Atwell v Roberts
[2013] WASCA 37 (S)
•17 JUNE 2013
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | THE COURT OF APPEAL (WA) | |
| CITATION | : | ATWELL -v- ROBERTS [2013] WASCA 37 (S) |
| CORAM | : PULLIN JA |
BUSS JA
MURPHY JA
| HEARD | : | ON THE PAPERS |
| DELIVERED | : | 17 JUNE 2013 |
| FILE NO/S | : | CACV 102 of 2009 |
| BETWEEN | : | MALCOLM WALTER ATWELL and IAN GEORGE ATWELL as Trustee of the Estate of WALTER CHARLES ATWELL on behalf of all partners in the Atwell Family Agency other than the respondents Appellants |
| AND | ||
| LEIGH ROBERTS First-named First Respondent | ||
| NOEL HENRY ATWELL Second-named First Respondent | ||
| AUDREY ATWELL Third-named First Respondent | ||
| LEIGH ROBERTS as Trustee of the Estate of KEITH GILBERT ROBERTS First-named Second Respondent | ||
| LEIGH ROBERTS as Trustee of the Estate of HILDA DORCAS ROBERTS Second-named Second Respondent |
[2013] WASCA 37 (S)
LEIGH ROBERTS as Trustee of the Estate of ADA
ETHEL ATWELLThird-named Second Respondent
LEIGH ROBERTS as Trustee for THE HAMERSLEY
TRUSTFourth-named Second Respondent
JOHN CHARLES STACY as Trustee of the Estate of
EDNA PHOEBE PATERSONFifth-named Second Respondent
EVELYN DIANE BROADLEY as Trustee of the
Estate of GLADYS JANET ADDISON BROADLEYSixth-named Second Respondent
MAURICE EUGENE FRICHOT as Trustee of the
Estate of DOROTHY MAY BECKETTSeventh-named Second Respondent
GARY JOHN ATWELL
Eighth-named Second Respondent
BRIAN HUCK
KINGSLEY JAMES ADAM
JULIE PARR
NORMA HULL
TREVOR TAPPER
ROSEMARY SPURGE
KENNETH ATWELL ADAM
RODERIC ADAM
JONATHAN GRAHAM NICHOLLS as Trustee of the
Estate of JOYCE CORONA NICHOLLS
Third Respondents
ON APPEAL FROM:
| Jurisdiction | : | SUPREME COURT OF WESTERN AUSTRALIA |
| Coram | : | EM HEENAN J |
| Citation | : | MALCOLM WALTER ATWELL and IAN GEORGE ATWELL as trustees of the Estate of WALTER CHARLES ATWELL on behalf of all other partners in the Atwell Family Agency other than the first defendants -v- ROBERTS [No 3] [2009] WASC 96 |
| File No | : | CIV 1832 of 2004 |
| Catchwords: |
Costs - Special costs order - Legal Profession Act 2008 (WA), s 280(2) -
Inadequacy of the applicable costs determinations - Complexity and importance
Legislation:
Legal Profession Act 2008 (WA), s 275(1), s 280
Rules of the Supreme Court 1971 (WA), O 66
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5(1)
Supreme Court Act 1935 (WA), s 37(1)
Result:
Special costs order made
Category: B
Representation:
Counsel:
| Appellants | : | Mr D H Solomon & Mr C S Williams |
| First-named First Respondent | : | Mr M L Bennett & Mr M P Bruce |
| Second-named First Respondent : | Mr M L Bennett & Mr M P Bruce | |
| Third-named First Respondent | : | Mr M L Bennett & Mr M P Bruce |
| First-named Second Respondent : | Mr M L Bennett & Mr M P Bruce |
[2013] WASCA 37 (S)
| Second-named Second Respondent : | Mr M L Bennett & Mr M P Bruce |
| Third-named Second Respondent | : | Mr M L Bennett & Mr M P Bruce |
| Fourth-named Second Respondent | : | Mr M L Bennett & Mr M P Bruce |
| Fifth-named Second Respondent | : | Mr M L Bennett & Mr M P Bruce |
| Sixth-named Second Respondent | : | Mr M L Bennett & Mr M P Bruce |
| Seventh-named Second Respondent : | Mr M L Bennett & Mr M P Bruce | |
| Eighth-named Second Respondent | : | Mr M L Bennett & Mr M P Bruce |
| Third Respondents | : | No appearance |
Solicitors:
| Appellants | : | Solomon Brothers |
| First-named First Respondent | : | Bennett & Co |
| Second-named First Respondent | : | Bennett & Co |
| Third-named First Respondent | : | Bennett & Co |
| First-named Second Respondent | : | Bennett & Co |
| Second-named Second Respondent : | Bennett & Co | |
| Third-named Second Respondent | : | Bennett & Co |
| Fourth-named Second Respondent : | Bennett & Co | |
