Kidd v The State of Western Australia
[2014] WASC 99 (S)
•30/05/14
KIDD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 99 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 99 (S) | |
| Case No: | CIV:2882/2013 | ON THE PAPERS | |
| Coram: | BEECH J | 30/05/14 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Costs orders made in favour of defendants | ||
| B | |||
| PDF Version |
| Parties: | NEIL GRAEME KIDD AND THE PERSONS DETAILED IN SCHEDULE A TO THE WRIT OF SUMMONS THE STATE OF WESTERN AUSTRALIA MINISTER FOR RACING AND GAMING BURSWOOD NOMINEES LTD |
Catchwords: | Costs Whether costs should follow the event Costs of 'public interest' litigation Whether separately represented defendants should be restricted to one set of costs Whether special costs orders should be made |
Legislation: | Legal Profession Act 2008 (WA), s 280(2) Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 2(d) |
Case References: | Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 Collard v The State of Western Australia [No 4] [2013] WASC 455 (S) Heartlink Ltd v Jones [2007] WASC 254 (S) Kidd v The State of Western Australia [2014] WASC 99 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2) R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 (S) Richard Brady Franks Ltd v Price (1937) 37 SR (NSW) 37 Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S) Ruddock v Vadarlis [No 2] [2001] FCA 1865; (2001) 115 FCR 229 Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 (S) Secure Parking (WA) Pty Ltd v Wilson [2005] WASC 264 (S) Statham v Shephard (No 2) (1974) 23 FLR 244 Verduci v Catanzarita (1981) 53 FLR 156 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : KIDD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 99 (S) CORAM : BEECH J HEARD : ON THE PAPERS DELIVERED : 30 MAY 2014 FILE NO/S : CIV 2882 of 2013 BETWEEN : NEIL GRAEME KIDD AND THE PERSONS DETAILED IN SCHEDULE A TO THE WRIT OF SUMMONS
- Plaintiffs
AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
MINISTER FOR RACING AND GAMING
Second Defendant
BURSWOOD NOMINEES LTD
Third Defendant
Catchwords:
Costs - Whether costs should follow the event - Costs of 'public interest' litigation - Whether separately represented defendants should be restricted to one set of costs - Whether special costs orders should be made
Legislation:
Legal Profession Act 2008 (WA), s 280(2)
Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 2(d)
Result:
Costs orders made in favour of defendants
Category: B
Representation:
Counsel:
Plaintiffs : No appearance (on the papers)
First Defendant : No appearance (on the papers)
Second Defendant : No appearance (on the papers)
Third Defendant : No appearance (on the papers)
Solicitors:
Plaintiffs : Solomon Brothers
First Defendant : State Solicitor for Western Australia
Second Defendant : State Solicitor for Western Australia
Third Defendant : King & Wood Mallesons
Case(s) referred to in judgment(s):
Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55
Collard v The State of Western Australia [No 4] [2013] WASC 455 (S)
Heartlink Ltd v Jones [2007] WASC 254 (S)
Kidd v The State of Western Australia [2014] WASC 99
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2)
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 (S)
Richard Brady Franks Ltd v Price (1937) 37 SR (NSW) 37
Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S)
Ruddock v Vadarlis [No 2] [2001] FCA 1865; (2001) 115 FCR 229
Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 (S)
Secure Parking (WA) Pty Ltd v Wilson [2005] WASC 264 (S)
Statham v Shephard (No 2) (1974) 23 FLR 244
Verduci v Catanzarita (1981) 53 FLR 156
- BEECH J:
Introduction
1 On 26 March 2014, I published reasons for decision1 dismissing the plaintiffs' claims. The basic circumstances and the nature of the plaintiffs' claims were explained in the primary reasons as follows:2
The third defendant proposes to carry out construction of a third hotel and associated facilities, including restaurants, bars, a ballroom and other leisure facilities.
The plaintiffs own or lease apartments in Burswood near to the site of the casino complex. The plaintiffs seek to restrain all further work on the third defendant's project unless and until the project goes through the development approval process under the general laws of the State and local planning schemes.
