Scanlon v Transport Accident Commission (Ruling)
[2021] VCC 1791
•16 November 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-21-00562
| TERENCE SCANLON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | JUDICIAL REGISTRAR J B GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 October 2021 | |
DATE OF COSTS APPLICATION: | 14 October 2021 | |
DATE OF RULING: | 16 November 2021 | |
CASE MAY BE CITED AS: | Scanlon v Transport Accident Commission (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1791 | |
RULING
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Subject:COSTS
Catchwords: Application by plaintiff seeking certification of counsels’ fees
Legislation Cited: Transport Accident Act 1986; Civil Procedure Act 2010; Transport Accident Act Common Law Protocols 2016; WorkCover (Litigated Claims) Legal Costs Order 2016
Cases Cited:Donovan v Miller [1987] VR 221
Ruling: Plaintiff’s application for certification of counsels’ fees refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Anderson | Slater and Gordon Ltd |
| For the Defendant | Mr S Pinkstone | Lander & Rogers |
HIS HONOUR:
1This is an application by the plaintiff seeking certification of counsels’ fees for a serious injury application which was listed on 6 October 2021.
2The plaintiff seeks certification at $6,000 for Senior Counsel and $3,000 for Junior Counsel.
3I was informed that Mr Tim Tobin SC was briefed as Senior Counsel and Mr Bruce Anderson as Junior Counsel on 9 April 2021 for the hearing on 6 October 2021.
4I made timetabling Orders on 1 April 2021, listing the matter for hearing. Counsel was therefore briefed within eight days of those Orders.
5The proceedings resolved at an originating motion conference (“settlement conference”) held between the plaintiff and the defendant on 14 September 2021 which was twenty-two days prior to the hearing. The settlement conference was held in accordance with the Transport Accident Common Law Protocols 2016 (“TAC Protocols”).
6The defendant opposes certification, but agrees that if I certify, the amount for certification should be $6,000 for Senior Counsel and $3,000 for Junior Counsel.
7Written submissions were provided by the parties.
8The plaintiff is aged seventy-eight years and sought serious injury under paragraph (a) for pain and suffering only. The matter resolved at the settlement conference with a grant of serious injury and for common law damages.
9On 5 October 2021, the defendant solicitors wrote to the Court advising that the proceeding had resolved and asked for the hearing on 6 October 2021 to be vacated with no appearance required. Minutes of Proposed Consent Orders were submitted seeking for the hearing to be vacated and the matter listed for a directions hearing on 14 October 2021 with costs reserved.
10Issues raised by this application include the operation of the TAC Protocols, the Civil Procedure Act 2010 (“CPA”) and alternative dispute processes, the practice of briefing counsel and when should a party be liable for counsel fees.
11I am refusing the plaintiff’s application for certification; however, the issue of any other order for costs was unclear, as the parties requested costs of the serious injury application to be reserved in the proposed consent order submitted. If there are further orders required, then I will allow the parties fourteen days to submit proposed consent orders.
Parties’ submissions
The Plaintiff’s submissions
12The plaintiff’s submission is that twenty-two days was sufficiently close to the hearing date for certification and the actions of the plaintiff solicitors in no way contributed to the late timing of the resolution.
13A chronology was provided to support the argument that the actions of the defendant were responsible for resolution within twenty-eight days of the trial date. Central to this argument is that a yardstick of twenty-eight days out from trial should apply and be a determining factor for certification. Reference was made to the WorkSafe practice under the WorkCover (Litigated Claims) Legal Costs Order 2016 (the “LCO”) of allowing counsel fees for matters settled within twenty-eight days of the trial date.
14The delays, according to the plaintiff, were caused by the late arrangement of a medico-legal examination and the failure to respond to the plaintiff solicitors’ request for a prehearing conference date for late August 2021.
15It was submitted that the plaintiff’s claim had medical complexity as it involved a plaintiff who had a pre-existing spinal fusion with a resulting footdrop and was receiving ongoing medication for pain relief. The plaintiff had a pre-existing total left hip replacement and revisionary hip surgery.
The Defendant’s submissions
16It was submitted that in any matter, the question of costs is at the discretion of the Court and the Court should be guided by what is fair, reasonable and proportionate in the circumstances of each case. The defendant says the real question in contention is when, in the circumstances of any given case, is a reasonable time for the payment of counsels’ fees when a matter settled prior to a trial date? The defendant submits that in the absence of any agreement, that question should be determined by the Costs Court.
