Coal Hub Pty Ltd v NSL Consolidated Ltd [No 5] - [2018] WASC 326

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   COAL HUB PTY LTD -v- NSL CONSOLIDATED LTD [No 5] [2018] WASC 326
CORAM:   ALLANSON J
HEARD:   28 SEPTEMBER 2018
DELIVERED          :   26 OCTOBER 2018
FILE NO/S:   CIV 1202 of 2015
BETWEEN:   COAL HUB PTY LTD
Plaintiff
AND
NSL CONSOLIDATED LTD
Defendant

Catchwords:

Costs - Where only nominal damages awarded - Whether conduct of counsel unreasonably increased the costs of trial - Whether court should make special costs order

Legislation:

Evidence Act 1906 (WA), s 11
Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA)
Legal Profession Act 2008 (WA), s 280(2)
Legal Profession Conduct Rules 2010 (WA)
Rules of the Supreme Court 1971 (WA), O 66
Supreme Court Act 1935 (WA), s 37(1)

Result:

The plaintiff to pay the defendant's costs of the action
Special costs orders made

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett
Defendant	:	Mr J Garas

Solicitors:

Plaintiff	:	Bennett + Co
Defendant	:	Armeli & Molony Lawyers

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

Coal Hub Pty Ltd v NSL Consolidated Ltd [No 2] [2016] WASC 257
Coal Hub Pty Ltd v NSL Consolidated Ltd [No 3] [2017] WASC 144
Coal Hub Pty Ltd v NSL Consolidated Ltd [No 4] [2018] WASC 41
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65 (S)
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Sino Iron Pty Ltd v Mineralogy [No 2] [2017] WASCA 76 (S)

ALLANSON J:

The action was tried before Banks-Smith J. On 9 February 2018, her Honour gave judgment for the plaintiff in the sum of $1,000 but otherwise dismissed the action. The issue of costs was referred to a judge to be determined in chambers.
On 9 May 2018, I ordered that the parties file and serve a minute of proposed orders (including any special costs orders sought), any supporting affidavits and submissions on the costs of the action and further provided for responsive evidence and submissions.
The following questions are raised in the parties' submissions:
(1)how should the discretion to award costs be exercised where the plaintiff succeeded but obtained nominal damages only;
(2)did the defendant's conduct at trial warrant an order that the defendant pay a portion of the plaintiff's costs, or that there be no order as to costs;
(3)did either party unreasonably increase the length of trial, particularly with regard to the expert evidence;
(4)if costs are awarded to the defendant, should the court make a special costs order.

The action

The action was commenced by writ in 2015 by Birmanie Nominees Pty Ltd.
Birmanie owned the applications for exploration permits for coal and associated rights relating to four tenements in Central Queensland (the assets).
By a tenement acquisition agreement in June 2011, Birmanie sold the assets to NSL Consolidated Ltd (the Agreement). The consideration was four payments (which were paid), with two further amounts of $1.25 million payable on establishment of Joint Ore Reserves Committee (JORC) Inferred or Indicated coal resources of at least 500 million tonnes (Inferred resources) or 250 million tonnes (Indicated resources) across all or any of the tenements.[1]
[1] Agreement cl 4.1(e) (f).
NSL needed to secure unfettered access to the tenements in order to commence drilling. NSL said that despite its efforts it did not obtain unfettered access.
Birmanie alleged that NSL, on a proper construction of the agreement, obtained unfettered access from 26 November 2013; alternatively, it alleged that NSL failed or neglected to use its best efforts or reasonable endeavours to obtain access. NSL did not conduct a drilling programme.
Birmanie alleged that NSL repudiated the Agreement and that Birmanie accepted the repudiation and terminated the Agreement.
Birmanie commenced proceedings for damages. In August 2015, by deed of assignment between Birmanie, Subiaco Capital and Coal Hub Pty Ltd, Birmanie assigned its interest in monies owing by NSL and its rights under the Agreement to Coal Hub, which from then continued the action.
Coal Hub claimed the amount of $2.5 million under the Agreement, alternatively damages.
NSL said that, on a proper construction of the Agreement, it did not obtain unfettered access, and that it had no obligation to undertake drilling. NSL further pleaded that it would not have established Inferred or Indicated coal resources of 500 million tonnes (Inferred) or 250 million tonnes (Indicated), and that, even if it breached the agreement, there was no loss. NSL's case was that there was no repudiatory conduct, and there had been no valid termination.
Birmanie later assigned its interests in the litigation to Coal Hub Pty Ltd.
The trial proceeded by reference to eight issues identified for determination by the trial judge.[2] Some issues related to the construction of the Agreement. Others required the court to determine whether NSL had breached obligations under the Agreement, properly construed. A critical issue was whether, by its conduct, NSL had repudiated the Agreement. Coal Hub sought damages, including damages for the lost opportunity to receive the payments of $1.25 million under each of cl 4.1(e) and (f) of the Agreement, to which it would be entitled on establishment of the Inferred and Indicated resources.
[2] Coal Hub Pty Ltd v NSL Consolidated Ltd [No 4] [2018] WASC 41 (Primary judgment) [9] - [18].
The last issue was whether, if the Agreement had been terminated, the assignment by Birmanie to Coal Hub of the bare right to litigate was invalid.