The defendants' case is that development approval under generally applicable planning laws is not necessary because the site of the proposed development is exempted from the operation of those laws by s 7(1) and s 7(2) of the Casino Act. The defendants say that by cl 13 of the Casino Agreement, development of the site is controlled by the second defendant (the Minister), as Minister responsible for the administration of the Casino Agreement, and the Minister has given valid consent to the proposed project.
Part of the third defendant's proposed project is on land that was not part of the original site of the Casino complex. The additional land was sold by the State to the third defendant in 2013.
The plaintiffs' central proposition is that, for a number of reasons, the exemption in s 7 of the Casino Act does not apply to that additional land.
2 On 26 March 2014, I ordered that the action be dismissed, and made orders for the exchange of affidavits and submissions on the question of costs, with that question to be dealt with on the papers. These reasons deal with the question of the costs of the action.
The parties' submissions on costs
3 The defendants submit that:
(1) costs should follow the event;
(2) the plaintiffs should pay the costs of the third defendant, and the costs of the first and second defendants; and
(3) special costs orders removing the limits of some items of the scale should be made.
4 The plaintiffs submit that:
(1) no costs should be awarded because of features of this case that are sometimes encapsulated in the shorthand terms public interest or test case litigation;
(2) alternatively, all defendants should be awarded only one set of costs between them; and
(3) some of the special costs orders sought by the defendants should not be made.
5 Consequently, the parties' submissions give rise to three main issues:
(1) Should costs follow the event?
(2) If so, should the defendants be awarded only one set of costs?
(3) What special costs orders should be made?
6 I will deal with these issues in turn.
Should costs follow the event?
General principles
7 The court has a general discretion to award costs. The starting point in the exercise of that discretion is that, generally speaking, costs will be awarded to the successful party.3 In Oshlack v Richmond River Council,4 McHugh J explained the rationale for this usual position:
The expression the 'usual order as to costs' embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.
As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.
8 The usual rule that costs follow the event is not absolute. A court may depart from it in special circumstances.5 The use of that expression was said by Martin CJ and Murphy JA in Roe v The Director General, Department of Environment and Conservation for the State of Western Australia6 to emphasise the rare and exceptional character of occasions on which it is appropriate to depart from the usual order as to costs.
9 It has been said that 'litigants espousing the public interest are not thereby granted an immunity from costs or a "free kick" in litigation'.7 In Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale,8 the Full Court expressed the view that 'great care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner'. Further, in that case, the Full Court said that the denial of costs to successful litigants upon the ground that the litigation bears a public interest character should continue to be a rarity.9
10 In Collard v The State of Western Australia [No 4],10 Pritchard J explained why caution is needed in approaching the exercise of costs discretion by reference to shorthand terms such as public interest litigation or test case.
11 It is well-established that characterisation as public interest litigation is not sufficient on its own to warrant a departure from the usual order as to costs.11
12 Some of the factors that, in particular cases, have been considered relevant to whether a departure from the usual order as to costs was warranted were summarised by Pritchard J in Collard v The State of Western Australia:12
The factors identified as characteristic of 'public interest litigation' include those where the subject matter of the proceeding involves a matter in the public interest (bearing in mind that the fact that an action is of interest to the public does not mean that it is in the public interest) and that the proceedings have been brought by the plaintiff or applicant to advance that legitimate public interest. As I have already observed, these factors alone will not be sufficient to justify a departure from the usual rule as to costs. Something more is required.
Other factors relied upon in the cases include whether the applicant had an arguable case - that is, that the contentions advanced were not frivolous or lacking in substance or foundation, whether the proceedings involved private gain, whether the proceedings have contributed to the clarification and proper understanding of the law, or raised novel questions of general importance, or whether the proceedings will have implications for persons other than the individual litigants or will benefit the public or a large section of the public.
On the other hand, the fact that the litigation is brought against the State, or an agency of the State, does not mean that the litigation can be characterised as public interest litigation, or that the nature of the defendant, of itself, is a reason for departing from the usual rule as to costs.
