Carey v Korda
[2012] WASCA 228 (S)
CAREY -v- KORDA [2012] WASCA 228 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 228 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:132/2011 | 8 AUGUST 2012 & ON THE PAPERS | |
| Coram: | MARTIN CJ NEWNES JA MURPHY JA | 6/02/13 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed in part | ||
| B | |||
| PDF Version |
| Parties: | NORMAN PHILLIP CAREY QUARTZ NOMINEES PTY LTD MARK ANTHONY KORDA As Receiver and Manager of Huntingdale Village Pty Ltd (Receivers and Managers Appointed), Silkchime Pty Ltd (Receivers and Managers Appointed), Vannin Pty Ltd (Receivers and Managers Appointed), Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed), Paragon Apartments Ltd (Receivers and Managers Appointed), Westpoint Corporation Pty Ltd (Receivers and Managers Appointed (In liq), Bayview Port Melbourne Ltd (Receivers and Managers Appointed) (In liq) and Westpoint Management Ltd (Receivers and Managers Appointed) (In liq) DAVID JOHN WINTERBOTTOM As Receiver and Manager of Huntingdale Village Pty Ltd (Receivers and Managers Appointed), Silkchime Pty Ltd (Receivers and Managers Appointed), Vannin Pty Ltd (Receivers and Managers Appointed), Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed), Paragon Apartments Ltd (Receivers and Managers Appointed), Westpoint Corporation Pty Ltd (Receivers and Managers Appointed) (In liq), Bayview Port Melbourne Ltd (Receivers and Managers Appointed) (In liq) and Westpoint Management Ltd (Receivers and Managers Appointed) (In liq) PERPETUAL NOMINEES LTD |
Catchwords: | Practice and procedure Legal professional privilege Claim for privilege not properly made Remitter Whether party claiming privilege should have opportunity to adduce further evidence Costs Special costs orders Turns on own facts |
Legislation: | Supreme Court Act 1935 (WA), s 37, s 59 Legal Profession Act 2008 (WA), s 280 |
Case References: | Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158(S) Bailey v Director-General, Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333 Barnes v Commissioner of Taxation [2007] FCAFC 88 Carey v Korda [2010] WASC 362 Carey v Korda [2012] WASCA 228 Carey v Korda [No 2] [2011] WASC 220 Carter v The Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121 Devereaux-Warnes v Hall [2006] WASCA 268 McLennan v McCallum [2010] WASCA 45 Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd (Unreported, WASCA, Library No 970604, 13 November 1997) Mount Lawley Pty Ltd v Western Australian Planning Commission [No 3] [2008] WASCA 158 Rayney v AW [2009] WASCA 203 Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79(S) The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 Town of Port Hedland v Hodder [No 2] [2012] WASCA 212(S) West Boat Builders Pty Ltd v Cull Holdings Pty Ltd [1999] WASCA 72 Westgate Finance v May [2012] NSWSC 806 Wookey v Radio 6PR Perth Pty Ltd [2012] WASC 132 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CAREY -v- KORDA [2012] WASCA 228 (S) CORAM : MARTIN CJ
- NEWNES JA
MURPHY JA
- First Appellant
QUARTZ NOMINEES PTY LTD
Second Appellant
AND
MARK ANTHONY KORDA As Receiver and Manager of Huntingdale Village Pty Ltd (Receivers and Managers Appointed), Silkchime Pty Ltd (Receivers and Managers Appointed), Vannin Pty Ltd (Receivers and Managers Appointed), Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed), Paragon Apartments Ltd (Receivers and Managers Appointed), Westpoint Corporation Pty Ltd (Receivers and Managers Appointed (In liq), Bayview Port Melbourne Ltd (Receivers and Managers Appointed) (In liq) and Westpoint Management Ltd (Receivers and Managers Appointed) (In liq)
First named First Respondent
- DAVID JOHN WINTERBOTTOM As Receiver and Manager of Huntingdale Village Pty Ltd (Receivers and Managers Appointed), Silkchime Pty Ltd (Receivers and Managers Appointed), Vannin Pty Ltd (Receivers and Managers Appointed), Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed), Paragon Apartments Ltd (Receivers and Managers Appointed), Westpoint Corporation Pty Ltd (Receivers and Managers Appointed) (In liq), Bayview Port Melbourne Ltd (Receivers and Managers Appointed) (In liq) and Westpoint Management Ltd (Receivers and Managers Appointed) (In liq)
Second named First Respondent
PERPETUAL NOMINEES LTD
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : EDELMAN J
Citation : CAREY -v- KORDA & WINTERBOTTOM [No 2] [2011] WASC 220
File No : COR 147 of 2010
Catchwords:
