Cifuentes v Fugro Spatial Solutions Pty Ltd
[2009] WASC 316 (S)
•11 NOVEMBER 2009
CIFUENTES -v- FUGRO SPATIAL SOLUTIONS PTY LTD [2009] WASC 316 (S)
Pending Appeal
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 316 (S) | |
| Case No: | CIV:1312/2008 | 3 - 7, 10 - 14, 24 & 25 AUGUST 2009, 20 & 27 NOVEMBER 2009 & ON THE PAPERS | |
| Coram: | MURRAY J | 11/11/09 | |
| 4/12/09 | |||
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Costs orders made | ||
| B | |||
| PDF Version |
| Parties: | MALCOLM ANTHONY CIFUENTES MICHAEL BRIAN KNUBLEY JULIE ANNE WARRINER JANET GRAHAM OZAN PERINCEK NAUTRONIX (HOLDINGS) PTY LTD (ACN 009 067 099) L-3 COMMUNICATIONS NAUTRONIX LIMITED (ACN 009 019 603) ALEC PENBERTHY FUGRO SPATIAL SOLUTIONS PTY LTD (ACN 008 673 916) AARON BARCLAY CIVIL AVIATION SAFETY AUTHORITY |
Catchwords: | Tort Application of Civil Aviation (Carriers' Liability) Act 1961 (WA) Costs Special costs order |
Legislation: | Civil Aviation (Carriers' Liability) Act 1961 (WA) |
Case References: | Cifuentes v Fugro Spatial Solutions Pty Ltd [2009] WASC 316 Collins v Westralian Sands Ltd (1993) 9 WAR 56 Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Naidoo v Williamson [2008] WASCA 179; (2008) 37 WAR 516 Schmidt v Gilmour [1988] WAR 219 Tranchita v Danehill Nominees Pty Ltd [No 3] [2009] WASC 49 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 4 DECEMBER 2009 FILE NO/S : CIV 1312 of 2008 BETWEEN : MALCOLM ANTHONY CIFUENTES
- First Plaintiff
MICHAEL BRIAN KNUBLEY
Second Plaintiff
JULIE ANNE WARRINER
Third Plaintiff
JANET GRAHAM
Fourth Plaintiff
OZAN PERINCEK
Fifth Plaintiff
NAUTRONIX (HOLDINGS) PTY LTD (ACN 009 067 099)
L-3 COMMUNICATIONS NAUTRONIX LIMITED (ACN 009 019 603)
Sixth Plaintiffs
ALEC PENBERTHY
Seventh Plaintiff
AND
FUGRO SPATIAL SOLUTIONS PTY LTD (ACN 008 673 916)
First Defendant
AARON BARCLAY
Second Defendant
ALEC PENBERTHY
Third Defendant
- Plaintiff
AND
AARON BARCLAY
First Defendant
CIVIL AVIATION SAFETY AUTHORITY
Second Defendant
ALEC PENBERTHY
Third Party
Catchwords:
Tort - Application of Civil Aviation (Carriers' Liability) Act 1961 (WA)
Costs - Special costs order
Legislation:
Civil Aviation (Carriers' Liability) Act 1961 (WA)
(Page 3)
Result:
Costs orders made
Category: B
Representation:
CIV 1312 of 2008
Counsel:
First Plaintiff : Mr M J McCusker QC & Mr S V Forbes
Second Plaintiff : Mr M J McCusker QC & Mr S V Forbes
Third Plaintiff : Mr M J McCusker QC & Mr S V Forbes
Fourth Plaintiff : Mr M J McCusker QC & Mr S V Forbes
Fifth Plaintiff : Mr M J McCusker QC & Mr S V Forbes
Sixth Plaintiffs : Mr M J McCusker QC & Mr S V Forbes
Seventh Plaintiff : Mr M J McCusker QC & Mr S V Forbes
First Defendant : Ms K J Levy
Second Defendant : Mr D R Clyne
Third Defendant : Ms K J Levy
Solicitors:
First Plaintiff : Bradley Bayly Legal
Second Plaintiff : Bradley Bayly Legal
Third Plaintiff : Bradley Bayly Legal
Fourth Plaintiff : Bradley Bayly Legal
Fifth Plaintiff : Dwyer Durack
Sixth Plaintiffs : Freehills
Seventh Plaintiff : Trewin Norman & Co
First Defendant : SRB Legal
Second Defendant : DLA Phillips Fox
Third Defendant : SRB Legal
- <mpr>
CIV 2279 of 2009
Counsel:
Plaintiff : Ms K J Levy
First Defendant : Mr D R Clyne
Second Defendant : Mr D R Clyne
Third Party : Ms K J Levy
Solicitors:
Plaintiff : SRB Legal
First Defendant : DLA Phillips Fox
Second Defendant : DLA Phillips Fox
Third Party : SRB Legal
Case(s) referred to in judgment(s):
Cifuentes v Fugro Spatial Solutions Pty Ltd [2009] WASC 316
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Naidoo v Williamson [2008] WASCA 179; (2008) 37 WAR 516
Schmidt v Gilmour [1988] WAR 219
Tranchita v Danehill Nominees Pty Ltd [No 3] [2009] WASC 49