In those cases where a departure from the usual order as to costs has been thought warranted on the basis that the case is a 'test case,' there has been little elaboration on what that label signifies. The fact that a case raises for the first time the meaning or operation of a legislative provision, or the application of the legal principles applicable to a novel fact situation, cannot be sufficient to characterise that case as a 'test case' for present purposes. Such cases are hardly unusual, and as a matter of policy, it is difficult to see why novelty would justify a departure from the usual order as to costs.
13 In the end, as Martin CJ and Murphy JA observed in Roe,13 the costs discretion must be exercised in the context of the particular circumstances of the case. The breadth of potentially relevant facts and circumstances and, I would add, the varying weight to be given to various circumstances, means that limited insight can be gained from a detailed consideration of previously decided cases. Particular factors may have different weight in different cases.14
The proper exercise of the costs discretion in this case
14 The plaintiffs point to the following circumstances as justifying a departure from the usual order as to costs:
(1) many hundreds of residents are affected by the proposed development. The proceedings were commenced by the plaintiffs in the interests of all residents likely to be affected;
(2) the proceedings were likely to and have resolved the process to be followed by the defendants in relation to all future planned developments on the Resort Lands;
(3) although the plaintiffs were motivated to commence the proceedings in part by the damage done or to be done to their interests by the proposed development, the primary purpose of the proceeding was to advance a legitimate public interest of ensuring that the proposed development be properly reviewed, as on the plaintiffs' case was required by law, through application of the usual planning processes; and
(4) the plaintiffs' contentions were arguable, and raised and resolved significant issues affecting a far wider class of persons than the plaintiffs.
15 For the reasons that follow, I am not persuaded that it is appropriate in this case to depart from the usual order as to costs.
16 First, there are no special legislative provisions regarding costs or standing.
17 Secondly, this was not a case where the plaintiffs had nothing to gain from the litigation. The parties' submissions made competing assertions about the plaintiffs' motivation in bringing the action. In this respect, the primary focus is not on the plaintiffs' subjective motivation, but on the character of the proceedings.15 Approaching the assessment objectively, this is not a case like Oshlack16 or Roe17 where the plaintiffs had 'nothing to gain from the litigation' or were 'without prospect of personal gain or advantage'. As residents of the nearby apartments, the plaintiffs advanced their own interests in asserting the application of general planning regime through the non-applicability of the special legislative regime under the Casino Act. That involves no criticism of the plaintiffs; they were entitled to make their claims in the action. However, the character of the action differs substantially from cases like Oshlack and Roe.
18 Thirdly, it is true that other residents in the Burswood Peninsula are similarly affected by the proposed development, and that the case resolves the process for any future development of the Resort Lands. However, those circumstances do not sustain a departure from the ordinary costs rule. Any case involving questions of statutory construction will almost always have consequences beyond the parties to the action. The decision in this case does not have significance beyond the specific regime created by the Casino (Burswood Island) Agreement Act 1985 (WA) (Casino Act) and the Casino Agreement. In this respect the position is significantly different from that in Roe, where the court considered that the decision had an importance for the administration of the laws of Western Australia relating to the protection of the environment.18
Should the defendants be awarded only one set of costs?
19 Order 66 r 2(d) provides as follows:
(d) where 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.
20 A party is entitled to be represented as it sees fit, and cannot be compelled to share representation with another party. However, if there has been unnecessary separate representation, the court may allow one set of costs only to the parties who could reasonably have had common representation.19
21 The costs of separate representation should be allowed where there is a difference in the facts or law relating to several defendants, if they have different interests, if there is an actual or possible conflict of interest between them, or if there is any other circumstance that makes it embarrassing for counsel appearing for one defendant to appear for them all.20
22 As Woodward J observed in Statham v Shephard,21 there may be circumstances in which, although the defendants were united in their opposition to the plaintiff, their relationship to each other may be such that they would be acting reasonably in remaining at arm's length during the course of the litigation. To my mind this is such a case.
23 I am not satisfied that the first, second and third defendants should appropriately have joined in their defence through a single set of solicitors. To the contrary, in my view it was appropriate for the third defendant, on the one hand, and the State of Western Australia and the Minister, on the other hand, to be separately represented. That is so, in my opinion, taking into account the following matters.
