Hicks v Insurance Commission of Western Australia
[2007] WADC 123
•25 JULY 2007
HICKS -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2007] WADC 123
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 123 | |
| Case No: | CIV:2397/2003 | 23 MARCH 2007 | |
| Coram: | REGISTRAR KINGSLEY | 25/07/07 | |
| PERTH | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | JOSHUA CAINE HICKS INSURANCE COMMISSION OF WESTERN AUSTRALIA |
Catchwords: | Practice Application to lift costs Counsel attending pre-trial conference Plaintiff under a disability Same counsel writing opinion for compromise |
Legislation: | Legal Practice Act 2003 |
Case References: | Ewers v J Corp Pty Ltd [2006] WADC 160 Jewel Walk Pty Ltd v Kondinin Group Inc [2001] WASC 197 Newell v Starkie (No 2) [1918] 2 IR 228 SDS Corp Ltd v Pasdonnay Pty Ltd & Anor [2004] WASC 26 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice - Application to lift costs - Counsel attending pre-trial conference - Plaintiff under a disability - Same counsel writing opinion for compromise
Legislation:
Legal Practice Act 2003
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr S Forbes
Defendant : Mr P Sheavyn
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : Talbot Olivier
Case(s) referred to in judgment(s):
Ewers v J Corp Pty Ltd [2006] WADC 160
Jewel Walk Pty Ltd v Kondinin Group Inc [2001] WASC 197
Newell v Starkie (No 2) [1918] 2 IR 228
SDS Corp Ltd v Pasdonnay Pty Ltd & Anor [2004] WASC 26
(Page 3)
1 REGISTRAR KINGSLEY: Her Honour Judge Crisford, at the hearing of the plaintiff's summons seeking leave to compromise the action on 11 November 2005, made no order in relation to costs of the matter. The plaintiff's solicitors were given leave to apply for a costs order by re-listing the chamber summons. In fact no application was made by the plaintiff to restore the chamber summons. In May 2006 a draft bill of costs for taxation was forwarded by the plaintiff's solicitors to the defendant's solicitors.
2 Through May to early July 2006 there were some negotiations to try and settle the issue of costs to no avail. On 13 July 2006 the plaintiff's bill of costs was taxed in part and thereafter adjourned to enable the plaintiff's solicitors to consider making an application for a special costs order.
3 It would appear that the item in contention in the plaintiff's bill of costs is Item 53. This relates to counsel's fee on opinion in the sum of $6,600. It is the defendant's submission that the plaintiff is seeking to recover not only the costs of counsel providing an opinion, but also attending the pre-trial conferences in the matter. Plaintiff's counsel agrees that an allowance within the disbursement for counsel's opinion is being sought for the attendance of counsel at the pre-trial conference.
4 Pursuant to O 66 r 11(4), subject to any order made by the Court, the fees prescribed by an relevant scale cover all work done whether by the solicitor or by counsel. It is the defendant's counsel's submission that any application for a special order for costs falls within O 66 r 51(2) where, under the heading "Where Court May Fix Costs", it is provided that there is a deemed reservation to a party for liberty to apply within 30 days where some special certificate for costs is required. In my opinion, O 66 r 51 relates only to the situations where the court is being moved to fix costs. However, in my opinion, in this case the matter would previously have fallen within O 66 r 12 where the scale is sought to be increased due to the complexity of a case. Order 66 r 12 has been repealed and is broadly reflected within s 215(2) of the Legal Practice Act 2003.
5 There are no time limits imposed in s 215. I am of the opinion, prior to the completion of any taxation that an application to remove the limit on costs fixed by the determination may be made.
6 Section 215(2) Legal Practice Act provides that if a Court or Judicial Officer is of the opinion that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate because of the
(Page 4)
- unusual difficulty, complexity, or importance of the matter, the Court or Officer may order the payment of costs above those fixed by the determination, fix higher limits of costs than those fixed in the determination, remove limits on costs fixed in the determination, and/or make any order enabling costs above those in the determination to be ordered or taxed.
7 The action involved a motor vehicle accident where the plaintiff suffered severe injuries resulting in brain damage. Subsequent to the entry for trial there were a number of pre-trial conferences and the matter was eventually settled in the sum of $950,000 and the reasonable and proper administration charges payable to the Public Trustee. Counsel for the plaintiff, Mr K Pratt, attended two pre-trial conferences on 29 April 2005 and 6 May 2005. It was the 6 May 2005 conference that brought about settlement. Subsequent to the defendant's offer to compromise the action in the sum of $950,000, counsel wrote an opinion which was put before Judge Crisford in the affidavit of Zane Charles Norman sworn 27 October 2005.