The trial

The trial was conducted over 14 days (including a directions hearing on 14 June 2017) between May and August 2017.
Coal Hub called five lay witnesses and one expert, Mr Mark Biggs. NSL called one lay and one expert witness. The plaintiff's lay witnesses took less than a day to complete their evidence. The defendant's lay witness gave evidence over just less than five hours. As is often the case, a substantial part of the trial time was required for determining objections to evidence, including a voir dire to resolve objections to expert evidence that Coal Hub proposed to lead.
The trial judge made general credibility findings regarding the lay witnesses, finding aspects of the evidence of the principal witness for each party troubling, but generally accepting the evidence of the witness for NSL. Her Honour's findings regarding the expert witnesses are significant to the costs dispute and are dealt with separately.
With regard to liability, the critical finding was that Coal Hub had not established that NSL's conduct manifested an inability or unwillingness to perform its obligations under the agreement.[3]
[3] Primary judgment [184] ‑ [196].
The trial judge found breaches of the Agreement in certain delays by NSL, but said:
Coal Hub did not address what damages might be caused by such delays in the scenario where the breach was not repudiatory. Its case and submissions focussed on loss of opportunity on the assumption that the Agreement was terminated by its acceptance of NSL's alleged repudiation. Damages for such alleged lost opportunity are recoverable only if the Agreement is terminated for the defendant's wrongful conduct.[4]
[4] Primary judgment [198].
Her Honour awarded nominal damages for the identified breaches of contract in the sum of $1,000.[5]
[5] Primary judgment [200].
The trial judge further found that Coal Hub had failed to persuade her that, even had repudiatory breach been established, it had any more than a very slight chance of receiving payment of the fifth payment and a speculative change of receiving the sixth.[6] Her Honour provisionally assessed damages at $62,500.
[6] Primary judgment [362].
Her Honour further found that, had the Agreement been terminated by repudiatory conduct, Coal Hub had no genuine commercial interest and the purported assignment to it of the bare right to litigate was invalid.
Judgment was given for Coal Hub in the sum of $1,000.

