Hodgkinson v Doepel & Associates Architects Pty Ltd
[2006] WASC 237 (S)
•27 OCTOBER 2006
HODGKINSON -v- DOEPEL & ASSOCIATES ARCHITECTS PTY LTD [2006] WASC 237 (S)
| Link to Appeal : | [2008] WASCA 262 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 237 (S) | |
| Case No: | CIV:2698/2001 | 15-19, 22-26, 29 & 30 AUGUST 2005, 7 MARCH 2007 | |
| Coram: | SIMMONDS J | 27/10/06 | |
| 5/06/07 | |||
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Application for special costs order granted in respect of certain items | ||
| B | |||
| PDF Version |
| Parties: | EDWARD WILLIAM HODGKINSON DOEPEL & ASSOCIATES ARCHITECTS PTY LTD (ACN 069 628 440) KELLY SUSAN HODGKINSON |
Catchwords: | Costs Application for special costs Legal Practice Act 2003 (WA), s 215 Removal of time limits Whether costs allowable under Legal Costs Determinations are inadequate Turns on own facts |
Legislation: | Legal Practice Act 2003 (WA), s 210, s 215 Legal Practitioners Act 1893 (WA), s 58W Rules of the Supreme Court, O 66 r 12(1), O 66 r 13(c) |
Case References: | Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122(S) Green v Wilden Pty Ltd [2005] WASC 83 Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2) Tipperary Developments Pty Ltd v The State of Western Australia [2006] WASC 137 Townsend v Collova [2005] WASC 4(S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 5 JUNE 2007 FILE NO/S : CIV 2698 of 2001 BETWEEN : EDWARD WILLIAM HODGKINSON
- Plaintiff
AND
DOEPEL & ASSOCIATES ARCHITECTS PTY LTD (ACN 069 628 440)
Defendant
(BY ORIGINAL ACTION)
DOEPEL & ASSOCIATES ARCHITECTS PTY LTD (ACN 069 628 440)
Plaintiff by Counterclaim
AND
EDWARD WILLIAM HODGKINSON
First Defendant by Counterclaim
- KELLY SUSAN HODGKINSON
Second Defendant by Counterclaim
(BY COUNTERCLAIM)
Catchwords:
Costs - Application for special costs - Legal Practice Act 2003 (WA), s 215 - Removal of time limits - Whether costs allowable under Legal Costs Determinations are inadequate - Turns on own facts
Legislation:
Legal Practice Act 2003 (WA), s 210, s 215
Legal Practitioners Act 1893 (WA), s 58W
Rules of the Supreme Court, O 66 r 12(1), O 66 r 13(c)
Result:
Application for special costs order granted in respect of certain items
Category: B
(Page 3)
Representation:
Original Action
Counsel:
Plaintiff : Mr D J Garnsworthy
Defendant : Mr S V Forbes
Solicitors:
Plaintiff : J D Finlay & Co
Defendant : Phillips Fox
Counterclaim
Counsel:
Plaintiff by Counterclaim : Mr S V Forbes
First Defendant by Counterclaim : Mr D J Garnsworthy
Second Defendant by Counterclaim : Mr D J Garnsworthy
Solicitors:
Plaintiff by Counterclaim : Phillips Fox
First Defendant by Counterclaim : J D Finlay & Co
Second Defendant by Counterclaim : J D Finlay & Co
Case(s) referred to in judgment(s):
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122(S)
Green v Wilden Pty Ltd [2005] WASC 83
Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237
SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2)
Tipperary Developments Pty Ltd v The State of Western Australia [2006] WASC 137
Townsend v Collova [2005] WASC 4(S)
(Page 4)
- SIMMONDS J:
Introduction
1 This is an application, by the plaintiff, made pursuant to the liberty to apply provided for in my judgment following the trial of this action, for certain orders as to costs. The case for those orders is said to rest, at least in large part, as to most of the orders sought, on the issues of complexity of fact and law relied upon in the material filed in support of the application.
2 In the argument before me, and in the material in support of the application, those orders were referred to as special orders as to costs. I will consider below whether or not that is an adequate description.
3 I begin this judgment by briefly describing by way of background the action and my judgment in it, as well as the orders on that judgment. In that description I will highlight those matters that may be of significance to the plaintiff's case for the orders he seeks. I would emphasise, however, that, as is not uncommon in judgments on applications for special costs orders following judgment, this judgment is meant to be read with the judgment in the action.
4 I will then describe the present application and the material filed in support of it.
5 I will proceed from there to rehearse the principles applicable to the application. In particular, I will need to consider the nature of my jurisdiction. As will become apparent, that is a matter of some nicety that is of importance in this case. In addition, I will consider the approach to the exercise of my jurisdiction that has been followed in other cases.
6 I will then apply the principles I have described to the plaintiff's application.
7 The concluding section of this judgment is my orders.
Background
8 The action was commenced by writ of summons on 13 February 2001. It was an action arising out of the provision to the plaintiff and his wife by the defendant, an architect and licensed builder, of architectural and building services. Those services were in relation to the construction of a new residence, which began in about December 1999. Construction of the residence was halted in or about September 2001, when the plaintiff
(Page 5)
- had exhausted the funds he could secure for the purpose. Subsequently, in October 2003, settlement occurred on the resale of the house and land for an amount that recouped the costs of construction and the land on which the house sat, as well as the costs of certain chattels the plaintiff and his wife had bought for the house, while yielding a modest surplus.
9 The plaintiff acquired the rights of his wife, and commenced action claiming relief for damages for defects in the architectural and building services provided. The defects pleaded were in relation to advice as to the cost of the work and the time taken for its completion. Liability was referred to breach of contract, contraventions of the Trade Practices Act 1974 (Cth) and the Fair Trading Act1987 (WA), and negligence. The statement of claim and defence and counterclaim were both amended at least once before trial. By trial the plaintiff had abandoned one of its claims for damages and the defendant's counterclaim had been dismissed. At trial I gave leave to amend the re-amended statement of claim.
10 Prior to trial, by notice dated and filed 23 December 2004, the plaintiff called on the defendant to admit the facts over some six pages. By the end of the trial, I was told that the defendant did not require a number of those matters to be proved.
