Knell v Harris [No 2]
[2015] WADC 25
•12 MARCH 2015
KNELL -v- HARRIS [No 2] [2015] WADC 25
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 25 | |
| Case No: | CIV:3385/2013 | ON THE PAPERS | |
| Coram: | DEPUTY REGISTRAR HARMAN | 12/03/15 | |
| PERTH | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application unsuccessful Costs awarded on the usual terms | ||
| PDF Version |
| Parties: | SIDNEY CHARLES KNELL QAV PTY LTD KATHRYN ISABEL HARRIS WARREN MATHESON LANCE NETLINE PTY LTD |
Catchwords: | Practice Western Australia Practice under the Rules of the Supreme Court of Western Australia Application for costs of interlocutory applications and for special costs orders – Application for indemnity order Application under s 280(2) of the Legal Profession Act (WA) 2008 |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First plaintiff
QAV PTY LTD
Second plaintiff
AND
KATHRYN ISABEL HARRIS
First defendant
WARREN MATHESON LANCE
Second defendant
NETLINE PTY LTD
Third defendant
Catchwords:
Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for costs of interlocutory applications and for special costs orders – Application for indemnity order - Application under s 280(2) of the Legal Profession Act (WA) 2008
Legislation:
Nil
Result:
Application unsuccessful
Costs awarded on the usual terms
Representation:
Counsel:
First plaintiff : No appearance
Second plaintiff : No appearance
First defendant : No appearance
Second defendant : No appearance
Third defendant : No appearance
Solicitors:
First plaintiff : Lawton Gillon
Second plaintiff : Lawton Gillon
First defendant : Lavan Legal
Second defendant : Lavan Legal
Third defendant : Lavan Legal
Case(s) referred to in judgment(s):
Nil
1 DEPUTY REGISTRAR HARMAN: By application dated 9 September 2014 the defendants applied to strike out the amended statement of claim and to disallow amendment of the writ of summons. I have delivered written reasons for decision allowing the application. The parties agreed that the defendants' application for costs and special costs orders would be determined without further appearance after they had filed submissions.
2 The order sought by the defendants is as follows:
(1) the plaintiffs', jointly and severely, pay the defendants' costs of the strike-out applications dated 2 May 2014 and 18 September 2014 including all work relating, or incidental, to or in connection with the conferral processes between the parties in respect of the strike-out applications;
(2) the costs awarded against the plaintiffs in relation to both the strike-out applications and the costs of conferral are to be assessed on an indemnity basis; and
(3) in the alternative to (2) above, an order that the scale limit under item 10 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2014 should be lifted for the purposes of a taxation.
3 The plaintiffs concede the costs of each application, but not of conferral. Otherwise they oppose the defendants' proposals.
4 Although on disposing of an interlocutory application the court may provide for a greater scope of recovery, in the ordinary course an order for costs would be limited by reference to the particular application. Thereby the beneficial party would recover the reasonable cost of each part of the relevant service necessarily provided by his solicitor. The extent of recovery would reflect efficient provision by a competent practitioner.
5 But for one qualification I am not persuaded that there is anything in the applicants' affidavit or submissions to justify recovery other than of the application of 18 September 2014. Because of the respondents' concession, the applicants should also have the costs of the application of 2 May 2014. The prospect that the parties may choose to dispense with taxation does not justify any different form of expression.
6 An order for indemnity costs would transfer the onus of persuasion in any taxation from the beneficial party and establish as the basis of recovery the retainer of his solicitor. Such consequences are considered harsh but may be justified by the need to impose a sanction.
7 The applicants project their case for an indemnity costs order on the proposition that over the relevant period the plaintiffs maintained a hopeless position. At pars 22 - 31 inclusive of their submissions they canvass their efforts to so persuade the plaintiffs; that 24 hours prior to the hearing of the first application, the plaintiffs' circulated minutes which resulted in adjournment of a special appointment; that they again sought to persuade the plaintiffs; and that the amended writ and pleading did not rectify the difficulties presented by the plaintiffs' cases.
8 There is nothing remarkable in that history. It does not establish any want of engagement by the plaintiffs. It may be the case that the course of amendment and adjournment had been precipitated by the defendants' contentions. Prima facie the late circulation of the minutes calls for criticism but whether it would be considered justified would depend upon some greater degree of insight into the circumstances that led to that result. To find in favour of the defendants would necessitate drawing adverse inferences in circumstances where others would at least have some appeal.
9 I am not persuaded that there is any proper basis upon which to order costs on an indemnity basis.
10 To obtain an order for above scale recovery the defendants are required to satisfy the test in s 215(2) of the Legal Practice Act 2003. It is as follows:
… if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following …
11 I was not exposed to the case brought upon the first application. Whilst that fact does not foreclose upon application of the test it renders the applicants' task of discharging the onus more difficult.
12 On the case presented in the second, the plaintiffs had amended the endorsement and provided amended and further pleading. In the course of putting the defendants' submissions, counsel put a straightforward case in relation to each of those features. A reasonable summary of the defendants' case is that each of the propositions on which they relied was clear.
13 In my opinion there was nothing remarkable about either the case or its presentation; certainly nothing that would justify the description that it disclosed any unusual difficulty or was complex. There is nothing that elevated its importance above any similar application in a defamation case.
14 According to the provisions of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2014 it is intended to apply to both party/party and solicitor/client costs but for the prospect that a party has a costs agreement with its solicitor which may allow for recovery on a different basis. There is no evidence of any such agreement. At par 11 of her affidavit the defendants' solicitor deposes that she has prepared two draft bills of costs, one subject to scale and the other not. There is no evidence as to the content of those draft bills.
15 As there is no explanation for the failure to bring evidence and the defendants carry the onus there is no reason to consider drawing inferences that would be to their advantage. There is no reason to provide for above scale recovery.
16 The terms of the order that I will now make on each application is that the plaintiffs do pay the defendants' costs of the application in any event.
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