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1 MURRAY J: I published my reasons, after the consolidated hearing of these two matters, on 11 November 2009: Cifuentes v Fugro Spatial Solutions Pty Ltd [2009] WASC 316. Although I had allowed some time before publication, during which the parties had access to the reasons, they sought further time before moving for final orders in respect of the issues of liability which I tried, and for costs. Ultimately, when I heard argument, a number of matters were raised.
Civil Aviation (Carriers' Liability) Acts
2 This was a most unusual point arising out of [260] - [266] of the reasons, which were concerned to explain why the litigation before the court raised issues of tort (and also contract) at common law. The portion of the reasons to which I refer were concerned to explain why the provisions of the Civil Liability Act 2002 (WA) did not apply to the case.
3 In the first place, although that Act came into operation on 1 January 2003, and although the accident with which this case is concerned occurred on 11 August 2003, potentially relevant provisions of the Civil Liability Act did not apply to an accident occurring before 1 December 2003: s 5A(3).
4 However, not content with that proposition, I felt I needed to add that the provisions of the Civil Liability Act potentially relevant to the subject matter of the litigation would not apply because their application was excluded if the damages which might be awarded would be those under the Civil Aviation (Carriers' Liability) Act 1961 (WA), including the applied provisions defined in that Act: s 3A(1), item 5.
5 I was not in the trial of the issues of liability concerned with an award of damages and so, in the reasons at [265], I made that observation. But the question was whether, because of the application of the Civil Aviation (Carriers' Liability) Act to the litigation as a whole, for that reason also the Civil Liability Act 2002 would have no application to the litigation. On the material available to me, I drew the conclusion that that was the case, based on the pleadings of the parties.
6 As I observed in the principal reasons, the purpose of the WA Civil Aviation (Carriers' Liability) Act 1961 was to apply, to intrastate commercial aviation operations, the provisions of the relevant Commonwealth legislation of the same name, enacted in 1959. The purpose of that legislation was to enact into Australian law the provisions of various international conventions and protocols dealing with the liability of carriers by air, by providing for a statutory cause of action to
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- enable recovery by passengers or their personal representatives, for personal injury or death, and loss of and damage to baggage as a result of accidents in the course of carriage by air. The damages which may be awarded are capped. The Commonwealth Act also applies that statutory regime to interstate commercial carriage by air in Australia, and requires carriers to insure against the statutory liability. Part IV of the Commonwealth Act applies to that interstate carriage, and Pt IVA deals with the obligation to insure.
7 Section 6 of the State Act applies, as State law, the provisions of Pts IV and IVA of the Commonwealth Act. The interpretation provision in the State Act is s 3. It gives to terms used in the State Act the meaning given to those terms in the Commonwealth Act, relevantly for present purposes, s 26 of the Commonwealth Act.
8 As I noted in [263] of the principal reasons, the carriage to which the State Act applies, if the Commonwealth Act does not, is, pursuant to s 5(1):
the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations under a contract for the carriage of the passenger between a place in the State and another place in the State.
