Aron Steven Whyte an infant by his next friend and Administrator Dawn Whyte v Jodrell

[2002] WADC 3

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   ARON STEVEN WHYTE an infant by his next friend and Administrator DAWN WHYTE & ANOR -v- JODRELL [2002] WADC 3

CORAM:   COMMISSIONER GREAVES

HEARD:   1 NOVEMBER 2001

DELIVERED          :   17 JANUARY 2002

FILE NO/S:   CIV 4834 of 1998

BETWEEN:   ARON STEVEN WHYTE an infant by his next friend and Administrator DAWN WHYTE

First Plaintiff

DAWN WHYTE
Second Plaintiff

AND

GEOFFREY ANDREW JODRELL
Defendant

Catchwords:

Costs - Application for leave to compromise involving unusual complexity - Powers of court and taxing officer - Increase of limits prescribed

Legislation:

Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996

Legal Practitioners (Supreme Court) (Contentious Business) Determination 1999

Rules of the Supreme Court, O 66 r 12, O 66 r 13

Result:

Application for special orders granted

Representation:

Counsel:

First Plaintiff                :     Mr D J Garnsworthy

Second Plaintiff            :     Mr D J Garnsworthy

Defendant:     Mr J G Staude

Solicitors:

First Plaintiff                :     Mayberry Hammond

Second Plaintiff            :     Mayberry Hammond

Defendant:     John G Staude

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

Collins v Westralian Sands Ltd (1993) 9 WAR 56

Case(s) also cited:

CAI Fences Pty Ltd v A Ravi (Builders) Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 8740; 26 February 1991

Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400

Lewandowski & Ors v Lovell, unreported; FCt SCt of WA; Library No 960310; 14 June 1996

Schmidt v Gilmour (1988) 2 WAR 219

Tenbohmer v Eden (1992) 6 WAR 366

1. COMMISSIONER GREAVES:  On 22 June 2001, the court ordered inter alia that the first plaintiff have leave to accept in full satisfaction of his claim for damages the sum of $5,000,000 and judgment be entered accordingly.  On 3 August 2001, the court further ordered inter alia that the defendant pay the plaintiffs' costs (including the costs of the application by chamber summons dated 3 March 2001) to be agreed or taxed with liberty to the plaintiffs to apply to the court within sixty (60) days of the date of this order for special orders as to second counsel and to increase the limit/limits prescribed by the scale of costs or otherwise as may be sought by the plaintiffs.

2. By this summons, the first and second plaintiffs seek the following orders:

   "1.The limits of the relevant determination of the Legal Costs Committee relating to:

   (a)the statement of claim;

   (b)giving particulars;

   (c)giving and taking discovery;

   (d)getting up case for trial;

   (e)pretrial conferences of 15th June 2000 and 20th March 2001;

   (f)costs of and incidental to the application for special orders and directions as to costs —

   not apply to the taxation of costs as between party and party.

   2.The taxing officer be directed to make reasonable allowances for:

   (a)the opinion of senior counsel relating to the application for leave to compromise the plaintiffs' claim;

   (b)the assistance of senior counsel in settling and finalising the plaintiffs' statement of claim;

   (c)the advice generally of senior counsel concerning the evidence;

   (d)the advice of senior counsel generally concerning matters relating to the advancement and prompt finalisation of the plaintiffs' claim;

   (e)the advice of senior counsel relating to the proper administration of funds held in trust on behalf of the plaintiffs;

   (f)enquiries concerning the first plaintiff's state of health following an incident on the 15th January 2000 and its effect on the medical prognosis of the first plaintiff.

   3.The defendant pay the plaintiffs' costs of and incidental to the application for the appointment of a protective trustee, such costs to be agreed and in default taxed.

   4.The defendant pay the plaintiffs' costs of this application to be agreed or in default taxed.

   5.As between solicitor and client the taxing officer be directed to make reasonable allowance for the costs of Mr D G Garnsworthy of Counsel in drawing and taxing the practitioner's bill of costs pursuant to Order 66 Rule 24 (including the preparation of schedules of work performed by the plaintiffs' solicitors).

   GROUNDS FOR APPLICATION

   (a)By reason of the unusual complexity of the case and the quantum of the work performed special orders in the form of the orders 1 and 2 in this Chamber Summons are justified under Order 66 Rule 22 of the Supreme Court Rules.

   (b)Order 3 of the orders sought in this Chamber Summons is appropriate as the plaintiff's application for the appointment of a protective trustee was incidental to his claim as a person under a disability.

   (c)Order 4 of the orders sought in this Chamber Summons is appropriate as this application is justified in view of the unusual complexity of the case and the quantum of the work performed.

   (d)Order 5 of the orders sought in this Chamber Summons is justified in view of the complexity and quantum of work performed on a solicitor/client basis."

3. The relevant determinations of the Legal Costs Committee are the Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996 ("the 1996 Determination") and the Legal Practitioners (Supreme Court) (Contentious Business) Report 1999 ("the 1999 Determination").

Paragraph 1 of the summons

1. The plaintiffs abandoned the application in par 1(a) of the summons. The defendant did not oppose the application in par 1(b), par 1(c) and par 1(d) of the summons. Counsel for the defendant conceded these are all items which justify an order under O 66 r 12.

2. Counsel for the defendant submitted the balance of the plaintiffs' application is a matter for the taxing officer. He said it is the province of the taxing officer under O 66 r 12 to determine the quantum of costs and the Rules provide a mechanism by which errors by the taxing officer can be reviewed on appeal. He referred to O 66 r 43, O 66 r 44 and O 66 r 45 and went on to submit there is no power in the Court to make directions governing the taxation procedure.

