Apache Energy Ltd v Alcoa of Australia Ltd [No 2]

[2013] WASCA 213 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	APACHE ENERGY LTD -v- ALCOA OF AUSTRALIA LTD [No 2] [2013] WASCA 213 (S)

CORAM : McLURE P

BUSS JA

NEWNES JA

HEARD	:	ON THE PAPERS
DELIVERED	:	18 OCTOBER 2013
FILE NO/S	:	CACV 95 of 2012 CONSOLIDATED WITH CACV 94 OF 2012 AND CACV 97 OF 2012 BY ORDER DATED 4 SEPTEMBER 2012

BETWEEN : APACHE ENERGY LTD

First Appellant

APACHE NORTHWEST PTY LTD

Second Appellant

HARRIET (ONYX) PTY LTD

Third Appellant

AND

ALCOA OF AUSTRALIA LTD
Respondent

ON APPEAL FROM:

Jurisdiction	:	SUPREME COURT OF WESTERN AUSTRALIA
Coram	:	LE MIERE J
Citation	:	ALCOA OF AUSTRALIA LTD -v- APACHE ENERGY LTD [2012] WASC 209
File No	:	CIV 1481 of 2011
Catchwords:

Costs - Whether an allowance should be made for two senior counsel

Legislation:

Nil

Result:

Allowance made for one senior counsel and one junior counsel but not two senior counsel

Category: B

Representation:

Counsel:

First Appellant	:	Mr J H Karkar QC & Mr G P Harris
Second Appellant	:	Mr J H Karkar QC & Mr G P Harris
Third Appellant	:	Mr K N Stewart & Ms A Richmond-Scott
Respondent	:	Mr D G Collins SC & Mr K J Lyons SC

Solicitors:

First Appellant	:	Middletons
Second Appellant	:	Clifford Chance
Third Appellant	:	Lavan Legal
Respondent	:	Tottle Partners

[2013] WASCA 213 (S)

Case(s) referred to in judgment(s):

Apache Energy Ltd v Alcoa of Australia Ltd [No 2] [2013] WASCA 213

[2013] WASCA 213 (S)

JUDGMENT OF THE COURT

1. JUDGMENT OF THE COURT: On 17 September 2013, this court refused leave to appeal and dismissed the appellants' appeals. See Apache Energy Ltd v Alcoa of Australia Ltd [No 2] [2013] WASCA 213.

2              The appellants had applied for leave to appeal from an interlocutory

decision of the primary judge, Le Miere J, in pending proceedings in the General Division of the Supreme Court. His Honour had dismissed the appellants' applications summarily to dismiss the respondent's claims against the appellants under the law of negligence for pure economic loss.

1. On 17 September 2013, this court made the following orders:

1.	Leave to appeal be refused
2.	The appeals be dismissed.
3.	Until further order, the court will not publish the Confidential Schedule to the reasons of Buss JA to any person or entity except the parties to the appeals.
4.	The appellants pay the respondent's costs of the applications for leave to appeal and the appeals to be taxed, if not agreed.
5.	By 4.00 pm on 26 September 2013 the respondent file and serve written submissions as to the basis on which the costs of the two senior counsel for the respondent should be taxed.
6.	By 4.00 pm on 3 October 2013 the appellants file and serve any written submissions in response.

1. Pursuant to Order 5, the respondent applied for this court to certify for two senior counsel in the appeal, alternatively for second counsel.

5              The appellants accept that the respondent should be entitled to claim

taxed costs for a senior counsel and a junior counsel in the appeal, but not
for two senior counsel.

The respondent's submissions

1. The respondent's submissions in support of its application are, in summary, as follows:

(a)	Mr KJ Lyons SC, the second senior counsel, was made senior counsel on 27 November 2012.
(b)	At the three-day hearing before the primary judge on 26 - 27 and 31 October 2011, Mr Collins SC appeared with Mr Lyons as his junior (and another junior, Mr De Young). The first and second

[2013] WASCA 213 (S)

JUDGMENT OF THE COURT

appellants were represented by two senior counsel, Mr Karkar QC and Mr O'Callaghan SC, and by junior counsel, Mr Harris. The third appellant was also represented by senior counsel, Mr Howard SC, and junior counsel, Mr Lockhart.

(c)	The respondent filed its written submissions in the appeal on 26 October 2012. Those submissions were prepared by Mr Collins SC, Mr Lyons and Mr De Young. At the time, Mr Lyons was a junior counsel.
(d)	Mr De Young is no longer briefed in the matter. His brief ended after the written submissions were filed.
(e)	In these circumstances, in addition to the ground of complexity, it was less expensive to retain Mr Lyons as Mr Collins' junior in the appeals, given his longstanding involvement in the matter, rather than brief new junior counsel.
(f)	In addition, the fact that a single day 'pleading appeal' resulted in a 76-page closely reasoned judgment of this court shows the matter was of sufficient complexity, particularly as to the law of vulnerability and causation and the inter-relationship of those principles with some express terms of the gas supply contracts, to justify the involvement of two senior counsel on behalf of the respondent.

The merits of the application

7              Although Mr Lyons had been appointed senior counsel when this

court heard the appeals, he was briefed in the appeals as junior counsel to
Mr Collins SC.

8              Mr Lyons assisted Mr Collins in the preparation of the respondent's

written submissions and acted in the role of junior counsel at the hearing. Mr Lyons did not prepare separate written submissions and he did not have a speaking role at the hearing. Accordingly, notwithstanding Mr Lyons' appointment as senior counsel during the course of the appeal proceedings, his role in the appeals was that of junior counsel rather than senior counsel.

9              It is true that the appeals raised issues of legal complexity. Also, the

respondent was entitled to engage counsel of its choice. However, this court should not order the appellants, as the unsuccessful parties, to pay the respondent's taxed costs of two senior counsel unless the engagement

[2013] WASCA 213 (S)

JUDGMENT OF THE COURT

of two senior counsel was reasonably necessary for the adequate
presentation of its case.

10            We are not persuaded that, by reason of the complexity of the issues

raised in the appeals or for any other reason, it was reasonably necessary, for the adequate presentation of the respondent's case, that two senior counsel be retained.

1. In the circumstances, an allowance should be made for one senior counsel and one junior counsel, but not two senior counsel.