Taleni v Victorian WorkCover Authority (Ruling as to Costs)

[2025] VCC 582

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-24-03153

MAKELANI TALENI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDICIAL REGISTRAR BALES
WHERE HELD:	Melbourne
DATE OF HEARING:	In Chambers/on the papers
DATE OF RULING:	3 April 2025
CASE MAY BE CITED AS:	Taleni v Victorian WorkCover Authority (Ruling as to Costs)
MEDIUM NEUTRAL CITATION:	[2025] VCC 582

RULING AS TO COSTS
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Subject:  COSTS
Catchwords:             Application by plaintiff for certification of counsel’s fees 

Legislation Cited:     Workplace Injury Rehabilitation and Compensation Act 2013; WorkCover (Litigated Claims) Legal Costs Order 2016; Accident Compensation Act 1985; Civil Procedure Act 2010

Cases Cited:Matthews v Latrobe Regional Hospital (Ruling as to Costs) [2021] VCC 1161; Condron v Victorian WorkCover Authority (Ruling as to Costs) [2021] VCC 183; Aluthgamage v Select Care Personnel Pty Ltd (2012) 35 VR 494; Barman v Victorian WorkCover Authority (Ruling as to Costs) [2020] VCC 380; Nicoletas v Wallara Australia Pty Ltd(Ruling as to Costs) [2023] VCC 2372; Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435

Ruling:  The plaintiff is entitled to certification for Junior Counsel’s fees for one day at $5,500 and two hours of special conferences at $550 per hour.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Phelps	Henry Carus and Associates
For the Defendant	Ms M Cameron	Hall and Wilcox

HER HONOUR:

The Application

1This proceeding was set down for hearing on 20 February 2025 as a serious injury application.

2The matter was listed before me in the Reserve List call over, as the serious injury application was unable to be allocated by the Court. 

3At the call over of the proceeding, the parties advised the Court that the proceeding had resolved in principle, save for a remaining dispute regarding costs.

4The parties filed written submissions in respect to costs on 14 March 2025, at which time the parties were advised the remaining costs issue would be dealt with on the papers.

5The plaintiff seeks certification for Junior Counsel’s fees for one day at $5,500 and two hours of special conferences at $550 per hour.

6The defendant opposes certification and in the event certification is allowed, opposes the amount sought and says the amount should be reduced to $4,790 and two hours of special conference at 10 per cent per hour.

7The basis for the defendant’s opposition is that, prior to the resolution of the plaintiff’s application, the defendant had served two notices pursuant to s4, Part A of the WorkCover (Litigated Claims) Legal Costs Order 2016 (“the LCO”), stating that the plaintiff’s injuries satisfied the requirements of s325(2)(b)(i) but not the requirements of s325(2)(b)(ii) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”) (“the Notices”).

8The defendant’s position is that no certification for counsel’s fees incurred after the date of the Notices should be allowed. 

9The plaintiff submits that it did not act unreasonably in rejecting the Notices and that the Court should exercise its discretion in certifying Junior Counsel’s fees for the amounts claimed.

Background

10The plaintiff filed an Originating Motion on 31 May 2024 seeking leave to bring proceedings for pain and suffering damages and pecuniary loss damages.  A hearing was fixed for 20 February 2025.

11The serious injury application was brought by the plaintiff in respect of physical injuries suffered in the course of his employment with CDC Oakleigh Pty Ltd as a bus driver between August 2006 and July 2022.

12Timetabling Orders were made by his Honour Judge Pillay on 24 June 2024.

13The plaintiff suffered back and neck injuries, specifically cervical spine and lumbar spine injuries.

14The plaintiff’s claim resolved on 19 February 2025 on the basis the plaintiff accepted a pain and suffering only certificate and settlement sum to resolve the plaintiff’s common law claim. 

