McGlinn as administrator for Jeffrey Craig McGlinn v Joondalup Hospital Pty Ltd [No 2] - [2014] WADC 3

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MCGLINN as administrator for JEFFERY CRAIG MCGLINN -v- JOONDALUP HOSPITAL PTY LTD [No 2] [2014] WADC 3

CORAM: STAUDE DCJ

HEARD: 1 NOVEMBER 2013

DELIVERED : 22 JANUARY 2014

FILE NO/S: CIV 967 of 2012

BETWEEN: NATALIE JANE MCGLINN as administrator for JEFFERY CRAIG MCGLINN
First Plaintiff
AND
JOONDALUP HOSPITAL PTY LTD
Defendant

Catchwords:

Costs - Catastrophic personal injury claim - Legal Practitioners' (Supreme Court)(Contentious Business) Determination 2012 - Item 17 declaration - Whether declaration should be made before liability for costs of the action is decided

Legislation:

District Court Act 1969
District Court Rules 2005
Legal Practitioners (Supreme Court)(Contentious Business) Determination 2012
Legal Profession Act 2008
Motor Accidents (Lifetime Care and Support) Act 2006 (NSW)
Rules of the Supreme Court 1971

Result:

Appeal allowed
Application for item 17 declaration dismissed

Representation:

Counsel:

First Plaintiff : Mr B W Ashdowne
Defendant: Mr M L Williams

Solicitors:

First Plaintiff : Slater & Gordon
Defendant: DLA Piper Australia

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

Anfrank Nominees Pty Ltd & Ors v Connell & Ors (1991) 6 WAR 271
Brocx v Havilah Legal [2012] WASC 153
Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S)
Clybucca Holdings Pty Ltd v Gray (Unreported, WASC, 30 April 1997, Library No 970191)
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S)
Harriton v Stephens [2006] HCA 15; (2006) 225 CLR 52
Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16
Jones v Moylan [2000] WASCA 361
McGlinn v Joondalup Hospital Pty Ltd [2013] WADC 105
Roads & Traffic Authority of NSW v Dederer [2007] HCA 42
Romeo v Conservation Commission of Northern Territory [1998] HCA 5; (1998) 192 CLR 431
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Verdell Pty Ltd v S & G Nominees Pty Ltd [2002] WASC 58 (S2)
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402

STAUDE DCJ:

Introduction

This is an appeal by the defendant from a decision of the principal registrar on 1 July 2013 to make a declaration that the action is a catastrophic personal injury claim for the purposes of the Legal Practitioners' (Supreme Court)(Contentious Business) Determination 2012 (2012 Determination).
The plaintiff by his administrator claims damages for personal injuries allegedly sustained as a result of the defendant's alleged breach of duty of care. On 3 April 2007 the plaintiff became ill while at work and was conveyed to Joondalup Hospital where he was diagnosed as having suffered a cerebrovascular accident, commonly known as a stroke. The plaintiff's condition worsened and he was subsequently conveyed to Sir Charles Gairdner Hospital.
The statement of claim alleges that the defendant was negligent in its diagnosis of and treatment of the symptoms with which the plaintiff presented, and thereby contributed to the worsening of the plaintiff's condition, causing acquired brain injury, including residual right hemiparesis and dysphasia, and psychological injury, including depression and anxiety.
The action was commenced by a writ dated 30 March 2012. On 16 December 2013 the action was listed for trial for 17 days commencing 18 August 2014.
By chamber summons dated 8 May 2012 the plaintiff applied for a declaration that the action is a catastrophic personal injury claim. The application was allowed: McGlinn v Joondalup Hospital Pty Ltd [2013] WADC 105.
The appeal is a fresh hearing of the application: District Court Rules 2005 (DCR), r 15(6). It is not necessary for the defendant to show error in the decision appealed from.
This matter is, I understand, the first contested application for an item 17 declaration to come before a judge.

