Costs in proceeding - serious injury application granted - parties filed written submissions - certification of fees - whether matter marked not reached
Source
Original judgment source is linked above.
Catchwords
Costs in proceeding - serious injury application granted - parties filed written submissions - certification of fees - whether matter marked not reached
Judgment (4 paragraphs)
[1]
Judgment: The defendant is ordered to pay the plaintiff's costs in proceeding on a standard basis, to be assessed by the Costs Court in default of agreement.
[2]
The plaintiff sought leave under s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Act) to commence proceedings for damages for pain and suffering and pecuniary loss for injuries said to have been sustained in the course of her employment with Adairs Retail Group Pty Ltd on 11 June 2020. On 5 February 2026 I delivered my judgment and reasons therefor, granting the plaintiff leave to commence a proceeding to recover damages for pain and suffering and loss of earning capacity in respect of the impairment of the plaintiff's right wrist and her left elbow, but not in respect of any spinal impairment. I said I would hear the parties on the question of costs.
The parties have agreed the form of orders save for one issue: whether the plaintiff's counsels' brief fees should be certified for one day or two days. The plaintiff seeks certification for two days of brief fee, for both leading and junior counsel. The agreed rates are $5,500 per day for leading counsel and 50 per cent of that amount for junior counsel. The defendant submits that certification should be confined to one day. The dispute arises from the fact that the proceeding was listed in the reserves list on 9 December 2025, it was taken by me in the afternoon, but ultimately heard on 10 December 2025. And the issue between the parties appears to centre on whether the proceeding was "reached" on 9 December 2025, such that certification may extend to that day, or whether it was "not reached" so that certification should be confined to 10 December 2025.
The competing contentions may be briefly stated. The plaintiff seeks certification of two days of counsel's fee on brief. The plaintiff submits that the proceeding was listed in the reserves list on 9 December 2025 and was allocated that afternoon to be heard on 10 December 2025, such that the matter was "reached". Counsel was briefed and required to be available on both days, undertook preparation on 9 December 2025, and was unable to accept other work. The plaintiff further submits that neither the WorkCover (Litigated Claims) Legal Costs Order 2024 (Costs Order) nor any marking of the matter as "not reached" precludes certification for two days.
The defendant contends that counsels' fees should be certified for one day only, because the proceeding was not reached on 9 December 2025. The defendant contends on that day, the matter was listed in the reserves list, no judge was available to hear it, and it was not allocated for hearing. The matter was first heard on 10 December 2025, which the defendant submits was day 1 of hearing. The defendant points to the Costs Order, which provides that where a hearing date lapses because a matter is not reached, "Day 1" is the date on which the matter is next listed to be heard. On that basis, no costs are payable in respect of 9 December 2025. The defendant also says that under the indemnity principle and established practice in the County Court Common Law Division, counsel is not entitled to charge a fee for a day on which a matter is not reached. Accordingly, the Court should not certify a fee that counsel could not properly charge. The defendant argues that a matter is only "reached" when it is allocated to a judge and called on for hearing, which did not occur on 9 December 2025 and no formal order marking the matter "not reached" was required. The defendant argues that the parties' acceptance of the Court's offer to proceed on the following day amounted to an acknowledgment that the matter was not reached on 9 December 2025, and that it would be unjust to require the defendant to pay the costs of a hearing day on which the matter was not heard.
It may be accepted that clause 7 of the Costs Order permits recovery, as a disbursement, of the reasonable cost of counsel's fee (including any brief fee), calculated in accordance with the scale, subject to specified restrictions. The Costs Order includes a definition of "day 1 of hearing" that addresses circumstances where a hearing date lapses because a matter is not reached. But in the end the Court retains an overarching discretion in fixing and certifying counsels' fees, including the number of days for which a brief fee should be certified.
The proceeding was listed in the reserves list for 9 December 2025 and the parties were advised on 08 December 2025 that the Court would endeavour to allocate the matter as a priority and that counsel was required to be available on short notice. In the late morning of 9 December 2025, the parties were advised that a judge had indicated availability to hear the matter the following day and an associate to Judicial Registrar Lynch sought the parties' position on starting the hearing the following day. The parties accepted that arrangement, and the matter was listed and heard on 10 December 2025. In the early afternoon of 9 December 2025, my chambers contacted the parties to advise the matter had been listed at 10:30 am on 10 December 2025.
To the extent that there is debate about whether the matter was not reached on 9 December 2025, I prefer the defendant's construction of events even though registry did not mark the proceeding as not reached because a judge had taken the matter to start the following day. The contemporaneous communications record that the parties were advised on 9 December 2025 that a judge was available to hear it "tomorrow", being 10 December 2025. Implicit in that communications is that no judge was available to hear the matter on 9 December 2025. The proceeding was not called on for hearing before a judge on 9 December 2025. It remained in the reserves list until allocate to me and it was ultimately heard the following day. The plaintiff contends that the matter was "reached" because it was allocated for hearing the next day, and because there is no Court Connect notation or order marking it "not reached". That may be so but the contention places too much emphasis on form over substance.
I do not accept that the absence of a notation (or a formal order) is determinative of whether the matter was reached. Determination of that issue is one of substance: whether the case was reached for hearing on that date - 9 December 2026. The substantive questions are whether a judge was available on that day to hear the matter and whether the matter was called on for hearing.
The plaintiff relies on the Common Law Division Practice Note PNCLD 1‑2026, which provides that if a judge has not become available by 3:00pm (or earlier, in the discretion of the presiding judge or judicial registrar), proceedings "will be marked 'not reached' and refixed". That practice note is directed to the administration of the reserves list and the refixing of matters. But it does not follow that the absence of a "not reached" mark (if absent) converts a matter that was not called on for hearing into one that was reached. As a matter of fact and substance the proceeding was not reached on 9 December 2025: a judge was not available to hear it that day, and the parties accepted an arrangement for it to be heard on 10 December 2025. And so it was in substance relisted from its scheduled hearing on 9 December 2025 to 10 December 2025.
That said there are two sound reasons which combine to persuade me in the instant case to exercise my discretion to certify both Counsel for two days rather than one.
First, this is an unusual circumstance where both counsel were briefed for 9 December 2025 with the reasonable expectation that the matter would proceed on that day since the parties were advised by email from registry on 8 December 2026 that although the matter is listed in the reserves list on 9 December 2026 "the Court will endeavour to allocate the proceeding as a matter of priority". Second, once the parties agreed with the proposal that I would take the matter if it could start on the following day, both plaintiffs' counsel effectively abandoned the possibility of taking another brief on that day or the next. This was not a case where the matter was not reached on 9 December 2025 and listed or assigned to another date some weeks or months away. The matter was fixed for hearing on the next day.
Accordingly I consider that it is reasonable in the circumstances that I certify counsels' fees for 2 days at the rates agreed and I make the orders below.
[3]
The plaintiff has leave under s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Act) to commence proceedings for damages for pain and suffering and pecuniary loss for injuries sustained in the course of her employment with the defendant on 11 June 2020.
The defendant pay the plaintiff's costs of the proceeding, on a standard basis, to be determined by the Costs Court in default of agreement.
Certify for two counsel for the plaintiff:
[4]
(a) Leading counsel's brief fee at $5500 per day for two days of hearing and $550 per hour for two hours conference; and
(b) Junior counsel's brief fee at $2750 per day for two days of hearing and $275 per hour for two hours conference.