17The defendant noted:
(a) The plaintiff was aged seventy-eight years and the application was for pain and suffering only. The matter involved no complex matters of causation or disentanglement and was described as a relatively simple “range” case;
(b) The settlement conference was held in accordance with the Court’s directions pursuant to s48(1) of the CPA set out in the County Court Practice Note PNCLD 3-2020;
(c) Certification would disincentivise early settlement and undermine the directive of the Court and should not be linked to, nor intrude upon, the settlement conference per se;
(d) The TAC Protocols and Supplementary Protocols covers counsels’ appearance at the settlement conference. The fees payable to counsel include preparation in respect to the conference and provide for an uplift when common law damages are also settled;
(e) The defendant disputed the notion of any wasted work done in preparation of the serious injury application, as the most up-to-date application sworn by the plaintiff had been dated 4 May 2021;
(f) Certification for Junior Counsel’s fee was discussed at the conference and no issue was raised about Senior Counsel’s fee;
(g) The TAC Guidelines are silent on the issue of hearing fees where a matter settles at a conference. Further, there was no directive, guideline or guiding authority of payment on counsels’ fee where a matter resolved at a prehearing conference;
(h) The reference to the twenty-eight day practice under the WorkCover scheme has no application to matters under s93 of the Transport Accident Act;
(i) The defendant disputes that the defendant solicitor’s actions delayed the matter proceeding to a conference. At the time of arranging the conference, both parties were aware that an independent medical examination had been arranged and that subpoenaed documentation from the plaintiff’s treating clinicians had not been inspected. Further, two lay affidavits were served by the plaintiff on or about 18 August 2021. The defendant submitted that both parties acted promptly and reasonably in agreeing to the conference on 14 September 2021, which was twenty-three days prior to trial.
TAC Protocols
18I requested from the practitioners a copy of the applicable TAC Protocols and any further or Supplementary Protocols.
19I received a copy of the original Protocols dated 1 July 2016 and the Supplementary Protocols dated 1 January 2020.
20In the introduction of the Protocols, at 1.4 it states that they had been agreed between the TAC, the Law Institute of Victoria and Australian Lawyers Alliance, who agree that they and their membership will comply with them. Further, that they promote their use as the preferred method of delivering common law damages and entitlement to claimants.
21At paragraph 1.5 it states that, in recognition of the CPA, the TAC, the claimant and the claimant lawyers will:
“… endeavour to facilitate resolution of a serious injury application and/or common law claim by utilising the alternative dispute resolution processes in these protocols before resorting to contested legal proceedings in the Courts.”
22One of the objectives of the Protocols was to ensure that by using them, it would result in decreased court proceedings.
23At paragraphs 11.6 to 11.8 inclusive, the Protocols referred to the serious injury conference, which should occur within sixty days of either party requesting it. The purpose is to attempt to resolve the serious injury question and the parties are to enter into bona fide discussions of all relevant issues. A claimant must be present at the conference and may be represented by counsel.
24Paragraph 21 of the Protocols is headed “LEGAL COSTS AND DISBURSEMENTS”. Paragraph 21.1 states:
“In recognition of the value added by a claimant’s lawyer during the serious injury and common law processes the TAC will pay to a claimant’s lawyer legal costs and disbursements upon settlement of the common law claim according to these protocols.”
25Paragraph 21.2 states:
“Legal costs and disbursements not specifically regulated in this Chapter are to be determined by reference to the appropriate Court scale.”
26There is a discussion regarding an uplift fee, and paragraph 21.15 states:
“The TAC will also pay Counsel’s fees associated with the conference at $3,300 unless otherwise agreed between the parties prior to the conference.”
27Paragraph 21.22 states:
“Where a claimant’s lawyer intends to use Senior Counsel for a serious injury conference or a common law conference, the claimant’s lawyer must seek prior approval from the TAC.”
28Paragraph 21.28 is headed “DISPUTE REGARDING LEGAL COSTS AND DISBURSEMENTS”, and states:
“Where agreement cannot be reached on legal costs or pre-issue disbursements pursuant to these protocols, the dispute will be referred by the parties to the CEO of the Law Institute of Victoria for resolution by the CEO or their delegate.”
