Sinclair & Anor v. Chandler MacLeod Services Pty Ltd [2012] VCC 1868 (26 November 2012)

Last Updated: 11 December 2012

IN THE COUNTY COURT OF VICTORIA

Revised (Not) Restricted

AT MELBOURNE
COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-10-04598

CATHERINE SINCLAIR & ANOR	Plaintiffs
v.
CHANDLER MACLEOD SERVICES PTY LTD	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2012
DATE OF JUDGMENT:	26 November 2012 (revised 28 November 2012)
CASE MAY BE CITED AS:	Sinclair & Anor v. Chandler MacLeod Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VCC 1868

REASONS FOR JUDGMENT

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Catchwords: Costs – Reference by a Judicial Registrar of the Costs Court – Certification of counsel’s fees.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Juebner	Stewart Peters Lawyers
For the Defendant	Mr G. Spiliotis	Rockwell Bates

HIS HONOUR:

1. Judicial Registrar Gourlay of the Costs Court has referred certain matters to me for my decision. They relate to Counsel’s fees in a trial I determined by reasons for judgment delivered on 29 September 2011([2011] VCC 1346).
2. The trial was conducted shortly after a change in the Court Rules and after judgment was entered in favour of the plaintiff, I declined to certify counsel’s fees, mistakenly believing that after 1 September 2011, that was a matter more appropriately left to the Costs Court.
3. Judicial Registrar Gourlay has asked me to determine counsel’s fees for the preparation for the trial and an advice given by senior counsel prior to trial. Judicial Registrar Gourlay in her memorandum to me, noted that, “It is possible that other items may also be referred”.

Mediation

4. Plaintiff’s counsel Mr Juebner has asked me to also determine the issue of counsel’s fees in respect of a mediation conducted in May 2011. Defendant’s counsel Mr. Spiliotis has submitted that as the matter was not referred for my decision, it would not be appropriate for me to determine it. Both he and Mr Juebner agreed that the Rules appeared to provide jurisdiction for both the trial judge and the Costs Court to determine matters under item 21 for counsel’s fees relating to a mediation.
5. I consider that it is probably better if the matter is left for final decision by the Judicial Registrar in the absence of a specific reference by her, or the agreement of the parties. However, it should be possible from the decisions I make in relation to the other matters referred for my determination, to adopt an approach to the issue of counsel’s fees for the mediation, consistent to the approach I have taken in relation to pre-trial preparation and advice.
6. If it were a matter for my decision, I would find it difficult to conclude that any of the items claimed in respect of counsel’s fees relating to preparation for the mediation and attendance at the mediation, were unreasonable or otherwise inappropriate to certify on a party - party basis as appropriately charged, notwithstanding that counsel had previous substantial involvement in the case.
7. In order for mediations to have every chance of success, it is important that significant preparation is carried out, particularly in a case like this. At that stage of the mediation, there were live issues between the plaintiff and defendant by way of claim and counterclaim and between the defendant and the third party (the third party being associated with the plaintiff), which required extensive consideration.

Preparation for Trial

8. In relation to preparation for trial, effectively 7 days preparation was conducted for a trial which was only ever anticipated to take 2-3 days and in fact took 2 days. The items included in the preparation for trial included considerable work on matters such as the preparation of a notice to admit, the review of the court book, preparation of submissions and involvement in the briefing of, and conferences with, an expert witness.
9. My recollection is that the submissions prepared by counsel were of particular value to the Court in the consideration of the matter, particularly as the issues raised were complex and I drew on those written submissions substantially in the preparation of my reasons for judgment.
10. The expert was not called at the trial. My recollection is that I accepted the submission of defendant’s counsel that essentially the issues raised by the expert were matters of calculation which could be included in counsel’s submissions. The substance of the expert report was presented by way of submission in the form of a spreadsheet.
11. This was also a matter of some significance in the decision because of the plaintiff’s submission that the proper interpretation of the agreement should depend upon the commercial realities, and in particular, the analysis of the financial effect of adopting competing interpretations. This analysis assisted me in the conclusions that I reached.
12. In the circumstances, even though the issues were complex, the case at trial was presented very efficiently. I consider that this was a case where the time spent in preparation ensured that the time at trial was kept to a minimum.
13. In circumstances where the actual fees charged by counsel are reasonably modest, compared with similar types of matters, it would be difficult to say that any particular item claimed as counsel’s fees for preparation was unreasonable. Mr Spiliotis did not refer to any particular items to support his argument that counsel’s fees were excessive, rather he referred to the total time that counsel had spent in preparation for trial.
14. In the circumstances, I consider that the fees charged by counsel are appropriate and that they should be allowed. This covers the first two matters referred to me specifically by Judicial Registrar Gourlay.

Senior Counsel’s Advice

15. The final matter relates to a memorandum of advice prepared by senior counsel following the mediation which had been unsuccessful in resolving the dispute. The advice dealt primarily with the plaintiff’s claim against the defendant and in a minor way also related to the third party claim. A copy of the memorandum of advice has been produced for my perusal.
16. In my view, it was not inappropriate or unreasonable for the plaintiff’s solicitor to obtain senior counsel’s advice at that time. The advice itself seems to deal comprehensively with the matters in dispute, in so far as they relate to the plaintiff’s claim. The issues raised accord with the manner in which the case was presented at trial and with the determination of the matter by me.
17. I do not consider that the fee charged by senior counsel is inappropriate or unreasonable. Bearing in mind the amount in dispute between the parties and the complexity of the legal and factual issues, the employment of senior counsel appears to have been entirely appropriate.

Orders

18. In the circumstances, I consider that I should grant the following certificates:
    1. In the absence of a specific request by the Judicial Registrar or an agreement by the parties that the item should be referred for my determination, I do not certify for Counsel’s fees in respect of the mediation conducted in May 2011, as these are matters the parties have agreed the Judicial Registrar has power to fix.
    2. Certify in relation to the fees claimed by Counsel prior to trial, excluding the fees claimed from 1 September 2011 in respect of which the parties conceded the Costs Court had jurisdiction, that the fees of $19,387 claimed for Counsel in the schedule are appropriate and reasonable.
    3. Certify in relation to the advice of senior counsel provided in June 2011, that the advice was both appropriate and reasonable and the fees charged by Senior Counsel of $5,280 should be allowed in full.
    4. The costs of the plaintiff of the reference by Judicial Registar Gourlay shall be determined as part of the plaintiff’s costs of the taxation at a rate to be determined by the Judicial Registrar.

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Certificate
I certify that these 4 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 26 November 2012 and revised on 28 November 2012.
Dated: 28 November 2012
Philippa Gilkes
Associate to His Honour Judge Anderson