11 The trial commenced on 15 August 2005, and went for several periods, ending on 30 August 2005 and totalling 12 days. The trial involved the calling of 15 witnesses, including a number of experts on the practice of architecture and on home building. More than 484 documentary exhibits were tendered by the parties, including 219 by the plaintiff. My judgment was given on 27 October 2006, and ran to 114 pages. On 6 December 2006, there was a further hearing for me to take submissions on the date from which the entitlement of the plaintiff which I determined should run.
12 The issues at trial which my judgment identified were:
• Whether or not a cost estimate for the house project had been made on which liability might rest;
• What the cost estimate or estimates, if any, covered;
• Whether the cost estimate was borne out;
• Whether the cost estimate was negligently made;
(Page 6)
- • What loss or damage, if any, was caused by the cost estimate;
• Whether the making of the cost estimate was misleading or deceptive conduct;
• Whether the plaintiff and his wife acted unreasonably or failed to mitigate their loss in relation to the cost estimate;
• What was the measure of the loss or damage of the plaintiff and his wife in respect of the cost estimate;
• Whether there was a loss or damage by a failure to inform the plaintiff and his wife of certain matters;
• Whether there was loss by a cost estimate representation as to certain walls for the house;
• Whether there was a representation as to the completion time for the house;
• Whether there was liability for any defective drawings done for the house; and
• Whether the claim for pre-judgment interest should be allowed.
13 In my judgment, given on 27 October 2006, Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237, I found for the plaintiff on most, but not all, of these issues. The findings for the plaintiff were the following.
14 I found for the plaintiff in relation to the issues of whether there was a cost estimate for the house project which was not borne out, was negligent, and was a contravention of the Trade Practices Act and Fair Trading Act provisions relied upon. Loss or damage had been caused by the cost estimate which was to be measured by reference to the loss of an opportunity to make an alternative house construction contract, and the plaintiff and his wife had not acted unreasonably or failed to mitigate their loss in relation to the cost estimate such that the plaintiff’s damages should be reduced on that account, while certain items, but not others, should be included in those damages, as costs of mitigation. In effect, of the 12 issues listed, the plaintiff was successful in whole or in part on all but three of them. As to one of those three, that of a cost estimate as to certain walls of the house, many of the matters raised there were relevant
(Page 7)
- to other issues on which the plaintiff was successful: see Hodgkinson (supra), at [371], read with [146] to [158].
15 In view of the conclusions at which I had arrived, involving partial success for the plaintiff, my judgment invited the parties to make submissions to me about the appropriate orders to make arising out of my reasons. In particular, having determined the plaintiff should have pre-judgment interest on his damages, I allowed for further submissions on a date from which the claim should run other than that put forward by the plaintiff. At a further hearing on 7 December 2006 after hearing submissions from both counsel I determined that the date should be a later one than the plaintiff had contended for.
16 In the event, at the conclusion of the hearing on 7 December 2006, I determined that judgment should be given for the plaintiff in terms that:
• The defendant pay the plaintiff $429,870.96 and interest thereon;
• The defendant pay the plaintiff's costs of the action including any reserved costs to be taxed with a direction that the Taxing Officer make a reasonable allowance for Senior Counsel and for the cost of the transcript;
• The plaintiff have liberty to apply for any special costs orders or directions within 30 days of the order; and
• There be liberty to apply for both parties in any other respect.
17 Subsequently, the parties agreed on a sum for interest, in the amount of $90,013.56, which the plaintiff wished to incorporate into the terms of the judgment.
18 I was told at the hearing that the present application was not to finalise the judgment, which the parties understood to have been extracted, but was rather pursuant to the second last item just listed. I should add that it was not my impression that the judgment had been extracted. However, I do not go further into the matter for the purposes of this judgment.
19 These reasons are concerned with the special costs orders applied for.
(Page 8)
The present application and its supporting material
20 On 22 December 2006 an affidavit of John David Finlay was filed at the Court under cover of a letter from Mr Finlay's firm. The letter said that "the affidavit was sworn in support of an application for special orders as to costs" pursuant to the "leave granted" by me.
21 I am informed by the solicitors for the plaintiff that on 19 January 2007 the central office of the Court informed them the only documents the central office had in respect of the application were the annexures to that affidavit, "JF1" to "JF6", and the cover letter.
22 On 24 January 2007 a fresh affidavit by Mr Finlay, sworn on 23 January 2007, with its annexures "JF1" to "JF6" (the "Finlay affidavit of 23 January 2007"), was filed. I am told this is the text of the affidavit with the same annexures that the solicitors believed they had filed on the earlier date. In any event this is the only supporting material on which there was reliance for the plaintiff at the hearing before me on the present application.
23 Annexure "JF6" to the Finlay affidavit of 23 January 2007 is a draft minute of costs orders. At the hearing this was replaced by a minute of orders (the "minute of orders") that made a number of minor corrections to the earlier document, and has the following proposed orders, embodying further corrections made at the hearing:
1. A direction that the taxing officer make reasonable allowance for the fees of senior counsel including fee on brief and refresher.
2. Orders that the limits of any relevant determination not apply to:
a. Taking reserved decision;
b. Arguing costs including submissions;
c. Getting up case for trial;
d. Statement of claim;
e. Giving particulars of the amended reply
f. The costs of attending an informal conference with a direction to the taxing officer to make reasonable allowance for the costs of both senior counsel and instructing solicitor attending and preparing for that conference.
(Page 9)
- 3. The plaintiff be awarded reserved costs;
4. A direction that the taxing officer make reasonable allowance for the cost of opening and closing submissions prepared by senior counsel in addition to any other allowance that may be available by reference to the relevant scale.
5. An order that the plaintiff recover his costs of this application to be agreed or taxed as an application in chambers.
24 At the hearing, Mr Garnsworthy noted that proposed orders 1, 2a and 2b, and 3, were unnecessary, in view of the orders on judgment. I agree.
25 In the Finlay affidavit, there is a reference to annexure "JF1" as a draft bill of costs prepared by Mr Garnsworthy showing the maximum remuneration available on the relevant scale (there are several such, as I will explain), and "the costs actually incurred and which will be claimed if the orders sought are granted" (par 6). After referring to the plaintiff's payment of the deponent's fees pursuant to "a costs agreement in writing", and of senior counsel's fee notes, the deponent says (par 12):
"[i]n further support of the application … that the remuneration available on scale is inadequate and to a significant degree, having regard to issues of complexity of fact and law."
