Withers v Chalmers Industries Pty Ltd (Costs)
[2020] VSC 694
•21 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 05740
| GORDON WITHERS | Plaintiff |
| v | |
| CHALMERS INDUSTRIES PTY LTD | First Defendant |
| and | |
| ASSOCIATE PROFESSOR PETER GIBBONS as THE CONVENOR OF MEDICAL PANELS | Second Defendant |
| and | |
| ASSOCIATE PROFESSOR ALEXANDER HOLMES, DR DENNIS HANDRINOS, DR SUSANNE HOMOLKA, DR ANDREA BENDRUPS, and MR PETER WILDE | Third to Seventh Defendants |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 October 2020 |
DATE OF JUDGMENT: | 21 October 2020 |
CASE MAY BE CITED AS: | Withers v Chalmers Industries Pty Ltd (Costs) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 694 |
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COSTS – Judicial review proceeding – Opinion of a Medical Panel set aside – Whether costs order in favour of successful plaintiff should include an order certifying counsel’s fees – Relevant principles – Appropriate to certify counsel’s fees – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 63.07; Appendix A, Item 19.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr LBR Allan | Arnold Thomas & Becker |
| For the First Defendant | Mr RD Kumar | Minter Ellison |
HER HONOUR:
On 29 September 2020, I delivered judgment in this proceeding.[1] I foreshadowed orders setting aside the opinion of the Medical Panel constituted by the third to seventh defendants, and remitting the medical questions for reconsideration by a differently constituted Medical Panel. The plaintiff and the first defendant were unable to reach agreement on the costs orders that should follow that outcome. While the first defendant accepted it should pay the plaintiff’s costs of the proceeding, it opposed the order sought by the plaintiff for certification of counsel’s fees.
[1]Withers v Chalmers Industries Pty Ltd [2020] VSC 635 (Reasons).
After hearing submissions on 13 October 2020, I made the following orders:
1.There is an order in the nature of certiorari, quashing the opinion of the Medical Panel comprising the third to seventh defendants, certified in writing on 6 December 2019, in respect of the medical questions concerning the plaintiff’s claimed injury referred to a Medical Panel on 16 July 2019.
2.There is an order in the nature of mandamus, remitting the medical questions to the second defendant to convene a differently constituted Medical Panel to reconsider the medical questions in accordance with law.
3.The first defendant is to pay the plaintiff’s costs of the proceeding, including any reserved costs, on a standard basis, to be assessed by the Costs Court if not agreed.
4.There is certification for two counsel, as follows:
(a)for senior counsel, one day of hearing and a half day of preparation at $8,800 per day; and
(b)for junior counsel, one day of hearing and a half day of preparation at $4,400 per day.
These are my reasons for making the fourth of those orders.
The plaintiff sought an order for certification of his counsel’s fees, as follows:
(a) for senior counsel, at $9,060 per day for two days, being one day of preparation and one day of hearing;
(b) for junior counsel, at $4,530 per day for two days, being one day of preparation and one day of hearing.
The first defendant opposed any order certifying counsel’s fees. If such an order were to be made, it did not oppose certification for two counsel. It took issue with the amounts claimed and the claim for one day of preparation.
Should there be an order certifying counsel’s fees?
The plaintiff acknowledged that an order certifying counsel’s fees is not usually made in a judicial review proceeding brought under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The amount allowed for counsel’s fees, on either the standard or indemnity basis, is generally left to the parties to agree or, failing agreement, for determination by the Costs Court.
It is a different matter in common law proceedings for damages for personal injuries, in particular work-related injuries. In those proceedings, it is fairly common for a successful plaintiff to obtain an order fixing the amount of counsel’s fees to be paid by the defendant. These orders are often not the subject of written reasons for decision.
As the first defendant accepted, it is within the Court’s costs discretion[2] to make an order certifying counsel’s fees, and there is power to make such an order in a judicial review proceeding. The relevant principles were summarised by J Forrest J in O’Brien v Greater Bendigo City Council:[3]
[2]Supreme Court Act 1986 (Vic), s 24.
[3][2016] VSC 33, [13].
(a)The Court possesses an overriding discretion in relation to the fixing of an award of costs, including allowances for counsel’s fees.[4]
(b)The Costs Court is empowered by the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’) to fix counsel’s fees for attending a hearing or trial as ‘subject to the provisions of any applicable scale’.[5]
(c)There is no uniform practice in the Court in relation to certification of counsel’s fees. It is open to a judge to refer questions of this nature to the Costs Court in these circumstances.[6] Alternatively, a judge may consider it appropriate to resolve the issue at or around the time of trial.
