Cockburn Cement Ltd v The Minister for Environment (WA)
[2011] WASC 260 (S)
•12 SEPTEMBER 2011
COCKBURN CEMENT LTD -v- THE MINISTER FOR ENVIRONMENT (WA) [2011] WASC 260 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 260 (S) | |
| Case No: | CIV:2022/2011 | 12 SEPTEMBER 2011 & 22 NOVEMBER 2011 | |
| Coram: | EDELMAN J | 12/09/11 | |
| 24/11/11 | |||
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Special costs orders made | ||
| B | |||
| PDF Version |
| Parties: | COCKBURN CEMENT LTD WILLIAM RICHARD MARMION MLA, THE MINISTER FOR ENVIRONMENT FOR THE STATE OF WESTERN AUSTRALIA ANTHONY XAVIER SUTTON, THE APPEALS CONVENOR UNDER THE ENVIRONMENTAL PROTECTION ACT 1986 (WA) KEIRAN JAMES McNAMARA, THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT AND CONSERVATION |
Catchwords: | Costs Special costs orders Power under O 66 r 51(2) Rules of the Supreme Court 1971 (WA) to make special costs orders after orders are perfected and extracted Whether discretion to make special costs orders enlivened Whether discretion should be exercised Whether special costs orders should be made |
Legislation: | Legal Profession Act 2008 (WA), s 280 Rules of the Supreme Court 1971 (WA), O 43 r 1(2), O 66 r 51 |
Case References: | Cameron v Renouf [2008] WASC 60 City of Mandurah v Hull [2000] WASCA 353 Cockburn Cement Ltd v The Minister For Environment (WA) [2011] WASC 260 Feaver v Smith [2008] WADC 72 Geneva Finance Ltd (Receiver and Manager appointed) v Resource & Industry Ltd [2002] WASC 121 (S) Hanave Pty Ltd v LFOT Pty Ltd (2004) 136 FCR 566 Haskins v Commonwealth of Australia [2011] HCA 28 Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty ltd (in liq) [2007] WASC 254 (S) Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S) L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 Legal Practice Board v Lashansky [No 2] [2009] WASC 78 Mercer v Western Australian Planning Commission [2008] WASC 124 (S) Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293 Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293 (S) Snowtop Mushrooms Pty Ltd v Powley (Unreported, WASCA, Library No 4501, 14 May 1982) West Australian Construction Industry Redundancy Fund Ltd v Ortin [2002] WASC 185 (S2) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 24 NOVEMBER 2011 FILE NO/S : CIV 2022 of 2011 BETWEEN : COCKBURN CEMENT LTD
- Applicant
AND
WILLIAM RICHARD MARMION MLA, THE MINISTER FOR ENVIRONMENT FOR THE STATE OF WESTERN AUSTRALIA
First Respondent
ANTHONY XAVIER SUTTON, THE APPEALS CONVENOR UNDER THE ENVIRONMENTAL PROTECTION ACT 1986 (WA)
Second Respondent
KEIRAN JAMES McNAMARA, THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT AND CONSERVATION
Third Respondent
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Catchwords:
Costs - Special costs orders - Power under O 66 r 51(2) Rules of the Supreme Court 1971 (WA)to make special costs orders after orders are perfected and extracted - Whether discretion to make special costs orders enlivened - Whether discretion should be exercised - Whether special costs orders should be made
Legislation:
Legal Profession Act 2008 (WA), s 280
Rules of the Supreme Court 1971 (WA), O 43 r 1(2), O 66 r 51
Result:
Special costs orders made
Category: B
Representation:
Counsel:
Applicant : Mr S V Forbes
First Respondent : Ms F B Seaward & Ms M N Ashford
Second Respondent : Ms F B Seaward & Ms M N Ashford
Third Respondent : Ms F B Seaward & Ms M N Ashford
Solicitors:
Applicant : Squire Saunders
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : State Solicitor for Western Australia
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Case(s) referred to in judgment(s):
Cameron v Renouf [2008] WASC 60
City of Mandurah v Hull [2000] WASCA 353
Cockburn Cement Ltd v The Minister For Environment (WA) [2011] WASC 260
Feaver v Smith [2008] WADC 72
Geneva Finance Ltd (Receiver and Manager appointed) v Resource & Industry Ltd [2002] WASC 121 (S)
Hanave Pty Ltd v LFOT Pty Ltd (2004) 136 FCR 566
Haskins v Commonwealth of Australia [2011] HCA 28
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty ltd (in liq) [2007] WASC 254 (S)
Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S)
