Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6]
[2014] WASC 105 (S)
•22 AUGUST 2014
COMPUTER ACCOUNTING AND TAX PTY LTD (in liq) -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 6] [2014] WASC 105 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 105 (S) | |
| Case No: | CIV:2265/2006 | 28 MARCH 2014 & ON THE PAPERS | |
| Coram: | SIMMONDS J | 22/08/14 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Certain costs orders including special costs order made | ||
| B | |||
| PDF Version |
| Parties: | COMPUTER ACCOUNTING AND TAX PTY LTD (in liq) PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD DONALD CAMPBELL SMITH as Executor of the Estate of MARTIN PAUL BANNING |
Catchwords: | Practice and procedure Whether to depart from costs following the event Whether analysis of issues covered in judgment in the matter should cause such departure Whether to make special costs order Whether matter of 'unusual difficulty, complexity or importance' Whether to make other requested costs orders |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 86, s 104, s 105 Legal Profession Act 2008 (WA), s 280 Rules of the Supreme Court 1971 (WA), O 3 r 4, O 51 r 4, O 66 r 1, O 66 r 11 |
Case References: | Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) Atwell v Roberts [2013] WASCA 37 (S) Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 2] [2010] WASC 318 Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6] [2014] WASC 105 David Weiping Chen v Kinm Man Chan (No 2) [2009] VSCA 233 EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) Emmerton v Trustees, Executors & Agency Co Ltd (1896) 2 ALR 281 Frigger v Campbell-Smith [2010] WASC 353 Frigger v Lean [2012] WASCA 66 Huntingdale Village Pty Ltd (Receivers and Managers Appointed) ATF Huntingdale Village Unit Trust v Perpetual Nominees Ltd [2013] WASC 352 McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S) Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2) Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) [No 2] [2008] WASCA 109 (S) Sansom Nominees Pty Ltd v Meade [2005] WASC 9 Willis v Wilson & Mackinnon [1922] VLR 453 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD
First Defendant
DONALD CAMPBELL SMITH as Executor of the Estate of MARTIN PAUL BANNING
Second Defendant
Catchwords:
Practice and procedure - Whether to depart from costs following the event - Whether analysis of issues covered in judgment in the matter should cause such departure - Whether to make special costs order - Whether matter of 'unusual difficulty, complexity or importance' - Whether to make other requested costs orders
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 86, s 104, s 105
Legal Profession Act 2008 (WA), s 280
Rules of the Supreme Court 1971 (WA), O 3 r 4, O 51 r 4, O 66 r 1, O 66 r 11
Result:
Certain costs orders including special costs order made
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Mrs A C T Frigger
& Mr H H J Frigger : Not applicable
Mr G T Lean : Mr J M Healy
Solicitors:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Mrs A C T Frigger &
Mr H H J Frigger : Not applicable
Mr G T Lean : DLA Piper
Case(s) referred to in judgment(s):
Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S)
Atwell v Roberts [2013] WASCA 37 (S)
Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S)
Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 2] [2010] WASC 318
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6] [2014] WASC 105
David Weiping Chen v Kinm Man Chan (No 2) [2009] VSCA 233
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S)
Emmerton v Trustees, Executors & Agency Co Ltd (1896) 2 ALR 281
Frigger v Campbell-Smith [2010] WASC 353
Frigger v Lean [2012] WASCA 66
Huntingdale Village Pty Ltd (Receivers and Managers Appointed) ATF Huntingdale Village Unit Trust v Perpetual Nominees Ltd [2013] WASC 352
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S)
Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2)
Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) [No 2] [2008] WASCA 109 (S)
Sansom Nominees Pty Ltd v Meade [2005] WASC 9
Willis v Wilson & Mackinnon [1922] VLR 453
- SIMMONDS J:
Introduction
1 This is my decision on competing applications (the present applications) for orders as to costs. The present applications arise out of a judgment I delivered on 28 March 2014. In my reasons for that judgment (my decision) I set out why I had concluded the application for directions before me (the application for directions) should be dismissed.
