City of Rockingham v Curley
[2000] WASCA 202 (S)
•4 AUGUST 2000
CITY OF ROCKINGHAM -v- CURLEY & ANOR [2000] WASCA 202 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 202 (S) | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:12/1999 | 7 & 8 FEBRUARY 2000 | |
| Coram: | WALLWORK J MURRAY J ANDERSON J | 4/08/00 | |
| 25/07/01 | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Special costs order refused Costs orders made | ||
| PDF Version |
| Parties: | CITY OF ROCKINGHAM STEPHEN ANTHONY CURLEY FREMANTLE PORT AUTHORITY |
Catchwords: | Costs Application for special costs order Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66, r 12(1) |
Case References: | City of Rockingham v Curley & Anor [2000] WASCA 202 Collins v Westralian Sands Ltd (1993) 9 WAR 56 Schmitt v Gilmour [1988] WAR 219 Cummings v Lewis and Ors (1993) 113 ACR 285 Dodds Family v Lane Industries (1993) 26 IPR 261 Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Haynes & Anor v Top Slice Deli Pty Ltd & Ors, unreported; Federal Ct; BC9501599; December 1995 Hughes v West Australian Cricket Association (1986) ATPR 40-748 Hunt v McKay, unreported; FCt SCt of WA; Library No 9140; 7 November 1991 McConnell & Prue v Nationwide News Pty Ltd, unreported; SCt of WA; Library No 920670; 10 December 1992 Patent Gesellschaft v Sauydi (1996) 33 IPR 461 Re Glassford (1901) 27 VLR 257 Rediffusion Simulation Ltd v Link-Miles Ltd [1993] FSR 369 Ritter v Godfrey [1920] 2 KB 47 Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213 Way v Swan Television & Radio Broadcasters Ltd (1991) 5 WAR 323 X and Y (by her tutor X) v Pal & Ors, unreported; NSW Ct of Appeal; 7 June 1991 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : CITY OF ROCKINGHAM -v- CURLEY & ANOR [2000] WASCA 202 (S) CORAM : WALLWORK J
- MURRAY J
ANDERSON J
DATE : 27 JUNE 2001 SUPPLEMENTARY
DECISION : 25 JULY 2001 FILE NO/S : FUL 12 of 1999 BETWEEN : CITY OF ROCKINGHAM
- Appellant (Second Defendant)
AND
STEPHEN ANTHONY CURLEY
First Respondent (Plaintiff)
FREMANTLE PORT AUTHORITY
Second Respondent (First Defendant)
- Appellant (First Defendant)
AND
(Page 2)
- STEPHEN ANTHONY CURLEY
First Respondent (Plaintiff)
CITY OF ROCKINGHAM
Second Respondent (Second Defendant)
Catchwords:
Costs - Application for special costs order - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 66, r 12(1)
Result:
Special costs order refused
Costs orders made
Representation:
FUL 12 of 1999
Counsel:
Appellant (Second Defendant) : Mr D M McKenna
First Respondent (Plaintiff) : Mr R V Lonnie
Second Respondent (First Defendant) : Ms D Colvin
Solicitors:
Appellant (Second Defendant) : Jackson McDonald
First Respondent (Plaintiff) : Friedman Lurie Singh
Second Respondent (First Defendant) : Freehills
(Page 3)
FUL 18 of 1999
Counsel:
Appellant (First Defendant) : Ms D Colvin
First Respondent (Plaintiff) : Mr R V Lonnie
Second Respondent (Second Defendant) : Mr D M McKenna
Solicitors:
Appellant (First Defendant) : Freehills
First Respondent (Plaintiff) : Friedman Lurie Singh
Second Respondent (Second Defendant) : Jackson McDonald
Case(s) referred to in judgment(s):
City of Rockingham v Curley & Anor [2000] WASCA 202
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Schmitt v Gilmour [1988] WAR 219
Case(s) also cited:
Cummings v Lewis and Ors (1993) 113 ACR 285
Dodds Family v Lane Industries (1993) 26 IPR 261
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Haynes & Anor v Top Slice Deli Pty Ltd & Ors, unreported; Federal Ct; BC9501599; December 1995
Hughes v West Australian Cricket Association (1986) ATPR 40-748
Hunt v McKay, unreported; FCt SCt of WA; Library No 9140; 7 November 1991
McConnell & Prue v Nationwide News Pty Ltd, unreported; SCt of WA; Library No 920670; 10 December 1992
Patent Gesellschaft v Sauydi (1996) 33 IPR 461
Re Glassford (1901) 27 VLR 257
Rediffusion Simulation Ltd v Link-Miles Ltd [1993] FSR 369
Ritter v Godfrey [1920] 2 KB 47
(Page 4)
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213
Way v Swan Television & Radio Broadcasters Ltd (1991) 5 WAR 323
X and Y (by her tutor X) v Pal & Ors, unreported; NSW Ct of Appeal; 7 June 1991
(Page 5)
1 JUDGMENT OF THE COURT: On 4 August 2000 the Court published reasons for judgment in these two appeals which were heard together on 7 and 8 February 2000: City of Rockingham v Curley & Anor [2000] WASCA 202.