9 Under s 26(1) of the Commonwealth Act, an 'airline licence' and a 'charter licence' are both defined to include, 'an Air Operator's Certificate in force under the Civil Aviation Act 1988 (Cth) authorising charter operations'. The same subsection defines 'commercial transport operations' to mean, 'operations in which an aircraft is used, for hire or reward, for the carriage of passengers or cargo'.
10 The conclusion to which I came, that the WA Act would apply to the flight the subject of the proceedings before me, was based on the findings of fact made in [260] and [261] of the principal reasons. Those findings were based on the pleadings. In the consolidated statement of claim, on behalf of the first six plaintiffs, par 9 is in the following terms:
9. The first defendant ('Fugro'):
9.1 is and was at all material times a proprietary limited company registered and incorporated in Australia according to law;
9.2 was at all material times the holder of an Air Operator's Certificate issued by the Civil Aviation Safety Authority
- under the Civil Aviation Act 1988 (Cth) in respect of a Cessna 404 Titan twin engine aircraft, registered number VH-ANV ('the Plane');
- 9.3 at all material times carried on the business of an air operator from hangar premises which it occupied at Jandakot Airport in the State of Western Australia, including the provision of air charter services for commercial purposes;
9.4 …
9.5 at all material times was the registered owner of the Plane pursuant to the Civil Aviation Regulations ('CAR');
9.6 …
11 The first and third defendants admitted pars 9.1 to 9.5 of the statement of claim: defence par 3. The defence of the second defendant, par 9, was not, for present purposes, in materially different terms from the pleading of the other defendants. Paragraphs 9.1 and 9.2 of the statement of claim were admitted. Paragraph 9.3 was admitted, except that it was denied that the first defendant provided air charter services. The second defendant pleaded that the first defendant 'was authorised to provide aerial work services'. As to par 9.5, it was simply admitted that the first defendant was the owner of the aircraft, and the subparagraph was otherwise not admitted.
12 I must say that I assumed that the pleading in par 9 of the statement of claim, and the consequent admission by the first defendant, the party who was said to be the holder of an air operator's certificate in respect of the aircraft, carrying on the business of an air operator, including the provision of air charter services for commercial purposes, was intended to establish that this aircraft, on the particular flight, conducted under a contract made between the sixth plaintiffs and the first defendant, was carrying on a commercial transport operation within the meaning of the Civil Aviation (Carriers' Liability) Act, pursuant to the first defendant's air operator's certificate.
13 I do not understand otherwise why par 9 of the statement of claim contained the allegations to which I have referred. However, I am told that it is not the case that that was the purpose of the pleading, and the admission of those facts by the first defendant was not intended to convey an acceptance that the flight was conducted pursuant to such an authorisation.
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14 There being no objection, I accepted in evidence an affidavit sworn by Mr Bradley, the solicitor for the first to fourth plaintiffs. He annexes the first defendant's air operator's certificate, effective from 20 March 2002 until 31 July 2004, for a number of aircraft, including Cessna 404 aircraft. The certificate, issued by the Civil Aviation Safety Authority under the Civil Aviation Act 1988 (Cth), authorises the first defendant to conduct what are described as aerial work operations, not charter operations. The aerial work operations authorised are aerial photography, aerial survey work, dropping incendiaries for bushfire control, aerial baiting, dropping seeds and fertiliser for forestry purposes, and search and rescue work.
15 It is put to me, and no submission is made to the contrary, that this particular flight by this aircraft was not caught by the Civil Aviation (Carriers' Liability) Act1961 (WA) as the air operator's certificate was not an airline licence, as defined, because it did not authorise 'airline operations', and nor was it a charter licence as defined, because it did not authorise 'charter operations'. In the circumstances, I am prepared to accept that argument.
16 I make no finding, because it is irrelevant that I should do so, as to whether the flight undertaken in the circumstances and for the purposes that it was, was a flight authorised by the first defendant's air operator's certificate. However, in light of the terms of that certificate, and the reservation from its authorisation of 'charter operations', it does seem to be clear that this was not a flight to which the Civil Aviation (Carriers' Liability) Act1961 applied, despite the fact that the plaintiffs pleaded, and the first defendant admitted, that the flight was part of the business of the first defendant, which included, 'the provision of air charter services for commercial purposes'.
