Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 2]
[2008] WASC 10 (S)
AREVA NC (AUSTRALIA) PTY LTD -v- SUMMIT RESOURCES (AUSTRALIA) PTY LTD [No 2] [2008] WASC 10 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 10 (S) | |
| Case No: | COR:112/2007 | ON THE PAPERS | |
| Coram: | MARTIN CJ | 31/01/08 | |
| 8/07/08 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | The application falls within the scope of the slip rule, therefore, the plaintiff's application for an order varying the costs order is allowed | ||
| B | |||
| PDF Version |
| Parties: | AREVA NC (AUSTRALIA) PTY LTD (ACN 003 337 782) SUMMIT RESOURCES (AUSTRALIA) PTY LTD (ACN 009 188 078) SUMMIT RESOURCES LTD (ACN 009 474 775) |
Catchwords: | Practice and procedure Costs Application to amend costs order Slip rule Whether slip rule applicable Not characterised as an afterthought Section 215(2) Legal Practice Act 2003 (WA) |
Legislation: | Legal Practice Act 2003 (WA) Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA) Rules of the Supreme Court 1971 (WA) |
Case References: | Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Gould v Vaggelas (1985) 157 CLR 215 Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S) Kokos International Pty Ltd v Libra Motors Pty Ltd (No 3) [2007] WASC 301 Strand Nominees Pty Ltd v Pennywise Smart Shopping Australia Pty Ltd (1991) 103 FLR 290 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 8 JULY 2008 FILE NO/S : COR 112 of 2007 BETWEEN : AREVA NC (AUSTRALIA) PTY LTD (ACN 003 337 782)
- Plaintiff
AND
SUMMIT RESOURCES (AUSTRALIA) PTY LTD (ACN 009 188 078)
First Defendant
SUMMIT RESOURCES LTD (ACN 009 474 775)
Second Defendant
Catchwords:
Practice and procedure - Costs - Application to amend costs order - Slip rule - Whether slip rule applicable - Not characterised as an afterthought - Section 215(2) Legal Practice Act 2003 (WA)
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Legislation:
Legal Practice Act 2003 (WA)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
The application falls within the scope of the slip rule, therefore, the plaintiff's application for an order varying the costs order is allowed
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiff : Minter Ellison
First Defendant : Clayton Utz
Second Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Gould v Vaggelas (1985) 157 CLR 215
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S)
Kokos International Pty Ltd v Libra Motors Pty Ltd (No 3) [2007] WASC 301
Strand Nominees Pty Ltd v Pennywise Smart Shopping Australia Pty Ltd (1991) 103 FLR 290
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1 MARTIN CJ: The plaintiff, Areva NC (Australia) Pty Ltd (Areva), applies for an order varying a costs order made in its favour on 3 September 2007 so as to include a direction that the limit which would be imposed by item 11 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA) be removed and for orders that its costs include matters which occurred subsequent to the making of the costs order on 3 September 2007.
2 At least in respect of that part of the orders sought which would remove the limit applicable to the taxation of costs awarded in Areva's favour, Areva accepts that the application must be brought within the 'slip rule', which in Western Australia is provided by Rules of the Supreme Court 1971 (WA) O 21 r 10, which states:
Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal.
The substantive merits of the costs application
3 Section 215(2) of the Legal Practice Act 2003 (WA) empowers the court to remove any limit upon the amount of costs allowable in respect of a particular matter imposed by a relevantly applicable legal costs determination if the court is of the opinion that the amount of costs allowable would be inadequate 'because of the unusual difficulty, complexity or importance of the matter'. In Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S) (at [11] - [21]), I expressed the view that the proper application of s 215(2) requires the court to undertake a two-stage test.
4 The first step in the process required by s 215(2) is to assess whether there is a fairly arguable case to be put before a taxing officer to the effect that the bill should properly tax out at more than the limit that would be imposed by the costs determination. Areva has filed written submissions identifying the substantive amount of work involved in the preparation, presentation and argument of the originating application which it brought. As the defendants do not challenge the proposition that it is fairly arguable that Areva's costs should be taxed at more than the limit imposed by the relevant item in the costs determination (item 11 - which would impose a maximum of $27,456), it is unnecessary for me to detail the work done. It is sufficient for me to observe that, having regard to the description of the work done, and my own knowledge of the case and the issues which were ventilated during its argument, I am satisfied there is a
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- fairly arguable case to be put before a taxing officer to the effect that Areva's bill should tax out at more than the amount of $27,456.
5 The second step in the process required by s 215(2) of the Legal Practice Act is to determine whether there is the required causal nexus between the arguable case to be put before the taxing officer and either the unusual difficulty, complexity, or importance of the matter. Again, Areva's submissions address in detail the reasons why it is said that this matter falls within each of the three categories specified by s 215(2) of the Legal Practice Act. As the defendants do not challenge Areva's assertion, it is unnecessary for me to go into those issues in detail, other than to observe that I am satisfied, based on Areva's submissions and my knowledge of the case, that Areva's application falls within each of the three categories, in that it was unusually difficult, complex, and of significant importance to the parties, and that those characteristics are causally related to the fairly arguable case to the effect that Areva's taxed costs should properly exceed the amount limited by the relevant costs determination.