2 There were appeals, cross-appeals and notices of contention in respect of a judgment upon the issue of liability given by a Commissioner of the District Court in favour of the plaintiff, Mr Curley for damages for negligence reduced by 20 per cent for his contributory negligence. As between the appellants in the two appeals, the City and the FPA, liability was apportioned 75 per cent to the FPA and 25 per cent to the City. Damages had been agreed in the sum of $1.85M and special damages.
3 In the appeal Ful 12 of 1999 the City challenged the finding of the District Court that it owed a duty of care to the plaintiff and that it was in breach of any such duty. Its contention was that the FPA should be held solely liable to the plaintiff in negligence. The plaintiff cross-appealed against the finding of contributory negligence or, alternatively, the finding that the plaintiff's damages should be reduced by 20 per cent rather than a lesser percentage. There was a cross-appeal by the FPA, particularly concerned with the contribution proceedings, contending that the FPA should make no contribution to the damages awarded against the City, that on the contrary the City should indemnify it in relation to any liability to the plaintiff or, alternatively, that the City should make a greater contribution to the damages awarded against the plaintiff than to the extent of 25 per cent.
4 In that appeal the City succeeded. It was held to be under no liability to the plaintiff, not because it owed the plaintiff no duty of care, but because the City was held not to be in breach of that duty. It follows that in Ful 12 of 1999 the appeal should be allowed, the judgment against the City should be set aside and the plaintiff's claim against the City should be dismissed. It follows that the cross-appeal by the FPA should also be dismissed.
5 As to the question of contributory negligence the plaintiff did not succeed in persuading the Full Court that there should be no finding of contributory negligence or that the percentage allowance made in that regard should be reduced. Indeed, in the appeal Ful 18 of 1999, to which we shall come shortly, the Court increased the apportionment against the plaintiff for contributory negligence from 20 per cent to 33-1/3 per cent. In Ful 12 of 1999 therefore, the plaintiff's cross-appeal should be dismissed.
(Page 6)
6 The appeal Ful 18 of 1999 was brought by the FPA against the plaintiff and the City. The contention of the FPA was not that it owed the plaintiff no duty of care, but that it was not in breach thereof. Alternatively, it was contended that the allowance of 20 per cent for the plaintiff's contributory negligence should be increased. The plaintiff cross-appealed to advance the same contentions that there should have been no finding of contributory negligence or, alternatively, the allowance made should be reduced to a lower percentage than 20 per cent. Although the City was the second respondent to this appeal, no relief was sought against it and the issues raised were fought out between the FPA and the plaintiff. The FPA failed in this appeal in persuading the court that it was not negligent, but it succeeded in achieving an increase in the apportionment made against the plaintiff on the ground of contributory negligence.
