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:

1. 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.

1. 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.

1. 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.

1. 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.

1. There are differences between judicial review proceedings and common law proceedings for personal injury where certification is fairly common. The questions decided by the Medical Panel have to be reconsidered by a differently constituted Panel and the judgment does not finally determine any underlying statutory compensation claims.

1. The assessment of the appropriateness of fees for preparation sought by counsel is more complex than in a personal injuries case. The appropriateness of the amounts sought may be informed by the amounts allowed for other items claimed, including the drafting of submissions, affidavits and the originating motion, conferences and the provision of advice. Thus in Jerak v Lazarus,[4] Forbes J certified for counsel’s hearing fees, but not preparation. The Court’s certification of counsel’s fees may not lead to any time or cost efficiencies, but may lead to the Court being called upon to decide competing contentions concerning the appropriateness of the rate of fees for which certification is sought.

   [4][2020] VSC 776.

Consideration of submissions

1. The Court has an overriding discretion in relation to the fixing of an award of costs, including allowances for counsel’s fees:

There is no uniform practice in the Court in relation to certification of counsel’s fees. It is open to a judge to refer questions of this nature to the Costs Court in these circumstances. Alternatively, a judge may consider it appropriate to resolve the issue at or around the time of trial.[5]

[5]O’Brien v Greater Bendigo City Council [2016] VSC 33, [13] (J Forrest J).

1. I consider that in this particular case, it is appropriate to certify counsel’s fees, including preparation. As Richards J said in Withers v Chalmers Industries Pty Ltd (Costs),[6] counsel’s fees are likely to be a major component of the plaintiff’s costs in the proceeding said, ‘[f]ixing them at an early stage is a simple exercise that will go a long way to quantifying the total amount of costs payable by the … defendant.’[7] In a case like this, the Judge will, on occasion, be in a position to certify for counsel’s fees. I consider that this is such a case.

   [6][2020] VSC 694.

   [7]Ibid [14(a)].

1. I consider the fees sought by counsel for the plaintiff to be within the range appropriate in a judicial review proceeding. The case was not without its complexity and involved consideration of a number of documents to determine whether the Medical Panel had performed its statutory duty. The fifth defendant was represented by experienced senior and junior counsel. The claim for half a day’s preparation is reasonable, bearing in mind the issues in the case, regardless of fees that may have been charged for advices or preparing documents.

1. I therefore certify for plaintiff’s counsel’s fees for one day of hearing at $4,400 and a half day of preparation at $2,200.