Talevska v Ensign Services (Aust) Pty Ltd [No 2]

[2021] VSC 319

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 02184

ZORA TALEVSKA	Plaintiff
v
ENSIGN SERVICES (AUST) PTY LTD & ORS (in accordance with the attached schedule)	Defendants

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JUDGE:	O’MEARA J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 June 2021
DATE OF RULING:	3 June 2021
CASE MAY BE CITED AS:	Talevska v Ensign Services (Aust) Pty Ltd [No 2]
MEDIUM NEUTRAL CITATION:	[2021] VSC 319

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COSTS – Judicial review proceeding – Certain answers of a medical panel set aside – Whether the Court should certify for fees of counsel – Application for additional order refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	S Dawson	Zaparas Lawyers
For the Defendants	F C Spencer	Russell Kennedy Lawyers

HIS HONOUR:

1. On 1 June 2021, I made substantive orders in Talevska v Ensign Services (Aust) Pty Ltd & Ors,[1] including a costs order made by agreement in the following terms:

The first defendant is to pay the plaintiff’s costs of the proceeding, including any reserved costs, on a standard basis, to be assessed by the Costs Court in default of agreement.

[1][2021] VSC 309.

1. The plaintiff applied for an additional order in the following terms:

There is certification for two counsel, as follows:

(a)For senior counsel, one day of hearing and one day of preparation at $9060 per day; and

(b)For junior counsel, one day of hearing and one day of preparation at $6040 per day.

1. In argument, counsel for the plaintiff relied upon a sequence of authorities, particularly Titcher v Marcelis,[2] Withers v Chalmers Industries Pty Ltd,[3] Jerak v Dr Lazarus & Ors (Costs)[4] and Voss v Downes-Brydon (No 2).[5]  Counsel identified various features of those authorities said to bear upon the present matter.  Counsel’s submission went as far as to suggest that there was, in effect, an emerging ‘usual practice’ that the fees of counsel would be certified in judicial review matters. 

   [2][2015] VSC 578.

   [3][2020] VSC 694 ‘Withers’.

   [4][2020] VSC 776 ‘Jerak’.

   [5][2020] VSC 863 ‘Voss’.

1. In addition to the above, counsel for the plaintiff noted that the amounts sought in the proposed additional order were the maximums allowed, but sought to justify those amounts by reference – in broad terms – to the circumstances of the case, together with the contention that senior counsel for the plaintiff has been at the Bar for 57 years and junior counsel for 15.

1. Counsel for the first defendant opposed the making of the additional order sought.  She referred to a different sequence of rulings and orders in other matters, particularly Bucic v Arnej Pty Ltd (No 3),[6] orders made on 16 September 2020 in Steel Smith Engineering Pty Ltd v Peter John McPhee & Ors[7] and orders made on 17 November 2020 in Miranda v Hendercare Pty Ltd.[8]  

   [6][2019] VSC 410.

   [7]Supreme Court of Victoria, S ECI 2019 05089.

   [8]Supreme Court of Victoria, S ECI 2020 00260.

1. Counsel for the first defendant acknowledged that an order certifying for the fees of counsel has been made in some judicial review matters, although not always. 

1. As to the amounts sought, counsel for the first defendant submitted that to her knowledge the highest fees certified have been $8800 per day for senior counsel and 50% for junior counsel (ie, $4400).

1. The Court has a discretion to make an order of the nature sought.  The authorities identify many general and specific considerations that may bear upon the making of such an order.  Those considerations include the usual practice in judicial review matters that certification is not ordered, the fact that the practice has not been uniform among judges, the fact that the Costs Court is a tribunal possessing expertise, the complexity of the presenting matter, the extent to which it involved specialised knowledge or skill, together with broader considerations such as any relevance of certification to underlying personal injury litigation between the parties and whether certification might have the effect of resolving a large part and perhaps lead to the resolution of the whole of any costs dispute between the parties. 

1. It will be evident that I have read the material provided to me by the parties, and I am mindful of both the above considerations and others that are there identified and discussed.

1. While there have been recent judicial review matters in which a certifying order has been made, I cannot accept the submission that there is now an emerging or ‘usual’ practice that such orders should be or are made routinely in such matters.  Counsel for the first defendant pointed to recent cases in which such an order has not been made.  Further, in Withers, on which the plaintiff placed particular reliance, Richards J made such an order, but noted the usual position that such an order is not made.  Forbes J noted similarly in the even more recent case of Jerak and Ginnane J noted the proposition without doubting its correctness in Voss.

1. In the end, as each of those and the other cases tend to demonstrate, the most important considerations bearing upon the exercise or not of the discretion are likely to arise out of the circumstances of the particular case.

1. In the present instance, the central issue in dispute was very largely factual or akin to factual.  The proceeding was heard in half a day.  It did not involve or attract issues of legal or other complexity of the kind that can attend other cases.  Skilful counsel appeared on both sides, but it could not be said that the matter itself involved particularly specialised knowledge or skill.  Nor is it evident that there is a common law damages dispute in the background – indeed, there may well not be, as the reference of medical questions to the Panel was made by a Magistrate in the context of a compensation proceeding. 

1. I should also say that I do not find myself able to say with any confidence whether or not certification would, in the present instance, go any way towards resolving any wider costs questions or dispute in connection with the proceeding.

1. Nor am I able to say that it is appropriate to certify for counsel in a case such as the present at either the maximum allowed rates for senior and junior counsel or even at $8,800 per day and 50% of that figure for junior counsel.  The eminence and experience of present counsel may be accepted.  However, if such an approach were taken in this case, it would be hard to conceive of a judicial review matter or perhaps any matter in which such an approach would not be taken.  Intuitively, it does not seem correct that a case such as the present should unquestioningly be thought to attract the maximums allowed or near those figures.  It seems to me that the Costs Court is presently likely to be better placed to assess the issue than I am.

1. More generally, I note, somewhat ironically, the profusion of material proffered to me in connection with the present argument, as opposed to the much more confined references to any legal principle and or relevant authority that emerged in the course of the main argument.  In this regard, there must be a risk that considerations that have been weighty in the various cases and other material provided might be thought by me to be similarly weighty in the present case, notwithstanding the circumstances actually and presently apparent. 

1. For these reasons, while it seems to me that a consideration of the authorities and other materials to which I have been referred are, in a general sense, not unhelpful, the circumstances of the present case must be the surest guide to the exercise or not of the discretion under consideration. 

1. As I have endeavoured to explain, in the present instance the circumstances tend to me to suggest that it is proper that the additional order not be made and that the present issue be determined, if necessary, by the Costs Court.

1. The application for an additional order is refused.  It is not necessary to make any further order.

SCHEDULE OF PARTIES

S ECI 2020 02184
BETWEEN:
ZORA TALEVSKA	Plaintiff
- and -
ENSIGN SERVICES (AUST) PTY LTD	First Defendant
DR CHRISTINE KOSTIOS	Second Defendant
DR SUSANNE HOMOLKA	Third Defendant
MR RODERICK CUNNINGHAM	Fourth Defendant
DR JENNIFER HARMER	Fifth Defendant