Corp v Robinson
[2012] WASC 490 (S)
•31 JULY 2013
CORP -v- ROBINSON [2012] WASC 490 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 490 (S) | |
| Case No: | CIV:3014/2011 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 31/07/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Removal of one scale limit | ||
| B | |||
| PDF Version |
| Parties: | STUART ADRIAN CORP HAYDN ROSS ROBINSON JAMES LINDSAY GLISSAN QC JAMES WHYTE |
Catchwords: | Practice and procedure Costs Application to remove limits on items in the scale of costs |
Legislation: | Legal Practitioners (Supreme Court) Contentious Business Determination 2010 (WA) Legal Practitioners (Supreme Court) Contentious Business Determination 2012 (WA) Legal Profession Act 2008 (WA), s 280(2) Rules of the Supreme Court (WA), O 16 Supreme Court Act 1935 (WA), s 37(1) |
Case References: | Como v Helmers [2011] WASC 179 (S) Corp v Robinson [2012] WASC 490 EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S) Frigger v Lean [2012] WASCA 66 Hartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2) Red Hill Iron Pty Ltd v API Management Pty Ltd [2012] WASC 373 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
HAYDN ROSS ROBINSON
First Defendant
JAMES LINDSAY GLISSAN QC
Second Defendant
JAMES WHYTE
Third Defendant
Catchwords:
Practice and procedure - Costs - Application to remove limits on items in the scale of costs
Legislation:
Legal Practitioners (Supreme Court) Contentious Business Determination 2010 (WA)
Legal Practitioners (Supreme Court) Contentious Business Determination 2012 (WA)
Legal Profession Act 2008 (WA), s 280(2)
Rules of the Supreme Court (WA), O 16
Supreme Court Act 1935 (WA), s 37(1)
Result:
Removal of one scale limit
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff : Bennett & Co
First Defendant : Pynt & Partners
Second Defendant : Ashurst Australia
Third Defendant : DLA Piper Australia
Case(s) referred to in judgment(s):
Como v Helmers [2011] WASC 179 (S)
Corp v Robinson [2012] WASC 490
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S)
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S)
Frigger v Lean [2012] WASCA 66
Hartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S)
Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2)
Red Hill Iron Pty Ltd v API Management Pty Ltd [2012] WASC 373 (S)
1 KENNETH MARTIN J: This is an application by the second defendant for a special costs order in the wake of my reserved reasons (see Corp v Robinson [2012] WASC 490 delivered 25 January 2013).
2 By those reasons, I essentially found for the defendants on their Rules of the Supreme Court (WA) O 16 summary judgment applications seeking dismissal of the plaintiff's claims against them.
3 On 19 March 2013 I signed off on a minute of consensual orders disposing of the action in these terms:
1. Time for each of the defendants to apply for summary judgment pursuant to Order 16, rule 1 of the Rules of the Supreme Court 1971 (WA) is extended to the date of the filing of their respective summonses.
2. The action against all the defendants is hereby dismissed and judgment be entered for all defendants pursuant to Order 15 of the Rules of the Supreme Court 1971 (WA).
3. The plaintiff pay each of the defendants' costs of and incidental to the applications and the proceeding, to be taxed, pursuant to Order 66 of the Rules of the Supreme Court 1971 (WA).
4. Any application by the second defendant for a special costs order under s 280(2) of the Legal Profession Act 2008 (WA) to remove the limits fixed by the Legal Practitioners (Supreme Court) Contentious Business Determination 2010 (WA) with respect to its costs of and incidental to the proceeding to be made within 21 days of this order, supported by an affidavit and outline of submissions.
5. If the second defendant makes an application for a special costs order in accordance with Order 4 above, the plaintiff is to file any affidavit in reply and/or an outline of submissions in reply within 21 days of the date of service of the second defendant's application.
6. Directions be made for the determination of any application for a special costs order on the papers or by hearing following delivery of the plaintiff's submissions in accordance with order 5 above.
4 In the aftermath of their success in having the plaintiff's actions against them summarily dismissed, all defendants were entitled to taxed costs orders in their favour reflecting that outcome.
5 The only issue which now arises is the unresolved application of the second defendant (Mr Glisson QC) by chamber summons of 17 April 2013, seeking special costs orders, in accord with the criteria set by s 280(2) of the Legal Profession Act 2008 (WA).
6 By that application Mr Glisson QC seeks orders pursuant to s 280(2), or alternatively s 37(1) of the Supreme Court Act 1935 (WA) that the plaintiff pay his taxed costs and that these costs be taxed in relation to:
(a) item 3(b) of the scale, to be taxed without regard to the limit if it is not agreed;
(b) item 10(a) of the scale, to be taxed without regard to the limit if it’s not agreed; and
(c) item 10(c) of the scale, to be taxed without regard to the limit if it is not agreed.