The expert evidence

Before trial there was an interlocutory dispute regarding the plaintiff's expert evidence. In 2016, Beech J upheld NSL's objection to certain statements on which Coal Hub's expert, Mr Biggs, relied in his report, and upheld objections to the report.[7] As a result, the trial then scheduled for September 2016 was vacated and rescheduled for May 2017.[8]
[7] Coal Hub Pty Ltd v NSL Consolidated Ltd [No 2] [2016] WASC 257.
[8] Coal Hub Pty Ltd v NSL Consolidated Ltd [No 3] [2017] WASC 144 [5].
Further objections to the revised report of Mr Biggs were raised at trial. The trial judge, Banks-Smith J, said:
As can perhaps be inferred, significant trial time in this matter has been spent dealing with objections. Mr Garas suggested that one way of resolving the issues as to Tables 6a and 6b was to conduct a voir dire with Mr Biggs and Mr Arnott (the defendant's expert) present so that Mr Garas could ask Mr Biggs about the preparation of Tables 6a and 6b and he could then consider whether objections to the admission of those tables or other parts of the Report would be pressed. That appeared to be a sensible manner by which to attempt to progress the issues and a voir dire is not uncommon in such circumstances. …
A voir dire was scheduled for the following day (day five).
On the morning of day five, a revised version of Tables 6a and 6b was handed up in court by Mr Bennett.
At the end of the voir dire, Mr Garas sought a ruling as to the admission of Tables 6a and 6b, and as to objections to certain paragraphs in the Report.[9]
[9] Coal Hub Pty Ltd v NSL Consolidated Ltd [No 3] [17] - [20].
Banks-Smith J upheld the objections to the admission of Tables 6a and 6b, stating that the additional expert evidence has been provided late and during the trial, the trial had already been vacated once due to difficulties with the plaintiff's expert evidence, the defendant had informed the plaintiff of its objections 'some three months ago', and its admission would result in unfair prejudice to the defendant.[10] Her Honour also found that there was a failure by Mr Biggs to articulate his reasoning sufficiently to enable the defendant to test the opinions provided. Banks-Smith J also noted concessions made by Mr Biggs, during the voir dire, and his request that changes be made to his report.[11]
[10] Coal Hub Pty Ltd v NSL Consolidated Ltd [No 3] [69].
[11] Coal Hub Pty Ltd v NSL Consolidated Ltd [No 3] [85] ‑ [86].
Banks-Smith J found Mr Biggs to be 'an unsatisfactory witness and out of his depth'.[12] Her Honour said she gave 'no weight' to his report or the opinion he formed, and found the report was 'unreliable and patently false in certain aspects'.[13] It is unnecessary to repeat her Honour's detailed findings,[14] other than to note that her Honour made findings about when Mr Biggs purchased shares in NSL, but found it unnecessary and inappropriate, in the context of the proceedings, to make findings about whether his conduct offended provisions relating to insider trading.[15]
[12] Primary judgment [24].
[13] Primary judgment [260].
[14] Primary judgment [263] - [305].
[15] Primary judgment [267].
Banks-Smith J also made detailed findings on the evidence of the expert called by NSL, Mr Arnott, including a challenge to his independence. Her Honour found him to be reliable and credible, and generally accepted his evidence.[16]
[16] Primary judgment [356].

General principles governing the award of costs

The costs of and incidental to all proceedings in the court are in the discretion of the court.[17] The discretion must be exercised judicially, but it is otherwise unconfined.[18]
[17] Supreme Court Act 1935 (WA) s 37(1).
[18] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [21] - [22], [134]; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 540, 558, 562, 568.
While the discretion to award costs cannot be shackled, and considerations which might guide the exercise of the discretion cannot be rigidly applied, O 66 of the Rules of the Supreme Court 1971 (WA) and the authorities offer guidance on the proper exercise of the discretion. Consistency in the exercise of judicial discretion is important in the administration of justice. Giving proper consideration to the general rules in O 66, and to decisions in other cases, is an important measure in ensuring consistency.
The general rule in O 66 r 1 of the Rules of the Supreme Court 1971 (WA) is that the court will generally order that the successful party to any action or matter recover their costs. That rule is expressed not to limit the general discretion conferred on the court. Order 66 r 1 is qualified by r 1(2) which provides:
If the Court is of opinion that the conduct of a party either before or after the commencement of the litigation or that a claim by a party for an unreasonably excessive amount has resulted in costs being unnecessarily or unreasonably incurred it may deprive that party of costs wholly or in part, and may further order him to pay the costs of an unsuccessful party either wholly or in part.
In Oshlack v Richmond River Council, McHugh J said:
The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows:
'No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.'
'Misconduct' in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.[19]
[19] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [69] (citations of authority omitted).
In the present case, further guidance is found in the decision in Motium Pty Ltd v Arrow Electronics Australia Pty Ltd where the Court of Appeal reviewed the authorities and said:
While each case must depend upon its own facts, where it is not a primary purpose of proceedings simply to establish or vindicate some legal right but the primary purpose is to recover substantial damages, ordinarily an award of nominal damages will not entitle a party to the costs of the proceedings: see Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166 [9]. In such a case, the party has obtained something of no real use to them and something which, if they had known it was all that was available, they would not have brought proceedings to recover. It would be contrary to modern notions of the efficient and cost-effective use of judicial resources to enable a party to recover its costs for a pyrrhic victory, having substantively failed in the action.[20]
[20] Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65 (S) [10].