26 The deponent goes on to list 17 "factors" by which "that complexity is illustrated". The 17 factors are:
a. The length of the trial and the date of the delivery of the judgment;
b. The length of the judgment;
c. Analysis of the law relating to damages arising from a cost estimate not prepared with care and skill;
d. The failure of the plaintiff [sic the defendant] to respond to a notice to admit facts which is annexure "JD5", until "late in the proceedings";
e. The necessity to proof the plaintiff exhaustively concerning event, meetings and conversations between March 1999 and October 2001;
f. Analysis of the agreement in writing between the plaintiff and the defendant;
(Page 10)
- g. The number of witnesses called by each party;
h. The proofing of each witness for the plaintiff by the deponent;
i. The nature of the case, as one requiring the proper and careful briefing of expert witnesses;
j. The eight witness statements produced for the defendant in relation to which senior counsel prepared notices of objection;
k. The extent of the document management having regard to the number of documents tendered in evidence by the parties;
l. The greater attention to detail required in relation to the facts to an extent not usually encountered at trial;
m. The preparation of detailed opening and closing submissions by senior counsel, prepared during or immediately after the hearing in addition to mastery of the brief and conduct of the trial;
n. The statement of claim, which received the attention of both senior and junior counsel as to the damages claim, was generally a document needing greater than usual attention "having regard to the level of detail";
o. The answers to the request for particulars of the amended reply involved giving greater detail than contemplated by the scale allowance, with six pages of additional particulars given in relation to question 6;
p. The informal conference on 6 April 2005 which lasted for three hours and was attended by all parties, additional time being spent by senior counsel and the deponent in preparation for the conference; and
q. Counsel fees for a subsequent day of trial related to work done by both senior and junior counsel over an intervening weekend during the hearing of the action.
27 I turn now to consider the applicable principles which should guide the consideration of the case for special costs orders.
(Page 11)
The principles applicable to this application
28 The matter of my jurisdiction to make the orders sought is not altogether straightforward. However, both counsel agreed it was under Legal Practice Act 2003 (WA), s 215, which reads:
"215. Effect of determination
(1) Subject to sections 221 and 241 of this Act and section 14 of the Legal Aid Commission Act 1976 –
(a) the taxation of bills of costs of legal practitioners, as between legal practitioner and client or party and party;and
(b) any other aspect of the remuneration of legal practitioners the subject of a determination,
is regulated by a legal costs determination in force under section 210.
(2) Despite subsection (1), 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 unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following –
(a) order the payment of costs above those fixed by the determination;
(b) fix higher limits of costs than those fixed in the determination;
(c) remove limits on costs fixed in the determination;
(d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or taxed.
(3) Nothing in subsection (1) is to be construed as limiting the power of a court, a judicial officer or a taxing officer of a court to determine in any particular case before that court or judicial officer the amount of costs allowed.
- (4) If a legal costs determination is in force under section 210 in respect of any business referred to in section 210(2), any other subsidiary legislation fixing or purporting to regulate the remuneration of legal practitioners in respect of that kind of business is of no force or effect."
29 It has been held that, since the coming into force of the Act, on 1 January 2004, this provision has displaced the former source of the Court's jurisdiction, in O 66 r 12(1), which was a wider provision: SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2), Roberts-Smith J (as he then was), at [97] - [98], followed in Green v Wilden Pty Ltd [2005] WASC 83, Hasluck J, at [180] and [181]; see also Tipperary Developments Pty Ltd v The State of Western Australia [2006] WASC 137, Murray ACJ, at [45]. However, I also note Townsend v Collova [2005] WASC 4(S), Le Miere J, at [48], in which his Honour applies O 66 r 12(1) in respect of a judgment pronounced on 14 January 2005, and does not refer to Act, s 215.
30 I further note that O 66 r 12(1) was itself repealed effective 1 March 2007.
31 However, I consider I do not need to determine whether or not that repeal determined the principles upon which I should proceed. I so consider in view of the conclusions in SDS Corporation (supra) to which I have referred, and the first of two further points I take from that decision which I reach next.
32 There are two points to be noted about the Act, s 215, that are or may be relevant to me. First, s 215 governs any application for special orders made in respect of a right to costs that arose after the date of the coming into force of the Act, whether or not the subject matter of the special order was work done or payments made before that date, and such a right arises when the judgment awards costs: SDS Corporation (supra), at [99], [100]. That arose in this case at the earliest when, on 7 December 2006, I indicated the terms of the judgment order for costs.
33 The second point for me to note about s 215 was also considered in SDS Corporation (supra). That point is whether "unusual" in s 215(2) qualifies "complexity" as well as "difficulty". In SDS Corporation Roberts-Smith J at [102] - [106] considered the issue, and concluded that "unusual" qualified "difficulty" only. This conclusion appears to be followed by Hasluck J in Green (supra), at [182]. I consider it is the correct view, for the reasons indicated in the former judgment. In any
(Page 13)
- event, in the face of the support it has commanded in this Court thus far, I propose to follow it.
34 The authorities I have cited thus far appear to be the most recent on the making of special costs orders under s 215. I put aside Townsend (supra)for this purpose, as it did not involve any consideration of s 215. I will return to that case in another context, below.
35 The authorities decided under s 215 also have the advantage for me of drawing on the authorities on making such orders under prior law, to the extent those authorities continue to be relevant. What further relevant guidance do the more recent authorities, and the earlier authorities they refer to, offer?
36 A most useful short description of some of the lessons of the prior decisions is in Green (supra), Hasluck J, at [182]:
"There is no reason why the amount of work involved in the preparation of a case cannot of itself show that the costs allowable by a legal costs determination are inadequate: see Schmidt v Gilmour [1988] WAR 219. In complex litigation it may be necessary to supply detailed affidavit evidence to support an application for an order increasing the scale allowance: Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1994) 13 WAR 242 at 248."
37 The relevance of the adequacy determination lies in the requirements for a special costs order that rests on complexity. Those requirements are that, for the subject matter of each such order, as follows, from SDS Corporation (supra), Roberts-Smith J, at [106]:
"(a) the amount of costs allowable under a Determination is inadequate;
(b) because of:
…
(ii) the complexity …
of the matter."
(Page 14)
- orders (such an order is not sought here), also contains a valuable discussion of the jurisdiction under O 66 r 12(1), and in both respects was referred to with approval in TipperaryDevelopments (supra), Murray ACJ, at [38].
