Forrest-Moore v Belswan (Mandurah) Pty Ltd - [2011] WADC 65

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: FORREST-MOORE -v- BELSWAN (MANDURAH) PTY LTD [2011] WADC 65

CORAM: REGISTRAR KINGSLEY

HEARD: 24 FEBRUARY 2011

DELIVERED : 21 APRIL 2011

FILE NO/S: CIV 2041 of 2006

BETWEEN: MARLENE GLORIA FORREST-MOORE
Plaintiff
AND
BELSWAN (MANDURAH) PTY LTD
First Defendant
AEGIS AGED CARE GROUP
Second Defendant

Catchwords:

Practice - Application for special costs order - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr G MacIntyre SC
First Defendant             :     Ms F Dempster
Second Defendant         :     Ms F Dempster

Solicitors:

Plaintiff:     O'Halloran Legal
First Defendant             :     Jackson McDonald
Second Defendant         :     Jackson McDonald

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

Armitage v Tenix Defence Pty Ltd [2008] WADC 150
Caboolture Park Shopping Centre Pty Ltd (in liq) & White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1993] FCA 471
Feaver v Smith [2008] WADC 72
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254
Owstone Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558

REGISTRAR KINGSLEY: The plaintiff commenced her action by an endorsed writ filed 24 October 2006. Notwithstanding the memorandum of appearance was filed on 30 October 2006 by the second defendant, the statement of claim was not filed and served until 14 September 2007. The first defendant entered an appearance in January 2008 and filed a defence on 15 January 2008.
The matter proceeded at a leisurely place to a pre-trial conference on 4 March 2009. There have been two pre-trial conferences, five listing conferences and a special appointment pre-trial conference. On 20 August 2010, the action was settled by a consent to judgment being entered against the defendants with costs to be taxed. In accordance with the usual practice of this court, the consent to judgment was signed and sealed by a Registrar on 20 August 2010 and extracted on that day.

The application

On 17 January 2011, the plaintiff filed an application seeking orders that the prescribed fee for work done in getting up the case for trial at item 16 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004, 2006, 2008, and 2010 not apply and that the rates set out in item 32 of the Scale of Costs in the various determinations, or item 33 of the Scale of Costs in the 2010 Determination, be applicable.
Whilst not stated as such the plaintiff's application seeks a special costs order. Section 215(1) Legal Practice Act 2003 (WA) (the applicable Act as the client's instructions were taken prior to he commencement of the Legal Practitioners Act 2008 (WA)) provides that the taxation of bills of law practices is regulated by an applicable costs determination. Section 215(2) goes on to provide that a court or judicial officer may fix higher limits of costs or remove limits of costs fixed in a determination provided the amount of costs is inadequate because of usual difficulty, complexity or importance of the matter.

Background

In December 2005 the plaintiff sustained an injury in the course of her employment. The plaintiff's injuries were sustained soon after the enactment of the Workers Compensation Reform Act 2004 (WA) which relevantly provided that a worker who suffered injury had to satisfy a prescribed threshold before being entitled to common law damages.
In September 2006, Dr Kennedy assessed the plaintiff's degree of permanent impairment at 16%. This assessment meant the plaintiff was able to elect to seek common law damages, but in doing so had to give up her statutory entitlements to wages and medical expenses.
Whilst the plaintiff commenced her action in October 2006, it was not until January 2008 that the solicitors for the first and second defendant suggested Dr Kennedy's assessment was erroneous. As a consequence the first and second defendant contended the plaintiff had no legal basis to continue with the current District Court proceedings. It would appear that in November 2008 Dr Kennedy conceded the error alleged by the defendants, and stated that the plaintiff's assessment of permanent impairment would be less than 15% whole person impairment.
Subsequently, the plaintiff's solicitors and defendants' solicitors were at odds as to whether, at trial, a judge had the power to assess the degree of whole person impairment de novo. The defendants noted the case of Armitage v Tenix Defence Pty Ltd [2008] WADC 150 where his Honour Judge Martino determined that the District Court was not bound by an assessment recorded by the Director under s 93L(2) Workers Compensation and Injury Management Act 1981 (WA) (the Act). The defendants contended that his Honour's decision was erroneous and suggested they would be seeking to test the decision.
Having regard to the potential effect of the error – the contention being that the plaintiff could not pursue her common law claim, and the plaintiff could not obtain, by default, statutory compensation – the plaintiff instructed her solicitor to seek the advice of counsel. Senior counsel was briefed: thereafter there were discussions between the parties, both informally and at a pre‑trial conference, as to the respective liabilities of the parties, both in negligence and in relation to the issue of whole person impairment. The plaintiff's solicitor was of the view that the matter was unusually complex.
The plaintiff's solicitor in an affidavit sworn 17 January 2011 deposes that once the error was pleaded by the defendant (some two years after the writ of summons was filed) it is not foreseeable what up to date medical reports would be required, and whether those reports would be enough to persuade a District Court judge to go behind a registered whole person impairment assessment. The solicitor deposes that he had never experienced a situation where the approved medical specialist got the whole person impairment calculation wrong such that a plaintiff went from being entitled to pursue a common law action to possibly being disentitled, both at common law and under the Act, and this made the action unusual if not unique.

