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:

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.

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.

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’.

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.

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 319
Decision Date: 3 June 2021

CaseChat Overview and Summary

Talevska v Ensign Services (Aust) Pty Ltd [No 2] concerned a judicial review of certain answers provided by a medical panel. The applicant, Talevska, sought to set aside these answers, which were related to her work injury claim. The Federal Court of Australia was the court that heard this case. The primary issue before the court was whether the panel's answers should be set aside and if the applicant was entitled to fees for counsel in the judicial review proceeding. Additionally, the court had to consider whether to grant Talevska's application for an additional order.

The court, in its reasoning, examined the merits of the case and the nature of the judicial review proceedings. It noted that the applicant had succeeded in setting aside the panel's answers, which was a significant outcome. However, the court also considered the nature of the relief sought and the overall costs incurred in the judicial review. Ultimately, the court decided not to certify the case for the applicant's fees of counsel, as it deemed it appropriate to limit the costs recoverable in such judicial review proceedings. The court also refused Talevska's application for an additional order, finding that it was not warranted.

The court's decision was to dismiss the application for certification of fees for counsel and the application for an additional order. The court emphasised that while the applicant had achieved a significant outcome, the judicial review proceedings were not without cost. However, the court considered it appropriate to limit the costs recoverable, particularly in the context of judicial review proceedings. The refusal of the additional order application further underscored the court's view that the matter did not warrant such an order.

Orders