Practice and procedure - Legal professional privilege - Claim for privilege not properly made - Remitter - Whether party claiming privilege should have opportunity to adduce further evidence
Costs - Special costs orders - Turns on own facts
Legislation:
Supreme Court Act 1935 (WA), s 37, s 59
Legal Profession Act 2008 (WA), s 280
(Page 3)
Result:
Leave to appeal granted
Appeal allowed in part
Category: B
Representation:
Counsel:
First Appellant : Mr A Metaxas
Second Appellant : Mr A Metaxas
First named First Respondent : Mr J Stoljar SC & Mr M J Feutrill
Second named First Respondent : Mr J Stoljar SC & Mr M J Feutrill
Second Respondent : No appearance
Solicitors:
First Appellant : Metaxas & Hager
Second Appellant : Metaxas & Hager
First named First Respondent : King & Wood Mallesons
Second named First Respondent : King & Wood Mallesons
Second Respondent : Minter Ellison
Case(s) referred to in judgment(s):
Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158(S)
Bailey v Director-General, Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333
Barnes v Commissioner of Taxation [2007] FCAFC 88
Carey v Korda [2010] WASC 362
Carey v Korda [2012] WASCA 228
Carey v Korda [No 2] [2011] WASC 220
Carter v The Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121
Devereaux-Warnes v Hall [2006] WASCA 268
(Page 4)
McLennan v McCallum [2010] WASCA 45
Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd (Unreported, WASCA, Library No 970604, 13 November 1997)
Mount Lawley Pty Ltd v Western Australian Planning Commission [No 3] [2008] WASCA 158
Rayney v AW [2009] WASCA 203
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79(S)
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
Town of Port Hedland v Hodder [No 2] [2012] WASCA 212(S)
West Boat Builders Pty Ltd v Cull Holdings Pty Ltd [1999] WASCA 72
Westgate Finance v May [2012] NSWSC 806
Wookey v Radio 6PR Perth Pty Ltd [2012] WASC 132
(Page 5)
- JUDGMENT OF THE COURT:
Introduction
1 These supplementary reasons address the question of final orders in relation to the appellants' application for leave to appeal, and the appeal, in this matter. Much of the relevant procedural background is outlined in [3] - [16] of the court's principal reasons for judgment in Carey v Korda [2012] WASCA 228. In summary, the proceedings below involved an application by the appellants for the production of certain documents over which the first respondents (the Receivers) had claimed legal professional privilege.
2 On 7 December 2010, Le Miere J delivered reasons in the matter Carey v Korda [2010] WASC 362, where the judge found that that two categories of documents, the Receivers' recharge schedules and Corrs' bills of costs, were amenable to inspection under s 421 of the Corporations Act 2001 (Cth), subject to any claim for legal professional privilege.
3 On 21 December 2010, Le Miere J ordered that the Receivers' claim for privilege be referred to a judge of the Supreme Court other than himself for determination, and that the Receivers file and serve affidavits relating to their claims for privilege in respect of Corrs' bills of costs and a sample of the recharge schedules. His Honour also ordered that the Receivers file sealed unredacted copies of Corrs' bills of costs and all of the recharge schedules.
4 The Receivers made a claim for privilege over identified entries in the sample recharge schedules and, in effect, a 'blanket' claim over the entirety of the bills of costs. The claim for privilege was heard by Edelman J on 26 July 2011.
5 On 26 August 2011, Edelman J delivered reasons in the matter Carey v Korda [No 2] [2011] WASC 220 in which his Honour found that the claims for privilege in both the sample recharge schedules and the bills of costs were properly made. Edelman J noted that the sampling approach that was undertaken in respect of the recharge schedules had been contemplated by Le Miere J, but did not make any express findings as to whether the sample was a 'representative' sample.
6 On 10 October 2011, Edelman J ordered that the appellants' application to inspect the redacted portions of the bills of costs and the sample recharge schedules be dismissed, and that the matter be re-listed
(Page 6)
- before Le Miere J for further directions concerning the production and inspection, subject to any claim for privilege, of the remaining recharge schedules. The judge also ordered that the appellants pay the first and second respondents' costs and that the first respondents' costs be taxed, if not agreed, without regard to the limit in Item 10 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010.
