Warren v Transport Accident Commission (Ruling as to Costs)

[2021] VCC 1907

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-21-00494

REBECCA WARREN	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

---

JUDGE:	JUDICIAL REGISTRAR J B GURRY
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2021
DATE OF RULING:	1 December 2021
CASE MAY BE CITED AS:	Warren v Transport Accident Commission (Ruling as to Costs)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1907

RULING AS TO COSTS
---

Subject:COSTS

Catchwords:              Application by plaintiff seeking certification of counsels’ fees

Legislation Cited:      Transport Accident Act 1986; Civil Procedure Act 2010; Transport Accident Act Common Law Protocols 2016; WorkCover (Litigated Claims) Legal Costs Order 2016

Cases Cited:Donovan v Miller [1987] VR 221; Muir v G E & K W James Pty Ltd [2008] VCC 837; Scanlon v Transport Accident Commission (Ruling) [2021] VCC 1791

Ruling:  Application for certification of counsels’ fee refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Monti SC	National Compensation Lawyers
For the Defendant	Ms A Wood	Solicitor to the Transport Accident Commission

HIS HONOUR:

1This is an application by the plaintiff seeking certification of counsels’ fees for a serious injury application which was listed on 20 October 2021.

2The plaintiff seeks certification at $6,600 for Senior Counsel and $3,300 for Junior Counsel. An Originating Motion was issued on 9 February 2021 seeking leave pursuant to s93 of the Transport Accident Act 1986 (as amended) with respect to injuries sustained in a transport accident. The date of the transport accident was not stated in the Originating Motion. Leave is sought under paragraph (a) and paragraph (c).

3The matter resolved at an Originating Motion conference (“Settlement Conference”) held between the plaintiff and defendant on 30 September 2021.  This was twenty days prior to the hearing.

4While the defendant opposes certification, it submits that if I certify, the amount should be $6,000 for Senior Counsel and $3,000 for Junior Counsel.

5While the matter resolved on 30 September 2021, the Court was not notified of its resolution until 15 October 2021.  On that date, the plaintiff solicitor also submitted a directions hearing application form to the Court.

6The application stated that the matter had been listed for hearing on 20 October 2021, but had resolved, with the defendant granting the plaintiff a serious injury certificate on 30 September 2021.  The plaintiff sought, by consent, orders that:

(a)   the hearing listed for 20 October 2021 be vacated;

(b)   the defendant pay the plaintiff’s costs of the proceedings on the County Court Scale on the standard basis, including any reserved costs, to be taxed in default of agreement;

(c)   the proceedings be otherwise dismissed.

7The Court was informed that there was still a dispute between the parties regarding certification of counsels’ fee. The application stated the defendant had communicated its position and would not consent to orders certifying for counsels’ fees when a matter resolved over fourteen days prior to the hearing.

8I am refusing the plaintiff’s application for certification. 

Parties’ submissions

The Plaintiff’s submissions

9Senior Counsel for the plaintiff submitted this was a complex matter as the injuries relied upon were referrable to multiple areas of the anatomy and the plaintiff had been involved in a number of other accidents over the years.  The brief delivered to counsel on 26 July 2021 was over eleven thousand pages.  Counsel submitted that where certification was not consented to, it was for the Court to determine each case on its merits.

10The plaintiff relied upon the decision of Judge O’Neill of this Court in Muir v G E & K W James Pty Ltd.[1]

[1][2008] VCC 837

11That authority was for a serious injury application which resolved three months prior to the circuit commencing at Mildura.  I was referred to what his Honour said at paragraph 20, namely:

“Even notwithstanding that senior and junior counsel were briefed a considerable period prior to the commencement of the circuit, given the particular circumstances which existed and are referred to above, I am of the view that a reasonable and prudent, but not over-cautious, solicitor in the shoes of Mr Ryan would have done exactly as he did.  As stated, it is important for the retention of experienced counsel well prior to the circuit commencing, particularly in a town as far away as Mildura.  It is important not only to ensure that the application is properly presented, but there is certainty as to the retention of those counsel.  Further, given the volume of the materials provided, and the number of applications involved in the circuit, prudence would dictate the retention of counsel at an early time.  I am of the view that briefing counsel as at 11 March 2008 for the circuit commencing from the beginning of June 2008 was reasonable and prudent in the circumstances.”

12His Honour noted that both counsel, in submissions, referred to the decision of Donovan v Miller.[2]  In particular, what the Full Court stated was the appropriate test to be applied, namely:

“… Would a reasonable and prudent, but not over-cautious, solicitor in all the circumstances consider that the time for doing the work has arrived?”

[2][1987] VR 221

13I was further informed that neither Counsel briefed received an alternative brief on 20 October 2021.

The Defendant’s submissions

14Counsel for the defendant provided a short chronology of this matter.  The dates set out in the chronology were not contentious.

