Plaintiff v Defendant

2 In this application, the plaintiff seeks to have the brief fees for senior and junior counsel fixed in the sum of $8,800 and $4,400 respectively. These amounts do not include conference fees. It was said by senior counsel for the plaintiff, that conference fees are payable at an hourly rate of 10% of the brief fee, and that it was not necessary for me to fix these amounts. Further, the amounts of $8,800 and $4,400 claimed on behalf of the plaintiff were said to be inclusive of circuit fees.

3 The application for fixing the brief fees for counsel is made pursuant to r 63.07 of the Supreme Court (General Civil Procedure) Rules 2005. There was no dispute that the Court constituted by a judge has the power to fix fees for counsel.

4 The application was made by the plaintiff on the basis that there have apparently been difficulties in agreeing and/or taxing such fees in a timely fashion in respect of other cases heard and determined on circuit in Shepparton, Wangaratta and Wodonga in the last twelve months. For present purposes, it is not necessary to go into the rights or wrongs of this state of affairs.

5 The plaintiff's application that I should fix any amount for counsel fees was strenuously resisted by the defendant. It was submitted by the defendant that the Costs Court has the necessary and relevant expertise to fix brief fees for counsel- and that a judge of the Court should not concern himself or herself with such matters. Further, it was submitted by the defendant that leaving the fixing of brief fees to the Costs Court meant that there would be a consistency of approach that might be lacking if individual trial judges took on this task.[1] Taken as general propositions, there is much to be said for these submissions. However, the fact that the Costs Court has expertise, and that its decisions might be more internally consistent with one another,[2] should not be allowed to interfere with justice being done between the parties in an individual case, in a fair, efficient and cost-effective way.

6 While in my view it is generally not desirable for judges to embark upon the process of taxation or fixing of fees, I am persuaded that there is merit in fixing the brief fees of the plaintiff's counsel on this occasion. This is because, broadly speaking, I think it is undesirable that country litigants (like the parties in the present proceeding), whose cases are heard on circuit, should then be routinely compelled to engage in processes of taxation that are ordinarily heard and determined in Melbourne. Further, if there is some sticking point which is preventing parties in civil cases on circuit in this region from agreeing questions of costs, then a judgment in the present matter on these issues may be of assistance in avoiding a multiplicity of proceedings or applications in other cases.

Section 134AB of the Accident Compensation Act 1985

7 This proceeding was governed by the operation of s 134AB of the Accident Compensation Act. Section 134AB(28)(b) of the Act provides that if a settlement or compromise is made in an amount not less than 90% of the plaintiff's statutory counter offer under sub-s 134AB(12) and more than the statutory offer of the defendant, then the defendant must pay the plaintiff's party and party costs. This is the situation in the present case.

8 I was told during the course of this application that no legal costs order has been made under s 134AG of the Act that applies to this proceeding. Additionally, I was told that there is no relevant litigated claims legal costs order that has been made pursuant to s 134AGA of the Act that applies to this proceeding. In these circumstances, s 134AB(29) of the Act has application to the present case.[3] Section 134AB(29) of the Act provides:

For the purpose of the taxing of costs in proceedings to which this section applies, any applicable scale of costs has effect as if amounts in the scale were reduced by 20 per cent.

Order 63 of the Supreme Court (General Civil Procedure) Rules 2005

9 Prior to 1 April 2013, Order 63 of the Rules provided for taxations to occur on a party and party basis, a solicitor and client basis, an indemnity basis or such other basis as the Court may direct.[4] On 1 April 2013, Order 63 was amended.[5] As part of the amendments made, the bases of taxation previously existing were replaced by costs to be taxed on a standard basis, an indemnity basis or such other basis as the Court may direct. Notwithstanding the repeal of the rules with respect to the party and party basis of taxation, no side suggested in this application that this affected the operation of s 134AB(28)(b) of the Act. This was no doubt because the concept of party and party costs predates the relevant rules - the concept being well known as encompassing all costs "necessary and proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed".[6]

10 The current Appendix A to the Rules setting out the Supreme Court scale of costs provides in Item 19(a) that, subject to Items 19(j) and 19(k), the fees to be allowed to junior counsel and senior counsel for appearances on trial are to be allowed up to a maximum daily fee of $5,000 and $7,500 respectively. These amounts are exclusive of GST.