29I am unable to reconcile how paragraph 21.28 accords with the defendant’s submission that where an agreement cannot be reached it should be referred to the Costs Court.
30The Supplementary Protocols state they are intended to be read in conjunction with the Common Law Protocols and not replace them. These include a section in relation to legal costs and disbursements, but that does not assist this issue of certification.
WorkCover scheme
31The LCO prescribes and regulates the professional costs and disbursements that may be paid by the Victorian WorkCover Authority or self-insurer to a legal practitioner acting on behalf of a worker in a serious injury application. It is divided into two parts, with Part A regulating professional costs of solicitors and Part B dealing with disbursements. At paragraph 5, Part B, it states that in addition to the sums payable under Part A, the worker or worker’s legal practitioner shall be entitled to be paid as a disbursement in –
“… the cost of counsel’s fees (including brief fee) incurred not more than 28 days prior to day 1 of the hearing. The counsel fees payable will be calculated in accordance with the Scale of Costs or any other sum which is agreed or ordered by the Court.”
32The purpose of the LCO is to encourage early resolution of applications for serious injury and to ensure legal costs and disbursements are reasonable to promote the financial viability of the WorkCover scheme.
33When referring to this Costs Order it is important to remember that scheme does not have an alternate dispute resolution process similar to the TAC Protocols.
Briefing counsel
34The procedure to brief counsel is well established and not in issue; rather it is the timing of briefing and the entitlement to a brief fee.
35A distinction is required to be made in the practice of briefing between the retaining of counsel to appear and the physical delivery of a brief. I was informed counsel were briefed; that is, retained by the plaintiff solicitor on 9 April 2021 for the hearing on 6 October 2021. I am not informed if a brief was delivered or what work was done by counsel after being briefed other than that I was told Junior Counsel appeared at the settlement conference.
36Often disputes arise on whether a matter is appropriate for Senior or Junior Counsel and the amount for certification. When certifying, a court will consider several factors including the complexity of the issues between the parties but always each case must be determined by its unique circumstances.
37In a serious injury matter, it is often noted that the plaintiff only has one go at the application and the consequences for an unsuccessful application are therefore fatal to a plaintiff.
38A prudent plaintiff solicitor must ensure their client is represented by the most appropriate counsel for the complexity of the case. Retaining counsel early may assist in having counsel available to appear at the trial date but does not guarantee this nor does it mean counsel has had a brief delivered.
39In the decision of Donovan v Miller,[1] the Full Court noted that each case must be determined upon the particular circumstances prevailing, and determined that the appropriate test to be applied was: “Would a reasonable and prudent, but not over-cautious solicitor, in all the circumstances consider that the time for doing the work has arrived?”[2]
[1][1987] VR 221
[2]Ibid at 224
Civil Procedure Act 2010
40Section 1(a) of the CPA states that one of the main purposes of the Act is –
“to reform and modernise the laws, practice, procedure and processes relating to civil proceedings in the Supreme Court, the County Court and the Magistrates' Court and provide for uniformity.”
41At paragraph 7, the overarching purpose of the CPA is stated to be –
“to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.”
42Section 8 is headed “Court to give effect to overarching purpose” and ss(1) says a court must seek to give effect to the overarching purpose in the exercise and interpretation of any of its powers.
43Section 9 sets out the Court’s powers to further the overarching purpose, which include:
“(g)dealing with a civil proceeding in a manner proportionate to—
(i) the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.”
44The overarching obligations include:
· Section 20, the “Overarching obligation to cooperate in the conduct of civil proceeding”
· Section 22, the “Overarching obligation to use reasonable endeavours to resolve dispute”; and
· Section 24, the “Overarching obligation to ensure costs are reasonable and proportionate”.
45Part 4.2 of the CPA is headed “Case Management”. Section 47 is headed “Judicial powers of case management – overarching purpose and active case management”. This section states that without limiting any other powers of a court, for the purposes of ensuring that a civil procedure is managed and conducted in accordance with the overarching purpose, a court may give any direction or make any orders appropriate to further that purpose. Importantly, it includes that, for a direction given or an order made, it may include:
“(d) encouraging the parties—
(i)to co-operate with each other in the conduct of the civil proceedings;
(ii) to settle the whole or part of the civil proceedings;
(iii)to use appropriate dispute resolution.”