Costs orders: CIV 1312 of 2008
17 The Legal Profession Act 2008 (WA) was proclaimed to come into operation on 1 March 2009 (Government Gazette 27 February 2009, page 511). By s 616(1) the current provisions in relation to costs, contained in Pt 10 of the Act, only apply where the client first instructs the law practice on or after the commencement day. Otherwise, as in this case, Pt 13 of the Legal Practice Act 2003 (WA) will continue to apply, as will the provisions of legal costs determinations made under s 210 of that Act. In relation to contentious business it would seem that the relevant determinations for the purpose of taxation of costs in relation to this litigation are the Legal Practitioners (Supreme Court) (Contentious
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- Business) Determination 2006 which operated from 1 July 2006 to 30 June 2008 and the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 which came into operation on 1 July 2008. The determinations apply to the remuneration of practitioners based on costs incurred during the period of their operation.
18 The two determinations are similarly constructed. They fix maximum hourly and daily rates of remuneration. Rates are fixed for senior practitioners of more than five years standing, junior practitioners and senior counsel. There is no longer a need to certify for the involvement of senior counsel, or, as was traditionally done, second counsel. The determinations provide a table and generally speaking no distinction is made between solicitor/client costs and party/party costs. The scale describes various types of legal work. The maximum allowance is a combination of a period of time supposed to be the maximum required to perform the particular task, multiplied by the rate applicable to the particular fee earner hypothetically involved in the performance of the work.
19 Of course I am not involved in the taxation of costs in this case, but broad familiarity with what is involved in the scale assists in this case because the plaintiffs seek special costs orders under s 215(2) of the Legal Practice Act. Section 215(1) provides that the taxation of costs is regulated by the relevant legal costs determination in force under s 210. Section 215(2) 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 legal 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 taxed.
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- 516, 526 [38] - [39] (Steytler P, Pullin JA & Murray AJA agreeing)), but the exercise of the discretion to make a special costs order under s 215(2) is guided. In the first place it is evident that the party seeking the order must persuade the judge to the opinion that the amount of costs allowable under the relevant legal costs determination is inadequate. That will be established if the unusual difficulty of the matter, its complexity and/or its importance lead to the conclusion that reasonable remuneration for the successful party will not be provided simply by ordering the payment of costs to be taxed and therefore by limiting that process of taxation by the application of the relevant provisions of the applicable legal costs determination.
21 In that regard I think that some of the older cases continue to have application. The inadequacy of the legal costs determination may be demonstrated by consideration of the amount of work involved in the preparation and presentation of the case. That consideration of itself may sufficiently relate to the complexity of the matter to demonstrate the inadequacy of the scale: Schmidt v Gilmour [1988] WAR 219, 220. The consideration of the issue by the judge should not descend into the taxation process, but the judgment to be made is essentially preliminary and provisional: Collins v Westralian Sands Ltd (1993) 9 WAR 56, 64, 68.
22 It is to be remembered that a special order which fixes higher limits than those derived from the relevant determination, or which increases the amounts for specific items of work, or removes limits on costs derived from the determination, does no more than that. It is for the taxing officer to consider the reasonableness and the necessity for the work and to make a judgment about the remuneration reasonably required: Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, 404.
23 Against the background of those statements of general principle I turn to some of the specific issues raised by the parties in respect of costs in this matter. In the first place it seems to me to be perfectly obvious that the costs of all the plaintiffs should be taxed as in an action. The originating summonses by which these matters were consolidated in this court was a convenient device to enable the issues of liability to be tried out in one proceeding. The pleadings were consolidated and it is clear that the process of preparation and the trial process itself was indistinguishable from the conduct of an action. Further, it seems to me that reference to the 2008 scale shows that taxation as for an originating summons would provide entirely inadequate remuneration.
