In the County Court, certification of costs above scale is often important. The maximum fee specified in the scale of costs for expenses of an expert witness was about $1,800 at the time relevant to Astbury v Wood [2009] VSCA 126; 23 VR 302. There, a senior neurosurgeon had given viva voce evidence on behalf of a plaintiff for about 2 hours in Warrnambool. He had been driven to and from Melbourne as well on the same day. He charged $8,800. The trial judge certified the plaintiff’s party party costs, insofar as they related to witness expenses for this witness, at $8,800 on top of a generous travel allowance ($660). The defendant appealed, contending that the County Court did not have a discretion to certify witness’s expenses above the amount provided for in the scale. After a great deal of statutory interpretation, Justice of Appeal Ashley, with whom Justice of Appeal Redlich agreed, held that the County Court Act, 1958 and its rules of procedure, did allow the trial judge to certify for witness expenses above scale, and though certifications in such sums as was allowed in this case should not be commonplace, the Court of Appeal was not prepared to interfere with the trial judge’s discretion at first instance.
