Joondanna Investments Pty Ltd v The Minister for Lands, Planning and the Environment (No 2)
[2015] NTSC 54
•3 SEPTEMBER 2015
Joondanna Investments Pty Ltd v The Minister for Lands, Planning and the Environment and Anor (No 2)
[2015] NTSC 54PARTIES:JOONDANNA INVESTMENTS PTY LTD
v
THE MINISTER FOR LANDS, PLANNING AND THE ENVIRONMENT
And:
NESFALL PTY LIMITED
And:
THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:73 of 2014 (21436275)
DELIVERED: 3 SEPTEMBER 2015
HEARING DATES: 20 AUGUST 2015
JUDGMENT OF: MASTER LUPPINO
CATCHWORDS:
Costs – Counsel fees in interlocutory proceedings – Requirement of certification before costs of two counsel may be claimed – Test as to whether appropriate to engage two counsel – Relevant factors to be considered – Application of the circumstances of the case to the relevant factors.
Central Australian Aboriginal Congress Inc v CGU Insurance Ltd (2009) 24 NTLR 222.
Kroehn v Kroehn (1912) 15 CLR 137.
Stanley v Phillips (1966) 115 CLR 470.
Liddle v North Australian Aboriginal Legal Aid Service Unreported, Northern Territory Supreme Court, Thomas J, 2 February 1994.
Carrazzo v Weyman [1944] VLR 207.
Cookv Modern Mustering Pty Ltd & Ors [2013] NTSC 78.
Minkie (NT) Pty Ltdv Wise Channel Marketing Pty Ltd & Anor [2011] NTSC 53.
Murray Pest Management Pty Ltd v A & J Bilske Pty Ltd & Ors [2009] NTSC 68.REPRESENTATION:
Counsel:
Plaintiff:Mr Walters
First Defendant: Not represented
Second Defendant: Mr Christrup
Solicitors:
Plaintiff:Roussos Legal Advisory
First Defendant: Squire Patton Boggs
Second Defendant: Paul Maher & Associates
Judgment category classification: B
Judgment ID Number: Lup1503
Number of pages: 13
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINJoondanna Investments Pty Ltd v The Minister for Lands, Planning and the Environment & Anor (No 2)
[2015] NTSC 54No. 73 of 2014 (21436275)
BETWEEN:
JOONDANNA INVESTMENTS PTY LTD
Plaintiff
AND:
THE MINISTER FOR LANDS, PLANNING AND THE ENVIRONMENT
First Defendant
AND:
NESFALL PTY LIMITED
Second Defendant
AND:
ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY
Intervener
CORAM: MASTER LUPPINO
REASONS
(Delivered 3 September 2015)
These Reasons deal with an application for a costs order by the Second Defendant against the Plaintiff following the Plaintiff’s unsuccessful interlocutory application seeking orders by way of particular discovery.
The Second Defendant now seeks costs from the Plaintiff and certificates pursuant to rule 63.72(9)(a) and (b) of the Supreme Court Rules (“the SCR”), specifically that the matter be certified as fit for counsel and that the retainer of two counsel was warranted.
No orders were sought by or against the First Defendant and the First Defendant did not participate in the argument on costs.
The Plaintiff agrees to pay the Second Defendant’s costs and also agrees that the engagement of interstate senior counsel was reasonable in the circumstances but does not agree that the retainer of two counsel was warranted. The Plaintiff’s submissions reveal that the concession concerning the engagement of senior counsel is made because the Plaintiff had engaged the only commercial senior counsel in Darwin and hence the engagement of an interstate senior counsel was seen to be reasonable. This concession appears anomalous for reasons which I discuss below.
Applicable rules from the SCR, omitting parts not relevant to the current application, are:-
63.03 General rule
(1) Subject to these Rules and any other law in force in the Territory, the costs of a proceeding are in the discretion of the Court.
(2) Omitted
63.72 Counsel's fees
(1)-(8) Omitted
(9) No fee shall be allowed:
(a)for counsel attending on an interlocutory application, unless the Court otherwise certifies; and
(b)for more than one counsel, unless the Court certifies that the retainer of more than one counsel was warranted.
(10) Omitted
Rule 63.72(9) provides for necessary certifications before costs in the instances described there can be recovered. No counsel fees are recoverable in an interlocutory application, such as was the nature of the application before me, absent a certification pursuant to rule 63.72(9)(a). Additionally, rule 63.72(9)(b) requires a separate certification if fees for more than one counsel are sought and whether that be for senior counsel with junior counsel or two juniors. Although rule 63.72(9)(a) applies only in the case of interlocutory applications, rule 63.72(9)(b) is not so confined.
