Maio v City of Stirling [No 2]
[2016] WASCA 45 (S)
•17/08/2017
MAIO -v- CITY OF STIRLING [No 2] [2016] WASCA 45 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 45 (S) | |
| THE COURT OF APPEAL (WA) | 17/08/2017 | ||
| Case No: | CACV:92/2015 | ON THE PAPERS | |
| Coram: | MARTIN CJ BUSS P MURPHY JA | 16/03/16 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | GIROLAMO MAIO GLENYS JOY MAIO JVR PTY LTD LINEMARK INVESTMENTS PTY LTD THE OWNERS OF STIRLING VILLAGE STRATA PLAN NO 11718 CITY OF STIRLING VALMARL PTY LTD PETER GRAHAM HEARN BANK OF QUEENSLAND RAINWAVE NOMINEES PTY LTD |
Catchwords: | Practice and procedure Application for special costs order Application out of time Application for extension of time Turns on own facts |
Legislation: | Interpretation Act 1984 (WA), s 5, s 66 Legal Practice Act 2003 (WA), s 215(2) Legal Profession Act 2008 (WA), s 280 Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 3 r 5(1), O 3 r 5(2), O 66 r 51(2), O 66 r 10(2) Supreme Court (Court of Appeal) Rules 2005 (WA), r 5(1) Supreme Court Act 1935 (WA), s 7(1)(b), s 20(2), s 37(1) |
Case References: | Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S) Cockburn Cement Ltd v The Minister for Environment (WA) [2011] WASC 260 (S) Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Geneva Finance Ltd (Receiver and Manager Appointed) v Resource & Industry Ltd [2002] WASC 121 (S) Grygiel v Baine [No 2] [2005] NSWCA 434 Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) Kidd v The State of Western Australia [2015] WASCA 62 (S) Marrickville Municipal Council v Moustafa (No 2) [2002] NSWCA 179 Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293 (S) Siam Steel International PLC v Compass Group (Australia) Pty Ltd [2017] WASC 137 Snowtop Mushrooms Pty Ltd v Powley (Unreported, WASC, Full Court, 1982, Lib No 4501) Stambulich v Ekamper [No 4] [2008] WASCA 189 Streeter v Western Areas Exploration Pty Ltd [No 2] [2011] WASCA 17 (S) TK v Australian Red Cross Society (1989) 1 WAR 335 Town of Port Hedland v Hodder [No 2] [2012] WASCA 212 (S) Wainwright v Barrick Gold of Australia Limited [2014] WASCA 15 (S) West Australian Construction Industry Redundancy Fund Ltd v Ortin [2002] WASC 185 (S2) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MAIO -v- CITY OF STIRLING [No 2] [2016] WASCA 45 (S) CORAM : MARTIN CJ
- BUSS P
MURPHY JA
- First-named First Appellant
GLENYS JOY MAIO
Second-named First Appellant
JVR PTY LTD
Second Appellant
LINEMARK INVESTMENTS PTY LTD
Third Appellant
THE OWNERS OF STIRLING VILLAGE STRATA PLAN NO 11718
Fourth Appellant
AND
CITY OF STIRLING
First Respondent
VALMARL PTY LTD
First-named Second Respondent
PETER GRAHAM HEARN
Second-named Second Respondent
BANK OF QUEENSLAND
Third Respondent
RAINWAVE NOMINEES PTY LTD
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : LE MIERE J
Citation : MAIO -v- CITY OF STIRLING [No 2] [2015] WASC 189
File No : CIV 2706 of 2013
Catchwords:
Practice and procedure - Application for special costs order - Application out of time - Application for extension of time - Turns on own facts
Legislation:
Interpretation Act 1984 (WA), s 5, s 66
Legal Practice Act 2003 (WA), s 215(2)
Legal Profession Act 2008 (WA), s 280
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 3 r 5(1), O 3 r 5(2), O 66 r 51(2), O 66 r 10(2)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5(1)
Supreme Court Act 1935 (WA), s 7(1)(b), s 20(2), s 37(1)
Result:
Application dismissed
Category: B
Representation:
Counsel:
First-named First Appellant : Mr J Thomson SC
Second-named First Appellant : Mr J Thomson SC
Second Appellant : Mr J Thomson SC
Third Appellant : Mr J Thomson SC
Fourth Appellant : Mr J Thomson SC
First Respondent : Mr K Pettit SC & Mr P Wittkuhn
First-named Second Respondent : Mr D Jackson
Second-named Second Respondent : Mr D Jackson
Third Respondent : No appearance
Fourth Respondent : No appearance
Solicitors:
First-named First Appellant : Haydn Robinson
Second-named First Appellant : Haydn Robinson
Second Appellant : Haydn Robinson
Third Appellant : Haydn Robinson
Fourth Appellant : Haydn Robinson
First Respondent : McLeods Barristers & Solicitors
First-named Second Respondent : Hotchkin Hanly Lawyers
Second-named Second Respondent : Hotchkin Hanly Lawyers
Third Respondent : No appearance
Fourth Respondent : Hotchkin Hanly Lawyers
Case(s) referred to in judgment(s):
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S)