(Page 11)
24 I also think that what I know, particularly from the presentation of the case, about the process of preparation makes it convenient that the costs of the first to sixth plaintiffs in the proceedings before me and in the relevant District Court actions, should be taxed as one set of costs. The position of the seventh plaintiff will be conveniently handled separately in view of the different process involved in that instance.
Special costs orders
25 In relation to the taxation process generally there are particular matters in respect of which the plaintiffs seek orders which would remove limits imposed on the taxation process by relevant items in the scale. Speaking generally, it seems to me that although there is no specific evidence before me in relation to some of the items concerned with matters of preparation, in relation to which special orders are sought, as a general proposition there is in my view sufficient to ground the proposition that items of central importance under the scale ought to have the limits removed on the ground of the unusual difficulty and complexity of the case, both factually and in relation to the questions of law which arose.
26 Factually I have in mind particularly the need to marshal and present a significant body of expert evidence from pilots, from the physicist Mr Steven Roberts, and in relation to matters of an engineering character concerned with the operation of the engine driven fuel pump. In addition, there was of course a significant body of expert evidence in relation to metallurgical investigation and the investigation of the cause of the failure of the fuel pump generally.
27 So far as matters of law are concerned the parties had to prepare and present matters of some difficulty in relation to the sixth plaintiffs' claim in negligence, particularly in relation to economic loss, and issues concerned with the imposition of a duty of care in that regard. Further, the contractual claim involved some issues of real substance in relation to the incorporation of terms in contracts by reference to other documents, the incorporation of terms as a result of a course of dealing between contracting parties and the question of implication of terms, as well as the need to consider the warranties provided by s 74 of the Trade Practices Act 1974 (Cth).
28 As to specific matters, I commence with the observation that although there is not, and has not been for some time, a requirement under the scale to certify for second counsel, it is very evident to me that this was a case where the involvement of senior counsel for all parties was
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- well justified at all substantial stages, including during a mediation process.
29 As to the items of the scale specifically addressed as being the subject of special costs orders and the submissions made to me, I am satisfied that on the general grounds to which I have referred above it would be appropriate to remove the limit in relation to the preparation of the statement of claim and in particular the consolidation of that pleading. The coordination of the work of consolidation between the solicitors for the plaintiffs and the involvement of Queen's Counsel would suggest that the limit of $3,960 would be inadequate.
30 Mention of the mediation process prompts me to refer to the claim that the mediation conference held in this case was a major effort, although concerned only with issues of liability. It was listed for three days and I am told that it took some time. Position papers were exchanged and counsel attended the conference. Item 23 of the scale allows for remuneration at a maximum of the hourly rate for a senior practitioner, $396. There is no limit to the number of hours which may be allowed for, but that will not help where others, and indeed senior counsel, were necessarily involved. In my view the limiting factor of the rate at which remuneration may be allowed should be removed to enable proper consideration to be given on taxation to the attendance of solicitors and counsel to provide necessary advice at the mediation conference in a matter of this potential complexity: Tranchita v Danehill Nominees Pty Ltd [No 3] [2009] WASC 49 [5] - [6] (Martin CJ).
31 As to the trial itself, I note that item 19 of the scale is prepared on the basis of an allowance for three days of preparation, the first day of the trial and unlimited refreshers to the daily limit of counsel and senior counsel on the basis of a 10 hour day. There is evidence before me of the hourly rate charged by senior and junior counsel engaged by the first and third defendants, but no other evidence. The principal complaint of the plaintiffs stems from the fact that when the respective parties had closed their cases I adjourned the trial for one week for the preparation and exchange of closing submissions, and to give me the opportunity to read those documents, before I resumed the hearing for a further two days to allow counsel to speak to their written submissions and make oral presentations designed to focus my attention upon particular matters which required resolution. The process was an efficient one.
32 The complaint is that there is no allowance specially made for the involvement of counsel in such preparatory work. In my opinion the costs
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- involved would be taxed as part of getting the case up for trial, albeit, the trial process was suspended while this work was done. As to that, the plaintiffs also apply to remove the limit upon getting-up for trial.