8 In the plaintiff's party-party's bill of costs for taxation filed 24 May 2006 Items 15 and 16 relate to an attendance at a pre-trial conference by Z Norman on 29 April 2005 and 6 May 2005. For the 29 April 2005 attendance Mr Norman claimed $1,364 and for the 6 May 2005 attendance Mr Norman claimed $1,023. At the taxation conducted on 13 July 2007 $764 for the attendance on 29 April 2005 has been taxed off, whilst $170 for the 6 May 2005 attendance has been taxed off.
9 The pre-trial conferences fall within Item 23(a) of the Legal Practitioners (Supreme Court)(Contentious Business) Determinations. The amount allowed is an hourly rate and in 2005 that hourly rate was $341. By virtue of O 66 r 11, that sum encompasses the work done both by the solicitor and counsel unless the limit is lifted.
10 The basis for recovery of costs is that the work done, the subject of those costs, had to be necessarily incurred. The authorities indicate that the costs recoverable are those costs that are necessary to enable the party to conduct the litigation and no more. In Newell v Starkie (No 2) [1918] 2 IR 228 the Court held, in relation to conferences with counsel, that where a consultation was essential to the proper conduct of the defendant's case, it was allowable on a party-party taxation.
(Page 5)
11 There are two issues then to be determined, firstly, whether the attendance of counsel at the pre-trial conferences was essential for the conduct of the plaintiff's case and, secondly, if such attendances were essential should the scale of fees in Item 23(a) be lifted so as to provide for the additional remuneration of counsel.
12 In an infants compromise it was usual for the solicitor for the infant to undertake the negotiations which would then finally end in the final offers made by the defendants. The solicitor would then brief counsel who would give an opinion on the quantum offered. In those circumstances there was often the possibility that counsel would not give an opinion recommending an offer on the basis that, in their opinion, the quantum offered was too low. In that circumstance the solicitor for the infant would seek to reopen negotiations in an endeavour to persuade the defendant to increase their offer.
13 That course of action had some inherent difficulties and inefficiencies. The plaintiff had to persuade the defendants to reopen negotiations, and having reached that point, then had to persuade the defendants that offers by the defendant ought be increased. The alternative was to press the matter on to trial. In addition, there would be delay in finalising the matter on behalf of the infant plaintiff.
14 By engaging counsel to attend on the pre-trial conference, and to participate in the negotiations, the impetus of the conference is maintained and there is a reduction in the likelihood of delay in coming to a reasonable compromise.
15 The role of counsel in relation to an application for compromise stems from the jurisdiction of the Court to protect those who are unable to protect themselves. Where the Court is moved to approve a compromise, the Court must be satisfied that the compromise will be of benefit to the person under the disability. The Court will need to be satisfied that all the facts relevant to the case of the person under disability have been gathered and considered by their legal advisers. The settlement proposed must be supported by independent counsel.
16 The Court itself will consider the opinion and the reasons for it, and if all relevant aspects of the case have received proper consideration, a court will be slow to disallow the compromise. The Court is aware of the risks of litigation and would be slow to force a person under disability to accept a risk.
(Page 6)
17 The role of counsel, as an Officer of the Court, is to ensure the Court is made aware of all relevant facts, and, having regard to those facts, what in counsel's opinion would be an appropriate award of damages. One can understand the concern of a court to ensure that counsel is independent of the process so that an objective decision is arrived at. But in my opinion the independence of counsel in terms of their opinion to the Court is not, in my opinion, compromised when one considers the differing roles that are adopted by counsel during this process. Whilst counsel may be engaged by a solicitor to participate in the process of negotiation, and eventual agreement on a sum to be awarded to the infant plaintiff, the role of counsel in advising the Court is as an Officer of the Court. In that role the barrister assumes greater duties to the Court to ensure that the Court is properly put in the position that it can sanction the compromise of the infant's claim.
18 In my opinion then there is a role for counsel to play in the course of negotiating an agreed figure in the settlement and this role does not conflict with their duty to the Court in providing an opinion as to the quantum of that settlement.