2 The application for directions had been brought by Angela Theresa Frigger (Mrs Frigger) and her husband Helmut Hartmut Frigger (Mr Frigger), whom I will refer to, collectively, as the Friggers. The application for directions was for relief under certain provisions of the Civil Judgments Enforcement Act 2004 (WA) in respect of certain actions taken by the receiver, the receiver of an asset of one of the judgment debtors in CIV 2265 of 2006 the principal proceedings (the receiver). The receiver had been appointed under orders under the Civil Judgments Enforcement Act (the receiver orders).
3 It may be noted that none of the parties to the principal proceedings, including the judgment debtors, were parties to the application for directions. None of them appeared on it before me. The present applications do not involve them.
4 The present applications are for the costs of the application for directions appropriate in the circumstances.
5 I briefly describe the background, before describing the present applications and then setting out the applicable principles. I then apply those principles. The last section is my conclusion and the orders I would make.
Background
6 My decision, Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6] [2014] WASC 105, sets out at [54] - [69] the background to the application for directions.
7 The directions were sought under Civil Judgments Enforcement Act s 104 read with s 105 or, alternatively, under s 105 alone. The directions sought were orders said to be needed to compensate the Friggers for actions each of which was said to be an 'irregularity' within the meaning of s 105, and to be in connection with the carrying out of the receiver orders. There was no contest as to that connection; there was a sharp contest on, among other things, that characterisation of the actions.
8 The receiver orders had previously been cancelled following the decision in Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd[No 2] [2010] WASC 318.
9 A previous proceeding in respect of some of the actions taken under the receiver orders had been permanently stayed: Frigger v Campbell-Smith [2010] WASC 353. An appeal against orders following that decision that the Friggers pay certain costs in those proceedings had been dismissed: Frigger v Lean [2012] WASCA 66.
10 As CAT v PSA [No 6] [54] - [69] indicate, the background to the application for directions was a lengthy one, and the application for directions itself evolved over time. It is not necessary for me to consider the reasons for that length or that evolution. This is save for me to note my determination it is not apparent to me that the applicants (the Friggers) or the receiver carry any disproportionate responsibility for those matters. I so determine in large part by reference to matters that led to the classification of my decision as category 'A'. Those matters were that the application for directions called for determination of legal issues of some complexity and unusual difficulty, in respect of which there was no or little authority. I accept that that complexity and that difficulty made putting together the application for directions and the responses to it complex and difficult.
11 The evolution described involved a number of hearings preliminary to three full days of hearing, over which testimony was received from two witnesses. Both witnesses were cross-examined on their respective affidavits and also gave evidence in re-examination. Other material was tendered into evidence by the parties: see CAT v PSA [No 6] [74] - [86].
12 Following those three days, and the provision of written closing submissions, there was a further full day of oral closing submissions.
13 Subsequently, after I had reserved judgment, and before I delivered judgment, I permitted the parties to provide written submissions on Huntingdale Village Pty Ltd (Receivers and Managers Appointed) ATF Huntingdale Village Unit Trust v Perpetual Nominees Ltd [2013] WASC 352 [18] - [23] (Le Miere J), which was decided after I had reserved. The parties provided such submissions: see CAT v PSA [No 6] [87] - [89].
14 In my decision, I indicated that I had identified seven issues raised by the parties for determination in this case. However, as my decision makes apparent, the final determination of most of those issues was not required by reason of conclusions I arrived at on the others. Further, one of them, the first, was not contested.
15 The issues are described in CAT v PSA [No 6] as follows:
The issues for determination are the following:
1. Does the court have jurisdiction under Civil Judgments Enforcement Act s 104 alone, read with s 105, or s 105 alone, to entertain the application for directions, particularly given that the Friggers are seeking by these proceedings compensation in respect of orders now cancelled?
2. If the answer to the question in issue 1 is yes, is there such jurisdiction notwithstanding Frigger v Campbell-Smith and Frigger v Lean?
3. If the answer to the question in issue 2 is yes, did the conduct of the receiver in the respects identified by the Friggers represent an 'irregularity' as to any of those respects in connection with the carrying out of the receiver orders within Civil Judgments Enforcement Act s 105?
4. If the answer to the question in issue 3 is yes, what is the power of the court to make orders in this case, and in particular is this power discretionary?
5. Did the conduct of the respondent cause the Friggers jointly or solely to suffer any loss or damage of which the Friggers have provided adequate evidence?
