Harvey Industries Group Pty Ltd v Jones [No 2]
[2017] WADC 160
•21 DECEMBER 2017
HARVEY INDUSTRIES GROUP PTY LTD -v- JONES [No 2] [2017] WADC 160
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 160 | |
| Case No: | CIV:3056/2014 | 24 NOVEMBER 2017 | |
| Coram: | DERRICK DCJ | 21/12/17 | |
| PERTH | |||
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Application for indemnity costs allowed in part Application for costs of appeal allowed in part | ||
| PDF Version |
| Parties: | HARVEY INDUSTRIES GROUP PTY LTD TREVOR WAYNE JONES RHONDA MEGAN GADDES MICHAEL BRADLEY WOOD MARK CHARLES LINTOTT JAMES MULDER as Executor for the Estate of VIVIENNE LEE MULDER DARRYL WERTH ANTONIO MICHAEL PANETTA PAUL YERBURY |
Catchwords: | Costs Appeal from a decision of a deputy registrar Application for costs of summary judgment application and strike out application on an indemnity basis Application for costs of appeal |
Legislation: | District Court of Western Australia Act 1969 (WA) District Court Rules 2005 (WA) Legal Profession Act 2008 (WA) Rules of the Supreme Court 1971 (WA) Supreme Court Act 1935 (WA) |
Case References: | Amaca Pty Ltd v Moss [2007] WASCA 162 (S) Caratti v Caratti [2012] WASC 357 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Crawley Investments Pty Ltd v Elman [2014] WASC 233 (S) Dodds Family Investments Pty Limited (formerly Solar Tint Pty Limited) and SWD Group Pty Limited (Trading as Solar Tint) v Lane Industries Pty Limited; Edward's Auto Accessories Pty Limited and George Edwards [1993] FCA 259; (1993) 26 IPR 261 Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202; (1988) 81 ALR 397 Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68 Gable v Steel Cap Recruitment Pty Ltd [No 2] [2017] WADC 10 Harvey Industries Group Pty Ltd v Jones [2017] WADC 74 Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) [1993] FCA 70; (1993) 46 IR 301 Johnson v Denwest Nominees Pty Ltd (t/as Cunderdin Roadhouse) [2017] WASCA 200 Krix v Citrus Board of South Australia [2003] SASC 387; (2003) 87 SASR 229 Quancorp Pty Ltd v MacDonald [1999] WASCA 101 Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) Unioil International Pty Ltd v Deloitte Touche Tohmatsu [No 2] (1997) 18 WAR 190 Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S) |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
TREVOR WAYNE JONES
Respondent
- Appellant
AND
RHONDA MEGAN GADDES
Respondent
- Appellant
AND
MICHAEL BRADLEY WOOD
Respondent
- Appellant
AND
MARK CHARLES LINTOTT
Respondent
- Appellant
AND
JAMES MULDER as Executor for the Estate of VIVIENNE LEE MULDER
Respondent
- Appellant
AND
DARRYL WERTH
Respondent
- Appellant
AND
ANTONIO MICHAEL PANETTA
Respondent
- Appellant
AND
PAUL YERBURY
Respondent
Catchwords:
Costs - Appeal from a decision of a deputy registrar - Application for costs of summary judgment application and strike out application on an indemnity basis - Application for costs of appeal
Legislation:
District Court of Western Australia Act 1969 (WA)
District Court Rules 2005 (WA)
Legal Profession Act 2008 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Result:
Application for indemnity costs allowed in part
Application for costs of appeal allowed in part
Representation:
CIV 3056 of 2014
Counsel:
Appellant : Ms A L Casellas
Respondent : Mr R Singh
Solicitors:
Appellant : Clayton Utz
Respondent : Chapmans
CIV 3057 of 2014
Counsel:
Appellant : Ms A L Casellas
Respondent : Mr R Singh
Solicitors:
Appellant : Clayton Utz
Respondent : Chapmans
CIV 3058 of 2014
Counsel:
Appellant : Ms A L Casellas
Respondent : Mr R Singh
Solicitors:
Appellant : Clayton Utz
Respondent : Chapmans
CIV 3059 of 2014
Counsel:
Appellant : Ms A L Casellas
Respondent : Mr R Singh
Solicitors:
Appellant : Clayton Utz
Respondent : Chapmans
CIV 3060 of 2014
Counsel:
Appellant : Ms A L Casellas
Respondent : Mr R Singh
Solicitors:
Appellant : Clayton Utz
Respondent : Chapmans
CIV 3061 of 2014
Counsel:
Appellant : Ms A L Casellas
Respondent : Mr R Singh
Solicitors:
Appellant : Clayton Utz
Respondent : Chapmans
CIV 3063 of 2014
Counsel:
Appellant : Ms A L Casellas
Respondent : Mr R Singh
Solicitors:
Appellant : Clayton Utz
Respondent : Chapmans
CIV 41 of 2015
Counsel:
Appellant : Ms A L Casellas
Respondent : Mr R Singh
Solicitors:
Appellant : Clayton Utz
Respondent : Chapmans
Case(s) referred to in judgment(s):
Amaca Pty Ltd v Moss [2007] WASCA 162 (S)
Caratti v Caratti [2012] WASC 357
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Crawley Investments Pty Ltd v Elman [2014] WASC 233 (S)
Dodds Family Investments Pty Limited (formerly Solar Tint Pty Limited) and SWD Group Pty Limited (Trading as Solar Tint) v Lane Industries Pty Limited; Edward's Auto Accessories Pty Limited and George Edwards [1993] FCA 259; (1993) 26 IPR 261
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202; (1988) 81 ALR 397
Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68
Gable v Steel Cap Recruitment Pty Ltd [No 2] [2017] WADC 10
Harvey Industries Group Pty Ltd v Jones [2017] WADC 74
Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) [1993] FCA 70; (1993) 46 IR 301
Johnson v Denwest Nominees Pty Ltd (t/as Cunderdin Roadhouse) [2017] WASCA 200
Krix v Citrus Board of South Australia [2003] SASC 387; (2003) 87 SASR 229
Quancorp Pty Ltd v MacDonald [1999] WASCA 101
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S)
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Unioil International Pty Ltd v Deloitte Touche Tohmatsu [No 2] (1997) 18 WAR 190
Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S)
- DERRICK DCJ:
Introduction
1 On 1 May 2017 I heard the defendant's appeals in eight separate actions (the actions) brought by eight separate plaintiffs (the plaintiffs) against the decision of Deputy Registrar Harman adjourning the defendant's applications made by way of chamber summonses dated 22 August 2016 in the actions for summary judgment pursuant to O 16 r 1(1) of the Rules of the Supreme Court 1971 (WA) (RSC), alternatively for orders striking out the plaintiffs' statements of claim in their entirety pursuant to O 20 r 19(1)(a) and r 19(1)(b) of the RSC (the dismissal applications). The questions raised for my determination in each of the appeals were for all intents and purposes identical.
