Crameri v Hall [1991] QSC 286

IN THE SUPREME COURT OF QUEENSLAND Before Mr. Justice G.N. Williams BETWEEN: TERRENCE ALBERT CRAMER! No. 328 of 1984 (by his next friend ALBERT CRAMER!) DOREEN IDA HALL as Executrix of NOEL LYSTER HALL (deceased) JUDGMENT - G.N. WILLIAMS J. Plaintiff Defendant Delivered the 3~- day of October, 1991. CATCHWORDS: Costs - party and party taxation - whether two counsel should be allowed - review of Taxing Master's decision - Hickey v. Clibborn (1964) Qd. R. 432 and Stanley v. Phillips 115 C.L.R. 470 considered and applied - complex and unusual case - two counsel allowed. Counsel: Solicitors: Mr. R.R. Douglas Q.C. and McDougall for Appellant. Mr. Perry for Respondent. Lyons for Appellant. Flower & Hart for Respondent. Hearing date: 20th September, 1991. -- 1 of 12 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: TERRENCE ALBERT CRAMERI No. 328 of 1984 (by his next friend ALBERT CRAMERI) DOREEN IDA HALL as Executrix of NOEL LYSTER HALL (deceased) JUDGMENT - G.N. WILLIAMS J. Plaintiff Defendant Delivered the day of October, 1991. The plaintiff has appealed pursuant to O. 91 r. 119 against the decision of the Taxing Master overruling an objection with respect to his decision on certain items in a party and party bill. Initially the summons sought a review of the decision with respect to a number of objections taken pursuant to O. 91 r. 117, but all were abandoned save objection number 7 which related to a number of items in the bill dealing with the retainer of two counsel for the trial. There was reference in the reasons of the Taxing Master when dealing with the objections to the brief delivered to counsel and to the report of Dr. Cameron. It seems clear that those two documents were before him, though they could not be located on the file. In consequence (relying on O. 91 r. 120 if necessary) I admitted each of those documents as an exhibit. -- 2 of 12 -- 2 The Taxing Master has given very full and well reasoned answers to the objections and in consequence it is necessary to give careful consideration to the basis upon which this Court can review the decision. Further, the action giving rise to the taxation was a somewhat unusual one and it is necessary to say something about it. I propose to deal with the principles on which this Court may review such a decision of the Taxing Master, to the principles relevant to the allowing of two counsel on a party and party taxation, and to make some observations on the litigation, before considering the reasons of the Taxing Master for his decision. It was recognised by the Full Court in Hickey v. Clibborn (1964) Qd. R. 432 that an appeal from a decision of the Taxing Master is an appeal from the exercise of a discretion. In consequence an appeal can only be allowed if the matter came within the range of circumstances entitling an appellate tribunal to review the exercise of a judicial discretion. The court in that case at 446 expressly cited and applied the statement by Kitto J. in Australian Coal and Shale Employees' Federation v. The Commonwealth (1953) 94 C.L.R. 621 at 627. There was therein reference to "acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts." Further "the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellant court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance." -- 3 of 12 -- 3 I turn now to the considerations which are relevant when considering whether or not the retainer of two counsel should be allowed by a Taxing Officer. In Hickey v. Clibborn it was laid down ( at 445) that "the propriety of the decision must be determined by reference to the state of affairs which obtained when the decision was made" - that is, the decision to retain two counsel. But Lucas J. went on to observe "that that does not mean that he is not allowed to look at all at what happened at the trial. In a case such as this, in which the question is whether it was reasonable to brief two counsel, the Taxing Officer's duty, as I take it, is to put himself, so to speak in the position of a prudent solicitor delivering the briefs and to ask himself.what such a solicitor would foresee as being likely to happen in various respects. For example, he might ask himself what, on the information available, would be the probable length of the trial; whether the issues of fact were simple or complex; whether there were difficult questions of law involved or likely to arise; whether there was likely to be a substantial conflict of evidence, leading to the need for the services of a more than ordinarily competent cross-examiner. . It seems to me that what happened at the trial may be used by the Taxing Officer as a useful check upon the foresight which the solicitor showed when he delivered the briefs." Other authorities touching upon the Taxing Officer's approach to the question of two counsel are Kroehn v. Kroehn (1912) 15 C~L.R. 137, Stanley v. Phillips (1966) 115 C.L.R. 470, (especially at 479-80, and 485-6), Balmaha Pty. Ltd. v. Jorgensen (unreported, Dowsett J., No. 998 of 1983), and Orchard v. -- 4 of 12 -- 4 Carswell (unreported, Senior Master Horton Q. C. , No. 3 58 of 1989, j udgmen t delivered 6 th November, 1 9 8 9 ) . Each of those four dec.isions was ref erred to by the Taxing Officer in his answers. Generally those authorities support the proposition that the relevant question to ask is whether the plaintiff's advisers might reasonably have regarded the matter as _calling for skill and experience beyond that of the junior bar. In that regard each of the authorities recognise that the complexity of the issues of fact and law, the probability of conflict of evidence requiring detailed and careful cross-examination, the nature of the case, and its importance bearing in mind the desirability of attaining justice are all relevant matters for consideration. The plaintiff in this case was born on 10th February, 1963. He was taken by his mother to see a