7 It follows that the appeal should be allowed and the cross-appeal dismissed. As a result of this appeal the judgment entered for the plaintiff against the FPA should be varied by reducing it to the sum of $1,235,760.20, the figure produced by applying the reduction of 33-1/3 per cent for contributory negligence to the agreed amount of general and special damages, the sum of $1,853,547.75. We shall return later to set out the appropriate orders in relation to the proceedings in the District Court with more particularity.
8 In relation to costs, the principal matter in contention is firstly an application by the FPA for a special costs order removing the limits in respect of getting up the appeal for hearing and the counsel fees recoverable in respect of Queen's Counsel. That application is made in the appeal Ful 12 of 1999.
9 The relevant costs determination is the Supreme Court (Contentious Business) Determination 1999. The scale provided in the determination allows for a maximum of $2,700 for getting up the appeal calculated to cover ten hours work at the rate appropriate to a senior practitioner. Under the scale two days preparation is also allowed for in the claim that can be made in respect of counsels' fees, including those of Queen's Counsel where two or more counsel are certified. For senior counsel in respect of an appeal taking two days to argue, the maximum which may be recovered for counsels' fees is the sum of $14,000.
10 The City applies to remove the limits in respect of those costs items and also in respect of drawing and settling the index for the appeal book, in respect of which, for eight hours work by a junior practitioner, a
(Page 7)
- maximum amount of $1,440 is provided. The appeal book in this case was substantially in electronic form and it is in respect of that work that it is sought to remove the limit in relation to drawing and settling the index.
11 The application is made under the Rules of the Supreme Court 1971 (WA), O 66, r 12(1) which provides:
"Where the Court is of opinion that a special Order as to costs should be made by reason of the unusual complexity or importance of the case or for any other good or sufficient reason the Court may order that any particular allowances in any relevant scale be raised or a limit removed and in giving any such direction the Court may fix a limit within which the Taxing Officer may allow such costs."
12 It needs to be pointed out, as the court does from time to time, that such a special order is made in the exercise of the court's discretion as to costs and the order will not be lightly made, the general rule being that the taxation of costs should proceed in accordance with the provisions of the relevant costs determination. Where the complexity of the case, or in this case the appeal, is relied upon, it is to be noted that the rule grounds the exercise of the court's discretion upon its conclusion that the appeal involved, not simply some complexity, but "unusual complexity". In our view no such ground for a special costs order exists in this case by reference to unusual complexity of law or fact.
13 The reference in the rule to "any other good or sufficient reason" makes it clear that consideration of the remuneration reasonably to be provided for work properly carried out may of itself provide good and sufficient reason to make a special order: Schmitt v Gilmour [1988] WAR 219, 220. A number of later decisions have further expounded the approach the court will take. The decision most recently reported would appear to be Collins v Westralian Sands Ltd (1993) 9 WAR 56 where it was held that the purpose of the order is to enable the successful party to recover costs reasonably incurred. So the court will examine the work done, consider whether it was necessarily or reasonably done and consider what remuneration ought to be provided in broad terms, matching that against the capacity to make an award within the terms of the relevant scale, appreciating always that it is ultimately for the Taxing Officer to make the proper allowance upon a more detailed consideration of the litigation and the claim for costs placed before that officer.
(Page 8)
14 Little in the way of evidence was advanced to support the application by the City. The work to which reference is made in respect of discovery appears to us, if reasonable, to relate to the costs of trial as does much of the other getting up work, including proofing of witnesses, to which the supporting affidavit refers. Concentrating on the appeal, it is our view that no unusual complexity of fact or law presented itself and as to the work required we are told only that the fee note of senior counsel was in the sum of $26,740.
15 In our opinion, however, there is nothing to suggest that the capacity to recover $14,000 in respect of a two day appeal, allowing for two days preparation, would in this case provide inadequate remuneration, particularly when considered with the capacity to recover up to $9,200 for the like work of junior counsel. There is no question that we should provide the necessary certification for two counsel. Having regard to the getting up element of those allowances, we see no reason to suppose that adequate remuneration for getting up the appeal could not be provided within the limits of the scale.