7 On 15 November 2012, this court delivered its reasons in which the court found that Receivers' affidavit evidence was insufficient to ground properly the claim for privilege in respect of the sample of recharge schedules and the bills of costs (reasons [89], [91]).
8 The court found that Edelman J had erred in finding that the Receivers did not need to particularise the details of their claim for privilege in respect of the sample recharge schedules any further than that contained in the affidavit material (reasons [90]). In relation to Edelman J's conclusion that his Honour had inspected all the unredacted versions of the recharge schedules and that the claims for privilege which had been redacted were properly made, the court said (reasons [87]):
Having looked at the unredacted versions of the schedules, whilst many, if not most, would seem to be arguably capable of supporting a claim for privilege, there would appear to be at least one item, apparently including a meeting with a third party, in relation to which it is difficult presently to see why confidentiality should necessarily be inferred.
9 The court found that the evidence in respect of the bills of costs suffered from the same defects as that of the recharge schedules and that it could not support a blanket claim for privilege. In relation to Edelman J's finding that all the redactions would reveal, directly or indirectly the content of privileged communications, the court said (reasons [97]):
It is not necessary for this court to examine the voluminous material comprising the bills of costs in this case in order to discern if the claims for privilege can be made out notwithstanding the insufficiency of affidavit evidence. It is sufficient to say that a brief review of a number of the Corrs' invoices (eg confidential Red Book vol 1, 63, 66, 79, 183, 211; vol 4, 807, 842, 950 and 988) indicates that it is difficult to see how a number of entries could arguably be said to reveal confidential communications made for the dominant purpose of giving or receiving legal advice or for use in actual or reasonably anticipated litigation. At this stage, however, it is to be recalled that there is no sworn claim that any privileged communications would be revealed.
(Page 7)
10 The Court of Appeal is given 'wide' powers under s 59 of the Supreme Court Act 1935 (WA) (the Act) and under the Supreme Court (Court of Appeal) Rules 2005 (WA): Mount Lawley Pty Ltd v Western Australian Planning Commission [No 3] [2008] WASCA 158 [19].
11 By s 59(1) of the Act, the Court of Appeal may order a new trial or reference, or vary or set aside the verdict or reduce the damages awarded. Section 59(4) provides that the Court of Appeal may, on the hearing of any such application, exercise all such powers as are exercisable by it upon the hearing of an appeal. The court may, if it is satisfied that it has before it all the materials necessary for finally determining the question in dispute, or for awarding any remedy or relief sought, give judgment accordingly. For that purpose, the court may exercise all the jurisdiction, powers, and duties of the court.
12 In McLennan v McCallum [2010] WASCA 45 [91], the Court of Appeal stated that the exercise of the court's power to order a retrial depends upon the demands of justice.
13 It is common ground that Edelman J's orders should be set aside. The appellants, however, contend that this court should proceed to order production of the documents over which privilege had been claimed. In their supplementary written submissions, the appellants seek orders, relevantly, that:
Within 14 days the first respondents produce for inspection by the appellants the recharge schedules, Corrs' invoices and narratives to the Corrs' invoices.
14 At the hearing of the appeal, the appellants' position was somewhat different. Counsel for the appellants said (ts 31):
If as a result of inspecting a range of the invoices or recharge schedules your Honours conclude that the decision below is erroneous, I don't think your Honours have to look at every invoice and every recharge schedule, you just have to say that the decision is wrong and send it back for determination by the court differently constituted …
15 The respondents seek orders that the matter be remitted to a judge in the General Division, other than the primary judge for:
(a) rehearing and determination of the issue of the validity of the first respondents' objection to production of the documents the subject of the appellants' application;
(Page 8)
- (b) further directions allowing the first respondents to adduce further evidence on that issue and other matters pertaining to the rehearing of that issue.
16 There is also a dispute about costs.
The question of remitter
The parties' contentions
17 The appellants raise four points in support of their submission that the respondents should not be permitted to adduce further evidence on their claims for legal professional privilege. First, the first respondents 'decided to oppose the appellants' application for inspection on the basis of the evidence below notwithstanding that they were warned of its inadequacies'.
18 On this point, the appellants submit [13]:
In an interlocutory appeal leave to adduce additional evidence is more readily allowed. The first respondent was content to allow the appeal to proceed on the basis of its submissions.