There is no disagreement between the parties as to the applicable law. Both parties referred me to the same authorities in respect of the basic principles.
In Central Australian Aboriginal Congress Inc v CGU Insurance Ltd[1] (“Congress”), a decision of the Court of Appeal of the Northern Territory, in relation to the question of certification pursuant to rule 63.72(9)(b) of the SCR, Mildren J said, with Martin (BR) CJ and Angel J concurring:-
The question as to whether more than one counsel should be allowed in an appellate court must be determined in each case on its own particular circumstances and in accordance with the principles which would be applied in a court of first instance.
The standard test is “would a prudent person not compelled by poverty come into court in such a case without two counsel”. Various factors have been considered relevant to the exercise of discretion, including the weight of the case and the need for special skill and the complexity of the issues. In any event, there must be some feature of the case which would warrant a prudent litigant to employ two counsel. The test is no different if two juniors are employed.[2]
The standard test derives from Kroehn v Kroehn[3] (“Kroehn”). The various factors referred to in the dicta are derived from Stanley v Phillips[4] (“Stanley”) which followed Kroehn. In Stanley, Barwick CJ, in adopting the test set out in Kroehn, added:-
This court in Kroehn v Kroehn expressed a test for deciding whether the fees for two counsel should be allowed in a party and party taxation. The question propounded by Griffith C.J. when he says: ‘Would a prudent person not compelled by poverty come into court in such a case without two counsel?’ must be understood in relation to the basic matter in issue, which is the presentation of the case to ensure a just adjudication. The question is not whether a man in seeking his own maximum advantage would be imprudent not to engage counsel of a particular level of experience or skill. The question is whether the services of more than one counsel are reasonably necessary for the adequate presentation of the case.[5]
Mr Christrup for the Second Defendant, relied on the test in Kroehn as followed in Stanley and in Congress and submitted that the basic finding required is essentially a determination of whether the retainer of two counsel was reasonably necessary for the adequate presentation of the case.[6] He sought to demonstrate that by reference to certain circumstances of the case and on the basis that the issue must be determined from the point of view of the party engaging two counsel. For the latter proposition, he relied on Stanley where Barwick CJ said:-
…the taxing officer must consider whether it was reasonably necessary or proper in the sense I have indicated, for the litigant to decide at the appropriate time in the course of the litigation to engage more than one counsel.[7]
I have extracted from the authorities the following as the factors which are to be considered when deciding whether two counsel are warranted:-
1.The importance, seriousness or weight of the case, per Kroehn Congress and Stanley;
2.The amount of money involved, per Liddle v North Australian Aboriginal Legal Aid Service[8] (“Liddle”);
3.Whether the opponent was represented by more than one counsel, per Carrazzo v Weyman[9] (“Carrazzo”);
4. The desirability of a division of labour, per Stanley;
5.The amount of evidence or the volume of material, per Kroehn, Stanley and Carrazzo;
6.The complexity of the factual and legal issues, per Stanley, Congress and Carrazzo;
7.The extent of preparatory research of fact or law required, per Stanley and Liddle;
8. The number or character of the witnesses, per Stanley;
9. The nature and extent of the cross-examination required, per Stanley;
10.The involvement of allegations of fraud or other serious imputations of personal reputation or integrity, per Stanley;
11. The anticipated length of the case, per Stanley.
Mr Christrup did not rely on all of these factors. In most interlocutory hearings, factors 8, 9 and 11 would not apply. Factor 10 does not apply in the current case in any event. The factors he relied on, married to the circumstances that he argued had to be considered were, firstly, relevant to factors 1 and 2, that the Plaintiff’s Originating Motion challenged the legality of development permits granted to the Second Defendant for the development of a major shopping centre development. The Plaintiff is the owner of an existing and proximate shopping centre. There was much at stake for both the Plaintiff and the Second Defendant. As part of the challenge, the interlocutory application sought production of documents which the Plaintiff intended to use to challenge the legality of a preliminary report upon which the grant of the permit was based. If an adverse finding was made at final hearing concerning the legality of that preliminary report, the development permit issued to the Second Defendant would be invalid. Accordingly, had the Plaintiff’s interlocutory application been successful, the result would have been to significantly widen the basis upon which the permit could be challenged and the evidence which would have been available to the Plaintiff for that purpose. It was argued therefore that the discovery application represented a significant commercial risk to the Second Defendant, where the result could have lengthened and complicated the trial. I agree that this is an important consideration and that it was in the Second Defendant’s interest to oppose the application. It puts the application of the standard test in context, i.e., it would be very prudent for the Second Defendant, given what was at stake, to engage two counsel to ensure that the prospects of success for the Second Defendant at final hearing were maximised.