The WorkCover (Litigated Claims) Legal Costs Order 2016

15The LCO prescribes and regulates the professional costs and disbursements that may be paid by the Authority or a self insurer to a legal practitioner acting on behalf of a worker in respect to any claim or proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 or s335(2)(d) of the WIRC Act.

16The intention of the LCO is to promote and encourage the early resolution of serious injury applications, and that costs are reasonable and promote financial viability of the scheme. 

17The LCO is divided into parts:  Part A regulates the professional costs of solicitors, whilst Part B deals with disbursements. 

18Part B states that in addition to sums payable under Part A, the worker or worker’s legal practitioner shall be entitled to be paid as a disbursement and specifically says, at paragraph 5:

“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.”

19Part C states:

“In respect of an item in Part B, if a dispute arises in relation to the allowance of an item claimed or the reasonable cost of the item, the County Court Rules of Civil Procedure will apply to the dispute resolution process.”

20Fundamentally, I have a discretion to certify or not. 

The Notices

21On 16 July 2024, the defendant’s solicitor served on the plaintiff’s solicitor, a pain and suffering offer contained within a notice pursuant to s4, Part A, of the LCO (“the First Offer”).

22The First Offer was open for 28 days and expired on 13 August 2024.

23The plaintiff did not accept the First Offer. 

24On 20 January 2025, the defendant’s solicitor served on the plaintiff’s solicitor, another pain and suffering offer contained within a notice pursuant to s4, Part A, of the LCO (“the Second Offer”).

25The Second Offer was open for 28 days and expired on 17 February 2025.

26The plaintiff, again, did not accept the Second Offer. 

27The plaintiff contends it was unreasonable for the plaintiff to accept the First Offer at the time that Notice was served on 16 July 2024 as:

(a)   at that time, the plaintiff did not have available all of the medical and other expert material which considered his capacity for work, nor were Counsel retained.  A report from Dr Ewan Awad, occupational health specialist, had been requested but not yet obtained.  The time for the exchange of material concerning loss of earning capacity had also not closed.  Further to the Orders of Judge Pillay dated 24 June 2024, the deadline for this exchange was 4 October 2024.  Ultimately, the plaintiff also obtained reports from Professor Peter Teddy, neurosurgeon, and Ms Belinda Iatrou, human resources consultant, as well as a supplementary report from Dr Awad.  All of these reports considered the issue of the plaintiff’s work capacity.  Noting the conclusions of the latter two (discussed below), it was prudent for the plaintiff to have obtained these reports.  The state of flux in terms of the evidence regarding the plaintiff’s loss of earning capacity is also underlined by the fact the defendant also obtained a supplementary report from Mr Joseph Slesenger, occupational physician, in December 2024, which specifically considered the issue of the plaintiff’s employment capacity;

(b)   the plaintiff’s employment position was fluid.  The plaintiff had recently returned to work as a bus driver in a modified role.  It was still unclear at that time whether he had the capacity to cope with the duties required of him in that role;

(c)   further, the plaintiff would be able to demonstrate that his current earning capacity at that time (assuming it was maintainable) was above the WIRC Act threshold level of a 40 per cent reduction in earning capacity, and that he was otherwise unlikely to be able to retrain into another career (having recently been forced to cease studying due to the combined effect of his injuries and constitutional factors), such that he had good prospects of establishing a loss of earning capacity above the WIRC Act threshold.

28The plaintiff referred me to a number of cases it submitted I should consider in exercising my discretion.[1]  Specifically, in support of the matters outlined in paragraph 27 of this Ruling, the plaintiff relies on his Honour Judge Misso’s assertions in Condron v Victorian WorkCover Authority,[2] that a reasonably prudent solicitor would not only obtain further medical evidence but also the opinion of counsel. 

