Lighting BY Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd

[2008] WASCA 23 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	LIGHTING BY DESIGN (AUST) PTY LTD -v- CANNINGTON NOMINEES PTY LTD [2008] WASCA 23 (S)

CORAM : PULLIN JA

BUSS JA

LE MIERE AJA

HEARD	:	16 AUGUST 2007
DELIVERED	:	8 FEBRUARY 2008
SUPPLEMENTARY
DECISION	:	13 MARCH 2008
FILE NO/S	:	CACV 73 of 2007
BETWEEN	:	LIGHTING BY DESIGN (AUST) PTY LTD Appellant
AND
CANNINGTON NOMINEES PTY LTD Respondent
ON APPEAL FROM:
Jurisdiction	:	SUPREME COURT OF WESTERN AUSTRALIA

Coram	: SANDERSON M
Citation	:  LIGHTING BY DESIGN (AUST) PTY LTD v CANNINGTON NOMINEES PTY LTD [2007] WASC 88
File No	:  CIV 1190 of 2007
Catchwords:

Civil practice and procedure - Costs - Whether the court should direct the taxing officer to make a reasonable allowance for senior counsel

Legislation:

Legal Practice Act 2003 (WA), s 207, s 210, s 215
Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 10(2)
Supreme Court Act 1935 (WA), s 37(1)

Supreme Court (Court of Appeal) Rules 2005 (WA), r 5(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr G R Donaldson SC
Respondent	:	Mr N D C Dillon

Solicitors:

Appellant	:	Lavan Legal
Respondent	:	Aherns Lawyers

[2008] WASCA 23 (S)

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

Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008]

WASCA 23

PULLIN JA	[2008] WASCA 23 (S)
BUSS JA

1. PULLIN JA: The 2006 Determination which is set out in Le Miere AJA's reasons does not abrogate or affect the discretionary power of this court with respect to costs.

2              However, it should be a rare case for parties to feel the need to

trouble the Court of Appeal with a request that it give a direction that the briefing of senior counsel was necessary or for the parties to spend time debating the issue before the court as they did in this case. In my opinion, it was certainly not necessary in this case. This case raised complex legal and factual issues, and in my view both parties should have recognised that it was highly unlikely that the taxing officer would have refused to allow fees for senior counsel.

3              Generally speaking, the Court of Appeal is assisted by the

appearance of senior counsel. It would be undesirable if it became the norm for parties to engage in debate in cases involving senior or second counsel about whether a direction should be given to the taxing officer to allow the fees of senior or second counsel. That debate should only occur in the rare case where there are grounds to direct the taxing officer not to allow fees for senior or second counsel.

1. In my view it was not necessary to include in the formal orders, a direction to the taxing officer to allow the fees of senior counsel.

2. BUSS JA: On 8 February 2008, this court delivered judgment in Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23. The court ordered, relevantly, that the appeal be allowed and that the respondent pay the appellant's costs of the appeal to be taxed.

3. The appellant was represented by senior counsel at the hearing of the

   appeal.

7              The question now before the court is whether the court should direct

the taxing officer, in taxing the appellant's costs of the appeal, to make a
reasonable allowance for senior counsel.

8              Le Miere AJA has decided that the court should not make such a

direction. I respectfully disagree with his Honour. In my opinion, for the reasons set out below, in the present case, the court should direct the taxing officer to make a reasonable allowance for senior counsel.

BUSS JA	[2008] WASCA 23 (S)
The statutory and regulatory framework

1. Section 37(1) of the Supreme Court Act 1935 (WA) provides:

   Subject to the provisions of this Act and to the rules of court and to the express provisions of the Magistrates Court (Civil Proceedings) Act 2004, or any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid.

   Section 37(1) confers a broad discretion on the court in relation to costs with full power to determine, relevantly, to what extent such costs are to be paid. This discretionary power enables the court to make orders with respect to the allowance of costs for counsel generally, including an order that reasonable allowance be made, alternatively that no allowance be made, for senior counsel. Also see O 66 r 1(1) of the Rules of the Supreme Court 1971 (WA), which should be read together with s 37(1).

