Johnson v Fraser Coast Regional Council [2020] QDC 280 (6 November 2020)

CITATION:	Johnson v Fraser Coast Regional Council [2020] QDC 280
PARTIES:	CLINTON JAMIE JOHNSON (plaintiff) v FRASER COAST REGIONAL COUNCIL (defendant)
FILE NO/S:	138 of 2016
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	6 November 2020
DELIVERED AT:	Brisbane
HEARING DATE:	Written Submissions, 30 October 2020
JUDGE:	Loury QC DCJ
ORDER:	The defendant pay the plaintiff’s costs on the standard basis from 26 November 2015. The application to certify the costs of two counsel is refused.
CATCHWORDS:	COSTS – ASSESSMENT OF COSTS – whether to certify costs of two counsel
COUNSEL:	JM Sorbello for the plaintiff WDP Campbell for the defendant
SOLICITORS:	Morton & Morton Solicitors for the plaintiff Jensen McConaghy Lawyers for the defendant

[1] On 23 October 2020 I gave judgment for the plaintiff in a claim for damages for personal injury, arising from his employment with the defendant. The parties agree that pursuant to section 316 of the Workers’ Compensation Rehabilitation Act 2003 I should order that the defendant pay the plaintiff’s costs on the standard basis from 26 November 2015.

[2] The plaintiff seeks a further order certifying for two counsel in relation to the trial costs. That order is opposed by the defendant.

[3] Both parties have referred me to the statement of principle of Barwick CJ in Stanley v Phillips [1] where he said that determination of this issue depends upon whether the “the nature and circumstances of the case are such that the services of two counsel are required if the case is to be presented to the court in such a manner that justice can be done between the parties”. His Honour said:

“The important matter is to recognize that the question is not whether one member of the Bar will present the case better than another. The question for the taxing master is whether the case by reason of any of its features, the volume of material to be handled, the number or character of the witnesses to be examined, the nature or extent of the cross-examination required, the anticipated length of the case, the complexity of its issues of fact or of law, the extent of the preparatory research of fact or of law to be undertaken, the involvement of charges of fraud, or other serious imputations of personal reputation or integrity, the complexity of the required presentation and so on, make it reasonably necessary or proper that the services of two counsel be engaged in order that the court may do justice between the parties.”

[4] The plaintiff argues that the matter was listed for hearing for five days; the defendant denied liability and pursued a fraud case; and, there were complex questions of causation relating to what injury was suffered and the effect of that on the plaintiff, given his pre-existing injury.

[5] Whilst the trial took place over six days, that was done in order to accommodate the expert witnesses. Some delay was caused by the necessity for counsel and the expert witnesses to view surveillance footage taken at the instigation of the defendant. That footage had been the subject of an order by Horneman-Wren DCJ relieving the defendant from the obligation of disclosing it. Ultimately I found that footage provided support for the plaintiff’s case as to the nature and extent of his injury.

[6] Day five of the trial involved one witness whose evidence occupied half an hour. Day six of the trial involved three witnesses whose evidence occupied one and one-half hours. Closing submissions occupied approximately 45 minutes. Half a day of court time was lost during the course of the plaintiff’s evidence due to counsel for the plaintiff requiring time to review the plaintiff’s personnel file. That file had been disclosed by the solicitors for the defendant on or about 20 April 2015.[2] The file was referred to in the defendant’s List of Documents dated 8 August 2016 and in correspondence sent to the plaintiff’s solicitors in March 2017 and in January 2018. On day two of the trial the plaintiff’s solicitor informed the defendant’s solicitor, Ms Bainbridge-Brown that he was not in possession of the documents. Counsel for the plaintiff did not cast any blame upon the defendant for his not having seen the employment file. However his need to read the 450 pages of that file meant that a half day adjournment of the trial was required. Some of those records were then tendered in evidence in the trial in support of the plaintiff’s case. There were only eight witnesses called to give evidence in the trial with five of those being medical experts.

[7] Whilst it appears that the trial was a somewhat lengthy trial, in fact the actual evidence relied upon by both parties occupied less than three days of hearing time. It was the necessary adjournments that added to the length of the trial.

[8] I do not consider that the trial was unusually complicated or complex. Whilst liability was in issue, that turned on a consideration of the credibility and/or reliability of the evidence of the plaintiff. The defendant did not argue that if I was to accept the evidence of the plaintiff as to how he sustained his injury that his claim would nonetheless fail because he was unable to establish that the defendant failed to provide safe plant and equipment and a safe system or work. The real issue in terms of liability turned upon a factual issue.

[9] There was some complexity to the issue of quantum due to the existence of a pre-existing injury however I do not consider the matter to be unusually complicated. The injury sustained was to the knee and the pre-existing injury was to the knee.

[10] The plaintiff also relies upon what they describe as unsuccessful charges of fraud or other serious imputations on the personal reputation and integrity of the plaintiff. The defendant’s case as pleaded was that the plaintiff did not sustain an injury at his workplace on 5 September 2014 or that if he did, he caused or contributed to it by his own negligence (a case based on contributory negligence was abandoned by the defendant during the trial); or that his injuries were the consequence of a pre-existing condition or otherwise an exaggeration of the true extent of them. During the course of the trial, I ruled on an application brought by the plaintiff that the defendant not be entitled to pursue a case of fraud because he had not pleaded such.[3] I ruled against the plaintiff as the pleadings made clear that the defendant’s case was that the event giving rise to the injury did not occur and what was put to the plaintiff was consistent with that case. There were numerous inconsistencies in the various documents completed by the plaintiff in relation to his injury. The cross-examination of the plaintiff was focused upon those inconsistencies. It did not emerge until trial that Mr Bausch, the plaintiff’s supervisor had informed the plaintiff and his partner to insert an incorrect date into the relevant forms as to when the plaintiff reported the injury to him. Such an assertion had not been made by the plaintiff to the defendant’s investigators when he provided a statement. I do not consider that the manner in which the defendant’s counsel ran the trial involved “charges of fraud or other serious imputations of personal reputation or integrity” made against the plaintiff. The cross-examination only went so far as to attempt to make good an argument that the inconsistencies in the documentary evidence completed by or at the instigation of the plaintiff were such that I could not be satisfied as to the circumstances in which the injury was sustained.

[11] The defendant argues that standard costs involve allowance “for all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the plaintiff”.[4]

[12] Ms Sorbello, an experienced counsel herself, had conduct of the matter from at least November 2015. She settled the pleadings (save for the Further Further Amended Statement of Claim filed on day one of the trial). She appeared on applications heard on 29 November 2018 and on 6 January 2020. Mr Morton was briefed to lead her at trial.

[13] There was only one defendant and no competing cross-claims for contribution or indemnity. There were no novel issues of law involved. The expert witnesses were restricted to medical witnesses. The number of witnesses was small. I do not consider that the matter was so lengthy or complicated that it required the services of two counsel to achieve justice. I refuse the application to certify the cost of two counsel.

Queensland District Court Decisions

Johnson v Fraser Coast Regional Council [2020] QDC 280 (6 November 2020)