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590
Legal Practice Board v Lashansky [No 2] [2009] WASC 78
Mercer v Western Australian Planning Commission [2008] WASC 124 (S)
Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293
Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293 (S)
Snowtop Mushrooms Pty Ltd v Powley (Unreported, WASCA, Library No 4501, 14 May 1982)
West Australian Construction Industry Redundancy Fund Ltd v Ortin [2002] WASC 185 (S2)
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- EDELMAN J:
Introduction
1 The primary question in this application is whether after orders have been perfected and extracted there is power to make further special costs orders under the Legal Profession Act 2008 (WA), s 280(2). If such power exists, then the question is whether it should be exercised and which special costs orders should be made to vary the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA) (the Scale).
2 In relation to the primary issue, I have expressed my reasoning in slightly more detail than is usual in relation to a short supplementary point of costs. The reason I have done so is that this primary issue has caused difficulty in a number of cases. It has also been the subject of a comprehensive and thoroughly reasoned decision of Schoombee DCJ in Feaver v Smith [2008] WADC 72 which considered, and raised, a number of related problems concerning O 66 r 51(2) Rules of the Supreme Court 1971 (WA). The primary issue was also thoroughly canvassed before me, particularly in the respondents' submissions.
3 I conclude that this court has power to make special costs orders under O 66 r 51(2) even after orders have been perfected and extracted. In the circumstances of this case, my discretion to make those orders under the Legal Profession Act, s 280(2) has been enlivened and I consider that it is appropriate that special costs orders be made.
4 My reasons are set out below as follows:
1. The initial application on 12 September 2011.
2. The events preceding my 12 September 2011 decision.
3. The events following my 12 September 2011 decision.
4. The issues in this application.
5. Is there power to make further special costs orders after the extraction of orders?
6. Is the discretion to make special costs orders enlivened and should orders be made?
7. Which special costs orders should be made?
8. The costs of this application.
9. Conclusion.
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The initial application on 12 September 2011
5 On 10 June 2011, Cockburn Cement Ltd (CCL) sought orders including writs of certiorari ('to be more fully informed') to remove into this court a decision of the Minister for Environment for the State of Western Australia, to be quashed. The Minister was alleged to have made jurisdictional errors in a decision he made under the Environmental Protection Act 1986 (WA).
6 Orders were also sought against other parties, including the Appeals Convenor, appointed under s 107A of the Environmental Protection Act. It was alleged that the Appeals Convenor had made jurisdictional errors in an April 2011 report to the Minister prior to the Minister's decision.
7 The application by CCL was based on seven separate grounds. Shortly before the hearing the respondents conceded that one of the grounds (ground 7) had been made out.
8 On 12 September 2011, after hearing submissions from counsel for CCL and senior counsel for the respondents, I accepted the respondents' concession. I delivered oral reasons explaining why, as counsel for the respondents had proposed, it was in the interests of justice for the court to make an order absolute under O 56 r 1(6) of the Rules of the Supreme Court rather than an order for the respondents to show cause why final orders should not be made at a later hearing: Cockburn Cement Ltd v The Minister For Environment (WA) [2011] WASC 260.
9 My reasons for decision focused only upon ground 7. CCL did not press the remaining grounds due to the concession of the respondents. However, I had been provided with substantial affidavit material and submissions in relation to the other grounds and I had read that material prior to the concession being made.