Evidence

The application was supported by an affidavit of the plaintiff's solicitor.
The affidavit stated that by reason of the plaintiff's disability the work to be done (in preparing the case for trial) included reviewing large volumes of hospital records, additional medico-legal reviews, including by a neuropsychologist, speech therapist, occupational therapist, neurologist and rehabilitation physician, a care assessment, and witness statements with respect to care and the impact of the plaintiff's injuries. The plaintiff's disabilities and his inability to communicate meant that information which he could not provide had to be obtained from others.
Evidence of the plaintiff's injuries was adduced in the form of the following expert reports:
1.Dr D Fletcher, rehabilitation physician – 18 March 2011;
2.Ms L Williams, occupational therapist – 29 August 2012;
3.Ms J Burns, registered nurse – 31 August 2012;
4.Dr J Ker, rehabilitation physician – 18 March 2013; and
5.Dr M Collins, clinical neuropsychologist – 20 April 2013.
Dr Fletcher's report states that he oversaw the plaintiff's rehabilitation from a stroke which had left him with a residual right hemiparesis and dysphasia, which he described as expressive more than receptive. The stroke was caused by left internal carotid artery dissection. Due to his residual dysphasia Dr Fletcher thought that the plaintiff would be unable to initiate complex matters of his own accord and, accordingly, would require a limited administrator.
Dr Ker reviewed the plaintiff on 10 November 2012. He noted a right hemiparesis with grossly restricted use of the right upper limb and curtailed lower limb movement affecting standing and walking, dysphasia, which significantly compromised his use of language in expressing himself and comprehending others, cognitive impairment, impacting on memory and problem solving, and mood disturbance with a tendency to irritability. The plaintiff also had nocturnal lower limb movement disturbance.
Dr Ker noted that the plaintiff was able to limited work in a protected environment undertaking closely supervised manual tasks. He was independent in travelling to and from work. His ability to work was restricted by his disabilities.
Dr Ker found that the plaintiff exhibited neuro‑physical, cognitive and behavioural deficits. He assessed his loss of right arm function as a 35% loss of whole person function, his impaired gait as a 10% loss of whole person function, his dysphasia as a 20% loss of whole person function, and his emotional and behavioural disorders as a 10% impairment of whole person function. Using what he termed a 'combined value methodology' he assessed a 58% permanent impairment of whole person function. (Dr Ker appears to have used the words 'loss' and 'impairment' interchangeably.)
Dr Collins' report contains a précis of a considerable volume of specialist reportage, a detailed history, and an analysis of the results of neuro‑psychometric testing which, according to the author, revealed significant cognitive and psychological impairment consistent with severe brain damage.
The other expert reports to which I have referred deal with the plaintiff's needs.

The decision appealed from

At the hearing of the application at first instance four issues were identified and adjudicated, namely:
1.Can an item 17 declaration be made by a registrar?
2.What was the nature of the enquiry required for the purposes of item 17?
3.At what point in the conduct of a personal injuries action should an item 17 declaration be made?
4.Should a declaration be made in this case?
With respect to the first issue, the learned principal registrar decided that a legally qualified registrar had jurisdiction to make an item 17 declaration.
With respect to the second issue, the learned principal registrar held the expression 'personal injuries' should bear the meaning given to it by DCR r 3, i.e. as including any illness suffered by a person and any impairment of his or her physical or mental condition, and that 'catastrophic' should be given its ordinary meaning of pertaining to 'a sudden and widespread disaster'.
Accordingly, the court had to inquire, firstly, whether the injuries and illness suffered by the plaintiff and the impairment of his physical or mental condition could be described as 'widespread and disastrous', and, secondly, whether the practitioners involved in the case could be expected, by virtue of the plaintiff's injuries, to be under an extra burden in preparing the case for trial: [21]. Whether an action was a catastrophic personal injury claim was a matter of impression rather than of detailed evaluation as it would always be for the taxing officer to determine the ultimate question of what costs were reasonable in the circumstances.
As to the third issue, the learned principal registrar held that an application for an item 17 declaration could be made at any time after the filing of a statement of claim which identified the injury or injuries in issue, but in each case it would be for the court to decide whether the material before it was sufficient to satisfy the court that it was appropriate to make the declaration.
As to the fourth issue, the learned principal registrar, on the basis of the statement of claim and the evidence contained in the plaintiff's solicitor's supporting affidavit, was of the view that the plaintiff's alleged injuries were catastrophic and that an extra burden would, by virtue of such injuries, be placed on the practitioners involved in the preparation of the case for trial.
Although all of these issues are live in the appeal, the main focus of the parties' submissions was the issue of the point in the proceedings at which it was appropriate to make the application.