Findings on costs

NSL submits that it was, in substance, the successful party. NSL also submits that Coal Hub's conduct significantly extended the length of the trial; and that expert evidence played a significant part in the trial, and the evidence of Coal Hub's expert was rejected and given no weight.
There are two bases in the findings at trial on which NSL is, in reality, the successful party. First, on a claim for substantial damages, with a trial over 14 days, NSL has been found liable only for nominal damages. Coal Hub's claim that the Agreement had been terminated by repudiation failed. Second, had Coal Hub established termination of the Agreement, the assignment to it of the right to litigate would have been invalid.
NSL does not seek indemnity costs based on Coal Hub's conduct of the trial. It is not necessary to decide whether Coal Hub extended the length of the trial to determine whether NSL is the party which should be compensated for its costs.
Coal Hub accepts that the court may order costs in favour of NSL where nominal damages only have been awarded. It submits, however, that the conduct of NSL at trial should result in the court ordering that NSL pay 20% of Coal Hub's costs of the proceedings, alternatively that there be no order as to the costs of the proceedings.
The issue of NSL's conduct relates to the cross‑examination of the plaintiff's expert witness, Mr Biggs.
Coal Hub submits that NSL raised the issue of potential insider trading by Mr Biggs as a significant issue.[21] It submits that this allegation was made improperly and unreasonably, and had the effect of significantly increasing the parties' legal costs, the length of the proceedings and the issues before the court. Coal Hub further submits that it would appear that the only reason it was necessary to re-open cross-examination of Mr Biggs was to provide an answer to complaints made by the plaintiff that the allegation of 'potential' insider trading was made without adequate foundation and in breach of the Legal Profession Conduct Rules 2010 (WA). This, understandably, drew a response from counsel for NSL in responsive submissions, both in writing and orally.
[21] See ts 750, 26 May 2017.
I do not accept the plaintiff's submission that the defendant's conduct at trial should lead to a departure from the costs order that I would otherwise have made.
The question of possible insider trading was raised with the trial judge by counsel for NSL, in the absence of the witness. Counsel had cross‑examined Mr Biggs about the Independent Geologist's Report he had prepared in July 2011. Mr Biggs admitted that particular information in it was false. Counsel intended to put questions as to when Mr Biggs purchased the shares in NSL. The questions went to the allegation that Mr Biggs purchased shares in circumstances where he was going to be 'the principal geologist to issue an independent geologist's report on a company that would be making an announcement to the ASX regarding these tenements.'[22]
[22] ts 752.
When counsel for the defendant continued his cross examination, the area to which the questions were directed could have resulted in the witness (properly advised) seeking to claim privilege against self‑incrimination.
The trial judge found, in relation to this issue, that 'the manner in which the falsity of the information in the figure was disclosed again calls into question [Mr Biggs'] competency and understanding of the significance of the role of an independent geologist and an independent expert'.[23] For present purposes, it is helpful to set out other relevant findings of the trial judge:
•Mr Goode (of NSL) was introduced to Mr Biggs sometime prior to June 2011. At that time, Mr Biggs was the principal geologist for Moultrie Database and Modelling Pty Ltd.
•At least by 15 June 2011, Mr Goode had approached Moultrie on behalf of NSL to complete reports with respect to the Tenements.
•On the afternoon of 15 June 2011, Mr Biggs assisted Mr Goode with the drafting of a draft ASX announcement by NSL to disclose its entry into the Agreement.
•Later that day and after the close of market, Mr Biggs placed a buy order for 10,000 shares in NSL through an online broker.
•Mr Biggs placed the order when the information about the Agreement had not yet been made public.
•The announcement to the market was made on 16 June 2011. Mr Biggs' buy order was executed at 10.58 am that day.
•There is no evidence that Mr Biggs arranged with anyone to defer the acquisition until after the announcement was made.[24]
[23] Primary judgment [301].
[24] Primary judgment [262] ‑ [266].