Cockburn Cement Ltd v The Minister for Environment (WA) [2011] WASC 260 (S)
Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S)
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Geneva Finance Ltd (Receiver and Manager Appointed) v Resource & Industry Ltd [2002] WASC 121 (S)
Grygiel v Baine [No 2] [2005] NSWCA 434
Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Kidd v The State of Western Australia [2015] WASCA 62 (S)
Marrickville Municipal Council v Moustafa (No 2) [2002] NSWCA 179
Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293 (S)
Siam Steel International PLC v Compass Group (Australia) Pty Ltd [2017] WASC 137
Snowtop Mushrooms Pty Ltd v Powley (Unreported, WASC, Full Court, 1982, Lib No 4501)
Stambulich v Ekamper [No 4] [2008] WASCA 189
Streeter v Western Areas Exploration Pty Ltd [No 2] [2011] WASCA 17 (S)
TK v Australian Red Cross Society (1989) 1 WAR 335
Town of Port Hedland v Hodder [No 2] [2012] WASCA 212 (S)
Wainwright v Barrick Gold of Australia Limited [2014] WASCA 15 (S)
West Australian Construction Industry Redundancy Fund Ltd v Ortin [2002] WASC 185 (S2)
1 REASONS OF THE COURT: On 23 December 2016, approximately nine months after the disposition of the appeal including the making of costs orders, the second respondents (for ease of reference, 'Valmarl') applied for a special costs order in relation to an earlier interlocutory application in the appeal. The interlocutory application the subject of the proposed costs order was the appellants' application dated 19 November 2015 to, in effect, stay the operation of the primary judgment pending the determination of the appeal (the stay application).
2 The proposed costs order is that the costs of the stay application be taxed as if item 10(a) of the scale applied, pursuant to O 66 r 51(2) of the Rules of the Supreme Court 1971 (WA) (RSC) and s 280(2) of the Legal Profession Act 2008 (WA) (LP Act).
3 Valmarl also sought an 'extension of time to bring the application pursuant to Order 5 Rule 3(1) [sic - O 3 r 5(1)] [of the] Rules of the Supreme Court 1971 (WA) until the time this application is determined'.
The Background
4 The dispute giving rise to these proceedings concerned the appellants' claim to certain proprietary rights to use of part of a lot adjacent to a shopping centre. The appellants had lodged a caveat over the disputed lot and Valmarl was seeking the removal of the caveat.
5 On 29 May 2015, Le Miere J determined that the plaintiffs' (ie, the appellants') claim should be dismissed.1 Some months passed, and on 17 November 2015 Le Miere J ordered that on or before 27 November 2015, the first appellants execute and deliver to Valmarl's solicitors a duly prepared form of withdrawal of a caveat.
6 On 19 November 2015, the appellants applied for an urgent order to stay the operation of the order requiring the withdrawal of the caveat, effectively pending the determination of the appeal. On 26 November 2015, the court granted the stay, ordered the expedition of the appeal, and ordered that the costs of the stay application be reserved. Reasons for that decision were published on 11 December 2015.2
7 The appeal was heard on 27 January 2016.
8 Reasons for judgment had been prepared by 14 March 2016. An advance copy of the reasons was provided to the parties' solicitors on that day with a direction in the following terms:
Please be prepared to move for and deal with all relevant orders including costs at the hearing on 16 March 2016. If either party has submissions in that regard, they should be made when judgment is delivered. In addition, the parties are to provide to the court an agreed minute of orders, or competing minutes if not agreed, by 4.00 pm on 15 March 2016.
9 On 15 March 2016, Valmarl's solicitors provided the court with a minute of proposed orders, which included, relevantly:
1. The appeal be and is hereby dismissed.
…
3. The Appellants pay [Valmarl's] costs of the appeal, including costs of their application to stay the operation of the judgment, to be taxed. (emphasis added)
10 On 16 March 2016, this court formally delivered its reasons for judgment dismissing the appeal.3 On the same day, the court made orders, including an order substantively in the form of order three sought by Valmarl concerning costs. A sealed copy of the extracted orders was issued on 8 April 2016.
11 On 12 April 2016, the appellants filed an application for special leave to appeal to the High Court. On 1 September 2016, that application was refused.
