Willett v State of Victoria (Costs)

[2012] VSC 37

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2009 9928

KAREN ADEN WILLETT	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written application made 23 January 2012
DATE OF RULING:	10 February 2012
CASE MAY BE CITED AS:	Willett v State of Victoria (Costs)
MEDIUM NEUTRAL CITATION:	[2012] VSC 37

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ACCIDENT COMPENSATION – Application for costs under s 134AB(31) Accident Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Waugh	Clark Toop & Taylor

HER HONOUR:

1. The plaintiff succeeded in her claim for damages for negligence against the defendant.  A jury awarded her the sum of $108,000 on 7 July 2011 but found her to have been guilty of contributory negligence to the extent of 50 per cent. Judgment was entered in the sum of $48,075.

1. The plaintiff’s solicitors, Clark Toop & Taylor Compensation Lawyers, now seek an order for their non-recoverable professional costs and disbursements in accordance with s 134AB(30) of the Accident Compensation Act 1985. The order sought is for the recovery of a total amount of no more than $48,075, inclusive of GST.

1. The plaintiff’s solicitors have filed affidavits, in support of their application, from the plaintiff, sworn on 22 January 2012, and from Dominic Matthew Arvia, a lawyer, sworn on 13 September 2011 and 24 January 2012, respectively.  I note that the affidavits sworn by Mr Arvia differ only in that the second affidavit contains paragraphs which were obviously missing from the first.  Those paragraphs recited the relevant sections of a ‘Disclosure Statement and Conditional Costs Agreement’ provided to the plaintiff by her solicitors.

1. I accept that the solicitors advised the plaintiff that she would be required to pay non-recoverable solicitor/client costs in certain circumstances.  She had been told that she had a right to a bill of costs in taxable form which could be taxed by the Taxing Master.  She had been informed of the role of the Victorian RPA in assisting with any costs dispute.  She also understood that she had the option of obtaining independent legal or costing advice in relation to the costs charged.  She consented to the order sought by her solicitors.

1. The trial took place over a period of 6 weeks.  There was no award of costs in favour of the plaintiff after the jury verdict.  The order sought is for costs which would clearly have been justified, given the involvement of the solicitors and necessary disbursements in such a proceeding.  I also note that the estimate of the non-recoverable professional costs and disbursements was assessed by the solicitors’ in-house costs consultant, Ms Fiona Mullen.

1. In all the circumstances, the application should be granted and I will so order.