6. Is recovery of damages liable to be reduced for any failure of the Friggers to take reasonable care?
7. Is the liability of the respondent under an order under Civil Judgments Enforcement Act s 105 by virtue of Civil Liability Act 2002 (WA) s 5AK to be fixed at an amount the court considers just having regard to the conduct of the Friggers' then solicitors (Mr Stokes) in the respects the respondent alleges?
... [92].
16 In the event, I considered that the determinative issues were issues 3 and 4: [93].
17 It will be apparent that those issues would only be reached if I concluded an affirmative answer could be returned to 1 and 2. I so concluded, without reaching a final view on the matter in either case: [111] - [112] (issue 1); and [119] - [120] (issue 2).
18 As to issue 3, I concluded that, as to the conduct of the receiver in five of the six respects identified by the Friggers, that conduct had not been made out to be an 'irregularity' within Civil Judgments Enforcement Act s 105: see [153] (irregularity 1); [160] (irregularity 2); [167] (irregularity 3); [177] (irregularity 4); and [184] (irregularity 5).
19 I further concluded, as to irregularity 6, that there was no strong evidence making it out: see [187] - [189]; and in any event, even accepting irregularity 6, no order was needed to correct it as explained in respect of issue 4: see [190].
20 In relation to issue 3, I also noted that the written submissions of the Friggers made in relation to Huntingdale made it more clear than had previously been the case that they did not make a claim of a further irregularity, in terms of a breach of a duty of care owed by the receiver to them. Thus, it was made apparent that Huntingdale, being an authority on such a duty,had no relevance: see [137] - [139].
21 As to issue 4, I concluded that no order was needed to correct any of the alleged irregularities: see [203] (irregularity 6); and [217] (irregularities 1 - 5). I also concluded that, even if I were wrong on that account, I would not make the orders sought, in the exercise of the discretion I found in s 105: see [218] - [223].
22 By reason of my conclusions on issues 3 and 4, I considered I was not required to arrive at a final determination on the remaining issues, issues 5, 6 and 7: [224] - [225].
23 However, in view of the argument, in written submissions, oral submissions or both, put to me by at least one of the parties, my decision indicates my (non-final) views as to a number of the matters subsumed by the last three issues. I will describe those indications below.
24 The balance between issues 1 to 4 and 5 to 7 in my decision may be seen as follows.
25 My decision in all runs to 48 pages, or 272 numbered paragraphs. The discussion of issues 1 to 7 runs to just under 27 pages, or 173 numbered paragraphs. Of that discussion, just under 20 pages, or 129 paragraphs, were devoted to the analysis of issues 1 to 4.
26 Issue 1 was not in contest between the parties. There were 17 paragraphs devoted to it. Issue 2 was in sharp contest. There were eight paragraphs devoted to it.
27 Issues 3 and 4 were also in sharp contest. There were 71 paragraphs devoted to issue 3; there were 34 paragraphs devoted to issue 4.
28 The balance of just over seven pages, or 44 paragraphs was devoted to issues 5 to 7.
29 The Friggers were previously represented by solicitors and counsel, who changed over the evolution of the application. However, there was no appearance for them, or by them, at the delivery of the judgment. Also, Mrs Frigger informed the court and the receiver prior to the delivery of the judgment that their previous counsel no longer represented them.
30 The court and the receiver had also previously been informed by Mrs Frigger that she would not be in a position to confer as to the appropriate minute of orders with the legal representatives for the receiver until a time after the delivery of the judgment.
31 I note there was then, and continues to be, no indication of any filed notice of ceasing to act or of an intention to act in person.
32 I turn now to the present applications.
The present applications
33 The receiver's minute of proposed orders dated 27 March 2014 (the receiver's minute) in relation to costs was as follows:
2. [The Friggers] pay [the receiver's] costs, including the reserved costs, to be taxed if not agreed.
3. [The receiver] have liberty to apply for an uplift in respect to the applicable scale of costs to apply to taxation under Order 66 rule 23 of the Rules of the Supreme Court and section 280(2) of the Legal Profession Act 2008 (WA).
34 It will be seen that the receiver subsequently sought orders as to costs in slightly different terms, and added a further costs order.
