Plaintiff v Defendant

2 The claim was settled at a mediation on 13 October 2015 and, accordingly, when the matter came back before me on 14 October 2015, orders were sought by consent that the proceeding be dismissed and the defendant pay the plaintiff's costs. The residual issue to be resolved is that the plaintiff seeks that counsels' fees be determined by this Court as follows:

(a) Brief fee for senior counsel at $8,800 (inclusive of GST).

(b) Three hours of conferences at $880 per hour (inclusive of GST).

(c) One day's preparation at $8,800 (inclusive of GST).

(d) Junior counsel's fees fixed at 50 per cent of the above.

3 The defendant submitted that counsels' fees should be taxed by the Costs Court and made no submissions as to the amounts that should be allowed if I propose to fix the fees.

4 The fixing of counsels' fees by the Court is commonly referred to as "certification" and there is no question that it is within the discretion of the Court to determine the amount that a party shall be entitled to recover with respect to counsels' fees.[1]

5 The relevant rule is r 63.07 of the Supreme Court (General Civil Procedure) Rules 2005 which provides as follows:

(1) Subject to this Order, where by or under these Rules or any order of the Court costs are to be paid to a party, that party shall be entitled to taxed costs.

(2) Where the Court orders that costs be paid to a party, the Court may then or thereafter order that as to the whole or any part of the costs specified in the order, instead of taxed costs, that party shall be entitled to -

(a) a portion specified in the order of taxed costs;

(b) taxed costs from or up to a stage of the proceeding specified in the order;

(c) a gross sum specified in the order instead of taxed costs;

(d) a sum in respect of costs to be determined in such manner as the Court directs.

6 Rule 63.82(1) makes provision with respect to hearing and trial fees of counsel and provides:

(1) Subject to the provisions of any applicable scale, the fees payable to counsel to appear at a hearing or trial shall be at the discretion of the Costs Court which may fix such fees -

(a) on the basis of daily fees;

(b) as a lump sum fee covering the whole of the hearing or trial; or

(c) on such other basis as the Costs Court considers appropriate.

7 Item 19 of Appendix A to Chapter I of the Supreme Court (General Civil Procedure) Rules 2005 ('Appendix A') provides for counsel's fees to be allowed up to a maximum of:

(a) Senior counsel: $8,094 (excluding GST), which equates to $8,903.40 (including GST).

(b) Junior counsel: $5,396 (excluding GST), which equates to $5,935.60 (including GST).

8 Item 19(j) of Appendix A provides that, in allowing the fee to counsel, regard should be had to:

(a) the criteria set out in item 17, which are as follows:

(ii) the difficulty or novelty of the questions involved in the matter;

(iii) the skill, specialised knowledge and responsibility involved and the time and labour expended by the legal practitioner;

(iv) the number and importance of the documents prepared and perused, regardless of length;

(v) the amount or value of money or property involved;

(vi) research and consideration of questions of law and fact;

(vii) the general care and conduct of the legal practitioner, having regard to the instructions and all relevant circumstances;

(viii) the time within which the work was required to be done;

(ix) allowances otherwise made in accordance with this Scale (including allowances for attendances in accordance with item 1);

(b) the other fees and allowances to counsel in the matter;

(c) payments made for interlocutory work where that work has reduced the work which would otherwise have been necessary in relation to the brief; and

9 Item 19(k) provides that 'where costs are taxed pursuant to order of the Supreme Court, Counsel's fees in excess of scale are not to be allowed unless the Supreme Court otherwise orders...'[2]

10 Differing views have been expressed by judges of this Court as to the desirability of fixing fees for counsel. In Anic v Qenos,[3] T Forrest J concluded that it was in the interests of justice for the Court to fix the fees of senior and junior counsel in a matter that was listed for hearing in the Wodonga circuit but settled at mediation.[4] In Wadley v Ron Finemore Bulk Haulage (No 3),[5] Beach J was persuaded that there was merit in fixing the brief fees of counsel in circuit matters and explained his position as follows:

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.[6]

11 In Henwood v Nansor Australia Pty Ltd,[7] Macaulay J came to the opposite conclusion when a claim for damages arising out of an industrial accident was settled on the fourth day of hearing of a jury trial in Melbourne. His Honour did not consider that the hearing of evidence for two and a half days had given him 'a particularly unique insight into the nature of the complexity of the case that would make it appropriate - all other factors being considered - that I should fix the fees.'[8] Consequently, he declined to do so.

12 I consider the advantages of fixing fees for counsel are as follows:

(a) Disputes about the amount of the fees charged by counsel, which are recoverable from the other party, can constitute a substantial impediment to the resolution of the question of costs in total. The taxation of costs can take a substantial amount of time before being heard, involve substantial additional costs and requires the application of significant Court resources. The Court, by fixing counsel's fees, can resolve a significant source of dispute and facilitate the resolution of the question of costs between the parties. In my opinion, the Court's favourable consideration of any action, which may avoid or reduce the (often inordinate) time and expense involved in the taxation of costs, is consistent with the furtherance of the overarching obligations under the Civil Procedure Act 2010.

