Duckworth v Water Corporation [No 2]
[2012] WASC 163
•18 MAY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: DUCKWORTH -v- WATER CORPORATION [No 2] [2012] WASC 163
CORAM: EDELMAN J
HEARD: 17 MAY 2012
DELIVERED : 18 MAY 2012
FILE NO/S: CIV 3066 of 2010
BETWEEN: NEIL JAMES DUCKWORTH AS TRUSTEE FOR THE OCEAN FARM TRUST
Plaintiff
AND
WATER CORPORATION
Defendant
Catchwords:
Practice and procedure - Application to reinstate discontinued proceedings - Power to reinstate - Where reinstatement is sought for proceedings brought by bankrupt plaintiff - Where bankrupt plaintiff no longer asserts that he remains the trustee over the cause of action - Where trustee in bankruptcy has assigned any cause of action vested in him to purported beneficiaries - Where purported beneficiaries have not sought to bring a fresh action - Where Deed is produced by the plaintiff which was never discovered or referred to by the plaintiff and which suggested that the plaintiff was not the trustee when his writ was filed - Where plaintiff subsequently claiming that the change of trustee Deed had been abandoned - Where outstanding costs orders against the plaintiff in relation to discontinued proceedings
Practice and procedure - Costs - Costs of proceedings brought where plaintiff subsequently declared bankrupt and action stayed - Costs not a debt provable in the bankruptcy - Costs of proceedings where plaintiff acting as a trustee payable by the plaintiff personally
Practice and procedure - Costs - Indemnity costs and special costs orders sought in relation to seeking the costs of the action and resisting the application to re‑open orders
Legislation:
Bankruptcy Act 1966 (Cth), s 60(2)
Legal Profession Act 2008 (WA), s 280
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA)
Result:
Application to re-open orders refused
Plaintiff to pay the defendant's costs of the action
Plaintiff to pay the defendant's costs of the applications
Category: B
Representation:
Counsel:
Plaintiff: In person
Defendant: Mr M W Fatharly & Ms C Sadleir
Solicitors:
Plaintiff: In person
Defendant: Kott Gunning
Case(s) referred to in judgment(s):
Adsett v Berlouis (1992) 37 FCR 201
Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2004) 216 CLR 109
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159
Cole v Challenge Bank Ltd [2002] FCAFC 200
Duckworth v Water Corporation [2012] WASC 30
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S)
Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52
Frigger v Lean [2012] WASCA 66
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)
Logan v Camm and Whitson (as executors of the estate of Leslie Robert Camm) [2008] QSC 255
Macedon Ranges Shire Council v Thompson [2009] VSCA 209
Metsikas v Quirk [2010] NSWSC 756
Mount Lawley Pty Ltd v Western Australian Planning Commission [No 2] [2008] WASCA 1
O'Neill v Mann [2000] FCA 1680
Octavo Investments Pty Ltd v Knight [1979] HCA 61; (1979) 144 CLR 360
Ramage v Waclaw (1988) 12 NSWLR 84
Re Lofthouse [2001] FCA 25; (2001) 107 FCR 151
Roberts v Gill & Co [2010] UKSC 22; [2011] 1 AC 240
Sarkis v Moussa [2012] NSWCA 136
Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270
SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2)
Temsign Pty Ltd v Biscen Pty Ltd (1998) 20 WAR 47
Voskuilen v Morisset Mega Markets [2005] NSWSC 34
Table of Contents
The decision and consequences of Duckworth v Water Corporation [2012] WASC 30
The two applications now brought
The application to reinstate the proceedings
(1) Lack of standing for Mr Duckworth to proceed as the plaintiff
The scenario that Mr Duckworth held the cause of action on trust
The scenario that Mr Duckworth did not hold the cause of action on trust
(2) Concerns that the court could have been misled
(3) The need for Mr Duckworth first to satisfy costs orders
The application for costs of the discontinued proceedings
The appropriate exercise of the costs discretion
The costs order is not a debt provable in Mr Duckworth's bankruptcy
Mr Duckworth's alleged position as trustee does not affect the costs order
The costs of these applications
Indemnity costs
Special costs orders
Conclusion
EDELMAN J:
The decision and consequences of Duckworth v Water Corporation [2012] WASC 30
On 2 February 2012, I gave reasons explaining that Mr Duckworth's action was stayed by s 60(2) of the Bankruptcy Act 1966 (Cth) because he had become a bankrupt after commencing the action: Duckworth v Water Corporation [2012] WASC 30 (Duckworth (No 1)). Section 60(2) provides that:
An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.