Counsel for Coal Hub then asked the court to adjourn before he re‑examined, for reasons including that he needed to re-examine the witness about the suggestion of insider trading.[25] The trial was adjourned until 20 June 2017.
[25] ts 762.
In the period before the resumption of the hearing, NSL requested a directions hearing to consider whether the trial judge might permit Mr Biggs to obtain legal advice before again giving evidence. On 14 June 2017, after hearing from counsel, Banks-Smith J permitted communication with Mr Biggs to facilitate his having a lawyer present should issues of incrimination arise.
On 20 June 2017, the trial judge permitted counsel for NSL to further cross examine in relation to documents obtained during the period of the adjournment and which showed when Mr Biggs had placed his order for purchase of the NLS shares. The cross‑examination lasted just over 30 minutes. The witness was represented and, through his lawyer, requested a certificate under s 11 of the Evidence Act 1906 (WA).
The independence and credibility (both honesty and reliability) of Mr Biggs was a legitimate area for counsel to question. He was an important witness for the plaintiff. The transcript of the hearings on 26 May and 20 June 2017 does not demonstrate that counsel for NLS acted unreasonably. The findings made at trial establish that the challenge to the independence, competence and credibility of the witness were well founded.
The trial judge said that she did not need to resolve any question about whether Mr Biggs' conduct offended insider trading provisions, and nor was it appropriate to resolve those questions in the context of the proceedings. Her Honour did not, however, suggest in any way that the line of questioning was improper.
I also do not accept the submission that the trial judge's decision to allow Mr Biggs to be represented demonstrates that the defendant's conduct was disproportionate. It was possible that the question of self‑incrimination may arise as a consequence of the proposed line of cross‑examination. The trial judge accepted that legal representation of the witness was appropriate. Nothing has been put forward to suggest that was wrong, and it is a course with which I agree.
I cannot, with respect, understand the further submission that the fact that NSL commenced proceedings against Mr Biggs in July 2017 (after he had completed his evidence but before the trial had ended) demonstrates the disproportionate nature of the defendant's conduct during the trial.
In summary, the trial judge was best placed to judge whether counsel exceeded reasonable bounds. There is nothing in the reasons of the trial judge, or her Honour's rulings and comments in the course of the trial, to support a conclusion that the challenge to Mr Biggs was unjustified, or that it was done in an unreasonable way. My own consideration of the transcript has revealed nothing which would lead me to conclude that the defendant, who in reality was the successful party, should not have the costs of the action.
In my judgment, NSL should have the costs of the trial. Pursuant to undertakings dated 1 May 2015 and 17 November 2015, by which they undertook joint and several liability, each of Jason Bradley Osborne, Troy Wayne Warrick and Subiaco Capital Pty Ltd (ACN 129 705 308) together with Coal Hub should pay the defendant's costs of the action to be taxed, if not agreed.

