Withers v Chalmers Industries Pty Ltd (Costs) - [2020] VSC 694

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,…

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.

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Details

Case: [2020] VSC 694
Decision Date: 21 October 2020

CaseChat Overview and Summary

In this matter, the plaintiff, Withers, sought judicial review of the decision of a Medical Panel, which was ultimately set aside by the court. The defendant, Chalmers Industries Pty Ltd, was involved in the original decision-making process. The case was heard in the Supreme Court of Victoria. The primary dispute was whether the successful plaintiff, Withers, was entitled to an order for costs that included an order certifying counsel's fees.

The central legal issue before the court was whether it was appropriate to certify counsel's fees in this particular case, considering the unique circumstances and the nature of the proceeding. The court had to examine the relevant principles and statutory provisions, particularly Supreme Court (General Civil Procedure) Rules 2015 (Vic), rule 63.07, and Appendix A, Item 19, which provide guidance on costs in judicial review proceedings. The court also had to consider the circumstances of the case, including the complexity, the nature of the issues, and the necessity of instructing counsel.

The court found that it was appropriate to certify counsel's fees in this case. The complexity and importance of the issues, as well as the need for expert legal advice, justified the instruction of counsel. The court acknowledged that the case involved a significant amount of medical evidence and required detailed legal analysis. Furthermore, the court noted that the defendant had not raised any objections to the certification of counsel's fees. Based on these considerations, the court concluded that it was appropriate to certify the fees of the plaintiff's counsel.

The final orders of the court included the certification of the plaintiff's counsel's fees, in addition to the costs already awarded to the plaintiff. This decision ensures that the plaintiff is adequately compensated for the legal expenses incurred in pursuing the judicial review. The court's ruling also serves as a guideline for future cases involving similar circumstances and legal issues.

Orders