| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : JMD -v- GJH [2012] WADC 124 (S) CORAM : DAVIS DCJ HEARD : 3 OCTOBER 2012 DELIVERED : 12 OCTOBER 2012 SUPPLEMENTARY
DECISION : 12 OCTOBER 2012 FILE NO/S : CIV 1189 of 2009 BETWEEN : JMD Catchwords: Practice and procedure - Costs - Special costs orders - Application to remove scale limits - Application for certificate for the transcript Legislation: Legal Profession Act 2008 (WA) s 280
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010
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Result: Application allowed in part Representation: Counsel:
Plaintiff : Mr I Morrison
Defendant : Mr T Offer
Solicitors:
Plaintiff : Michael Rogers & Associates
Defendant : Curwood & Co
Case(s) referred to in judgment(s):
Como v Helmers [2011] WASC 179 (S)
Dakin Farms Pty Ltd v Elite Grains Pty Ltd [2012] WADC 43
Fagan v Morien [2008] WASC 54 (S)
Frigger v Lean [2012] WASCA 66
Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
M v J & J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Miller v Evans [2010] WASC 127 (S)
O'Rourke v P & B Corp Pty Ltd [2008] WASC 36 (S)
Pourzand v Telstra Corp Ltd [2012] WASC 210 (S)
S v Neumann (1995) 14 WAR 452
SDS Corp Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S)
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1 DAVIS DCJ: On 10 August 2012, I gave judgment in this matter for the plaintiff. I made orders which included giving the plaintiff liberty to apply within 30 days for special costs orders.
2 The plaintiff, within the time allowed, filed an application for special costs orders. Some of the orders sought in the application were resolved at a hearing which took place before me on 3 October 2012. The remaining orders sought by the plaintiff, opposed by the defendant and requiring this supplementary decision, are as follows: 3. The plaintiff's costs be taxed without regard to the limits (whether as to hours or hourly rates or otherwise) prescribed by the relevant determinations of the Legal Practitioners (Supreme Court) (Contentious Business) Determination in relation to: 4. There be a certificate for the transcript.
Application to remove the limits of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 3 That part of the application seeking the taxation of the plaintiff's costs without regard to the limits set by the Legal Practitioners (Supreme Court) (Contentious Business) Determination (the Scale) is brought pursuant to s 280(2) of the Legal Profession Act 2008 (WA). This permits the court to make a special costs order if it considers that the Scale costs are inadequate because of the unusual difficulty, complexity or importance of the matter. 4 The relevant principles to take into account when determining an application made pursuant to s 280(2) may be summarised as follows: (a) In order for the court to make a special costs order under s 280(2) the court must first form an opinion that the costs allowable under the Scale would be inadequate and then form an opinion that such inadequacy arises because of the unusual difficulty, complexity or importance of the matter: Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC254 (S) [11] (Martin CJ); Pourzand v Telstra Corp Ltd [2012] WASC 210 (S) [9] (Edelman J); (Page 4)
(b) The requirement of inadequacy will be demonstrated if the applicant shows that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit imposed by the Scale: Heartlink [15], [16], [22];Pourzand [11]. (c) Because the inadequacy of costs is a determination which will ordinarily be made in advance of taxation, this should be addressed as a matter of impression rather than of detailed evaluation: Heartlink [20], [22]. (d) Evidence of the costs actually incurred by the applicant will not always be required. In some cases it may be necessary to prove the criteria in s 280 by specific evidence. In other cases, the court may be able to form a view from its knowledge of the case (particularly when the judge hearing the application was the trial judge): Frigger v Lean [2012] WASCA 66 [81] – [82] (Allanson J, Newness and Murphy JJA agreeing);Pourzand[12]. (e) An applicant is also not required to demonstrate that a limit is inadequate by reference to a detailed evaluation of a draft bill for taxation: Heartlink [20] – [21]; Frigger v Lean [82]. The court should not conduct a provisional taxation of costs and then ascertain whether, on the basis of that provisional taxation, the amount allowed in the Scale is inadequate. That would result in significantly usurping the role of the taxing officer and would also result in the undesirable practice of double handling of the assessment of costs. All that is required of a court is that it form a view on the question of whether there is an arguable case to be put before a taxing officer to the effect that the limit imposed by the Scale would be inadequate because of the 'unusual difficulty, complexity or importance of the matter': O'Rourke v P & B Corp Pty Ltd [2008] WASC 36 (S) [20] - [21] (Martin CJ). (f) 'Unusual' in s 280(2) qualifies 'difficulty' only and not 'complexity' or 'importance': SDS Corp Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S), [102] - [106]; Heartlink [17]; Pourzand [13]. (g) "Unusual difficulty' suggests that a matter was more difficult than would ordinarily be expected in a matter of the kind under consideration: Fagan v Morien [2008] WASC 54 (S) [19] (Templeman J); Como v Helmers [2011] WASC 179 (S) [18] (Corboy J). (Page 5)