Legal Practitioners' (Supreme Court)(Contentious Business) Determination 2012

By s 275 of the LPA the Legal Costs Committee has power to make legal costs determinations regulating the costs that may be charged by law practices, including in respect of contentious business before this court:
275.Legal costs determinations
(1)The Legal Costs Committee may make legal costs determinations regulating the costs that may be charged by law practices in respect of —
(a)non‑contentious business; and
(b)contentious business before —
(i)the Supreme Court; or
(ii)the District Court; or
(iii)the Magistrates Court; or
(iv)a court of summary jurisdiction; or
(v)the State Administrative Tribunal; or
(vi)the Family Court of Western Australia; or
(vii)any other court declared by the Attorney General under subsection (7) to be a court to which this section applies.
(2)A costs determination may provide that law practices may charge —
(a)according to a scale of rates of commission or percentages; or
(b)a specified amount; or
(c)a maximum amount; or
(d)in any other way or combination of ways.
(3)A costs determination —
(a)may differ according to different classes of legal services; and
(b)may confer a discretionary authority or impose a duty on a specified person or class of persons.
(4)A declaration must not be made under subsection (7) in respect of a dispute resolution authority as defined in the Workers' Compensation and Injury Management Act 1981.
(5)If —
(a)another written law refers to a determination under this section or a costs determination as defined in section 252; and
(b)the determination is for purposes of the written law that are, or include, purposes other than the purposes of subsection (1) (the other purposes),
(c)the Legal Costs Committee may make a determination for the other purposes.
(6)A costs determination may be amended or revoked by a subsequent determination.
(7)For the purposes of subsection (1)(b)(vii), the Attorney General may, by order published in the Gazette, declare any court to be a court in respect of which the Legal Costs Committee may make a costs determination and may, by subsequent order so published, vary or revoke that order.
Section 280 of the LPA provides:
(1)Subject to any costs agreement made in accordance with Division 6 or the corresponding provision of a corresponding law, section 306 and the Legal Aid Commission Act 1976 section 14 —
(a)the taxation of bills of law practices; and
(b)any other aspect of the costs charged by law practices,
is regulated by an applicable costs determination.
(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.
(3)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.
(4)If a costs determination is in force in respect of any business referred to in section 275(1), any other subsidiary legislation fixing or purporting to regulate the remuneration of law practices in respect of that kind of business is of no force or effect.
Clause 7 of the 2012 Determination, which came into effect on 1 November 2012, is as follows:
Catastrophic Personal Injury Claims
The Committee has resolved that the costs associated with preparation of catastrophic personal injury claims for trial should be taxed or fixed without limit to the number of hours fixed under item 17 where the court has declared a claim to be one for a catastrophic injury.
The Committee conferred with the Chief Justice of Western Australia and the Principal Registrar of the District Court of Western Australia and anticipates that the courts will develop their own procedures for determination of whether a case is a catastrophic injury claim.
The Committee is of the view that a determination of whether a case is a catastrophic personal injury claim for the purposes of item 17 would involve the assessment of two criteria –
(a)the injury or injuries sustained by the plaintiff that are at issue in the proceedings; and
(b)by virtue of the injury or injuries, whether an extra burden is placed upon the practitioners involved in the case for the preparation of the case for trial.
It is intended that the increase to the scale limit could apply to any or all parties not solely the plaintiff.
Table B in the 2012 Determination is headed 'Supreme Court Scale of Costs 2012' (the Scale). Item 17, preparation of case for trial, prescribes a maximum of $54,120, based on 120 hours work at the rate of a senior practitioner. To give effect to cl 7, a proviso was added to item 17 as follows:
If the claim is one declared by the court to be a catastrophic personal injury claim, the time reasonably spent by a legal practitioner, or by a clerk or paralegal of a legal practitioner in preparation of case for trial shall not be limited to 120 hours but shall be such amount that is reasonable in all of the circumstances.
The 2012 Determination does not define 'catastrophic personal injury claim'. Nor is there any explanation of what is meant by 'extra burden'. Clearly, however, the Legal Costs Committee by cl 7 intended to provide a means by which the costs of preparation of case for trial in certain personal injury cases may be taxed without regard to the limit prescribed in item 17, other than by application pursuant to s 280(2) of the LPA on the grounds of 'unusual difficulty, complexity or importance'.
No issue is taken in this appeal as to the power of the Legal Costs Committee effectively to confer on the court the discretion to make an item 17 declaration, notwithstanding s 280(2) of the LPA. Whether, as a matter of law, s 275(2) and s 275(3) empower the Legal Costs Committee to prescribe a circumstance where a limit in the Scale does not apply is not a question arising for decision in this matter.
The applicable costs determination applies to party-party and solicitor-client costs, unless there is a costs agreement: see s 280 and s 282. In this case, it may be inferred that the purpose of the declaration from the plaintiff's point of view is to enable him, in the event that the action is successful, to recover from the defendant, by way of party-party costs, more than the cost of 120 hours' work for preparation of the case for trial.

