Plaintiff v First Defendant

2 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.

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

4 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.

5 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.

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

7 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 fees requires adjudication and such matters might be capable of agreement in the context of an overall claim for legal costs in a proceeding.

8 It was submitted by the first defendant that certification of counsel's fees is not usually ordered in judicial review proceedings in the Judicial Review and Appeals List, despite there being an acknowledgement that in recent times there has been a greater frequency of application for certification of counsel's fees in proceedings for the judicial review of medical panel opinions. It was further noted that certification is not usually ordered in the Court of Appeal.

9 The plaintiff pointed to a number of cases in which certification was ordered including Withers v Chalmers Industries Pty Ltd[2] and Voss v Downes-Brydon (No 2).[3] However, the first defendant referred to a number of cases in which the Court declined to order certification including in Steel Smith Engineering v McPhee & Ors[4] and Miranda v Hendercare[5] and noted that even in Withers it was observed that in another recent matter Incerti J had determined not to certify counsel's fees.[6]

10 In Henwood v Nansor Australia Pty Ltd,[7] Macaulay J refused to certify counsel fees following the settlement of a common law claim for damages arising from industrial accident. His Honour did not accept that the proceeding was particularly complex, or that his Honour had a unique insight into the nature and complexity of the case such that it was appropriate for him to fix counsel's fees. A similar conclusion was drawn by Incerti J in Bucic v Arnej Pty Ltd (No 3)[8] and in Steel Smith Engineering.[9]

11 In O'Brien v Greater Bendigo City Council; Lea v Fosterville Gold Mine (costs ruling)[10] J. Forrest J summarised the relevant principles:

(a) The Court possesses an overriding discretion in relation to an award of costs, including allowances for counsel's fees.

(b) The Costs Court is empowered by the Supreme Court (General Civil Procedure) Rules 2015 (the 'Rules') to fix counsel's fees for attending a hearing or trial as 'subject to the provision of any applicable scale'.

(c) There is no uniform practice in the Court in relation to certification of counsel's fees. It is open to a judge to refer questions of this nature to the Costs Court in these circumstances. Alternatively, a judge may consider it appropriate to resolve the issue at or around the time of trial.

(d) Some judges certify for two counsel; some certify for two counsel and fix the brief fee. Others prefer to let the Costs Court sort the issue out. It is entirely up to the judge.

(e) The Court's discretion in fixing a fee is to be exercised subject to a number of factors, such as: the complexity of the matter, the extent of the legal practitioner's involvement in the matter, and any specialised knowledge or skill required.

(f) The Supreme Court scale of costs 2015 - 2016 makes provision for counsel's fees for certain types of work. Whilst this scale cannot fetter a judge's discretion in the fixing of costs, it is regarded as a cogent guide to the appropriate allowance. (citations omitted)

12 I consider that it is appropriate in this case to make an order certifying counsel's fees in the amounts claimed for the following reasons.

13 There is no legal bar to the Court certifying counsel's fees in this circumstance and the Court's discretion to award costs extends to this question.[11]

14 The medical panel's Opinion under review is a sub-part of a potential personal injury proceeding and personal injury proceedings are matters where certification commonly occurs.[12]

15 I consider that the fixing of counsel's fees goes a significant way to quantifying the costs payable to the plaintiff and any step which is likely to avoid or reduce the effort and expense involved in a taxation of costs dispute is consistent with the overarching purpose of s 7 of the Civil Procedure Act (2010) (Vic) 'to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute'. I do not agree with the first defendant's submission that the certification of counsel's fees does not or cannot lead to earlier finalisation of the overall claim for costs. In my view, it will go a significant way in advancing that settlement particularly given that counsel's fees sought do not include other claims for preparation by counsel.

16 The costs sought for counsels' fees are consistent with the range of fees provided for in other matters of a similar ilk and are not excessive. The plaintiff makes an application for costs of preparation and only requests certification for the date of hearing.

17 Item 19 of Appendix A to the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('the Rules') provides that counsel's fees may be allowed at trial up to a maximum of $9,500 for senior counsel and $6,340 for junior counsel. In allowing a fee to counsel, regard is to be had to:

(a) all of the criteria in Item 17;

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

(c) payments made for interlocutory work; and

(d) the standing of counsel.[13]

18 The criteria in Item 17 of Appendix A of the Rules include:

(a) the complexity of the matter;

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

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

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

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

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

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

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

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

(j) any other relevant matter.

19 I accept the submission made on behalf of the plaintiff that this is not a case where the assessment of counsel's fees is complex. There are other examples of similar matters in which there has been certification of counsel's fees for Mr Uren QC and a similarly experienced junior counsel in proceedings of the same nature i.e. being judicial review of a medical panel at the rate of $8,800 inclusive GST for one day of hearing and his junior at half of this.[14]

20 There is no doubt Mr Uren QC is preeminent in his experience in this field and junior counsel appropriately experienced. The proceeding involved unusual or novel questions of law and of statutory interpretation which required careful and sophisticated argument.

21 In terms of the quantity of material before the Court, the amended joint list of authorities comprised 858 pages and the joint court book 138 pages - a not insubstantial amount of material. I do not agree with the submissions by the first defendant that the submission of the plaintiff related only to the size of, or amount of material. I consider the content of the material including its size and criteria relevant under item 17(d) of Appendix A of the Rules.

22 I note also that the first defendant was similarly represented by very experienced senior and junior counsel.

23 Insofar as the matters to which the Rules identify as being relevant to counsel's fees these matters above support a certification for counsel's fees in the amounts claimed.[15]

24 I consider that the amount claimed for counsel's fees in all of these circumstances justifies certification in the amounts claimed. I note that whilst the amounts are at the higher end they are not at the maximum allowable and all of the circumstances including in particular the seniority of the practitioners, their expertise in this area, and the novel questions of law involved suggest that the quantum is appropriate.

25 The Court will make orders that the first defendant pay the plaintiff's cost of the proceeding on a standard basis and certifies counsel's 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.

[2] [2020] VSC 694 [6]; [8] (Richards J) ('Withers').

[3] [2020] VSC 863 [7] (Ginnane J).

[4] [2020] VSC 571 (Incerti J) ('Steel Smith Engineering').

[5] Order of Keith JR in Miranda v Hendercare Pty Ltd (Supreme Court of Victoria, S ECI 2020 00260, 17 November 2020).

[6] Withers (n 2) [8]; O'Brien v Greater Bendigo City Council; Lea v Fosterville Gold Mine (costs ruling) [2016] VSC 33.

[7] [2013] VSC 655 [17]-[19].

[8] [2019] VSC 410.

[9] Order of Incerti J in Steel Smith Engineering v McPhee & Ors (Supreme Court of Victoria, S ECI 2019 05089, 16 September 2020).

[10] [2016] VSC 33 [13].

[12] See Withers (n 2) where Richards J made a similar point at [14].

[13] Supreme Court (General Civil Procedure) Rules 2015 (Vic) Appendix A - Supreme Court Scale of Costs Item 19(3).

[14] Rafati v Victorian WorkCover Authority [2020] VSC 444. See also 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, [4b]. See also Withers (n 2).

[15] Supreme Court (General Civil Procedure) Rules 2015 (Vic) Appendix A - Supreme Court Scale of Costs Item 17(a)-(d); (f)-(j).