10 By O 66 r 10(2) of the Rules of the Supreme Court, relevantly, in the case of an appeal, the costs of the proceedings giving rise to the appeal, as well as the costs of the appeal and of the proceedings connected with it, may be dealt with by the court hearing the appeal. Rule 5(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that the Court of Appeal Rules must be read with the Rules of the Supreme Court.

11 Section 215(1) of the Legal Practice Act 2003 (WA) provides, relevantly, that the taxation of bills of costs of legal practitioners, as between legal practitioner and client or party and party, is regulated by a legal costs determination in force under s 210. By s 215(3), however:

Nothing in subsection (1) is to be construed as limiting the power of a court, a judicial officer or a taxing officer of a court to determine in any particular case before that court or judicial officer the amount of costs allowed.

12 Section 210(2) of the Legal Practice Act empowers the Legal Costs Committee (established under s 207) to make legal costs determinations regulating the remuneration of legal practitioners in respect of, relevantly, contentious business carried out by practitioners in or for the purpose of proceedings before the Supreme Court.

13	Currently, there is a legal costs determination in force under s 210 which regulates the remuneration of legal practitioners in respect of contentious business carried out in connection with Supreme Court
BUSS JA	[2008] WASCA 23 (S)

proceedings. It is known as the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (the 2006 Determination), and it came into operation on 1 July 2006. Clause 5(1) provides:

The practice of certification for second counsel or for Senior Counsel is no longer required by the Scale, which brings the practice in this State into line with other Australian jurisdictions. However, where fees are claimed for second counsel or for Senior Counsel, it is anticipated that the Taxing Officer shall consider whether the briefing of second counsel, or Senior Counsel, was reasonably necessary in the circumstances.

The relevant item in the Scale is item 22, which is headed 'Appeals to the Court of Appeal and Single Judge Appeals (including appeals by way of case stated)'. Item 22(g) specifies a maximum allowance for 'Counsel fee on hearing (including preparation)' and Item 22(h) specifies a maximum allowance for 'Counsel fee for Senior Counsel (including preparation)'.

14            The 'practice of certification' for second counsel or for senior

counsel, which cl 5(1) of the 2006 Determination refers to and states is 'no longer required by the Scale', was embodied in the scale contained in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004 (the 2004 Determination) and also in previous scales of costs with respect to contentious business in the Supreme Court. Item 22 of the 2004 Determination specified, relevantly, the maximum allowance for 'Counsel, fee for Senior Counsel' where two or more counsel are 'certified for'. It was essential for an application to be made to the appellate court for a certificate. The taxing officer was unable to make an allowance without a certificate.

Analysis and conclusion

15            In my opinion, cl 5(1) of the 2006 Determination does not abrogate

or affect the discretionary power which s 37(1) of the Supreme Court Act, and O 66 r 1(1) and O 66 r 10(2) of the Rules of the Supreme Court, confers on this court with respect to costs. Section 215(3) of the Legal Practice Act states, relevantly, that nothing in s 215(1) (which stipulates that the taxation of bills of costs of legal practitioners is regulated by a legal costs determination in force under s 210) is to be construed as limiting the power of a court to determine in any particular case before that court the amount of costs allowed.

16            The apparent purpose of cl 5(1) of the 2006 Determination, and the

consequential amendment to the scale, is to enable the taxing officer to make an allowance for second counsel or for senior counsel without it being essential for the party claiming costs to obtain a certificate, order or

BUSS JA [2008] WASCA 23 (S)

direction from the appellate court. Before the 2006 Determination came into operation, it was not unusual for a party who had failed (because of oversight or otherwise) to make application to the appellate court, when judgment was delivered and formal orders were made, for a certificate for second counsel or senior counsel, later to make such an application. This involved inconvenience to the appellate court and a waste of the parties' time and money. Clause 5(1) of the 2006 Determination avoids that consequence by abrogating the necessity for a certificate from the appellate court.

