Collie Planning & Development Pty Ltd v Premier Building & Consulting Pty Ltd

[2008] VSCA 146

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3789 of 2008

COLLIE PLANNING & DEVELOPMENT PTY LTD

v

PREMIER BUILDING & CONSULTING PTY LTD

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JUDGES:	MAXWELL P and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 July 2008
DATE OF JUDGMENT:	18 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 146

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COSTS – application for leave to appeal from order that a successful party’s costs of counsels’ appearance during a long trial be limited, for part of that trial, to one junior counsel – application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Manly SC with Mr M Whitten	Monahan and Rowell
For the Respondent	Mr J Burnside QC with Mr N Dragojlovic	Gadens Lawyers

MANDIE AJA:

1. The applicant was one of a number of defendants in a long trial in the trial division that commenced on 3 October 2006 and concluded on 4 April 2007.  Reasons for judgment (232 pages) were published on 5 October 2007.  During the course of the trial there were a number of settlements, as a result of which the applicant became one of only three active defendants.

1. On the first day of the trial, the learned trial judge indicated that if a party was not interested in particular evidence it was at liberty not to attend and counsel could come and go as they pleased but that this would be at the risk of the party concerned.

1. The applicant was wholly successful in the proceeding and all of the claims by the plaintiff (the present respondent) against it failed. 

1. There were arguments on the question of costs and the judge handed down his reasons as to costs on 21 December 2007.  In the course of those reasons the judge said:

It was then contended that Collie Planning was not interested in and did not participate in that part of the trial which concerned the fact and source of the pollution.  I indicated at the outset of the trial that the parties need not be present for those parts which were of no concern to them.  Moreover, the presentation of the evidence was organised in a way to enable the party to know what matters were to be canvassed on any given day.  I accept that this meant that an absent party might properly maintain Counsel with a watching brief during these other periods.  I shall therefore direct that the costs of Collie Planning of 50% of the trial be limited to the costs of one Junior Counsel.

1. For those reasons the judge made the following order as to the applicant’s costs of the proceeding:

The plaintiff pay the costs of [Collie Planning] of its claim against that defendant including reserved costs, such costs to be assessed on a party and party basis up to and included 16 February 2005 and thereafter on a solicitor and client basis, provided that upon the assessment [Collie Planning] be allowed one junior counsel only for 38 days of the trial.

1. The applicant originally sought leave to appeal against this order on a number of grounds.  The principal ground related to the denial of any allowance for senior counsel for 38 days of the trial.  The other ground of significance was put in the alternative and related to what was perceived as an ambiguity in the order made.   The applicant on this alternative ground proposed that the order be amended to read:

That the plaintiff pay the costs of the fourthnamed defendant of its claim against that defendant including reserved costs, such costs to be assessed on a party and party basis up to and including 16 February 2005 and thereafter on a solicitor and client basis.  Direct that upon the assessment, in respect of the fourthnamed defendant’s costs of Counsels’ appearance at the trial, such costs be allowed, save that for 38 days thereof, such costs be limited to one junior counsel.

1. At the hearing of this application, the parties expressed agreement that this formulation reflected the correct construction or interpretation of the order in fact made by the learned trial judge so that the only matter then in issue on this application was the applicant’s primary contention that the judge should not have denied any allowance for senior counsel for 38 days of the trial.

1. It was common ground that the 38 days in respect of which allowance for senior counsel was denied were the first 38 days of the trial, referred to by the parties as the “contamination stage” of the hearing.  Mr Manly SC who appeared with Mr Whitten of counsel for the applicant said that the trial commenced on 3 October 2006 at which stage the plaintiff was claiming some $16M, whereas by late December 2006 or January 2007 when the “transaction stage” of the trial took place the plaintiff’s claim had been reduced to an amount in the range of about $7M to $13M.  Mr Manly said that the applicant’s counsel were duty bound to appear in court during the contamination stage at a time when a massive damages claim was being made against defendants, including the applicant, and that the judge had not taken this into account.  Mr Manly said that the question was what was a reasonable level of representation during the contamination stage of the trial. 

1. However Mr Manly conceded that counsel attending the trial on behalf of the applicant during that period (whether senior counsel or junior counsel) attended on

a watching brief and he accepted that if junior counsel only had attended during that period he would have been able to regularly report back to senior counsel and to his instructing solicitor (and to the client) and both counsel would have been able to discuss and advise upon all issues and developments where necessary.  I note here that, given the agreed interpretation of the order made, the applicant is not precluded from recovering the costs of such consultations and advice.

1. Mr Manly further accepted that, during the contamination stage, the other defendants were conducting a full scale defence of the plaintiff’s claim (constituted primarily by cross-examination upon voluminous witness statements) and that the applicant was content to rely upon them doing so – hence the restriction of the applicant’s counsel to a watching brief.

1. Given that background, it does not appear to me that the judge failed to properly exercise his discretion in concluding that the attendance by senior counsel on a watching brief was unnecessary in the context of party-party costs.  Moreover, dealing as it does with a discretionary order as to costs, particularly in the context of such a long trial, the relevant matters were peculiarly within the knowledge of the trial judge. 

1. I do not think that the judge’s relevant exercise of discretion is attended by sufficient doubt to justify the grant of leave to appeal and I am accordingly of the view that the application should be dismissed.

1. On the question of costs, it seems to me that the applicant was justified in seeking leave to appeal in relation to the possible ambiguity in the judge’s order and I note that this aspect was only resolved at the outset of the hearing.  In my view, subject to anything further that the parties may wish to advance, there should be no order as to the costs of the application.

MAXWELL P:

1. I agree with Mandie AJA.