33 In relation to getting up, particular reference is made to the solicitor, a senior practitioner, acting specifically for the first to fourth plaintiffs, but in effect acting for all attending the inquest, which was held in April, May and June 2005. The solicitor is said to have limited his attendance to days when it appeared the evidence might relate to matters of fact and law which would be in issue in respect of liability in proceedings such as those ultimately held before me.
34 I have no difficulty with the proposition that the taxing officer would be able to make a judgment as to the reasonableness of attendance. Nor do I have any difficulty with the broad proposition that to attend in that way, and subsequently obtain transcript of the evidence given at the inquest so far as it was thought to be helpful, would enable informed decisions to be made relative to the process of getting up for trial and would be likely to save costs incurred in the process of investigation of the facts which is a central part of getting-up the case for trial. I am content to observe that in my view it would be proper for the taxing officer to make an allowance under that head for the costs reasonably incurred in relation to the inquest.
35 Having regard to that matter, to the costs incurred in the process of preparing written closing submissions, to which I have referred, and to the unusual difficulty and complexity of the case in the aspects to which I have also referred above, I am persuaded that it would be appropriate to remove the limit involved in the scale allowance for getting-up for trial which is based on 100 hours of the time of a senior practitioner charged at the scale rate, and an order should be made to achieve that result in respect of item 16 of the scale.
36 As to the trial itself and counsel's involvement in preparation as well as attendance at the trial together with the allowances available for solicitors and clerks reasonably attending trial, I think the allowances in item 19 are generally reasonable and should not be interfered with. However, in view of the unusual difficulty and complexity of the matter I think it is likely that taxation subject to the limits provided in item 19(a) and 19(b), would be likely to be inadequate in relation to preparation for and the first day of trial. I would remove those limits from item 19, but not the others.
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37 In relation to the process of preparing for trial there are items in the scale dealing with costs incurred in requiring and giving discovery and inspection of discovered documents. The plaintiffs submit that the scale limit should be removed in relation to the process of giving discovery. Having regard to the documents, not all of which by any means ended up being tendered in evidence, which found their way into the book of documents, I am not persuaded that there is justification for removing or increasing the limit available under the scale in relation to this process.
38 The plaintiffs also seek a reasonable allowance for the cost of obtaining transcript of the inquest and for the costs incurred in proofing and generally qualifying expert witnesses to give evidence at trial. So far as the lawyers are concerned of course the process of perusing transcript and dealing with expert witnesses is centrally part of the getting-up process. So far as the fees charged for the provision of transcript and by expert witnesses are concerned, no special order is required and I will make none. Item 33 of the scale provides that as between party and party, a party may be allowed on taxation disbursements necessarily or reasonably incurred.
39 In that way the taxation process may also make a reasonable allowance for the expense incurred by the sixth plaintiffs who bore the costs of the trial transcript obtained for the use of the plaintiffs generally. To do so was certainly reasonable and necessary, in fact, I expected that the submissions would refer to relevant evidence, they did so, and I was assisted by that.
40 A further disbursement which I would say was necessarily and reasonably incurred by the plaintiffs (without wishing to trespass upon the function of the taxing officer), was the cost incurred in relation to the process of obtaining the evidence of Mr Steven Roberts and Mr Barton by video-link from Canada and America respectively. Again, no special order is required in relation to these costs.
41 A problem arises in relation to costs because the sixth plaintiffs' claim against the first defendant for damages for breach of contract is dismissed. In its minute of orders in CIV 1312 of 2008 the first defendant proposes that the sixth plaintiffs should pay its costs of that claim, including special orders of the kind proposed otherwise by the first to sixth plaintiffs. On the other hand in the minute of orders submitted by the plaintiffs no distinction is made between the costs sought generally by the sixth plaintiffs and those in relation to the contractual claim which failed.
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42 In its written submission on costs the first defendant refers to the dismissal of the contractual claim and submits, not that it should have the costs of defending that claim, but that the costs to be awarded to the sixth plaintiffs should be reduced by 50% to reflect the proportion of the litigation between the sixth plaintiffs and the first defendant represented by the contractual claim.