Secondly, and relevant to factors 4 and 5, the affidavit evidence was extensive and consisted of more than 1,780 pages. It was submitted, and I think it is self-evidently the case, that this made it a case where there were obvious benefits of dividing labour between two counsel, especially when viewed in the context of the time available to do so. In this respect Mr Christrup pointed out that the Second Defendant had limited time to prepare for the application. Relevantly he pointed out that it was not until 24 September 2014 that the Plaintiff articulated the grounds upon which the grant of the relevant permit was challenged and that the Second Defendant was on notice that the Plaintiff was seeking discovery of documents. The grounds of challenge were necessarily relevant to the discovery issue.
By way of background and to put this into context, the Originating Motion seeking the substantive final relief was filed on 12 August 2014 but that only set out the final relief sought and not the grounds the Plaintiff relied on. The grounds were set out in the affidavit of Peter La Pira sworn 20 September 2014 and the application for orders for discovery was made by Summons on Originating Motion. Both of these documents were served on the Second Defendant on 24 September 2014.
The discovery application was heard by me on 21 October 2014 and it was on that day, and in fact shortly before the hearing, that the Plaintiff provided its written submissions to the Second Defendant. Although there had not been an order made for the exchange of submissions, the point relied on was not whether the Plaintiff was in default by the late provision of submissions. It was that the Second Defendant had to try and anticipate much of the basis of the Plaintiff’s argument as the Second Defendant had prepared its written submissions, and its argument, by the time the Plaintiff’s submissions had been served.
The Second Defendant’s legal representatives had much to do between 24 September 2014 and the hearing date. In particular they had to analyse the grounds of challenge, consider the extensive affidavit material, assess the relevance of the documents sought by way of discovery against the grounds of challenge, attempt to assess the basis upon which the Plaintiff would contend that the documents were relevant, research the relevant law based on that assessment and, lastly, prepare the Second Defendant’s argument and written submissions. There was no real scope for an extended time frame for the interlocutory hearing from the Second Defendant’s viewpoint as the matter had been allocated a date for hearing of the final relief sought and any delay may have resulted in an adjournment of the final hearing. An adjournment of the final hearing was against the interests of the Second Defendant.
In my assessment, in the context of the extensive grounds of challenge,[10] the extent of the evidence and the available time, undertaking all the necessary tasks would be onerous for one counsel. I accept that there was a division of tasks between senior counsel and junior counsel, as opposed to senior counsel undertaking all the tasks with junior counsel merely providing checks or vice versa. Therefore I am of the view that significant costs savings are necessarily achieved by engaging two counsel by reason of the much higher rate which would otherwise have been properly charged had all of these tasks been undertaken by senior counsel alone. This is why I have said that the Plaintiff’s concession that the engagement of senior counsel without a junior was warranted is anomalous.
I am of the view that factor 6, namely, the complexity of the factual and legal aspects is also a very telling factor in the circumstances of the case. Mr Walters for the Plaintiff argued that the complexity and weight of the case was not sufficient to warrant two counsel. He described the interlocutory application as a relatively straightforward discovery application in the context of an application for judicial review. He relied on Southwood J’s description of the matter as an ordinary judicial review case. That however refers to the substantive proceedings not the interlocutory application. In any case it is not entirely clear to me how that supports the Plaintiff’s argument with respect to the issue of whether two counsel were warranted noting that his Honour was in no doubt that the substantive proceedings were fit for two counsel.[11] It is clear nonetheless that a certificate for two counsel can be made in an interlocutory matter. Rule 63.72(9)(a) only is limited to interlocutory applications whereas rule 63.72(9)(b) is not and this clearly shows that the SCR contemplates situations where orders for costs for two counsel can be made in respect of interlocutory applications also.
Notwithstanding that, Mr Walters maintained that a senior counsel and a junior counsel are rarely engaged for an interlocutory application. I do not consider that helpful. Although it is not routine to have two counsel, in particular a senior counsel and junior counsel, for an interlocutory hearing, any perceived rarity cannot determine whether it is otherwise appropriate in a particular case. The relevant consideration is not the interlocutory nature of the hearing but whether all of the circumstances are such that “the services of more than one counsel are reasonably necessary for the adequate presentation of the case”.[12] Although that is more likely to be the case in non-routine trials for final relief, that cannot exclude an appropriate interlocutory application.
I think the complexity cannot be assessed in isolation and in any case I agree that this was far from a routine discovery application. The factual matrix is set out in my Reasons[13] and I will not repeat that here, rather the facts as disclosed in those Reasons demonstrate why I accept the submission that, in conjunction with the circumstances discussed at paragraphs 12 to 18 above, this was a complex, and not routine, interlocutory application.
