Shields v Department of Human Services and VWA
[2013] VCC 4
•24 January 2013
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-09-05464
| LINDA CAROL SHIELDS | Plaintiff |
| v | |
| DEPARTMENT OF HUMAN SERVICES & VICTORIAN WORKCOVER AUTHORITY | Defendants |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2012 | |
DATE OF RULING: | 24 January 2013 | |
CASE MAY BE CITED AS: | Shields v Department of Human Services & VWA | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 4 | |
REASONS FOR RULING AS TO COSTS
Catchwords: Accident Compensation Act 1985 – serious injury application – costs – application for leave in respect to both pain and suffering damages and pecuniary loss damages – reliance upon paragraphs (a) and (c) of the definition of serious injury – application settled – common law proceedings also settled – counsels’ fees – whether this Court or the Costs Court should determine issues relating to certification for two counsel and the quantum of the fees of senior counsel and junior counsel – existence of discretion – each case to be assessed on its merits – finding that, in this particular case, this Court should determine such matters – factors to be considered.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr C O’Sullivan | Maurice Blackburn |
| For the Defendants | Mr N Chamings | Thomsons Lawyers |
HIS HONOUR:
1 In this matter, which was a serious injury application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) and which was in the list of cases for hearing but which resolved, I am asked to rule upon a costs issue. In essence, it is whether I should certify for two counsel and fix the amounts of their fees (the position advanced on behalf of the plaintiff) or whether such matters should be determined by the Costs Court (the position advanced on behalf of the defendants).
2 Mr J Mighell SC with Mr C O’Sullivan of counsel appeared on behalf of the plaintiff. Mr N Chamings of counsel appeared on behalf of the defendants. In addition to oral submissions made on the day of hearing, counsel subsequently put before me very helpful written submissions with references to other decisions of this Court and, in the submissions on behalf of the plaintiff, to the decision of the Full Court of the Supreme Court of Victoria in Oldaker v Currington [1987] VR 712. In addition, there were annexed to the plaintiff’s written submissions some Rulings of the Costs Court.
The competing submissions
(i) The submissions on behalf of the plaintiff
3 The submissions of Mr Mighell and Mr O’Sullivan on behalf of the plaintiff could be summarised as follows.
4 The matter required two counsel. A reasonably prudent solicitor would have briefed two counsel to appear in the matter in accordance with the principles set out in Oldaker. There were various features of this application which made it one which warranted the briefing of two counsel. Leave was sought both in relation to pain and suffering damages and pecuniary loss damages. The application was brought under paragraphs (a) and (c) of the definition of “serious injury” found in s134AB(37) of the Act. Counsel were also required to direct attention to the common law questions of liability and damages, and indeed the entire common law proceeding was settled at the hearing. The originating motion involved questions of causation and the “disentangling” of consequences arising from the physical injury from those of a psychological or psychiatric nature. In addition to the plaintiff’s evidence, the defendants indicated that they wished a general practitioner and the treating rheumatologist to attend for cross-examination. The economic loss threshold was also in dispute. Further, the amount of material involved was extensive, with the plaintiff’s counsels’ brief being some five arch lever folders. There were also extensive medical records and records concerning the plaintiff’s employment. Both the nature of the injury and the issue of “without injury” earnings required analysis.
5 This Court, rather than the Costs Court, should certify for two counsel and fix the fees, given the circumstances of this particular case. It is in the interests of justice for this Court to so certify. Counsel representing the plaintiff on the day of the hearing are in the best position to identify the issues, the work done, and the breadth of material required to be covered. Further, there is considerable delay in having matters such as this determined by the Costs Court. In the matter of Curren v Crowley Plaster Pty Ltd, a decision of the Costs Court of 16 November 2012, there was a nine month delay between the hearing of the matter in the County Court and the Ruling of the Costs Registrar. In addition to Curren, reference is made to the decisions of El Boserra v JW Ford & Co (Aust) Pty Ltd, Hasdic v Venture BMG Pty Ltd and O’Driscoll v Downer EDI Engineering. When these four decisions, all of which involved the seeking of leave for both pecuniary loss damages and pain and suffering damages, are considered, an inconsistency in approach and results is demonstrated. It is desirable that there be a consistent approach of the type that existed prior to these matters being referred to the Costs Court. Finally, the referral of disputes concerning counsels’ fees to the Costs Court leads not only to delay but to added costs for the parties.