43 Of course the general outcome of the action both in respect of the sixth plaintiffs' claim in tort, including the claim for economic loss, and the claim for breach of contract, was a judgment for the sixth plaintiffs and it is not clear to me that the damages for breach of contract would, when assessed, be substantially different from those pleaded in respect of economic loss arising out of the tortious claim.
44 In my view in those circumstances it would be inappropriate to order the sixth plaintiffs to pay the first defendant's costs of the contractual claim. Nor I think would it be appropriate to attempt some assessment of the time and significance of the issues upon which the sixth plaintiffs succeeded and those upon which they failed when overall they were successful, for the purpose of reducing their recoverable costs. And yet they brought the contractual claim, putting the first defendant to expense to defend it, and they lost. The best I can do I think in those circumstances is to allow the costs of the contractual claim to lie where they fall - to be borne by the respective parties who incurred them. I will make no order as to the costs of this claim.
45 Finally in relation to the matter CIV 1312 of 2008, the seventh plaintiff, whose action against the second defendant was settled by consent, needs to be considered. Orders were made disposing of that matter, including that the second defendant pay the seventh plaintiff's costs to be taxed. He seeks special costs orders pursuant to liberty reserved to him to make such an application. He does so on the ground that the claim against the second defendant was only settled immediately prior to the commencement of the trial.
46 However it is not otherwise sought to justify an application for special orders and, as the second defendant observes, the position of the seventh plaintiff was quite different from that of the remainder of the plaintiffs. His involvement in the trial was as the third defendant and as a third party and his preparation for the trial was no doubt substantially in that capacity. As a plaintiff he was separately represented and advances nothing out of the ordinary in relation to the taxation of costs. I do not
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- make any special costs order in relation to this plaintiff but leave the question of his costs to the order made by consent at the outset of the trial.
Costs orders: CIV 2279 of 2009
47 I was provided with a minute which was discussed by counsel for the plaintiff and third party on the one side and counsel for the first defendant on the other. In my view the minute accurately presents the orders which would be appropriate. I sum up my views about this particular litigation at the end of the principal reasons in [435] - [437], but I should express my reasons at a little more length and make my thinking clear.
48 I was not aware that originally the first five plaintiffs in CIV 1312 of 2008 commenced their actions in the District Court only against FSS and Mr Barclay. The sixth plaintiffs in CIV 1312 of 2008 sued the three parties who became the defendants in the consolidated proceedings, and as those proceedings were formulated before me and as the litigation was conducted, the question of contribution between the second and third defendants in those proceedings was, without regard to formality of the pleading process, raised generally.
49 I determined that the third defendant, for whose negligence the first defendant is admittedly vicariously liable, was two-thirds responsible for the accident and its consequences in law, whereas the second defendant bore responsibility for one-third of the legal consequences of the accident in relation to the claims made. That was the general position, except that the sixth plaintiffs succeeded in their claim for economic loss not incurred consequentially upon property damage, and therefore described as pure economic loss, only against the first and third defendants and not against the second defendant, Mr Barclay.
50 The action CIV 2279 of 2009 is a claim by FSS for damages for negligence, relevantly against Mr Barclay, who joins Mr Penberthy as a third party. The damages for which the plaintiff in CIV 2279 of 2009 sues are those directly suffered by reason of the loss of the aircraft and arising out of the economic consequences of the incapacity to use the aircraft for commercial purposes. Those damages are also said to include a component for the loss suffered by FSS as a result of its liability incurred vicariously for the negligence of Mr Penberthy to awards of damages in CIV 1312 of 2008.
51 Having regard to my views as to the apportionment of liability as between the third party, Mr Penberthy, and the first defendant, Mr Barclay, I have concluded that the damages recoverable by the
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- plaintiff FSS in CIV 2279 of 2009 will be one-third of the damages it has incurred as ultimately assessed because of the contribution to that loss by the negligence of Mr Penberthy for which FSS is vicariously responsible.
