Toohey v Pumpa Engineering Pty Ltd
[2015] VSC 589
•21 OCTOBER 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 00129
| COLIN TOOHEY | Plaintiff |
| v | |
| PUMPA ENGINEERING PTY LTD | Defendant |
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JUDGE: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 7 OCTOBER 2015 |
DATE OF JUDGMENT: | 21 OCTOBER 2015 |
CASE MAY BE CITED AS: | TOOHEY v PUMPA ENGINEERING PTY LTD |
MEDIUM NEUTRAL CITATION: | [2015] VSC 589 |
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COSTS – Personal injury litigation – Interaction between Appendix A to Chapter I Supreme Court (General Civil Procedure) Rules 2005 and s 134AB(29) of the Accident Compensation Act 1985 – Allowance of fees for two counsel attending view – Allowance of circuit fee on a settlement occurring after completion of the circuit – Order made fixing fees.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Seelig | Garden & Green Lawyers |
| For the Defendant | Mr J Corridon | Wisewould Mahony |
HIS HONOUR:
This proceeding was brought by the plaintiff claiming damages for personal injuries arising out of an industrial accident which occurred on 2 November 2011. The trial was originally listed for hearing in the Supreme Court circuit at Shepparton commencing on 25 May 2015. That circuit was occupied with one case which ran for three weeks and this case was adjourned to the circuit at Wangaratta commencing 19 October 2015.
The claim was settled prior to the directions hearing for the Wangaratta sittings on 7 October 2015 and, accordingly, orders were sought by consent that the proceeding be dismissed and the defendant pay the plaintiff’s costs. The residual issue to be resolved is that the plaintiff seeks that counsel’s fees (inclusive of GST) be determined by this Court as follows:
(a) Brief fee for senior counsel at $8,800 (inclusive of circuit fee).
(b) Four hours of conferences at $880 per hour.
(c) One day for a view at $8,800.
(d) One day for preparation at $8,800.
(e) Junior counsel’s fees fixed at 50 per cent of the above.
The defendant submitted that counsel’s fees should be taxed by the Costs Court but, if fixed by this Court, should be as follows:
(a) Brief fee for senior counsel at $6,600 with no circuit fee because the case settled prior to the commencement of the circuit.
(b) No allowance for preparation.
(c) Conferences should be included in the view or preparation fee.
(d) Junior counsel’s fees fixed at 50 per cent of the above.
(e) One day fee for a view by only one counsel.
The fixing of counsel’s fees by the Court is commonly referred to as “certification” and there is no question that it is within the discretion of the Court to determine the amount that a party shall be entitled to recover with respect to counsel’s fees.[1]
[1]Henwood v Nansor Australia Pty Ltd [2013] VSC 655 [9]-[12]; Wadley v Ron Finemore Bulk Haulage (No 3) [2013] VSC 181 [3].
The relevant rule is r 63.07 of the Supreme Court (General Civil Procedure) Rules 2005 which provides as follows:
(1)Subject to this Order, where by or under these Rules or any order of the Court costs are to be paid to a party, that party shall be entitled to taxed costs.
(2)Where the Court orders that costs be paid to a party, the Court may then or thereafter order that as to the whole or any part of the costs specified in the order, instead of taxed costs, that party shall be entitled to –
(a)a portion specified in the order of taxed costs;
(b)taxed costs from or up to a stage of the proceeding specified in the order;
(c)a gross sum specified in the order instead of taxed costs;
(d)a sum in respect of costs to be determined in such manner as the Court directs.
Rule 63.82(1) makes provision with respect to hearing and trial fees of counsel and provides:
(1)Subject to the provisions of any applicable scale, the fees payable to counsel to appear at a hearing or trial shall be at the discretion of the Costs Court which may fix such fees –
(a) on the basis of daily fees;
(b) as a lump sum fee covering the whole of the hearing or trial; or
(c) on such other basis as the Costs Court considers appropriate.
Should the brief fees for counsel be fixed?
In Titcher v Marcelis,[2] I considered the question of whether the Court should accede to applications to certify counsel’s fees. After considering the authorities, I concluded that it would often be appropriate for a judge to do so. I noted the advantages as follows:
[2][2015] VSC 578.
Disputes about the amount of the fees charged by counsel, which are recoverable from the other party, can constitute a substantial impediment to the resolution of the question of costs in total. The taxation of costs can take a substantial amount of time before being heard, involve substantial additional costs and requires the application of significant Court resources. The Court, by fixing counsel’s fees, can resolve a significant source of dispute and facilitate the resolution of the question of costs between the parties. In my opinion, the Court’s favourable consideration of any action, which may avoid or reduce the (often inordinate) time and expense involved in the taxation of costs, is consistent with the furtherance of the overarching obligations under the Civil Procedure Act2010.
