Halikos Hospitality Pty Ltd and Ors v INPEX Operations Australia Pty Ltd (No 2) - [2022] NTSC 9

CITATION:Halikos Hospitality Pty Ltd & Ors v INPEX Operations Australia Pty Ltd (No 2) [2022] NTSC 9
PARTIES:HALIKOS HOSPITALITY PTY LTD
(ACN 143 433 998)
and
HALIKOS PTY LTD
(ACN 092 987 463)
and
HALIKOS INVESTMENTS PTY LTD
(ACN 009 639 221)
and
HALIKOS NT PTY LTD
(ACN 159 722 620)
v
INPEX OPERATIONS AUSTRALIA PTY LTD (ACN 150 217 262)

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:9 of 2016 (21611352)
DELIVERED:  31 January 2022
HEARING DATE:  On the papers
JUDGMENT OF:  Kelly J

REPRESENTATION:
Counsel:
Plaintiffs:B Roberts QC with A Baillie
Defendant:J Roper SC with M Dean
Solicitors:
Plaintiffs:Finlaysons
Defendant:Maher Raumteen Solicitors
Judgment category classification:    C
Judgment ID Number:  Kel2203
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Halikos Hospitality Pty Ltd & Ors v INPEX Operations Australia Pty Ltd
(No 2) [2022] NTSC 9

No. 9 of 2016 (21611352)

BETWEEN:

HALIKOS HOSPITALITY PTY LTD
(ACN 143 433 998)

First Plaintiff

HALIKOS PTY LTD
(ACN 092 987 463)
Second Plaintiff

HALIKOS INVESTMENTS PTY LTD (ACN 009 639 221)
Third Plaintiff

HALIKOS NT PTY LTD
(ACN 159 722 620)
Fourth Plaintiff

AND:

INPEX OPERATIONS AUSTRALIA PTY LTD
(ACN 150 217 262)

Defendant

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 31 January 2022)