Catastrophic personal injury

From a broad survey of cases in which the expression 'catastrophic injury' appears it may be observed that it usually describes severe spinal cord injury and acquired brain injury. In the High Court it has been used in association with high level cervical injury resulting in tetraplegia: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402, Romeo v Conservation Commission of Northern Territory [1998] HCA 5; (1998) 192 CLR 431. In Harriton v Stephens [2006] HCA 15; (2006) 225 CLR 52, the expression was used in association with serious in utero injury resulting in blindness, deafness, mental impairment and spasticity, resulting in a need for constant supervision and care. In Roads & Traffic Authority of NSW v Dederer [2007] HCA 42 the expression was used in relation to incomplete paraplegia. In this jurisdiction, it was used in Jones v Moylan [2000] WASCA 361 to describe head injuries which left the plaintiff severely intellectually and physically impaired. In Homestyle Pty Ltd v Perrozzi [2007] WASCA 16 the expression was used in relation to incomplete tetraplegia.
In New South Wales, the Lifetime Care and Support Scheme is established under the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW). Guidelines are issued under s 58. The scheme applies to victims of motor accidents on a 'no fault' basis. The expression 'catastrophic' is not used in the legislation, but the guidelines specify the eligible injuries as spinal cord injury resulting in permanent neurological deficit, brain injury, assessed according to certain criteria, amputations of limbs above a certain level, burns exceeding the limits of certain criteria, and legal blindness.
In the Australian Government Productivity Commission Inquiry Report, Disability Care and Support (July 2011), the Commission addressed the cost of catastrophic injury in Australia and recommended the establishment of the National Injury Insurance Scheme in conjunction with the National Disability Insurance Scheme. The former was intended to fund, on a no fault basis, lifetime care and support for victims of catastrophic injuries (ch 18). In ch 17 the Commission stated:
There are complex boundaries in the classification and definition of catastrophic injury, as compared with disease. While 'disease' is generally differentiated from injury, WorkCover schemes will include some occupational diseases, such as malignant mesothelioma related to workplace contact with asbestos. The purposes of this chapter, a 'catastrophic' injury refers to a level of personal injury broadly consistent with existing definitions and assessments used by the Victorian Transport Accident Commission (TAC) Major Injury Unit, the NSW Lifetime Care and Support Authority (LTCSA) and the New Zealand Accident Compensation Corporations (ACC) National Serious Injury Service.
In particular as the criteria for eligibility, a catastrophic injury would need to be defined according to the type and severity of injury.
•Severe brain injury and spinal cord injury are the most common types of serious or catastrophic injury, multiple amputations, severe burns and permanent blindness can also be 'catastrophic' and give rise to a similar need for treatment, rehabilitation and lifetime care and support.
•The severity of the injury would be based on a range of relevant clinically‑verified measures, such as:
-Length of post‑traumatic amnesia (for example, greater than seven days)
-Neurological spinal cord injury level or score on the ASIA Impairment Scale
-Amputations of the upper and/or lower extremities at or about the fingers and/or adjacent to or above the knees
-Full thickness burns to greater than 40% of the body, or full thickness burns to the hand, face or genital area, or inhalation burns causing long‑term respiratory impairment
-Legal blindness - field of vision less than 20 degrees in diameter