16 As to the question of the work required to prepare the appeal book in electronic form, we note that under the scale, in addition to the charges allowed under the determination, "as between party and party, a party may be allowed disbursements necessarily or reasonably incurred". No special authorisation is required. Apart from that, however, we are prepared to accept that the solicitors for the FPA may have been put to greater expense than would be adequately remunerated by the maximum allowance of $1,440 in respect of eight hours work by a junior practitioner in drawing and settling the index to the appeal book. We would therefore be prepared to make a special order removing the limit provided in respect of item 20(b) of the scale. Otherwise we would not grant the application for a special order under O 66, r 12(1) in this case.
17 A further question arises as to the award of costs in Ful 18 of 1999. The FPA argues that it should have the costs of the appeal as it succeeded at least to the extent of obtaining an increase in the apportionment against the plaintiff on the ground of contributory negligence. It points out that although it failed in its contention that it should not have been held to be in breach of its duty of care, the factual issues were common to both arguments, as indeed they were pleaded by the notice of appeal to be. At the very least, argues the FPA, it should recover 50 per cent of its costs of that appeal. The City, on the other hand, seeks orders that the FPA pay its costs of this appeal on the basis that there was no reason why it was joined in the first place. Against that argument the FPA makes a submission that
(Page 9)
- the City took no part in this appeal in any event. It said in its outline of submissions that it did not wish to be heard on the issue of the contributory negligence of the plaintiff. Finally, the plaintiff seeks two thirds of his costs of this appeal on the basis that he succeeded so far as the FPA's contention that they were not negligent was concerned and the plaintiff argues there should be no order for costs on the cross-appeal.
18 We think that in the appeal Ful 18 of 1999 costs should follow the event. The contention of the FPA on this appeal was effectively that it was not negligent, or if it was, the plaintiff bore a greater share of the responsibility for the accident than had been fixed by the District Court. It does not seem to us that, having regard to the way in which the issues on this appeal were raised and argued, it would be appropriate to deprive the FPA of any part of its costs by reason of the issue of liability upon which it was unsuccessful. We think, however, that the City played no part in this appeal in which, although it was a respondent, as we have said, no relief was sought against it. Had it not succeeded in the appeal Ful 12 of 1999, it would have taken the benefit of an increase in the apportionment against the plaintiff for contributory negligence and for that reason, its joinder as a respondent to the appeal was appropriate. In our view no order in respect of the City's costs should be made in the appeal Ful 18 of 1999. So far as the cross-appeal is concerned, in our opinion the costs should follow the event.
19 We were reminded that the question of the costs of the District Court proceedings was adjourned to a date to be fixed and therefore, as we understand it, any special orders which may be sought as to the costs of those proceedings may be left to that Court in the light of the outcome of the appeals and cross-appeals.
20 In our opinion the appropriate final orders, to which in each case we would add liberty to apply generally, are as follows:
Ful 12 of 1999
1. The appeal be allowed.
2. The cross-appeal by the FPA be dismissed.
3. The cross-appeal by the plaintiff be dismissed.
4. The judgment entered in the District Court for the plaintiff against the City be set aside and the plaintiff's claim against the City be dismissed.
(Page 10)
- 5. The contribution proceedings by the FPA against the City be dismissed.
6. The FPA and the plaintiff do pay the City's costs of the appeal and cross-appeals to be taxed with a certificate for second counsel.
7. The limit upon taxation provided in item 20(b) of the scale of costs be removed.
8. The plaintiff do pay the City's costs of trial in the District Court to be taxed with a certificate for second counsel.
9. The FPA do pay the plaintiff's costs of the trial in the District Court to be taxed with a certificate for second counsel.
Ful 18 of 1999
1. The appeal be allowed.
2. The cross-appeal by the plaintiff be dismissed.
3. The judgment for the plaintiff against the FPA be varied so as to reduce the amount of the judgment to the sum of $1,235,760.20.
4. The plaintiff do pay the FPA's costs of the appeal and the cross-appeal to be taxed with a certificate for second counsel.
5. There be no order as to the costs of the City in relation to this appeal and cross-appeal.
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