19 That being the case, the question is whether there should be an allowance over and above the scale item for counsel to attend on the pre-trial conference, that is a special costs order. There is, no doubt, the potential for duplication of the costs in that counsel, upon being instructed by the solicitor, would necessarily do work to master the brief preparatory to the pre-trial conference. But having done that work, the time spent in writing the opinion would be reduced because counsel has already spent that time.
20 In SDS Corp Ltd v Pasdonnay Pty Ltd & Anor [2004] WASC 26 at par 106 Roberts-Smith J said that:
"In my view then what must be shown for a special costs order under section 215 is that:
(a) the amount of costs allowable under a determination is inadequate;
(b) because of:
(i) the unusual difficulty; or
(ii) the complexity; or
- (iii) the importance of the matter."
21 In this regard Roberts-Smith J is restating the opinion he held in Jewel Walk Pty Ltd v Kondinin Group Inc [2001] WASC 197 referring to O 66 r 12(1) that:
"There are therefore three separate bases upon which a special costs order may be made. They are by reasons of:
(a) the unusual complexity of the case; or
(b) the importance of the case; or
(c) any other good or sufficient reason.
22 In Ewers v J Corp Pty Ltd [2006] WADC 160 Eaton J considered the phrase "unusual difficulty, complexity or importance of a matter". His Honour considered that importance must be assessed objectively and involves consideration of the development of law or the rights of parties going beyond what might be regarded as ordinary civil litigation. As to unusual difficulty or complexity, his Honour then analysed the nature of the action before him to arrive at a conclusion that the matter was not unusually difficult or complex. His Honour noted that "unusual" only qualified the difficulty not the complexity of an action.
23 The circumstances of the crash and liability were that the plaintiff was a rear seat passenger in a motor vehicle driven by Bobby Daniel Hicks. The Insurance Commission of Western Australia admitted liability for its insured, though pleading that the plaintiff voluntarily accepted the risk of being injured in the crash and was guilty of contributory negligence because the driver of the car had consumed sufficient cannabis to render him incapable of exercising proper control of the car. The plaintiff suffered significant injuries, including a left temporal skull fracture. The left-sided haemiparesis was virtually resolved by May 2001.
24 The body of medical opinion was to the effect that it was unlikely the plaintiff would work in the foreseeable future and is likely to remain in a welfare dependent situation. The plaintiff had been mostly unemployed except for short periods of casual labouring work, though he had just prior to the crash completed some remedial education with the goal of completing his lower secondary education. However, the plaintiff had limited educational and vocational skills at the time of the crash and was not in any regular casual employment.
(Page 8)
25 Whilst every action is of importance to the litigant as Eaton J commented, the importance extends to the public importance. In my opinion there was nothing in this particular action that engages my discretion to increase the scale because the matter is important.
26 Is the matter then of unusual difficulty or complexity? Plaintiff's counsel in his submissions emphasised the fact that complexity is not conditioned by "unusual".
27 Counsel in his opinion dated 20 September 2005, reviews the plaintiff's situation under a number of headings. In relation to general damages, counsel considers the extent of treatment and long term effects before determining that the likely range of damages was between 65 per cent ($160,800) and 75 per cent ($201,000) of a most extreme case.
28 As for past loss of earning capacity counsel reiterates that the plaintiff had limited education and limited vocational skills. At the time of the accident the plaintiff was not in any regular casual employment, though had been told by access office Industries that he could obtain casual work the week that followed his accident.
29 Counsel then doing the best he can, considers the likely range of past loss of earning capacity would be $50,000 to $80,000. In considering the future loss of earning capacity, counsel again does the best he can, suggesting a trial Judge would apply a national earning capacity of between $400 net weekly and $500 net weekly.
30 Counsel, then goes on to consider past and future gratuitous services and future treatment before considering that the offer by the defendant was within the likely range of damages and that settlement was in the plaintiffs interest and benefit.
31 In my opinion there is nothing in counsel's opinion, which suggest that this action has a degree of unusual difficulty or complexity. The issues that counsel had to consider, and to give thought to, are not, in this case, out of the ordinary. In coming to his opinion counsel no doubt had to draw on his considerable professional experience in personal injury matters. But, in my opinion there is nothing in the work done by counsel in crafting his opinion that was unusually difficult, or complex.
32 Accordingly, I am of the opinion that the particular action does not demonstrate any unusual difficulty or complexity or importance and therefore I will not make any order pursuant to s 215(2) Legal Practice Act 2003.
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