12 On 16 November 2016, Valmarl's solicitors wrote to the appellants' solicitors and attached to the letter, relevantly, a draft bill of costs in the Court of Appeal. The letter included the statement that:
In relation to the Court of Appeal, our clients reserve the right to apply to the Court of Appeal for lifting the limit on defending the application for a stay lodged by your client, as our clients' costs of that application exceeded the scale by approximately $20,000.00. For the purposes of resolving this matter promptly, however, the draft bill is kept to the scale.
13 On 23 December 2016, Valmarl made the present application for a special costs order and an extension of time in which to bring the application. The application was accompanied by an affidavit sworn by one of Valmarl's solicitors sworn 21 December 2016. The affidavit included the following:
13. During the preparation of the bill of costs in these proceedings it was brought to my attention that the scale item that applied to the appellants' application dated 19 November 2015 to stay the operation of the judgment was item 23(e) Legal Profession (Supreme Court) (Contentious Business) Determination 2014, being an application within an Appeal, with a scale limit of $3,850. I was unaware that the scale limit for the application was different from, and materially lower than, the scale limit for an application in chambers generally. Further, this was not drawn to my attention (or to the attention of my partner …) by counsel, either at the time of the hearing of the application, or when costs orders were being made.
14. Had I been aware that the scale limit under item 23(e) was so significantly less than the $11,550 scale limit for a similar application brought in chambers under item 10(a), I would have sought orders to the same effect as those contained in [Valmarl's] application dated 16 December 2016 [sic - 23 December 2016] and filed herein. I otherwise considered the scale limit for the costs of an application in chambers would be adequate, and that no special orders were required.
15. My omission to seek those orders at the time judgment was given was due to being unaware of the difference in recoverable costs when an application of this nature is made in an appeal, rather than an application in chambers not being made in an appeal.
16. The actions of [Valmarl] were in all the circumstances reasonable, including waiting until after the High Court application was determined to tax costs, and then after attempts to resolve costs issues by conferral were exhausted.
14 The effect of pars 13 and 14 of the affidavit is that, had Valmarl's solicitor been aware of the scale, Valmarl would have sought a costs order to the effect that costs be assessed as if item 10(a) of the relevant scale applied, which provides for an amount of up to $11,550 in respect of proceedings in chambers, rather than have the costs of the stay application treated as the costs of an interlocutory application to which item 23(e) applies. Item 23(e) refers to an amount up to $3,850. The difference is $7,700.
15 On 30 January 2017, Registrar Eaton made certain programming orders, including that Valmarl's application dated 23 December 2016 be heard on the papers unless the Court otherwise directs.
16 On 13 February 2017, the appellants filed submissions in answer to Valmarl's application. On 20 February 2017, Valmarl filed submissions.
17 Valmarl also attempted to file a further affidavit sworn by its solicitor on 20 February 2017. The affidavit attached the draft bill of costs dated 16 November 2016, referred to in the correspondence in [12] above. This further affidavit did not comply with Registrar Eaton's programming orders of 30 January 2017. The appellants objected to the affidavit being accepted for filing. The affidavit was not accepted for filing and Valmarl's solicitors were advised that they would need to make an application. Valmarl declined to make a further application but asked that the court take note of the correspondence regarding the attempted filing of the affidavit sworn 20 February 2017. The court has paid regard to this correspondence.
Legislative provisions
Special costs orders
18 Section 37(1) of the Supreme Court Act 1935 (WA) provides:
(1) 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.
19 The Court of Appeal is a division of the Supreme Court: s 7(1)(b) of the Supreme Court Act. Appeals are to be heard and determined subject to the 'written law' concerned: s 20(2) of the Supreme Court Act. The term 'written law' includes 'rules of court'.4 The 'rules of court' are, relevantly, the RSC and the Supreme Court (Court of Appeal) Rules2005 (WA) (CA Rules). They have the force of law: TK v Australian Red Cross Society.5
20 Rule 5(1) of the CA Rules, provides that the CA Rules must be read with the RSC.
21 By RSC O 66 r 10(2), 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.
22 Section 280(1) of the LP Act provides, relevantly and in effect, that the taxation of bills of law practices is regulated by an applicable costs determination.
23 Section 280(2) of the LP Act provides:
(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. (emphasis added)
25 In Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd,6 the court said in relation to s 280(2)(c) of the LP Act:
The section requires that before making an order pursuant to its terms the court must form an opinion which has two components. First, the court must determine that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate. Second, the court must conclude that the inadequacy 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) [11]). Having heard the matter and being familiar with the way in which the case was conducted and the issues which were litigated, the court is in a position to form the opinions required under the section as matters of impression rather than science or mathematics: EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) [7]; Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2) [14].