2 On 9 June 2017 I delivered my judgment: Harvey Industries Group Pty Ltd v Jones [2017] WADC 74 (the judgment). I allowed the appeals in part and made orders striking out all but one of the material allegations made by the plaintiffs against the defendant. Specifically, I made orders striking out all but one of the plaintiffs' allegations that the defendant had wrongfully dismissed them from their employment in breach of various alleged terms of their contract of employment (the Contract). The basis for my decision was that the Contract did not contain the alleged terms. The alleged terms which I held did not form part of the Contract were as follows:
1. A term implied in law that the plaintiffs' employment could only be terminated by the defendant on reasonable notice (reasonable notice term);
2. A term implied in law that the defendant would not discriminate against the plaintiffs on the ground of joining a trade union and/or participating in trade union activity (non-discrimination term);
3. A term implied in fact as being necessary for the Contract's effective operation that the defendant would not, except in the case of a summary dismissal, terminate the plaintiffs' employment for reasons related to the plaintiffs' conduct or performance unless the plaintiffs were given an opportunity to defend themselves against any allegations in line with the principles of natural justice (natural justice term);
4. A term implied in law and/or by conduct that the defendant would utilise 'a last in, first out' practice when it chose to terminate employment on the ground of redundancy (last in, first out term); and
5. A term implied in law that the defendant would act in good faith and not unreasonably exercise its powers under the Contract (good faith term).
3 The effect of my decision is that the plaintiffs' cases are now restricted to one allegation, specifically that the defendant wrongfully dismissed them from their employment in breach of an express term of the Contract, namely that the defendant would not discriminate against them on the ground of joining a trade union and/or participating in trade union activity.
4 The defendant now applies for the following orders (the application):
1. The plaintiffs pay the defendant's costs of the appeals forthwith to be taxed if not agreed; and
2. The plaintiffs pay the costs of the defendant's chamber summonses dated 22 August 2016 (the chamber summonses), including the costs of preparing for and appearing at the hearing of the chamber summonses, forthwith on an indemnity basis, to be taxed if not agreed.
5 The defendant relies in support of the application on an affidavit affirmed by Ms Anna Louise Casellas on 18 April 2017 and an affidavit sworn by Mr Saul David Harben on 18 April 2017. Ms Casellas and Mr Harben are both legal practitioners and partners at the defendant's solicitors.
6 The plaintiffs oppose the application. However, they have not sought to file any affidavit material on the application. Rather, by letter to the court dated 4 September 2017 the plaintiffs' solicitors advised that the plaintiffs did not 'intend to file any affidavit material in relation to the question of costs, as the [plaintiffs say] that the determination of the issue of costs will be in accordance with the law'.
The application for the costs of the appeals
7 The usual costs order when an application for summary judgment fails is that costs be in the cause. However, in response to the defendant's application for the costs of the appeals, the plaintiffs submit that I should make an order requiring that the defendant pay their costs of the appeals. The plaintiffs contend that such an order is appropriate given that in allowing the appeals I did not uphold the summary judgment applications and did not strike out the statements of claim in their entirety. I note in this context that the plaintiffs did not give to the defendant prior notice of an intention to seek their costs of the appeals by including the submission in their written outline of submissions filed and served in advance of the hearing of the application in purported compliance with programming orders that I had made for the filing and service of written outlines of submissions by the parties. In their written outline of submissions the plaintiffs contended only that the appropriate order was for costs to be in the cause or, in the alternative, for there to be no order as to costs.
8 It is the case that I did not allow the appeals to the extent of granting summary judgment against the plaintiffs. I did not do so because, as I have pointed out, I did not strike out the plaintiffs' claims in their entirety. I left one of the plaintiffs' allegations standing.
9 Order 66 r 1(1) of the RSC expresses the general rule that the court will order that the successful party to any matter is entitled to their costs. Consistently with this general rule, the successful party to an appeal from a decision of a registrar to a judge of this court is generally awarded their costs: Gable v Steel Cap Recruitment Pty Ltd [No 2] [2017] WADC 10 [41].
10 Where there is a mixed outcome in proceedings an apportionment of costs is appropriate: District Court of Western Australia Act 1969 (WA) (DCA), s 64(1). The apportionment of costs is a matter of impression and broad evaluation, and mathematical precision is illusory: Dodds Family Investments Pty Limited (formerly Solar Tint Pty Limited) and SWD Group Pty Limited (Trading as Solar Tint) v Lane Industries Pty Limited; Edward's Auto Accessories Pty Limited and George Edwards [1993] FCA 259; (1993) 26 IPR 261; Amaca Pty Ltd v Moss [2007] WASCA 162 (S) [6].
11 In allowing the appeals I overturned the deputy registrar's decision adjourning the dismissal applications and struck out five of the plaintiffs' six allegations of breach of the Contract. In these circumstances it is my opinion that the defendant was substantially successful on the appeals. However, given that I did not allow the appeals to the extent of either granting summary judgment in favour of the defendant or striking out all six of the plaintiffs' allegations of breach of the Contract, it is my view that this is an appropriate case to make an order apportioning the costs. In my view, it is appropriate to order that the plaintiffs pay 80% of the defendant's costs of the appeals.
12 The court has a discretion to order that costs be paid forthwith notwithstanding that the proceedings have not been concluded: RSC O 66 r 10(1); DCA, s 64(3). Further, when costs are awarded in an interlocutory application the usual practice is to order that they be paid forthwith: Caratti v Caratti [2012] WASC 357 [28] - [29].
13 In the present case I do not see that there is any reason to depart from the usual practice in interlocutory applications. Accordingly, I will order that the costs be paid forthwith.
14 In summary, I will order that the plaintiffs are to pay 80% of the defendant's costs of the appeals forthwith to be taxed if not agreed.