(ii) The submissions on behalf of the defendants
6 The submissions of Mr Chamings on behalf of the defendant could be summarised as follows.
7 It is inappropriate for this Court to certify for two counsel and to fix their fees. Reference is made to the decision of His Honour Judge Parrish in Logan v Aberdeen Holdings (Aust) Pty Ltd [2011] VCC 1417. In particular, his Honour stated as follows:
“The new Rules now permit the Costs Court to determine such issues and in my view, it would be inappropriate to persist with the old practice when the new Rules expressly provide the power to the Costs Court to allow Senior and Junior Counsel and their fees within a stated range.”
8 The legislative intention is that the Costs Court has the jurisdiction to hear and determine the assessment, settling, taxation or review of costs in all proceedings. Reference is also made to what the then Attorney-General said in the Legislative Assembly on 20 August 2008 when the relevant Bill was introduced to the House. It is clear that the intent of the Legislature in matters of costs be dealt with by a specialist and skilled tribunal.
9 The Costs Court is the preferable forum in respect of counsels’ fees. The 2011 Scale provides a wider range of fees and there is now a division between fees for senior and junior counsel. The Costs Court has specific power to allow for both senior and junior counsel where the Court has not certified and is directed to apply specific, broad ranging factors when determining the number of counsel and the appropriate fee. It will also be in a good position to deal with GST implications and achieve more consistent results generally. It is well-equipped to take all factors into account in order to achieve consistency and balance. There is no basis for suggesting that the payment of counsels’ fees will be delayed unless certified, as such fees cannot be paid until the plaintiff’s practitioners have submitted a Bill of Costs.
10 The four Rulings of the Costs Court to which counsel for the plaintiff have referred each show that the arguments in respect of two counsel were given due consideration and that the issues were examined and discussed. In relation to the argument based upon the resolution of the common law proceedings and the complexities of the matter, reference is made to the comments of His Honour Judge Strong in Mansfield v GIO Workers’ Compensation (Victoria) Limited [1997] VCC 4. His Honour, in disallowing two counsel, referred to the fact that the case was “very familiar territory” for those involved. The same could be said of the present case.
11 Further, there are important differences between the facts relating to Curren and those in the present case. In the present case the combined court books were not voluminous and the defendants’ court book had in it extracts of the relevant portions of the clinical records. The case had an estimate of one to two days, compared with three to four days in Curren. There were two plaintiff’s doctors to be cross-examined, compared with eight in Curren. Causation was not in issue and the question of disentanglement did not raise any additional issues, given the Court of Appeal decisions relating to Chronic Pain Syndrome.
12 Economic loss was also a straightforward proposition, given the overwhelming weight of the evidence in relation to it. The comparison between “without injury” and “with injury” earnings was straightforward, as disclosed in income tax returns. The plaintiff’s case was not opened to the court and the whole matter was resolved prior to the luncheon adjournment. Arguments in relation to payment of counsels’ fees being delayed is incorrect, as WorkSafe cannot pay fees until the plaintiff has submitted a costs claim, which can take months, without there being any fault on the part of the defendant. Early resolution and payment then occurs, regardless of whether a judge assesses the fees.
13 The delay in relation to the Ruling of the Costs Court in Curren may have been due to other extenuating factors, such as a failure by the plaintiff’s lawyers to submit costs in a timely fashion. There is no explanation as to why the delay occurred. As the established practice is for both parties to engage costs consultants, it is hard to see that there are any added costs by reason of a referral to the Costs Court. In summary, the approach taken by His Honour Judge Parrish in Logan should be followed.