In most cases, but in particular in claims for damages for personal injuries, the client wishes to know at the earliest opportunity the amount of costs which will be payable by him or her from the settlement moneys. Fixing the amount of counsel’s fees which is recoverable from the other party has the following two effects:
(i)Prior to finally marking all fees, counsel (together with the solicitor and the client) is aware of the amount of any solicitor/client component in the fees as marked. This may affect the amount that counsel proposes to finally charge the client; and it provides an opportunity for an early resolution of any dispute about such charges.
(ii)The client is aware at an early time of the solicitor/client component of counsel’s fees, which will be deducted from the settlement moneys.
The determination of counsel’s fees in open court should encourage consistency and transparency in the allowances of counsel’s fees. Claims for personal injuries are usually settled on a ‘plus costs’ basis. If allowances of counsel’s fees are able to be anticipated with reasonable accuracy, clients can be better advised, prior to settlement, as to the net settlement moneys receivable by them after the payment of solicitor/client costs.[3]
[3]Ibid [12]-[16].
For the same reasons, I consider it appropriate to fix the fees in this case.
The assessment of counsel fees
Item 19 of Appendix A to Chapter I of the Supreme Court (General Civil Procedure) Rules 2005 (‘Appendix A’) provides for counsel’s fees to be allowed up to a maximum of:
(a) Senior counsel: $8,094 (excluding GST), which equates to $8,903.40 (including GST).
(b) Junior counsel: $5,396 (excluding GST), which equates to $5,935.60 (including GST).
Item 19(j) of Appendix A provides that, in allowing the fee to counsel, regard should be had to the following criteria:
(a) the criteria set out in item 17, which are as follows:
(i) the complexity of the matter;
(ii) the difficulty or novelty of the questions involved in the matter;
(iii) the skill, specialised knowledge and responsibility involved and the time and labour expended by the legal practitioner;
(iv) the number and importance of the documents prepared and perused, regardless of length;
(v) the amount or value of money or property involved;
(vi) research and consideration of questions of law and fact;
(vii) the general care and conduct of the legal practitioner, having regard to the instructions and all relevant circumstances;
(viii) the time within which the work was required to be done;
(ix) allowances otherwise made in accordance with this Scale (including allowances for attendances in accordance with item 1);
(x) any other relevant matter.
(b) the other fees and allowances to counsel in the matter;
(c) payments made for interlocutory work where that work has reduced the work which would otherwise have been necessary in relation to the brief; and
(d) the standing of counsel.
Item 19(k) provides that ‘where costs are taxed pursuant to order of the Supreme Court, Counsel’s fees in excess of scale are not to be allowed unless the Supreme Court otherwise orders.’[4]
[4]Supreme Court (General Civil Procedure) Rules 2005 app A item 19(k).
Plaintiff’s submissions
Counsel for the plaintiff explained the circumstances of this case as follows:
(a) The plaintiff was a 58 year old fitter and turner, who was injured in the course of his employment at the defendant’s premises in Swan Hill when he was required to lift and manoeuvre a heavy awkward piece of metal in awkward circumstances from a bench to attach to another part.
(b) The defendant denied liability and raised issues including:
(xi) whether cranes and other lifting equipment could have been utilised;
(xii) whether the plaintiff had received proper instructions and knew how to use the jib crane; and
(xiii) where such items of lifting equipment were situated in the factory at the time of the injury.
On 13 May 2015, a view took place at the defendant’s premises in Swan Hill. Mr Monti QC and Mr Seelig of counsel attended for the plaintiff and Mr Batten of counsel attended for the defendant. On the day of the view, Mr Seelig of counsel (who drove Mr Monti to and from Swan Hill - a distance of more than 700km return journey) left Melbourne at 6.30am and did not return until 6.30pm.
I am assured by the plaintiff’s counsel that Mr Monti QC and Mr Seelig spent in excess of four hours in conference with the plaintiff, their instructors and witnesses on other days.
Both sides had briefed both senior and junior counsel to appear. At the trial, the plaintiff was proposing to call one expert consulting engineer, 14 medical and treating professionals; and at least five lay witnesses including former work colleagues.