10 With one exception, the orders I made were in the terms proposed by the parties. The one exception was that CCL sought a certificate for senior counsel. I explained in my reasons that although the application raised significant issues, and although some of those issues involved questions of complexity, the usual course was for a taxing officer, seized of all the costs issues in the case, to make the assessment of whether the briefing of senior counsel was reasonably necessary in the circumstances: Cockburn Cement [38].
11 In my oral reasons I explained that my conclusion that costs of senior counsel should be left to the taxing officer was consistent with cl 5(1) of
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- sch 1 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA). The 2010 Determination does not even refer to this certificate. I explained that in this case 'a taxing officer may consider it to be "entirely reasonable and proper" for senior counsel and second counsel to be engaged' citing City of Mandurah v Hull [2000] WASCA 353 [5] (Kennedy, Anderson & McKechnie JJ): Cockburn Cement [38].
12 The orders I made were as follows:
(a) A writ of certiorari issue against the first respondent to remove into this court for the purposes of quashing that part of the decision of the first respondent made on 17 May 2011 to allow in part appeals 002 and 003 brought respectively by David Gray and Toni Cowell under s 102(3) of the EP Act against the amendment of licence L4533/1967/14: Cement or Lime Manufacturing, Rockingham Road, Munster - Cockburn Cement Ltd by which the first respondent decided that conditions 57 and 58 of the Licence be modified to require the installation, commissioning and operation of new pollution control equipment for plant known as 'kiln 5' of the applicant's plant by 30 November 2012 (the Kiln 5 Decision).
(b) The Kiln 5 Decision be quashed on the return of the order nisi without further order.
(c) The applicant's application be otherwise dismissed.
(d) The respondents pay the applicant's costs of these proceedings to be taxed.
The events preceding my 12 September 2011 decision
13 The application for special costs orders was supported by an affidavit of Mr Christopher Wark, sworn 12 October 2011. Mr Wark is a senior associate employed by the solicitors for CCL. He assisted a partner of CCL's solicitors with the conduct of this litigation. His 12 October 2011 affidavit deals with a number of matters which preceded the 12 September 2011 hearing before me.
14 Several paragraphs of Mr Wark's affidavit were not entirely clear. However, in relation to those matters I accept the evidence of Mr Robert Mitchell SC set out below. In Mr Wark's affidavit he also said the following, which I accept.
(a) Prior to the hearing on 12 September 2011, at which the respondents had conceded ground 7, the respondents told CCL that they would pay CCL's reasonable costs of the proceedings.
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- (b) CCL and the respondents negotiated in an attempt to reach an agreed sum of costs which might be ordered if the concession were accepted.
(d) Mr Wark, on instructions from his principal, Mr McLeod, then made inquiries in respect of costs. Both he and Mr McLeod considered the inquiries to be appropriate and adequate.
(e) The inquiries made by Mr Wark did not lead to the provision of advice that the maximum allowances for costs would be severely limited by the Scale unless a special costs order removing the Scale limits were made.
(f) As a consequence, no special costs orders were sought on 12 September 2011.
In his 12 October 2011 affidavit, Mr Wark also refers to a number of matters relating to the 'unusual difficulty, complexity and importance of this matter' (par 12).
15 Senior counsel for the respondents, Mr Mitchell SC, affirmed an affidavit on 15 November 2011. I accept the evidence in his affidavit. In his affidavit, Mr Mitchell SC confirmed that the respondents had agreed to pay CCL's reasonable costs of the proceedings. He said that he had settled a minute of proposed consent orders prior to the hearing, which included an order for the respondents to pay CCL's costs of the application to be taxed. He also explained that his position had been that if CCL wanted to suggest a figure for costs he would be happy to consider that figure; but that he had explained to the solicitors for CCL on the morning of the hearing that their 'without prejudice' suggestion for a costs agreement was not accepted, nor would any amount approaching the figure they suggested be accepted.
The events following my 12 September 2011 decision
16 On 14 September 2011, Mr Christopher Wark made a request to my associate to temporarily hold the extraction of the orders: affidavit of Mr Christopher Wark, sworn 17 November 2011, par 15.
