Zachariadou v Downes-Brydon (No 2)

[2021] VSC 512

THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 00843

CHRISTINA ZACHARIADOU	Plaintiff
v
DR JENNY DOWNES–BRYDON & ORS (according to the attached schedule)	Defendants

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	19 August 2021
CASE MAY BE CITED AS:	Zachariadou v Downes-Brydon (No 2)
MEDIUM NEUTRAL CITATION	[2021] VSC 512

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JUDICIAL REVIEW – Costs – Medical Panel – Counsel’s fees – Whether Court should certify – Appropriate to certify.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Saunders	Zaparas Lawyers
For the Fourth Defendant	Ms FC Spencer	Russell Kennedy

HIS HONOUR:

1. Following my judgment on 19 July 2021, the parties submitted orders that they agreed were appropriate to give effect to it. They disagreed as to whether the Court should certify for the fees of plaintiff’s counsel in the amount of $4,400.

1. The plaintiff requests that the Court in the exercise of its discretion do so certify. She contends that judicial review proceedings concerning an opinion of a medical panel should be regarded as a subset of personal injury litigation, in which counsel’s fees are commonly, but not always, certified. There are significant advantages in certifying plaintiff’s counsel’s fees in personal injury matters, including in associated judicial review proceedings. They are likely to be a major component of the plaintiff’s costs in the proceeding and certifying them at an early stage is likely to avoid or reduce the expense involved in taxation of costs and further the overarching purposes of the Civil Procedure Act 2010. Certification may be conducive to the resolution of the broader claim so the parties know the extent of their liability. The proceedings were relatively simple and it would be counter-productive for the parties to continue litigation on the issue of the parties’ costs.

1. The fourth defendant opposed certification relying particularly on the judgment in Talevska v Ensign Services (Aust) Pty Ltd (No 2).[1]  It submitted that it was not apparent how certification could have any relevance to the underlying personal injury litigation or go in any way to assist in the resolution of that dispute. The judgment in favour of the plaintiff will not finally determine her underlying statutory compensation claims or any potential common law damages claim. It has no direct bearing on the merits of the underlying dispute or its eventual outcome. It is not apparent how the limited certification sought in this case might materially assist in resolving any wider cost questions or disputes in connection with the proceeding. The fourth defendant did not seek to be heard in relation to the amount of fees sought to be certified.

   [1][2021] VSC 319 at [12].

Analysis

1. I have considered these submissions. The Court has a discretion as to whether to certify the amount of counsels’ fees and each case must be considered individually and it is inappropriate to attempt to state any wider principle.

1. However, I do consider that the approach of Richards J in Withers v Chalmers Industries Pty Ltd[2] is of assistance in determining this matter. I consider that counsel’s fees are likely to be a significant part of the plaintiff’s costs in this proceeding and certifying them at an early stage will help quantify costs, and that is entirely consistent with the purpose of the Civil Procedure Act 2010.

   [2][2020] VSC 694.

1. The fees sought are well within the scale permitted to be awarded to counsel. The case went for most of one day’s hearing and required counsel to prepare amendments to the originating motion over the luncheon adjournment. The task is therefore a relatively simple matter and I see no good reason why the Court should not certify.

1. In all the circumstances of this case, I consider that in the exercise of the discretion it is appropriate to certify for the fees of plaintiff’s counsel in the amount of $4,400.

1. I will otherwise make the order in the terms submitted by the parties.

SCHEDULE OF PARTIES

CHRISTINA ZACHARIADOU	Plaintiff
- and –
DR JENNY DOWNS-BRYDON	First Defendant
DR MARIE FELETAR	Second Defendant
A/PROF MIRON GOLDWASSER	Third Defendant
STEINHOFF BEDDING PTY LTD	Fourth Defendant