The American Medical Association defines a catastrophic injury to be a severe injury to the spine, spinal cord or brain, which includes skull spinal fractures, resulting in total combined impairment of at least 55% of the whole person: see Guides to the Evaluation of Permanent Impairment, American Medical Association (6^th ed).
Attempts have been made to define catastrophic injury in other jurisdictions where statutory benefits are available, such as Ontario, Canada: see, for example, Superintendent's Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule, Financial Services Commission of Ontario, 15 December 2011.
It can be seen from the forgoing references that 'catastrophic' has become a useful descriptor of serious injuries which create a high level of dependency.
As noted, there is no definition of catastrophic personal injury in the 2012 Determination or in any legislation. It is not a technical, legal or medical term. Whilst the source of the Legal Costs Committee's selection of 'catastrophic' to describe certain personal injury claims is not known, the expression does have sufficient currency to enable a broad definition to be attempted for the purposes of this decision.
The court is, by reason of its unlimited jurisdiction in actions for damages for personal injury, experienced in determining the nature and extent of such injuries. The expression 'catastrophic injury' as used colloquially in personal injury litigation characterises injuries which have a profoundly disabling effect on the victim, generally by depriving the victim of independence such that a permanent need for attendant care and supervision is created.

Clause 7 criteria

No rules of court have been made in relation to item 17 declarations. The Legal Costs Committee in cl 7 states that it anticipates that the courts will develop their own procedures for determining whether a case is a catastrophic injury claim. It also expresses its view that two criteria would need to be addressed in the exercise of the discretion to make a declaration.
The first is the injury or injuries sustained by the plaintiff that are at issue. I do not interpret 'at issue' to mean in dispute. Catastrophic injuries by their nature are generally indisputable, such that the issues are likely to be liability, contribution, causation or quantum of damages. Accordingly, the words 'at issue in the proceedings' should be taken to mean the subject of the proceedings.
As to the second criterion, the inquiry is twofold: whether an extra burden is placed on the practitioners involved in preparation of the case, and whether that extra burden is by virtue of the subject injury or injuries.
'Extra' is a relative term meaning additional or more, which prompts the question: additional to, or more than, what? The wording of the Determination does not suggest a comparison with any norm other than item 17 itself. The only measure of work in item 17 is time. It specifies time reasonably spent by a legal practitioner, clerk or paralegal. 'Extra burden', therefore, does not mean added responsibility, but time spent in excess of the prescribed limit of 120 hours. So the question is whether by virtue of the subject injuries more time is reasonably required to be spent in preparation of the case for trial than allowed by item 17.
The application of both criteria is indicated because an injury which by its nature is catastrophic may not necessarily create an extra burden of work. For example, where a plaintiff, by reason of serious injury, is hospitalised for the rest of his or her life, the quantum of the claim may be uncontroversial.
Viewed this way, the approach to be taken, in my view, is that authorised by Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S). The court is required to evaluate as a matter of impression, and without usurping the role of the taxing officer, whether the work involved in preparation of the case for trial exceeds the limit of item 17.
The requirement that the extra burden be due to the subject injury means that the court is concerned with the effect of the injury itself on the work to be done in preparation for trial. It seems to me that the preparation of the case with respect to liability may be increased by virtue of serious injury if the plaintiff, for example, is unable to give instructions or to give evidence of the event giving rise to the injury, but generally the injury will affect the amount of work to be done in preparing the case with respect to quantum of damages.