17            If, notwithstanding cl 5(1) of the 2006 Determination, a party entitled

to costs makes application to the appellate court, when judgment is delivered and formal orders are made, for a direction that the taxing officer make a reasonable allowance for second counsel or senior counsel, the court should ordinarily decide that issue. By the time the application is made, the members of the appellate court will have read and considered the appeal book, heard oral argument and had an opportunity to engage in debate with counsel in relation to the merits of the appeal, determined whether the appeal should be allowed or dismissed, delivered or published reasons for decision, and made formal orders including orders as to costs. Plainly, the members of the appellate court will ordinarily be well placed (indeed, in an ideal position) to decide immediately whether the briefing of second counsel, or senior counsel, was reasonably necessary in the circumstances.

18            If, however, a party entitled to costs fails to make application to the

appellate court, when judgment is delivered and formal orders are made, for a direction that the taxing officer make a reasonable allowance for second counsel or senior counsel, the taxing officer should ordinarily decide that issue.

19            The overriding considerations, in determining which of the appellate

court or the taxing master should make a determination as to whether it was reasonably necessary for a party to retain second counsel or senior counsel, are the convenience of the court, expedition in decision-making, and the minimisation of expense.

20            In the present case, the questions raised in the appeal, including in

the notice of contention, were of some complexity, and, in my opinion, it was reasonably necessary for the appellant to brief senior counsel. In the circumstances, I would direct the taxing officer to make a reasonable allowance for senior counsel in taxing the appellant's costs of the appeal.

LE MIERE AJA [2008] WASCA 23 (S)

1. LE MIERE AJA: On 8 February 2008 the court handed down its reasons for judgment and made orders to give effect to its decision to allow the appeal. The court reserved its decision on one issue. That issue is whether the court should direct the taxing officer to make a reasonable allowance for senior counsel.

22            The appellant submitted that the court should direct the taxing officer

to make a reasonable allowance for senior counsel. The respondent opposed the proposed order on the grounds that the matter should be left to the discretion of the taxing officer and that in any event it was not reasonable and proper to retain senior counsel.

23 Section 215(1) of the Legal Practitioners Act 2003 (WA) (the Act) provides that, subject to exceptions not presently relevant, the taxation of bills of costs of legal practitioners as between party and party is regulated by a legal costs determination in force under s 210 of the Act. The legal costs determination currently in force is the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA) (the 2006 Determination) which came into operation on 1 July 2006. Clause 6 of the Schedule to the previous determination, the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004 (WA) included Item 19 'Trial: Counsel Fees'. Item 19(b) was:

Fee on brief for Senior Counsel, ie first day of trial and preparation (where two or more counsel are certified for).

1. Clause 5(1) of the 2006 Determination states:

   The practice of certification for second counsel or for Senior Counsel is no longer required by the Scale, which brings the practice in this State in line with other Australian jurisdictions. However, where fees are claimed for second counsel or for Senior Counsel, it is anticipated that the Taxing Officer shall consider whether the briefing of second counsel, or Senior Counsel, was reasonably necessary in the circumstances.

2. Item 19(b) now refers merely to 'Fee on brief for Senior Counsel, ie first day of trial and preparation'.

26            The intent of the 2006 Determination is that whether fees should be

allowed for second counsel or for senior counsel is a matter for the discretion of the taxing officer. In the first instance it is for the taxing officer to consider whether the briefing of senior counsel was reasonably necessary in the circumstances. It is not appropriate for this court to express an opinion whether or not the briefing of senior counsel was reasonably necessary in the circumstances.

LE MIERE AJA [2008] WASCA 23 (S)

1. For those reasons, the court will not make a direction that the taxing officer make a reasonable allowance for senior counsel.