35 The Friggers' minute of proposed orders dated 28 March 2014 (the Friggers' minute), in relation to the determination of costs, was as follows:
2. The parties file and serve written submissions on costs by 4 pm 26 April 2014.
3. The issue as to costs of the application be decided on the papers.
36 At the hearing on the delivery of the judgement I determined that it was appropriate to make orders in relation to costs at that time in the terms of proposed orders 2 and 3 in the Friggers' minute (the orders for the determination of the costs orders).
37 In the event I received written submissions from both parties. Those for the Friggers attach the minute of costs orders they seek. Those for the receiver include the orders the receiver now seeks. I set out both sets of orders below.
38 The written submissions for the receiver were dated 24 April 2014 but were not filed until 28 April 2014. As 26 April 2014 was a Saturday, by virtue of Rules of the Supreme Court 1971 (WA) (RSC) O 3 r 4 I took those submissions to have been filed in accordance with the orders for the determination of the costs orders. However, subsequently [43] of those submissions was amended to remove the reference there to the property the subject of the receivership having been returned. I call the receiver's submissions as so amended the receiver's written submissions.
39 The written submissions for the Friggers were dated 26 April 2014 and, notwithstanding the date of filing (26 April 2014) shown on them were not filed until 30 April 2014. I call these submissions the Friggers' written submissions.
40 I understood that the receiver took the position that in view of the delay in the filing of the Friggers' written submissions I should not accept them. In my view, however, having regard in particular to the amendment to [43] included in the receiver's written submissions, the incorrectness of the reference the subject of the amendment being a matter to which the Friggers' written submissions drew attention; the extent of the delay; and the lack of any prejudice to the receiver to which my attention was drawn or which I have been able to discern, I would not take that position.
41 The minute of costs orders attached to the Friggers' written submissions (the Friggers' costs minute) reads:
1. There be no costs of the application of the compensation
Alternative to the above:
2. The applicants pay the receiver's costs of the application for compensation fixed in the amount of $14,190;
3. The respondent pay the applicants' costs of the following:
a. Preparations for and attendance at hearings on 16 June 2011, 26 September 2011, 22 June 2012, 4 September 2012, 28 March 2013, 26 July 2013 and 50% of the cross-examination of Mrs Frigger;
b. Preparation of submissions dated 11 June 2011; considering the respondent's submission on the issue of jurisdiction; Mrs Frigger's affidavit of discovery; the respondent's amended case statement; the respondent's amended objections to the affidavit,
to be taxed if not agreed.
1.1 The Friggers pay the Receiver's costs of and incidental to the application, including reserved costs, to be taxed if not agreed, with the taxing officer to make reasonable allowance for the Receiver's costs without being limited to the amount is imposed by any relevant costs determination.
1.2 The Friggers pay the Receivers costs of this application for special costs orders.
43 It will be seen that 1.1 slightly varies the corresponding order sought by the receiver's minute.
44 On the basis of those submissions, the Friggers' costs minute and the receiver's costs minute, there are three discrete matters before me.
45 One matter is whether to depart from the general principle that the successful party recovers their costs.
46 The second matter is whether to allow for the possibility of departure from the otherwise applicable scale of costs.
47 The third matter is whether to make the particular orders as to costs, of particular hearings and of certain other matters, sought in the terms of the Friggers' costs minute 3a and 3b.
48 I turn now to the applicable law as to the first matter and apply that law.
49 Then I perform the same exercise for the second and third matters.
The general approach to costs and departure from it
50 The general approach to the exercise of the discretion as to costs is, of course, that the court will 'generally order that the successful party to any action or matter recover his costs': RSC O 66 r 1(1).
51 However, the Friggers' written submissions put forward two bases on which they contend I should make the order as to costs in the terms of the first paragraph of their costs minute.
52 One basis is put in the fact the receiver's appointment under Civil Judgments Enforcement Act s 86 was 'the first of its kind', while the Friggers' application under s 104 and s 105 was also 'the first of its kind' [6]. In those respects, it is submitted, the application was 'of some public interest', even although the Friggers had 'a financial gain to be made from the application' [6].
53 I took this to be a submission that the novelty of the present proceeding gave it a public interest character that warranted a departure from the general approach to costs. However, no authority was cited to me for such a proposition.