(d)Some judges certify for two counsel; some certify for two counsel and fix the brief fee. Others prefer to let the Costs Court sort the issue out. It is entirely up to the judge.
(e)The Court’s discretion in fixing a fee is to be exercised subject to a number of factors, such as: the complexity of the matter, the extent of the legal practitioner’s involvement in the matter, and any specialised knowledge or skills required.
(f)The Supreme Court scale of costs 2015–2016 makes provision for counsel’s fee for certain types of work.[7] Whilst the scale cannot fetter a judge’s discretion in the fixing of costs, it is regarded as a cogent guide to the appropriate allowance.
[4]Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 63.07.
[5]Rules, r 63.82(1).
[6]See, for example, Henwood v Nansor Australia Pty Ltd (costs ruling) [2013] VSC 655.
[7]Supreme Court (Chapter I Appendices A and B Amendment) Rules 2015 (Vic) — Increase in Scale of Costs (Appendices A and B) 2015 to 201[6].
As to whether it was appropriate to make the order sought in this case, the plaintiff contended that judicial review proceedings concerning an opinion of a Medical Panel should be regarded as personal injury litigation. He submitted that there are significant advantages in fixing plaintiff counsel’s fees in personal injury matters, including that:
(a) it avoids lengthy disputes with respect to costs and so promotes the purposes of the Civil Procedure Act 2010 (Vic);
(b) it provides the plaintiff with costs certainty at the earliest possible opportunity;
(c) certifying counsel’s fees in open court encourages consistency and transparency; and
(d) the trial judge is often in a superior position to assess costs, having heard the proceeding.
The plaintiff relied on Titcher v Marcelis,[8] in which Riordan J explained why he considered it appropriate to make an order fixing counsel’s fees.
[8][2015] VSC 578 (Titcher).
More particularly, the plaintiff submitted that Medical Panel judicial review proceedings lend themselves to certification of counsel’s fees because they are generally quite confined in their nature and scope, and so the Court is well placed to assess the complexity of the matter and the reasonableness of the fees claimed. Counsel’s fees comprise a very significant part of the costs incurred by the parties, and resolving them at an early stage largely resolves the assessment of costs. A worker who succeeds on judicial review will usually be engaged in further litigation, and having costs certainty promotes the prospect of an overall settlement of the worker’s claim.
The first defendant submitted that this was not an appropriate case to depart from the usual practice in judicial review proceedings, that counsel’s fees are not certified by the trial judge. It argued that a more systematic approach should be taken to the question of whether there should be any change to that practice.
The first defendant relied on the reasoning in Henwood v Nansor Australia Pty Ltd,[9] in which Macaulay J declined to certify counsel’s fees following the settlement of a common law claim for damages arising from an industrial accident. His Honour did not accept that the proceeding was particularly complex, or that he had obtained a unique insight into the nature and complexity of the case such that it was appropriate for him to fix counsel’s fees. The first defendant argued that none of the circumstances identified by his Honour in which it might be appropriate to fix costs was present in this case. It also referred me to Bucic v Arnej Pty Ltd (No 3),[10] and another more recent case in which Incerti J had determined not to certify counsel’s fees.[11]
[9][2013] VSC 655 (Henwood).
[10][2019] VSC 410.
[11]S ECI 2019 05089 Steel Smith Engineering Pty Ltd v McPhee, costs order dated 16 September 2020.
I considered that it was appropriate in this case to make an order certifying counsel’s fees. My reasons were:
(a) First, I was not persuaded by the first defendant’s submission that this was not an appropriate case in which to depart from the usual position in judicial review proceedings. It did not identify any feature of the proceeding that made it inappropriate for the trial judge to certify counsel’s fees. Nor was I persuaded that the question called for a more systematic approach. The Victorian WorkCover Authority might be well placed to develop a more streamlined, less disputatious, approach to assessing counsel’s fees in Medical Panel matters, and there is nothing to prevent it from doing so. However, it is not realistic to expect that an individual plaintiff could attempt that exercise. The order sought by the plaintiff was well within the Court’s costs discretion, and was supported by a number of cogent arguments. I considered that to be a sufficient basis on which to make a ruling.
(b) Second, I accepted that counsel’s fees are a major component of the plaintiff’s costs in the proceeding. Fixing them at an early stage is a simple exercise that will go a long way to quantifying the total amount of costs payable by the first defendant. This is likely to avoid, or at least reduce, the effort, expense and delay involved in a taxation of costs, and furthers the overarching purpose in s 7 of the Civil Procedure Act, ‘to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute’.