[1]Mathews v Latrobe Regional Hospital (Ruling as to Costs) [2021] VCC 1161 at paragraph [38]; Condron v Victorian WorkCover Authority (Ruling as to Costs) [2021] VCC 183; Aluthgamage v Select Care Personnel Pty Ltd (2012) 35 VR 494; Barman v Victorian WorkCover Authority (Ruling as to Costs) [2020] VCC 380 at paragraph [23]; Nicoletas v Wallara Australia Pty Ltd (Ruling as to Costs) [2023] VCC 2372 at paragraph [80]

[2]        ibid at paragraph [13]

29At the time of the service of the Second Offer on 20 January 2025, the plaintiff readily accepts that all of the material considering his incapacity for work was technically available to him albeit the plaintiff’s further affidavit was not served until 3 February 2025. 

30The plaintiff nonetheless says that it was, again, unreasonable for the plaintiff to accept the Second Offer as the state of this evidence supported a loss of earning capacity which would have satisfied the WIRC Act threshold of greater than a 40 per cent reduction in earning capacity.  That is to say, the state of the plaintiff’s evidence regarding work capacity at the time of the service of the Second Offer meant his application for a pecuniary loss certificate had good prospects of success.  Fundamentally the plaintiff’s earning capacity of $867.20 per week satisfied the threshold, with his 52-week average earning capacity no more than $667.08 gross per week. 

31The plaintiff concedes that the medical material (particularly the CoWork assessment) is generally supportive of the plaintiff having a theoretical capacity to perform these roles; however, the plaintiff would have argued, referring me to Aluthgamage v Select Care Personnel Pty Ltd,[3] that the plaintiff had no prospects of being able to successfully retrain or qualify, and transition to any of the roles identified in the CoWork assessment. 

[3]        ibid

32This was supported, the plaintiff says, by the Flexi Personnel report of Ms Iatrou, who stated that the plaintiff’s age, pain and fatigue, limited computer skills and inability to complete previously attempted study, led her to conclude that he would be unable to effectively retrain into any of the identified roles.

33This was also supported by the supplementary report of Dr Awad, which stated that none of the identified CoWork jobs would have been possible because of age-related barriers, and previous failed attempts at retraining, making it unlikely the plaintiff would be able to obtain any of the necessary qualifications required.

34Dr Awad also dismissed the proposed role of charter bus driver (another role raised in the CoWork report) on the basis that it was more physically onerous (and unwise) than the plaintiff’s current bus driver role given his injuries.

35This position, the plaintiff says, was also supported by the reports of Dr Slesenger of April and December 2024, making the prospect of establishing a pecuniary loss claim as at January 2025, very likely. 

36Therefore, the plaintiff says I should exercise my discretion in favour of the plaintiff to certify counsel’s fees. 

37The plaintiff submits this is also consistent with the approach taken in Barman v Victorian WorkCover Authority,[4] where the Court found the rejection of the pain and suffering notice was reasonable by the plaintiff where the plaintiff’s prospects of success on loss of earning capacity was not clear cut, and that the plaintiff’s case can be distinguished from other cases, for example Nicoletas v Wallara Australia Pty Ltd (Ruling as to Costs)[5] where the total of the evidence known to the plaintiff made the prospect of a pecuniary loss claim extremely unlikely.

[4]        Supra at paragraph [23]

[5]        Supra at paragraph [80]

38I do not propose to dwell on the fact that the plaintiff ultimately elected to accept a pain and suffering only certificate despite having these good prospects for his loss of earning capacity claim.

39The plaintiff says he had “sufficient inducement to forego his loss of earning capacity application”. 

40As has been identified by his Honour Judge Parrish in Matthews,[6] at paragraph 51, there are often other very good reasons why plaintiffs accept offers immediately prior to court hearings, “rather than confront a court situation, even in circumstances where objective analysis may well suggest the plaintiff may win the case”. 

[6]        Matthews v Latrobe Regional Hospital(Ruling as to Costs) (supra) at paragraph [38]

41It is worth noting that in addition to this, the settlement sum accepted was to resolve the plaintiff’s common law claim as well. 