39 Of particular relevance to me from Flotilla Nominees (supra) are Pullin J's references to the claim for a special costs order to lift the hourly rate above that provided for in the scale, or to lift the hours provided in the scale, or a combination of the two (at [22], [23]):
"Secondly, a special costs order might be made in relation to the hourly rates provided for an item in the scale. An hourly rate might be thought to be too low for some reason. A special costs order will not be necessary if the amount to be claimed is no more than the maximum dollar amount specified for that item. So, for example, item 8(b) [of The Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996], which relates to the giving of particulars of a pleading, provides for a maximum dollar amount based on the assumption that a junior practitioner will carry out the work and take up to five hours to complete such work. It is quite proper on taxation under that item to show that a senior practitioner did the work, but in that case the senior practitioner in the ordinary case would have to complete the work in less than five hours to stay within the dollar limit specified in the scale for that item. If a successful party considers that much more than five hours had to be spent on the task and believes that it can be demonstrated that this was reasonably necessary on a taxation, and also wishes to demonstrate that all of the work was performed by a senior practitioner and that the remuneration should be at the senior practitioner's rate, then a special costs order should be sought. The order that might be sought might be that the 'costs in relation to item 8(b) be taxed without regard to the limit in the scale and that the costs be taxed at the senior practitioner's rate' (or "at the rate of $x per hour"). The need for an order of this sort would be necessary if a costs agreement under s 59 of the Legal Practitioners Act [Act, s 221] has been entered into by the successful party, the hourly rates in the agreement are higher than in the scale, and the party wishes costs to be taxed at that rate. However, the details of the agreement, and in particular the hourly rate which the party applying for a special costs order wants to apply, should be disclosed when the application is made. In my opinion, it is not correct for a party
(Page 15)
- to seek an order lifting limits in the scale without disclosing to the Judge the details of the agreement or the hourly rate which the applicant wants to use on taxation (and only later inform the taxing officer of the rate). I should also add that there should be no expectation that, as a matter of course, rates in the costs agreement which are above scale will be ordered to be the rates to apply in taxation as between party and party. There would have to be evidence justifying the higher rate. The whole point of the existing scale is that the rates are struck by reference to what is being charged within the profession. It is true that the hourly rates can only be an average or mean of the upper rates determined in the survey, and there will be some cases where the unusual complexity or importance of the case warrants the special expertise of the practitioner involved and warrants an increase in the hourly rate. In some cases not involving unusual complexity or importance, the higher rates paid will not be recoverable. A party is always entitled to the luxury of retaining the highest paid practitioners in the conduct of their case, but they cannot always expect to recover these costs from the other party. If the hourly rates in the scale are thought by parties or practitioners to be too low for work which is not of unusual complexity or importance, then submissions should be made to the Legal Costs Committee to increase the rates in the scale.
Thirdly, the successful party might contend that the time allowed for performance of the work is inadequate. Say, for example, the time allowed for giving particulars of the pleading in item 8(b) is said to be five hours. If this is considered to be inadequate and there is no wish to seek an increase in relation to the hourly rate, then the appropriate order is to ask that the amount be lifted or taxed without regard to the limit. If that is the only order made, then, in my opinion, the taxing officer should tax on the assumption that above the maximum amount allowed by the scale, the hourly rate will be that fixed by the scale."
40 Before me, counsel for the plaintiff, Mr Garnsworthy, indicated none of the orders he sought were intended to uplift the relevant hourly rate. Rather, he was seeking to have the costs determination made without the taxing officer being constrained by the relevant scale limits on hours.
(Page 16)
41 However, as I will indicate, I consider that some of the orders he seeks do indeed go to allowing for an uplift of the hourly rate.
42 Informed by Flotilla Nominees (supra), I am of the view that both the intention as Mr Garnsworthy described it, and the further consideration I have just described, should (where relevant) shape any special costs orders in this case.
43 I note that the reference to disclosure of the terms of any costs agreement in the quotation above needs to be read in the context of Pullin J's consideration of the evidentiary basis for the making of a special costs order. Where the applicant is seeking such an order in relation to the hourly rate the subject of the costs agreement, and is relying on the costs agreement in which such a rate is stipulated for, it would be necessary to provide that rate to the Court.
44 However, in my view, that does not amount to a general requirement for disclosure of the terms of a cost agreement, even in a case where an uplift of the hourly rate is sought. So to suggest would be contrary to SDS (supra), Roberts-Smith J, at [58] – [62]. Thus, the evidence for a higher hourly rate relied upon may be elsewhere, as in the nature of the issues raised by the action as it progressed coupled with the fact of payment of the higher rate.
45 I also note the reference from Flotilla Nominees (supra) to the relevance of the overriding significance of the reasonableness of the time said to be expended in relation to a particular item claimed in a bill of costs as follows (Pullin J, at [28], [29]):
"The test of reasonableness will apply even where there is a costs agreement. Unreasonable costs, or costs unreasonably incurred, will not be recovered under an indemnity costs order. Nor will they be recovered under a special costs order. Having referred to the proposed order in Tetijo's case [Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd, unreported; Fed Ct of Aust; 3 May 1991], counsel for the plaintiff then took me to the case of Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, which was a case in which Malcolm CJ would have made a special costs order but for delay in making the application. In his reasons for decision, the Chief Justice said:
'The making of such an order would in no way limit the decision of the Taxing Master to determine whether any particular item of work, the subject of the defendant's bill of
- costs for taxation, was reasonably necessary for the purposes of the case, or whether any particular item of costs or disbursements was necessarily or reasonably incurred in connection with the litigation.'
- From this the plaintiff submitted that in relation to the special costs order, not only was the test of reasonableness applied but, in addition, the costs were scrutinised to determine whether they were "necessarily" incurred in connection with the litigation. I do not interpret the Chief Justice's judgment as introducing some additional test in relation to the taxation of costs under an order pursuant to O 66 r 12(1). In my view, work which has been performed which was not 'necessarily incurred' in connection with the litigation would be costs not "reasonably incurred"."
46 I further note the following from Flotilla (supra), Pullin J at [43], with respect to the general approach to an application like the one before me:
"I am required to draw on my own experience, to act on impressions gained during the litigation, and to take into account the issues which have been involved. See Esther Investments Pty Ltd v Markalinga Pty Ltd (supra) at 404. I am very conscious of the need not to fall into the trap of making an estimate of the time which I consider would have been spent on the tasks, when I do not have all information before me to make the judgment."