The application for costs of the chamber summonses on an indemnity basis
Indemnity costs – legal principles
15 The usual costs order is one for party and party costs. Nonetheless, it has long been recognised that indemnity costs can be awarded if there is some special or unusual feature in the case to justify the court exercising its discretion to depart from the general practice: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202; (1988) 81 ALR 397 [21]; Unioil International Pty Ltd v Deloitte Touche Tohmatsu [No 2] (1997) 18 WAR 190, 191; Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10].
16 To obtain an indemnity costs order it is not the case that the successful party needs to show a collateral purpose or establish some species of fraud against the unsuccessful party: J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) [1993] FCA 70; (1993) 46 IR 301, 303; Swansdale v Whitcrest [10].
17 An award of indemnity costs may be made if it is established that the unsuccessful party persisted in what should on proper consideration have been seen to be a hopeless case: Fountain Selected Meats v International Produce Merchants [21]. A party will be seen to have pursued a hopeless case where it appears that an action was commenced or continued in circumstances where the party, properly advised, should have known that they had no chance of success: Fountain Selected Meats v International Produce Merchants [21]; Krix v Citrus Board of South Australia [2003] SASC 387; (2003) 87 SASR 229 [76]; Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [9].
18 A court must be alert to the possibility of categorising a case as 'hopeless' too readily. As Wheeler J said in Quancorp Pty Ltd v MacDonald [1999] WASCA 101 [7]:
There appear to me to be two competing principles. On the one hand, a party should not be discouraged, by the prospect of an unusual costs order, from persisting in an action where its success is not certain. Uncertainty is inherent in many areas of law, and the law changes with changing circumstances. It is inappropriate that a case be too readily characterised as 'hopeless' so as to justify an award of indemnity costs to the successful party. However, where a party has by its conduct unnecessarily increased the cost of litigation, it is appropriate that the party so acting should bear that increased cost. Persisting in a case which can only be characterised as 'hopeless' is an example of the type of conduct which may lead the court to a view that the party whose conduct gave rise to the costs should bear them in full ...
19 An indemnity costs order may be appropriate in situations which are shown to involve some element of improper, or at least unreasonable, conduct by a party or the party's legal advisors in relation to the case: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233; Flotilla Nominees v Western Australian Land Authority [9]; Swansdale v Whitcrest [10]; Frigger v Professional Services of Australia Pty Ltd [No 2][2016] WASCA 68 [81]; Johnson v Denwest Nominees Pty Ltd (t/as Cunderdin Roadhouse) [2017] WASCA 200 [112]. An indemnity costs order is an appropriate sanction marking the court's disapproval of improper or unreasonable conduct: Flotilla Nominees v Western Australian Land Authority [25].
20 An indemnity costs order may be made when discourteous and non-cooperative behaviour leads to the incurring of delay, inconvenience and needless costs: Unioil International v Deloitte Touche Tohmatsu (194).
21 The categories in which the discretion to order indemnity costs may be exercised are not closed: Colgate-Palmolive v Cussons (233); Unioil v Deloitte Touche Tohmatsu (191).
22 Unless a party or their legal advisors have engaged in improper or unreasonable conduct, an indemnity costs order will not be appropriate if the claimed costs would likely be recovered under the standard order for party and party costs, or under a properly crafted special costs order where components of cost scale items are allowed above the applicable scale ceiling: Swansdale v Whitcrest [10] - [16].
Basis for application
23 The defendant submits that the applied for indemnity costs order is justified for two main reasons, namely:
1. The actions were commenced and maintained in wilful disregard of established law; and
2. The plaintiffs and/or their solicitors engaged in discourteous and/or unreasonable conduct.
24 The first of the above stated reasons is in essence an assertion that the allegations contained in the statements of claim which I have struck out were hopeless, that is, were made and continued with in circumstances where the plaintiffs, properly advised, should have known that there was no chance that they would be successfully made out.
25 The defendant further submits that an award of party and party costs will not be appropriate due to the volume of extra work that was required as a result of the conduct of the plaintiffs and/or their solicitors, and that a special costs order is not appropriate because the dismissal applications did not meet the threshold of unusual difficulty, complexity or importance that is required for the making of such a costs order.
26 The plaintiffs contend that the defendant should pay their costs of the chamber summonses. The plaintiffs advance this contention for substantially the same reasons as those which they advanced in support of their argument that the defendant should pay their costs of the appeals.
27 For the reasons that I have stated in dealing with the defendant's application for the costs of the appeals, in my opinion it is appropriate for the plaintiffs to be required to pay 80% of the defendant's costs of the chamber summonses. The question which therefore remains is whether the plaintiffs should be required to pay this portion of the defendant's costs on a party and party basis or, as the defendant seeks, on an indemnity basis. In determining this question it is, in light of the above stated applicable legal principles and the defendant's submissions, necessary to give consideration to the following five questions:
1. Did the plaintiffs pursue a hopeless case in making and maintaining the struck out allegations?
2. Did the plaintiffs and/or their solicitors engage in discourteous and/or unreasonable conduct?
3. Will the defendant's claimed costs likely be recovered under an award for party and party costs?
4. Can the defendant's claimed costs be recovered by the making of a special costs order?
5. Is the case one which in all the circumstances warrants the court exercising its discretion to make the sought order for indemnity costs?
Did the plaintiffs pursue a hopeless case in making the struck out allegations?
28 The plaintiffs advanced no substantive argument in response to the defendant's submission that the plaintiffs pursued a hopeless case in making and maintaining the struck out allegations.
29 I struck out the above identified allegations made by the plaintiffs on the basis that the allegations that the various terms could be implied into the Contract did not give rise to serious questions to be tried. For reasons which are apparent from the judgment, the case was not one, in my view, where the allegations involved questions of law which were uncertain or even remotely capable of argument. In these circumstances I am satisfied that the plaintiffs' struck out allegations were 'hopeless' in the sense that the allegations were made and maintained in circumstances where the plaintiffs, properly advised, should have known that they had no chance of success.
Did the plaintiffs and/or their solicitors engage in discourteous and/or unreasonable conduct?
30 The defendant submits that the plaintiffs engaged in various forms of discourteous and/or unreasonable conduct. The plaintiffs submit that the conduct relied upon by the defendant was neither unreasonable nor of 'such concern as to warrant an indemnity costs order'. I will deal with each of the alleged forms of discourteous and/or unreasonable conduct in turn.
