Le Brun v Joseph [No 2]
[2010] WASCA 52 (S)
•24 MARCH 2010
LE BRUN -v- JOSEPH [No 2] [2010] WASCA 52 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASCA 52 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:29/2007 | 18 & 19 AUGUST 2009 | |
| Coram: | McLURE P PULLIN JA NEWNES JA | 24/03/10 | |
| 20/05/10 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Special costs order made | ||
| B | |||
| PDF Version |
| Parties: | GARRY JAMES LE BRUN by his next friend ELAINE LE BRUN NEVILLE PETER JOSEPH JOANNE MARIE BESTED RUTH MARION KEARON MINISTER FOR HEALTH |
Catchwords: | Costs Application for special costs order Legal Practice Act 2003 (WA), s 215 Turns on own facts |
Legislation: | Legal Practice Act 2003 (WA), s 215 |
Case References: | Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S) Le Brun v Joseph [No 2] [2010] WASCA 52 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LE BRUN -v- JOSEPH [No 2] [2010] WASCA 52 (S) CORAM : McLURE P
- PULLIN JA
NEWNES JA
DECISION : 20 MAY 2010 FILE NO/S : CACV 29 of 2007 BETWEEN : GARRY JAMES LE BRUN by his next friend ELAINE LE BRUN
- Appellant
AND
NEVILLE PETER JOSEPH
First Respondent
JOANNE MARIE BESTED
Second Respondent
RUTH MARION KEARON
Third Respondent
MINISTER FOR HEALTH
Fourth Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MCCANN DCJ
Citation : LE BRUN (AN INCAPABLE PERSON SUING BY HIS NEXT FRIEND ELAINE LE BRUN) -v- JOSEPH & ORS [2006] WADC 200
File No : CIV 2643 of 2003
Catchwords:
Costs - Application for special costs order - Legal Practice Act 2003 (WA), s 215 - Turns on own facts
Legislation:
Legal Practice Act 2003 (WA), s 215
Result:
Special costs order made
Category: B
Representation:
Counsel:
Appellant : No appearance (on the papers)
First Respondent : No appearance (on the papers)
Second Respondent : No appearance (on the papers)
Third Respondent : No appearance (on the papers)
Fourth Respondent : No appearance (on the papers)
Solicitors:
Appellant : Friedman Lurie Singh & D'Angelo
First Respondent : Pynt & Partners
Second Respondent : Pynt & Partners
Third Respondent : Jackson McDonald
Fourth Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S)
Le Brun v Joseph [No 2] [2010] WASCA 52
(Page 4)
1 JUDGMENT OF THE COURT: On 24 March 2010, the court delivered judgment in this appeal: Le Brun v Joseph [No 2] [2010] WASCA 52. At that time, orders were made dismissing the appeal and the cross-appeal, but the costs of the appeal and cross-appeal were reserved. Directions were given for the filing and service of submissions in relation to the appropriate orders as to costs. Pursuant to the directions, those orders are to be determined on the papers.
2 On 19 April 2010, the third and fourth respondents filed a minute of the costs orders they sought and an affidavit of Lainee Rae Bartholomaeus, sworn 16 April 2010, in support of the application. On 20 April 2010, the first and second respondents filed a minute of the costs orders they sought and an affidavit of Stephen Robert Merrick, sworn the same day, in support. We have read those affidavits and it is unnecessary to canvass them in these reasons.
3 The appellant did not file any responsive affidavit or submissions and did not wish to be heard on the applications.
4 The costs orders sought by the various respondents are to the same effect. The respondents seek orders that:
1. the appellant's next friend pay the costs of the appeal and of the hearing on 24 March 2010 to be taxed, and;
2. the limits imposed by the relevant legal costs determinations made pursuant to s 210 of the Legal Practice Act 2003 (WA), be removed in respect of items 22(b) (respondent's answer), 22(d) (settling appeal book indexes), 22(e) (application in an appeal), 22(f) (getting up appeal for hearing), 22(g) (counsel fee on appeal hearing including preparation) and 22(i) (counsel fee for the second day of hearing).
5 The applications for the removal of the limits contained in the legal costs determinations are brought pursuant to s 215(2) of the Legal Practice Act2003 (WA) which provides:
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 legal 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 -
…
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- (c) remove limits on costs fixed in the determination.
6 Such an application involves two questions: first, whether it is fairly arguable that the taxing officer might properly allow costs at an amount greater than the amount allowable under the relevant legal costs determination; and secondly, whether the inadequacy of the amount allowable under the relevant legal costs determination arises because of the unusual difficulty, complexity or importance of the matter: Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S) [16]. We are satisfied that in this case the requirements of s 215(2) are met.
7 The trial of the action took some 23 days, a substantial part of which was taken up by expert medical evidence. The transcript of the trial exceeded 2,300 pages and more than 100 exhibits were tendered, including expert medical reports and medical literature. The reasons for decision of the trial judge extended to 172 pages.
8 In his initial appellant's case, the appellant relied upon 20 grounds of appeal. Those grounds challenged findings of the primary judge on issues involving emergency medicine and general medical practice, and a number of specialised fields of practice, including neurosurgery, neuroradiology and radiation oncology.
9 On 24 October 2007, the appellant applied for leave to amend the appellant's case. That application led to three hearings and two proposed amended cases were put forward by the appellant, one on 8 November 2007 and another on 29 February 2008. A further minute of substituted grounds of appeal was filed on 10 June 2008. The application was ultimately determined on 15 August 2008. It resulted in the appellant's grounds of appeal being reduced to six grounds. However, those grounds were 14 pages in length and the new submissions 42 pages in length. They departed substantially from the original grounds of appeal and submissions. As was noted in the reasons for judgment on the appeal, the grounds were discursive in nature and did little to assist in elucidating the specific matters in issue on the appeal.
10 There were then a number of hearings before the Court of Appeal Registrar to settle the appeal book index.
11 The hearing of the appeal took one and a half days and required, among other things, consideration of the extensive expert medical evidence given at trial (a good deal of which was of a highly specialised
(Page 6)
- nature), involving the written reports and the oral evidence of some 13 expert medical witnesses.
12 It is apparent from the affidavit evidence that the actual costs incurred by the first and second respondents, and by the third and fourth respondents, respectively, substantially exceed the amounts allowable in respect of the relevant items in the legal costs determination.
13 We are satisfied that in the circumstances the taxing officer might properly allow costs at amounts greater than the amounts allowable under the specified items in the relevant legal costs determination and that that has come about because of the unusual difficulty and complexity of the appeal. Of course, whether in respect of any of those items a greater amount should be allowed is entirely a matter for the taxing officer on the taxation of costs.
14 It was submitted on behalf of the fourth respondent that there should be no order as to the costs of the fourth respondent's cross-appeal. We accept that submission. The cross-appeal was conditional upon the appellant being successful in its appeal against the decision of the primary judge relating to the fourth respondent. As the appellant was unsuccessful, it was unnecessary to determine the cross-appeal. In circumstances where the cross-appeal was responsive to the appeal, it is appropriate that there be no order as to the costs of the cross-appeal.
15 We do not consider that a specific order is necessary in relation to the attendance on delivery of judgment on 24 March 2010, those costs being covered by item 22(h). We would therefore make the following orders:
1. The appellant's next friend pay the respondents' costs of the appeal (including reserved costs) to be taxed.
2. The limits imposed by the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA) and Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 (WA) (as may be applicable), be removed in relation to items 22(b), 22(d), 22(e), 22(f), 22(g) and 22(i).
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