Junior Counsel Allowed on Review of Costs Assessors Certificate

Wiesac Pty Ltd v Insurance Australia Ltd (No 3) [2021] QSC 69

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT – PARTICULAR ITEMS – COUNSEL FEES – NUMBER OF COUNSEL – TWO COUNSEL

The Costs Applicant applied for a review of the Costs Assessors Certificate pursuant to rule r 742(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). In particular the Costs Applicant applied for a review of the disallowance fees of Junior Counsel’s fees for trial where Queens Counsel’s fees were allowed.

The Costs Applicant / Defendant was successful in in defending the claim by the Plaintiff/ Costs Respondent in (Wagners) Wiesac Pty Ltd & Anor v Insurance Australia Limited [2018] QSC 123 in respect to the compliance with the insurance contract. The Defendant was successful in its defence tht it was not liable for the payment for business interruption as a result of the damage to the building caused by the Brisbane flood.

It is noted that this review proceeded not withstanding that the Costs Assessor did not provide formal reasons in accordance with rule 738 of the Uniform Civil Procedure Rules 1999. However, his Honour followed Jovanovski v Tafcom Contractors Pty Ltd (in liq) (Supreme Court of Queensland, Dowsett J, 19 March 1993) when proceeding with the Review notwithstanding the failure to provide formal written reasons. His Honour referred to the letter from the Costs Assessor dated 13 October 2020 as constituting formal written reasons regarding the reasons to disallow Junior Counsel [47]

The Costs Respondent referred in its Form 61 objections that the Costs Applicant was only entitled to Queens Counsel as the Plaintiff only briefed Queens Counsel without junior. Further the Cost Respondent argued that there was not much contention in respect to the experts and the matters were not complex enough to warrant Queens and Junior Counsel. [29]

In response the Costs Applicant referred to o G E Dal Pont, Law of Costs (LexisNexis, 3rd ed, 2013) at [17.82] (the Costs Bible) where Dal Pont noted that the “importance of a case can also be measured by its significance to the financial position or reputation of one or more of the parties; the greater that significance the more appropriate it is that a prudent person may go in with two counsel”. [30] The Costs Applicant also referred to British Metal Corp Ltd v Ludlow Brothers (1913) [1938] Ch 787 noting that as the matter involved approximately one million dollars plus costs it was important to the parties. The Costs Applicant also noted the importance of the matter internationally to the general insurance industry in respect to engaging Queens and Junior Counsel. [31]

The Costs Applicant also noted that Junior Counsel focused on quantum [35] where Queens Counsel focused on Liability. Evidence on trial and Liability approximately took the same amount of time. [38)(a)].

The Costs Applicant submitted to the Costs Assessor that Junior Counsel should be allowed [36] as

“(a) significant issues of quantum remained in contest at the trial which was set down for three days and ran well into its third day;

(b) this warranted two counsel;

(c) the plaintiffs sought in excess of $1 million plus interest and costs and more than half of this amount (plus interest and costs) remained in contest at the trial;

(d) the defendant’s closing submissions in relation to quantum drafted by junior counsel addressed, among other things, heads of loss, the issues of rent and business interruption and spent some five pages out of a total of 22 pages of the defendant’s overall submission extensively critiquing the evidence given by the plaintiffs’ expert quantum witness Mr McDonald”

When allowing Junior Counsel His Honour noted:

1. “that the matter was factually and legally complex, the judgment was 54 pages long, demonstrating factual and legal complexity, there was a conflict of evidence, the material was voluminous and it was appropriate to engage two counsel on matters of significant importance to the insurance industry” [50]

2. “The issues in relation to liability and quantum identified by Davis J in paragraphs 17 and 18 of the judgment show that the matter was factually and legally complex” [51]

3. His Honour was required to resolve a conflict of evidence in relation to quantum concerning losses claimed for business interruption. [51]

4. Following Stanley v Phillips (1966) 115 CLR 470; [1966] HCA 24 the matter was sufficiently complex enough to warrant the engagement of Junior Counsel [51]

5. It was also noted that the matter was of sufficient importance to feature in the Australian Insurance Law Bulletin and was considered in an academic article in the Insurance Law Journal. [54]

Check for claiming for two Counsel:

☒ The matter involved complex issues regarding the Law and/or Fact

☒ The matter involved significant quantum ($1 million)

☒ Significant importance to a party and/or industry

☒ Counsels’ tasks can be delineated

Citations: Uniform Civil Procedure Rules 1999 (Qld), r 702, r 721, r 738, r 742 Jovanovski v Tafcom Contractors Pty Ltd (in liq) (Supreme Court of Queensland, Dowsett J, 19 March 1993), considered Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2015] QSC 122, applied Stanley v Phillips (1966) 115 CLR 470; [1966] HCA 24, applied W & A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527, cited