42The defendant, on the other hand, says that the plaintiff’s rejection of both the First Offer and the Second Offer was unreasonable for the following reasons:

(a)   At the time of the First Offer, the plaintiff had returned to work, working 20 hours per week as a bus driver, and earning $860 gross per week.  He had been working in that job for at least three months at the time the First Offer was served.  Dr Slesenger reported that the plaintiff told him on 18 April 2024 that “he is satisfied with the role”.  There is no evidence to support the plaintiff’s submission at paragraph 13(b) that it was unclear at the time of the First Offer whether the plaintiff had capacity to cope with the duties required of him in that job; 

(b)   At the time of the First Offer, the most recent report from his treating general practitioner, Dr Saravanan Shanmugam, which contained an opinion regarding capacity for work, was dated 6 February 2023.  Dr Shanmugam’s opinion was that the plaintiff “is able to work driving a bus 4-5 hours per day for 5 days a week initially … .” (emphasis added).  This opinion indicated that the plaintiff may have capacity to increase his hours beyond 20 hours per week (particularly when read together with the reports of Dr Shanmugam dated 9 November 2022).  Dr Shanmugam’s Certificates of Capacity dated 25 June 2024 and 27 July 2024 (which were applicable during the period the First Offer was open) reflected the same opinion.  Contrary to the plaintiff’s submission at paragraph 13(c), the plaintiff would not be able to demonstrate that his current earning capacity at that time met the relevant test.  Dr Shanmugam’s opinion was that the plaintiff had capacity for work up to 25 hours per week in his bus driving job, which would result in earnings greater than the 60 per cent “without injury” earnings figure.  Furthermore, Dr Shanmugam’s opinion about the plaintiff’s capacity to work up to 25 hours per week was not an opinion about his permanent capacity (considering Dr Shanmugam’s reference to “initially”); 

(c)   Dr Slesenger, occupational physician, examined the plaintiff on 18 April 2024, and was of the opinion that he could remain in his job at Westernport Road Lines, with restrictions, and increase to his pre-injury (full-time) hours over six weeks.  Dr Slesenger was also of the opinion that the plaintiff could return to work as a youth worker, welfare worker, disability service officer, and alarm security surveillance monitor, initially four hours per day, three days per week, and graduating to pre-injury (full-time) hours over six weeks (all jobs that well exceeded the 60 per cent “without injury” earnings threshold, in the event the plaintiff had capacity to work full time, or even part time, in those roles).  Dr Slesenger was cautious about the plaintiff’s capacity to return to work as a bus driver more generally, but did not rule it out;

(d)   At interview with Co-Work on 21 March 2024, the plaintiff believed he could work as a bus driver, security control room operator, youth case worker (probably, if no heavy work was involved) and NDIS co-ordinator (all jobs that well exceeded the 60 per cent “without injury” earnings threshold, in the event the plaintiff had capacity to work full time, or even part time, in those roles);

(e)   During the period that the First Offer was open for acceptance, there was no medical evidence to support an argument that the plaintiff’s capacity for work was permanently limited to only 20 hours per week (the hours that he was working at that time).  The only recent medical evidence pertaining to his capacity for work was to the effect that while he was working part-time hours at present, he likely had capacity to increase those hours.  Based on his deposed earnings of $43 per hour, if he were to increase his hours to just 22 hours per week ($946), he would exceed the 60 per cent  “without injury” earnings figure ($927.14).

43The defendant also observed that there is no evidence in the present case that the plaintiff’s solicitor sought the advice of counsel in respect of the First Offer, nor any evidence as to what, if any, further medical evidence they sought to obtain in order to prudently assess whether to accept the First Offer.

44The defendant’s submissions note specifically that after the First Offer expired, and before the Second Offer was served, the following medical reports, which contained opinions regarding the plaintiff’s capacity for work from a physical perspective, were exchanged between the parties:

(a)   Reports of Dr Awad dated 1 August 2024 and 21 November 2024;

(b)   Report of Professor Teddy dated 9 September 2024;

(c)   Report of Dr Slesenger dated 9 December 2024.

