Stone v Miller

[2017] VSC 69

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2016 00783

JOSEPH STONE	Plaintiff
v
KATHERINE MILLER	Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2017
DATE OF RULING:	10 March 2017
CASE MAY BE CITED AS:	Stone v Miller
MEDIUM NEUTRAL CITATION:	[2017] VSC 69, First Revision: 17 March 2017; paragraphs [5] and [6]

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COSTS – Certification of counsel’s fees – Indemnity costs awarded – Scale of Costs – Supreme Court (General Civil Procedure) Rules 2015.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Tobin SC Mr M. Nightingale	Arnold Thomas Becker
For the Defendant	Mr P. Elliot QC Ms D. Manova	Transport Accident Commission

HIS HONOUR:

1. Senior Counsel for the plaintiff has asked me to certify daily fees for Senior Counsel at $9,263 inclusive of GST, and for junior counsel at 50 per cent at that rate. $9,263 inclusive of GST is the maximum daily fee under Appendix A to Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).[1] The defendant has submitted in response that Senior Counsel’s fees ought be certified at a rate of $7,700  per day, with Junior Counsel’s fees to be certified at 50 per cent of that rate.

   [1]The figure is expressed in the Rules as a GST exclusive figure.

1. The parties are agreed that it is appropriate to allow for two days of preparation and five days of trial.

1. The plaintiff made a Calderbank[2] offer on 8 February 2017. The offer was not accepted, and expired on 13 February 2017.  It has been agreed between the parties that from 14 February 2017 the defendant pay the plaintiff’s costs on an indemnity basis.  Rule 63.30.1 reads that:

All costs should be allowed accept insofar as they are of an unreasonable amount or have been unreasonably incurred.

[2]Calderbank v Calderbank [1975] 3 All ER 333.

1. Although factually this was a simple two-vehicle accident, the stakes were very high.  As a result of his injuries the 25 year old plaintiff is a paraplegic.  Damages were agreed between the parties at a predictably high figure, and the case proceeded only on liability and contributory negligence. A small reduction for contributory negligence would nevertheless still equate to a substantial reduction in damages.

1. In my view, given the high stakes, the fact that the damages were not agreed between the parties until the afternoon before the commencement of the trial, and that costs from 14 February are to be calculated on an indemnity basis, it is appropriate to certify for Senior Counsel’s daily fee at $9,263.  This fee is higher than I would allow if the matter were to be costed on a standard basis.  I consider a fee of 50 per cent of Senior Counsel’s fee to be appropriate for junior counsel.

1. There is one qualification to be applied to this conclusion.  The trial commenced on 15 February 2017.  Preparation has been agreed at two days.  Only one of those two days could be covered by the indemnity costs award.  The other day of preparation must be on a standard costs basis.

1. Accordingly, I certify costs for Senior Counsel for five days of trial and one day of preparation at $9,263 per day.  I certify costs for Senior Counsel for one additional day of preparation at $7,700.  I certify for junior counsel at 50 per cent of these amounts.