Divjakoski v Boral Window Systems [No 2] - [2010] WADC 166

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVL

LOCATION: PERTH

CITATION: DIVJAKOSKI -v- BORAL WINDOW SYSTEMS [No 2] [2010] WADC 166

CORAM: FENBURY DCJ

HEARD: 10 SEPTEMBER 2010

DELIVERED : 17 NOVEMBER 2010

FILE NO/S: CIV 961 of 2003

BETWEEN: DRAGAN DIVJAKOSKI
Plaintiff
AND
BORAL WINDOW SYSTEMS
Defendant

Catchwords:

Costs - Special order - Turns on own facts

Legislation:

Legal Practice Act 2003, s 215

Result:

Application refused

Representation:

Counsel:

Plaintiff:     Mr D J Garnsworthy
Defendant:     Not applicable
Non-party:     Mr G E Nairn

Solicitors:

Plaintiff:     D Garnsworthy
Defendant:     No appearance
Non-party:     S C Nigam & Co

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

Bruce Angelo Gatti as trustee for the Bruce Gatti Family Trust v Brett Davies [2000] WASC 190

FENBURY DCJ: This is a chambers summons for a special costs order brought by the plaintiff's former solicitor, S C Nigam & Co, pursuant to s 215 of the Legal Practice Act 2003.
The practitioner seeks orders that:
1.The client/lawyer costs incurred by the plaintiff with S C Nigam & Co to be taxed without regard to the limits of the Legal Practitioners (Supreme Court) (Contentious Business) Determinations 2006 and 2008 with respect to the following items:
(a)16       Getting up for trial
(b)19(a)     Counsel fee on brief – first day of trial and preparation
(c)19(b)    Counsel fee at trial for second and subsequent days and specifically the taxing officer have discretion to allow the plaintiff's counsel a 'refresher' fee for each of the two days of trial after the initial eight days.
2.The plaintiff do pay S C Nigam & Co costs of this application to be taxed and paid if not agreed including the costs of conferral.
Section 215 of the Legal Practice Act, subsection 2, states:
… if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a legal 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 audited or taxed.
The application arises out of an action for damages for personal injury allegedly suffered in the workplace and said to have been the fault of the defendant, the owner of the premises at which the plaintiff was working at the time. The plaintiff alleged that he slipped on soapy water and fell, hurting his elbow and shoulder.
The plaintiff also alleged that, post-accident, the defendant had taken measures to address and reduce the chance of another person slipping as the plaintiff had done. Allegedly, the defendant applied a non-slip surface to the factory floor.
The plaintiff's claim that he fell and injured himself was denied by the defendant, as was the claim that the loss and damage was suffered. The plaintiff was the primary, and in most respects only, source of evidence on these matters. The defendant deserted the plaintiff was not to believed and sought to prove such an extent of other collateral or unrelated dishonest behaviour as to lead the court to the view that unless the plaintiff's evidence was corroborated, it should not be accepted.
On 6 May 2010, the plaintiff's claim was dismissed and judgment was entered in favour of the defendant. The plaintiff was ordered to pay costs to be taxed. In the ensuing weeks until 8 June 2010, there was discussion between the plaintiff and the defendant about fees. By reference to the affidavit of Mr Nigam dated 7 September 2010, he rendered 'tax invoices' to the plaintiff for professional fees and disbursements on 7 and 8 May 2010. On 13 May 2010, a meeting took place between the plaintiff and Mr Nigam and others during which the plaintiff indicated he would not pay fees and intended to declare bankruptcy.
During these weeks, there was discussion about the question of an appeal. On 8 June 2010, the plaintiff sought an itemised bill which was provided on 30 June and 13 July 2010. On 30 June 2010, Mr Nigam received a letter from fresh solicitors, apparently appointed by the plaintiff. On 20 July, in spite of the appointment of solicitors, Mr Nigam received a further letter from the plaintiff requesting taxation. On 4 August 2010, Mr Nigam instructed solicitors and thereafter this application was brought.
It is significant that the practitioner, Mr Nigam, did not bring this application as a result of views he personally held. He only did so following legal advice sought in relation to the issue of the collection of fees.
A number of threshold matters have been raised by Mr Garnsworthy, who appeared for the plaintiff in respect of this matter, as amicus curiae or 'pro bono' (I am unclear on that). It was submitted that, somehow, the court was functus officio and could not entertain the application at all. This was not pursued with any vigour and I do not propose to spend time in deliberation upon it. The basis appears to be merely that as orders as to costs had been made, therefore, the application was incompetent. Of course the only order as to costs that had been made was that which followed the event in the normal way. No orders had been made relating to quantum.