Ruling
14 I would commence by making three general observations. Firstly, as was said by His Honour Judge Parrish in Logan, “It is abundantly clear that this Court retains a discretion to certify for the number of counsel and the amount of fees, and indeed, in an appropriate case, that discretion may be exercised on proper grounds”. I agree entirely, and no argument was raised to the contrary. Secondly, given the existence of such a discretion, it seems to me that each case and each application should be considered on its merits. In my opinion there should be no “hard and fast” rule or approach. This, necessarily, may lead to differing outcomes in various cases, but that is to be expected if each situation is viewed and assessed on it merits. Thirdly, I agree that, whether the question of two counsel be determined by the Costs Court or by this Court, the approach taken in Oldaker should be followed. Put simply, the test relates to what a reasonably prudent solicitor would do at the time of briefing.
15 I turn now to the present case. I have come to the conclusion that, in the particular circumstances prevailing, I should decide the issues of the number of counsel and their fees. Secondly, again in the particular circumstances of this case, I am prepared to certify for two counsel. Thirdly, I will fix counsels’ fees in the amounts asked for by those on behalf of the plaintiff. I might add that the quantum of counsels’ fees received no attention in the written submissions on behalf of the defendants, and my recollection is that Mr Chamings scarcely touched upon it in his oral submissions.
16 I have come to this conclusion for the following reasons, which are not set out in order of importance of significance.
(i) This application involved leave for both heads of damages – pain and suffering and pecuniary loss. Such matters usually involve lengthier presentations, greater documentation and considerably more analysis than do applications solely for leave in respect of pain and suffering damages. The provisions set out in s134AB(38) of the Act relating to financial loss are complicated. Speaking from a personal viewpoint, I know that my Judgments in relation to matters where relief is sought pursuant to both heads are frequently between 50 per cent and 100 per cent longer than those where only pain and suffering is to be considered. I have little doubt but that the workload in relation to preparation and presentation by counsel is also frequently increased by at least an equivalent amount.
(ii) In the present case the plaintiff was relying upon both paragraphs (a) and (c) of the definition of “serious injury”. Such reliance inevitably complicates an application. Matters relating to each injury as defined have to be analysed and assessed. The tests are different. There are frequently matters relating to the operation of s134AB(38)(h), and sometimes (38)(i), to be borne in mind. There are differing consequences of injury to be considered and, to use an unfashionable word, “disentangled”. Again speaking from personal experience, I find that judgments involving a consideration of both paragraphs (a) and (c) of the definition are almost invariably considerably longer than those where this is not the case. I make no apology for saying that I frequently breathe a sigh of relief if, for example, reliance is placed solely upon paragraph (a).
(iii) In short, I would say with some confidence, and based upon personal experience, that applications where leave is sought in relation to both heads of damages and reliance is placed upon paragraphs (a) and (c) of the definition are about as complicated and time consuming as serious injury applications can get. I appreciate that there might be the odd and somewhat unusual application where there are even more complexities, but, as a general rule, what I have said is accurate. The amount of material – factual, medical and financial – is usually considerably greater in “both heads, both limbs” applications, and I can well-imagine that the amount of preparation required would be, to borrow the wording of the Act, very considerable.
(iv) In the present case, counsel disposed of the entire common law proceeding, something for which they and their instructors are to be congratulated. Such a resolution is doubtless much to the relief of the parties, and particularly the plaintiff. In addition, it is of great benefit to the Court in that a future, frequently lengthy, hearing becomes unnecessary. In addition, it is a particularly cost-efficient way of disposing of a common law case. However, for this to happen it is necessary that counsel be “on top of” issues relating to negligence and damages. This in turn will usually require a far greater preparation in relation to, and far greater knowledge of, causation matters, previous health problems, prognoses and the like than is required for simply the originating motion. Clearly counsel in the present case had done the required work because early resolution was achieved.