On 13 February 2019 I gave judgment for the defendant in this proceeding. The plaintiffs appealed and the Court of Appeal dismissed the appeal on 20 March 2020.
By summons dated 15 October 2021, the defendant seeks the following costs orders:
1.    The plaintiffs pay the defendant’s costs of and incidental to the proceeding, to be taxed on the standard basis.
2.    Costs for (sic) and incidental to the following interlocutory applications be costs in the proceeding:
(a)the defendant’s summons filed on 27 January 2017 and 4 April 2017 (Privilege Application);
(b)the second Halfpenny summons dated 30 March 2017;
(c)the Territory Revenue Office summons dated 12 April 2017; and
(d)plaintiffs’ summons for leave to amend the Statement of Claim and leave to file the second affidavit of John Halikos and third affidavit of Shane Dignan dated 12 April 2017 (Amendment Application).
3.    The hearing on 13 April 2017 of the Privilege Application be certified as fit for two Counsel.
4.    The hearing on 21 April 2017 of the Amendment Application be certified as fit for Counsel.
5.    The trial, including interlocutory applications heard between 2 and 25 May 2017, and closing submissions on 3 August 2017 to be certified as fit for two Counsel.
6. For charges for the work performed by lawyers practising in Western Australia, pursuant to rule 63.42 of the Supreme Court Rules 1987 (NT) or further and alternatively rule 63.03 of the Supreme Court Rules 1987 (NT) or further and alternatively section 20 of the Supreme Court Act 1979 (NT) and section 280(2)(c) of the Legal Profession Act 2008 (WA), the defendant’s costs are to be taxed without regard to the following limits imposed by Table A and Table B of the relevant Western Australian Legal Profession (Supreme Court) (Contentious Business) Determinations, including as to time limits, maximum number of hours, experience of fee earners and total amount per item for items:
(a)3 (Defence);
(b)6 (Particulars);
(c)7 (Discovery);
(d)8 (Inspection);
(e)10 (Chambers and Consent Orders);
(f)11 (Motions – attendance at hearings);
(g)16 (Entry for trial/Entry for hearings);
(h)17 (Preparation of Case for trial);
(i)20 (Trial);
(j)24/25 (Mediation, conferrals, or other conferences);
(k)26 (Orders); and
(l)30/32 (Taxing including drawing of bill of costs).
…
7.   The costs of compliance with the requirements of Part 2 of Practice Direction 6 of 2009 (Pre-action Conduct) be recoverable.
The plaintiffs consent to the orders sought in paragraphs 1, 2, 4 and 5 of the summons.
The plaintiffs oppose the order sought in paragraph 3, contending that it was not reasonably necessary for the defendant to be represented by senior counsel at the hearing on 13 April 2017. The hearing on that date concerned an application in relation to privilege; an application by the Territory Revenue Office to set aside a subpoena issued by the defendant; the defendant’s application for the use of an interpreter at the trial; and the plaintiffs’ application for leave to amend the statement of claim. The plaintiffs’ solicitor, Mr Rostron deposed:
These are ordinarily matters that would be dealt with by a solicitor and junior counsel. In my experience, two Counsel would not attend Court on interlocutory matters of this type.
Consistent with this view, at the hearing on 13 April 2017, the plaintiffs were represented by me with junior counsel, Mr Robert Williams.
Evidently, those advising the defendant took a different view of the matter. The defendant was represented by Ms Patricia Cahill SC and junior counsel Mr Nikolai Christrup, instructed by the defendant’s solicitor. I do not think it can be said that the defendant’s decision that the matters dealt with on that date warranted the attendance of senior counsel was unreasonable. There were a number of matters to be dealt with and they were not all straight forward. The question of whether the Japanese witnesses for the defendant should have the assistance of an interpreter at the trial was a matter of some importance to those witnesses and to the interest of the defendant. Likewise, questions involved in applications to amend pleadings can be of crucial importance to the course of a proceeding. The hearing on 13 April 2017 will be certified as proper for the attendance of two counsel.
Some of the defendant’s lawyers practice principally in Western Australia. Western Australia has a costs regime under which there are specific Determinations which limit the amount that can be claimed on taxation. However, there is a discretion to vary the application of any such Determination and allow costs in excess of those limits where 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.
Rule 63.42(1) of the Supreme Court Rules 1987 (NT) provides:
(1) Where a bill includes a charge for work done by a lawyer practising in a place out of the Territory:
(a)the charge shall be shown as a disbursement; and
(b)so far as practicable, the charge shall, if allowed, be allowed in an amount appropriate to the place where the lawyer practices.
The defendant seeks orders that specific work performed in relation to the conduct of this proceeding be taxed without regard to specified limits under those Western Australian Determinations. The defendant contends that the limits on the costs that can be recovered on taxation imposed by the relevant Western Australian Determinations ought not to be applied as such costs are inadequate given the unusual difficulty, complexity or importance of the matter.
The plaintiffs contend that Rule 63.42 only applies to work done by Western Australian lawyers in Western Australia and does not, for example, include appearances in the Northern Territory by Western Australian lawyers. The contention of the plaintiffs is that a lawyer appearing in a court in the Northern Territory pursuant to a statutory right to do so is, ipso facto not “practising in a place out of the Territory”; rather, for the duration of that particular work, the lawyer is “practising in the Northern Territory”.
While I agree in general terms with this contention by the plaintiffs, I do not think it is appropriate for me, as the trial judge, to attempt to categorise each piece of work claimed by the defendant as work done by a lawyer “practising in a place out of the Territory” and so subject to Rule 63.42, or work to which the other costs provisions of the Supreme Court Rules apply.
The defendant has submitted that if this matter were to proceed to taxation in Western Australia, it is likely that the WA Supreme Court would order a departure or departures from the limits to cost recovery under the Western Australian Determinations. That may well be the case, but that is a matter for the Associate Judge as Taxing Master on taxation of the defendant’s costs.
(a)The Taxing Master is obliged to apply Rule 63.42(1) of the Supreme Court Rules to that portion of the defendant’s costs which the Taxing Master determines to have been charged “for work done by a lawyer practising interstate”. (Work which the Taxing Master determines does not fall within that category is subject to the ordinary Northern Territory costs rules.)
(b)In this case, in relation to work which the Taxing Master determines was “done by a lawyer practising interstate”, that will require the Taxing Master to assess the costs of the defendant’s Western Australian lawyers at a rate that would be allowable on a party/party assessment of costs in Western Australia.
(c)That, in turn, will require the Taxing Master to consider the evidence and submissions of both parties on the relevant topic. It is not a matter for me as the trial judge to usurp the function of the Taxing Master.
The defendant also seeks an order that the costs of compliance with the requirements of Part 2 of Practice Direction 6 of 2009 (“PD6”) relating to pre-action conduct be recoverable as costs in the proceeding. This is a matter for the Taxing Master in light of paragraph 30 of PD6 which provides that for the purposes of the Northern Territory Supreme Court Rules, the costs of a proceeding include the costs of complying with PD6.
In so far as some or all of those costs were incurred in Western Australia, the discussion above in relation to Rule 63.42(1) applies.
ORDERS:
1.The plaintiffs are to pay the defendant’s costs of and incidental to the proceeding to be taxed on the standard basis.
2.Costs of and incidental to the following applications be costs in the proceeding:
(a)   the defendant’s summonses filed on 27 January 2017 and 4 April 2017 (Privilege Application);
(b)   the second Halfpenny summons dated 30 March 2017;
(c)   the Territory Revenue Office summons dated 12 April 2017; and
(d)   the plaintiffs’ summons for leave to amend the statement of claim and leave to file the second affidavit of John Halikos and third affidavit of Shane Dignan dated 12 April 2017 (Amendment Application).
3.The hearing on 13 April 2017 of the Privilege Application is certified as proper for the attendance of two counsel.
4.The hearing on 21 April 2017 of the Amendment Application is certified as proper for the attendance of counsel.
5.The trial, including the interlocutory applications heard between 2 and 25 May 2017, and closing submissions on 3 August 2017 is also certified as proper for the attendance of two counsel.
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