24 The State and the Minister had a legitimate interest in defending the exercise of the Minister's power to grant the development approvals. 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.
25 The third defendant had a legitimate interest in actively participating in the proceedings, having paid $60 million for the land, and expended time and money in carrying out the development. Further, the terms of the Sale and Development Agreement meant that, in substance, the third defendant took the contractual risk on the question of whether the Minister had power to approve the development.
26 The action raised questions of the proper construction of the Casino Agreement and the Casino Act. The State and the third defendant are contractual counterparties to the Casino Agreement, under which they have an ongoing relationship. That ongoing relationship has potential to give rise to conflicting interests which had the potential to influence their approach to the defence of the proceedings.
27 That, in the end, all defendants took a substantially similar (but not identical) approach to the trial is not decisive. It would have been open to the two groups of defendants to take different approaches. Each group of defendants appropriately had independent solicitors conducting their defence and advising them in this regard. As contractual counterparties, these two groups of defendants could not reasonably be expected to have engaged a single set of solicitors.
28 The process of discovery and taking of instructions as to past events for each of the two groups of defendants could not have been appropriately been done by a single set of solicitors. Those processes could likely have involved consideration of privileged material or of internal workings of a client and potentially conflicting commercial considerations.
29 While there was substantial common ground between the pleadings and submissions advanced by the two groups of defendants, they were not identical. For example, the two groups of defendants advanced different constructions of the Casino Agreement, including as to the proper reconciliation of cl 7 and cl 9 of the Casino Agreement with s 7 of the Casino Act. Moreover, from the court's perspective, counsel for the defendants appropriately avoided any unnecessary repetition in the course of oral submissions.
30 In my view contrary to the plaintiffs' submission, this was not a case where the Hardiman22 principle required the first and second defendants not to assume the position of protagonist. The proceedings were not concerned in any way with the merits of the Minister's decision to grant approval under cl 13 of the Casino Agreement.
What special costs orders should be made?
31 All defendants seek special costs orders. There is very limited dispute in relation to the application by the first and second defendants. There is considerable dispute in relation to the orders sought by the third defendant. I will set out some uncontroversial general principles about special costs orders, before turning to the first and second defendants' application.
Special costs orders - general principles
32 All parties invited the application of the outline of principles in Pourzand v Telstra Corporation Ltd23and in Red Hill Iron Ore Ltd v API Management Pty Ltd.24
33 In Pourzand v Telstra Corp, Edelman J said as follows:25
[B]efore a discretion can be exercised to make a special costs order, the court must be of the opinion:
(1) the Scale item is inadequate, and
(2) the inadequacy arises because of the unusual difficulty, or complexity, or importance of the matter: Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [11] (Martin CJ)
These questions are to be addressed as matters of impression rather than detailed evaluation EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) [7] (Martin CJ). Courts should draw from their experience and act on impressions gained during the litigation to take into account the issues which have been involved, albeit without attempting to make an estimate of the time which is thought to be appropriate when the information for that assessment is not all available: Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S) [43] (Pullin J).
As to (1) (inadequacy of the Scale item), the inadequacy will be demonstrated if 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 that would be imposed by the relevant costs determination: Heartlink Ltd [16] (Martin CJ).
A conclusion that it is fairly arguable that the taxing officer might properly allow costs at an amount greater than the amount allowable under the Scale does not always require evidence of the costs actually incurred: Frigger v Lean [2012] WASCA 66 [81] (Allanson J; Newnes & Murphy JJA agreeing).
As to (2) (inadequacy arising due to the unusual difficulty, complexity, or importance of the matter), the adjective 'unusual' qualifies only the 'difficulty' of the matter, not its complexity or importance: see, in relation to the identical terms of the predecessor to s 280(2): Heartlink Ltd [17] (Martin CJ); Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S) [33] (Simmonds J); SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2) [102] - [106] (Roberts-Smith J).