26 Also, in Town of Port Hedland v Hodder [No 2],7 the court said:
The relevant principles to be applied in resolving this question are not contentious. Special costs orders can be made either pursuant to s 280(2) of the Legal Profession Act 2008 (WA), or pursuant to s 37(1) of the Supreme Court Act 1935 (WA). In either case, before the power will be exercised, the court must form the view that the maximum amount allowable under the relevant scale item is inadequate in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount which is greater than the limit which would be imposed by the relevant costs determination ... If that threshold is crossed, under s 280(2) other questions arise for determination. However, until that threshold is crossed, the power will not ordinarily be exercised.
Issues of the kind which arise when special costs orders are sought are addressed as matters of impression, rather than as matters of detailed evaluation, precision or science.
27 The word 'unusual' in s 280(2) of the LP Act qualifies only the 'difficulty' of the matter, and not its 'complexity' or 'importance'.8 The word 'unusual' in this context means unusual having regard to what one might describe as the usual run of civil cases determined in the Supreme and District Courts. That essentially involves the making of a value judgment by the court, having regard to the court's experience of the particular case when compared with the usual run of cases.9
28 Also, the reference to 'importance' in this context allows the court to have regard to the significance of the issues that arose in the litigation. Significance can arise either because of the significance of the issues to the parties, or because of the significance of the issues to other prospective parties, or to the public or community generally: Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq).10
29 In Kidd v The State of Western Australia,11 this court observed, with reference to Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd,12 that the question of unusual difficulty, complexity or importance arises in respect of the proceedings as a whole and not in respect of each individual item in the relevant costs determination. In Electricity Generation, Martin CJ observed:13
[T]here are no words within [s 280(2)] which suggest that the court is required to assess the difficulty, complexity or importance of the work done in respect of each and every item in the relevant determination before exercising the power conferred by s 280(2). The natural and ordinary meaning suggested by the words used is that the 'matter' is the matter in respect of which legal services were provided.
Other relevant statutory provisions
30 Order 1 r 4A and r 4B of the RSC provide:
4A. Delays, elimination of
The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
4B. Case flow management, use and objects of
(1) Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of -
(a) promoting the just determination of litigation; and
(b) disposing efficiently of the business of the Court; and
(c) maximising the efficient use of available judicial and administrative resources; and
(d) facilitating the timely disposal of business; and
(e) ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and
(f) that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.
(2) These rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in subrule (1).
5. Extending and abridging time
(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order, or direction, to do any act in any proceedings.
(2) The Court may extend any such period as is referred to in subrule (1) although the application for extension is not made until after the expiration of that period.
Where under these rules a party is required to obtain some special certificate for costs, there shall be deemed to be reserved to such party liberty to apply within 30 days.
The parties' submissions
Valmarl's submissions
33 Valmarl submits that the failure of its solicitors to seek the special costs order at the time the orders were made was 'due to an unawareness of the difference in recoverable costs under the Costs Scale when an application in chambers is made in an appeal, rather than an application in chambers otherwise within an appeal'.14
34 Valmarl referred to O 66 r 51(2), and submitted, in effect, that its failure to apply to the court within the 30-day time limit referred to in that Rule was due to an oversight on the part of Valmarl's solicitor, and that this oversight does not prohibit an extension of time being granted. Rather, it is submitted that the late application may be granted for effectively two reasons: first, the order sought would in all probability have been made if moved for within time and, secondly, the appellants are not prejudiced by the late application. Reference is made to Snowtop Mushrooms Pty Ltd v Powley15 and West Australian Construction Industry Redundancy Fund Ltd v Ortin.16
35 In Snowtop, the Full Court had effectively dismissed an appeal. The respondents moved for orders, including that the appellant pay their costs. Orders were made in those terms on 16 December 1981, and judgment was formally entered and extracted on 8 January 1982.17 The respondents subsequently brought in a bill for taxation of costs. The bill included a claim for senior counsel's fees and a claim for costs in excess of item 23 under the then relevant scale. The taxing master disallowed both claims, the first, it appears, on the basis that there had been no certification for senior counsel, and the second on the basis that there had been no special costs order pursuant to O 66 r 12.18 The respondents subsequently19 applied for orders in the Full Court which, if made, would permit the taxing master to allow the claims for senior counsel and for the costs beyond the scale under item 23. The application was made under the 'slip rule' (RSC O 21 r 10), but the court did not decide the matter on that basis. The court (Burt CJ, Brinsden & Kennedy JJ) considered that the application was 'best dealt with' under O 66 r 51(2) and O 3 r 5 of the RSC.20 The court said that, as the 30-day period in O 66 r 51(2) had expired, 'we now have before us an application to extend time'. The court observed, in effect, that the application was made due to an oversight on the part of the respondents' solicitor when moving for final orders, and there were no special reasons explaining the oversight. With respect to the certification for senior counsel, the court nevertheless said that, had the respondent moved for such an order within time, it would certainly have been made and in all probability would have been made without argument. The court found that the appellant was not prejudiced by the delay. The court granted an extension of time to apply for a certificate for senior counsel, and granted a certificate. In relation to the application for special costs orders under O 66 r 12, the court dismissed that application on specified discretionary grounds.