52 As to the damages by way of indemnity against the liability of FSS to pay damages for pure economic loss to the sixth plaintiffs in CIV 1312 of 2008, I found at [436] and earlier in the principal reasons that Mr Barclay owed FSS a duty of care in this regard. Because the loss suffered by FSS arises causally out of the occurrence of the accident for which, having regard to its vicarious liability for the negligence of Mr Penberthy, FSS is two-thirds responsible, in my opinion the indemnity which the first defendant in CIV 2279 of 2009 is liable to provide to the plaintiff in that action FSS should again be one-third of the damages recovered by the sixth plaintiffs from FSS. The orders I will make reflect that view.
53 As I think I explained in the principal reasons, in my opinion the proper view of the third party notice is that it raises on behalf of the first defendant a claim to be indemnified by the third party, which is not fully maintainable, and a claim for a contribution to the liability of the first defendant to FSS, which will result in the capacity of that plaintiff to recover from the first defendant the damages it must meet and the loss it sustained to the extent of the one-third responsibility for the accident and its consequences which the first defendant Mr Barclay must bear.
Final orders
54 In the circumstances I think I have been able to resolve the matters which have an impact upon the terms of those orders in both CIV 1312 of 2008 and CIV 2279 of 2009. The convenient course is therefore to make the orders which I have determined are appropriate, and I set them out below.
CIV 1312 of 2008
1. Judgment be entered for the first to fifth plaintiffs against the first and second defendants.
2. Judgment be entered for the sixth plaintiffs against the first, second and third defendants.
3. The first and second defendants do pay to the first to fifth plaintiffs damages to be assessed.
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- 4. The first, second and third defendants do pay to the sixth plaintiffs damages (save and except damages for pure economic loss) to be assessed.
5. The first and third defendants do pay to the sixth plaintiffs damages for pure economic loss to be assessed.
6. As between the first, second and third defendants, liability for the damages and costs payable to the first, second, third, fourth, fifth and sixth plaintiffs be apportioned as to two-thirds to the first and third defendants and as to one-third to the second defendant save and except for liability for the sixth plaintiffs' claim for damages for pure economic loss which is to be borne by the first and third defendants.
7. The sixth plaintiffs' claim against the first defendant for breach of contract be dismissed. Each party is to bear their own costs of that claim.
8. The first to seventh plaintiffs' costs be taxed as costs of an action.
9. The first to sixth plaintiffs' costs in these proceedings and in the District Court actions 400 of 2006, 402 of 2006, 2072 of 2006, 2073 of 2006, and 1592 of 2005 and Supreme Court action 1831 of 2006 be taxed as one set of costs.
10. Except as provided in order 7, the first, second and third defendants do pay the first to sixth plaintiffs' costs of the action, included reserved costs, to be taxed if not agreed, subject to the following:
10.1 the relevant scale limits as to time be removed in relation to the statements of claim and consolidated statement of claim (item 1(b));
10.2 the relevant scale limit as to amount be removed in relation to preparation and attendance at the mediation conferences (item 23(a));
10.3 the relevant scale limits as to time and amount be removed in relation to getting up (item 16);
10.4 the relevant scale limits as to time and amount be removed in relation to trial for items 19(a) and (b) only.
(Page 19)
- 11. The actions identified in order 9 herein be deconsolidated.
12. Pursuant to s 17(2) of the Supreme Court Act 1935 (WA) the actions of the first to fifth plaintiffs, being District Court action numbers 400 of 2006, 402 of 2006, 2072 of 2006, 2073 of 2006, and 1592 of 2005, be transferred back to the District Court of Western Australia at Perth for assessment of damages.
13. Supreme Court action number 1831 of 2006 continue under that action number for assessment of damages.
CIV 2279 of 2009
1. Judgment be entered for the plaintiff against the first defendant for damages to be assessed if not agreed.
2. The first defendant do pay the plaintiff one-third of the damages assessed or agreed.
3. A declaration be made that the first defendant is liable to indemnity the plaintiff as to one-third, in respect of its liability to the sixth plaintiffs' claim for pure economic loss and the costs of that claim, in CIV 1312 of 2008.
4. The costs of the action be reserved.
5. The action be otherwise adjourned to a directions hearing on a date to be fixed by the court.
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