Kidd v The State of Western Australia
[2015] WASCA 62 (S)
•15 MAY 2015
KIDD -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 62 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 62 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:46/2014 | ON THE PAPERS | |
| Coram: | MARTIN CJ NEWNES JA MURPHY JA | 15/05/15 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Third respondent's application for special costs order granted Appellants to pay third respondent's costs of this application | ||
| B | |||
| PDF Version |
| Parties: | NEIL GRAEME KIDD AND THE PERSONS DETAILED IN SCHEDULE A TO THE APPEAL NOTICE THE STATE OF WESTERN AUSTRALIA MINISTER FOR RACING AND GAMING BURSWOOD NOMINEES LTD |
Catchwords: | Costs Special costs orders Proceedings as a whole unusually difficult, complex or important Whether amount allowable under relevant costs determination inadequate Protracted disputes with respect to costs to be discouraged Costs Whether all respondents' costs to be taxed as one set Public interests of first and second respondents different in character to private interests of third respondent |
Legislation: | Legal Profession Act 2008 (WA), s 280 Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 66 r 1(3), O 66 r 2(d) |
Case References: | Electricity Generation and Retail Corporation v Woodside Energy Ltd [2014] WASC 469 Kidd & Others v The State of Western Australia [2014] WASC 99 (S) Shellharbour City Council v Minister for Planning (No 2) [2012] NSWLEC 96 The State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KIDD -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 62 (S) CORAM : MARTIN CJ
- NEWNES JA
MURPHY JA
- Appellants
AND
THE STATE OF WESTERN AUSTRALIA
First Respondent
MINISTER FOR RACING AND GAMING
Second Respondent
BURSWOOD NOMINEES LTD
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : BEECH J
Citation : KIDD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 99
File No : CIV 2882 of 2013
Catchwords:
Costs - Special costs orders - Proceedings as a whole unusually difficult, complex or important - Whether amount allowable under relevant costs determination inadequate - Protracted disputes with respect to costs to be discouraged
Costs - Whether all respondents' costs to be taxed as one set - Public interests of first and second respondents different in character to private interests of third respondent
Legislation:
Legal Profession Act 2008 (WA), s 280
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 66 r 1(3), O 66 r 2(d)
Result:
Third respondent's application for special costs order granted
Appellants to pay third respondent's costs of this application
Category: B
Representation:
Counsel:
Appellants : No appearance
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Solicitors:
Appellants : Solomon Brothers
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : King & Wood Mallesons
Case(s) referred to in judgment(s):
Electricity Generation and Retail Corporation v Woodside Energy Ltd [2014] WASC 469
Kidd & Others v The State of Western Australia [2014] WASC 99 (S)
Shellharbour City Council v Minister for Planning (No 2) [2012] NSWLEC 96
The State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174
Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S)
- REASONS OF THE COURT:
Introduction
1 Recent times have seen increasing enthusiasm for parties to proceedings in the civil jurisdiction of this court to engage in protracted disputes with respect to costs following determination of the appeal. Sometimes those disputes involve an assertion that there should be a departure from the ordinary rule that costs follow the event, because the generally successful party has failed on an issue or issues, with the consequence that the successful party should recover only part of their costs.1 Sometimes the disputes involve an assertion that there should be an order pursuant to s 280 of the Legal Profession Act 2008 (WA) directing that the costs of one or more parties be taxed without regard to the limits imposed by particular items in the relevant costs determination. Commonly the parties to such disputes will endeavour to support their position in long and detailed written submissions supported by substantial affidavits. This is such a case.
2 Satellite litigation of this kind is contrary to the overarching principles specified in O 1 r 4A and 4B of the Rules which govern all civil proceedings in the court. Such litigation has a very real capacity to consume resources of the parties and the limited resources of the court to an extent which is entirely disproportionate to the significance of the issues involved. Protracted disputes with respect to costs should be discouraged, and this court has revised its procedures to facilitate the resolution of all issues with respect to costs at the time of publication of the court's reasons, wherever possible.
3 Consistently with this approach, these reasons will be limited to the principal issues raised by the parties and the short reasons for our conclusions in relation to those issues. They will not descend to the level of detail to which the parties have descended in their written submissions and affidavits.