36 In Ortin, two of the defendants failed to seek a special costs order at the time of judgment on 16 August 2002. On 28 October 2002, they filed a chamber summons for an order to extend time for seeking special costs orders. The failure to apply for a special costs order at the time of judgment was due to the ignorance of the lawyer acting for the two defendants. The judge (McKechnie J) followed Snowtop and allowed the application.
37 In relation to the proposition that the appellants are not prejudiced by Valmarl's late application, Valmarl submits that the appellants' special leave application was not determined until 1 September 2016. This is said to be relevant because '[t]o avoid incurring unnecessary costs' Valmarl's bill for taxation was not prepared until after the special leave application was dismissed.21 It is submitted that after the special leave application was dismissed, attempts were made to engage with the appellants in relation to costs.22 It is submitted that it was reasonable for Valmarl to wait to prepare the bill until after the determination of the special leave application and the subsequent attempt at conferral.23 The difference in claim limits between items 23(e) and 10(a) was not identified until the bill was prepared.24
38 Valmarl also submits that it was relevant that, by reason of the appellants' High Court special leave application, the 'proceedings had not been finally determined'. Valmarl referred in this regard to Geneva Finance Ltd (Receiver and Manager Appointed) v Resource & Industry Ltd.25 In that case, costs orders were made by the primary judge on 24 May 2002 and entered on 7 June 2002. No special costs order was relevantly sought when judgment was given. After the expiration of the 30-day period following the date of judgment delivery, an application was made for an extension of time to apply for a special costs order. The application was heard by the primary judge on 9 October 2002. The application was granted because the litigation was complex and it had not been 'finally determined' because the plaintiff had instituted an appeal.26
39 Valmarl also submits, in effect, that the appellants have filed no evidence of prejudice, and that prejudice cannot be inferred merely by the fact of the delay.27
40 As to the merits of the application, Valmarl submits that in the present case the parties regarded the subject matter of the litigation giving rise to the Court of Appeal's judgment as 'being of particular importance or significance'.28 This is because each party regarded the outcome as being of great importance commercially.29 Reference was made to Heartlink. The importance of the matter to each party is said to be demonstrated by the fact that senior counsel were engaged.30 The matter was also required to be dealt with on an urgent basis.31 Valmarl submits, in effect, that had an application for a special costs order been made at the time costs orders were being finalised, it would have been granted.32
Appellants' submissions
41 It is submitted that O 66 r 51 of the RSC is not engaged, on the basis that this order 'only applies where costs have not been ordered or where costs have been reserved'.33 No authority or explanation for that submission was provided. In the alternative, it is submitted that if the order does apply then, in the exercise of its discretion, the court should not extend the time for the application to be made by Valmarl.34 Furthermore, it is submitted that if the appellants' special leave application were relevant, then the present application should have been made by 1 October 2016, at the latest.35
42 It is submitted that Valmarl's solicitor should be made responsible for the 'oversight' regarding the scale of costs limits as '[t]here is no excuse' for Valmarl's solicitor not being aware of the relevant scale limits.36
43 It is submitted, in effect, that the appellants would have opposed an application relating to the scale limits even if it had been made within time,37 and that it is by no means probable that an order of the kind now sought would have been made if the application had been made within time.38
44 The appellants submit that there was no unusual difficulty, complexity or importance in the stay application. The stay was simply for the purpose of preventing the appeal from being rendered nugatory.39
45 It is submitted, in effect, that the form of the costs orders was agreed on 15 March 2016, and yet Valmarl did not put the court in a position to be able to deal conclusively with all costs matters when it reserved its judgment.40 It is submitted that the failure to address on costs may properly be taken by a court as an indication that no special or unusual costs orders are required.41 In this regard, the appellants referred to Grygiel v Baine [No 2]42 and Stambulich v Ekamper [No 4].43
Disposition
46 The parties treated Valmarl's application as an application for a special costs order in the sense of an order to enable departure from the ordinary application of the relevant scale. These reasons proceed on that basis.
