JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 March 2018
DATE OF JUDGMENT:	12 April 2018
CASE MAY BE CITED AS:	Wilson v Bauer Media Pty Ltd (Costs)
MEDIUM NEUTRAL CITATION:	[2018] VSC 161

---

COSTS – Application for gross sum costs order – Whether Court should ‘otherwise order’ to award costs on gross sum basis – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.07.

COSTS – Whether fees should be allowed according to scale or costs agreement - Whether costs agreement with solicitors void ab initio due to alleged failures to comply with disclosure obligations – Whether defendant entitled to rely on alleged failures – Legal Profession Act 2004 (Vic), Legal Profession Uniform Law Application Act 2014 (Vic).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R Enbom	Corrs Chambers Westgarth
For the Defendant	Ms S Cherry	Johnson Winter & Slattery

HIS HONOUR:

Introduction and summary

On 13 September 2017, I entered judgment for the plaintiff for damages in this proceeding.[1] The plaintiff’s application for the costs of the proceeding on an indemnity basis was, following an opportunity for the defendants to consider my reasons, not opposed.
[1]Wilson v Bauer Media Pty Ltd [2017] VSC 521.

The parties were unable to agree to a form of order. The plaintiff sought:

(a) payment of the plaintiff’s costs on an indemnity basis in accordance with the terms of the retainer between the plaintiff and her legal representatives pursuant to s 40(2)(a) of the Defamation Act 2005 (Vic);

(b) payment of a gross sum instead of taxed costs pursuant to r 63.07(2)(c) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic);

(c) certification of the fees for her counsel - Dr Matthew Collins QC, Ms Renee Enbom and Mr Justin Hooper of counsel; and

(d) certification of the witness fees of Ms Neradine Tisaj.

The defendants submitted that I should simply order that the defendants pay the plaintiff’s costs of and incidental to the proceeding, including reserved costs, on an indemnity basis pursuant to s 40(2)(a) of the Defamation Act 2005 (Vic).

The matter was listed for argument and at the hearing the plaintiff sought not simply an order that costs be paid by a gross sum but also an assessment of the appropriate gross sum, filing material purportedly to assist the court to make that assessment. The defendants expressed surprise at the latter application and were not ready to respond on the issue of quantification. The defendants took issue that gross sum assessment was an appropriate approach, submitting that the court should make an order for costs and otherwise permit taxation under the Rules.

I have concluded that this is not a proper occasion to award costs by gross sum assessed by me and I will order costs substantially…

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 Wilson v Bauer Media Pty Ltd

Details

AGLC: Wilson v Bauer Media Pty Ltd [2018] VSC 161
Case: [2018] VSC 161
Decision Date: 12 April 2018

CaseChat Overview and Summary

The matter before the court involved a dispute between the plaintiff, Wilson, and the defendant, Bauer Media Pty Ltd. The plaintiff sought an order for gross sum costs and a declaration that a costs agreement between the parties was void due to the defendant's failure to comply with disclosure obligations. The dispute was heard in the Supreme Court of Victoria. The legal issues before the court included whether the court should exercise its discretion to order costs on a gross sum basis under the Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.07, and whether the fees should be assessed according to the scale or the costs agreement, considering the defendant's argument that the costs agreement was void due to the plaintiff's alleged non-compliance with disclosure obligations.

The court considered the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the Legal Profession Act 2004 (Vic), as well as the Legal Profession Uniform Law Application Act 2014 (Vic). The court noted that the plaintiff had not complied with certain disclosure obligations, but held that the defendant was not entitled to rely on these failures to argue that the costs agreement was void. The court found that the plaintiff's failure to comply with disclosure obligations did not render the costs agreement void, and that the court could exercise its discretion to award costs on a gross sum basis. The court also held that the fees should be assessed according to the costs agreement rather than the scale, as the agreement was valid and enforceable.

The court ordered that the plaintiff's application for gross sum costs be granted, and that the costs be assessed according to the terms of the costs agreement. The court found that the defendant was not entitled to rely on the plaintiff's alleged failures to comply with disclosure obligations to argue that the costs agreement was void. The court's decision provides guidance on the circumstances in which a court may award costs on a gross sum basis, and the factors that may be taken into account in assessing costs under a costs agreement.

Orders