general practitioner, Dr. Hall, whose estate is the defendant, on 10th April, 1963. The doctor prescribed a particular dosage of the medication Eumydrin. After the first dose the plaintiff became seriously ill and was taken to the Royal Children's Hospital where a diagnosis of Atropine poisoning was made. All of the medical evidence pointed to the fact that the defendant had prescribed a larger dose of the drug than was called for given the age of the plaintiff, and that an overdose of the drug would cause Atropine poisoning. Subsequently when the plaintiff was about six months old epilepsy was detected, and further medical examination revealed that the baby was severely mentally retarded, blind, and deaf. There has been no significant change in the medical condition as the plaintiff grew older. As an -- 5 of 12 -- 5 adult he is totally incapable of looking after himself, and has no earning capacity. The paediatricians who treated the plaintiff in the Royal Children's Hospital in 1963 appear to have expressed the view that his present condition was the result of the Atropine poisoning, though they conceded that such drastic consequences had not previously been documented with respect to that poisoning. The action claiming damages against the doctors estate was not commenced until 9th February, 1984, and the matter came on for trial early in 1990. No relevant admissions were made by the defence in pleadings, and the plaintiff requested trial by jury. Between 1984 and 1990 various medical reports had been received by the plaintiff's legal advisers. Eminent specialists such as Dr. Sutherland (neuro-physician) and Dr. Toakley (neuro-surgeon) suggested either no link between the Atropine poisoning and the plaintiff's present condition or only that such link was a remote possibility. Those doctors appeared to prefer the view that the plaintiff suffered from West's syndrome or some form of encephalopathy in the first year of his life which resulted in his present condition. A number of doctors did not rule out entirely the Atropine poisoning as a cause, and that, of course, was the opinion of the paediatricians. It was against that background that the matter was set down for trial, and the solicitor had to give consideration to the briefing of counsel. The plaintiff's solicitor clearly took the view that experienced senior counsel was required if the plaintiff was to succeed in convincing a jury that the defendant had been negligent and that -- 6 of 12 -- 6 that negligence was a cause of his present condition; the task of so convincing the jury was complex and difficult given the fact that there was weighty medical opinion to the contrary of • I the plaintiff's .contention. The real question for the Taxing Officer was whether a prudent person would have arrived at that decision or (in other words) whether it could be said that the plaintiff's advisers acted reasonably in so deciding - "whether the case was one which the plaintiff's advisers might reasonably have regarded as calling for skill and experience beyond that of the junior bar." It should also be noted that after senior counsel was retained, conferences were held with a number of the doctors who had furnished reports, and a number of additional reports were obtained. Some of the additional reports were obtained in consequence of the oral advice of senior counsel. The trial was due to commence on 18th April, 1990, and on 12th April, 1990, after discussions between senior counsel on either side, the action was compromised upon terms that the defendant pay to the plaintiff $25,000.00 plus taxed costs. That settlement was sanctioned by the Master on 18th April, 1990. Clearly settlement at that figure reflected what was seen as the plaintiff's chances of success if the action went to trial before the jury. If the plaintiff succeeded in establishing causation then the award would have been very large. The components for economic loss and the cost of care could well have taken the award well above the $500,000.00 mark. In arriving at the settlement counsel had to consider what, given the conflicting medical evidence, were the plaintiff's chances of securing such an award from the jury. -- 7 of 12 -- 7 I turn now to the reasoning of the Taxing Officer in his answers to objection number 7. As I have already noted he referred to the cases dealing with the test to be applied in determining whether two counsel should be allowed on a party and party taxation, and he correctly directed himself in that regard. He also correctly noted that the question whether two counsel should have been employed must be considered in the light of how the matter stood when counsel was briefed. In this case the briefs were prepared in November 1989 but not formally delivered until early January 1990 by which time the matter had been set down for trial for three days commencing 18th April, 1990. He then referred to oral advice from counsel early in 1990 as to what further evidence should be sought, particularly in the form of more favourable expert opinions from medical practitioners. He also referred to conferences had with Ors. Sutherland and Toakley early in April. He then went on: "In my view if the solicitors felt that this advice was warranted then it would have been prudent to have obtained it prior to the decision by the plaintiff's next friend as to the briefing of two counsel for the trial. This would have allowed him to have given the question proper consideration with full knowledge of his position .... From the Notice of Objection and from counsel's submissions to me it appears that the prime factors which are said to necessitate the employment of senior counsel are: the establishment of a link between the initial poisoning and the conditions subsequently suffered by the plaintiff, and secondly, the conflicting medical evidence. Counsel elaborated on this by stating that the views of Ors. Brand and Frazer