19 Secondly, the additional evidence would delay the resolution of the originating process in this matter and the application in another related matter. Thirdly, it would be a 'significant departure from accepted practice that a party gets a second chance to remedy a deficiency in its evidence after an appeal or even at first instance'. In support of this proposition, the appellants cite Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd (Unreported, WASCA, Library No 970604, 13 November 1997); West Boat Builders Pty Ltd v Cull Holdings Pty Ltd [1999] WASCA 72; Westgate Finance v May [2012] NSWSC 806; Wookey v Radio 6PR Perth Pty Ltd [2012] WASC 132. Fourthly, the first respondents' conduct has been such that they are not entitled to any 'indulgence' from the court.
20 The Receivers contend in effect that it would not be an appropriate exercise of the court's discretion to make an order for production of the contested documents in circumstances in which some parts of the contested documents had been held to be at least capable of supporting a claim for privilege; doubt has been cast upon the claim for privilege only in respect of some other parts, although no conclusive determination has been made; and there has been no inspection of the balance of the sample recharge schedules or the Corrs' invoices, nor any determination of the privilege claims.
(Page 9)
Disposition
21 Legal professional privilege is not merely a rule of substantive law but an important common law right or immunity: The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 [11]; see also Carter v The Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121.
22 Where there is a claim for legal professional privilege, the only appropriate and proper course is for the court to consider and determine the claim before making any disclosure order: Rayney v AW [2009] WASCA 203 [40].
23 This court has not made a determination that the documents are not privileged in nature. Rather, the court upheld, in effect, grounds 2.4 and 2.8 of the appellants' grounds of appeal concerning the primary judge's findings as to the adequacy of the Receivers' evidentiary particularisation of the claims for privilege. This court could, no doubt, itself inspect all the documents for the purposes of determining finally the question of privilege: see Bailey v Director-General, Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333 [60] and the cases there cited; Westgate Finance v May [32].
24 In this case the Corrs' invoices were voluminous, making it practically impossible to examine each one for the purposes of making a final determination. Moreover, having regard to the volume of material involved, it was particularly inappropriate to determine the claim on an evidentiary basis which the appellants would have had no opportunity to meet or test: see Westgate Finance v May [32]; Bailey v Director-General [60] - [61].
25 Nevertheless, the court inspected a limited number of the bills of costs and found, in effect, that it was difficult to discern the basis for a claim for privilege in respect of certain entries, although it noted that there was no sworn claim that privileged communications would be revealed by the redacted entries.
26 The court has not inspected any recharge schedules beyond the six which were the subject of the appeal. Nor has there been any determination that those six are representative of all of the other recharge schedules, of which, again, there is a considerable volume. Accordingly, there is no basis for ordering production of all of the recharge schedules. As to the six inspected, again no final determination has been made
(Page 10)
- although the court found that, for the most part, there appeared to be an arguable basis for the claim.
27 In these circumstances, the primary judge's orders should be set aside but it seems to us to be inappropriate for this court to grant the final relief sought by the appellants and order the production of the documents. We are not persuaded by the appellants' arguments to the contrary.
28 As to the appellants' first contention, that argument, that the Receivers should have sought to adduce additional evidence before this court, would have more potency if the materials were less voluminous. However, in this case the Corrs' invoices are said to comprise 2,000 pages (principal reasons [37]). The Receivers' contention in the appeal was, in effect, that the bills of costs were, under the law, privileged in their entirety. Additional affidavit evidence, as an alternative to that contention, which addressed each entry over which privilege was claimed would be expected to be a substantial exercise. The determination of the claim for privilege over each entry, in light of such an evidentiary exercise, is more appropriately done by a judge in the CMC list upon remitter, rather than by this court. Although additional evidence in support of the six recharge schedules would not involve the same logistical difficulty, it is appropriate that one judge should determine all claims of privilege.
29 As to the appellants' second contention, the delay to the appellants is to be weighed against the fundamental importance which the law attaches to the protection of privileged communications. Further, considerable delay in the prosecution of the appellants' substantive claims would have occurred in any event had the receivers addressed each entry in the bills of costs and gave specific evidence in relation to each entry over which privilege was claimed. The additional delay occasioned by this appeal is not, in our view, a factor which would lead the court to order the production of the documents in question.
30 In relation to the appellants' third contention, Martin CJ observed in Devereaux-Warnes v Hall [2006] WASCA 268 [2], that there is a very strong public interest in the finality of litigation. However, in light of all the matters referred to in the foregoing reasons, in the particular circumstances of this case it is, in our view, in the interests of justice that the matter be remitted and that the Receivers have the opportunity to adduce additional evidence on the remitter.