6 Accordingly, the defendants do not substantially challenge the proposition that if an application had been made on 3 September 2007 for an order of the kind which is now sought, that application should have been granted. However, they oppose Areva's application to the effect that an order of that kind should now be made, on the basis that the application either does not fall within the slip rule, or alternatively, that if it does fall within the slip rule, the discretion conferred upon the court by that rule should not be exercised in Areva's favour.
The slip rule
7 It is important at the outset to observe that the purpose of the slip rule is to avoid injustice to litigants - see Gould v Vaggelas (1985) 157 CLR 215 at 274 - 275. As a provision intended to have the beneficial effect of avoiding injustice, its potential application should not be constrained by a narrow or restrictive approach to the circumstances in which it might be applied:
Nevertheless, the jurisdiction is one to be exercised sparingly, lest it encourage carelessness by a party's legal representatives and expose to risk the public interest in finality of litigation. (Gould above at 275)
8 It is clear that in this case, if the discretion conferred by the rule is not exercised, Areva will suffer an injustice by being denied an order that
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- it would have obtained had application been made at the appropriate time. The essential questions to be resolved are:
(a) whether Areva's application falls within the slip rule; and, if so,
(b) whether there are factors which militate against the exercise of the discretion in Areva's favour.
9 In relation to the first issue, the defendants submit that Areva's application for a special costs order is properly characterised as an 'afterthought' which falls outside the scope of the slip rule. The defendants rely in this regard upon observations in respect of 'afterthoughts' in Gould at 274 - 275 and Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 at 407.
10 However, there is nothing in those cases which would suggest that the characterisation of an application under the slip rule as an 'afterthought' takes the matter outside the scope of the slip rule. On the contrary, in each of those cases, it is clear that the only relevance of the characterisation of the application in that way was in relation to the exercise of the discretion under the slip rule.
11 The defendants also rely upon passages in the decision in Kokos International Pty Ltd v Libra Motors Pty Ltd (No 3) [2007] WASC 301 at [94], which suggest that characterisation of a realisation that an order requires correction as an 'afterthought' would take the matter outside the slip rule. In that case, Johnson J, relied upon observations made by Asche CJ in Strand Nominees Pty Ltd v Pennywise Smart Shopping Australia Pty Ltd (1991) 103 FLR 290 at 295. However, in that case Asche CJ concluded, on the particular facts there under consideration, that the omission of the plaintiff's solicitor to ask for a significant and substantial proviso to the final orders made in the case could not properly be characterised as an 'accidental slip or omission'. So, that case stands for the obvious proposition that the question which must be asked, in order to assess whether an application falls within the slip rule, is whether an error in the relevant judgment or order came about as a result of an accidental slip or omission. It does not stand for the proposition that there is some particular category of accidental slip or omission which, when recognised, results in a subsequent application being characterised as an 'afterthought' which falls outside the scope of the slip rule. It is also significant that Asche CJ observed, in the course of his reasons in that case (at 295):
Omissions to seek costs or interest can be true examples of oversight because they are usually a necessary part of the proceedings, and omission
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- to ask for them at the time when they should be sought can almost invariably be explained in only one way.
12 In this case, evidence has been given as to the circumstances which gave rise to the omission to seek an order pursuant to s 215(2) of the Legal Practice Act at the time the costs order was made in September 2007. That evidence establishes that Areva is primarily represented by solicitors and counsel based in New South Wales, who were not aware of the particular costs regime applicable in Western Australia at the time the costs orders were made. Western Australian counsel received the judgment of the court, but he was not counsel who had been engaged in the argument of the matter, and any failure on his part to address the question of whether or not a special costs order was required could, I think, be fairly characterised as an accidental slip or omission.
13 Accordingly, for these reasons, it appears to me to be clear that Areva's application falls within the scope of the slip rule.
14 In relation to the exercise of discretion under that rule, the defendants reiterate their submissions in respect of the characterisation of Areva's application as an 'afterthought' and point to the delay in the bringing of the application which is said to bring the administration of justice into disrepute, and to challenge the public interest in the finality of litigation.
15 The evidence to which I have referred establishes the circumstances which gave rise to Areva's accidental slip or omission. In my view, there is no substance in the proposition that the subsequent realisation of that slip or omission should properly be characterised as an 'afterthought', in the sense in which that term is used in the authorities to which I have referred, and which gives rise to a discretionary factor adverse to an applicant under the slip rule. In relation to delay, although the costs orders which are sought to be varied were made on 3 September 2007, they were not the last step in these proceedings by any means. Since those orders were made, the documents the subject of the proceedings were produced (in 62 lever arch folders) and inspected, and further issues arose between the parties in respect of the question of whether or not particular categories of documents fell within the terms of the earlier order, or, alternatively, ought be the subject of orders pursuant to a liberty to apply which was reserved to Areva. Those issues were not finally resolved until February 2008, and Areva's application in respect of a special costs order was foreshadowed within a month or two of the resolution of those issues.
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16 Therefore, it does not seem to me that Areva's delay in making its application can, in those circumstances, be characterised as undue or unreasonable, nor can it be said that Areva's application offends against the public interest in the finality of litigation.
17 Accordingly, as I am satisfied that Areva's application falls within the scope of the slip rule, that prejudice would be occasioned to Areva if the orders which it seeks are not made, and that there are no discretionary factors which significantly militate against the exercise of the powers conferred by the slip rule in Areva's favour, I propose to make the orders sought.
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