In my reasons I explained that the action was stayed even though Mr Duckworth purported to commence the action in his capacity as trustee for the Ocean Farm Trust. The issue was complicated by a dispute concerning whether Mr Duckworth was, in fact, suing in his capacity as trustee for the Ocean Farm Trust and whether any rights he asserted were, in fact, held on trust.
Although the result may not be free from doubt, I explained that, with respect, for seven reasons, the previous authority of Re Lofthouse [2001] FCA 25; (2001) 107 FCR 151 was not 'plainly wrong' as would be necessary before I could depart from it.
One concern, based on history and purpose, was that any rights which Mr Duckworth did hold on trust did not vest in his trustee in bankruptcy; it was only any beneficial interest which Mr Duckworth had, or any rights of indemnity against the alleged trust property, which vested in his trustee in bankruptcy: Octavo Investments Pty Ltd v Knight [1979] HCA 61; (1979) 144 CLR 360, 369 ‑ 370 (Stephen, Mason, Aickin & Wilson JJ). However, s 60(2) does not require that the action which is stayed be 'property' which vests in the trustee in bankruptcy: see also Sarkis v Moussa [2012] NSWCA 136 [29(4)] (Beazley JA).
On 1 March 2012, after receipt of notice, Mr Duckworth's trustee in bankruptcy elected under s 60(2) of the Bankruptcy Act to discontinue the action: see par 5.2 of the affidavit of Ms Catherine Sadleir sworn on 3 April 2012. On 22 March 2012, I made orders discontinuing the action.
The effect of discontinuing an action is not to dismiss it. It may be possible for a discontinued action to be reinstated after bankruptcy is discharged, or for fresh proceedings to be brought then. Even if a trustee in bankruptcy does not elect to discontinue proceedings, and is deemed to have abandoned them, a fresh action might still be brought by the bankrupt upon discharge: Temsign Pty Ltd v Biscen Pty Ltd (1998) 20 WAR 47, 58 (Wheeler J).
Perhaps more importantly, as I explained in my reasons in Duckworth (No 1), in 'exceptional circumstances' a beneficiary or beneficiaries can institute fresh proceedings in their own right to enforce a trustee's legal rights. The trustee would almost always be joined as a defendant along with all other beneficiaries who are not plaintiffs. One established 'exceptional circumstance' is the insolvency or bankruptcy of the trustee: Roberts v Gill & Co [2010] UKSC 22; [2011] 1 AC 240, 256 [46] (Lord Collins); Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2004) 216 CLR 109, 129 [55] (Gleeson CJ, Gummow & Hayne JJ); Ramage v Waclaw (1988) 12 NSWLR 84, 91 (Powell J).
One application now before me is by Mr Duckworth, seeking that the proceedings be reinstated. The possibility of a fresh action by the alleged beneficiaries, or of any action by Mr Duckworth after discharge from bankruptcy, are not matters which need to be considered in this application. However, the existence of these alternatives demonstrates that the failure of Mr Duckworth's application to reinstate the proceedings does not necessarily mean dismissal of the proceedings.
The two applications now brought
There are two applications now before me. The first is an application by Mr Duckworth 'to continue the action', which should be understood as an application to reinstate the proceedings. This is opposed by the Water Corporation. For the reasons explained below this application fails.
The second application is by the Water Corporation seeking costs orders. Mr Duckworth's trustee in bankruptcy consents to the costs orders sought by the Water Corporation. Mr Duckworth opposes them. My conclusion is that the Water Corporation is entitled to its costs of the discontinued proceedings. It is also entitled to its costs in relation to these applications, to be taxed without regard to the limit in item 10(a) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA).
The application to reinstate the proceedings
The application to reinstate the proceedings is brought by Mr Duckworth (purportedly as trustee for the Ocean Farm Trust). His bankruptcy has not been discharged. He is the only plaintiff of the discontinued proceedings. Although he filed an amended writ on 22 March 2012 adding the names of seven other plaintiffs including Duck One Holdings Pty Ltd, no leave was given to add these additional plaintiffs and the proceedings were stayed at the time Mr Duckworth filed this amended writ attempting to add additional plaintiffs.
