Walsh v Bourke (No 2)

[2022] VSC 316

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 00970

MARLENE WALSH	Plaintiff
v
JOHN BOURKE & ORS	Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2022
DATE OF RULING:	10 June 2022
CASE MAY BE CITED AS:	Walsh v Bourke (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 316

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COSTS – Judicial Review – Medical Panel – Certification of counsel fees – Certification denied – Eastern Health v Neill (No 2) [2022] VSC 315.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	P A Czarnota P Santamaria	Slater and Gordon Lawyers
For the First Defendant	No appearance	DLA Piper Australia
For the Second Defendant	No appearance	DLA Piper Australia
For the Third Defendant	F C Spencer	Colin Biggers & Paisley

HIS HONOUR:

1. On 30 May 2022, I quashed a decision of a medical panel that Ms Walsh, the plaintiff, did not have a ‘significant injury’ as that term is used in the Wrongs Act 1958, and published my reasons.[1]  After I had delivered my reasons, Ms Walsh applied for costs, and I made an order that Coles Supermarkets Pty Ltd, the third defendant, pay her costs to be taxed in default of agreement.

   [1]Walsh v Bourke [2022] VSC 282.

1. Ms Walsh also asked that I certify for the retention of two counsel, and that I fix leading counsel’s fees at $6,000 per day for one day of trial and also for half a day of preparation, and junior counsel’s fees at $3,000 per day for one day of trial and also for half a day of preparation.  Coles Supermarkets Pty Ltd, who was itself represented at trial by Queen’s Counsel and an experienced junior, accepted that it was appropriate for Ms Walsh to have retained two counsel.  It did submit, however, that the question of counsel’s fees and the issue of preparation should be determined in default of agreement by the Costs Court.  Alternatively, it submitted that fees should be fixed for leading counsel in the range between $4,400 and $4,800 per day, and half that for junior counsel.  I reserved my decision on the question of counsel’s fees. 

1. Today, I published my reasons in Eastern Health v Neill (No 2) [2022] VSC 315. That was another case in which a party applied for certification of counsel’s fees following the determination of an application for judicial review of a decision of a medical panel. For the reasons there set out, I have formed the view that unless there is a good reason demonstrated for doing so, counsel’s fees in judicial review applications should ordinarily be assessed by the Costs Court. I noted that this is, however, a matter within the discretion of each individual judge.

1. There was no particular feature of this proceeding that took it out of the ordinary and there was otherwise no good reason demonstrated for which I ought to fix counsel’s fees in this proceeding.  I do not feel to be at any advantage over the Costs Court in assessing at what rate a reasonable and prudent solicitor would engage a senior junior as leading counsel to appear at the hearing of this matter.  Accordingly, I propose to certify that it was appropriate for Ms Walsh to retain two counsel, but otherwise not to fix counsel’s fees, and to leave them to be assessed in default of agreement by the Costs Court.

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SCHEDULE OF PARTIES

S ECI 2021 00970

MARLENE WALSH	Plaintiff
- and -
JOHN BOURKE	First Defendant
DR ANNA KORIN	Second Defendant
COLES SUPERMARKETS AUSTRALIA PTY LTD	Third Defendant