In his oral submissions, and in answer to a question of mine, Mr Mighell stated that the briefs delivered to him and his junior contained material relating not just to the originating motion but also to the common law situation. Very fairly, he stated that the brief was not specifically stated to be one to attempt to settle the common law in addition to appearing on the originating motion. However, I would be confident that this was very much in the mind of the instructing solicitor, given that common law material was contained in the brief. Arguably the situation would be simpler and clearer if the briefs delivered were specifically stated to be to appear on the originating motion and to negotiate the common law position, but, given what I was told and what was achieved, I readily imply that, at the time of briefing, the instructing solicitor had in mind a possible exploration or resolution of the common law issues. Also very fairly, Mr Chamings told me that he had “turned his mind” to the common law position from the defendants’ viewpoint. I am sure that in reality he would have done a lot more than that, and again the fact that a resolution was achieved would seem to underline the accuracy of my belief.
(v) Thus, we have a situation where a solicitor, at the time of briefing, had to retain counsel who could deal well and appropriately with an originating motion based upon paragraphs (a) and (c) of the definition; in which leave was being sought in relation to both pain and suffering damages and pecuniary loss damages; and where the entire common law proceeding could be the subject of discussion and negotiation.
(vi) In those circumstances, it seems to me to be reasonable and appropriate that I deal with the issues of the number of counsel and their fees. The background matters have been explained to me in detail. I have had the benefit of both oral and written submissions. My personal experience of serious injury applications and common law generally over the years is of advantage. Before me, I had counsel who had been involved in the case, as opposed to the costs consultants referred to in Mr Chamings’ submissions. I am thus in a position to deal with the issues on the basis of what counsel have told me orally and in writing and on the basis of my knowledge and experience of the somewhat complicated serious injury applications of which this was one. As stated, in the particular circumstances of this case I consider it appropriate that I deal with these issues.
(vii) For the reasons which I have already set out, I am of the view that a reasonably prudent solicitor at the time of briefing would have engaged two counsel and that, given the nature of the matter, the retention of senior counsel was reasonably necessary for the attainment of justice or the enforcement of the plaintiff’s rights. I certify for two counsel, being senior counsel and junior counsel. The fees requested seem to me to be reasonable, within the broad range of fees now permitted by the Scale of Costs, and are appropriate for both the counsel involved and the nature of the matter. Accordingly, I fix senior counsel’s fee at $5,500 on brief plus $550 per hour for two hours conference and junior counsel’s fees at 50 per cent of those amounts, namely $2,750 on brief plus $275 per hour for two hours conference. As stated, there was no argument of any substance advanced on behalf of the defendants in relation to the proposed quantum of the fees.
(viii) In relation to Mr Mighell’s arguments based upon delay and inconsistency at the Costs Court, I am not in a position to make any meaningful comment. Whilst four Rulings were put before me, the sample is too small. Certainly a nine month delay as apparently occurred in the matter of Curren appears to be unfortunate and unacceptable, but, as Mr Chamings pointed out, the reason for this is unknown. It is also unclear as to whether the delay encountered in Curren is typical or whether this was a “one-off” situation. If, in the future, more material and examples are gathered, and are put before this Court, and if those examples show a pattern of lengthy delay and of unacceptable inconsistency, there might then be the foundation for argument based upon such delay and inconsistency. However, for the moment I do not believe that these aspects of the situation can be taken further.
Conclusion
17 I accept the arguments advanced on behalf of the plaintiff. I certify for two counsel, being senior counsel and junior counsel. As stated, I fix senior counsel’s fee at $5,500 on brief plus $550 per hour for two hours conference. I fix junior counsel’s fee on brief at $2,750 plus $275 per hour for two hours conference. I shall hear the parties as to any further orders that are required.
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