Issue 1 - should the successful respondents' costs be taxed as one set?
4 The appellants contend that the court should order that the costs of all respondents be taxed as one set, by analogy to O 66 r 2(d) which provides:
[W]here several defendants defend an action separately and it appears that the defendants or any of them might have joined in their defence, the Court may allow only one set of costs to those defendants as to whom it appears a joint defence might have been conducted and separate costs to any other or others who in the opinion of the Court were properly separately represented.
5 A similar submission was made to the trial judge after the appellants lost the proceedings at first instance. The trial judge observed:
The State defendants could not reasonably have been expected to have left to the third defendant a defence of the Minister's exercise of statutory power.2
6 That observation is plainly correct. While the interests of all the respondents were aligned, they were not coincident. The State and the Minister had an interest in the enunciation of the legal effect of the regulatory regime relating to the use of the relevant land which did not necessarily coincide with the interest of the third respondent (the casino operator). Put another way, the public interests of the State and the Minister are different in character to the private interests of the casino operator.3 It would have been quite inappropriate for all respondents to have been represented by a single set of legal representatives and the appellants' submission to the contrary is misconceived.
Issue 2 - should an order be made directing that the third respondent's costs be taxed without regard to some of the limits imposed in the relevant cost determinations?
7 The third respondent seeks an order that its costs be taxed without regard to the limits imposed in the relevant costs determinations with respect to the following items:
(a) preparation of respondent's answer - scale item 23(b);
(b) preparation of case for hearing - scale item 23(f)
(c) counsel fee for senior counsel - scale item 23(h).
8 The effect of the orders sought would be to remove the limits imposed by the relevant items in relation to both the maximum hours allowable under the item, and the maximum hourly rate allowable under the item.
9 The principles governing applications of this kind have been stated many times, both at first instance and on appeal, no doubt because of the current enthusiasm for orders of this kind to which we have referred.4 It is unnecessary to restate those principles in these reasons.
10 One of the questions which must be addressed under s 280(2) of the Legal Profession Act is the question of whether the proceedings can be characterised as unusually difficult, complex or important. The question arises in respect of the proceedings as a whole, and not in respect of each individual item in the relevant costs determination.5 The appellants did not contest this characterisation of the proceedings at first instance, and similarly do not assert that the appellate proceedings should not be similarly characterised.6 Those concessions were properly made.
11 The next question which must be addressed is whether the amount of costs allowable under the relevant determination is inadequate because of the unusual difficulty, complexity or importance of the matter. Inadequacy will be established if there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount greater than the limit imposed by the relevant determination.
12 The third respondent has filed an affidavit in support of its assertion that the amounts allowed under the relevant items are inadequate in this sense. That affidavit reveals, amongst other things, the hours actually spent by solicitors and counsel in relation to the relevant items of the determination, and the hourly rates actually charged by the practitioners concerned. That information has been used as the basis for the preparation of a draft bill of costs which would be presented to the taxing officer, if the orders sought are made. In that draft bill, the amounts prospectively claimed in respect of the relevant items are not merely the product of the costs actually incurred by the third respondent in respect of those items, but rather reflect in a more general way the time actually spent and the rates actually charged. The amounts shown in the draft bill of costs substantially exceed the maximum amounts allowable in respect of each of the items for which the third respondent seeks an order. The evidence, viewed in the context of our awareness of the complexity and importance of the issues raised by the appeal, satisfies us that there is a fairly arguable case to be presented to the taxing officer to the effect that amounts should be allowed in respect of each relevant item which is greater than the limit which would be imposed by that item.
13 In giving effect to this conclusion we do not think it necessary to distinguish between the limits imposed by the relevant items with respect to the time spent on the one hand, and the rates allowed on the other. While we accept that the hourly rates specified in the relevant determination will generally guide the taxing officer as to the costs properly allowed on taxation, the breadth of language used in s 280(2) of the Legal Profession Act appears to contemplate circumstances in which the allowance of costs assessed by reference to hourly rates greater than those allowed in the determination may be appropriate because, for example, the unusual difficulty, complexity or importance of the case justified the engagement of practitioners with particular expertise or seniority. Whether or not that course is justified in this case, and in respect of which practitioners, and if so, what rates should be allowed, are all matters best determined by the taxing officer rather than this court.