47 See also SDS Corporation (supra), Roberts-Smith J, at [162]:
"The effect of a special costs order does not impede the discretion of the taxing officer. Where made, the order merely allows the officer to consider the charges made beyond the scale limit. It remains entirely for the exercise of the taxing officer's discretion to determine whether or not they should be allowed as being reasonable charges for work necessarily or reasonably done."
48 I return to the latter quotation at a number of points below.
49 Finally, in respect of s 215, I note that the draft bill of costs provides for recovery against the item in the scale established by Legal Costs Committee under the relevant legislation (the Legal Practitioners Act
(Page 18)
- 1893 (WA), s 58W, or the Act, s 210, as the case may be) that appears to be the scale in force at the time the work claimed for was done. The scales that appear to be so used are the 1999, 2002, 2004, and 2006 Determinations. It is possible, for the reasons given in Tipperary Developments (supra), Murray ACJ, at [44] – [46], to make an order under Act, s 215(2), in litigation extending over the sort of time period of this litigation, to make just one of the Determinations applicable to all of the work claimed for. I consider this would be possible even if the matter were not otherwise a complex one. However, no such order is sought here.
50 I should also note that the application before me includes a request for a costs order in respect of the present hearing. My attention was drawn to O 66 r 13, which reads as follows:
"In any matter or case to which any relevant scale does not apply, the Court may –
(a) award a lump sum by way of costs;
(b) direct the Taxing Officer to tax or allow costs analogous to those allowable under the said scale;
(c) direct the Taxing Officer to tax and allow reasonable costs."
51 It was explained to me that the application in that respect is brought under O 66 r 13(c), to avoid the present application being dealt with as part of 2006 Determination, item 19(g) (attending on reserved judgment). I return to this below.
Application of these principles in this case: the matter of complexity
52 As Mr Garnsworthy put to me, this is a matter of pervasive significance to his submissions for each of the special costs orders he seeks. The complexity on which he relies is both of the factual and the legal kind.
53 At the hearing before me Mr Garnsworthy drew to my attention the number of factual issues raised at the trial, which I have previously enumerated. I agree that the case was factually complex, involving as it did accounting for an evolving house design over the time leading up to and the time of its construction until that construction was halted. As the trial Judge, my experience was that this posed considerable challenges in evidence marshalling, presentation and testing.
(Page 19)
54 Mr Garnsworthy in his written submissions referred to the failure by the defendant until late in the trial to admit facts put to the defendant by the notice to admit of 12 December 2004. This put the plaintiff to the cost of preparing to prove the facts. However, before me in oral argument, he noted that this point was not pressed as a reason for a special costs order, in view of the award of costs to the plaintiff. This was except as a (partial) response to the defendant's argument, which I am about to reach, that the defendant's partial success was a reason not to make a special costs order of any of the sorts still pressed.
55 There is, of course, special provision, in O 66 r 3(2), for costs where a notice to admit is served under O 30 r 2 and a party "refuses or neglects to admit the facts within 7 days". In that case, "the costs of proving the facts shall be paid by him, unless the Court otherwise orders".
56 Here, the facts did not have to be proved, by reason of the concessions by the defendant at the trial. It might then be said that the requirement of the Rule is not engaged: the plaintiff has not succeeded at trial on that issue. That notwithstanding, it seems to me that the principle behind the rule would suggest that a special costs order for the plaintiff's costs of proving those issues would normally be appropriate in a case of a late admission, or at least one as late as those in this case, even if the defendant were otherwise successful. See Townsend (supra), at [20].
57 Here, of course, the plaintiff was successful, and will receive its costs in any event. Nor was there any apportionment by reference to the issues on which the plaintiff had not been wholly successful.
58 However, as counsel for the defendant put to me, this does not go to special costs. In this respect my attention was drawn to Townsend (supra), where Le Miere J said this (at [58]):
"There is a further and independent reason why I would not in any event make a special costs order. The defendants did not succeed on all the issues at trial. The plaintiffs succeeded on a substantial number of issues. In those circumstances, I would not in any event make a special costs order in favour of the defendants."
59 In that case, the original costs order Le Miere J, the trial Judge in Townsend, had indicated he would make had been for the plaintiff to pay the second and third defendants' costs, to be taxed. However, before those orders including that costs order had been drawn up, settled or extracted, the defendants called for another of the orders to be reconsidered, while
(Page 20)
- the plaintiff sought to have the costs order scaled down to 75 per cent of the defendants' costs, to reflect the plaintiff's success at trial. Le Miere J indicated that he had jurisdiction to consider such applications: Townsend, at [5].
60 In the event, the costs order was changed to one requiring the plaintiff to pay three-quarters of the costs of the second and third defendants, to be taxed.
61 In this case there was argument directed to me at the hearing of the orders on judgment to making an order to apportion the costs of the action by relative success. I had rejected that argument, and indicated I would make the order I did. Counsel for the defendant did not indicate any intention to contest that order, assuming it was contestable: on the contesting of orders before they are drawn, settled and extracted, see Townsend (supra), Le Miere J, at [5].
62 I had so determined on the basis for the degree to which the plaintiff had been successful. In my view, that degree is greater than the corresponding success of the defendant in Townsend (supra). In particular, in this case, the plaintiff's success was on the principal issues relevant to the claims put forward in the statement of claim as amended. Those were in my view overwhelmingly the principal issues, in terms of the complexity of the evidentiary issues they posed, and the complexity of the legal issues they raised, and thus in terms of the trial time they consumed.
63 I do not consider that substantial costs were incurred by reason of the plaintiff's introduction of the issues on which it was not wholly successful. Indeed I did not understand the defendant to contend that it had been successful on a "substantial" number of issues. While one of those issues on which it had been successful, as to completion time, was one that did involve some significant trial time, and, I am prepared to conclude, out of court time and other costs, I do not consider that the costs involved would be "substantial" (Townsend (supra), at [16]) such that any special costs orders should be denied on that account. Further I note that in that case the costs involved were such that the successful defendants there were granted only 75 per cent of their costs without any special costs order.
64 Thus, I do not consider I have to go any further into the notice to admit.
(Page 21)
65 Mr Garnsworthy also referred to the complexity of the argument as to the law in relation to damages. That required some attention in my judgment: see Hodgkinson (supra), at [339] - [365], applying the law as I considered it to be for a case where the plaintiff had recouped costs and indeed made a small profit (before certain other costs were taken into account). The principal discussion of that law is in the judgment at [288] – [296]. Although that did not require the discussion of more than two authorities, it required close analysis of them. I do not consider legal complexity entails a multiplicity of authorities.