| Fifth-named Second Respondent | : | Bennett & Co |
| Sixth-named Second Respondent | : | Bennett & Co |
| Seventh-named Second Respondent : | Bennett & Co | |
| Eighth-named Second Respondent : | Bennett & Co | |
| Third Respondents | : | No appearance |
Case(s) referred to in judgment(s):
Atwell v Roberts [2013] WASCA 37
Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013]
WASCA 66(S)
| JUDGMENT OF THE COURT | [2013] WASCA 37 (S) |
JUDGMENT OF THE COURT: On 15 February 2013, this court dismissed the appellants' appeal. See Atwell v Roberts [2013] WASCA 37.
2 The appeal raised issues as to the proper construction of a
pre-emptive rights provision in a deed evidencing the terms and conditions of successive unit partnerships; whether various transfers of units in partnerships constituted pursuant to the deed were made in compliance with the provision; and, if any transfer did not comply with the provision, the effect of the non-compliance.
On 15 February 2013, this court made the following orders:
1. Appeal dismissed. 2. The appellants pay the first and second respondents' costs of the appeal to be taxed, including the first and second respondents' costs of each amendment to the appellants' case and the first and second respondents' answer and the first and second respondents' costs of the written submissions in answer to the Court's request for clarification dated 2 July 2012. 3. There be liberty to apply for any special costs order within 30 days.
Pursuant to Order 3, the first and respondents made application for a special costs order. They seek orders as follows:
1. The costs to be paid by the appellants to the first and second respondents pursuant to Order 2 of the orders made by this Honourable Court on 15 February 2013 be taxed without regard to the maximum limits (including hourly limits) prescribed by any relevant scale.
2. Pursuant to section 280(2) of the Legal Profession Act 2008 (WA), the limits (including hourly limits) on costs fixed for Item 23 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA) and any corresponding items of the Legal Practitioners (Supreme Court) (Contentious Business) Determination (WA) 2008 and 2010 be removed for the purposes of any taxation referred to in Order 1 herein and Order 2 of the orders made by this Honourable Court on 15 February 2013.
3. Pursuant to Order 69 Rule 3 of the Rules of the Supreme Court 1971 (WA), the appellants pay the first and second respondents' costs of the running appeal hearing transcript and the transcript of each of the directions hearings held on 27 August 2010 and 7 December 2011.
| JUDGMENT OF THE COURT | [2013] WASCA 37 (S) |
4. The appellants pay the first and second respondents' costs of the first and second respondents' second Counsel fee on hearing (including preparation) to be taxed on the basis set out herein.
5. The appellants pay the first and second respondents' costs of this application to be taxed on the basis set out herein.
The appellants oppose the application.
6 The first and second respondents have filed an affidavit sworn
14 March 2013 by Amy Joanne Rumble, a legal practitioner employed by their solicitors, in support of the application. The appellants have filed an affidavit sworn 2 April 2013 by Christopher Stephen Williams, a partner of the firm of solicitors acting for them, in opposition to the application. The parties have also filed and served written submissions.
The statutory and regulatory framework
Section 37(1) of the Supreme Court Act 1935 (WA) provides:
Subject to the provisions of this Act and to the rules of court and to the express provisions of the Magistrates Court (Civil Proceedings) Act 2004, or any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid.