(c) Third, proceedings for judicial review of an opinion of a Medical Panel are invariably part of a broader personal injuries claim. Medical Panels are established under Pt 6, Div 3 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act), as an integral component of the mechanism for resolving disputes. Medical questions are referred to them to facilitate the resolution of some dispute that has arisen under the WIRC Act.[12] It is conducive to the resolution of the broader claim that parties know the extent of their liability for legal costs at the earliest possible time. In particular, it is important for a plaintiff to know the amount of unrecoverable legal costs that will be deducted from a settlement payment, in order to make an informed decision about making or accepting an offer of settlement.
(d) Fourth, the relative simplicity of this proceeding lends itself to counsel’s fees for the trial being fixed by the trial judge.[13] There were only two active parties,[14] and the hearing took less than one day. While the issues were legally technical, they were confined, and were the subject of detailed written submissions filed well in advance of the hearing.
(e) Fifth, due to the nature of the case, it would be counterproductive for the parties to continue to litigate on the issue of counsel’s fees, and there was benefit in achieving finality on that question.[15] There is already a long litigation history between the plaintiff and the first defendant,[16] and they should focus on resolving the issues of substance that remain in dispute between them.
[12]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 207, 274, 284, 285, 574(11). The Wrongs Act 1958 (Vic), Pt VBA, Div 5 makes separate provision for the determination by a Medical Panel of medical questions arising under the Wrongs Act.
[13]Henwood, [15](c).
[14]The second to seventh defendants advised the Prothonotary by letter on 24 August 2020 that they would submit to such orders as the Court might make in the proceeding, and wished to be heard only in the event of a proposed costs order against them. See R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35.
[15]Henwood, [15](e).
[16]Reasons, [9]–[14].
What fees should be certified?
It remained to determine what fees should be certified for the plaintiff’s counsel. The first defendant did not oppose certification for two counsel. There were two areas of dispute — the amount of the fees claimed, and the claimed fees for preparation.
Item 19 of Appendix A to the Rules provides that counsel’s fees may be allowed for an appearance at trial up to a maximum of $9,060 for senior counsel, and $6,040 for junior counsel. Fees for preparation may be allowed up to a maximum of $906 per hour for senior counsel, and $604 for junior counsel. In allowing a fee to counsel, regard is to be had to:[17]
(a) all criteria in item 17; and
(b) the other fees and allowances to Counsel in the matter; and
(c) payments made for interlocutory work where that work has reduced the work which would otherwise have been necessary in relation to the brief; and
(d) the standing of Counsel.
[17]Rules, Appendix A, Item 19(3).
The criteria in item 17 of Appendix A are:
(a) the complexity of the matter;
(b) the difficulty or novelty of the questions involved in the matter;
(c) the skill, specialised knowledge and responsibility involved and the time and labour expended by the legal practitioner;
(d) the number and importance of the documents prepared and perused, regardless of length;
(e) the amount or value of money or property involved;
(f) research and consideration of questions of law and fact;
(g) the general care and conduct of the legal practitioner, having regard to the instructions and all relevant circumstances;
(h) the time within which the work was required to be done;
(i) allowances otherwise made in accordance with this Scale (including allowances for attendances in accordance with item 1);
(j) any other relevant matter.
The rates claimed by the plaintiff were the maximum allowable for senior counsel under item 19, and three-quarters of the maximum allowable for junior counsel. The first defendant submitted that this rate was too high, but did not put forward an alternative rate.
Having regard to the criteria set out in item 19(3), I allowed counsel’s fees at the rate of $8,800 per day for senior counsel and $4,400 for junior counsel. The most salient matters that informed this assessment were the eminence of senior counsel for the plaintiff, the limited issues in dispute, the fact that the questions involved were not novel or especially difficult, the moderate volume of the evidentiary material in the proceeding, and consistency with fees certified for counsel of similar standing in other matters.
The first defendant contended that no amount should be allowed for preparation, because counsel who appeared at the trial were the same counsel who had prepared the plaintiff’s written submissions. While I did not accept that submission in its entirety, I did accept that this was a reason not to allow the full day of preparation claimed for both counsel.[18]
[18]Rules, Appendix A, Item 19(3)(c).
The plaintiff filed his written submissions on 27 April 2020, and submissions in reply on 10 July 2020. The written submissions were comprehensive, and demonstrate that counsel were fully across the evidence and the relevant law. However, there was a gap of some months between the preparation of the written submissions and the trial on 9 September 2020, and it was reasonable for counsel to take time to refamiliarise themselves with the detail of the case and to prepare their oral submissions. I considered that half a day (equivalent to five hours) for both counsel was a reasonable allowance for preparation.
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