(h) The reference to 'importance' includes consideration of whether the work done was appropriate to the significance of the issues that arose in the litigation. The significance of issues can be to the parties themselves or to other prospective parties, or to the public or to the community generally: Heartlink [17] – [19]. (i) However, the fact that the matter is considered to be of great importance to the parties, or even a matter of significance to others beyond the parties, may not be enough. As stated by Hall J when he considered the equivalent provision to s 280(2) in the Legal Practice Act 2003 (WA) (s 215) in Miller v Evans [2010] WASC 127 (S) [36] – [37]: 36 In regards to the importance of the matter, it would be too easy to dismiss the matters at issue in this case as being a neighbourhood dispute. The matter was considered to be of great importance to the parties and, as I have noted, proceeded over six days. It could also be fairly argued that the issues are of significance to prospective parties given that the restrictive covenant at issue in this case is one that burdens other properties in the area. One of the matters at issue at the trial was the interpretation of the covenant and the nature of structures which are covered by it. I accept that that is a matter of significance to others beyond the parties to this action. 37 However, those factors alone do not convince me that the matter was of unusual difficulty, complexity or importance. The usual order of party/party costs might be too readily departed from if cases such as this were thought to justify the exercise of the power under s 215(2). No doubt an argument could be made for almost every case that is difficult, complex or important in some respect or other. Certainly the parties might often see it that way. In my view the issues in this case would not in themselves justify an order in broad terms … (j) The assessment of the question of whether or not there is 'unusual difficulty, complexity or importance' is essentially a value judgment having regard to the court's experience of the particular case and compared to the usual run of cases: O'Rourke [23] - [24]; Dakin Farms Pty Ltd v Elite Grains Pty Ltd [2012] WADC 43 [25] (Commissioner Gething). (Page 6)
Is the amount of costs allowable under the scale inadequate? 5 There is evidence in support of this application, consisting of an affidavit sworn by the plaintiff's solicitor. This annexed a diary of attendances maintained by counsel for the plaintiff showing he spent 287 hours and 54 minutes relating to work carried out on the plaintiff's claim at an hourly rate of $420, together with a ledger printout from the plaintiff's solicitors showing unbilled work in progress of $63,087.20 (applying a rate of $400 per hour plus GST) and disbursements of $8,701.56. 6 The affidavit also deposed to the fact that: (a) the hours spent by counsel in relation to the plaintiff's claim includes time spent in relation to a preservation order application, the costs of which are not to be claimed against the defendant and will not be charged; and (b) the unbilled work in progress of the plaintiff's solicitors includes attendances in relation to getting up for trial, including taking witness statements and periodically updating issuing proceedings, attending conferences with counsel, considering and checking documents drafted by counsel, issuing subpoenas, attending inspection of documents, giving discovery of documents and arranging and contacting witnesses and ensuring attendance of those witnesses at trial. 7 There is little else stated in the affidavit apart from these matters. 8 The relevant Scale is the Legal Practitioners (Supreme Court) (Contentious Business) Determination from both 2008 and 2010. The latter Scale came into operation from 1 July 2010. It is apparent from the diary of attendance of counsel that most, if not all, of the work which could be regarded as getting up and fee on brief occurred after that date. Before 1 July 2010, the work carried out by counsel related to the preparation of the statement of claim and preparation for the summary judgment hearing (on which orders for costs in favour of the plaintiff had already been made before the trial of this matter). 9 Item 17 of the 2010 Scale allows getting up by a senior practitioner of $51,480. Items 20(a) and (b) allow $15,345 for fee on brief including the first day of trial and $3,410 for the second and successive days on trial. (Page 7)
10 The trial which took place before me between 26 - 29 March took three and a half days. Accordingly, I calculate the 2010 Scale allowances to be as follows:
| Item 17 | Getting up | $51,480 | | Item 20(a) | Fee on brief | $15,345 | | Item 20(b) | Second and successive days (two and a half days) | $8,525 | | Total | $75,350 | 11 The first requirement before a special costs order can be made, about which I must be satisfied, is that the Scale item is inadequate, in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than these Scale limits. 12 I have not been provided with a calculation of the amount of work undertaken by counsel relating to the freezing order which will not be charged or claimed against the defendant. My own calculation taken from the items in counsel's diary of attendances which have been 'struck out' and the evidence of counsel's hourly rate of $420 is that the work on the freezing order amounts to approximately $6,000. It is apparent also from counsel's diary of attendances that some of his work corresponds to other items in the Scale, other than getting up case and trial work. Apart from work done on the statement of claim and the summary judgment application which I have already mentioned, counsel also did preparation for and attended at a pre-trial conference, attended other court appearances and directions hearings, drafted amendments to the statement of claim and undertook work relating to discovery – including the drafting of the supplementary list of documents – and inspection of documents. There was also work done on an appeal from a decision of a deputy registrar on an interlocutory matter, which I heard on the first day of the trial and for which the orders I made included that there be no order as to costs. While there is no breakdown of the unbilled work in progress of the plaintiff's solicitors, from counsel's diary of attendances it is apparent that some of counsel's work might be recovered under other items of the Scale. (Page 8)