Finally, although replacing the amount of the Scale item with a different ceiling may be appropriate where sufficient information exists to make that assessment, it is not uncommon for an order to be made removing the limit for the Scale item without replacing that limit with a different ceiling: EDWF Holdings [8] - [9], [13] (Martin CJ). When the Scale ceiling is lifted a taxing officer is otherwise unconstrained and need not allow costs above the previous Scale ceiling.
34 In Red Hill, I applied those principles, and added the following:26
Further, one of the policy considerations that should guide a court in addressing an issue under s 280(2) is that the court should not usurp the role of the taxing officer: Heartlink Ltd v Jones [2007] WASC 254 (S) [13]; O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) [20].
'Importance' in s 280(2) encompasses importance to the parties; it does not require broader importance to the public or a sector of the public: Heartlink v Jones [17] - [19].
'Unusual' in s 280(2) means unusual having regard to what one might describe as the usual run of civil cases determined in the Supreme and District Courts. That involves a value judgment by the court taking into account the court's experience of a particular case compared to the usual run of cases: O'Rourke v P & B Corporation Pty Ltd [23] - [25].
The first and second defendants' application
35 The plaintiffs do not oppose the first and second defendants' application for an order lifting the scale time limit in relation to item 3(b) of the scale (defence), item 7(b) (discovery) and item 20(a) (trial).
36 The first and second defendants also apply to lift the limit for item 17, relating to preparation of the case. Item 17 provides for 120 hours for preparation. The first and second defendants have prepared a draft bill which claims $63,000 for preparation, based on 210 hours at $300 an hour. The affidavit of Mr Quinn says that something over 225 hours of work was carried out, listing a number of items of work in general terms.27
37 The plaintiffs contend that some of the categories of work listed are not, or may not be, properly claimable under item 17.28 Further, the plaintiffs submit that the first and second defendants' schedule is too imprecise and lacking in detail to sustain a favourable exercise of power under s 280(2) of the Legal Profession Act 2008 (WA) in relation to this item.29
38 Taking into account my knowledge of the matter, and the evidence of Mr Quinn to which I have referred, I am satisfied that there is a fairly arguable case that the bill to be presented to the taxing officer in relation to item 17 may tax at an amount greater than the limit of that item. The question of whether all the components in the draft bill are properly claimable under item 17, or under some other item or not at all, will be a matter for the taxation.
The third defendant's application
39 The third defendant seeks special costs orders removing the limits under the scale in relation to:
(a) the defence (scale item 3(b));
(b) discovery (item 7(b));
(c) proceedings in chambers (item 10);
(d) preparation of case (item 17); and
(e) trial (item 20(a),(b), (c), (d) and (e)).
40 The third defendant also seeks an order that there be allowance for the involvement of both senior and junior counsel in all of those items, apart from discovery; that there be allowance for the attendance of two instructing senior practitioners at the trial and that there be a certificate for the transcript.
41 The plaintiffs do not object to the lifting of the time limit relating to item 3(b), the preparation of the defence. However, the plaintiffs object to an increase in the maximum hourly rate.30
42 The plaintiffs accept that the proceedings were of importance to all parties and that the legal issues involved were unusually difficult and complex. In my opinion, that is a concession rightly made. I accept that the action was complex, important to the parties and unusually difficult, broadly for the reasons advanced in the third defendant's submissions on costs.31
43 Taking into account what is said in the affidavit of Mr Lundberg32 I am satisfied that there is a fairly arguable case that the bill may tax at an amount greater than the hourly rate applicable under the costs determination. In short, I am satisfied that it is arguable that the complexity, importance and unusual difficulty of the action made it reasonable and appropriate for the third defendant to engage solicitors and counsel at rates above those allowed in the scale. Of course, the ultimate question of whether that is so is a matter for the taxing officer.33
44 The plaintiffs object to the lifting of the limit in relation to discovery (item 7(b)). Item 7(b) provides a maximum amount of $4,510, reflecting 10 hours work by a senior practitioner. The plaintiffs emphasise that the third defendant discovered less than 100 documents. The work described and quantified in the relevant schedule to Mr Lundberg's affidavit includes over 75 hours for each of a senior practitioner and a junior practitioner in correspondence between the parties regarding the scope of discovery, preparation of the affidavit of discovery and further informal discovery. The schedule states that the third defendant reviewed in excess of 4,000 documents electronically and 109 boxes of documents held in archives containing documents dated from 1985 onwards.