54 I accept that the present proceeding is indeed novel, as indicated by my having assigned it an 'A' designation.
55 However, the authorities on departure from the general approach in the case of 'public interest' litigation, while recognising the breadth of the court's discretion to depart from the general approach, would not on my consideration of them readily extend to litigation brought primarily to vindicate a private right, whether or not novel issues of statutory interpretation of some significance have to be resolved in that litigation: see Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) [No 2] [2008] WASCA 109 (S) [3] (Steytler P, McLure & Pullin JJA); and see Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 [11] (Kennedy, Wallwork & Murray JJ).
56 I am unable to see a warrant in this case for that extension of those authorities. I accept the principal issues in this case were ones of some difficulty as well as some novelty. I further accept that their resolution may have some importance. The resolution of the questions such issues raise has been treated as a relevant factor in the exercise of the court's discretion in the public interest: see LexisNexis Butterworths, Civil Procedure in Western Australia (as at 2 June 2014) [66.1.1B], referring to authority.
57 However, I do not consider that in litigation to vindicate a private interest, such as these proceedings, that factor is sufficient, given the authorities of Espanol Holdings Pty Ltd and Buddhist Society of Western Australia. The matter might have been otherwise had there been evidence that these proceedings were ones in which there was strong interest by others, suggestive of a public role for the parties to the proceedings or at least the Friggers. However, there is no such evidence.
58 I note that the Friggers' written submissions at [8] add that, whether or not the costs incurred may be 'viewed as incidental to the proper exercise of public administration' in the sense that 'the proceedings have contributed to the proper understanding of the law in issue', it is within the court's discretion to make an order 'apportioning costs between the litigants' in a case 'where the factors are finely balanced'. However, what is meant by the 'factors' being 'finely balanced' is not explained. I took it to be referring to the difficulty in resolving the principal issues of interpretation in this case. So taken, this does not add any matter of significance to the submission invoking the 'public interest' I have previously considered.
59 The other basis is put in the fact that receiver 'raised numerous issues on which he was unsuccessful': [9]. The Friggers' written submissions at [9] identify a significant number of paragraphs in CAT v PSA [No 6] in which it is said the receiver raised issues on which he 'was unsuccessful'. All are said to have been the subject of 'lengthy and unnecessary oral and written submissions for [receiver] and added time and costs to the application': [9].
60 I accept, without deciding, that the matters referred to were ones the subject of lengthy oral and written submissions for the receiver that added time and costs to the application.
61 I should note that this submission is in support of a proposed costs order that there be no order for the costs of the application. It is not one made, or at least clearly made, on the basis of RSC O 66 r 1(3), although I note again the reference to possible apportionment in the Friggers' written submissions: [8].
62 RSC O 66 r 1(3) is that where a party 'although generally successful in an action has, by the introduction of some issues or issues on which he has failed, increased costs' then the court may order 'such party to pay the costs of such issue or issues'.
63 No authority is cited in support of the submission made in the present respect in the Friggers' written submissions. I am not aware of one.
64 However, in my view I may derive assistance in dealing with the submission in the present respect from the principles that have been developed for the application of RSC O 66 r 1(3). To the extent the Friggers are seeking an apportionment, those principles are, of course, directly applicable.
65 I take as a sufficient statement for my purposes of the principles so developed those described in LexisNexis Butterworths Civil Procedure in Western Australia (as at 18 July 2014) [66.1.12] as follows:
1. It is incumbent upon the unsuccessful party to satisfy the court that there are good reasons why it should not pay the other party's costs: Bowen v Alsanto Nominees Pty Ltd[2011] WASCA 39 (S) [5] (McLure P, Newnes & Murphy JJA).
2. 'It is to be expected a generally successful party will fail on some issues': McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S) [179] (Beech J).
3. Where a party who succeeds on one issue is given the costs of it while that party's opponent is allowed the general costs of the action, the party succeeding on the issue in question is entitled only to such proportionate amount of the costs as is exclusively referable to the issue, including as appropriate an allowance for the witnesses whose evidence went substantially to that issue: see Emmerton v Trustees, Executors & Agency Co Ltd (1896) 2 ALR 281, 282 (Hodges J); and Willis v Wilson & Mackinnon [1922] VLR 453, 462 - 463 (Cussen J, Schutt J agreeing).