17 Email correspondence was exchanged between my associate and Mr Wark. However, no reasoned application, either formal or informal, was made by the solicitors for CCL seeking a delay in the extraction of orders.
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18 Subsequently, also on 14 September 2011, following an email from my associate to the parties, the orders were extracted by legal representatives of the respondents: affidavit of Mr Christopher Wark, sworn 17 November 2011, par 15.
19 On 12 October 2011, CCL brought an application for special costs orders. The application was made by reference to O 66 r 51(2) of the Rules of the Supreme Court. Alternatively CCL relied upon the 'slip rule'.
20 The orders sought were as follows:
(a) The costs payable by the Respondents be taxed without regard to the limits prescribed by the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010;
(b) The taxing officer be directed to make reasonable allowance of and incidental to the costs of two practitioners attending at the settlement conferences on 19 July 2011 and 7 September 2011;
(c) The Respondents pay the costs of this application
The issues in this application
21 This application raises four issues.
(1) Does this court have power to make special costs orders uplifting items in the Scale in circumstances in which the orders set out above at [12] have been extracted?
(2) If such a power exists, should my discretion be exercised to make special costs orders in this case?
(3) What should those special costs orders be?
(4) How should my discretion be exercised in relation to the costs of this application?
Is there power to make further special costs orders after the extraction of orders?
22 CCL's application for special costs orders was brought on two grounds. The application was primarily brought by reference to O 66 r 51(2) Rules of the Supreme Court.In the alternative the application relied upon the 'slip rule'.
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Order 66 r 51(2) Rules of the Supreme Court
23 Order 66 r 51 provides as follows:
51. Where Court may fix costs
(1) Where in any action or matter taxation of costs is not ordered, or any special costs are by these rules or by any order reserved for the consideration of the Court at trial, the Court may fix the amount of costs payable, or the amount of such special costs, and in every judgment or order of the Court where the question of costs is not specifically dealt with there shall be deemed to be reserved to any party interested liberty to apply within 30 days.
(2) Where under these rules a party is required to obtain some special certificate for costs, there shall be deemed to be reserved to such party liberty to apply within 30 days.
25 The starting point for consideration of O 66 r 51(2) is several decisions of this court dealing with that rule. These decisions support the power of this court to make special costs orders after orders have been extracted. Although none of those decisions were referred to by CCL, counsel for the respondents quite properly brought them to the attention of the court.
26 The first is the decision of the Full Court of this court in Snowtop Mushrooms Pty Ltd v Powley (Unreported, WASCA, Library No 4501, 14 May 1982).
27 That case involved the question of whether an order could be made under O 66 r 51(2) after judgment, and orders, had been formally entered and extracted. An additional question arose in that case whether time should be extended beyond the 30 day period in that rule. That additional question does not arise in this case.
28 The judgment of the court was delivered by Burt CJ. The Chief Justice made orders extending time to apply for a costs certificate for second counsel, and made orders granting that certificate under O 66
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- r 51(2). The orders were made notwithstanding that earlier, general, costs orders had been made 'that the appellant pay ... the respondents' costs of the appeal and all reserved costs to be taxed'.
29 A second special costs order was sought for the costs of chamber proceedings which exceeded the maximum amount under the Scale. That order was refused because the costs related to proceedings which were not before the court and to which consent orders had been made. However, there was no suggestion that the Full Court would otherwise have lacked power under O 66 r 51(2) to make that order.
30 The second case is the decision in Geneva Finance Ltd (Receiver and Manager appointed) v Resource & Industry Ltd [2002] WASC 121 (S).
31 Geneva Finance Ltd was again a case involving an application under O 66 r 51(2). The application was to remove the limit of an item in the cost scale. It was also a case which raised the further issue of whether time could be extended to make the O 66 r 51(2) application.
32 Formal orders had been made and entered prior to the special costs application in Geneva Finance Ltd [2]. The formal orders made had included orders for costs, but no special order [3].