It was more vigorously pressed that the application was 'out of time'. This argument relied upon O 66 r 51 of the Rules of the Supreme Court 1971. Sub‑rule (1) states:
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, made in every judgment or order of the court where the question of costs is not specifically dealt with these shall be deemed to be reserved to any party interested liberty to apply within 30 days.
Sub-rule (2) states:
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 limited to apply within 30 days.
The court's attention was drawn to the observations of Wheeler J in Bruce Angelo Gatti as trustee for the Bruce Gatti Family Trust v Brett Davies [2000] WASC 190 where at [11] and following her Honour states:
Both parties argued in relation to delay on the basis that the application for a special costs order should have been made by the practitioner within 30 days pursuant to O 66 r 51. This assumption begs the question 'within 30 days of what?'
Her Honour had before her a case where a matter had been settled, not determined, and there was no specific date relied upon from which the 30 days could run. Of course in this case the judgment was handed down on 6 May 2010 and there was an order made at that time in the usual way.
I have some doubts whether O 66 r 51 applies in a matter where an application is brought by a practitioner, who was not a party to the action. Nevertheless, on the reasoning of her Honour Wheeler J, it would seem that matters like this should be raised within a reasonable time following a relevant date and 30 days would appear to be such a time.
Clearly, the application was not brought until nearly three months later than the expiry of the 30 day period. The practitioner had no personal view about the complexities of the matter or whether special orders for costs were warranted but only received advice to that effect when he sought legal assistance from solicitors he engaged for the purpose, being the present solicitors.
Although I feel some hesitation the delay could not be said to be excessive. There is some explanation (as distinct from Gatti) and I am prepared to proceed upon the basis and there would not be any prejudice to the plaintiff who, apparently, has refused to pay any fees at all in any event.
I shall therefore consider the merits of the matter. In order to get the matter up for trial, the practitioner and/or counsel was required to read a number of documents obtained and produced by the defendant. These documents were all documents that had been generated by or on behalf of the plaintiff. They included a number of applications for finance from various financial institutions, and the particular application for employment with the labour hire company that placed the plaintiff upon the defendant's premises.
Generally, the only document contents that were relevant were the entries comprising information sourced from the plaintiff, such as work history and statements of family income.
The defendant's case was that the plaintiff had repeatedly made false statements in these documents so as to gain the benefits sought, being bank finance and employment. Thus it was argued, successfully, that the plaintiff's uncorroborated evidence about his claim should not be accepted.
Although there was more focus upon the plaintiff's credibility than in some cases, the defendant's strategy could not be described as unusual. And it was hardly unusually difficult or complex. As to importance, the case was a 'run of the mill' industrial accident involving an allegation of a fall in the workplace and not of 'importance' in the sense contemplated by the Legal Practitioners Act in my view. Of course it was important for the plaintiff but the case is always so.
The other aspect of the case said to warrant a special costs order related to the evidence about the alleged state of the factory floor when inspected several years post‑accident. Evidence was marshalled to prove the floor had received post‑accident non‑slip treatment in the form of painting. Considerable time and effort clearly went into pursuing this line, in the case, but it was unwarranted in my view having regard to the findings made.
Although some expert evidence was acquired and adduced, it cannot be said it was of great complexity. The argument was only difficult in the sense that to try and prove post-accident remedial steps taken by the defendant, without contemporaneous evidence in support, is difficult. No relevant inspection or consideration of the relevant floor took place until years after the alleged accident.
However, the scientific processes explained were straightforward and, in the end, of no significance because of the adverse factual finding that there was no non-slip treatment that had been applied by the defendant after the alleged event.
I am unconvinced that the matter was either unusually difficult, complex or of sufficiently relevant importance. I would not make the orders ought and consequently the application is dismissed.