7 The relevant costs scales applicable to this action concerning the limits at which costs which may be taxed on a bill lodged by the second defendant are the Legal Practitioners (Supreme Court) Contentious Business Determination 2010 (WA) and the Legal Practitioners (Supreme Court) Contentious Business Determination 2012 (WA).
8 In the alternative to orders removing the scale limits for a taxation, Mr Glisson QC would seek (by par 3 of his chamber summons) orders that 'the plaintiff pay [his] costs including any costs reserved on a party/party basis, to be taxed if not agreed'.
9 Mr Glisson QC also seeks the plaintiff pay the costs of this application (to be taxed). These orders are sought in circumstances where the parties are agreed that the limited horizons in their present dispute may be determined on the papers.
10 The basis for Mr Glisson QC's application is expressed succinctly in the summons of 17 April 2013, by reference to the criteria of s 280(2) of the Legal Profession Act, as:
(a) the unusual difficulty and complexity of the matter given the novel nature of the plaintiff's claim;
(b) the importance of this matter to the second defendant.
11 In support of his application Mr Glisson QC, through his instructing solicitors and counsel, has filed on his behalf an affidavit of Leon Magistro sworn 17 April 2013 and written submissions of the same date, signed by junior counsel.
12 In opposition the plaintiff, Mr Corp, through his solicitors, has filed written submissions dated 24 May 2013, opposing the application for these special costs orders.
13 At the outset I should observe that I detect no dispute at all between the parties over the applicable principles for an application such as this. The parties' submissions refer to the usual costs authorities, namely Hartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [16] (Martin CJ); EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) [7] (Martin CJ); Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S) [43] (Pullin J) (as he then was); Frigger v Lean [2012] WASCA 66 [81], a decision of the Court of Appeal where the lead reasons were delivered by Allanson J (Newnes & Murphy JJ agreeing); O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) [23] - [24] (Martin CJ); Como v Helmers [2011] WASC 179 (S) [18] (Corboy J); and Pourzand v Telstra Corporation Ltd[2012] WASC 210 (S2) [24] (Edelman J). I would add the recent decision of Beech J, Red Hill Iron Pty Ltd v API Management Pty Ltd [2012] WASC 373 (S). In that recent case Beech J comprehensively summarised some relevant costs principles, at [5] - [8].
14 From those authorities may be extracted now well settled principles, that:
(a) Before a discretion under s 280(2) of the Legal Profession Act can be exercised the court must be satisfied that the outer limit set by the relevant scale item is inadequate.
(b) The appropriateness of lifting or removing individual scale items ought be assessed severally and not on a global basis.
(c) The adjective 'unusual' only qualifies the following word 'difficulty', not the ensuing terms 'complexity' or 'importance of the matter'.
(d) Every action at some level can be regarded as being personally important to a participant plaintiff or defendant. There must be something more shown to establish the general importance of the matter.
(e) The extent of the work performed by a party's legal representatives may provide sufficient reason to remove or increase a scale allowance. Sometimes this work may be obvious, but sometimes evidence of legal costs actually incurred should be provided.
(f) A decision by a judicial officer to remove a scale limit (or adjust its level upward) does not carry with it any necessary conclusion that when a taxation subsequently occurs the taxing officer will be persuaded to allow an amount greater than the scale limit. Lifting or adjusting the limit simply allows the scope for a taxing officer on the taxation to fix an amount in excess of the scale, once persuaded, in all the circumstances, that that course is warranted.
(g) Potential inadequacy of the scale item limit and an assessment as to unusual difficulty, complexity or importance, are addressed as matters of overall impression by the judicial officer, rather than by way of detailed evaluation. The judicial officer will act on experience and upon impressions gained from what has been placed before the court during arguments or at trial. The judicial officer does not engage in a quasi taxation exercise.
Determination
15 Here, the relevant scale allowances in respect of which upward adjustment is sought by Mr Glisson QC concern respectively:
(a) as regards item 3(b), the amount allowed for the drafting of the second defendant's defence;
(b) as regards item 10(a), the allowance for proceedings in chambers (which in the present case is applicable to the substantive preparation and hearing of the defendants' summary judgment applications which took place on 16 November 2012 at a special appointment from 10.15 am to 1.00 pm); and
(c) item 10(c), relating to the scale allowance for consent orders.
16 The relevant scale allowances in respect of items 3(b) and 10(c) fall under the Legal Practitioners (Supreme Court) Contentious Business Determination 2010, as applicable to the defence drafted in March 2010. As regards item 3(b) the allowance is $4,290 (by reference to a 10-hour allowance). For item 10(c) the allowance is $473 (by reference to a maximum time assessment of 1.5 hours).