Refusal to confer
31 On 10 August 2016 a mediation conference took place. The mediation did not result in the settlement of the actions.
32 At the conclusion of the mediation conference the defendant's legal representatives referred to the defendant's previously expressed intention to apply for either summary judgment or the striking out of the plaintiffs' statements of claim. As a consequence Deputy Registrar Kubacz, who had presided over the mediation conference, made programming orders to facilitate the progression of the defendant's foreshadowed application. Specifically the programming orders provided that the defendant was to make any application for summary judgment and/or to strike out the statements of claim within 10 days of the mediation.
33 On 15 August 2016 the plaintiffs' solicitors sent to the defendant's solicitors by email a letter relating to the action brought by the plaintiff Jones (the Jones action). The letter was marked 'without prejudice, save as to costs'. In their letter the plaintiffs' solicitors informed the defendant's solicitors that they anticipated that the defendant would soon make applications for summary judgment or to strike out the plaintiff's pleadings in the Jones action and proposed, given the commonality of issues in the actions, that the defendant bring its summary judgment/strike out application in the Jones action only, with the other seven actions being stayed until further order of the court. Despite this letter the defendant's solicitors proceeded to prepare the dismissal applications in each of the actions.
34 On Wednesday, 17 August 2016 Ms Casellas left a telephone message for Mr Kivraj Singh of the plaintiffs' solicitors to call her. She did so for the purpose of conferring with Mr Singh in relation to the dismissal applications pursuant to O 59 r 9 of the RSC. Mr Singh did not return Ms Casellas' call.
35 At 6.56 am on 18 August 2016 Ms Casellas sent an email to the plaintiffs' solicitors marked to the attention of Mr Singh referring to her earlier telephone message and stating that the purpose of her call 'was to confer as required by the Rules'. Ms Casellas asked in her email whether Mr Singh could let her know if he was available to confer that morning, bearing in mind that the dismissal applications were required to be filed on Monday 22 August 2016.
36 At 3.38 pm on 18 August 2016 the plaintiffs' solicitors sent to the defendant's solicitors by email letters in identical terms in each of the actions. The letters were marked 'without prejudice'. In each of the letters the plaintiffs' solicitors, in effect, referred to the email from Ms Casellas and stated that their position was that 'given the orders made by Deputy Registrar Kubacz on 10 August 2016, we see limited utility in further conferral.' The plaintiffs' solicitors also stated in their letter that if the defendant's solicitors required conferral notwithstanding par 7 of cl 4.3.2 of the Supreme Court's Consolidated Practice Directions 'please send us a letter outlining the areas you wish to confer upon'.
37 At 3.45 pm on 18 August 2016 Ms Casellas sent an email to Mr Singh. In her email Ms Casellas stated that while she agreed that there 'may be not much utility' in conferring the solicitors for the parties were required to confer on the specific orders that the defendant proposed by the dismissal applications to seek. She stated that the parties solicitors had not conferred outside a without prejudice environment. She stated that she anticipated that they could do so by way of a five minute telephone conversation. She stated that she considered that the court would expect the conferral to take place. She concluded her email by asking if Mr Singh was able to confer about the proposed orders as required by the RSC.
38 At 3.55 pm on 18 August 2016 the plaintiffs' solicitors sent to the defendant's solicitors by email a letter enclosing a request for discovery pursuant to O 26 r 1 of the RSC in the Jones action.
39 At 8.11 am on 19 August 2016 Ms Casellas sent the plaintiffs' solicitors an email advising them that she would be on annual leave until 14 September 2016 and requesting them to copy all correspondence to Mr Saul Harben and Ms Maddy Clohessy (a solicitor employed by the defendant's solicitors).
40 At 3.45 pm on 19 August 2016 the plaintiffs' solicitors sent to the defendant's solicitors by email letters in each of the actions in response to Ms Casellas' above referred to email sent at 3.45 pm on 18 August 2016. All of the letters were marked 'without prejudice'. In all of the identically worded letters the plaintiffs' solicitors stated that 'again as outlined in our letter dated 18 August 2016, in these circumstances we see no utility in conferral by telephone'.
41 In the end result no conferral took place between the plaintiffs' solicitors and the defendant's solicitors prior to the filing of the dismissal applications on 22 August 2016.
42 In my view the conduct of the plaintiffs' solicitors in refusing to confer, even if only briefly, in relation to the foreshadowed dismissal applications was in breach of O59 r 9 of the RSC and was therefore unreasonable. I am not, however, persuaded on the material before me that this unreasonable conduct led to the incurring of any significant delay, inconvenience or needless costs in relation to the dismissal applications. To the contrary, it is clear in my view from the failed mediation and how the dismissal applications ultimately progressed that conferral would not have resulted in any substantial agreement such that time and/or costs would have been saved.
Without prejudice letters
43 As pointed out above, the plaintiffs' solicitors sent three letters to the defendant's solicitors dated 15 August 2016, 18 August 2016 and 19 August 2016 which were marked 'without prejudice'.
44 On 24 August 2016 the plaintiffs' solicitors sent to the defendant's solicitors by email a letter in the Jones action which was also marked 'without prejudice'. In this letter the plaintiffs' solicitors advised the defendant's solicitors that given that the defendant had not (for reasons set out by the defendant's solicitors in a letter to the plaintiffs' solicitors dated 19 August 2016) agreed to provide discovery in the Jones action, the plaintiff Jones would be filing a chamber summons for discovery.
45 On 29 August 2016 the plaintiffs' solicitors sent to the defendant's solicitors a letter in the Jones action enclosing a chamber summons filed on 26 August 2016 requesting discovery (the Jones discovery application).
46 On 18 October 2016 the defendant's solicitors sent by email a letter to the plaintiffs' solicitors in which they requested that the plaintiffs' solicitors reissue the above referred to three letters dated 15, 18 and 19 August 2016 without the 'without prejudice' marking. In their letter the defendant's solicitors said the following (footnotes omitted):
…
We confirm that each of the Letters is marked 'without prejudice' or 'without prejudice, save as to costs'. As you are aware, without prejudice privilege applies only to communications generally aimed at negotiating a settlement of a dispute, or part of it. The privilege does not apply to general commercial correspondence exchanged between parties during a dispute which is not related to an attempt to settle the dispute. As such, privilege is established by the nature of the communication, and not simply labelling documents 'without prejudice'.
On the basis[sic], it is our view that the Letters have been mistakenly or incorrectly marked as without prejudice communication. As such, can you please provide us with reissued copies of each of the Letters by close of business on Friday 21 October 2016.