14 For these reasons there will be an order that the third respondent's costs be taxed without regard to the limits imposed by items 23(b), 23(f) and 23(h) of the relevant cost determinations.
Issue 3 - should the first and second respondents' costs be taxed without regard to the limits imposed by some items of the relevant costs determination?
15 The first and second respondents seek an order that their costs be taxed without regard to the limit imposed by the relevant items in the applicable costs determinations relating to the preparation of their answer to the appellants' case (item 23(b)), and on the basis that they be allowed the costs of two counsel appearing at the hearing. Of course the principles to which we have already referred govern this application.
16 The first and second respondents' application is supported by an affidavit which reveals the actual hours spent and the hourly rates applicable to the practitioners who prepared the first and second respondents' answer and appeared on behalf of those respondents at the hearing of the appeal. The affidavit establishes that the application of the hourly rates to the time actually spent preparing the first and second respondent's answer produces an amount of $28,650, whereas the maximum amount allowable under item 23(b) is $25,520. The relatively small margin between the costs actually incurred and the maximum allowable under the relevant item does not persuade us that the amount allowed under the relevant item is inadequate in the sense we have described.
17 However, the relevant item in the determination specifies a number of hours which have been multiplied by the hourly rate applicable to Senior Counsel to produce the maximum amount allowable under the item. It is not clear to us whether the proper construction of the scale precludes the taxing officer from allowing costs assessed by reference to time greater than the hours specified, provided that the total amount allowed does not exceed the maximum specified for the item. It is our provisional view that that is the better construction of the scale. However, in case the taxing officer should take a different view, we make it clear that we do not consider that the costs allowable to the first and second respondents in respect of the preparation of their answer should be limited by the number of hours specified in item 23(b), given that the hourly rates applicable to the practitioners doing the work were significantly less than the hourly rate applicable to senior counsel, which is the rate which has been used in that item to determine the maximum allowable amount.
18 We turn now to the application for an order that the first and second respondents be allowed the costs of two counsel appearing at the hearing of the appeal. It is the fact that the first and second respondents were represented by two such counsel, neither of whom had been appointed senior counsel. In the result, neither counsel advanced any significant oral submissions, as the first and second respondents were content to rely upon the oral submissions advanced on behalf of the third respondent, although we accept that it was not possible to predict with confidence that no oral submissions would be required on behalf of the first and second respondents in advance of the hearing.
19 In support of the application it is pointed out that there was no instructing solicitor attending the hearing of the appeal on behalf of the first and second respondents. However, in all the circumstances of this case, and the relative unlikelihood of significant oral submissions being required on behalf of the first and second respondents, we do not consider it necessary for two counsel to have robed and appeared, although we accept that it was appropriate for the first and second respondents to have two legal representatives present in court, as contemplated by item 23 of the relevant determination. Put another way, in our view it would have been appropriate for one of those who appeared as counsel to have acted as instructing solicitor and in our view the first and second respondents' costs should be taxed on that basis. As both legal practitioners were present throughout the hearing, it does not appear to us to be necessary to make an order to that effect.
Conclusion
20 For these reasons there will be an order that the third respondent's costs be taxed without regard to the limits imposed by items 23(b), 23(h) and 23(f) of the relevant costs determinations. Those costs should include the costs of the application for those orders, and of resisting the appellants' application for an order that the respondents costs be taxed as one set. The first and second respondents have been successful in their opposition to the appellant's application for an order that the costs of all respondents be taxed as one set, but unsuccessful in their application for special costs orders. As the issues upon which those respondents have succeeded and failed roughly balance each other out, the first and second respondents' costs incurred in respect of these various applications should not be included within their costs of the appeal.
1 See O 66 r 1(3) of the Rules of the Supreme Court 1971 (WA) (Rules).
2Kidd & Others v The State of Western Australia [2014] WASC 99 (S) [24].
3The State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174; Shellharbour City Council v Minister for Planning (No 2) [2012] NSWLEC 96.
4 For a recent example of the statement of relevant principles see Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S) [7] - [9].
5 See Electricity Generation and Retail Corporation v Woodside Energy Ltd [2014] WASC 469 [5] - [9].
6 Appellants' written submissions part 10.
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