13 These matters make the assessment I must make of the inadequacy for the Scale items 17, 20(a) and 20(b) difficult. I am, however, entitled to draw from experience and act on impressions, rather then detailed evaluation. A conclusion that it is fairly arguable that costs might be taxed at an amount greater then the Scale does not always require evidence of the costs actually incurred. Notwithstanding the difficulties I have mentioned, having regard to the fees for counsel which I can readily ascertain from his diary of attendances do relate solely to items 17, 20(a) and 20(b) of the Scale, even without any breakdown of the solicitor's costs, I consider that there is a fairly arguable case that the costs for these items are greater than the limit imposed by the Scale. 14 While I have formed an opinion that the costs would be inadequate and be taxed at an amount above the Scale, that is not the end of the matter. I need to be satisfied, and form an opinion, that the inadequacy arises because of the unusual difficulty, complexity or importance of this matter.The unusual difficulty of the case, or its complexity, or the importance of the matter will be relevant to the degree of work that may be properly and reasonably done in preparing for and presenting the case at trial.
Was this matter unusually difficult? 15 It has been submitted on behalf of the plaintiff that there were unusual difficulties in this trial as a result of the combination of the following: (a) difficulties obtaining documents; the need to subpoena the Commissioner of Police and the Department of Education; the need to examine many documents so produced including school reports going back to primary school; the need to request and subpoena medical notes going back to 2005; (b) obtaining documents from The Director of Public Prosecutions and complying with their requirements; (c) the need to deal with and call the plaintiff's general practitioners; (d) as to loss and causation, the need to call the plaintiff's school principal and boarding house principal, her sisters and her husband; (e) difficulties persuading the plaintiff to see a psychiatrist and obtaining a definitive answer from the psychiatrist; and (Page 9)
(f) the fact that the plaintiff's lawyers have spent a lot of professional time on the case over three years. 16 In my view, none of these matters demonstrate that this case, which was a personal injuries case, was of unusual difficulty. 17 In my experience, it is common for plaintiffs in personal injuries cases in this court to subpoena, in advance of trial, documents from third parties. Where a plaintiff is a child at the time of an injury, and does not have a record of employment, it is usual for school reports to be produced in lieu of tax returns. 18 The documents which were obtained from The Director of Public Prosecution related to the transcript of the sentencing hearing and the certificates of final outcome relating to the charges to which the defendant pleaded guilty. I do not consider there was any unusual difficulty in relation to this, something which was conceded by counsel for the plaintiff during the hearing of the application before me. 19 As to the need to deal with and call the plaintiff's general practitioners, there was nothing unusually difficult in this case, compared to other personal injuries cases where a number of medical practitioners may need to be called to give evidence. There was not much time taken up by evidence given by the plaintiff's general practitioners and there were no difficult issues of an expert nature arising from the evidence they gave which was in dispute and needed to be resolved. In fact, as I observed in my reasons for judgment, the defendant called no expert evidence of his own. 20 As to loss and causation, although in this case there was a need to call the plaintiff's school principal and boarding house principal, in any personal injuries claim of this nature, involving the loss of a chance for a person who has not previously been employed, such evidence will be required. It is also not uncommon for the spouse or other family members of the plaintiff in a personal injuries case to give evidence as to matters relating to certain aspects of the plaintiff's loss and damage. 21 In relation to the plaintiff's difficulties in seeing a psychiatrist, while I accept that the plaintiff may have been initially reluctant to see another doctor, that is not, in my opinion, an unusual difficulty. It can be the case in personal injuries claims that a plaintiff may be required to see a medical practitioner which he or she does not wish to – see for example the provisions of O 28 r 1 Rules of the Supreme Court 1971. In any case, the plaintiff did see Dr Proud, she was able to discuss matters with him (Page 10)
and he was able to give evidence to assist her case. So far as the submission that obtaining a definitive answer from Dr Proud involved some difficulties, in the evidence which was led during the trial, there was some correspondence from the plaintiff's solicitors to Dr Proud where they sought further information and opinions from him, particularly in relation to the plaintiff's loss of earning capacity, however, in my experience there is nothing unusual in any plaintiff's solicitors seeking further answers from a medical specialist on particular issues. 22 Finally, the fact that the plaintiff's solicitors have spent a lot of professional time on the case over the three years since its inception is not, in my view, a reflection of anything which is unusually difficult about this case. 23 The trial of this matter was not a long one. There were not many issues in the case. There was no evidence before me that a large number of documents were discovered and the number of documents tendered in evidence was not large. I have not been provided with any evidence that the plaintiff or her legal representatives faced any significant difficulty in identifying, marshalling and presenting evidence. 24 I am not satisfied that the inadequacy in costs allowable under the Scale arises because of the unusual difficulty of the matter.
