Toohey v Pumpa Engineering Pty Ltd - [2015] VSC 589

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…

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.

Continue reading Toohey v Pumpa Engineering Pty Ltd

Details

AGLC: Toohey v Pumpa Engineering Pty Ltd [2015] VSC 589
Case: [2015] VSC 589
Decision Date: 21 OCTOBER 2015

CaseChat Overview and Summary

In the case of Toohey v Pumpa Engineering Pty Ltd, the plaintiff sought recovery for personal injuries sustained in a workplace accident. The dispute was heard in the Supreme Court of Queensland. The plaintiff's claim involved the interaction between the costs rules applicable to personal injury litigation and specific provisions of the Accident Compensation Act 1985. The central legal issues revolved around the allowance of costs for two counsel attending a site visit and the applicability of a circuit fee in light of a settlement reached after the circuit was completed.

The court considered whether the costs rules permitted the allowance of fees for two counsel attending a view, given that such an arrangement was not explicitly permitted under the rules. Additionally, the court examined the interaction between the costs rules and the statutory provision that allows for the recovery of costs in personal injury cases, specifically section 134AB(29) of the Accident Compensation Act 1985. The court held that the allowance of fees for two counsel attending a site visit was permissible under the circumstances, and that a circuit fee could be awarded despite the settlement occurring post-circuit completion.

The Supreme Court of Queensland concluded that the costs rules did not preclude the allowance of fees for two counsel attending a site view, provided that it was justified under the circumstances of the case. Furthermore, the court found that the statutory provision allowing for the recovery of costs did not conflict with the costs rules, and therefore, the plaintiff was entitled to the circuit fee. The court made an order fixing the fees, ensuring that the plaintiff was adequately compensated for the costs incurred during the litigation process.

Orders