33 EM Heenan J followed the decision in Snowtop Mushrooms (in which his Honour had been counsel)and acknowledged that 'had the defendants applied within 30 days of 24 May last there would be no restriction on the agitation of the application for such a special order' [5].
34 The third case is West Australian Construction Industry Redundancy Fund Ltd v Ortin [2002] WASC 185 (S2).
35 That case was another application for special costs orders. Again, it relied upon O 66 r 51(2). Again, it also raised the further issue that the application had been brought out of time.
36 It is unclear whether the orders had been perfected and extracted but it appears from the limited nature of the special costs orders which were sought that the usual costs orders had been made.
37 McKechnie J followed Snowtop Mushrooms and Geneva Finance Ltd and made special costs orders.
38 The fourth case is Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293 (S).
(Page 11)
39 That case also involved an application for special costs orders removing the limits for Scale items. The applicant again relied upon O 66 r 51(2).
40 It is not clear from that supplementary decision of Pullin J, or from the primary decision (Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293), whether the initial orders included costs orders. Nor is it clear whether any costs orders made had been perfected and extracted. However, Pullin J referred with approval to the decisions in Snowtop Mushrooms and Geneva Finance Ltd.
41 The respondents properly conceded in written submissions that an application to raise the scales fixed by a costs determination fell within the meaning of a 'special certificate for costs'. However, the respondents argued that O 66 r 51(2) did not permit an application to raise the limits of items in the Scale after costs orders had been extracted and perfected.
42 As a matter of authority, this submission is inconsistent with the decisions in Snowtop Mushrooms and Geneva Finance Ltd, and possibly also the decisions in Ortin and Re City of Joondalup. Those casesshow that this court has the power under O 66 r 51(2) to make a special costs order even after the orders have been perfected and even if the perfected orders include other, standard, costs orders.
43 The respondents referred to authorities for the proposition that the reservation of liberty to apply is to enable further orders to be made for the purpose of implementing and giving effect to principal relief pronounced in an action; a reservation of liberty to apply cannot be used to alter the substance of an order already made: Cameron v Renouf [2008] WASC 60 [28] (Newnes J); Legal Practice Board v Lashansky [No 2] [2009] WASC 78 [24] - [25] (Templeman J).
44 I accept that this is the usual position. However, the statements in those cases were not made in the context of O 66 r 51(2). As explained above, as a matter of authority O 66 r 51(2) permits liberty to apply within 30 days for orders lifting the limits of an item on the Scale of costs even if standard costs orders have been made. It was not suggested in any of those cases that the rule did not permit further costs orders because such further orders might have the effect of amending or altering existing, standard, costs orders.
45 Even apart from authority, as a matter of principle O 66 r 51(2) is not limited in this way.
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46 The use of the word 'deemed' in O 66 r 51(2) involves a fiction. The subrule 'deems something to be what it is not': Haskins v Commonwealth of Australia [2011] HCA 28 [95] (Heydon J). Order 66 r 51(2) has the effect that my orders on 12 September 2011 are to be treated 'as if' they included a further order, order (e), that:
(e) CCL has liberty to apply within 30 days for any special certificate for costs.
47 EM Heenan J noted in Geneva Finance Ltd that the purpose of O 66 r 51 is to remove the injustice which can arise because '[i]t is not at all uncommon that the need for special orders is sometimes overlooked when judgment is entered' [4]. The rule balances the need for finality against a concern to protect litigants from the prejudice which can arise from a commonly overlooked matter. The legislative compromise is to allow an application for special costs orders for 30 days even if other orders have been perfected and extracted. This is the effect of the fiction of deeming.
48 The construction of O 66 r 51(2) in its context also supports this interpretation. Order 66 r 51(2) must be read together with O 66 r 51(1). Rule 51(1) is concerned with situations including where 'the question of costs is not specifically dealt with'. In those situations the subrule deems liberty to apply for 30 days for an original order as to costs. Rule 51(2) complements subrule (1) in cases where a special costs order is not sought. The underlying assumption of subrule (2) is that costs have been sought and ordered but that no special costs orders have been made.
