my view, it clearly falls within the matters referred to under the heading, “Interlocutory Proceedings” in the Costs Order.
13Now, although that ruling is sufficient to decide the question, I should make the observation, which I made during the course of counsels’ submissions, that if the correct position were to be that counsel’s fees incurred in the course of the interlocutory process of referring medical questions to a medical panel could not be recovered under the Costs Order, then the workers, the plaintiffs, would be at a significant disadvantage, as in this List it is routinely the case that the WorkCover Authority engages experienced and competent counsel to present the arguments, settle the questions and prepare the accompanying documents.
14Further, the Court is greatly assisted when both parties to an argument about the form, content or availability of a medical panel referral are represented by competent and experienced counsel in this slightly obscure area of legal practice. So far, in the last few years in this List, they usually have been. This is a practice that saves the Court a great deal of time. It often averts the need to list the question of referral as a half-day cause to resolve the issue, and it results in the referral of medical questions that comply with the statute, and that relate to the actual issues that might fall for determination in the serious injury proceeding.
15In my view, it would be quite contrary to the objects of the Civil Procedure Act to place any financial barrier in the way of workers being able to be equally represented in such applications.
16The next matter for determination, is the question of whether the fees sought by counsel, itemised as Part 2 of the Minutes of Proposed Orders that were handed up, are reasonable, or whether the question of the amounts to be fixed for counsel’s attendances, and work upon the Medical Panel referral process, should be referred to the Costs Court.
17As to this, the procedural history can be shortly stated. The matter was listed for a directions hearing on 25 October 2018, after the defendant had served notice of its intention to refer medical questions to a Medical Panel in accordance with the Practice Note, and leading up to that date had served a number of sets of proposed questions.
18At the contested directions hearing on 25 October 2018, after submissions and discussions between counsel and the bench, the questions were revamped, and in the end a further set of questions[3] was provided on 26 October 2018 when the matter was listed the next day for mention.
[3] By then, that was about the fourth set of questions
19The matter was then listed for mention some weeks later, as it was hoped that by then it would be ready to be referred to the Medical Panel. As it happened, documents relevant to the referral were served by the defendant only the night before, and so on that day, in order that the plaintiff have time to consider them, the matter was adjourned for another week.
20On 22 November 2018, the folder of documents, the revised questions, the submissions of the parties, the statements of facts which were agreed and not agreed, and the like, were handed up and I made the Orders that referred the medical questions to the Medical Panel.
21Mr Allan of counsel for the plaintiff submitted that those fees were in accordance with fees I had certified in earlier matters in which the jurisdictional argument had not been raised, and by reference to the circumstances in which the mentions and referral took place, submitted that they were reasonable, explaining that the fee of $660 that had been sought for each of the three mentions reflected an hourly rate of $330, and so two hours for each mention, and that the preparation of submissions to the Medical Panel represented six hours of work at $330, and that the fee of $1,375 for the initial contested directions hearing on 25 October 2018 was reasonable, having regard to the scope of the argument and the importance to the plaintiff of the question of the referral and the form of the questions if it were to be referred.
22Now, it is often the case in this Court, after the plaintiff has been successful in a serious injury application after the hearing of the originating motion, that the Court is asked to determine the amount of counsels’ fees. In those circumstances, the parties are often asked whether, as some years ago was the more common practice, either side wished to have that question referred to the Costs Court.
23For some years now the response has almost always been that, as the only question of costs to be determined by the Costs Court would be the amount of counsels’ fees, both parties ask the Court to decide that question, not only because the Court has been made familiar with all aspects of the case, but also because a referral to the Costs Court on the sole question of counsels’ fees involves considerable delay, it requires both sides to engage costs consultants, and then after some delay, to appear at a hearing before the Costs Court, and that, in substance, they join in the submission that “the game is not worth the candle”. It seems to me that such considerations apply equally here.
24As to the amount of the fees, I was informed that the County Court Scale has no scale of counsels’ fees, and that counsels’ fees for work performed by counsel in this Court are fixed by our Rules at 80 per cent of those applicable in the Supreme Court. Counsel for the plaintiff informed me that the fees sought were calculated by reference to like items appearing in the Supreme Court Scale of counsels’ fees.
25I have looked at the Supreme Court Scale, Item 19, which prescribes maximum hourly rates for work not otherwise specified, and 80 per cent of the maximum hourly rate for junior counsel is, on this year’s Scale, $467 per hour, and so the $330 an hour sought in this case represents about 70 per cent of that figure.
26Now, having regard to all the matters raised in the course of submissions today, I do propose to certify for the attendance of counsel and to fix counsel’s fees as follows:
27For appearing on 25 October 2018, $1,375. For appearing on the next three mentions, that is, 26 October, 15 November and 22 November 2018, $500.[4] For appearing today, involving as it did novel and potentially substantial argument, I fix counsel’s fee at $750. And for the preparation of submissions and documents for referral to the Medical Panel I certify counsel’s fees at $1,980, representing six hours at $330.
[4]I should mention that for more routine appearances, such as the commonly occurring simple adjournments by consent (because the parties are not ready to have the referral made), a smaller fee might well be appropriate
Orders
28The Court orders that:
(1) The defendant is to pay the plaintiff’s costs pursuant to the WorkCover (Litigated Claims) Legal Costs Order 2016, such costs to include any reserved costs generally and any reserved costs occasioned by reason of the Medical Panel referral, to be determined by the Costs Court in default of agreement.
(2) Plaintiff’s counsel’s fees be certified and fixed as follows:
(a)$1,375 for the contested directions hearing on 25 October 2018;
(b)$500 for the mention on 26 October 2018;
(c)$500 for the mention on 15 November 2018;
(d)$500 for the mention on 22 November 2018;
(e)$750 for the mention on 30 May 2019; and
(f)$1,980 for preparing all necessary documents for the Medical Panel referral, representing 6 hours at $330.
(3) The proceeding be otherwise dismissed.
- - -
0