4. 'To embark as a general practice upon an analysis of which party was successful on each issue, or necessarily to deprive a successful party of some portion of its costs if it has lost on a particular issue, would be likely to add further uncertainty and complexity to the outcome of litigation, derogate from the prospect of settlement and oblige the court to hear lengthy and frequent arguments in relation to costs as an additional burden on its resources and the costs of the parties': Bowen [6].
5. 'In addition, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if, by too ready resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case': Bowen [7].
6. 'The power to adjust an order for costs by reference to particular issues upon which the generally successful party has failed is properly exercised only when there are discrete and severable issues upon which the generally successful party has failed and which have added to the cost of the proceedings in a significant and readily discernible way': Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) [7] (Martin CJ, Steytler P & McLure JA).
7. 'Where a court determines to make an order apportioning costs, it does so primarily as a matter of impression and evaluation rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful unsuccessful, the time occupied in the ambit of the submissions made, as well as any other relevant matter': David Weiping Chen v Kinm Man Chan (No 2) [2009] VSCA 233 [10] (Maxwell P, Redlich JA & Forrest AJA).
66 For the purposes of the evaluation of the submission in the Friggers' written submissions, considered in the light of the principles just described, the following features of this case may be noted.
67 First, the issues in my decision which I considered were determinative were, as I have indicated, issues 3 and 4. Those issues represented about 15 1/2 pages or 104 numbered paragraphs of the total for issues 1 to 4 previously referred to, of just under 20 pages, or 128 paragraphs.
68 I should note that the mathematics thus described, as well as previously described, are in my view to be approached in accordance with proposition 7 above. That is, the mathematics are simply to check matters of impression and evaluation.
69 Secondly, my conclusions on issues 3 and 4 meant that, not only did I not have to deal with issues 5, 6 and 7 (see [224]), but also as I have indicated that I did not have to reach a final view on the resolution of issues 1 and 2, although I expressed my views as to each of issues 1, 2, 5, 6 and 7.
70 My views as to issues 1 and 2 were in effect that the Friggers' positions in respect of them should be upheld as I have indicated. However, I have already noted that the receiver did not contest the Friggers' position as to issue 1.
71 My views as to issues 3 and 4 were in effect that the Friggers' positions in respect of them should not be upheld, also as I have indicated.
72 My (non-final) views as to issue 5 were that, as to two of the loss or damage items advanced by the Friggers, either the position of the receiver put against them was strongly arguable (see [235] and [241]) or it was not plain to me that the Friggers had advanced sufficient to make out their claim (see [247]). As to the third such item, my (non-final) view was that I would not uphold the receiver's position against that of the Friggers (see [249] read with [252] - [256]).
73 As to issue 6, having noted that the only argument with respect to the issue was in the receiver's written closing submissions (see [258]) I indicated my (non-final) view as to the matters which that argument addressed. That view was that I would not uphold the receiver's position (see [259] - [260]).
74 As to issue 7, I indicated my (non-final) view that I would not uphold the receiver's position.
75 It seems to me that, of the issues which I considered called for treatment at any significant length, the Friggers were successful only on issues 1 and 2.
76 It further seems to me that, of the remaining issues which I considered called for treatment at any significant length, issues 3 and 4, the Friggers were unsuccessful as to both. Issues 3 and 4 called for treatment of significantly greater length than did issues 1 and 2.
77 Overall, the matters of impression and evaluation (proposition 7, above) indicate to me that the matters of importance in these proceedings, both in terms of their bearing on the result and the relative consumption of resources in argument they represented, were the ones on which the Friggers failed, and that the remaining matters did not add to the cost of the proceedings in a significant and readily discernible way.
78 On this review, I consider that there is no sufficient basis on which to depart from the general approach in RSC O 66 r 1(1).
79 I turn now to the law as to departure from the scale of costs otherwise applicable, and then I apply that law.
The law applicable to uplifts and its application
80 This is the law relevant to the receiver's minute order 3.
81 I begin by noting that the receiver's written submissions describe the applicable scales as two. One is for work completed until 31 October 2012, being the 2010 Supreme Court Legal Practice (Contentious Business) Costs Determination (the 2010 Scale). The other relevant determination is for work completed from 1 November 2012, being the 2012 Supreme Court Legal Practice (Contentious Business) Costs Determination (the 2012 Scale). I agree that those are the relevant scales.