(b) In most cases, but in particular in claims for damages for personal injuries, the client wishes to know at the earliest opportunity the amount of costs which will be payable by him or her from the settlement moneys. Fixing the amount of counsel's fees which is recoverable from the other party has the following two effects:

(i) Prior to finally marking all fees, counsel (together with the solicitor and the client) is aware of the amount of any solicitor/client component in the fees as marked. This may affect the amount that counsel proposes to finally charge the client; and it provides an opportunity for an early resolution of any dispute about such charges.

(ii) The client is aware at an early time of the solicitor/client component of counsel's fees, which will be deducted from the settlement moneys.

(c) The determination of counsel's fees in open court should encourage consistency and transparency in the allowances of counsel's fees. Claims for personal injuries are usually settled on a 'plus costs' basis. If allowances of counsel's fees are able to be anticipated with reasonable accuracy, clients can be better advised, prior to settlement, as to the net settlement moneys receivable by them after the payment of solicitor/client costs.

13 In many instances, particularly if the trial of the proceeding had commenced, the trial judge may be in a superior position for the purposes of assessing the factors referred to in item 17 of Appendix A. This factor is particularly significant if counsel is seeking a fee in excess of the maximum provided in the Scale of Costs, under item 19(k); but it is not applicable in the case currently being considered by me.

14 On the other hand, I agree with the comments made by Macaulay J in Henwood that the Court should not generally assume responsibility for the assessment of costs.[9] For this reason, it will often not be appropriate for the Court to make an assessment of whether counsel's fees for preparation have been properly incurred. Further, the Court and the Costs Court should endeavour to apply an approach which results in consistent allowances.

15 However, the fixing of brief fees and, in many instances, fees for conferences, are issues which can be quickly and efficiently disposed of by a judge. I agree with the suggestion of Beach J that judges who sit in the Common Law Division usually have the necessary knowledge and expertise to assess the appropriate brief fees for counsel.[10]

16 For the reasons indicated above, I think it will often be appropriate for a judge to do so and, in my opinion, it is appropriate for me to do so in this case.

17 Mr Monti QC, counsel for the plaintiff, in support of his submission, explained the circumstances of this case. In summary, the plaintiff was the passenger in a motor vehicle which was driven by her then teenage daughter when it was involved in an accident caused by the defendant's motor vehicle crossing onto the incorrect side of the road. The circumstances were particularly tragic involving the death of the plaintiff's husband and injuries to her daughter. Liability was admitted but the plaintiff suffered serious injuries including a very serious psychological injury. She claimed substantial loss of earning and ultimately the claim was settled for a substantial sum.

18 Although the trial would have been an assessment, I have no doubt that counsel would have had to apply considerable care and skill in assessing the plaintiff's claim for pain and suffering, loss of earnings and loss of earnings capacity; and in advising the plaintiff about a proposed compromise. Overall, I would consider the claim to involve average complexity for a personal injury claim in this Court.

19 I have had regard to a number of prior cases where counsel's fees have been fixed and, in particular, to the following:

(a) In Skinner v Gattuso Transport Pty Ltd,[11] a matter that settled during trial in November 2014, Rush J certified two counsel, with a daily figure for senior counsel of $7,700 plus a circuit fee of $533 with junior counsel at 50 per cent plus the circuit fee.

(b) In Jackson v Escorted Outback Tours Pty Ltd,[12] a matter that settled after three days of trial in September 2015 in Ballarat, McDonald J certified fees for senior counsel at $8,800 inclusive of circuit fees with junior counsel at 50 per cent inclusive of circuit fees.

20 Having regard to the above matters and the maximum allowance under Appendix A, I propose to fix the fees (inclusive of GST) as follows:

(b) Three hours of conferences fixed at $770 per hour.

(c) I do not propose to fix fees for preparation given that the defendant had applied for the matter to be adjourned on the basis of non-provision of information; and I had indicated at the callover that the matter would not be brought on for trial prior to 4 November 2015. However, I am not disallowing counsels' fees for preparation but I consider that in the circumstances of this case the Costs Court would be in a better position to assess whether such fee was reasonably incurred.

(d) Junior counsel's fees will be allowed at 50 per cent of fees allowed to senior counsel.

[1] Henwood v Nansor Australia Pty Ltd [2013] VSC 655 [9]-[12]; Wadley v Ron Finemore Bulk Haulage (No 3) [2013] VSC 181 [3].

[2] Supreme Court (General Civil Procedure) Rules 2005 app A item 19(k).

[3] [2013] VSC 741.

[5] [2013] VSC 181.

[7] [2013] VSC 655 ('Henwood').

[9] Henwood [2013] VSC 655 [14].

[10] Wadley v Ron Finemore Bulk Haulage [2013] VSC 181 [5] n 2.

[11] (Unreported, Supreme Court of Victoria, Rush J, 6 November 2014).

[12] (Unreported, Supreme Court of Victoria, McDonald J, 25 September 2015).