The basis upon which Mr Duckworth now wishes to reinstate the proceedings is not entirely clear. It was not submitted that anything in my decision was based upon any 'misapprehension of the facts or the relevant law [which] cannot be attributed solely to the neglect or default of the party seeking the rehearing'. The exceptional power to rescind orders made in such circumstances is not enlivened: Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300, 302 ‑ 303 (Mason CJ) approved in Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38, 48 [32]; see also Mount Lawley Pty Ltd v Western Australian Planning Commission [No 2] [2008] WASCA 1 [5].
However, where an action is discontinued there is generally an inherent power to reinstate the proceedings which is separate from the power to rescind an order: see, for instance, Logan v Camm and Whitson (as executors of the estate of Leslie Robert Camm) [2008] QSC 255 [32], [35] (Dutney J). I did not receive any submissions concerning whether this power extends to the reinstatement of proceedings which are discontinued under s 60(2) of the Bankruptcy Act and I proceed on the basis that it is possible to reinstate an action which is discontinued by election of the trustee in bankruptcy.
Mr Duckworth sought to reinstate the action for reasons which can be summarised as follows:
(1)unfairness since 'this action has been before the court since 23 December 2011';
(2)that the Water Corporation 'has had the bond money since December 2007' and the 'headworks money since September 2006 wrongfully charged';
(3)that it is unjust and expensive in terms of interest and fees incurred;
(4)that the bond money was 'taken and held wrongfully';
(5)that the liability issues in the trial would only take 'say 2 hours' to be heard;
(6)that the evidence proves that Mr Duckworth has a claim for unjust enrichment; and
(7)that 'his Honour has read all the documents and knows the full contents; to start again would be a waste of court time'.
Even if correct, none of these matters would be sufficient to reinstate the proceedings. In contrast, there are three reasons why the proceedings should not be reinstated. These reasons are:
(1)Mr Duckworth has no standing as a plaintiff to bring the action;
(2)Mr Duckworth's recently filed evidence raises serious concerns that this court may have been misled; and
(3)there are outstanding costs owed as a result of the discontinuance.
Lack of standing for Mr Duckworth to proceed as the plaintiff
The first reason why the proceeding should not be reinstated is because Mr Duckworth does not have standing to bring the claim as plaintiff, whether in a personal capacity or in a capacity as trustee.
There remains the unresolved question whether any cause of action which is the subject of the proceeding is held on trust by Mr Duckworth or some other person or, as the Water Corporation contends, whether the rights are held by Mr Duckworth outright. There are two possible scenarios. Both of them lead to the conclusion that Mr Duckworth does not have standing to reinstate the proceedings.
The scenario that Mr Duckworth held the cause of action on trust
The first scenario is that which is submitted by Mr Duckworth. Mr Duckworth says that the cause of action was held on trust by him when he commenced the action. To simplify matters I assume that Mr Duckworth had no claim to indemnification from any proceeds of the cause of action, since such a claim for indemnification would have vested in his trustee in bankruptcy and may now have been assigned to other persons.
If it were possible at this stage to determine that Mr Duckworth held the cause of action on trust, it might be arguable that the proceedings should be reinstated following discontinuance by the trustee in bankruptcy. However, not only is this matter not possible to determine at this stage but there are two fundamental obstacles:
(1)there is real doubt whether the cause of action was held on trust by Mr Duckworth; and
(2)even if the cause of action were held on trust by Mr Duckworth, the affidavit evidence which he has now filed suggests that the cause of action is no longer held on trust by him.
As to (1), in paragraphs [24] ‑ [31] below I explain that the evidence which is now before the court raises a serious question concerning whether prior to the proceedings being commenced Mr Duckworth had removed himself as trustee of the Ocean Farm Trust.