Defendant’s submissions
The defendant did not dispute these contentions but submitted that the Court should have regard to the following:
(a) The amount sought by senior counsel of $8,800 exceeds the maximum amount provided by item 17 of Appendix A.
(b) The requirement of s 134AB(29) of the Accident Compensation Act 1985 that any applicable scale of costs has effect as if amounts in the scale were reduced by 20 per cent.
The defendant relied on the decision of Beach J in Wadley v Ron Finemore Bulk Haulage (No. 3).[5]
[5][2013] VSC 181 (‘Wadley’).
Consideration
In Wadley, Beach J considered the effect of the interaction of Appendix A and s 134AB(29) of the Accident Compensation Act 1985 and resolved the issues as follows:
Section 134AB(29) provides that for the purpose of the taxing of costs “any applicable scale of costs has effect as if amounts in the scale were reduced by 20 per cent”. It follows that the amounts in Item 19(a) in Appendix A of $5,000 and $7,500 to which I have referred, must be reduced to $4,000 and $6,000 respectively. However, as the preamble to Appendix A notes, the charges in the scale are exclusive of any GST chargeable.
It should also be noted that s 134AB(29) only requires amounts in the scale to be reduced by 20 per cent. Section 134AB(29) does not provide for a general reduction of party and party costs by 20 per cent. Had Parliament intended such a result, then it would have been a matter of relative simplicity so to provide. To the extent that the defendant submitted that so construing s134AB(29) involved an excessively narrow approach, I reject that submission. There is no basis (either contextually or otherwise) for giving the words of s 134AB(29) any wider application than those words bear in their ordinary meaning. It follows that the amounts I propose to fix do not fall to be the subject of any further reduction under s 134AB(29) of the Act.
During the course of the application, senior counsel for the defendant did not contest the necessity of the plaintiff briefing senior and junior counsel in this proceeding. That said, and in any event, having considered the issues and complexities of this proceeding, I am persuaded that the briefing by the plaintiff of senior and junior counsel was necessary and proper for the attainment of justice. However, I am not satisfied that I should fix brief fees for counsel in an amount in excess of the amounts in item 19(a) of Appendix A (as reduced by the operation of s 134AB(29)). On a party and party basis (and inclusive of circuit fees), having regard to all of the matters identified in Items 17 and 19(j) of Appendix A, I would fix senior counsel's fee on brief in the sum of $6,000 plus GST (making a total of $6,600) and junior counsel's fee on brief in the sum of $3,000 plus GST (making a total of $3,300).[6]
[6]Ibid [13]-[15].
In summary, Beach J did not consider that fees allowed by the Court would not be subject to any further discount; but his Honour did consider it appropriate not to allow more than the maximum allowance in item 17 of Appendix A reduced by 20 per cent.
I consider that it is appropriate to follow the same approach in this case, after allowing for the increase in the scale. In fixing the fees, I have had regard to the following:
(a) I do not accept the defendant’s submission that the claim for senior counsel brief fee of $8,800 (inclusive of GST) exceeds the maximum amount provided by item 17 of Appendix A being $8,094 (exclusive of GST), because the scale item does not include GST and the claim includes an allowance for a circuit fee.
(b) I have allowed a circuit fee because the matter had been listed for the Shepparton circuit and was ready to proceed; but was not reached. If the proceeding had been settled during the circuit, a circuit fee would usually have been allowed. I can see no reason why, when the proceeding is settled after the conclusion of the circuit, the entitlement to the circuit fee should be lost.
(c) There is no issue that it was appropriate to brief two counsel for the proceeding. The purpose of a view would include to enable counsel to properly understand the accident scene, the position of equipment and other matters such as the system of work. This enhanced understanding facilitates the leading of evidence and cross-examination of witnesses. I consider it reasonable for both counsel to attend the view because both counsel are expected to be in a position to take witnesses and participate in forensic decisions about the conduct of the trial.
Having regard to the above matters and the maximum allowance under Appendix A, I propose to fix the fees (inclusive of GST) as follows:
(a) Brief fee of $7,100 plus a circuit fee for Shepparton of $496.
(b) Four hours of conferences fixed at $710 per hour.
(c) One day view at $7,100.
(d)I do not propose to fix fees for preparation given that the proceeding settled nearly two weeks before the start of the circuit. However, I am not disallowing counsel’s fee for preparation but I consider that the Costs Court would be in a better position to assess whether such fee was reasonably incurred.
(e)Junior counsel’s fees will be allowed at 50 per cent of fees allowed to senior counsel on the brief, conferences and the view plus the circuit fee of $496.
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