There is a similarity, as the learned principal registrar observed at [25], between the process of determining whether an item 17 declaration should be made and whether, for the purposes of s 280(2) of the LPA, a special costs order should be made.
In a s 280(2) application, the inquiry is whether the costs allowable by the Scale would be inadequate and whether the inadequacy is due to the unusual difficulty, complexity or importance of the matter: Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S) [3]; Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [11].
In an item 17 matter the question is whether more work is required than is allowed for by the Scale item for preparation of case for trial, and whether that extra work is occasioned by virtue of the nature of the subject injury.
Prior to the 2012 Determination item 17 was called 'Getting up'. No explanation is given for the change to 'Preparation of case'. The Scale does not state what is included under that rubric. I do not infer that the change in the wording signifies any change of substance.
The scope of work included in getting up for trial was considered in Anfrank Nominees Pty Ltd & Ors v Connell & Ors (1991) 6 WAR 271. Malcolm CJ (Nicholson & Wallwork JJ) held at (280) that item 13
… includes all work done in preparing for trial not covered by any other item, including the preparation of the brief, the perusal and copying of relevant documents, any advice on evidence, notices to produce and admit, the preparation of subpoenas, papers for the judge, entry for trial and attending counsel with the brief and conferring with him. It may also cover work done by counsel in relation to these matters.
However, in Clybucca Holdings Pty Ltd v Gray (Unreported, WASC, 30 April 1997, Library No 970191), Wheeler J observed that it would be wrong to regard that passage as an exhaustive statement of everything that could conceivably be described as getting up case for trial.
It also needs to be borne in mind that the dictum of Malcolm CJ in Anfrank related to the scale of costs which formed the Fourth Schedule to the Rules of the Supreme Court 1971 (RSC). The Scale in its present form contains items which reflect subsequent developments in relation to costs.
Some work that may once have been considered as getting up is now covered by other items. For example, item 16 (entry for trial) includes advising on, as well as preparing, entry for trial documents, preparation of schedules required by DCR r 45C and r 45D, and advice on evidence.
There are, it seems to me, at least five ways in which a catastrophic injury may create an extra burden of work by way of preparation of case for trial.
First, if the effect of the injury is to render the plaintiff profoundly disabled, particularly in terms of cognitive function, but also physical function (for example, dysphasia, as in this case, or inability to ambulate), more time may need to be spent obtaining instructions than would be necessary otherwise.
Second, a profoundly disabled plaintiff, depending on the nature and effect of the injury in question, may require a next friend to conduct the action. As in this case, an administration order may be necessary. In that event, work has to be done to prove the cost of trustee and fund management fees in respect of any damages recovered.
Third, profoundly disabling injury may give rise to a greater number of heads of damage, in particular in relation to future needs, as well as the issue of life expectancy. More expert evidence is likely to be required in such a case.
Fourth, the nature of the injury may give rise to losses and needs of a complex nature, such that more time is spent by a legal practitioner on work requiring the skill of a practitioner. (Item 17 expressly states that the work may be done by a legal practitioner, clerk or paralegal, for each of whom there is a prescribed maximum hourly rate.)
Fifth, a catastrophic personal injury claim is likely to involve briefing independent counsel at an early stage.
With respect to item 17, the 'three-quarters rule', which once applied to cases where liability was not in issue, no longer applies: see 2006 Determination, cl 5. Accordingly, the limit in item 17 ordinarily applies to all cases, irrespective of what is in issue.
It follows that in considering whether an extra burden is imposed by virtue of certain injuries, it is appropriate and necessary, in my opinion, to have regard to whether liability is in issue, as preparation for trial where it is not will necessarily involve less work, such that the 120‑hour limit is less likely to be exceeded.