47 On 27 October 2016 the plaintiffs' solicitors sent a letter to the defendant's solicitors in response to the defendant's solicitors' letter dated 18 October 2016. In their letter the plaintiffs' solicitors stated that their letters had not been mistakenly or incorrectly marked 'without prejudice', and that while they appreciated the defendant's solicitors' comments they fully understood when to mark correspondence as without prejudice or otherwise.
48 The defendant submits that the three letters should not have been marked 'without prejudice'. The defendant further submits that the plaintiffs' solicitors refusal to agree to reissue the letters without the 'without prejudice' marking was unreasonable and resulted in the defendant being unable to put the letters before the court as part of dealing with the plaintiffs' applications to adjourn the hearing of the dismissal applications pending the determination of the Jones discovery application. The defendant argues that if it had been able to put the 'without prejudice' letters before the court as part of dealing with the plaintiffs' application to adjourn the hearing of the dismissal applications, the court may not have granted the adjournment.
49 In my view the letters should not have been marked 'without prejudice'. This was obvious and should have been obvious to the plaintiffs' solicitors. It follows, in my view, that the plaintiffs' solicitors' refusal to reissue the letters with the 'without prejudice' marking removed as requested by the defendant's solicitors was unreasonable.
50 I am not, however, satisfied on the material before me that this unreasonable conduct on the part of the plaintiffs' solicitors lead to the incurring of significant delay, inconvenience or needless costs in relation to the dismissal applications.
51 I have obviously read the transcript of the proceedings that took place before the deputy registrar on 17 November 2016 at which the deputy registrar made the orders the subject of the appeals. The basis for the deputy registrar's decision adjourning the dismissal applications until the determination of the Jones discovery application (which was the decision that I overturned on the appeals), was that any documentation produced by the defendant in response to the Jones discovery application might bear upon the determination of the dismissal applications. In these circumstances I do not consider it likely that if the plaintiffs' solicitors had agreed to the defendant's solicitors' request and re-issued the letters without the 'without prejudice' marking, with the result that the letters could have been put before the deputy registrar by the defendant in opposing the adjournment application, this would have resulted in the deputy registrar refusing the plaintiffs' application to adjourn the dismissal applications pending the determination of the Jones discovery application.
Refusal to consent to dismissal applications being heard together
52 As pointed out above, the defendant filed the dismissal applications on 22 August 2016. The dismissal applications were listed for a directions hearing on 4 October 2016. The proposed purpose of the directions hearing was to enable the making of orders in relation to the hearing of the dismissal applications. However, and as is also pointed out above, prior to the directions hearing, namely on 26 August 2016, the plaintiffs made the Jones discovery application. The Jones discovery application was listed for a directions hearing on 14 September 2016.
53 At the directions hearing on 14 September 2016 Deputy Registrar Harman made orders adjourning the dismissal application in the Jones action and the Jones discovery application to a special appointment (the date of which was to be fixed) for hearing. The deputy registrar vacated the directions hearing for the Jones action that had been listed for 4 October 2016. However, the dismissal applications for the other seven actions, which were not the subject of the directions hearing on 14 September 2016, remained listed for a directions hearing on 4 October 2016.
54 The defendant took the view that given that the issues raised by the dismissal applications in each of the actions were identical, the dismissal applications in relation to the other seven actions, that is, the action other than the Jones action, should also be adjourned to the special appointment for hearing. The defendant's position was also that this would avoid incurring unnecessary costs associated with appearing at the directions hearing on 4 October 2016.
55 In his affidavit Mr Harben deposes to the fact that after the directions hearing held on 14 September 2016 he conferred with Mr Singh and Mr Adam Stewart, also of the plaintiffs' solicitors, at the top of the main staircase within the District Court building and that as a result of that conferral the parties agreed that they would prepare and file consent orders listing the defendant's dismissal applications in the other seven actions at the same time as the special appointment for the Jones action.
56 At 12.04 pm on 21 September 2016 the defendant's solicitors sent by email a letter to the plaintiffs' solicitors in which they provided the defendant's unavailable dates for the special appointment, and advised that they would provide draft consent orders to vacate the directions hearing on 4 October 2016 in the other seven actions and request the court to list the dismissal applications in the seven actions for 'special mention' at the yet to be listed special appointment relating to the dismissal application in the Jones action.
57 At 3.25 pm on 27 September 2016 Ms Clohessy sent an email to Mr Singh attached to which were the foreshadowed consent orders for signing by the plaintiffs' solicitors.
58 At 4.40 pm on 27 September 2016 the plaintiffs' solicitors sent to the defendant's solicitors a copy of a letter in the Jones action dated 27 September 2016 which they had sent to the court and in which they set out their unavailable dates for the special appointment.
59 At 1.17 pm on 30 September 2016 Ms Clohessy sent an email to Mr Singh in the following terms:
Dear [Mr Singh]
I refer to the below emails and the two telephone messages I left you yesterday, and the further telephone message that I have left you this morning.
At the directions hearing on 14 September 2016, it was explicitly agreed by Chapmans, on behalf of each of the plaintiffs in these proceedings, to file consent orders adjourning the 4 October 2016 hearing and requesting that the matters be listed at the same time as the special appointment for the Jones matter, in order to avoid any unnecessary costs being incurred by the parties.
As you are aware, the matter is listed for Tuesday morning. If the consent orders are not provided to the court today, it is unlikely that the parties will be able to confirm that the matter has been adjourned without the need to attend the Court on Tuesday.
As such, you are on notice that unless we receive the signed consent orders by 4.00 pm today, being 30 September 2016, we are instructed to proceed to seek a costs order on an indemnity basis payable forthwith against Chapmans for the costs thrown away by reason of attending the directions hearing on Tuesday 4 October 2016.
60 At 2.00 pm on 30 September 2016 the plaintiffs' solicitors sent by email letters to the defendant's solicitors in each of the seven actions other than the Jones action. The seven letters were in identical terms. The letters, so far as is relevant, were in the following terms:
We refer to Ms Clohessy's email of 27 September 2016.
While we may have discussed the possibility of having the chamber summons listed in this matter on 4 October 2016 adjourned to the special appointment to be listed in [the Jones action], upon further review, our client no longer considers this the best way to progress the matter.
In our client's view, given the commonality of these matters, it is more appropriate for one matter to proceed to a special appointment to determine the issues raised by your client's chamber summons. As such, our client does not consent to this matter being adjourned to the special appointment.
