Buitendag v Ravensthorpe Nickel Operations Pty Ltd

[2014] WASCA 29 (S)

BUITENDAG -v- RAVENSTHORPE NICKEL OPERATIONS PTY LTD [2014] WASCA 29 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 29 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:144/2012	Heard:	ON THE PAPERS
Coram:	McLURE P PULLIN JA MURPHY JA	Delivered:	13/03/14
No of pages:	4	Judgment Part:	1 of 1
Result:	Application refused
Category:	B
PDF Version

Parties:	ISAK BUITENDAG RAVENSTHORPE NICKEL OPERATIONS PTY LTD
Catchwords:	Practice and procedure Costs Whether the costs of counsel should be assessed at senior counsel rate
Legislation:	Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA) Legal Profession Act 2008 (WA), s 280(2)(c)
Case References:	Cazaly Iron Pty Ltd v Minister for Resources [No 5] [2008] WASCA 181

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BUITENDAG -v- RAVENSTHORPE NICKEL OPERATIONS PTY LTD [2014] WASCA 29 (S) CORAM : McLURE P

PULLIN JA
MURPHY JA

HEARD : ON THE PAPERS DELIVERED : 13 MARCH 2014 FILE NO/S : CACV 144 of 2012 BETWEEN : ISAK BUITENDAG

Appellant

AND

RAVENSTHORPE NICKEL OPERATIONS PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : LE MIERE J

Citation : BUITENDAG -v- RAVENSTHORPE NICKEL OPERATIONS PTY LTD [2012] WASC 425

File No : CIV 1444 of 2009

Catchwords:

Practice and procedure - Costs - Whether the costs of counsel should be assessed at senior counsel rate

Legislation:

Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA)

Legal Profession Act 2008 (WA), s 280(2)(c)

Result:

Application refused

Category: B

Representation:

Counsel:

Appellant : No appearance (on the papers)
Respondent : No appearance (on the papers)

Solicitors:

Appellant : HopgoodGanim
Respondent : Herbert Smith Freehills

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

Cazaly Iron Pty Ltd v Minister for Resources [No 5] [2008] WASCA 181



1 JUDGMENT OF THE COURT: On the delivery of the judgment in this appeal on 6 February 2014 the respondent sought the following orders:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal, including any reserved costs, to be taxed if not agreed.

3. The taxing officer make reasonable allowance for the respondent's lead counsel under scale item 23(h) - Counsel fee for Senior Counsel (including preparation).

4. The limits on costs allowable under the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 be removed in respect of the following items of work:


(a) scale item 23(b) - Respondent's Answer;

(b) scale item 23(g) - Counsel fee on hearing (including preparation); and

(c) scale item 23(h) - Counsel fee for Senior Counsel (including preparation).

2 Proposed orders 1, 2, 4(a) and (b), were made by the court with the agreement of the parties. There being opposition to proposed orders 3 and 4(c), the court ordered the filing of written submissions in relation to those proposed orders.

3 The Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (the Determination) applies to the costs of the appeal. The court has the power to remove the limits on costs fixed in the Determination if it is of the opinion that the amount of costs allowable thereunder is inadequate because of the unusual difficulty, complexity or importance of the matter: Legal Profession Act 2008 (WA), s 280(2)(c).

4 In the parties agreeing to, and the court making, the orders in terms of pars 4(a) and 4(b) it has been accepted that the appeal involved unusual difficulty, complexity or importance.

5 The only outstanding issue is whether the costs of lead counsel for the respondent should be assessed at the rate applicable to Senior Counsel. Lead counsel for the respondent in the appeal is a partner of the firm of solicitors representing the respondent and an experienced counsel, but has not been appointed Senior Counsel.

6 The term 'Senior Counsel' is defined in the Determination to include reference to Queens Counsel or Senior Counsel appointed in Western Australia, or appointed in any State or Territory in Australia and whose appointment is afforded recognition by the Chief Justice of Western Australia.

7 It is only in very exceptional cases that a person who has not been appointed Senior Counsel, with its attendant rights and responsibilities, would have their costs assessed at the rate designated for Senior Counsel in the Determination. There is nothing in the subject matter or conduct of the appeal in this case that would justify such a course. The power of the court to remove the limits on costs in this case derives primarily from the factual complexity of the appeal which was unduly increased by the unorthodox approach taken in the Appellant's Case. We would decline to make the orders sought in pars 3 and 4(c).

8 Notwithstanding the appellant's agreement to orders 4(a) and 4(b) on 6 February 2014, he now seeks to retreat from the full effect of those orders by excluding hourly rates from any increase in the costs limits.

9 Removing the limits on costs allowable under the Determination affects the dollar value of the specified item in the scale. Each of the matters that go to make up that dollar value, including the hourly rate, will be capable of variation by the taxing officer: Cazaly Iron Pty Ltd v Minister for Resources [No 5] [2008] WASCA 181 [1]. That is appropriate in this case. Moreover, the orders having been made by agreement, we see no justification for altering or qualifying their effect.