45The defendant goes on to say that the rejection of the Second Offer was also unreasonable for the following reasons:

(a)   The plaintiff continued to work 20 hours per week as a bus driver with Westernport Road Lines and had been working in that job since April 2024; 

(b)   Dr Slesenger (9 December 2024) remained of the opinion that the plaintiff could return to work on his pre-injury hours (full time) as a youth worker, welfare worker, disability service officer and alarm security surveillance monitor.  Dr Slesenger recommended a job specific worksite assessment before returning to work as a general bus driver (9 December 2024). 

(c)   Professor Teddy (neurosurgeon) commented that the plaintiff “appears to be coping with his work duties as defined at present, and I have no reason to believe these are contraindicated”, but stated that it was unlikely that he would resume full-time pre-injury work duties.  Professor Teddy did not, however, opine that 20 hours per week was the maximum number of hours the plaintiff could work.  Professor Teddy also opined that the plaintiff’s “clinical state would suggest that he is capable of alternative employment duties as described”, being bus driver, youth worker, case worker, NDIS support coordinator and control room operator (9 September 2024); 

(d)   The plaintiff still did not have any evidence from his treating general practitioner to support that his hours were limited to 20 hours per week permanently.  The most recent Certificate of Capacity contained with Dr Shanmugam’s clinical file, maintained that he was “able to work driving [a] bus 4-5 hours per day for 5 days a week initially …”.  (See Certificate of Capacity dated 14 December 2024).  If the plaintiff had capacity to work five hours per day, five days per week, as a bus driver, his earnings would exceed the 60 per cent threshold;

(e)   Dr Awad’s opinion was the only medical opinion to support the plaintiff’s argument that he was working at his maximum capacity of 20 hours per week (Dr Awad, report dated 1 August 2024);

(f)    The plaintiff’s submission at paragraph 16 that the plaintiff’s application for leave in respect of pecuniary loss had good prospects of success is therefore not supported by the medical evidence.  The plaintiff’s submissions in respect of his prospects of success focus on what he is in fact earning in his current job as a bus driver (20 hours per week), and do not give sufficient consideration to what the plaintiff’s capacity is to earn (whether by increasing his hours in his current job or working in a different job); 

(g)   The plaintiff accepted the settlement (including a pain and suffering certificate) on 19 February 2025, only two days after the expiry of the Second Offer; 

(h)   All evidence that was available to the plaintiff when the settlement was reached, was available to the plaintiff during the period that the Second Offer was open for acceptance (that is between 20 January to 17 February 2025).  The only material served by either party between the time of expiry of the Second Offer and the time of the settlement, was a Notice to Produce served by the defendant (seeking, in summary, evidence of earnings since 4 August 2024), and payslips served by the plaintiff (evidencing earnings the plaintiff had received from Westernport Road Lines between August 2024 and February 2025);

(i)    It was therefore unreasonable for the plaintiff not to accept the Second Offer, considering he subsequently settled the proceeding for pain and suffering, when all of the same information and evidence was available to him. 

46The defendant suggests the fact the settlement was ultimately for common law damages is irrelevant to the question of whether the rejection of the First Offer and the Second Offer was unreasonable for the purposes of certification of counsel’s fees.  And says, broken down, the settlement inherently involved acceptance of a pain and suffering certificate, which ought to have been accepted at the time the First Offer was open and, certainly, when the Second Offer was open. 

Certification amounts

47I note the defendant does not specifically address any issues relevant to the amount of certification.

48The plaintiff says the requested Junior Counsel fees are reasonable, noting that:

(a)   $5,500 is well under the $7,826.50 allowable for Junior Counsel under the County Court Scale of Costs 2025; 

(b)   the matter involved complexity, as it required advice not only in relation to a disputed loss of earnings claim, but also advice in respect of appropriate resolution, and the subsequent negotiation and settlement, of the plaintiff’s common law claim.