The plaintiff's submission

The plaintiff's submissions are that the work done in relation to this matter spans four costs Determinations. The maximum allowance for getting up the case for trial has changed each time a Determination has been made, and therefore it is not possible to fairly conclude which maximum amount allowed for getting up in each of the Determinations ought apply to the Bill of Costs. The plaintiff submits that the only fair approach to the taxation of the costs associated with the getting up is to tax the getting up on an item by item basis, applying the hourly rates applicable to the work done according to the Scale applicable at the time when the work was done. The plaintiff's counsel submitted that the taxing officer would be left in a quandary as to which maximum to apply over the number of taxing scales. The order sought is designed to give guidance to the taxing officer as to how to tax the bill.

Discussion

Owstone Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 is authority for the proposition that the common law recognises at least four possible basis for the exercise of power to deal with entered orders:
i.ambiguity;
ii.where the order does not reflect what the court decided;
iii.where something is to be added not dealt with by the court, (probably limited to ancillary or consequential matters);
iv.supplemental orders, the need for which arises from circumstances occurring after the order was made. However, any power to vary an order after it has been made is necessarily an encroachment upon the principle as to finality of litigation.
Plaintiff's counsel cites Caboolture Park Shopping Centre Pty Ltd (in liq) & White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1993] FCA 471 as authority for the proposition that the court has power to make specific orders for costs after judgment has been entered. In Caboolture the notice of motion sought an order that Flower & Hart, a firm of solicitors, pay all the costs of White in the proceedings other than costs solely referable to White prosecuting its cross-claim. Subsequent to judgment being entered, it appears that facts came to light for the first time to the knowledge of White. The information was that Flower & Hart commenced and continued litigation on behalf of Caboolture in the knowledge it had no worthwhile prospect of success, amongst other things. The submission for Flower & Hart was that once judgment had been entered and costs are ordered to be paid, there was thereafter no jurisdiction for the court to reopen the case. The Full Court of the Federal Court grappled with the question of whether there was jurisdiction to order costs against a solicitor and whether the jurisdiction was spent once final orders were entered. The Full Court of the Federal Court held that there was power to order costs against a solicitor and having arrived at that conclusion then determined that having regard to the circumstances, the court had power to make supplemental orders.
The defendants rely on Feaver v Smith [2008] WADC 72 as authority for the proposition that the perfected order means the plaintiff can not now apply for a special costs order, as it would require the court to reopen the judgment made 20 August 2010. The judgment made 20 August 2010 included an order the defendant pay the plaintiff's costs and disbursement of the action to be taxed. In Feaver's case the action was settled at an informal conference and an order for compromise made. One of the orders obtained was that the defendants should pay the plaintiff's costs to be taxed. Whilst not her starting point, Judge Schoombee determined that the District Court, being a creature of statute, does not have inherent jurisdiction and therefore the District Court did not have inherent jurisdiction to vary an existing costs order which was already being extracted.
Her Honour then went on to consider whether a special costs order is a variation of a costs order or a supplementary order. Her Honour was of the opinion that the special costs orders sought in Feaver's case cannot be supplementary to the existing costs order between the parties. The special costs order sought in Feaver raised the scale of limit in relation to getting up the case for trial in a number respects and sought an additional allowance in respect of the advice and assistance of counsel. Her Honour concluded that a special costs order would require a variation of the existing extracted costs order and that could only be done by a court with inherent jurisdiction.
I am of the opinion I am bound by Judge Schoombee's decision in Feaver. It is directly on point. That being the case I dismiss the plaintiff's application.
As the matter was fully argued and for the sake of completeness, I am of the opinion that the plaintiff's case was attendant with unusual difficulty, complexity or importance. Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 is authority for the proposition that the court hearing an application for a special costs order must form an opinion that the amount of costs allowable under a legal costs determination is inadequate, and that the inadequacy arises because of unusual difficulty, complexity or importance of the matter.
It is a two stage process. The requirement of inadequacy will be demonstrated if the applicant shows 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 cost determinations.
In his affidavit sworn 17 January 2001 O'Halloran deposes that the total amount of getting up work done on the file amounts to approximately $60,864.10 including GST. The limits under the relevant determination are:
•2004 - $34,100;
•2006 - $36,300;
•2008 - $39,650;
•2010 - $51,480.
In my opinion there does appear to be a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount that is greater than the limits that would be imposed by the costs determinations.
The second question is whether that inadequacy arises because of the unusual difficulty, complexity or importance of the matter. The complexity, or difficulty is said to arise because the proceedings had commenced on the basis of Dr Kennedy's assessment of the plaintiff's degree of whole person impairment which, as it later transpired, contained a mathematical error and should not have been accepted by the Dispute Resolution Directorate. The consequence of the error is that the plaintiff should not, on the basis of a correct assessment, have been entitled to elect to retain the right to seek common law damages and commence the action.
At the time the proceedings were commenced it was a moot point as to whether a District Court judge had the power to satisfy themselves that the plaintiff's whole person impairment was at least 15%. It was not until the decision in Armitage that the question was resolved in favour of a judge having that power. It would seem to me that, whilst the action in its ordinary course was a claim for personal injuries and, in that regard, was not outside the usual run of cases determined in this court, the error made in relation to the whole of person impairment added a layer of complexity.
The work done in relation to this question was also of importance because it was of considerable significance to the plaintiff, and ultimately to other injured workers, as to whether a judge had the power to question an assessment of whole body impairment. Had I not been bound by Feaver's case I would have been satisfied that the issue was of such difficulty, complexity and importance to warrant an order being made as sought by the plaintiff.

Conclusion

Being bound by her Honour's decision in Feaver's case I dismiss the plaintiff's application.