17 The affidavit of Mr Magistro by its attachment LM1 contains a table as to which he comments at his par 11 '… sets out the time reasonably spent by the solicitors and counsel for the second defendant in defending the plaintiff's claim and in making the Applications'.
18 Attachment LM1, comprising some 27 pages, shows a breakdown essentially of a time charging regime applied by two solicitors and various other personnel of the second defendant's solicitors', by reference to hours worked and their respective 'charge out rate'. The solicitors concerned are a Mr Ward, whose practitioner level is said to be 'SP', meaning (by reference to the determination) a senior practitioner (a practitioner admitted for five years or more) and Mr Magistro, who is described at practitioner level as 'JP', junior practitioner (a practitioner admitted for less than five years).
19 The summary table reads much like an arithmetic summation of a series of time entries then multiplied by a nominated charge out rate, generating the end level of the fee charge which has been rendered by the second defendant's solicitors to their client.
20 By reference to scale items 3(b) and 10(c) the fees incurred by the client would appear to be respectively $5,306.40 and $3,878.60 (see pages 1, 3 and 17 of attachment LM1). Assessing that material, as a matter of impression, I am not persuaded that these scale allowances do present as inadequate. Nor would I be persuaded by reference to any of the tripartite criteria of s 280(2) Legal Profession Act being met in respect of these two scale allowance limits.
21 The more substantive issue as regards allowance adjustment concerns item 10(a) of the scale. The relevant allowance is $10,560, by the Legal Practitioners (Supreme Court) Contentious Business Determination 2012. That scale is contructed by reference to two days' preparation and one day of hearing. At this level, Mr Glisson QC would appear to have been charged by his solicitors and counsel the total amount of $44,998.30, assessed by reference to the time entries and scale of charging by Mr Ward, Mr Magistro, clerks, paralegals and by senior and junior counsel (see pages 1 and 4 - 14 of LM1 - recording time entries of 106.1 hours and the various charge out rates of the participant solicitors or counsel).
22 In the presenting circumstances, I am persuaded it is appropriate to remove this upper scale allowance limit. But I do so pointing out two significant surrounding observations. First, the fact that a limit is removed (or adjusted upwards) simply means that there is opportunity at a taxation for the party who submits a bill of costs to argue to a taxing officer that an increased allowance is appropriate, in all the circumstances. It is for the taxing officer to be persuaded as to the merits or demerits of such a submission, in the ultimate event. Second, in order to have a judicial officer remove or adjust an upper limit on a scale, it is not a question of making a submission to the effect, 'Look how many hours of work have been recorded on time sheets and then how much the client has been charged by reference to charge out rates agreed privately as between solicitors and the client, or by counsel and the client's solicitors - thereby generating a client charge significantly greater than the scale allowance.' More is required than a base exercise of simple arithmetic as to time sheet entries.
23 For the present case, it is not the arithmetic within attachment LM1 as regards scale item 10(a) which has been persuasive to me (as a matter of impression for the purposes of the exercise of seeking to have this limit removed). What is more persuasive, I find, are the descriptions of the activity set out at some detail in the table by identified participant solicitors and counsel. That narrative satisfies me that, as a matter of impression, the scale limit under item 10(a) could be too low in all the circumstances.
24 Having surmounted that first hurdle, I move to the s 280(2) Legal Profession Act tripartite criteria and bring to account all that I have listened to and considered for the purposes of determining the summary judgment applications.
25 Whilst not persuaded that this matter was one of unusual difficulty, I nevertheless am persuaded that this was an application (in fact, three applications all heard at the same time) of some complexity requiring the assimilation of a considerable volume of antecedent materials, including the review of Mr Corp's criminal trial in 2007 and his subsequent appeal to the Court of Appeal. There was complexity in the underlying facts and also, from my perspective, in the applicable law concerning advocates' immunity principles and allied considerations associated with a significant amount of case law in that area and in the correlative field of abuse of process.
26 Furthermore, and independently, I would have been persuaded by reference of the importance of the matter in the context of s 280(2) of the Legal Profession Act. At the hearing the plaintiff, second and third defendant were all represented by senior counsel and, in the circumstances, I thought that was appropriate for what was a unique set of claims by the plaintiff. The first defendant was represented by a senior practitioner solicitor advocate with extensive experience in the professional liability/insurance field. Underlying issues concerning causation and damage were both complex and generally important, on my assessment.
27 In the circumstances, I find it appropriate to order that the scale limit in respect of item 10(a) be removed for the purposes of a taxation of the second defendant's costs against the plaintiff and I will make an order in these terms. The parties have asked me not to deal with the costs of this application, now resolved.
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