49 For these reasons, both authority and principle support the power of this court to make the special costs orders which are sought.
The slip rule
50 In the usual course, I would address in my reasons any alternative submissions as well as primary submissions. However, in this case the power to make the special costs orders sought by CCL under O 66 r 51(2) is clear as a matter of principle and authority. Further, some of the issues raised by CCL's alternative submission based on the slip rule could not be considered independently of the operation and purpose of O 66 r 51(2). These issues include the meaning of an 'accidental' omission, and concerns that courts 'should not encourage carelessness and thereby put at risk the public interest in the finality of litigation': Hanave Pty Ltd v LFOT Pty Ltd (2004) 136 FCR 566, 576 [42] (Kiefel J). The approach to these issues would be coloured by the purpose and effect of O 66 r 51(2)
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- which creates a 30 day indulgence (subject to O 3 r 5) for parties whose legal representatives have not applied for the relevant costs orders.
51 In these circumstances, it is not necessary in this case, just as it was unnecessary in Snowtop Mushrooms, to deal with the alternative submission of CCL concerning the slip rule.
Is the discretion to make special costs orders enlivened and should orders be made?
52 Section 280(2) of the Legal Profession Act 2008 provides that:
[I]f a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a 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 -
...
(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 assessed.
53 The adverb 'unusual' qualifies only the 'difficulty' of the matter, not its complexity or importance. This point was well established in relation to the identical terms of the predecessor legislation to s 280(2): Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty ltd (in liq) [2007] WASC 254 (S) [17] (Martin CJ); Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S) [33] (Simmonds J).
54 Therefore, the threshold requirement before a discretion can be exercised as to whether a special costs order should be made is that the court must be of the opinion that (1) a costs determination (which I have referred to as the Scale) in inadequate, and (2) that the inadequacy arises because of the unusual difficulty, or complexity, or importance of the matter: Heartlink Ltd [11].
55 It was common ground in this application that inadequacy would be satisfied if CCL showed that there was a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit imposed by the Scale: Heartlink Ltd [16].
56 I am satisfied that it is fairly arguable that this is the case. I explain below at [65] - [73] why it is fairly arguable that the bill presented may tax at an amount greater than that which is permitted by the Scale.
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57 I also conclude that the reason that it is fairly arguable that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit imposed by the Scale is because of the complexity or importance of the matter.
58 In the reasons I delivered on 12 September 2011, I explained that the application had raised significant issues, which involved matters of importance. Some of those matters were issues of complexity, in particular involving considerable technical evidence concerning the nature of CCL's operations: Cockburn Cement [38].
59 It is also pertinent that both CCL and the respondents were represented by senior counsel at various stages of the matter. At the hearing before me, the respondents were represented by senior counsel who explained the nature and basis of their concession.
60 The threshold for the exercise of discretion having been overcome, the next question is whether the discretion (arising by the word 'may') should be exercised. The respondents submitted that if the court had power to make special costs orders then those orders should not be made as a matter of discretion.
61 In considering the exercise of discretion as to whether special costs orders should be made I have considered the following factors.
(1) That the special costs orders were not sought at the time of the hearing on 12 September 2011.
By itself, this factor has little weight in the exercise of my discretion. The respondents rightly accepted that there was no delay after 12 September 2011 in seeking the orders. And the effect of O 66 r 51(2) is to create a 30 day period within which such applications can be brought. It was common ground in this case that the application was brought within that period and that no extension of time was needed.
(2) The nature of any decision in relation to special costs orders which was made by CCL on 12 September 2011.
The respondents submitted that the decision not to apply for special costs orders on 12 September 2011 was a deliberate decision. None of the affidavit evidence filed by CCL positively said that the failure to seek special costs orders was the result of an omission. This is surprising. In the context of the slip rule, upon
- which CCL's application was based in the alternative, it has been observed that if an omission 'is a result of carelessness it would be prudent to offer some explanation for the carelessness to persuade the court to exercise discretion in favour of granting the slip rule application': J Tarrant Amending Final Judgments and Orders (2010) 136 - 137.