As to (2), even if it were possible to conclude that Mr Duckworth commenced this action as trustee for the Ocean Farm Trust and that he held the cause of action on trust, there is the further difficulty that on Mr Duckworth's own evidence he is no longer the trustee. In Mr Duckworth's 12 April 2012 affidavit he alleges that the new sole trustee is Mr Karl James Duckworth. Therefore, even if the substantive issue concerning whether the rights were held on trust could be resolved without a trial of the matter, the action could not be reinstated with Mr Duckworth as plaintiff.
The scenario that Mr Duckworth did not hold the cause of action on trust
The second scenario is that the cause of action which is the subject of the discontinued proceedings was not held on trust but was held for Mr Duckworth's own benefit. This is the position that the Water Corporation contends to be the case. Under this scenario the cause of action would have vested in Mr Duckworth's trustee in bankruptcy. Mr Duckworth's trustee in bankruptcy has now assigned any cause of action against the Water Corporation which vested in him to four assignees. But those assignees do not include Mr Duckworth. They are Karl Duckworth, Rachel Duckworth, Andrew Duckworth and Clare Duckworth. These are four of the persons who Mr Duckworth asserts are the beneficiaries of a trust over the land which is the subject of the proceedings (see my reasons in Duckworth (No 1) [7]). Hence, on this scenario also, the proceedings cannot be reinstated with Mr Duckworth as plaintiff.
Concerns that the court could have been misled
A second reason why the proceedings should not be reinstated is that there is a serious concern that this court could have been misled by Mr Duckworth in relation to the important question of the identity of the proper plaintiff.
In an affidavit dated 5 April 2012, Mr Duckworth annexed a deed of appointment and removal of trustee (the Removal Deed). The Removal Deed apparently removes Mr Duckworth as trustee of the Ocean Farm Trust and replaces him with Duck One Holdings Pty Ltd. The Removal Deed is dated 11 September 2009. Yet, from 23 December 2010 when his writ was filed, Mr Duckworth had brought this litigation on the basis that he was the trustee. He was legally represented. His pleadings were produced by lawyers. His solicitor conducted the discovery process and would have explained to him his obligations. The Removal Deed was never discovered to the Water Corporation. It is not mentioned in Mr Duckworth's affidavit of discovery dated 15 June 2011. It was never mentioned to this court prior to 5 April 2012. And from a file note of a conversation on 18 November 2011 between Mr Duckworth's solicitor and the solicitors for the Water Corporation it is clear that Mr Duckworth had not informed his solicitor about it: see affidavit of Ms Catherine Sadleir sworn on 3 April 2012, annexure CLS 7.
Mr Duckworth said in oral submissions that he had not remembered the existence of the Removal Deed until he inspected the files of his previous solicitors (who produced the Removal Deed). This assertion is surprising. Mr Duckworth's writ was filed on 23 December 2010, just over a year after the Removal Deed was executed. The proceedings were brought upon instructions which would have been given to Mr Duckworth's lawyers prior to that date. After the filing of the Water Corporation's defence it was clear that an issue in the proceedings was whether Mr Duckworth was the trustee of the Ocean Farm Trust. The Removal Deed is fundamental to this issue.
On the other hand, Mr Duckworth was not cross‑examined on any of his affidavits and, although the court could have been misled at trial by the absence of this important document, I do not consider that there is sufficient basis to make a finding that Mr Duckworth intentionally sought to misled the court, or intentionally failed to disclose the Removal Deed.
After receipt of Mr Duckworth's 5 April 2012 affidavit, including the Removal Deed, the solicitors for the Water Corporation conducted a company search for Duck One Holdings Pty Ltd. The Removal Deed had been signed by Mr Duckworth and also executed by Duck One Holdings Pty Ltd with 'Troy Neil Dennis Duckworth' signing purportedly as sole director and sole secretary of Duck One Holdings Pty Ltd. An ASIC Historical Company Extract provided in an affidavit by Ms Sadleir on 12 April 2012 showed that Mr Troy Neil Dennis Duckworth was not, and had never been, a director of Duck One Holdings Pty Ltd. The ASIC Historical Company Extract showed that at the date when the Removal Deed was executed Mr Neil James Duckworth was a director of Duck One Holdings Pty Ltd: see affidavit of Ms Catherine Sadleir dated 12 April 2012, par 10 and CLS 1.
This raises various questions of law:
(1)Did the Removal Deed take effect to appoint Duck One Holdings Pty Ltd when it was signed for that company by a person who was not a director, although the sole director, Mr Duckworth, had signed in a different capacity?