were sympathetic to such a link and Ors. Sutherland and Cameron not so. Dr. Cameron's report was not obtained until well after counsel had been briefed and therefore should not form any part of my considerations on this point. . .. However the field of expertise necessary to consider such a link is clearly that of neuro-surgeons and -- 8 of 12 -- 8 neuro-physicians. Dr. Toakley (neuro-surgeon) provided the plaintiff's solicitors with a report dated 21st February, 1984 in which he expresses the opinion that it is a remote possibility. Dr. Sutherland (neuro-physician) provided reports for the plaintiff dated 1st February, 1986 and 10th March, 1987 and in his opinion there is clearly no connection .... The potential claim was said to be great however one must look at this at the time counsel was briefed and in the light of what the plaintiff could realistically expect to recover and in my view this could not have been expected to be great." It is not, in my view, necessary to quote further from the answers to objections, though, as I previously said, they were carefully prepared. The passages I have quoted are sufficient to demonstrate the error in the reasoning. Whilst, as Hickey v. Clibborn establishes, it is proper to check the reasonableness of the foresight in briefing two counsel by what happened at the trial, one cannot allow the outcome of the trial to determine the question in issue. In expressing the conclusion that the plaintiff could not realistically have expected to recover a "great" amount the Taxing Officer was, in my view, unduly, if not solely, influenced by the outcome of the trial. I cannot see on what other grounds he could have arrived at that opinion. Further, I do not know on what basis he arrived at the conclusion that "the field of expertise necessary to consider such a link is clearly that of neuro-surgeons and neuro-physicians" and not, at least to some extent, that of paediatricians. He appears to have arrived at the conclusion that the evidence of the paediatricians ( in particular Drs. Brand and Frazer) would not have carried any weight at all with the jury. That was really the difficult and complex question which, in my view, clearly called for consideration by senior counsel. -- 9 of 12 -- 9 Given the enormity of the plaintiff's claim if successful, what was the likelihood of the jury accepting the evidence of Ors. Brand and Frazer - which could not be totally excluded by Dr. Toakley - against the preferred opinion of Dr. Toakley and the views of Drs. Suthe.rland and Cameron. A mere perusal of the medical reports as they appear in the brief does not enable one to make such a judgment. Such a fine judgment can only be made in the light of forensic experience and an assessment (partly derived from conferences) as to how each of the doctors would impact upon the mind of a reasonable juror. Also, I cannot understand the Taxing Officer's reason for rejecting Dr. Cameron's report from the material for his consideration. It is true that that report was obtained after senior counsel was retained, but it did not really introduce any new consideration. It was apparently obtained in order to see what that eminent doctor's view was, and it would appear that it was obtained on the advice of counsel. It is not possible in the circumstances to say that if Dr. Cameron's report had been obtained prior to briefing senior counsel the position would have been such that two counsel would not have been justified. The plaintiff still had the views of Dr. Brand and Dr. Frazer who had been involved in the treatment of the plaintiff in 1963 and whose opinions could not be dismissed lightly. In all of the circumstances I have come to the conclusion that when carefully analysed the answers to objections show that the Taxing Officer acted on wrong principle, gave weight to extraneous matters, failed to give sufficient weight to relevant considerations, and furthermore the result he arrived at was so -- 10 of 12 -- 10 unreasonable that there is a proper basis for the appellate court to intervene. Given all of the matters to which I have referred I have come to the conclusi~n that this was clearly a case where the plaintiff acted reasonably and prudently in engaging two counsel; the issues were so complex and novel that for that reason alone the retainer of two counsel was justified. The fact that in the end the action was settled for $25,000.00 plus costs does not make the initial decision unreasonable. I am comforted in coming to that conclusion by the consideration (which is not relevant on the question whether or not the original decision was reasonable) that the defendant regarded the retainer of senior counsel as necessary to protect her interests given the nature of the litigation. It would appear that initially there was no point taken by the respondent with respect to the quantum of senior counsel's fees if the retainer was allowed. Having decided that he should disallow two counsel, the Taxing Officer looked at junior counsel's fee and reduced it from the amount claimed. The respondent argued that if two counsel were allowed then the senior's fee should be fixed having regard to the amount already allowed by the Taxing Officer for junior counsel' s fee. I am not persuaded that that is the correct approach. Once it is accepted that the retainer of two counsel should be allowed, and there has been no challenge in the first instance to senior counsel's fee, then senior counsel's fee should be allowed at the amount claimed, and the junior should be entitled to two-thirds thereof. I would therefore order that objection number 7 in the objections filed on behalf of Terrence Albert Crameri be allowed -- 11 of 12 -- 1 1 in relation to the finding by the Taxing Officer as to the issue of party and party costs. I would also order the respondent to pay the applicant's costs of and incidental to this application to be taxed. -- 12 of 12 --