82 The receiver's written submissions indicate that there are two bases on which the receiver relies. One is the position of the receiver as a court appointed receiver. The other is Legal Profession Act 2008 (WA) s 280(2).
83 It is not apparent to me that the receiver may rely upon the first basis for the receiver's minute order 3. Of course, RSC O 51 r 4 provides that a person appointed as a receiver shall be allowed such remuneration, if any, as may be fixed by the court. However, the present applications in the present respect are concerned with a different matter, the making of a special costs order.
84 More fully, that matter is whether the court should 'otherwise' order for the purposes of RSC O 66 r 11(2) read with (3). Those sub-rules provide that the applicable scale determines the fees solicitors are to be allowed for the matters to which the scales relate absent such order. They do so for the purposes both of solicitor and client and (as here) party and party costs.
85 The allowable remuneration of a court appointed receiver is thus a different matter, not subject to the constraints of RSC O 66 r 11(2) read with (3).
86 The law applicable to the present applications in the present respect is in Legal Profession Act 2008 (WA) s 280(2), which with s 280(1) reads:
280. Effect of costs determination
(1) Subject to any costs agreement made in accordance with Division 6 or the corresponding provision of a corresponding law, section 306 and the Legal Aid Commission Act 1976 section 14 -
(a) the taxation of bills of law practices; and
(b) any other aspect of the costs charged by law practices,
is regulated by an applicable costs determination.
(2) Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following -
(a) order the payment of costs above those fixed by the determination;
(b) fix higher limits of costs than those fixed in the determination;
(c) remove limits on costs fixed in the determination;
(d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.
88 I reproduce those paragraphs from Pourzand (S2):
Therefore, before a discretion can be exercised to make a special costs order, the court must be of the opinion:
(1) the Scale item is inadequate, and
(2) the inadequacy arises because of the unusual difficulty, or complexity, or importance of the matter: Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [11] (Martin CJ).
These questions are to be addressed as matters of impression rather than detailed evaluation: EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd … [7] (Martin CJ). Courts should draw from their experience and act on impressions gained during the litigation to take into account the issues which have been involved, albeit without attempting to make an estimate of the time which is thought to be appropriate when the information for that assessment is not all available: Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S) [43] (Pullin J).
As to (1) (inadequacy of the Scale item), the inadequacy will be demonstrated if there is 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 that would be imposed by the relevant costs determination: Heartlink Ltd [16] (Martin CJ).
A conclusion that it is fairly arguable that the taxing officer might properly allow costs at an amount greater than the amount allowable under the Scale does not always require evidence of the costs actually incurred: Frigger v Lean [2012] WASCA 66 [81] (Allanson J; Newnes & Murphy JJA agreeing).
As to (2) (inadequacy arising due to the unusual difficulty, complexity, or importance of the matter), the adjective 'unusual' qualifies only the 'difficulty' of the matter, not its complexity or importance: see, in relation to the identical terms of the predecessor to s 280(2): Heartlink Ltd [17] (Martin CJ); Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S) [33] (Simmonds J); SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2) [102] - [106] (Roberts-Smith J).
Finally, although replacing the amount of the Scale item with a different ceiling may be appropriate where sufficient information exists to make that assessment, it is not uncommon for an order to be made removing the limit for the Scale item without replacing that limit with a different ceiling: EDWF Holdings [8] - [9], [13] (Martin CJ). When the Scale ceiling is lifted a taxing officer is otherwise unconstrained and need not allow costs above the previous Scale ceiling [9] - [14].
89 The Friggers' written submissions include that, in the absence of an affidavit in support of the application including a draft bill of costs specifying the amounts proposed to be claimed under each discrete sub-item and the total amount proposed to be claimed, the court should not exercise its discretion to make a special costs order. They cite Atwell v Roberts [2013] WASCA 37 (S) [23] (Pullin, Buss & Murphy JJA). There was no supporting affidavit at all in this case, let alone one annexing such a draft bill of costs.
90 However, that paragraph in Atwell indicates that a special costs order may be made in the absence of affidavit annexing such a bill of costs. Further, the Court may be in a position, by reference to its experience in the litigation, to make a special costs order even without a supporting affidavit or without one with any meaningful content in the present respect: see EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [7].