Circular to practitioners CIV 2012/3

On 5 November 2012 the court issued a Circular to Practitioners CIV 2012/3 headed 'Catastrophic Personal Injuries'. The circular purports to set out the court's approach to determining whether a case is a catastrophic personal injury claim for the purposes of item 17.
The circular contains procedural suggestions. It does not have any legal force. According to the circular:
1.'The court has not issued any formal guidance on what constitutes a catastrophic personal injury claim. Rather, this issue needs to be developed on a case by case basis'.
2.As to the two criteria set out in the 2012 Determination at cl 7, i.e., the injury or injuries that are at issue and whether by virtue of the injury or injuries an extra burden is placed on the practitioners involved in the preparation of the case for trial, 'the court does not consider these two criteria to be exhaustive'.
3.'The Court encourages parties to request the court to determine whether the claim is a catastrophic personal injuries claim at an early stage in the case'.
4.The determination may be made by a consent order, by chamber summons returnable before a registrar during an action, or by a declaration of the trial judge at the conclusion of a trial. In the case of a compromised claim a declaration could be sought in the application for approval of compromise.
No rules of court have been made in relation to item 17 declarations. The Circular to Practitioners is, as it were, merely a procedural default setting. Having no legal authority, the circular does not bind me in any way.

Power of a registrar make an item 17 declaration

The 2012 Determination is made pursuant to s 275(1) of the LPA and is 'subsidiary legislation' as defined by s 5 of the Interpretation Act 1984. The 2012 Determination in cl 7 and in item 17 of the Scale refers to a 'declaration by the Court'.
In the District Court Act 1969 (DCA) the expression 'the Court' is defined in s 6(1) to mean 'the District Court of Western Australia established under this Act'. Section 7(2) provides that the court shall be constituted in the manner provided by the Act. Section 8(1)(b) provides that the court shall be constituted by a District Court judge.
Section 64(1) provides that, except as otherwise provided by the Act, the costs of any action or proceeding shall be in accordance with any costs determination (as defined by the LPA) and shall be paid or apportioned between the parties in such a manner as the District Court judge directs.
Section 26(1) provides that the functions of a registrar are as set out in the Act and in the rules of court. Section 53(1) provides, inter alia, that a registrar who is or has been a legal practitioner has for the purposes of the Act, in addition to the powers and authorities conferred by the Act, all the powers and authorities of the master and the registrar of the Supreme Court.
The jurisdiction of registrars is otherwise dealt with in div 2 of the DCR 2005. Rule 8(1) provides that a legally qualified registrar may deal with any proceedings that a judge may deal with in chambers other than those specified in that rule.
Section 21 of the DCA provides that a District Court judge may sit in chambers at any time at any place and may exercise in chambers any jurisdiction of the court except the trial of causes and the hearing of applications for new trials. Hence, for practical purposes, except where the proceeding is a trial of a cause, the jurisdiction of the court may be exercised in chambers.
In keeping with this section, as a matter of practice, all civil proceedings, in respect to which the court has jurisdiction pursuant to s 50(1), apart from trials, and with the exception of proceedings with respect to matters in which the court has appellate jurisdiction conferred by other legislation, for example, civil appeals from the Magistrates Court, from the Assessor of Criminal Injuries Compensation and from an arbitrator of the Workers Compensation Arbitration Service, may be heard in chambers.
The jurisdiction of a legally qualified registrar extends to any proceedings that a judge may deal with in chambers other than those matters set out in r 8(1) (a) ‑ (e). Relevantly, these include proceedings that under the rules of court are to be dealt with by a judge (s 8(1)(d)) and proceedings that the chief judge directs are to be dealt with by a judge (s 8(1)(e)). As noted, there are no rules of court relating to the making of item 17 declarations and no directions have been given by the chief judge in respect of such proceedings.
On my analysis of the DCA and the DCR 2005, an application for an item 17 declaration is a matter within the civil jurisdiction of the court by reason of s 50(1)(f), being a matter in respect of which jurisdiction is given to the court by or under another Act, namely the LPA, being the same power and authority that the Supreme Court has in relation to that Act.
In relation to costs, s 67 of the DCA provides that costs as between parties shall be taxed by a registrar and that taxation by a registrar may be reviewed by a judge on the application of either party.
Section 68 provides that costs of proceedings as between solicitor and client may be taxed by a taxing officer of the Supreme Court.
Section 64(3) provides that a District Court judge has the same power in relation to the payment of costs by any party as a judge of the Supreme Court has.
The plaintiff referred to Brocx v Havilah Legal [2012] WASC 153 where Master Sanderson observed that a District Court registrar was not a judicial officer for the purposes of s 280(2) of the LPA. In that case a registrar had merely entered a consent order in relation to costs pursuant to RSC O 43 r 16. There was no adjudication. The observation was obiter. It does not bear on my decision.
In my view, the question is not whether a registrar constitutes the 'the court or a judicial officer' for the purposes of s 280(2), but whether the functions delegated to a registrar include the making of an item 17 declaration.
It is clear that the jurisdiction of this court to make an item 17 declaration derives from the LPA which empowers the Legal Costs Committee to make costs determinations. Orders in respect of the costs of actions or proceedings may be made by a judge in chambers and may therefore be made by legally qualified registrars pursuant to DCR 2005 r 8.
An application for an item 17 declaration, not being a trial of a cause for the purposes of s 21 of the DCA, may also be heard in chambers by a District Court judge, and therefore by a registrar pursuant to r 8. It is not a matter which comes within any of the exceptions set out in r 8(1) (a) to (e).

