Winduss v The Trustees of the Christian Brothers (Costs)

[2024] VSC 98

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

INSTITUTIONAL LIABILITY LIST

S ECI 2022 00009

DAVID WINDUSS	Plaintiff
v
THE TRUSTEES OF THE CHRISTIAN BROTHERS	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2024
DATE OF JUDGMENT:	7 March 2024
CASE MAY BE CITED AS:	Winduss v The Trustees of the Christian Brothers (Costs)
MEDIUM NEUTRAL CITATION:	[2024] VSC 98

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COSTS – Certification of counsel fees – Increase in daily certified rate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	T Tobin SC with N Crowe	Arnold Thomas & Becker
For the Defendant	S Hay KC with C Morshead	Carroll & O’Dea

HIS HONOUR:

1. In this proceeding, the plaintiff claimed damages for personal injuries he alleged were caused by the defendant’s negligence.  The proceeding settled after negotiation between the parties on the first day of trial.

1. The only matter that remained in issue between the parties was the daily figure at which counsel’s fees should be certified.  The plaintiff claimed a daily fee for senior counsel of $9,160, and 50% of that figure as the daily fee for junior counsel.  The defendant submitted the reasonable fees were $8,800 for senior counsel and $4,400 for junior counsel.

1. It was not in issue that the complexity and magnitude of the claim justified the proceeding being brought in this court.

1. The plaintiff did not submit that there was any feature of his claim that made it exceptionally complex and justified certification for counsel’s fees at a higher rate than would usually apply.

1. The parties agreed that since early 2020 the fees for senior counsel in personal injuries proceedings in this court have often been certified at a daily rate of $8,800.  It has been my regular practice over that period to certify counsel’s fees at that rate. 

1. The plaintiff submitted that it was reasonable for there to be an increase in the fees that had been regularly certified by the court for a number of years. The plaintiff sought an increase of 4.1% on the basis that this was the most recent annual percentage increase to the scale of costs in Appendix A to Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2015.  The defendant opposed the increase sought.  They submitted that the daily rate of $8,800 for senior counsel for trials in proceedings of this nature was not directly referrable to a figure in the scale of costs and that there was no justification for applying the most recent percentage increase to the scale as the basis for a higher daily fee.

1. For the following reasons I accept the plaintiff’s submission.  First, daily trial fees for senior counsel in proceedings of this nature have, since early 2020, regularly been certified by me and other judges of this court at $8,800.  Over this same period there have been annual increases in the scale of costs and in indices such as the CPI.  It is reasonable that after four years there is some increase in the certified counsel fees.

1. Second, the increase sought by the plaintiff to the daily rate for counsel’s fees is moderate, particularly having regard to the period during which the previous fee applied.  I accept there is no particular reason for linking the amount of increase to the most recent change in the scale of costs.  However, that is no reason to reject the fees being sought, which in my view reflect trial fees that would reasonably be incurred by a plaintiff in this type of proceeding.

1. Third, the fees are below the maximum amount for daily fees for counsel provided in the scale of costs.

1. I will make the orders sought by the parties by consent, with certification of senior counsel’s fees at a daily rate of $9,160 and junior counsel fees at $4,580.