11 Item 19(j) of Appendix A requires regard to be had to the criteria referred to therein in allowing a fee to counsel. Those criteria include the complexity of the matter, the difficulty or novelty of the question involved in the matter, the skill, responsibility and time and labour expended by the legal practitioner, the amount or value of money involved and the standing of counsel.[7] Item 19(k) provides for a discretion to allow fees in excess of scale.

12 The background of this proceeding is set out in the judgments of J Forrest J[8] and Williams J.[9] It is not necessary to set out those matters again. It is sufficient to say that I am persuaded that this proceeding was one of average complexity for a personal injury jury in this Court - necessitating, as it did, the briefing of senior and junior counsel on both sides.

13 Section 134AB(29) provides that for the purpose of the taxing of costs "any applicable scale of costs has effect as if amounts in the scale were reduced by 20 per cent". It follows that the amounts in Item 19(a) in Appendix A of $5,000 and $7,500 to which I have referred, must be reduced to $4,000 and $6,000 respectively. However, as the preamble to Appendix A notes, the charges in the scale are exclusive of any GST chargeable.

14 It should also be noted that s 134AB(29) only requires amounts in the scale to be reduced by 20 per cent. Section 134AB(29) does not provide for a general reduction of party and party costs by 20 per cent. Had Parliament intended such a result, then it would have been a matter of relative simplicity so to provide.[10] To the extent that the defendant submitted that so construing s 134AB(29) involved an excessively narrow approach, I reject that submission. There is no basis (either contextually or otherwise) for giving the words of s 134AB(29) any wider application than those words bear in their ordinary meaning. It follows that the amounts I propose to fix do not fall to be the subject of any further reduction under s 134AB(29) of the Act.

15 During the course of the application, senior counsel for the defendant did not contest the necessity of the plaintiff briefing senior and junior counsel in this proceeding. That said, and in any event, having considered the issues and complexities of this proceeding, I am persuaded that the briefing by the plaintiff of senior and junior counsel was necessary and proper for the attainment of justice. However, I am not satisfied that I should fix brief fees for counsel in an amount in excess of the amounts in item 19(a) of Appendix A (as reduced by the operation of s 134AB(29)). On a party and party basis (and inclusive of circuit fees[11]), having regard to all of the matters identified in Items 17 and 19(j) of Appendix A, I would fix senior counsel's fee on brief in the sum of $6,000 plus GST (making a total of $6,600) and junior counsel's fee on brief in the sum of $3,000 plus GST (making a total of $3,300).

16 There will be an order that the defendant pay the plaintiff's party and party costs to be taxed in default of agreement, with senior counsel's fee on brief for trial fixed at $6,600 and junior counsel's fee on brief for trial fixed at $3,300.

[1] Although it should be noted that notwithstanding my invitation to the defendant to make a submission as to the proper quantum of counsel's fees (see T5.11 on 10 April 2013), no figures were ever forthcoming from the defendant. One might have thought that' if consistency of approach was truly of concern to the defendant, then such an invitation would at least have resulted in a submission being made by the defendant that explained the approach taken in, and range of amounts determined by, the Costs Court. However, no such submission was ever made.

[2] A proposition I do not necessarily accept, having regard to the relative experience of the Common Law Division judges who sit (and have sat) on cases of the present kind (and more generally, who sit, and have sat, on the wide variety of cases heard in the Common Law Division).

[3] See s 134AG(4) and s 134AGA(4) of the Act.

[5] See Supreme Court (Chapter 1 New Scale of Costs and Other Costs Amendments) Rules 2012.

[6] Cf Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; (2007) 231 CLR 531.

[7] See further, Item 17(a) - (j) of Appendix A.

[8] Wadley v Ron Finemore Bulk Haulage Pty Ltd [2013] VSC 5.

[9] Wadley v Ron Finemore Bulk Haulage Pty Ltd (Ruling) [2013] VSC 102.

[10] See further, Jury v Tebbs Canvass Products Pty Ltd & Anor [2010] VSC 553 (Williams J).

[11] See further, item 19(i) of Appendix A which provides for circuit fees to be payable "based on current allowances as provided for in Schedule 1 to Chapter 1 of the Rules of the County Court". During argument I was informed that the current allowance under the County Court Rules is $460 (subject to any operation of s 134AB(29) upon that figure).