(2)Could the Removal Deed take effect to remove Mr Duckworth as trustee even if Duck One Holdings Pty Ltd were not appointed as trustee?
Neither of these questions was raised in submissions and it is not necessary to address them. It suffices to say that the Removal Deed casts doubt upon whether Mr Duckworth was, and is, able to bring the proceedings as trustee for the Ocean Farm Trust.
After the receipt of this affidavit by Ms Sadleir, Mr Duckworth then filed a further affidavit on 19 April 2012 saying that
for whatever reason after a company search and investigating the company binder (Duck One Holdings Pty Ltd ACN 109 901 153) I found the change of directors form had not been lodged.
Mr Duckworth said that the binder had been in control of others and asserted that the form could be lodged at any time with late fees. He then asserted that 'the change of trustee deed to Duck One Holdings has been abandoned'. However, if the legal effect of the Removal Deed were to remove Mr Duckworth as trustee, this is not a matter which he can unilaterally 'abandon'.
The serious concern raised as a result of the new disclosure of this Removal Deed is, of itself, sufficient reason why these proceedings should not be reinstated.
The need for Mr Duckworth first to satisfy costs orders
There is also a third reason why the proceedings cannot be reinstated. This relates to the costs orders which are considered below. The Rules of the Supreme Court 1971 (WA), O 23 r 4 provides that a stay of a subsequent action can be ordered where the subsequent action involves the same, or substantially the same, cause of action as a discontinued action for which costs have not been paid. For the same reason, outstanding costs from a discontinued action should be a significant factor to consider in determining whether the action should be reinstated.
In the circumstances of this case, the proceedings should not be reinstated with Mr Duckworth as plaintiff until the payment of his costs liability arising from the discontinued action.
The application for costs of the discontinued proceedings
The appropriate exercise of the costs discretion
In O'Neill v Mann [2000] FCA 1680 [13], Finn J observed in relation to the Federal Court Rules that 'there is an underlying policy in the Rules that the discontinuing party should be liable for the other party's costs unless the Court orders otherwise'. Although this is not a 'usual rule', because the reasons for discontinuance can be so various, it has been described as the 'ordinary costs consequence of the plaintiff's decision to discontinue': Metsikas v Quirk [2010] NSWSC 756 [15] (Brereton J).
The appropriate costs orders might depart more readily from the ordinary approach where the discontinuance is not due to a conscious decision by the plaintiff but due to the plaintiff's supervening bankruptcy. However, two decisions on s 60(2) have treated the costs consequences as matters which would usually follow the event of discontinuance.
In Cole v Challenge Bank Ltd [2002] FCAFC 200 [17], in the Full Court of the Federal Court, Gray J, with whom Nicholson and Emmett JJ agreed, said that he was not aware of any authority on the effect of s 60 of the Bankruptcy Act on the matter of costs when there is an election to discontinue a proceeding. His Honour held that the court should follow the normal practice and costs of both the motion and the appeal should follow the event. Although the decision in Cole was subsequently doubted by Young JA on the issue of whether the trustee in bankruptcy had discontinued the proceedings, his Honour did not cast any doubt on the approach to costs: see Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270 [27] (Young JA).
The same conclusion in relation to costs after discontinuance by a trustee in bankruptcy was reached by Gzell J in Voskuilen v Morisset Mega Markets [2005] NSWSC 34.
There is an additional reason, in this case, why I consider that the appropriate award of costs is for Mr Duckworth to pay the costs of the Water Corporation for the discontinued proceedings. This is because after the sequestration order was made, and while Mr Duckworth was legally represented, his representatives had consciously chosen to maintain the action and had rebuffed concerns raised by the solicitor for the Water Corporation about the effect of Mr Duckworth's bankruptcy.
On 30 September 2011, the solicitor for Mr Duckworth wrote to the Water Corporation advising that a sequestration order had been made against Mr Duckworth. The solicitor for Mr Duckworth said that he was 'of the view that this will not affect the ... proceedings which are already on foot and commenced by Neil James Duckworth as Trustee of the Ocean Farm Trust'. The solicitor for Mr Duckworth continued to act until 12 December 2011: see pars 7.1 and 7.6 and annexure CLS 3 to the affidavit of Ms Catherine Sadleir sworn on 3 April 2012.