45 I would remove the limit in relation to item 7(b).
46 The plaintiffs oppose the removal of the limit relating to item 10, proceedings in chambers. The limit for that item allows for two days preparation and one day hearing for counsel, being a maximum amount of $10,560. This item concerned a directions hearing on 20 December 2013. Ultimately, the directions hearing was very short in duration, with very little in issue between the parties. There was substantial conferral in the lead up to the directions hearing.34 The relevant schedule states that a senior practitioner did almost 50 hours of work and a junior practitioner did 20 hours work in conferral, and in preparing a letter to the court with a minute of proposed orders and an affidavit. Over 50 hours of practitioner time was said to have been spent preparing that letter to the court, the proposed orders and Mr Noel's affidavit and conferring with counsel in relation to those. Mr Noel's affidavit contained less than four pages of text, and seven annexures.
47 The material provided by the third defendant does not satisfy me that there is a fairly arguable case that the bill may tax in an amount greater than $10,500 in relation to the appearance on 20 December 2013.
48 Under item 17 the maximum scale allowance for preparation of case is $54,120, calculated on the basis of 120 hours by a senior practitioner charging $451 per hour. The plaintiffs oppose the removal of this limit. The relevant schedule to the third defendant's draft bill of costs summarises in substantial detail the work done that is claimed under this item, and the number of hours of the various practitioners' time that is claimed. The total amount of time, at the rates claimed, amounts to over $200,000, but the total sum claimed for this item is $130,000.
49 The plaintiffs submit that a number of the items included in the schedule are not legitimately included in a claim made under the head of 'preparation of case'.35 Further, the plaintiffs' claim that some of the items are claimed in an exorbitant amount such that there is no prospect of an allowance being made in the amount claimed.36
50 The question for me is whether I am satisfied that there is fairly arguable case that the bill may tax in an amount greater than the scale allowance of $54,120. Beyond that, issues as to whether all of the items claimed by the third defendant are claimable under this item, and as to the appropriate amount to be claimed for various heads of work, are all issues for the taxing officer. I am satisfied that the limit for this item should be removed.
51 The third defendant seeks the removal of a number of items relating to the trial of the action, namely item 20(a), 20(b), 20(c), 20(d) and 20(e).
52 Item 20(a) relates to the fee on brief for junior counsel, comprising the first day of trial and preparation, including submissions. The scale allows 3.5 days for preparation and a total amount of $16,335. The third defendant's schedule states that junior counsel for the third defendant spent just over 53 hours in preparation. Given the nature, content and complexity of the competing written submissions in this action, I am satisfied that the limit in item 20(a) should be removed.
53 The third defendant also seeks the removal of the limit in item 20(b), being the fee on brief for senior counsel. The scale item is based on 3.5 days of preparation and the first day of trial, and allows a total amount of $28,710. Given that the third defendant's schedule states that senior counsel spent 15 hours in preparation, I am not satisfied that there is a fairly arguable case that in this respect the bill, would tax in an amount above the scale item.
54 The third defendant seeks the removal of the limits in item 20(c) and 20(d), being counsel fees for junior and senior counsel for the second and third day of the hearing. That is opposed by the plaintiffs on the grounds that the daily and hourly rates inherent in the scale item should not be removed. For reasons already given, I do not agree with that. I would accordingly remove the limits in relation to item 20(c) and 20(d).
55 The third defendant seeks an order that there be an allowance for the attendance of two instructing senior practitioners at trial. The third defendant has not explained in its affidavit or submissions why it was reasonably necessary to have two instructing senior practitioners attend at trial. The third defendant was represented by both senior counsel and junior counsel, both of whom had a long involvement with the action. Moreover, the case turned essentially on legal argument and analysis. There was very little prospect of unexpected factual twists and turns, and none eventuated. I decline to order that there by an allowance for the attendance of two instructing senior practitioners at the trial.