Rather, it is our client's view that this matter should be adjourned sine die pending the outcome of the special appointment for [the Jones action].
Could you please advise us of the Defendant's position in response?
61 At 1.43 pm on 3 October 2016 the plaintiffs' solicitors sent by email seven identical letters to the defendant's solicitors in each of the actions other than the Jones action in which they stated that 'Ms Clohessy's assertion in paragraph 2 of her email [dated 30 September 2016] about an agreement is untrue'. They requested that Ms Clohessy either withdraw the statement immediately or set out the parties 'who the agreement was made with, when and how it occurred, and all its terms'. In their letters the plaintiffs' solicitors also stated that the comments made by Ms Clohessy in the last paragraph of her email were 'inappropriate and completely baseless threats made without foundation'.
62 At 4.07 pm on 3 October 2016 the defendant's solicitors sent by email a letter to the plaintiffs' solicitors (signed by Mr Harben) in response to the letters sent by the plaintiffs' solicitors earlier that day. In their letter the defendant's solicitors stated that the content of the letters was 'inaccurate and inappropriate'. They stated that the parties had previously agreed that the dismissal applications in each of the seven actions other than the Jones action should be adjourned to the same date as the dismissal application in the Jones action and that the letters from the plaintiffs' solicitors dated 30 September 2016 represented a change in position by the plaintiffs.
63 Given that the plaintiffs did not consent to the orders listing the dismissal applications in the other seven actions to be heard at the special appointment to be listed for the determination of the dismissal application in the Jones action, the directions hearing on 4 October 2016 was not vacated.
64 At the directions hearing on 4 October 2016 Deputy Registrar Kubacz made the orders sought by the defendant. She adjourned the dismissal applications in the other seven actions to the special appointment (which by this time had been listed by the court to take place on 17 November 2016) so that they could be heard together with the dismissal application in the Jones action. She also ordered that costs be reserved. The orders made by the deputy registrar were in substance the orders which the defendant had proposed to file by consent.
65 The defendant submits that it was unreasonable for the plaintiffs to refuse to consent to the dismissal applications being heard together at the one special appointment.
66 As I have already pointed out, the plaintiffs have elected not to file any affidavit material on the application. Accordingly, Mr Harben's account of what was agreed after the directions hearing on 14 September 2016 between himself on behalf of the defendant, and Mr Singh and Mr Stewart on behalf of the plaintiffs, is not contradicted. In these circumstances I accept the evidence of Mr Harben on this point. I note in this regard that Mr Harben's account of events is supported not only by the correspondence sent by Ms Clohessy to Mr Singh on 27 September 2016 and 30 September 2016, but also to some extent by the wording of the second paragraph of the letters sent by the plaintiffs' solicitors to the defendant's solicitors by email at 2.00 pm on 30 September 2016. In summary, I find that there was an agreement arrived at following the directions hearing on 14 September 2016 for the dismissal applications to be heard together.
67 Given my above stated finding I am satisfied that the plaintiffs' conduct in refusing to consent to all of the dismissal applications being heard together was unreasonable if not improper.
68 I note for the sake of completeness that even if I had not found that there was an agreement arrived at following the directions hearing on 14 September 2016 I would still have found that the plaintiffs' conduct in subsequently refusing to consent to all of the dismissal applications being heard together was unreasonable. The issues raised by the dismissal applications in each of the actions, as is revealed by the judgment, were for all intents and purposes identical. There was simply no good reason for the plaintiffs refusing to agree to the dismissal applications being heard together the consequences of which were not only that the directions hearing on 4 October 2016 was required to take place, but also that the defendant was forced to incur the inconvenience and additional unnecessary expense of preparing for and appearing at the hearing.
Failure to respond to correspondence
69 On 29 September 2016 the court sent to the parties a letter regarding the special appointment in the Jones action advising that the special appointment had been listed for 17 November 2016 and reminding the parties that they needed to comply with r 61 of the District Court Rules 2005 (WA) (DCR).
70 On 4 November 2016 the defendant filed lists of documents in the actions in relation to the dismissal applications in accordance with r 61.
71 On 8 November 2016 the plaintiffs' solicitors sent a letter to the defendant's solicitors enclosing a list of documents for the dismissal application in the Jones action in accordance with r 61 of the DCR. The plaintiffs did not file and serve lists of documents for the dismissal applications in the other seven actions in accordance with r 61.
72 At 9.51 am on 8 November 2016 the plaintiffs' solicitors sent by email a letter to the defendant's solicitors relating to the Jones action enclosing an amended statement of claim in the Jones action: DCR, r 48A.
73 At 12.40 pm on 8 November 2016 the defendant's solicitors sent an email to the plaintiffs' solicitors asking whether amended statements of claim would be filed in each of the other seven actions.
74 At 1.32 pm on 9 November 2016 the plaintiffs' solicitors sent by email a letter to the defendant's solicitors advising that the plaintiffs in the other seven actions did intend to file amended statements of claim.
75 At 1.51 pm on 9 November 2016 the defendant's solicitors sent an email to the plaintiffs' solicitors requesting them to urgently advise when they anticipated that the plaintiffs in the other seven actions would file and serve amended statements of claim as the defendant did not know if the amendments would be identical or different to those contained in the amended statement of claim filed in the Jones action.
76 On 14 November 2016, which was the day that the parties were by reason of r 61 of the DCR required to file and serve outlines of submissions in relation to the dismissal applications, the plaintiffs in the other seven actions filed and served amended statements of claim. The amended statements of claim filed and served on this date were substantially the same, albeit not identical, to the amended statement of claim filed in the Jones action.
77 Given that the plaintiffs in the seven actions other than the Jones' action filed the amended statements of claim on the day for the filing of submissions in the dismissal applications, the defendant was unable to respond in its submissions in full to the amendments to the statements of claim in the other seven actions. Nonetheless the defendant filed and served its outlines of submissions relating to the dismissal applications in the actions on 14 November 2016 in accordance with r 61.
78 At 2.41 pm on 15 November 2016 the defendant's solicitors sent an email to the plaintiffs' solicitors requesting that the plaintiffs' advise whether any of the plaintiffs other than the plaintiff Jones would seek to rely on documents at the hearing of the dismissal applications, and when they could expect to receive the outlines of submissions for each of the plaintiffs. The plaintiffs' solicitors did not respond to the defendant's solicitors' email.