8 Section 37(1) confers a broad discretion on the court in relation to
costs with full power to determine, relevantly, to what extent such costs are to be paid. This discretionary power enables the court to make orders with respect to the allowance of costs generally. See also O 66 r 1(1) of the Rules of the Supreme Court 1971 (WA), which should be read together with s 37(1).
9 By O 66 r 10(2) of the Rules of the Supreme Court, relevantly, in the case of an appeal, the costs of the proceedings giving rise to the appeal, as well as the costs of the appeal and of the proceedings connected with it, may be dealt with by the court hearing the appeal.
10 Rule 5(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that the Court of Appeal Rules must be read with the Rules of the Supreme Court.
11 Section 280(1) of the Legal Profession Act 2008 (WA) (the Act) provides, relevantly, that the taxation of bills of law practices and any
| JUDGMENT OF THE COURT | [2013] WASCA 37 (S) |
other aspect of the costs charged by law practices is regulated by an
applicable costs determination.12 Section 275(1) of the Act empowers the Legal Costs Committee
(established under s 310) to make legal costs determinations regulating the costs that may be charged by law practices in respect of, relevantly, contentious business before the Supreme Court.
Section 280(2) of the Act provides:
(2)
Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following -
(a) order the payment of costs above those fixed by the determination; (b) fix higher limits of costs than those fixed in the determination; (c) remove limits on costs fixed in the determination; (d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.
14 By s 280(3) of the Act, nothing in s 280(1) is to be construed as
limiting the power of a court, a judicial officer or a taxing officer of a court to determine in any particular case before that court or judicial officer the amount of costs allowed.
15 In Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66(S) [3], Martin CJ, McLure P and Buss JA said in relation to s 280(2):
The section requires that before making an order pursuant to its terms the court must form an opinion which has two components. First, the court must determine that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate. Second, the court must conclude that the inadequacy arises because of the 'unusual difficulty, complexity or importance of the matter' (Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [11]). Having heard the matter and being familiar with the way in which the case was conducted and the issues which were litigated, the court is in a position to form the opinions required under the section as matters of impression rather than science or mathematics: EDWF Holdings 1 Pty
| JUDGMENT OF THE COURT | [2013] WASCA 37 (S) |
Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) [7]; Verdell Pty
Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2) [14].
16 As noted in Cape Lambert, the usual manner of establishing that the amount of costs allowable under an applicable costs determination is inadequate, for the purposes of s 280(2), is to demonstrate that there is 'a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit imposed by that determination' [4].
17 Also, as noted in Cape Lambert, the word 'unusual' in s 280(2) of the Act qualifies only the term 'difficulty' and not the terms 'complexity' or 'importance' [5].
Proposed special costs orders nos 1 and 2
18 On or about 27 August 2009, the appellants filed their appeal notice.
They challenged the judgment and orders made by the primary judge on 10 August 2009, after a five-day trial of numerous separate issues agreed upon by the parties.
19 The work undertaken by the first and second respondents' legal
representatives in relation to the appeal is covered by the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 (the 2008 Scale), the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (the 2010 Scale) and the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (the 2012 Scale).
20 Ms Rumble's affidavit includes particulars of the number of hours
spent by her (a junior practitioner), Mr Bruce (a senior practitioner who carried out work as a solicitor and who also appeared as second counsel at the hearing of the appeal) and Mr Bennett (who appeared as counsel at the trial and as leading counsel at the hearing of the appeal).
21 Ms Rumble deposes that the hourly rates charged by Mr Bennett,
Mr Bruce, herself and articled clerks and paralegals engaged in working on the appeal exceeded, at all times, the limits imposed by each relevant scale. She also deposes that, in her belief, an award of costs within the limits imposed by the relevant scales (including the limits on hourly rates) would be inadequate to compensate the first and second respondents for the costs of the work properly and necessarily performed by their legal representatives 'due to the unusual difficulty, complexity and importance of the matter' [79].
| JUDGMENT OF THE COURT | [2013] WASCA 37 (S) |
22 Ms Rumble does not, however, specify either the aggregate amount
charged by the first and second respondents' legal representatives for the work undertaken in the appeal or the particular amounts they have charged for each discrete sub-item in the item applicable to appeals to this court from a single judge under each relevant scale.