In relation to factor 4, Mr Christrup pointed out that both the Plaintiff and the Second Defendant provided submissions for the purposes of the interlocutory application and that in each case, those submissions had been prepared by both senior and junior counsel. He also drew support from the certification of the substantive proceedings as fit for senior and junior counsel, coupled with the decision of the Plaintiff itself in utilising the services of both a senior and junior counsel for the purposes of the interlocutory application. As to this, Mr Walters argued that the junior counsel engaged by the Plaintiff lacked seniority. I think that misses the point. One of the recognised factors for the Court to take into account in deciding whether to make a certification is that the opponent was represented by one counsel and conversely, that an opponent is represented by two counsel must be equally pertinent.[14] This appears to be accepted to some extent by the Plaintiff as, in its submissions, it put that an allowance for senior counsel by the Second Defendant was reasonable as the Plaintiff had engaged the only commercial senior counsel in Darwin. If that is conceded then, as I have said, the division of necessary tasks between two counsel, and where part of the work is done by junior counsel at a substantially less rate, must necessarily result in savings compared to the situation where all tasks are undertaken by senior counsel alone. Mr Walters also pointed out that the First Defendant, who was not represented before me, only engaged a senior junior counsel. However, I also do not consider that is a useful comparison as, in the hearing before me, no orders were sought against the First Defendant and the First Defendant had nothing at stake. All that was reflected in the involvement of counsel for the First Defendant in the course of the hearing before me. He had more of a watching brief and that the First Defendant only engaged a senior junior is not therefore a valid comparison. Although it is appropriate to consider all of these points as the representation of the opponent is a relevant factor, in my view it is not as telling as factors 1, 2, 4, 5, 6 and 7 discussed above.
Mr Walters also relied on comparisons with hearings of interlocutory issues in other matters heard by the Court. Mr Walters said that in one of these cases,[15] the application was more complex than the extant application and in two others[16] the complexity was said to be equivalent or slightly less. In each instance only a senior junior counsel was engaged by each party. I do not consider such a comparison to be helpful without reference to all the particular circumstances of the cases being compared. In any event, such a comparison does not have regard either to the standard test or that the application of the standard test needs to be determined from the point of view of the Second Defendant.
I think that factors 1, 2, 4, 5, 6 and 7, in the circumstances of this case clearly warrant the engagement of two counsel, notwithstanding the interlocutory nature of the hearing. All things properly considered, and looking at things from the perspective of the Second Defendant, the engagement of two counsel for the interlocutory application was prudent.
As the Plaintiff concedes that the engagement of senior counsel was warranted I am therefore not required to consider that aspect of the matter. In any case, as was stated in Congress, the test is no different if two juniors are engaged.[17]
I am therefore prepared to give the necessary certificates both in respect of subparagraph (a) and (b) of rule 63.72(9). I therefore order the Plaintiff to pay the costs of the Second Defendant of and incidental to the Summons on Originating Motion filed 23 September 2014 and I certify the matter as fit for counsel and further that the retainer of both senior counsel and junior counsel was warranted.
[1] (2009) 24 NTLR 222.
[2] (2009) 24 NTLR 222 at paras 17-18
[3] (1912) 15 CLR 137.
[4] (1966) 115 CLR 470.
[5] (1966) 115 CLR 470 at 478-479.
[6]Liddle v North Australian Aboriginal Legal Aid Service Unreported, Northern Territory Supreme Court, Thomas J, 2 February 1994.
[7] Stanley v Phillips (1966) 115 CLR 470 at 479.
[8]Unreported, Northern Territory Supreme Court, Thomas J, 2 February 1994.
[9] [1944] VLR 207.
[10] Summarised in my Reasons at paras 27 – 50.
[11]See transcript at p 7 being Annexure JPF6 to the affidavit of Jeremy Patrick Farrell sworn 7 August 2015.
[12] Stanley v Phillips (1966) 115 CLR 470 at 479.
[13] At paras 4 - 14.
[14] Carrazzo v Weyman [1944] VLR 207 at 209.
[15] Cookv Modern Mustering Pty Ltd & Ors [2013] NTSC 78.
[16]Minkie (NT) Pty Ltdv Wise Channel Marketing Pty Ltd & Anor [2011] NTSC 53 and Murray Pest Management Pty Ltd v A & J Bilske Pty Ltd & Ors [2009] NTSC 68.
[17]Central Australian Aboriginal Congress Inc v CGU Insurance Ltd (2009) 24 NTLR 222 at para 18.
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