I have set out the only evidence from CCL on this point at [14](d) - (e) above. That evidence is equivocal. It does not establish that the failure to seek a special costs order was an omission. But neither does it establish that the failure was the result of a deliberate choice. The evidence is simply an assertion that enquiries, which were considered by CCL's solicitors to be appropriate and adequate, did not lead to the provision of advice that the maximum allowances for costs would be severely limited by the Scale.
- (3) Any prejudice to the respondents by exercise of the power to make special costs orders.
The respondents properly accepted that there was no prejudice to them by any delay in the bringing of the special costs application.
(4) Whether CCL has a fairly arguable case that the costs will tax at an amount higher than the Scale.
For the reasons set out below at [65] - [73], I consider that this factor also supports the exercise of my discretion to make any appropriate costs orders. It is pertinent that the respondents properly accepted that the two items of the Scale considered below might need to be lifted if there were power to do so and if the discretion to do so were enlivened.
For these reasons, particularly factors (3) and (4), it is appropriate that discretion be exercised to make special costs orders where appropriate.
Which special costs orders should be made?
62 In CCL's application, and in its written submissions, the first order sought was simply that all the Scale limits be lifted: see [20] above.
63 In this case, I do not consider that it is appropriate to take such a broad approach. At the oral hearing of this application, counsel for CCL accepted that it would not make a difference 'in practice' for it to focus its
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- application upon specific items (ts 10). That has been, and will generally be, the appropriate course in applications for special costs orders.
64 In oral submissions, the orders were sought by CCL in relation to four items only: cl 11, items 24(c), 24(d), 28(a), 28(b) (ts 12).
Items 24(c) and 24(d)
65 Items 24(c) and 24(d) concern the attendances by Counsel and instructing legal practitioners at conferrals and conferences in relation to the proceedings. It is unclear from those Items whether they permit recovery of costs incurred by attendance at conferrals and conferences by two senior practitioners. Costs could potentially be recovered for senior and junior counsel and a senior practitioner. This appears from the notation SP/SC/C. But there may not be provision for two senior practitioners. Mr Wark's affidavit of 12 October 2011 at par 30 deposes to conferences on 19 July 2011 and 7 September 2011 which he and Mr McLeod both attended as legal representatives on behalf of CCL. Those conferences were also attended by Mr Mitchell SC and Ms Ashford, legal representatives of the respondents.
66 I consider that the discretion of the taxing officer should not be fettered to allow, if he or she considers it reasonable, the costs of two senior practitioners.
67 CCL also acknowledged that Mr McLeod's rates were above those allowed for a senior practitioner in the Scale. The amount allowed in the Scale for a senior practitioner is $429: cl 10. CCL submitted that the limit in the Scale should also be removed to permit the taxing officer the possibility of allowing a higher rate for Mr McLeod, namely $693. CCL pointed to the amount allowed for a senior counsel, which is $605. The fact that the Scale differentiates between the rate for senior counsel and senior practitioners is not a sufficient reason to uplift the Scale in relation to the former.
68 As the respondents submitted, CCL adduced no evidence to show that the unusual difficulty, complexity or importance of the case required a senior practitioner who was only available at a rate higher than $429: Mercer v Western Australian Planning Commission [2008] WASC 124 (S) [65] (Jenkins J). I have reviewed all the evidence and the submissions before me on 12 September 2011, not merely the evidence that was limited to the matter which was conceded (ground 7). Despite the matters of technical complexity and importance raised by the case, I am not satisfied that the case required a senior practitioner who was only
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- available at a rate higher than $429, nor do I consider that it is appropriate to remove the limit in the Scale to permit the possibility of taxing the bill at an amount of more than $429 for a senior practitioner.
69 The appropriate order is that any limit in items 24(c) and 24(d) which precludes recovery of the costs of two senior practitioners be removed.