Reasons
46The CPA extends to the Court considerable powers regarding case management and imposes obligations on the Court to ensure that the overarching purpose of the Act is complied with.
47Central to that purpose is the efficient and cost-effective way to resolve civil disputes. Section 47 gives a power to a court when considering case management to encourage the parties to use appropriate dispute resolution.
48For all matters that proceed in the General List of the Common Law Division, the Court orders that the matter be mediated before trial. The Court makes it clear by the structure of the timetabling orders, that all interlocutory steps should be completed prior to mediation to ensure that mediation is effective.
49Equally so, the Court has made it clear that it supports the TAC Protocols. At Part 7 of the Serious Injury Applications Practice Note, PNCLD 3-2020, reference is made to the Protocols. At paragraph 8.3, it states:
“Unless otherwise ordered by the Judge in charge of the Common Law Division or a Judicial Registrar of the Common Law Division, pursuant to s48(2)(c) of the CPA, the Court hereby directs all parties to serious injury applications under the TAA to undertake the pre-hearing alternative dispute processes under the TAC protocols and the Guidelines.”
50The fact that the Guidelines were introduced in co-operation between the TAC, plaintiff lawyers and the Law Institute, emphasises the importance of the Protocols for the management of TAC serious injury matters. They are aimed not only to decrease court proceedings but to facilitate resolution of serious injury applications. They are clearly sensible, practical and effective.
51Here, the parties attended a settlement conference and resolved the matter, which was entirely consistent with the purpose of the Protocols. It also demonstrated that the parties genuinely engaged in the spirit and intention of the Protocols.
52I am not satisfied on the material before me that there was an unnecessary delay in the holding of the settlement conference brought about by the conduct of the defendant. Nor am I satisfied that the holding of the conference twenty-two days out from the trial date was, in the circumstances of this case, unreasonable.
53I note that Junior Counsel briefed for trial was briefed to attend the settlement conference. Senior Counsel was not briefed and there is nothing before me indicating that a request was made by the plaintiff solicitor to the TAC to seek approval for Senior Counsel to be briefed and attend at the conference.
54One of the submissions for certification by the plaintiff was the medical complexity of the case. The question could be asked, that if the complexity was such that Senior Counsel was required for trial, why was Senior Counsel not required for the settlement conference? However, I do not accept the issue of complexity as the determining factor for certification for this matter.
55I am further not persuaded that a yardstick of twenty-eight days should apply, especially by reference to WorkSafe practices. The WorkSafe system does not have a protocol procedure such as the TAC, so the Court cannot require an attendance at a compulsory alternative dispute resolution conference before the trial date. That is an important distinction. In the absence of a court-approved alternative dispute resolution process, supported on the principles that the parties genuinely attend to try and resolve the matter, the need for some reference as to when counsels’ fee may be liable to be paid, is understandable.
56Reference to counsel not obtaining an alternative brief on the day is also not a deciding factor when the matter resolved twenty-two days out from trial. Many factors may be responsible for counsel not having an alternative brief including the number of matters listed on the trial day.
57While I understand that it is the practice of solicitors to attempt to retain counsel early, and I do not in any way criticise that practice, that cannot be a determining factor for an entitlement to certification against a party ordered to pay costs. The reason why is that if the matter does not resolve, alternative counsel could be briefed if initial counsel became unavailable.
58This was a matter which resolved twenty-two days out from trial. It involved a seventy-eight-year-old plaintiff who had a claim for pain and suffering only. It appears to have been successfully negotiated by Junior Counsel at the settlement conference without the assistance of Senior Counsel. Junior Counsel should, according to my understanding, have received a fee for the attendance at the settlement conference. To impose upon the defendant the requirement to pay for Senior and Junior Counsel for a trial that was not going to proceed twenty-two days later, is not consistent with the concept of alternative dispute resolution endorsed by the Court in its Practice Note and the intentions of the Court to comply with the CPA in case management matters.
59However, I also emphasise that the issue of certification will, and must remain ultimately a matter for the Court if no agreement can be reached between the parties. The Court will then consider all factors including the complexity of the matters in dispute.
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