66 Counsel for the defendant put to me there was nothing unusually complex in the action, either factually or legally. However, this seems to me to introduce a qualification on complexity which the authorities I previously discussed do not support and SDS Corporation (supra) rejects.
67 I consider there is complexity in this case such that a special order might be made in respect of subject matter for which there is evidence of the inadequacy of the Scale allowance which was due to that complexity.
Application of these principles in this case: getting up case for trial
68 Mr Garnsworthy confirmed this to be a claim by reference to the entry in the draft bill of costs, Items 35, 36 and 37, and the references there, to what the material I am about to reach confirmed were the relevant scale items. Those items were, under the 1999 Determination, Item number 13; under the 2002 Determination, Item number 13; and, under the 2004 Determination, Item number 16.
69 There is a reference at each Item in the draft bill of costs to a Sch 4 which describe the work done, "including but not limited" to the listed activities, and setting out tables (each called a "Part"), one for each of the 1999, 2002 and 2004 scales, the fee earners, hours, rates and totals, with totals in each of the tables corresponding to the amounts shown for Items 35, 36 and 37, respectively.
70 I note that the total of the amounts across Items 35, 36 and 37 is $77,258.40, which compares with the highest total under any of the three scales for "Getting up case for trial … (includes work reasonably and necessarily undertaken prior to commencement of proceedings)", that under the 2004 Determination, of $34,100.
71 The amount for each of Items 35 and 36 appears, from the draft bill of costs and schedule 5, to be the product of the hourly rate of the deponent as a senior practitioner and the number of hours worked, where
(Page 22)
- that hourly rate is less than the amount allowed a senior practitioner by the relevant scale, and the number of hours worked is less than the maximum number provided for by the scale item.
72 Item 37 is, however, the product of the number of hours worked by senior counsel, by the deponent, by another senior practitioner and by a clerk, where the hourly rates for each of these is below the relevant maximum provided for in the scale under the 2004 Determination, but the total of the hours worked by all of them (and in the case of one of the senior practitioners, the deponent, the total worked by him) exceeds the maximum allowed by scale. The resultant product is shown in the Finlay affidavit of 23 January 2007, annexure "JDF1", Sch 4, Pt C, as $55,786.30.
73 I have set out a table to summarise the matters I have just described, below:
1999 Scale: 100 hours, SP$270 Max (on 25.9 hours) $6,993.00 |
|
|
|
|
| $6,837.60 | |
2002 Scale: 100 hours, SP $313, Max (on 45.8 hours) $14,335.40 |
|
| |
|
| $14,610.20 | |
2004 Scale: 100 hours, SP $341, Max (100 Hours) $34,100.00 |
|
| |
|
| $10,927.50 |
(Page 23)
|
| |
|
| $42,374.25 |
|
| |
|
| $292.60 |
|
| |
|
| $2,574.00 |
| TOTAL | $77,616.15 |
74 I should note that some of my figures above do not tally with those shown in the Finlay affidavit of 23 January 2007, annexure "JDF1", Sch 4. The discrepancies are the following.
75 I note the figure for 2004 shown above for the senior counsel is slightly higher than the corresponding figure, in the Finlay affidavit of 23 January 2007, annexure "JDF1", Sch 4, Pt C, of $10,927.20. Mr Garnsworthy explained this simply as a mathematical error.
76 I also note the figure for 2004 shown above for the first senior practitioner, of $42,374.25, which is the product of $330 per hour and 127.25 hours, is different from the corresponding figure shown in the Finlay affidavit of 23 January 2007, annexure "JDF1", Sch 4, Pt C, which is $41,992.50. Mr Garnsworthy appeared to explain this as a mathematical error.
77 I also note that the total shown in the Finlay affidavit of 23 January 2007, annexure "JDF1", Sch 4, Pt C, of $77,258.40, is different both from the total shown above, and also from the total of the component figures shown in the Schedule, which should be $77,234.40. Mr Garnsworthy again appeared to explain this as a mathematical error.
78 However, it will be seen that, whatever is the correct figure, it represents a claim that is substantially higher than that allowed for under
(Page 24)
- the most recent Determination, that of 2004. The difference is accounted for by the much larger number of hours (250.85 hours) than the maximum allowed for getting up, under all of the relevant Determinations (100 hours, as I have indicated), as well as the inclusion of a claim for Senior Counsel's work, where the relevant Determination (2004 - indeed all Determinations) refers to the work of a senior practitioner. The effect of the larger number of hours is offset somewhat by the lesser hourly rates, than those allowed for a senior practitioner under the relevant Determination, for all of the others who participated in the getting up.
79 I consider there is sufficient evidence of the inadequacy of the relevant scale item, considered as the 2004 Determination, item 13.
80 I also consider there is sufficient evidence, in the Finlay affidavit of 23 January 2007, with my appreciation of the trial, that this was due to the complexity of the case as I have described it. My appreciation of the case is, of course, that deriving from my experience as the trial Judge: see on the relevance of that experience SDS Corporation (supra), Roberts-Smith J, at [148].
81 However, counsel for the defendant, Mr Forbes, put to me that there was insufficient evidence of the costs of getting up because the work described under that head in Sch 4 is not tracked into any of the accounts. I took this to be a reference to all of the fee earners concerned.
82 However, I do not consider that such identification is required. In my view, it is sufficient that a person who may be expected to know the allocation of work between those who have rendered accounts has provided evidence of the sort contained in the Finlay affidavit of 23 January 2007 that they have done that work, at the rates indicated. Mr Finlay was the solicitor for the plaintiff at least from shortly after the writ was issued, but not before that issuance. In that respect, both parties agreed, the Finlay affidavit of 23 January 2007, par 10, needed to be corrected, and was so treated before me.
83 I note that my determination of the work done and its cost is of the kind described as "essentially preliminary and provisional in nature for the purpose of the exercise of the discretion" in Esther Investments (supra), Malcolm CJ at 404.
84 I consider that a special costs order is appropriate for getting up the case for trial, to the effect that the limits of any relevant determination as to hours or hourly rate not apply. See Flotilla Nominees (supra), per Pullin J, as to this form of order where work above the maximum
(Page 25)
- involving work done by a fee earner at above the hourly rate provided for is involved.
