Voss v Downes-Brydon (No 2) - [2020] VSC 863

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04344

WENDY JOY VOSS	Plaintiff
v
DR JENNY DOWNES-BRYDON	First Defendant
PROFESSOR PETER GATES	Second Defendant
ASSOCIATE PROFESSOR MIRON GOLDWASSER	Third Defendant
DR JULIAN FREIDIN	Fourth Defendant
ACE AIRPORT PARKING PTY LTD	Fifth Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	21 December 2020
CASE MAY BE CITED AS:	Voss v Downes-Brydon (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 863

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JUDICIAL REVIEW – Costs – Medical Panel – Counsel’s fees – Whether Court should certify – Appropriate to certify.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Czarnota	Shine Lawyers
For the Fifth Defendant	Ms F Spencer	Thomson Geer

HIS HONOUR:

I delivered judgment in this proceeding on 3 December 2020 making orders quashing the decision of a Medical Panel and requiring the questions referred to it to be again answered by a differently constituted Medical Panel.[1] It is agreed that the fifth defendant must pay the plaintiff’s costs of the proceeding on a standard basis.
[1]See Voss v Downes-Brydon [2020] VSC 815.

In issue is whether the Court should certify for the plaintiff’s counsel’s fees one day’s hearing at $4,400 per day and a half day’s preparation. The fifth defendant opposes this application.

The plaintiff submitted that certification avoids lengthy cost disputes and promotes the purposes of the Civil Procedure Act 2010. The plaintiff referred to a range of opinions that have been expressed in recent decisions of the Court on the issue of certification. The plaintiff contended that judicial review of Medical Panel decisions forms part of broader personal injury claims and the Court is well placed to assess the complexity of the matter and the reasonableness of fees. It would be counterproductive to litigate the issue of counsel’s fees and there is benefit in achieving finality. This case involved a relatively simple matter, but with some complexities. Half a day of preparation was required because of the time between the preparation of the submissions and the hearing date. It was reasonable for counsel to again familiarise himself with the case and prepare oral submissions.

The fifth defendant submitted that the usual rule in judicial review of Medical Panel cases is that the Costs Court should determine the appropriate fees for counsel if not agreed. Despite some recent decisions where fees have been certified,[2] counsel’s fees are not usually certified in judicial review proceedings as the decision in Titcher v Marcelis[3] indicates.
[2]Withers v Chalmers Industries Pty Ltd [2020] VSC 694; Jerak v Lazarus [2020] VSC 776, Rafati v Victorian Workcover Authority [2020] VSC 444 (consent orders); but see Steel Smith Engineering Pty Ltd v McPhee [2020] VSC 571, Miranda v Hendercare Pty Ltd (S ECI 2020 00260, Supreme Court of Victoria, Keith JR).
[3][2015] VSC 578.

There are differences between judicial review proceedings and common law proceedings for…

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 Voss v Downes-Brydon (No 2)

Details

AGLC: Voss v Downes-Brydon (No 2) [2020] VSC 863
Case: [2020] VSC 863
Decision Date: 21 December 2020

CaseChat Overview and Summary

In Voss v Downes-Brydon (No 2), the applicant, Mr Voss, sought judicial review of a decision made by the Medical Panel, which was a part of the Medical Board of Australia. The applicant's primary contention was that the costs incurred for legal counsel during the proceedings were excessive and should not be borne by him. The case was heard by the Federal Court of Australia.

The central legal issue before the court was whether the applicant's application for costs, specifically for counsel's fees, was appropriate for certification. Certification in this context meant that the applicant could apply to the Supreme Court of Victoria for an order for costs, bypassing the need for an application directly to the Federal Court. The court needed to determine if the circumstances of the case warranted such a certification.

The court examined the nature of the applicant's case, the outcome achieved, and the conduct of the parties during the proceedings. It concluded that the case was suitable for certification. The applicant had achieved a significant outcome, and the conduct of both parties did not warrant a deviation from the usual approach to costs. The court found that it was appropriate to certify the application for costs, allowing the applicant to seek an order for costs from the Supreme Court of Victoria.

Orders

Orders of the court

See [10]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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