Yildirim v A&L Windows Pty Ltd (Costs) - [2021] VSC 282

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 00437

SERKAN YILDIRIM	Plaintiff
v
A&L WINDOWS PTY LTD	First Defendant
DR JOHN KING	Second Defendant
DR JULIAN FREIDIN	Third Defendant
CONVENOR OF MEDICAL PANELS	Fourth Defendant

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	In Chambers
DATE OF JUDGMENT:	19 May 2021
CASE MAY BE CITED AS:	Yildirim v A&L Windows Pty Ltd & Ors (Costs)
MEDIUM NEUTRAL CITATION:	[2021] VSC 282

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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 certification for counsel’s fees – Relevant principles – Appropriate to certify counsel’s fees – Supreme Court (Civil Procedure) Rules 2015 (Vic), r 63.07; Appendix A, Items 17 and 19 – Withers v Chalmers Industries Pty Ltd (Costs) [2020] VSC 694 referred to; O’Brien v Greater Bendigo City Council; Lea v Fosterville Gold Mine (costs ruling) [2016] VSC 33 applied.

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HER HONOUR:

Introduction

The plaintiff, Mr Serkan Yildirim was successful in his application to quash the Opinion of the Medical Panel which had been convened to consider two medical questions referred to it pursuant to s 284 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

The decision of the Court was that the appeal be allowed and the Opinion of the Medical Panel dated 4 December 2019 be quashed and the matter referred to a differently constituted medical panel to be considered and determined in accordance with law.

An invitation was made to the parties to make submissions on costs.

The parties provided short written submissions.[1] The plaintiff sought his costs of the proceeding on a standard basis, to be assessed in default of agreement by the Costs Court. The plaintiff also sought certification of counsels’ fees as follows:

(a) Mr Uren QC at $8,800 inclusive of GST being one day of hearing; and

(b) Ms Smietanka at $4,400 inclusive of GST being one day of hearing.

[1]Serkan Yildirim, ‘Plaintiff’s Submissions as to Costs’, Submission in Yildirim v A&L Windows Pty Ltd & Ors, S ECI 2020 00437, 30 March 2021; A&L Windows, ‘First Defendant’s Submissions in Respect of Certification of Counsel’s Fees’, Submission in Yildirim v A&L Windows Pty Ltd & Ors, S ECI 2020 00437, 31 March 2021.

The first defendant, A&L Windows Pty Ltd, did not make any submissions in respect of the claim for costs on the basis outlined above, save that it opposed the Court’s certification of counsels’ fees.

No submissions as to costs were made by any other party.

The first defendant acknowledged that the court has discretion to certify counsel’s fees but said that the usual position is that fees should be agreed between the parties or otherwise determined by the Costs Court. It was argued that there are some examples where counsel’s fees have been certified and others where they have not. Not every claim for counsel’s…

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: [2021] VSC 282
Decision Date: 19 May 2021

CaseChat Overview and Summary

The matter between Yildirim and A&L Windows Pty Ltd involved a judicial review proceeding where the decision of a medical panel was set aside. The dispute centred on whether the costs order in favour of the successful plaintiff should include certification for counsel's fees. The court addressed the relevant principles and concluded that it was appropriate to certify the counsel's fees.

The primary legal issue was whether the Supreme Court should certify the costs for the plaintiff's counsel, which included both solicitor's and barrister's fees. The court considered the relevant rules and authorities, including the Supreme Court (Civil Procedure) Rules 2015 (Vic), r 63.07 and Appendix A, Items 17 and 19, as well as the case law from Withers v Chalmers Industries Pty Ltd (Costs) [2020] VSC 694 and O’Brien v Greater Bendigo City Council; Lea v Fosterville Gold Mine (costs ruling) [2016] VSC 33. The court found that the plaintiff's costs, including the barrister's fees, were reasonable and necessary, and therefore appropriate for certification.

The court reasoned that the nature of the case, being a judicial review proceeding, warranted the involvement of counsel. The case involved complex legal and medical issues, and the plaintiff's success was largely due to the expertise of the counsel. The court also noted that the plaintiff had acted reasonably in engaging counsel, given the complexity of the case and the need for expert legal representation. The court concluded that the costs order should include certification for the plaintiff's counsel's fees, which was deemed appropriate under the circumstances.

The court ordered that the costs of the plaintiff, including the fees of the plaintiff's counsel, be certified and paid by the defendant. This decision provided clarity on the certification of counsel's fees in judicial review proceedings, reinforcing the importance of expert legal representation in complex cases.

Orders