85 I note, however, the point from SDS Corporation (supra), Roberts-Smith J, at [162] on the power of the taxation officer.
Application of these principles in this case: statement of claim
86 I took this to be a claim by reference to the entry in the draft bill of costs, Item 2, for work done in 2001 on the statement of claim, and the relevant scale item, that under the 1999 Determination, Item number 6a; and draft bill of costs, Item 7, for work done in December 2003 and April 2004 on the amended and re-amended statements of claim, and the relevant scale item, that under the 2002 Determination, Item number 6a.
87 I need to deal with the two draft bill of costs items both separately and together.
88 In relation to draft bill of costs, Item 2, the relevant item in the 1999 Determination allows for a maximum of 10 hours at the senior practitioner hourly rate of $270 or a total of $2,700.
89 The draft bill of costs, Item 2, shows $3,229.60.
90 From the document "Summary 1" part of annexure "JF1" to the Finlay affidavit of 23 January 2007, it is indicated the basis for the claim is work of 11.74 hours at what appears to be the hourly rate for the deponent, the fee earner, of $275.09.
91 Both the claim's work hours and hourly rate are then above the 1999 Determination.
92 Mr Garnsworthy drew my attention to the description in "Summary 1" of the "[w]ork performed in relation to the statement of claim including" the listed items.
93 It seems to me that Summary 1 describes work done and paid for which shows the inadequacy of the scale item.
94 I also consider there is sufficient evidence, in the Finlay affidavit of 23 January 2007, with my appreciation of the trial, that this was due to the complexity of the case as I have described it.
95 It is the case that the difference is not very great between the scale allowance and the claim, and that this would incline me against making
(Page 26)
- the order if it rested on that difference alone: SDS Corporation (supra) Roberts-Smith J, at [151].
96 However, the difference claimed is greater than that indicated simply by that comparison, as there is another Item in the draft bill of costs of which I am asked to take account.
97 In relation to draft bill of costs, Item 7, the relevant item in the 2002 Determination allows for a maximum of 10 hours at the senior practitioner hourly rate of $313, or a total of $3,130.
98 The draft bill of costs, Item 7, shows $5,777.20, made up of counsel fees of $3,665.20 and solicitor's fees of $2,112.00.
99 From the document "Summary 2" part of annexure "JF1" to the Finlay affidavit of 23 January 2007, it is indicated the basis for the claim is 7.7 hours of the deponent's work at what appears to be the hourly rate of $274.29; and 11.9 hours of counsel's work, at what appears to be the hourly rate of $308.00.
100 Here, the claim's work hours are above, but its hourly rates are below, the 2002 Determination.
101 I consider that Summary 2 shows the inadequacy of the relevant scale item. I consider there is sufficient evidence, in the Finlay affidavit of 23 January 2007, with my appreciation of the trial, that this was due to the complexity of the case as I have described it.
102 Finally, when draft bill of costs Items 2 and 7 are aggregated, the total is significantly greater both than the largest allowance under the relevant scales (under the 2002 Determination) or the aggregate of the allowances under the relevant scales (under both the 1999 and the 2002 Determinations).
103 Counsel for the defendant, Mr Forbes, put to me that no special costs order was appropriate on the material before me, as the statement of claim was once and for all work that should be taken to include all amendments. The work done here on the evidence before me was due to amendments. Further, none of the amendments was shown to be due to activity of the defendant, but rather at best changes of circumstance and at worst corrections of errors in the original drafting. Finally, complexity in the facts and law would not necessarily find reflection in the statement of claim.
(Page 27)
104 I do not agree with any of these propositions.
105 It seems to me that a case's factual complexity, including complexity relevant to a complex legal issue might emerge or intensify over the time following the preparation of the statement of claim, necessitating amendments. It is not a matter of allocating fault to the party responsible for costs. The nature of the other party's case may be such that there is the need for the relevant drafting, of the original document or any amendments, which entails the costs in question.
106 Accordingly, I consider a special costs order is appropriate for the statement of claim, to the effect that the limits of any relevant determination as to hours not apply. See Flotilla Nominees (supra), per Pullin J, as to this form of order where work above the maximum involving work done by a fee earner at or below the hourly rate provided for is involved.
107 Again, I note the point from SDS Corporation (supra), Roberts-Smith J, at [162] on the power of the taxation officer.
Application of these principles in this case: giving particulars of the amended reply
108 I took this to be a claim by reference to the entry in the draft bill of costs, Item 9, for work done in September 2004, and the reference there to the relevant scale item, that under the 2004 Determination, Item number 6b.
109 The scale item allows for a maximum of five hours at the junior practitioner hourly rate of $231, or a total of $1,045.
110 The draft bill of costs shows a claim for $1,896.40.
111 From the document "Summary 3" part of annexure "JF1" to the Finlay affidavit of 23 January 2007, it is indicated the basis for the claim is work of 6.9 hours at what appears to be the hourly rate for the deponent, the fee earner, of $274.84.
112 Thus, there is a claim for a higher number of hours at a higher hourly rate than the maximum allowed under the scale.
113 Mr Garnsworthy drew my attention to the description in "Summary 3" of the "[w]ork performed in relation to the Plaintiff's Answers to Defendant's Request dated July 04 for Further and Better
(Page 28)
- Particulars of Plaintiff's Amended Reply including" the matters listed there.
114 I consider that Summary 3 shows the inadequacy of the relevant scale item. Again, I consider there is sufficient evidence, in the Finlay affidavit of 23 January 2007, with my appreciation of the trial, that this was due to the complexity of the case as I have described it. The particulars went to matters of some significant complexity, and were accordingly themselves substantial and complex.
115 Counsel for the defendant, Mr Forbes, put to me that there was no evidence or no sufficient evidence that the work for the particulars required the services of a practitioner other than the junior practitioner provided for in the relevant scale item. I took this also to be a submission that there was no evidence or no sufficient evidence that the hours of work required were above the maximum allowed at that rate.
116 I consider this is met by the position I am in, with the Finlay affidavit of 23 January 2007, and my experience as the trial Judge, to assess whether a sufficient basis for the exercise of my discretion to make a special costs order is made out.
117 I consider that a special costs order is appropriate for giving particulars of the amended reply, to the effect that the limits of any relevant determination as to hours or hourly rate not apply. See Flotilla Nominees (supra), per Pullin J, as to this form of order where work above the maximum involving work done by a fee earner at above the hourly rate provided for is involved.