On 11 October 2011, a solicitor for the Water Corporation had a telephone conversation with the solicitor for Mr Duckworth. In that conversation, the substance of which was recorded in a file note, the solicitor for the Water Corporation raised with Mr Duckworth's solicitor the question of whether any consequences flow from the sequestration order. In the file note, the solicitor for the Water Corporation records that Mr Duckworth's solicitor
became quite uptight and suggested that if a big corporation like our client was going to try to use the bankruptcy as a tactic to avoid the hearing of the real issues ... then he would fight all the way to have the matter determined on the merits.
The solicitor for the Water Corporation congenially explained that his concern was whether there would be any issue which could arise with the trustee in bankruptcy claiming that he was the appropriate plaintiff. The solicitor for Mr Duckworth replied that he had found authority saying that this was not an issue and that he 'couldn't understand why that issue keeps being raised': see annexure CLS 4 to the affidavit of Ms Catherine Sadleir sworn on 3 April 2012.
Subsequent to these exchanges, the Water Corporation embarked on substantial preparation for the trial, including preparation of witness statements, trial bundles, statement of agreed facts and issues, outlines of opening submissions, issuing of subpoenas, and payment of costs for witnesses' travel.
For these reasons, I consider that Mr Duckworth should pay the Water Corporation's costs of the discontinued action.
The costs order is not a debt provable in Mr Duckworth's bankruptcy
In Duckworth (No 1) [44], I explained that costs considerations were one reason which supported the approach in Re Lofthouse that a claim by a bankrupt trustee was stayed upon the sequestration order being made. Those considerations were that a costs order against a bankrupt would be 'effectively unenforceable'.
Where the costs order in any proceedings is made prior to the bankruptcy then that costs order may be a debt which must be proved in the bankruptcy. Prospects of recovery may depend on the extent of available assets. In cases where the costs order is made subsequent to the sequestration order, the decision of the majority of the High Court of Australia in Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 is that there is no scope in the Bankruptcy Act to include that costs liability within provable debts. It remains a debt personally owed by the undischarged bankrupt. That is the situation here.
Mr Duckworth's alleged position as trustee does not affect the costs order
In my reasons in Duckworth (No 1) [45], I explained that an order for costs against a trustee is made against the trustee personally. The order 'imposes a personal obligation on the trustee': Adsett v Berlouis (1992) 37 FCR 201, 210 (the Court); Octavo Investments Pty Ltd v Knight (367) (Stephen, Mason, Aickin & Wilson JJ).
The question whether Mr Duckworth might recover any payment of costs from the trust estate is not an issue currently before me. That question may depend upon resolution of the issue, which is contested, of whether Mr Duckworth properly brought the proceedings as trustee, and also upon issues concerning whether Mr Duckworth could show that the litigation was reasonably instituted, and the expenses were reasonably incurred: see s 71 Trustees Act 1962 (WA).
The costs of these applications
The final issue concerns the costs of the application by Mr Duckworth to reinstate the proceedings and the application by the Water Corporation for costs of the action. The Water Corporation has been successful in relation to both applications. It is entitled to an order for costs of the applications against Mr Duckworth which include the consideration by the Water Corporation of the associated question of whether leave was required to discontinue the proceedings.
The Water Corporation also seeks orders for indemnity costs in relation to these applications, alternatively special costs orders uplifting the relevant scale for taxation of the costs of these applications.
Indemnity costs
As a general rule a court will be more reluctant to make an order for indemnity costs against a self-represented litigant than against one who is represented: Macedon Ranges Shire Council v Thompson [2009] VSCA 209 [17] (Redlich JA & Beach AJA); C Kendall and J Curthoys Civil Procedure in Western Australia [66.1.16AA].
In Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 [13] Hodgson CJ in Eq observed:
I accept that a court does have to make allowances for the position of litigants in person, and to try to ensure that such a litigant does not lose out because of lack of expertise; although there is a limit to what the Court can do in that regard, while still remaining an impartial determinant of a dispute. The Court may in those circumstances refrain from making orders against litigants in person for conduct that might be considered as justifying orders for costs against represented litigants. By the same token, litigants in person can cause great hardship and expense to other parties, through making allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made, and through making proceedings much longer and much more expensive than they otherwise would be, by not focusing accurately on the real issues in the case. Conduct of that nature by legally represented parties would often lead to orders for indemnity costs. Litigants in person may escape the consequence of indemnity costs, but I do not think that the circumstance that a party is a litigant in person is a ground for displacing the ordinary result that costs follow the event.
Mr Duckworth's position in relation to his application to reinstate the proceedings has shifted several times, putting the Water Corporation to further expense each time. Nevertheless, given his unrepresented status, were it not for Mr Duckworth's 5 April 2012 affidavit, including the Removal Deed, there would be no prospect of an order for indemnity costs in relation to Mr Duckworth's application.
I have carefully considered whether the circumstances of Mr Duckworth's disclosure of the Removal Deed, and his conduct in relation to these applications, is sufficient to justify an award of indemnity costs. On balance, I do not consider that such an order is appropriate in light of my conclusion above at [26].
Special costs orders
The Water Corporation sought special costs orders in relation to the applications under s 280(2)(c) of the Legal Profession Act 2008 (WA). The special costs orders were sought in relation to the costs of these applications, as well as the Water Corporation's related application for leave to discontinue the action, although that related application was ultimately unnecessary because orders discontinuing the action were made upon the clear election by the trustee in bankruptcy.
The Water Corporation says that item 10(a) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination (the Scale) is 'inadequate because of the unusual difficulty, complexity or importance of the matter'. The adjective 'unusual' qualifies only the word 'difficulty': 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); SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2) [102] ‑ [106] (Roberts‑Smith J).
Item 10(a) provides for a maximum allowable sum of $10,230 for proceedings in chambers. The solicitors for the Water Corporation say that the total sum which has been billed to the Water Corporation is $15,631.54 although that sum does not include the cost of appearance in relation to these applications.
If these proceedings were treated as two applications then there would be no need to uplift the Scale. However, although both applications raised matters of some complexity, they were interrelated applications which were heard together in chambers. They fall within the single description of 'proceedings in chambers'.
Although no breakdown of the bill to the Water Corporation was provided, it is not necessary for a detailed bill of costs to be provided for an application to uplift the Scale. 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 relevant legal costs determination does not always require evidence of the costs actually incurred: Frigger v Lean [2012] WASCA 66 [81] (Allanson J; Newnes & Murphy JJA agreeing). The questions arising under s 280 are to be addressed as matters of impression rather than detailed evaluation: EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) [7] (Martin CJ).
In Heartlink Ltd v Jones [19], Martin CJ explained that the reference to 'importance' in the equivalent provision to s 280(2) of the Legal Profession Act includes consideration of whether the work done was appropriate to the significance of the issues that arose in the litigation. The significance of issues can be to the parties themselves or to other prospective parties, or to the public or to the community generally.
The issues involved in the application for Mr Duckworth to pay the costs of the action as well as those in opposing Mr Duckworth's application to re‑open the orders made were of importance. The bombshell affidavit from Mr Duckworth dated 5 April 2012, with the previously undisclosed Removal Deed, was a matter which required particular investigation and consideration of the legal consequences which were of some complexity.
In relation to the question of costs, the issues were also of complexity. They involved questions concerning the effect on an order for costs of Mr Duckworth's alleged position as a trustee (which is disputed by the Water Corporation), the award of costs after a discontinuance under s 60(2) of the Bankruptcy Act, and the effect upon a costs award of Mr Duckworth's bankruptcy after the commencement of the action.
Because of the complexity of some of the issues involved as well as the important factual matters in relation to the Removal Deed raised by Mr Duckworth, I am satisfied that 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 $10,230.
For this reason, item 10(a) of the Scale should be uplifted. This does not mean that the award will be more than the amount in item 10(a); it is merely that the taxing officer is not constrained by that item.
Conclusion
Mr Duckworth's application to reinstate the proceedings is refused.
Mr Duckworth must pay the Water Corporation's costs of the discontinued action, to be taxed if not agreed.
Mr Duckworth must pay the Water Corporation's costs of these applications. Those costs should be taxed, if not agreed, without regard to the limit in item 10(a) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination.
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