23 Where a party makes an application for a special costs order pursuant
to s 280(2) of the Act, the affidavit filed in support of the application should annex a draft bill of costs that specifies the amounts proposed to be claimed under each discrete sub-item and the total amount proposed to be claimed. Nevertheless, despite this omission in the present case, it is readily apparent, on the basis of the number of hours apparently worked and the maximum hourly rates permitted under the relevant scales, that the total amount which the first and second respondents' legal representatives have charged is highly likely substantially to have exceeded the total amount allowable under the relevant scales.
24 We are satisfied that there is a fairly arguable case that the bill to be
presented for taxation by the first and second respondents may tax at an amount which is greater than the limits applicable under the relevant scales, and that the amounts allowable under the relevant determinations are inadequate within s 280(2) of the Act.
25 In the appeal, the appellants relied on four grounds of appeal. The
grounds alleged that the primary judge had made various errors of law and fact in determining the numerous separate issues the subject of the trial. The alleged errors of fact and law related to events which occurred between the 1970s and 2003. The appeal involved factual complexity arising from the significant number of partnerships that were formed and dissolved during the period in question. There were issues of legal complexity arising from the necessity to construe various provisions of the partnership deed and rules (some of which were lacking in clarity) in the context of the Partnership Act 1895 (WA) and pronouncements on the law of partnership in the cases.
26 The resolution of the issues of fact and law raised in the appeal were
of substantial importance to the members of the current partnership and to other persons and entities (including members of earlier partnerships) who were joined in the proceedings. These issues had the potential significantly to impact upon the efficacy of many transactions between members of earlier partnerships and on the conduct of future dealings between members of the current partnership.
| JUDGMENT OF THE COURT | [2013] WASCA 37 (S) |
27 In our opinion, the matters in the appeal are properly to be
characterised as being of complexity and importance within the meaning
of s 280(2) of the Act.
In the circumstances, it is appropriate to make special costs orders nos 1 and 2, as sought by the first and second respondents.
Proposed special costs order no 3
The first and second respondents obtained transcripts of directions hearings held before Pullin JA on 27 August 2010 and 7 December 2011. These transcripts comprised 13 and eight printed pages respectively.
30 The first and second respondents also obtained a running transcript
of the appeal hearing on 15 June 2012. The transcript comprised
130 printed pages.31 We are persuaded that it was reasonably necessary, for the proper
conduct of the appeal, that the first and second respondents obtain the transcripts of the directions hearings on 27 August 2010 and 7 December 2011, but not the transcript of the hearing on 15 June 2012. The appeal was listed for one day only.
We would make special costs order no 3, as sought by the first and second respondents, to the extent we have indicated.
Proposed special costs order no 4
33 As we have mentioned, Mr Bruce appeared as second counsel for the
first and second respondents at the hearing of the appeal. He had the conduct of the matter, as a solicitor, in the primary proceedings since May 2008 and in the appeal since August 2009. Ms Rumble attended at the hearing of the appeal as instructing solicitor.
Also, as we have mentioned, Mr Bennett appeared as counsel at the trial and as leading counsel at the hearing of the appeal.
35 We are persuaded that the nature and extent of the factual and legal
complexity in the appeal made it reasonably necessary for the first and second respondents to be represented at the hearing of the appeal by leading counsel and second counsel. We note that the appellants were also represented by leading counsel and second counsel.
It is appropriate to make special costs order no 4, as sought by the first and second respondents.
| JUDGMENT OF THE COURT | [2013] WASCA 37 (S) |
| Proposed special costs order no 5 |
As we have mentioned, the appellants opposed the first and second respondents' application for a special costs order.
The first and second respondents have succeeded, to a very significant extent, in their application.
It is therefore appropriate to make special costs order no 5, as sought by the first and second respondents.
2