3. Order 66 r 12(1) provides:

   "Where the Court is of opinion that a Special Order as to costs should be made by reason of the unusual complexity or importance of the case or for any other good or sufficient reason the Court may order that any particular allowances in any relevant scale be raised or a limit removed and in giving any such direction the Court may fix a limit within which the Taxing Officer may allow such costs."

4. It is apparent from the 1996 and 1999 Determinations that "the committee's determinations have never prevented the Court from making special costs orders and such orders are often made." (see par 7(1) of the 1996 Determination)

5. The committee also determined that the court or the taxing officer, as the case may be, has the power to make the orders and allowances referred in O 66 r 12.

6. Counsel for the plaintiff submitted that the Court may make orders extending the scope of the relevant determination of the Legal Costs Committee if:

   (a)unusual complexity can be demonstrated; or

   (b)having regard to the importance of the case; or

   (c)for any other good or sufficient reason.

   If the submission for the defendant is to be taken to suggest the taxing officer has a power in any case under O 66 r 12(1) which power the Court does not have, I do not accept that submission. As counsel for the plaintiffs pointed out, none of the orders sought limit the discretion of the taxing officer.

7. In relation to par 1(e) and par 1(f) of the summons, counsel for the defendant referred to Item 13A in the 1999 Determination and submitted this is "the catch all item" so that the taxing officer requires no direction from the Court. Counsel for the plaintiff submitted that such is not the purpose of Item 13A in the 1999 Determination and that the Court should consider an order under O 66 r 12(1). It seems to me to be clearly demonstrated on the evidence that the application for leave to compromise involved unusual complexity so that the Court should direct the taxing officer that the limit of $270 per hour in Item 24 is not to apply in this case.

8. I turn to par 1(f) of the summons. Item 23 of the scale is limited to $6,900 and contemplates junior counsel involved in two days preparation and one day hearing. Counsel for the plaintiffs referred to the affidavit of Mr Sleight of 26 October 2001 and submitted that the plaintiffs' draft bill of costs for taxation is shown to be of such complexity that the limit of $6,900 under Item 23 might be exceeded in relation to the costs application. In deciding whether to exercise the discretion under O 66 r 12(1), the Court should consider whether the work claimed was done, whether the work was necessarily or reasonably done, whether the fees proposed are reasonable, whether the scale may be inadequate, and the principle that a successful party should recover costs reasonably and properly incurred: see Ipp J in Collins v Westralian Sands Ltd (1993) 9 WAR 56. I entirely accept the evidence of Mr Sleight in his affidavit which satisfies the Court that it should exercise its discretion under O 66 r 12(1). Thereafter, it is a matter for the taxing officer to determine whether an amount above the limit should be allowed.

Paragraph 2 of the summons

1. Paragraph 2 of the summons requires a consideration of the application of O 66 r 13 which provides:

   "In any matter or case to which any relevant scale does not apply, the Court may —

   (a)award a lump sum by way of costs;

   (b)direct the Taxing Officer to tax or allow costs analogous to those allowable under the sale scale;

   (c)direct the Taxing Officer to tax and allow reasonable costs."

2. Counsel for the plaintiffs submitted the work set out par 2 of the summons falls outside the normal confines of getting up case for trial under Item 13 of the scale.  As counsel for the plaintiffs pointed out, since I was required to consider the application for leave to compromise, that may be of assistance in the determination of this part of the application.  Once again, I entirely accept the evidence of Mr Sleight in his affidavit and I have no doubt this is an appropriate case in which to direct the taxing officer to tax and allow reasonable costs in relation to the work described in par 2 of the summons and properly carried out in this case.  I do not accept the submission for counsel for the defendant that Item 13A and O 70 embrace this part of the application.

Paragraph 3 of the summons

1. The issue for determination under this paragraph of the summons is whether the Court should direct the taxing officer to tax and allow reasonable costs of and incidental to the application for the appointment of a protective trustee under O 66 r 13(c). It is again relevant to observe that I determined the application for the appointment of a protective trustee other than the Public Trustee. The defendant properly did not seek to be heard on the application. The Court determined the second plaintiff had shown good reason for preferring the appointment of a private trustee. Counsel for the plaintiff submitted that in such circumstances the application was integral to the resolution of the plaintiffs' claim. Counsel for the defendant submitted that the issue did not affect the defendant and that if a plaintiff applies to the court for the appointment of a trustee other than the Public Trustee, that plaintiff should bear the costs of the application.

2. Counsel were unable to cite authority in relation to the exercise of discretion in the present circumstances.  It seems to me that in view of the decision of the Court that the second plaintiff had shown good reason for preferring the appointment of a private trustee, that appointment should indeed be regarded as integral to the plaintiffs' claim.  Accordingly, I shall direct that the taxing officer tax and allow reasonable costs under this paragraph of the summons.

Paragraph 4 of the summons

1. In the light of the order of the Court of 3 August 2001 and the conclusions of the Court in the determination of this application, this paragraph of the summons requires no further consideration.

Paragraph 5 of the summons

1. This paragraph requires the Court to determine whether the taxing officer should be directed to make reasonable allowance for the costs of counsel in drawing and taxing the solicitor's bill of costs pursuant to O 66 r 24. It is not an application in which the defendant is interested. Counsel for the plaintiffs submitted that in this case it was necessary to give attention to the process of allocation between party and party and solicitor and client which justified independent counsel being retained. Once again, the evidence of Mr Sleight clearly demonstrates this is so and that this is not a case in which Mr Sleight should have been expected to undertake such task. Accordingly, I am of the opinion the Court should make the order asked for in par 5 of the summons.

Conclusion

1. It will be apparent from these reasons that I am of the opinion that the plaintiffs are entitled to the orders asked and I shall hear counsel upon the formulation of those orders.