(Page 11)
31 The cases referred to by the appellants provide no real assistance to the appellants in their application for the order of the production of the documents. In both Michael Kellaway v Shark Bay and West Boat Builders v Cull Holdings, the court found that the plaintiff had not proved the damages which it was awarded by the trial judge for breach of contract. The failure to prove damage meant that the plaintiff was not entitled to the damages awarded. Here the Receivers' failure to adduce sufficient evidence to ground their claim for privilege means that the orders dismissing the appellants' application should be set aside. It does not mean, in the circumstances, that the appellants' application should be granted.
32 In Westgate Finance v May [2012] NSWSC 806, a company produced certain documents in response to a subpoena, but made a number of redactions on the grounds of privilege and confidentiality. McDougall J stated that the evidence on the claim for privilege was 'lamentably deficient' and that there was no evidence to enable the court to form a view as to whether the claim for privilege could be made out in respect of any individual document (reasons [30]). His Honour considered it appropriate, subject to the question of costs, to give the company an opportunity to put on proper and admissible evidence substantiating any claim to privilege (reasons [33]).
33 The case of Wookey v Radio 6PR Perth Pty Ltd [2012] WASC 132, in which Kenneth Martin J allowed inspection of two documents which were not arguably within a character of documents that could be subject to legal professional privilege, has no relevance to this issue.
34 The decision of Kenneth Martin J in Wookey v Radio 6PR Perth was consistent with the approach adopted by the Full Court of the Federal Court of Australia in Barnes v Commissioner of Taxation [2007] FCAFC 88 to which the appellants referred in submissions and with the approach taken in Bailey v Director-General. In the latter case, Tobias JA considered that a failure to file and serve satisfactory evidence in support of a claim for privilege would not, of itself, be fatal to a claim for privilege. However, his Honour noted that such a failure might result in a primary judge adjourning the proceedings until the defect is remedied and ordering the party claiming the privilege to pay costs, and possibly on an indemnity basis, thrown away by the need for that adjournment [39] - [44].
35 The appellants' fourth point appears to cover similar ground to that covered by their first three points. The appellants refer to a number of
(Page 12)
- exchanges that took place in the appeal hearing between the Chief Justice and the Receivers' counsel which they say support their submission that the Receivers chose to maintain in the appeal the propositions they advanced before Edelman J despite being 'completely unsustainable'. One such exchange to which the appellants refer to is the following (ts 50):
STOLJAR MR: If there were entries which could be readily excised and had no other characterisation of the kind that your Honour has put to me, then it may be difficult to submit that those were protected by privilege, but that - - -
MARTIN CJ: And so if we find any of them in the unredacted invoices you lose.
STOLJAR MR: No, I don't lose, your Honour. I might lose in respect of that particular entry.
37 For these reasons, the appellants' application for production of the documents should be rejected. There should be a remittal to a judge in the CMC list of the General Division on the basis that the Receivers may be given the opportunity to seek to adduce additional evidence to remedy the deficiencies identified by this court.
The question of costs
38 The appellants contend that the first respondents should pay the appellants' costs, including reserved costs, of and relating to the application heard by Edelman J on 26 July 2011 with such costs to be taxed without regard to the limit in Item 10(a) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010. They also seek an order that the first respondents pay the appellants' costs of and incidental to the taxation of the first respondents' bill of costs dated 3 April 2012 filed pursuant to the orders made by Edelman J on 14 October 2011. They also seek an order that the first respondents pay their costs of the appeal, such costs to be taxed without regard to the limit
(Page 13)
- in Item 23 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010.
39 In relation to the costs before the primary judge, the first respondents contend that as the question of whether the first respondents' objections to production have been properly made has not been determined, and as the appellants were unsuccessful on nearly every issue raised before the primary judge, it is appropriate to reserve those costs to the judge who ultimately hears the matter on remitter. They contend that if, nevertheless, the court were minded to grant the appellants the costs of the hearing before the primary judge, it would be appropriate to tax those costs without regard to the limit in Item 10(a). In relation to the appeal, the first respondents contend that as the appellants failed on three of four grounds of the appeal and as those grounds occupied significant time and cost in preparation for the appeal, it would be appropriate to make no order as to costs of the appeal. Alternatively, if there were to be an order in favour of the appellants in relation to the costs of the appeal, the matter would not merit an order that the costs be taxed without regard to the limit in Item 23.
