Koch v Monshipouri [No 2] - [2020] WADC 153

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   KOCH -v- MONSHIPOURI [No 2] [2020] WADC 153
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   5 NOVEMBER 2020
DELIVERED          :   8 DECEMBER 2020
FILE NO/S:   CIV 2617 of 2019
BETWEEN:   LAUREN KOCH
Plaintiff

AND

DR GHAZELAH MONSHIPOURI
First Defendant

DR ANKUR MITTAL
Second Defendant

CASHMERE MEDICAL PTY LTD
Third Defendant

Catchwords:

Practice and procedure - Application to uplift scale for summons - Turns on its own facts

Legislation:

Legal Profession Act 2008 (WA), s 280(2)

Result:

Uplift allowed

Representation:

Counsel:

Plaintiff	:	Mr R D McCabe
First Defendant	:	Ms A L Pascoe
Second Defendant	:	Mr D F Langman
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Slater & Gordon - Perth
First Defendant	:	Avant Law
Second Defendant	:	Barry.Nilsson Lawyers
Third Defendant	:	H Drakos and Company Solicitors

Case(s) referred to in decision(s):

Nil

DEPUTY REGISTRAR HEWITT:

On 29 July 2020 Deputy Registrar Harman heard an application by the first defendant by notice filed 15 August 2019 and a chambers summons filed by the second defendant on 7 November 2020 and made orders in regard to the first defendant's application:
1.the application be dismissed;
2.the First Defendant do pay the Plaintiff's costs of the application to be taxed;
3.by no later than 21 August 2020 the Plaintiff do file and serve:
(a)any affidavit upon which she intends to rely in seeking a special costs order; and
(b)an outline of submissions and list of authorities;
4.By no later than 11 September 2020 the First Defendant do file and serve:
(a)any affidavit upon which she intends to rely; and
(b)an outline of submissions and list of authorities;
5.within 7 days each party do provide their unavailable dates for hearing an application of the Plaintiff's for a special costs order;
6.there be liberty to apply.
Orders in the same terms were made on the second defendant's application.
As can be seen, the deputy registrar left it open to the plaintiff to make application for a special costs order and made programming orders for that process to take place. It has fallen to me to deal with the application for special costs. I would have expected in the normal course that Deputy Registrar Harman would have dealt with such an application but nonetheless it was allocated to me. I formed the view there was no impediment to me dealing with the application for special costs and none of the parties objected to me doing so and as a consequence I have heard the application and this is my decision on it.
The application is based on s 280(2) of the Legal Profession Act 2008 (WA) which is in the following terms:
(2)Despite subsection (1), 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 -
(a)order the payment of costs above those fixed by the determination;
(b)fix higher limits of costs than those fixed in the determination;
(c)remove limits on costs fixed in the determination;
(d)make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.
The relevant facts of the matter are contained in the decision of Deputy Registrar Harman delivered on 29 July 2020 and there is no need to repeat them here, save to say that the application with which the deputy registrar dealt, was one to either strike out the proceedings or stay them pursuant to the Service and Execution of Process Act 1992 (Cth). The basis of the latter aspect being that the defendants were resident in Queensland and the events which gave rise to the cause of action occurred in Queensland.
As to the strike out it seemed to me the weaker limb of the application, as appears from the decision of the deputy registrar. It is in regard to the stay application that the real energy of the parties was exercised.
The affidavit of Karen Jarman lodged 20 August 2020 states that in opposing the applications, senior counsel spent approximately 82 hours, his junior spent approximately 49 hours and the instructing solicitor spent approximately 30 hours. Those hours total 163 hours which is a breathtakingly large investment in effort for a hearing which I am informed lasted three hours. It is suggested by the defendant in submissions that applying the maxima in the scale of costs, this investment of time would approximate $92,000. These times and this amount exceed the 120 hours and $59,400 which could be allowed (unless a costs uplift order was made) as the maximum for preparing the entire case for trial.
Upon what then does the plaintiff rely upon to justify such an amount? Basically, the argument put forward is that the application was sudden death for the plaintiff because in the event that the action was required to be conducted in Queensland, she would not be able to manage it and the action would perish. Of course, as a matter of law, it is not the case that the action would perish but it is advanced by the plaintiff as the practical outcome of the success of the defendants' applications and for the purposes of these reasons I accept that that is accurate and deserved intense effort on the part of the lawyers representing the plaintiff in the defence of the applications. Nonetheless the figures that I have just quoted go beyond any, in my experience, that could possibly be allowed for an application of the kind with which the defendants were required to deal.
In essence, the matter boiled down to the most important issue, was the Queensland court the more appropriate court?
I now approach the matter with that in mind. The law on an application for an uplift of costs is fairly clear. I am not required to, in effect, do my own taxation of the case but am merely required to consider whether the plaintiff has an arguable case for an award of costs in excess of that permitted by the scale. Ultimately, the discretion of the taxing officer will determine the amount allowed and the effect of any uplift is to permit an amount over scale to be allowed if the officer thinks it justified.
In that regard, I turn to the relevant scale which is the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018. There has been some debate as to whether the appropriate item upon which the bill could be taxed is item 10 which are proceedings in chambers, or item 11 concerned with originating process. Clearly this matter is not an originating process and although it is suggested that I should regard it as analogous, my view is that the application falls firmly within item 10 and unless I were to make an uplift order the maxima which could be allowed for each application by senior counsel and supporting junior is $20,460 for the senior and $12,540 for the junior, a total of approximately $33,000. I also bear in mind that an uplift of the scale items does not necessarily mean that the plaintiff would be awarded a greater sum on a taxation but simply opens the way for a taxing officer, were he or she to consider an increase above the prescribed limits to be appropriate, to tax the matter out at a higher sum.
The relevant factors in my determination are I consider, the fact that the outcome of the application could very well determine the outcome of the plaintiff's action and, secondly, the quality of the team which was assembled by the plaintiff to represent her and the obvious effort which was put into that representation. The determination necessarily requires a value judgment and in my view the scale, providing as it does an allowance of $33,000 for each application, is quite adequate.
As to whether the costs should be paid forthwith, I note that the deputy registrar made an order that the costs of the application are to be taxed. In my opinion such an order carries with it the right of immediate taxation and there is no need for me to determine that issue.
At this point I mention that originally I mistakenly thought that the costs order made by Deputy Registrar Harman applied only to the costs payable by the first defendant. That confusion arose because the orders for costs were both made the same day, extracted the same day, and were (save for the name of the party to pay) identical. That lead me to suppose that the two orders on ICMS were duplicates of each other (as sometimes occurs on the system) and not separate orders. Assessing whether an uplift in regard to defending the first defendant's application, and erroneously supposing it was the only order entitling the plaintiff to costs, I considered an uplift of 25% would be appropriate. That would have enabled, had I been correct, the plaintiff to recover a maximum of about $46,000.
Since there are in fact two applications in respect of each of which the plaintiff may recover, I see no need for an uplift beyond the maximum of $66,000 which is available under the scale and therefore decline the orders sought.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LF
Court Officer
8 DECEMBER 2020