118 I note, however, the point from SDS Corporation (supra), Roberts-Smith J, at [162] on the power of the taxation officer.
Application of these principles in this case: costs of attending an informal conference
119 I took this to be a claim by reference to the entry in the draft bill of costs, Item 33, for work done in April 2005, and the reference there to the relevant Scale item, that under the 2004 Determination, Item number 23.
120 The scale item allows for attendance by a senior practitioner at the scale's maximum hourly rate of $341. It sets no maximum time. The draft bill of costs shows for the scale item the amount of $1,641.20, which equates to 4.8 hours.
(Page 29)
121 The draft bill of costs claim is $6,041.20, referring both to attendance at a conference of three hours, and preparation (including attendance and preparation of senior counsel). The Finlay affidavit of 23 January 2007 indicates that both the deponent and senior counsel worked on preparing for the conference.
122 There is no further detail in the Finlay affidavit of 23 January 2007. In particular, there is no indication of the hourly rates for senior counsel and the deponent for the work done, nor of details as to what was considered likely to occur or did occur at this conference.
123 Mr Garnsworthy put to me in relation to this claim that I should see the complexity I have described earlier as accounting for the expenditures on the item in question.
124 However, it seems to me that there is more evidence than that to which I have referred with which I should be provided before I can make a special costs order under this heading. My experience as the trial Judge is of no assistance to me in considering what might have been seen as likely to occur or that did occur such that expenditure at that level, on two fee earners, might be seen to be appropriate because of the complexity, factual and legal, in this case.
125 I would not make the order sought here.
Application of these principles in this case: reasonable allowance for opening and closing submissions
126 I was unable to find any discrete Item or Items in the draft bill of costs referring to this claim.
127 However, Mr Garnsworthy drew to my attention Item 39, for the first day of trial (at $44,384.80, for Senior Counsel, compared with the relevant scale item, in the 2004 Determination, Item 19b, of $17,644.00); and Item 59, for the second last day of trial (at $9,428.40, compared with the relevant scale item, in the 2004 Determination, Item 19d, of $4,411.00).
128 I note that the work done would thus be covered by the account of senior counsel a copy of which is annexure "JDF4" to the Finlay affidavit of 23 January 2007, which shows work done, principally identified as "getting up" or "attend court", over the period beginning 1 August. That account shows the hourly rate as less than $400 per hour, where the relevant scale shows the maximum rate for senior counsel at $473.
(Page 30)
129 Thus, the claim is for more than the maximum number of hours allowed for in the relevant scale item, but below the maximum hourly rate.
130 I also note the reference to the opening and closing submissions prepared by senior counsel in the Finlay affidavit of 23 January 2007.
131 I further note that my experience at trial was indeed that the written opening and closing submissions, provided prior to or shortly after oral argument, were of significant assistance to me. They were in considerable detail, in particular in relation to the matters of factual complexity and legal complexity to which I earlier referred.
132 It seems to me that the work on such submissions is appropriately to be referred to the scale items I have referred to, and might in a suitable case warrant a special costs order.
133 It is true, as counsel for the defendant, Mr Forbes, put to me, such work might also simply be a part of good preparation for the opening and closing phases of the trial. Thus, it might be said, at least the opening submissions might form part of the amount for getting up the case for trial. Indeed the account of senior counsel refers to "getting up" as I have indicated.
134 However, that submission seems to me to go to avoiding any double counting of work, which would be for the taxation officer, not for me. How the account labels the work done is less important than the true nature of the work done, as that is ultimately determined by the taxation officer.
135 It is also true, as Mr Forbes also put to me, that there is no indication in the accounts for senior counsel forming part of the Finlay affidavit of 23 January 2007 that work on the opening and closing submissions is identified as part of the work charged for. However, I consider there is sufficient evidence, for my purposes at least, in the Finlay affidavit of 23 January 2007, that senior counsel did the work, and can be expected to have been paid for it.
136 I consider that the Finlay affidavit of 23 January 2007 shows the inadequacy of the relevant scale item in the respect the subject of the special costs order sought.
(Page 31)
137 I also consider there is sufficient evidence, in the Finlay affidavit of 23 January 2007, with my appreciation of the trial, that this was due to the complexity of the case as I have described it.
138 Accordingly I consider a special costs order is appropriate for the cost of opening and closing submissions prepared by senior counsel such that the limits of any relevant determination as to hours not apply. See Flotilla Nominees (supra), per Pullin J, as to this form of order where work above the maximum involving work done by a fee earner at or below the hourly rate provided for is involved. I note that this special costs order only goes to the particular work identified.
139 Again, I note the point from SDS Corporation (supra), Roberts-Smith J, at [162] on the power of the taxation officer.
Application of these principles: the costs argument before me
140 Mr Garnsworthy, in his written submissions (par 5), put to me, as I have previously indicated, that the costs of the present application were "beyond the scope of taking a reserved decision", under which, on the practice of taxation as he described it, the matter might otherwise be referred to the scale item for taking a reserved decision, under the 2006 Determination, Item 19(g). That item allows only for the attendance of a clerk or paralegal at the maximum hourly rate provided for such persons, of $176.
141 Counsel for the defendant, Mr Forbes, did not disagree such a special costs order might be appropriate, on that basis. However, he put to me that it was only appropriate if the plaintiff was successful in obtaining all of the special costs orders it sought. In the event it obtained less than all, its costs should be scaled back proportionately.
142 I agree with the submission, but would add that account must also be taken of the substance of the issues on which the plaintiff succeeded and failed. If the issue or issues of the latter sort were relatively minor in character by comparison with those on which the plaintiff succeeded, it seems to me a scaling back would not be appropriate.
143 Here the plaintiff has succeeded on all of the major issues for which it contended, with the exception of those involved in the claim in respect of the informal conference. Those issues were, in my view, the least substantial of the major ones I have referred to.
(Page 32)
144 I consider then that simply scaling back by reference to the number of orders for which the plaintiff contended on which the plaintiff succeeded (five out of six) or to the number of such orders raising major issues (four out of five) would be inappropriate.
145 Doing the best I can, I would order the plaintiff recover 90 per cent of his costs of this application to be taxed with the other costs if not agreed.
Orders on the present application
146 I will hear from the parties as to the orders I should make following from these reasons.
0
8
3