The principles

49It is clear from the decisions provided in support of this application that I must consider what was available to, and considered by, the plaintiff’s practitioner, including what instructions they had been provided by the plaintiff, along with their solicitor-client obligations and the overarching obligations of the Civil Procedure Act.

50The parties fundamentally agree that in deciding whether to exercise my discretion, the issue for determination is whether the plaintiff’s solicitors acted unreasonably in not accepting the Notice (or Notices) within the timeframe for their acceptance, and that this involves a consideration of all of the material available to the plaintiff’s solicitors relevant to the issue of capacity for work at the time of the making of the pain and suffering notice, and the state of that material insofar as it establishes, as a matter of probability, the loss of earning capacity threshold of 40 per cent or more as required by the WIRC Act.[7]

[7]        Matthews v Latrobe Regional Hospital (Ruling as to Costs) (supra) at paragraph [38]

51If rejection or non-acceptance was unreasonable, counsel’s fees should not be certified.

52The parties agree the Court has a discretion in relation to costs disputes. 

53In Barman v Victorian WorkCover Authority,[8] his Honour Judge Lauritsen states that of the authorities referred to in that case, the test emerges as the unreasonable rejection or non acceptance of an offer.  Highlighting, that this is the test stated by the Court in Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2)[9] when dealing with Calderbank offers.

[8]        Supra at paragraph [6]

[9] (2005) 13 VR 435 (“Hazeldene’s”)

54The Court said in Hazeldene’s, that the discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations.[10]

[10]        Hazeldene’s (ibid) at paragraph [33]

55In Hazeldene’s, the Court said that it is neither possible nor desirable to give an exhaustive list of relevant circumstances.  At the same time, a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters:

(a)    the stage of the proceeding at which the offer was received;

(b)   the time allowed to the offeree to consider the offer;

(c)   the extent of the compromise offered;

(d)   the offeree’s prospects of success, assessed as at the date of the offer;

(e)   the clarity with which the terms of the offer were expressed;

(f)    whether the offer foreshadowed an application for indemnity costs in the event of the offeree’s rejecting it. 

56As the cases suggest, it is equally important to note that evidence can evolve and change over the course of litigation and so it is all the more important that I consider what was available to the practitioner at the time when decisions were made in respect to this proceeding. 

Conclusion

57I am satisfied it was not within the plaintiff’s control or ability to properly consider the offer in July 2024 and it was not unreasonable for them to not accept the First Offer. 

58I accept the plaintiff’s assertions that the state of flux in terms of the evidence regarding the plaintiff’s loss of earning capacity is also undermined by the fact the defendant also obtained a supplementary report from Dr Joseph Slesenger in December 2024, which specifically considered the issue of the plaintiff’s employment capacity, and it was still unclear at that time whether he had the capacity to cope with the duties required of him in that role.

59The defendant’s propositions are, in my view, speculative and require a number of hypothetical assertions to be taken into account.  Consequently, I do not accept the defendant’s position.

60I am therefore equally satisfied that it was not unreasonable for the plaintiff not to accept the Second Offer, as the state of this evidence supported a loss of earning capacity which could have satisfied the WIRC Act threshold of a greater than 40 per cent reduction in earning capacity. 

61I am further satisfied this case can be distinguished from Nicoletas,[11] in that the information known to the plaintiff’s solicitor did not make the prospect of the success of a pecuniary loss claim extremely unlikely.

[11]        Nicoletas v Wallara Australia Pty Ltd (Ruling as to Costs) (supra) at paragraph [80]

Decision

62In light of the above, and given the complexity of the matter, I propose to exercise my discretion in favour of the plaintiff and certify for Junior Counsel’s fees in the amount claimed.  Accordingly, I will certify for Junior Counsel’s fees for one day at $5,500 and two hours of special conferences at $550 per hour.

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