Was this case complex? 25 It was submitted that the case was factually complex involving offences from late 2003 and requiring an extensive examination, including examining the plaintiff's performance in her studies, her life at boarding school, her mental and physical state and life after school. It was also submitted that there was some legal complexity because of the following matters: (a) this was a loss of opportunity case with the plaintiff having not earned income before the infliction of wrongs upon her; (b) the plaintiff had to lead evidence showing she probably would have received a sufficient TEE and admitted into a teaching course, and evidence about the length of the teaching course, earnings of a teacher, and so on; (c) there was a need to consider the Criminal Injuries Compensation jurisdiction, its advantages and disadvantages; (d) causation was a live issue; (Page 11)
(e) the tort of intentional infliction of harm is rare and not straightforward; (f) the Civil Liability Act was relevant; (g) the consequences of a plea of guilty to a crime had to be considered; and (h) complexity generally in quantifying damages. 26 In my view, this case was no more complex than many other personal injuries cases involving issues of liability and the assessment of damages. 27 In any personal injuries claim, the plaintiff's medical condition, expert evidence about that condition and evidence about lost earning capacity and the prospects of future earning capacity (including the likely levels of those future earnings and the plaintiff's retained earning capacity) are usually canvassed. So far as the assessment of damages involved in this case was concerned, there was no dispute between experts which needed to be addressed. The assessment of general damages, past and future loss of earning capacity involved an assessment which was, in my view, not of complexity having regard to other personal injuries matters in this court. 28 While the plaintiff elected to pursue the defendant in tort, rather than to seek criminal injuries compensation, it is well established that ordinary tortious principles ought to be applied in the assessment of criminal injuries compensation, subject to the statutory maximum limit of compensation payable: S v Neumann (1995) 14 WAR 452, 462; M v J & J v J (Unreported, WASC, Library No 920598, 19 November 1992). In criminal injuries compensation cases, it is often the case that the applicant has had his or her education and possible employment prospects affected by a sexual offence committed on the applicant at a young age. In order to properly assess a young applicant's earning capacity, evidence is usually provided of the applicant's school records and the occupation or profession for which the applicant had an ambition and may have qualified, but for the offences against him or her. 29 While this case involved some consideration of the tort of intentional infliction of harm, it did not involve considering or interpreting any principles of law which were either new or untested. (Page 12)
30 In my view, neither the factual nor legal issues in this matter made it complex, and I do not consider that it was any more complex than many other personal injuries actions dealt with by this court where both liability and quantum are in issue. 31 I am not satisfied that the inadequacy in costs allowable under the Scale arises because of the complexity of the matter.
The importance of the case 32 It was argued by the plaintiff that the case was of particular importance to her, because, among other reasons, it provided recognition of her suffering and loss. It was further submitted that the case was important to the public because it sends a message that a crime may attract a financial as well as a criminal penalty and that the law is equal to the task of assessing, in monies worth, the damage done to a victim. 33 While the matter was clearly important to the plaintiff, I do not believe she is in a different position from any other plaintiff who is injured and seeking recovery from a defendant liable in tort. 34 So far as it has been submitted that this matter sends a message that a crime may attract a financial as well as a criminal penalty, it is already the case, pursuant to pt 6 of the Criminal Injuries Compensation Act 2003, that orders can be made which require the offender to reimburse to the State all or part of the compensation awarded to an applicant for criminal injuries compensation. 35 Counsel for the plaintiff submitted that the importance of this case was that 'we have a judgment now which sets out the legal causes of action and a discussion of their application to a crime, particularly a sexual crime'. While it is true that there are few decisions dealing with claims in tort following sexual offences, and a claim based on the tort of intentional infliction of harm is not a common claim, the principles of the tort are not new and I merely applied the principles as set out in the authorities to the facts of this case. 36 I am not satisfied that the plaintiff's costs should be taxed other than on a party/party basis because of the importance of the matter, either to the plaintiff or the public generally. (Page 13)
Whether there should be a certificate for the transcript 37 I am prepared to allow a certificate for the costs of the transcript of the trial. The fact that there was a running transcript was, I accept, helpful to the plaintiff's counsel. It was also of assistance to the court.
Conclusions on the application for special costs orders 38 For the reasons I have given, in relation to the orders sought by the plaintiff in the application for special costs orders: 39 I will hear from the parties in relation to the costs of the application for special costs orders.
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