15The dates were:

·        26 January 2016 ꟷ subject transport accident

·        28 April 2020 – first affidavit

·        9 February 2021 ꟷ Originating Motion filed

·        13 September 2021 – updated affidavit sworn (seventeen months of update necessary)

·        14 September 2021 – updated affidavit sworn and received by the defendant (8.45am)

·        15 September 2021 – defendant contacted the plaintiff to arrange a pre Originating Motion conference on 30 September 2021

·        30 September 2021 – pre Originating Motion conference – matter resolved – twenty days prior to hearing

·        20 October 2021 – hearing.

16The chronology shows that the updated affidavit was served and received by the defendant on 14 September 2021 with the settlement conference arranged the next day and held fifteen days later.

17The defendant’s counsel submitted five points for my consideration, and they were:

(a)   there was no automatic right, nor legislative right, for certification in these circumstances;

(b)   the practise under the Victorian WorkCover Authority Procedure of allowance for counsels’ fee twenty-eight days out from the originating motion date is not applicable, and is misguided, as this is a matter under the Transport Accident Act 1986;

(c)   to certify essentially would be for a cancellation fee;

(d)   there was a real risk if there was a common practise to certify fees early, as it may be a barrier to resolve cases early and impact on costs of litigation;

(e)   that the fees sought are for work not done, in that, it resolved three weeks earlier when counsel should have been informed that they were not required to appear at the trial.  If counsel had performed work appropriate for the trial, then there was provision for counsel to render fees for such work. 

Reasons

18I recently handed down a ruling in the matter of Scanlon v Transport Accident Commission (Ruling)[3] in circumstances nearly identical to this matter.  In Scanlon, I refused to certify the counsels’ fee twenty-three days out from the serious injury trial date, when a matter had resolved at a settlement conference.

[3][2021] VCC 1791

19In Scanlon, I discussed the Transport Accident Commission (“TAC”) Protocols, the WorkCover (Litigated Claims) Legal Costs Order 2016 (“the LCO”), the practise of briefing counsel, and relevant provisions of the Civil Procedure Act 2010 (“the CPA”).  I refer to that decision regarding discussion on those matters.

20As I said in Scanlon, the TAC Protocols were introduced with agreement from the TAC, the Law Institute of Victoria and Australian Lawyers Alliance.  They were designed to facilitate resolution of serious injury matters and/or common law claims by utilising an alternative dispute-resolution process.  Importantly, this Court supports the Protocols, as set out at Part 7 of the Serious Injury Applications County Court Practice Note, PNCLD 3-2020.

21With reference to briefing counsel, I noted that a distinction needed to be made between the retaining of counsel for a trial date and the delivery of a brief.

22I also noted that while the LCO prescribed and regulated professional costs and disbursements paid by the Victorian WorkCover Authority or self-insurer in serious injury applications, the WorkCover scheme did not have a compulsory alternative dispute resolution conference before the trial date.  Again, I emphasise this is an important distinction between the schemes.

23The CPA provides the Court with considerable powers regarding case management and imposes obligations on the Court to ensure the overarching purpose of the Act is complied with.  An important part is Part 4.2 headed “CASE MANAGEMENT”.  Section 47 is headed “Judicial powers of case management–overarching purpose and active case management”.  That section provides that, for any direction given or order made, it can include encouraging the parties to use appropriate dispute resolution.

24I have referred to the Serious Injury Practice Note, but in addition, in all matters in the General List of the Common Law Division, the Court makes orders for a matter to be mediated before trial.  The Court makes it clear by the structure of the timetabling orders that all interlocutory steps should be completed prior to mediation to ensure that mediation is effective.  This identifies the importance this Court places on the alternative dispute resolution process.

25The TAC Protocols and the settlement conference process align with the Court’s directions and the CPA.

26In this matter, there was no evidence either party unnecessarily delayed the holding of the settlement conference, nor that either party did not act in accordance with the TAC Protocols and the CPA.

27This is very much a matter where the real question in contention is, in the circumstances of any given case, when is a reasonable time for the payment of counsels’ fees when a matter settled prior to the trial date? 

28Senior Counsel for the plaintiff placed considerable reliance upon the decision of his Honour Judge O’Neill in Muir.[4]  However, there are important reasons to distinguish that matter with this.  That was a circuit matter, it was a decision prior to the introduction of the CPA and before the introduction of the TAC Protocols and related to a matter under the WorkCover scheme.

[4]Supra

29The issue of certification is a matter for the Court if no agreement can be reached between the parties.  Further, as was made clear in the authorities, each case must be determined upon the particular circumstances prevailing when the appropriate test should be applied. 

30I have considered the submission from Senior Counsel for the plaintiff about the complexity of this matter. However, in that regard I also note that Senior Counsel was not briefed to appear at the settlement conference.

31This matter resolved twenty days out from the trial at a settlement conference, where Junior Counsel was briefed for the plaintiff.  I am not satisfied that the circumstances here should give rise to a requirement for the defendant to pay for Senior and Junior Counsels’ fees for trial.  To do so, I consider, is not consistent with the concept of the alternative dispute resolution endorsed by the Court in its Practice Note and as prescribed in the TAC Protocols.  To certify in these circumstances would be inconsistent with the CPA and its overarching purpose.

- - -