Disposition
40 In relation to the costs of the appeal, the appellants succeeded on one of four grounds. Nevertheless, most of the time in the appeal in oral argument was spent on ground 2, on which the appellants were successful. In relation to the first ground, the appellants failed to identify any error in legal principle, but the factual material canvassed in ground 1 was relevant to some extent to the proper understanding and disposition of ground 2. The success of ground 2 meant that the primary judge's orders in dismissing the appellants' application should be set aside. The appellants were in substance the successful party and any costs order must give proper recognition to that consideration. Accordingly, it is not appropriate to accede to the first respondents' contention that there be no order as to costs in the appeal. Nevertheless, it is also appropriate to recognise that the appellants failed in their arguments on three of the grounds of appeal. Grounds 3 and 4 and the legal issues the subject of ground 1 were separate and discrete issues for resolution which no doubt added to the costs of the proceedings to a limited but nevertheless significant extent in the context of the overall costs of the appeal: Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158(S) [7]. Taking a broad view, it would be just, in the circumstances of the case, for the appellants to be awarded 75% of the costs of the appeal.
(Page 14)
41 In relation to the appellants' application that the appellants' costs of the appeal be taxed without regard to the limit in Item 23 of the table to clause 11 of the Legal Practitioners (Supreme Court)(Contentious Business) Determination 2010, item 23 imposes limits upon the amounts which can be awarded in respect of particular aspects of the appeal process.
42 Special costs orders can be made either pursuant to s 280(2) of the Legal Profession Act 2008 (WA) or s 37(1) of the Supreme Court Act 1935 (WA): see Town of Port Hedland v Hodder [No 2] [2012] WASCA 212(S), in which the court said [14]:
In either case, before the power will be exercised, the court must form the view that the maximum amount allowable under the relevant scale item is inadequate in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount which is greater than the limit which would be imposed by the relevant costs determination (see Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S) [11]). If that threshold is crossed, under s 280(2) other questions arise for determination. However, until that threshold is crossed, the power will not ordinarily be exercised.
43 See also Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79(S) [4].
44 The appellants have not identified any particular limits within item 23 which indicate that the scale amounts are inadequate, and have not furnished any material to suggest that the taxing officer may properly tax an amount which is greater than the limit imposed by the costs determination. The appellants have failed at the 'threshold' stage of the inquiry, and there is no reason to make a special costs order in their favour in this case.
45 In relation to the costs of the matter below, had the primary judge not erred, he would have found that the first respondents' evidence was insufficient to ground the claims for privilege. That would likely have led to a further hearing, with additional evidence of the kind contemplated by this court as a result of the successful appeal. The appellants would still however have lost on all of the other issues before the primary judge. It would be appropriate, in all the circumstances, for the costs below to mirror the outcome on costs in this appeal, save that the first respondents' have conceded that such costs should be taxed without regard to the limit
(Page 15)
- in item 10(a) of the Legal Practitioners (Supreme Court)(Contentious Business) Determination 2010.
Conclusion
46 The orders that should be made are:
(1) The appellants be granted leave to appeal;
(2) The appeal be allowed in part;
(3) The orders made by Edelman J on 10 October 2011, as amended on 14 October 2011, be set aside;
(4) The matter be remitted to a judge in the CMC List of the General Division, other than the primary judge, for:
(a) rehearing and determination of the issue of the validity of the first respondents' objection to production of the documents the subject of the appellants' application;
(b) further directions allowing the first respondents to adduce further evidence on that issue and other matters pertaining to the rehearing of that issue;
(5) The first respondents pay 75% of the appellants' costs, including reserved costs, of and incidental to the application heard by Edelman J on 26 July 2011, such costs to be taxed without regard to the limit in Item 10(a) of the Legal Practitioners (Supreme Court)(Contentious Business) Determination 2010;
(6) The first respondents pay 75% of the appellants' costs of and incidental to the taxation of the first respondents' Bill of Costs dated 3 April 2012 filed pursuant to the orders made by Edelman J on 10 October 2011, as amended on 14 October 2011;
(7) The first respondents pay 75% of the appellants' costs of this appeal, such costs to be taxed if not agreed.
47 Only the first respondents appeared in this appeal. Specific attention is directed to proposed order 3 above, which also affects the second respondent insofar as it affects Edelman J's orders of 10 October 2011, as amended on 14 October 2011, in relation to the second respondent's costs of the proceedings below and the application concerning the special costs order.
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