91 I consider that is my position in this case.
92 I understood at the hearing on the delivery of my decision CAT v PSA [No 6], from counsel for the receiver, that proposed order 3 in the receiver's minute was to allow for the fact that item 10 in both the 2010 Scale and the 2012 Scale, for proceedings in chambers, which the application for directions commenced, would in all likelihood not be appropriate given the nature of the proceedings that flowed from that application for directions. I consider that the change made by the receiver's costs minute does not affect that position.
93 I consider a special costs order should be made removing the limit for those two items. I so consider as I have determined that the scale item is inadequate because of the unusual difficulty, and because of the complexity, of the present proceedings, having regard to the following matters which I have drawn from my experience of these proceedings:
(1) the factual and legal difficulty of an unusual kind, and the complexity, of the issues which the proceedings in chambers were required to address, particularly the determinative issues, issues 3 and 4, above. This difficulty and complexity as most clearly reflected in the fact that a full day of hearing was devoted to oral closing submissions and in the classification I assigned to my decision of 'A';
(2) the volume of evidence including documentary material in those proceedings, as indicated by CAT v PSA [No 6] [74] - [86], referred to above;
(3) the background to those proceedings described in CAT v PSA [No 6] [54] - [59] referred to above; and
(4) the total length of the hearings involved in those proceedings.
See Sansom Nominees Pty Ltd v Meade [2005] WASC 9 [3] (EM Heenan J) on the relevance of factors of those kinds to making a special costs order.
94 It would follow from this determination that I would not make an order in the terms of order 2 in the Friggers' costs minute.
The law applicable to the particular costs orders sought by the Friggers and its application
95 This is the law relevant to the Friggers' costs minute 3a and b and the receiver's costs minute 1.1.
96 The costs in the Friggers' costs minute 3a are:
(1) costs of hearings on what became the application for directions, being hearings held before the commencement, on 4 April 2013, of the hearings at which evidence was taken, and in respect of which orders were made reserving their costs or (in the case of the hearing of 28 March 2013) making the costs of the hearing costs in the cause; or
(2) costs of those hearings commencing on 4 April 2013 at which evidence was taken (the cross-examination costs).
97 As to the costs in 1, in my view of the evolution of the application for directions as I have described it above (see CAT v PSA [No 6] [54] - [69]), and the law and its application relating to the first of the three discrete matters I identified, it is not appropriate to distinguish between those hearings the costs of which were reserved, or to make any other costs order for them than that in the receiver's costs minute 1.1.
98 As to the costs relating to the hearing of 28 March 2013 I would not vary the order made on that occasion, for the same reason.
99 As to the costs in 2, I consider I have dealt with all of those costs in the first section of these reasons.
100 The costs in the Friggers' costs minute 3b are:
(1) costs relating to matters arising out of hearings on what became the application for directions, being hearings held before the commencement, on 4 April 2013, being all of the items referred to except for the applicants' costs of the respondent's amended objections to affidavit; or
(2) that excepted item.
101 For the same reason as for the Friggers' costs minute 3a 1, I consider it is not appropriate to make any other order for the costs in 3b 1, than that in the receiver's costs minute 1.1.
102 As to the costs in the Friggers' costs minute 3b 2, being the applicants' costs of the respondent's amended objections to affidavit, I consider I have dealt with all of those costs in the first section of these reasons.
103 It follows I would not make an order in terms of the Friggers' costs minute 3a or 3b.
Conclusion and orders
104 I have concluded that for the reasons I have given I should make costs orders to the following effects:
1. The Friggers' pay the Receiver's costs of and incidental to the application for directions, including reserved costs, to be taxed if not agreed; and
2. The taxing officer to make reasonable allowance for the Receiver's costs without being limited by item 10 in the 2010 Scale or the 2012 Scale, as applicable.
105 These orders correspond to the receiver's costs minute, order 1.1, with the spelling out of the scale item number in 2.
106 I would not make any of the orders sought by the Friggers' costs minute.
107 It follows that the receiver has been successful, and should receive his costs of the application for costs orders.
108 I will hear from the parties as to the terms of the orders to be made.
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