47 It is apparent that the Full Court in Snowtop proceeded on the bases that:
(a) the words 'some special certificate for costs' in O 66 r 51(2) included a reference to a special costs order;
(b) the court has power to make a special costs order pursuant to O 66 r 51(2), notwithstanding that other, non-special costs orders have been made, or made and perfected, providing that (and subject to (c) below) the application is made within 30 days of the date on which the orders for judgment were made; and
(c) the court may, under O 3 r 5, extend the time for making an application beyond the 30-day period referred to in O 66 r 51(2).
48 The reasons given by the court in Snowtop did not address the question of whether 'some special certificate for costs' extends to include an order lifting a limit imposed by an item in the scale contained in the fourth Schedule to the Rules of Court. That appears to be a matter which was assumed, rather than considered. Despite that lack of apparent consideration, the decision in Snowtop had been relied on in a number of cases in the General Division in 2002 and 2003 for the proposition that applications for special costs orders come within the terms of O 66 r 51(2): Ortin; Geneva Finance; and Re City of Joondalup; Ex parte Mullaloo Progress Association Inc.44
49 However, all of those cases preceded the significant change effected in 2003, when the scales of cost were taken out of the Rules of Court and published pursuant to delegated legislation made by the Costs Committee created under the Legal Practice Act 2003 (WA) (now repealed). That Act contained s 215, which was in substantially similar terms to s 280 of the LP Act currently in force. There may be a question as to whether, since those provisions came into effect, after 2003, the provisions of that legislation should be regarded as governing the circumstances and the occasions upon which orders may be made lifting the limits imposed by items in the scales published under that Act. In particular, there may be a question as to whether the words 'Where under these rules a party is required to obtain some special certificate for costs' in O 66 r 51(2) should be construed as applying to an order made pursuant to s 280 of the LP Act. These matters were raised in a decision not referred to by the parties: Siam Steel International PLC v Compass Group (Australia) Pty Ltd.45 In that case, Martin CJ expressed the opinion that O 66 r 51(2) 'may well be a relic of a bygone costs era with little or no current application'.46
50 If s 280 of the LP Act covers the field, and O 66 r 51(2) is a relic of a bygone era with no current application, once costs orders have been made and extracted, the only basis upon which a further order could be sought is by the application of the slip rule.
51 On the other hand, in Cockburn Cement Ltd v The Minister for Environment (WA),47 Edelman J expressed the opinion, with reference to Snowtop, that even under the current legislative scheme (s 280 of the LP Act), O 66 r 51(2) has the effect that a party has liberty to apply for special costs orders within 30 days, even if earlier costs orders have been made and extracted, and that recourse to the slip rule is unnecessary.
52 Neither the decision in Siam Steel, nor the decision in Cockburn Cement, was cited by the parties in this application. It is unnecessary to form a concluded view for present purposes on the question of whether O 66 r 51(2) continues to have any application, particularly in circumstances where costs orders have been made and extracted. This application should be dismissed in any event on discretionary grounds for the following reasons (which assume, without deciding, the continued application of O 66 r 51(2)).
53 The decision in Snowtop, which preceded the introduction of O 1 r 4A and r 4B of the RSC, did not purport to state exhaustively the discretionary considerations that may be relevant in an application to extend the time provided for in O 66 r 51(2). The court's discretion to extend time is to be exercised in the interests of justice, having regard to the particular circumstances of the case. Ordinarily, relevant considerations will include (1) the extent of the delay and the reasons for it; (2) any prejudice to the party seeking the extension if it is not granted and any prejudice to the other party if it is; (3) a proper recognition of the principles of finality in the context of the administration of justice; (4) due observance of the goals and objectives enshrined in O 1 r 4A and r 4B of the RSC; and (5) the underlying merits of the application.
54 As to the third of those matters, the observations of the High Court (albeit in a different context) in Burrell v The Queen48 are pertinent:
[I]t is important to recognise that [there] are fundamental principles about finality of litigation. As was said in D'Orta-Ekenaike v Victoria Legal Aid [(2005) 223 CLR 1 [34]]: 'A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.' That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.
… [T]he principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly. (footnotes omitted)
55 Also, in Esther Investments Pty Ltd v Markalinga Pty Ltd,49 Malcolm CJ held that it was not necessary to find delay coupled with prejudice before dismissing a late application for a special costs order (in that case, over three years delay), and said:
There must come a point where the interests of finality of litigation militate against the exercise of discretion in favour of a party whose solicitors or counsel have failed by inadvertence to make an appropriate application at the appropriate time.