56 The plaintiffs oppose a certificate for the transcript. They submit that there were no witnesses called at the trial and it was not necessary. I am satisfied that it was reasonable for the third defendant to obtain the transcript to ensure that the wide ranging submissions being put in the case were accurately and precisely grasped.
The costs of this application
57 The defendants have, in substance, succeeded in relation to the issues on costs. They should have their costs of this application. That can be achieved by including the costs of this application in the costs of the action.
Conclusion
58 For these reasons, I make orders as follows:
(1) the plaintiffs pay the first and second defendants' costs of the action, including reserved costs and including the costs application, to be taxed if not agreed;
(2) pursuant to s 280(2) of the Legal Profession Act 2008 (WA) special costs orders be made in favour of the first and second defendants, namely that the limits imposed in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (Scale) be removed in relation to the following items:
(a) defence, scale item 3(b);
(b) discovery, item 7(b);
(c) preparation of the case, item 17; and
(d) trial, item 20(a).
(3) the plaintiffs pay the third defendant's costs of the action, including reserved costs and including the costs application, to be taxed if not agreed;
(4) pursuant to s 280(2) of the Legal Profession Act 2008, special costs orders be made in favour of the third defendant in respect of its costs of the action, namely that the limits imposed in the Scale be removed in relation to the following items:
(a) defence, scale item 3(b);
(b) discovery, item 7(b);
(c) preparation of the case, item 17; and
(d) trial, items 20(a),(c) and (d).
(5) there be allowance for the involvement of both senior and junior counsel in items (a) and (c), and (d) of par (4) above;
(6) the third defendant have a certificate for the transcript; and
(7) the obligations to pay costs imposed upon the plaintiffs by these orders be borne jointly and severally by the plaintiffs.
1Kidd v The State of Western Australia [2014] WASC 99.
2Kidd [2] - [6] (footnotes omitted).
3Rules of the Supreme Court 1971 (WA) O 66 r 1(1).
4Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67] - [68] (footnotes omitted).
5Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S) [12].
6Roe v The Director General [13].
7Oshlack v Richmond River Council [134].
8Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 [11], cited with approval in Roe v The Director General [13].
9Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [11].
10Collard v The State of Western Australia [No 4] [2013] WASC 455 (S) [14] - [19].
11Ruddock v Vadarlis[No 2] [2001] FCA 1865; (2001) 115 FCR 229 [14], [19], [21]; Roe v The Director General [12].
12Collard v The State of Western Australia [21] - [24] (footnotes omitted).
13Roe v The Director General [14].
14Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 (S) [51].
15Oshlack v Richmond River Council [140].
16Oshlack v Richmond River Council [20(iii)].
17Roe v The Director General [22].
18Roe v The Director General [20].
19Secure Parking (WA) Pty Ltd v Wilson [2005] WASC 264 (S) [14].
20Verduci v Catanzarita (1981) 53 FLR 156, 159; Richard Brady Franks Ltd v Price (1937) 37 SR (NSW) 37, 50; Statham v Shephard (No 2) (1974) 23 FLR 244, 246.
21Statham v Shephard (246).
22R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35 - 36.
23Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2) [9] - [14].
24Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 (S).
25Pourzand v Telstra Corporation Ltd [9] - [14].
26Red Hill Iron Ltd v API Management Pty Ltd [6] - [8].
27 Affidavit of John Loftus Quinn sworn 9 April 2014, sch C.
28 Plaintiffs' outline of submissions as to costs [64].
29 Plaintiffs' outline of submissions as to costs [65].
30 Plaintiffs' outline of submissions as to costs [35].
31 See third defendant's submissions on costs 10 April 2014 [16] - [20].
32 Affidavit of Michael Lundberg sworn 10 April 2014 [23] - [28].
33Heartlink Ltd v Jones [2007] WASC 254 (S) [14] - [15], [26].
34 See the correspondence at annexure LMR-1 to the affidavit of Lisa Retallack sworn 22 April 2014.
35 Plaintiffs' outline of submissions as to costs [61] - [62].
36 Plaintiffs' outline of submissions as to costs [63].
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