79 On 16 November 2016, the day before the special appointment at which the dismissal applications were to be heard, the plaintiffs had still not served submissions on the defendant in accordance with r 61. Accordingly, Ms Casellas left two telephone messages for the plaintiffs' solicitors. Her calls were not returned. Further, at 10.49 am on that day Ms Casellas sent to the plaintiffs' solicitors an email requesting that they advise when the defendant's solicitors would receive the plaintiffs' submissions in the actions. Ms Casellas did not receive a direct response to her email.
80 At 12.19 pm on 16 November 2016 the plaintiffs' solicitors sent by email a letter to the defendant's solicitors enclosing an outline of submissions relating to the dismissal application in the Jones action. The submissions were therefore filed and served two days after the date on which they were required by r 61 to be filed and served.
81 At 12.34 pm on 16 November 2016 the defendant's solicitors sent an email to the plaintiffs' solicitors requesting that the plaintiffs' solicitors advise if the plaintiffs in the other seven actions intended to file lists of documents or outlines of submissions in relation to the dismissal applications. The defendant's solicitors did not receive a response to this email. Further, no documents were filed on behalf of the plaintiffs in the other seven actions.
82 As is apparent from the above recited history, the plaintiffs' solicitors failed to respond to the two telephone messages left by Ms Casellas on 16 November 2016, as well as the emails from the defendant's solicitors sent on 9 November 2016, 15 November 2016, 16 November 2016 and 26 November 2016. The plaintiffs' solicitors have not provided any explanation for failing to respond to these communications.
83 The plaintiffs' solicitors conduct in failing to respond to the defendants' solicitors' communications was discourteous and unsatisfactory. However, in the scheme of things this conduct was of little moment and I would not classify it as being sufficiently unreasonable so as to form part of the basis of the making of an order for indemnity costs in the terms sought by the defendant.
Failure to comply with r 61 of the DCR
84 As is apparent from the above recited history, the plaintiffs' failed to comply with the DCR in relation to the filing of documents relating to the dismissal applications. Specifically, each of the plaintiffs other than the plaintiff Jones failed to file lists of documents and outlines of submissions in relation to the dismissal applications. Further, the plaintiff Jones failed to comply with the timetable set down by the DCR, as referred to in the court's letter dated 29 September 2016, for the filing of his outline of submissions relating to the dismissal application concerning him.
85 The conduct of the plaintiff Jones in not only failing to file and serve an outline of submissions relating to the dismissal application concerning him within the prescribed timetable, but also failing to file the submissions until 12.19 pm on the day before the hearing of the special appointment, was discourteous and unreasonable. This conduct on the part of the plaintiff Jones prejudiced the defendant in that it unfairly reduced the amount of time that the defendant's solicitors had to consider and formulate a response to the submissions filed on behalf of Jones and consequently the submissions which the defendant was forced to assume would also be made on behalf of the plaintiffs in the other seven actions.
86 The failure by the plaintiffs in the other seven actions to file lists of documents and outlines of submissions in relation to the dismissal applications in accordance with the DCR was discourteous and unreasonable. Having said this, given that the issues raised by the dismissal applications in each of the eight actions were substantially identical, this conduct of the plaintiffs in the other seven actions did not cause any significant prejudice to the defendant. The prejudice that was caused to the defendant by this aspect of the plaintiffs' discourteous and unreasonable conduct was, in reality, limited to the inconvenience of having to repeatedly ask the plaintiffs' solicitors if lists of documents and outlines of submissions were going to be filed.
87 For reasons which are apparent from what I have said above in relation to the issue of prejudice, I am not persuaded that the unreasonable conduct of the plaintiff Jones in failing to file and serve an outline of submissions in accordance with the prescribed timetable, or the unreasonable conduct of the other seven plaintiffs in failing to file and serve lists of documents and outlines of submissions, resulted in any delay or the incurring by the defendant of significant needless costs so far as the special appointment is concerned.
Filing of amended statements of claim by plaintiffs other than Jones
88 As pointed out above, the plaintiffs other than the plaintiff Jones filed amended statements of claim on 14 November 2016, that is, the day that the defendant was required to file its outlines of submissions in support of the dismissal applications. This conduct was, in my view, clearly unsatisfactory and unreasonable. Given that the amended statement of claim in the Jones action was filed on 8 November 2016 there is no apparent reason why the amended statements of claim in the other seven actions could not also have been filed on that date. This is particularly so given that the amendments to each of the statements of claim in the seven actions substantially reflected the amendments that had been made to the statement of claim in the Jones action.
89 I am not persuaded that the unreasonable conduct of the plaintiffs in the other seven actions in filing and serving their amended statements of claim on 14 November 2016 resulted in the incurring of any delay or needless costs so far as the special appointment is concerned. Although the late filing of the amended statements of claim did prevent the defendant from being able to address the amendments in their outlines of submissions filed in support of the dismissal applications, the amendments did not prevent the defendant from being able to deal with the dismissal applications on their merits at the special appointment. That this was the case is apparent from the fact that the defendant opposed the plaintiffs' application to adjourn the special appointment. Further, on the evidence before me I am not persuaded that the late filing of the amended statements of claim required the defendant to perform any work over and above that which needed to be performed in order to properly prepare for the hearing of the dismissal applications at the special appointment.
Failure to give notice of application to adjourn
90 The dismissal applications and the Jones discovery application ultimately came before Deputy Registrar Harman for hearing on 17 November 2016. Ms Archer SC appeared for the defendant. Mr Stewart appeared for the plaintiffs.
91 After the registrar had taken appearances, Mr Stewart requested that the dismissal applications be adjourned until discovery in the Jones action had been completed (ts, pages 3 – 4). It was this application which the deputy registrar ultimately acceded to with the consequence that he made orders adjourning the dismissal applications sine die and listing the Jones discovery application for a directions hearing on 7 December 2016. It was, of course, and as I have already indicated, these orders that I overturned in allowing in part the appeals.