Items 28(a) and 28(b)
70 Items 28(a) and 28(b) concern the costs of a senior practitioner for a motion for an order to show cause and the getting up for hearing.
71 For the same reasons expressed above at [67] - [68], I am not satisfied that it is appropriate to remove the limit upon the rate for a senior practitioner in the Scale. The respondents accepted that in extremely complex matters a discretion could be exercised to remove limits on rates, based only upon the complexity of the matter (ts 22). This is not such a case.
72 However, I do consider that the technical complexity and importance of the matter, as well as the nature of the issues involved, requires that the time limits, respectively of 20 hours and 10 hours, in those two items should be removed. It is fairly arguable that the technical complexity of the matter could lead a taxing officer to tax the bill in an amount higher than the Scale totals of $8,580 and $4,290 respectively, due to additional time spent beyond that permitted by the Scale. In reaching this conclusion, I have also had regard to Mr Wark's 12 October 2011 affidavit and annexures which sets out a draft bill of costs, and to the detail of all the work done by senior practitioners in preparing the motion to show cause and getting the matter up for hearing. I express no conclusion about the extent of the time spent other than to say that it is fairly arguable that a taxing officer could tax the bill in an amount higher than the Scale totals.
73 The appropriate order is that the time limit in the Scale items 28(a) and 28(b) should be removed.
The costs of this application
74 Although I have concluded this application in favour of CCL, the application would not have been necessary if CCL had sought the special costs order on 12 September 2011. This is a reason for the exercise of my discretion to award costs of this application in favour of the respondents: L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590,595 (Mason ACJ, Wilson & Deane JJ).
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75 On the other hand, O 43 r 1(2) provides as follows:
A party having the carriage of the judgment or order shall have the first option to enter or extract it, but any other party affected may do so if such first mentioned party fails to take steps within 3 days from the making thereof to have the judgment or order approved, or having taken such steps does not in the opinion of the Registrar diligently proceed to have the judgment or order approved and entered or extracted.
76 CCL had carriage of the judgment and orders, and should have had the first option to extract it after the orders were made on 12 September 2011. The respondents should have waited three days from the making of the orders before seeking to have them extracted. The correspondence which occurred on 14 September 2011 (above at [16] - [18]), in which CCL sought a delay before extraction of orders be permitted, suggests that an application may have been made before orders were extracted if the respondents had waited for three days. This might have avoided many of the submissions before me concerning the operation of O 66 r 51(2).
77 Although each party sought orders for the costs of this application in their favour, both parties accepted at the oral hearing before me that an order that there be no order as to costs may be an appropriate alternative. For the reasons above, that is the order which should be made.
Conclusion
78 For these reasons I conclude that O 66 r 51(2) gives this court power to make special costs orders after orders have been perfected and extracted. The discretion to make those orders has also been enlivened and special costs orders should be made. Those costs orders are that any limit in the Scale, cl 11, items 24(c) and 24(d) which precludes recovery of the costs of two senior practitioners should be removed, and that the time limit in the Scale, cl 11 items 28(a) and 28(b) should be removed.
79 Although I have concluded that limits in the Scale should be removed in these respects, one matter should be emphasised. Nothing which is said in these reasons should be taken as any indication of the amount at which any of these items should be taxed. This is a matter which is entirely within the discretion of the taxing officer.
80 I will allow the parties the opportunity to confer on the precise terms of the orders but the orders which should be made are to the following effect:
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- (1) Any limit in cl 11, items 24(c) and 24(d) of the Scale which precludes recovery of the costs of two senior practitioners attending at the settlement conferences on 19 July 2011 and 7 September 2011 should be removed, but the applicable maximum hourly and daily rates for SP/SC/C under cl 10 for those items should not be removed.
(2) The time limit in the Scale, cl 11 items 28(a) and 28(b) and the limit for allowable costs for those items should be removed but the applicable maximum hourly and daily rates under cl 10 for SP for those items should not be removed.
(3) There be no order as to the costs of this application of 22 November 2011.
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14
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