…
[T]here is an interest in the finality of litigation, and a party is entitled to order its affairs on the basis of a judgment regularly obtained, entered and perfected in the court.
56 In that case, his Honour also said, in effect, that if prejudice to the other party were required to be established, it could be inferred that the other party would suffer prejudice if the long-standing state of affairs created by the judgment were departed from.50
57 In relation to the fourth-mentioned matter, the observations of the court in Kidd v The State of Western Australia,51 are pertinent:
Recent times have seen increasing enthusiasm for parties to proceedings in the civil jurisdiction of this court to engage in protracted disputes with respect to costs following determination of the appeal. Sometimes those disputes involve an assertion that there should be a departure from the ordinary rule that costs follow the event, because the generally successful party has failed on an issue or issues, with the consequence that the successful party should recover only part of their costs. Sometimes the disputes involve an assertion that there should be an order pursuant to s 280 of the Legal Profession Act 2008 (WA) directing that the costs of one or more parties be taxed without regard to the limits imposed by particular items in the relevant costs determination. Commonly the parties to such disputes will endeavour to support their position in long and detailed written submissions supported by substantial affidavits. This is such a case.
Satellite litigation of this kind is contrary to the overarching principles specified in O 1 r 4A and 4B of the [RSC] which govern all civil proceedings in the court. Such litigation has a very real capacity to consume resources of the parties and the limited resources of the court to an extent which is entirely disproportionate to the significance of the issues involved. Protracted disputes with respect to costs should be discouraged, and this court has revised its procedures to facilitate the resolution of all issues with respect to costs at the time of publication of the court's reasons, wherever possible. (footnote omitted)
58 In relation to the question of delay, the first point to note is that all appropriate costs orders should ordinarily be applied for upon the disposition of an appeal to this court, irrespective of the potential for an application by the losing party for special leave to appeal to the High Court.52 Insofar as O 66 r 51(2) continues to apply, it allows for the contingency that a successful party, on attending and taking judgment, may overlook the need for special costs orders, and permits an application to be made within 30 days.53 However, that contingency ought not, ordinarily, arise where the parties have been given an advance copy of the reasons for judgment and have been directed to consider all appropriate dispositive orders, including orders for costs. In this case, Valmarl has allowed a further (approximately) eight months to elapse before making this application. That is a considerable delay, particularly in a context where the appeal itself was heard and determined in less than two months.
59 Further, in this case, in accordance with the court's practice in appropriate cases, an advance copy of the reasons was given to the parties, and the court directed the parties' attention to the need to consider all relevant dispositive orders, including costs orders. The parties had adequate opportunity to consider the ramifications of the judgment in order to apply for all appropriate final orders, including costs orders, on the formal delivery of judgment, and more than ample opportunity before the expiration of the 30-day period specified in O 66 r 51(2). In this context, it is difficult to justify a departure from the conventional position that a party is bound by the conduct of its agents (solicitors).
60 In interlocutory matters on the way towards the final disposition of proceedings, it may (depending on all the circumstances) be contrary to the interests of justice to visit on a litigant the unintended, adverse, consequences of the neglect of the litigant's solicitor. However, considerations of that kind have less significance after the proceedings have been fought and dismissed on their merits, and then been the subject of an appeal, as here. The observations of Basten JA (with whom Mason P & Bryson JA agreed) in Grygiel are apposite:54
The burden on the Court of applications to address further in relation to costs after judgment is significant. Inadvertence on the part of the legal representatives will generally not be a sufficient basis for permitting further submissions, even in writing, and certainly not a basis for a further hearing, as appears to have been proposed in the present case.
The expeditious despatch of the business of the Court depends to a significant extent on the Court being able to rely upon practitioners appearing before it to ensure that its attention is drawn to matters relevant to the determination of the proceedings.
61 On the question of prejudice, it is accepted that Valmarl would suffer some degree of prejudice if the extension were not granted, and if the underlying application had merit, although the amount in question (up to $7,700) is unlikely to loom large in the context of the likely costs of the litigation as a whole. The appellants cannot reasonably claim prejudice on the basis that they have arranged their affairs on the strength of the orders made in March 2016, given the relatively small amount involved, and given their conduct in seeking to overturn those orders in the High Court.
62 Regarding the principle of finality, there is no right of appeal to the High Court, and the prospect that the losing party might seek special leave to appeal (as eventuated here) does not mean that the proceedings had not been 'finally determined'55 by the court's orders in March 2016. The finality principle has particular importance in the context of the disposition of an appeal by this court. Further, as indicated in Kidd, belated disputes of this kind are to be discouraged. They are contrary to the overarching principles specified in O 1 r 4A and r 4B of the RSC.56 In this case, it is a fair inference that any financial advantage from the special costs order sought has already been significantly if not substantially eroded by the costs of this application.