Further orders

NSL seeks a certificate for the costs of obtaining the transcript of the trial. I am aware that such orders are made, but not of any current basis for issuing a certificate. With a 14 day trial, conducted over the period May to August 2017, the obtaining of transcript is reasonable. I will order that the costs of trial should include the costs of transcript as a disbursement reasonably incurred.
NSL also seeks the following order:
Pursuant to s 280(2) of the Legal Profession Act 2008 (WA), the Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA) is varied as follows:
(a)the limit on maximum allowable time in item 20(a) (counsel fee for fee on brief, including submissions) is removed;
(b)the allowance in item 20(e) (instructing legal practitioners attending trial) be lifted to allow for two instructing solicitors, as one Senior Practitioner and one Junior Practitioner;
(c)NSL's costs are to include an allowance for its costs of conferences with Coal Hub's counsel and solicitors regarding objections to witness statements and the index to the trial bundle.
An order under s 280(2) does not vary the costs determination but 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; and
(d)make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.
The parties agreed regarding the principles relating to the application of s 280(2), as recently summarised in Sino Iron Pty Ltd v Mineralogy [No 2].[26]
Before such a power will be exercised, the court must form an opinion that has two components. First, 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 cost determination. Secondly, the court must also form the opinion that the inadequacy of the costs allowable under a costs determination arises because of the 'unusual difficulty, complexity or importance of the matter'. Issues of the kind which arise are addressed as matters of impression, rather than as matters of detailed evaluation, precision or science.
A fairly arguable case to that effect will not be established merely because a party incurred greater costs than those allowable under the relevant determination. However, depending on the particular case and all the circumstances, the fact that a party has applied significantly greater legal resources to each step in the litigation than those for which allowance is made under items of the relevant determinations, when viewed in the context of the difficulty, complexity or importance of the matter, may sustain the conclusion that there is a fairly arguable case that each of the items identified is inadequate (and thereby the amount of costs allowable in respect of the matter is inadequate) because of the unusual difficulty, complexity or importance of the matter.
… Also, the reference to 'importance' in this context allows the court to have regard to the significance of the issues that arose in the litigation. Significance can arise either because of the significance of the issues to the parties, or because of the significance of the issues to other prospective parties, or to the public or community generally …[27]
[26] Sino Iron Pty Ltd v Mineralogy [No 2] [2017] WASCA 76 (S) [11] - [16].
[27] Sino Iron Pty Ltd v Mineralogy [No 2] [2017] WASCA 76 (S) [12], [14], [15].
NSL filed, in support of its case, the affidavit of Anita Zaba‑Czader, dated 1 June 2018, in which she set out the time spent by counsel in drafting opening submissions and preparing for trial, and the occasions when two solicitors attended (including whether the time of each was charged on that occasion).
The time spent by counsel exceeds that allowed under the determination. The first question at this stage is not whether all of that time should be allowed - that ultimately is for the taxing officer - but whether there is a fairly arguable case that the taxing officer may properly tax at an amount that is greater than the limit imposed by the relevant cost determination.
NSL supports its application by the factors of complexity and importance.
First it submits that the matter was factually 'dense', requiring lengthy and detailed expert evidence. I was not the trial judge. I have read the pleadings, much but not all of the transcript, and the reasons for decision. That material was sufficient to satisfy me that it is fairly arguable that more than the time limited for getting up was reasonably required and that the inadequacy of the allowance for getting up arises because of the complexity of the matter.
NSL also refers to the importance of the claim, by reference to both the financial impact of the claim, and the importance of the allegation that it had repudiated the agreement.
Counsel for Coal Hub submitted that there was no direct evidence from NSL about the importance of the claim. NSL relied on the amount claimed and its financial position disclosed in its annual report.[28] I am satisfied that this case can fairly be seen as important to NSL, and justifying the expenditure of resources to obtain a favourable outcome, because of that.
[28] Which was in evidence at trial.
I would, accordingly, make an order pursuant to s 280(2) of the Legal Profession Act removing the limit on the maximum allowable time for counsel under item 20(a) of the Legal Profession (Supreme Court) (Contentious Business) Determination 2016.
NSL sought the second special costs order, for two solicitors attending court, on the same basis and by reference to the resources employed by Coal Hub who were represented by two counsel with instructing solicitor present. Again, by reference to the complexity of the matter, I am satisfied the order should be made. It is fairly arguable that a taxing officer might allow for a second attending solicitor.
NSL also sought an order for the cost of conferences regarding objections to witness statements and the index to the trial bundle. I do not believe that an order is necessary, having regard to item 24 of the determination.

Reserved costs

The costs of the directions hearing on 14 June 2017 were reserved. Her Honour permitted the plaintiff to re-open its cross‑examination, and made directions to facilitate Mr Biggs appearing with legal representation. In my opinion, the request for a directions hearing was appropriate. Significant trial time had already been devoted to resolving objections, including a day for the voir dire on Mr Biggs' evidence. Seeking directions during the period in which the trial was adjourned part heard was a reasonable response to the issues raised by Mr Biggs' evidence.
The costs of the directions hearing are, in my opinion, appropriately considered as part of the costs of trial and should be covered by the order that Coal Hub, and the persons who gave undertakings as to costs, pay NSL's costs of the trial.
Alternatively, having regard to the course of the trial on its resumption, and the trial judge's findings on the evidence of Mr Biggs, I consider they are properly the costs of the defendant.
I requested the parties to identify any other reserved costs. It appears there were none.

Conclusion

I would make orders as follows:
1.The plaintiff and, pursuant to the undertakings dated 1 May 2015 and 17 November 2015, by which they undertook joint and several liability, each of Jason Bradley Osborne, Troy Wayne Warrick and Subiaco Capital Pty Ltd (ACN 129 705 308) pay the defendant's costs of the action, including the costs reserved on 14 June 2017, to be taxed, if not agreed.
2.The costs of obtaining the transcript of the trial of the action be allowable as a disbursement reasonably incurred.
3.Pursuant to s 280(2) of the Legal Profession Act 2008 (WA):
(a)the limit on maximum allowable time in item 20(a) of the Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA) is removed;
(b)the allowance in item 20(e) is lifted to allow for the attendance at trial of two instructing solicitors, one senior practitioner and one junior practitioner.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZW
ASSOCIATE TO THE HONOURABLE JUSTICE ALLANSON
26 OCTOBER 2018