92 Prior to the making of the application to adjourn the dismissal applications the plaintiffs had not, at any time since the directions hearing before Deputy Registrar Kubacz on 14 September 2016, given to the defendant any notice of their intention to seek the adjournment (ts 6; affidavit of Ms Casellas, par 131). The plaintiff Jones did not give any indication of this intention in the documents filed and served by him in relation to the dismissal application concerning him. To the contrary, in the 'List of Orders Wanted' filed by the plaintiff Jones together with his outline of submissions the orders sought were stated as follows:
1. The defendant's chamber summons for summary judgment dated 22 August 2016 be dismissed;
2. The orders sought in the plaintiff's chamber summons dated 26 August 2016 in matter 3056 of 2014 be granted; and
3. The defendant pay the plaintiff's costs of the application to be taxed if not agreed.
93 The result of the plaintiffs' conduct was that the defendant had no reason to believe that the hearing of the dismissal applications would not proceed at the special appointment hearing (affidavit of Ms Casellas, par 132). Against this background the defendant incurred the costs of preparing for the hearing and briefing senior counsel to appear at the hearing (affidavit of Ms Casellas, par 132). If the plaintiffs had given some advance notice of their intention to apply for the adjournment of the dismissal applications pending the determination of the Jones discovery application, the defendant would have at least been in a position to attempt to bring the matter back before the court for the purpose of dealing with the adjournment application and hence, given the decision ultimately made by the deputy registrar, have avoided the costs associated with preparing for dealing with the merits of the dismissal applications at the special appointment hearing.
94 In my opinion the conduct of the plaintiffs in not giving prior notice of their intention to apply to adjourn the dismissal applications pending the outcome of the Jones discovery application was entirely unreasonable. I am also satisfied that this unreasonable conduct resulted in the defendant incurring significant inconvenience and unnecessary costs comprised of the costs of preparing for the hearing of the merits of the dismissal applications at the special appointment.
Would the claimed costs likely be recovered under an order for party and party costs?
95 The defendant submits that due to the plaintiffs' conduct party and party costs will not adequately compensate the defendant due to the volume of extra work that was required.
96 Given that I have found that the plaintiffs have engaged in unreasonable conduct, it is not essential for the defendant, in order to succeed in its claim for indemnity costs, to demonstrate that its claimed costs will not be recovered under a standard order for party and party costs. In any event, I am satisfied that given that the hearing of the dismissal applications was adjourned, the claimed costs the subject of the applications would be unlikely to be recovered under an order that the plaintiffs pay the defendant's party and party costs of the chamber summonses.
Can the claimed costs be recovered under a special costs order?
97 An order for special costs may be made under s 280(2) of the Legal Profession Act 2008 (WA): Supreme Court Act 1935 (WA), s 37(1); DCA, s 64(3).
98 Before the court can make a special costs order it must be satisfied of two matters. Firstly, that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount which is greater than the limit which would be imposed by the relevant cost determination. Secondly, that the inadequacy arises because of the 'unusual difficulty, complexity or importance of the matter': see generally Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S); Crawley Investments Pty Ltd v Elman [2014] WASC 233 (S) [7] - [9]; Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [12].
99 Issues of the kind which arise for consideration in determining if a special costs order should be made 'are addressed as matters of impression, rather than as matters of detailed evaluation precision or science': Sino Iron v Mineralogy [12].
100 The word 'unusual' in s 280(2) of the Legal Profession Act qualifies only the 'difficulty of the matter, and not its 'complexity' or 'importance': Sino Iron v Mineralogy [15]. The word 'unusual' in this context means unusual having regard to what one might describe as the usual run of civil cases determined in the court: Sino Iron v Mineralogy [15]. This involves the court making a value judgment having regard to the court's experience of the particular case when compared with the usual run of cases: Wainwright v Barrick Gold of Australia Limited [9]; Sino Iron v Mineralogy [15].
101 The reference to 'importance' in s 280(2) permits the court to have regard to the significance of the issues that arose in the litigation. Significance can arise either because of the significance of the issues to the parties, or because of the significance of the issues to other prospective parties, or to the public or community generally: Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [19]; Sino Iron v Mineralogy [15].
102 The defendant submits that a special costs order cannot be made in the present case because the dismissal applications did not meet the unusual difficulty, complexity or importance threshold. The plaintiffs have not advanced any substantial submission in relation to the issue of whether a special costs order can be made.
103 I accept the defendant's submissions. In my opinion, making the value judgment that I am required to make, the dismissal applications were not 'unusually difficult'. Nor, in my opinion, for reasons which should be apparent from the judgment, were they of such complexity or importance within the meaning of s 280(2) such as to warrant the making of a special costs order in respect of them.
Should the court exercise its discretion to make the order sought?
104 I have found as follows:
1. The plaintiffs proceeded with the struck out allegations in circumstances where they, properly advised, should have known that they had no chance of success;
2. The conduct of the plaintiffs' solicitors in refusing to confer in relation to the dismissal applications and in failing to re-issue the 'without prejudice letters' was unreasonable;
3. The conduct of the plaintiffs in refusing to consent to the dismissal applications being heard together, in failing to comply with r 61 of the DCR, in filing amended statements of claim in seven of the actions on the day that the parties were required to file outlines of submissions for the dismissal applications, and in failing to notify the defendant of their intention to apply for an adjournment of the dismissal applications was unreasonable;
4. The plaintiffs' conduct in refusing to consent to the dismissal applications being heard together resulted in the defendant incurring inconvenience and unnecessary costs;
5. The plaintiffs' conduct in failing to notify the defendant of their intention to apply for an adjournment of the dismissal applications resulted in the defendant incurring significant inconvenience and unnecessary costs;
6. The claimed costs the subject of the application would be unlikely to be recovered under an order that the plaintiffs pay the defendant's party and party costs of the chamber summonses; and
7. It is not open to make a special costs order.
105 Although some of the above identified aspects of the plaintiffs' solicitors' conduct or the plaintiffs' conduct (as the case may be) may not of themselves justify the making of an indemnity costs order, I am satisfied, viewing the identified aspects of the conduct of the plaintiffs and their solicitors collectively, that this is a case in which it is appropriate for the court to exercise its discretion to make an order for indemnity costs in terms similar to those sought by the defendant. In my view this is a case in which it is appropriate to mark the court's disapproval of the unreasonable conduct of the plaintiffs and their solicitors with an indemnity costs order.
Conclusion
106 For the reasons I have stated, I will, subject to hearing from the parties as to the precise terms of the appropriate order, order that the plaintiffs pay 80% of the costs of the defendant's chamber summonses dated 22 August 2016, including the costs of preparing for and appearing at the hearing of the summonses, forthwith on an indemnity basis to be taxed if not agreed except in so far as the costs are of an unreasonable amount or have been unreasonably incurred.
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