63 The above considerations combine to indicate that there should be no extension of time granted in this case. That is so, irrespective of whether the underlying application has merit, which it does not. Valmarl's solicitor has not deposed to the fact (if it be the fact) that the costs incurred by Valmarl in the stay application exceeded the scale limit. The statement in Valmarl's solicitor's letter of 16 November 2016 is not evidence of the fact. Further and in any event, even if the matter were of particular importance to the parties, as contended by Valmarl, we are not persuaded that its importance contributed to any exceeding of the scale limit in respect of what was a routine stay application.
64 Valmarl's application should be dismissed with costs.
1Maio v City of Stirling [No 2] [2015] WASC 189.
2Maio v City of Stirling [2015] WASCA 254.
3Maio v City of Stirling [No 2] [2016] WASCA 45.
4 See the definitions of 'written law', 'subsidiary legislation' and 'rules of court' in s 5 of the Interpretation Act 1984 (WA) and see s 66 of the Interpretation Act.
5TK v Australian Red Cross Society (1989) 1 WAR 335, 339 - 340.
6Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S) [3].
7Town of Port Hedland v Hodder [No 2] [2012] WASCA 212 (S) [14] - [15].
8Cape Lambert Resources [5].
9Wainwright v Barrick Gold of Australia Limited [2014] WASCA 15 (S) [9].
10Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [19].
11Kidd v The State of Western Australia [2015] WASCA 62 (S) [10].
12Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [5] - [9]. Note, the citation refers to the appeal judgment but is clearly meant to refer to the supplementary decision in that case.
13Electricity Generation [8].
14 Valmarl's submissions, par 12.
15Snowtop Mushrooms Pty Ltd v Powley (Unreported, WASC, Full Court, 1982, Lib No 4501).
16West Australian Construction Industry Redundancy Fund Ltd v Ortin [2002] WASC 185 (S2).
17 The court's reasons in Snowtop refer to judgment being entered and extracted on '8 January 1981', but the reference to '1981' in that date must be a typographical error, if the 16 December 1981 date is correct.
18 Order 66 r 12 (since repealed) provided for the making of a special costs order having regard to 'the unusual complexity or importance of the case or for any other good or sufficient reason'.
19 The court, in its reasons, referred to '17 September 1982', but that date must, again, have been a typographical error, if the 16 December 1981 date is correct and given that the application is recorded as having been heard on 17 March 1982. It must have been intended to be some date after 8 January 1982 and before 17 March 1982.
20 Those rules were then in the same terms, or at least materially in the same terms, as the current versions of those rules.
21 Valmarl's submissions, pars 16 - 19.
22 Valmarl's submissions, par 20.
23 Valmarl's submissions, par 23.
24 Valmarl's submissions, par 22.
25 Valmarl's submissions, par 19; Geneva Finance Ltd (Receiver and Manager Appointed) v Resource & Industry Ltd [2002] WASC 121 (S).
26Geneva Finance [6].
27 Valmarl's submissions, par 17.
28 Valmarl's submissions, par 25.
29 Valmarl's submissions, par 27.
30 Valmarl's submissions, par 28.
31 Valmarl's submissions, par 29.
32 Valmarl's submissions, par 30.
33 Appellants' submissions, par 5.
34 Appellants' submissions, par 6.
35 Appellants' submissions, par 9.
36 Appellants' submissions, pars 10 - 12.
37 Appellants' submissions, par 13.
38 Appellants' submissions, par 14.
39 Appellants' submissions, par 15.
40 Appellants' submissions, pars 16 - 17, citing Marrickville Municipal Council v Moustafa (No 2) [2002] NSWCA 179.
41 Appellants' submissions, par 18.
42Grygiel v Baine [No 2] [2005] NSWCA 434.
43Stambulich v Ekamper [No 4] [2008] WASCA 189.
44Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293 (S).
45Siam Steel International PLC v Compass Group (Australia) Pty Ltd [2017] WASC 137 [30] - [32].
46Siam Steel [32].
47Cockburn Cement Ltd v The Minister for Environment (WA) [2011] WASC 260 (S) [3], [26] - [42], [51].
48Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 [15] - [16].
49Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, 409.
50Esther (409).
51Kidd v The State of Western Australia [2015] WASCA 62 (S) [1] - [2].
52Streeter v Western Areas Exploration Pty Ltd [No 2] [2011] WASCA 17 (S) [40].
53Geneva Finance [4] - [5].
54Grygiel [12] - [13].
55 cf Geneva Finance [6].
56Kidd [2].
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25
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