Stage of proceedings at which declaration to be made

In this case the application for an item 17 declaration was made after the close of pleadings and following the filing of the plaintiff's particulars of damages pursuant to DCR 2005 r 45C(3). The action had not been entered for trial at that time. By its defence the defendant denied liability for negligence and put in issue the plaintiff's allegations of injury, loss and damage.
The reason given by the plaintiff for seeking a declaration during the course of proceedings is that it would assist the plaintiff's solicitors to provide a meaningful costs disclosure.
DCR 2005 r 36(1) provides that, unless otherwise ordered, a lawyer for a party to a case must not enter the case for trial unless the lawyer has given the written notice of:
(a)The approximate legal costs and disbursements of the party up to and including giving the notice;
(b)The estimated future legal costs and disbursements of a party up to but not including the trial;
(c)The estimated length of the trial and the legal costs and disbursements associated with it;
(d)The estimated legal costs and disbursements that the party would have to pay to another party if the party were to lose the case.
The LPA also contains provisions which require costs disclosure by a law practice to a client. Section 262 provides that costs disclosure by a law practice to a client pursuant to s 260 must be made in writing before, or at least as soon as practicable, after, the law practice is retained in the matter.
Section 264(1) provides that if a law practice negotiates a settlement of a litigious matter on behalf of the client, the law practice must disclose to the client, before the settlement is executed, a reasonable estimate of the amount of legal costs payable by the client if the matter is settled (including any legal costs of another party that the client is to pay) and a reasonable estimate of any contributions towards those costs likely to be received from another party.
The plaintiff accordingly submits that an item 17 declaration will, if obtained prior to negotiations for settlement, affect the terms of a costs disclosure in respect of costs which may be recovered and costs for which the party may be liable.
The defendant, on the other hand, contends that the issue of whether an item 17 declaration is made should not be determined unless and until the party seeking the declaration has obtained an order for the costs of the action. The defendant's contentions are broadly as follows:
1.It is that it is not until the conclusion of a matter that the court is in a position to decide whether an extra burden of work has been placed on the lawyers for a party by virtue of the injury or injuries at issue in the proceedings.
2.Item 17 of the scale allows costs for preparation of the case for trial. Whether an extra burden is imposed by virtue of the injuries may depend on the point at which the matter is resolved. A personal injuries claim may be resolved by a judgment following trial, or at any time prior to or during the course of an action. It may be that no costs order is made in favour of a party who has an interest in obtaining a declaration if, for example, the plaintiff's claim is dismissed or discontinued.
3.The injuries at issue may vary in terms of what is pleaded from time to time and there may be an issue as to whether such injuries were caused by the defendant's alleged wrongdoing.
4.It is inappropriate to make an item 17 declaration before an action is resolved because it would potentially affect the entitlement to costs of a party in respect of whom it could not be said that an extra burden was placed on the legal practitioners involved in the preparation of the case by virtue of the injury or injuries at issue.
5.The making of an item 17 declaration before the determination of any liability for costs is only appropriate, therefore, when the party applying for the declaration has the benefit of a costs order.
6.The court has an overriding discretion as to costs in any case. The conduct of proceedings by a party, as well as the outcome, may affect any party's entitlement to costs.
7.No item 17 declaration is required in order to enable a party's solicitor to make a costs disclosure: litigation is ordinarily conducted on the basis that the party's legal representatives are able to assess from time to time during the course of an action what the costs consequences will be. For example, notwithstanding that s 280(2) does not restrict a party from applying for a special costs order at any time, the court would not be in a position to apply the Heartlink test until the work had been done.

On the submissions before me, I accept that there is nothing in the wording of the 2012 Determination which purports to prescribe any rule to when an item 17 declaration may be made. The position is the same with respect to s 280(2) of the LPA. The court has an unfettered discretion to deal with costs at any time during the course of proceedings: RSC O 66 r 10(1).
Whether it is appropriate to entertain or determine an application for an item 17 declaration at any time prior to the conclusion of the action will, in my opinion, depend on the purpose for which the application is made and whether the information available to the court would allow a proper assessment of the two criteria set out in cl 7.
In most cases, whether such a declaration should be made would be self‑evident by the conclusion of the action such that where the plaintiff became entitled to costs a declaration might be made by consent.
Otherwise, it would be for the plaintiff, or another party entitled to costs, to satisfy the court that by reason of the injury or injuries involved, an extra burden of work was placed on the legal practitioners for that party in preparing the case for trial. At that point the party entitled to costs would be in a position to demonstrate that more work was required to be done than is allowed by item 17.
In that event, the court would deal with the application as it would an application under s 280(2) of the LPA. Being informed of the way in which the case was conducted and the issues that were litigated, the court would be in a position to address the relevant criteria 'as a matter of impression rather than science or mathematics': see EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) [7]; Verdell Pty Ltd v S & G Nominees Pty Ltd [2002] WASC 58 (S2) [14]: cited in Cape Lambert [3].
I am not satisfied that the rules as to costs disclosure necessitate, or otherwise warrant, an application for an item 17 declaration being made during the course of the proceedings. Costs disclosure, although now a legislated requirement, has always been a professional duty. Catastrophic personal injury claims, like other types of Supreme and District Court civil actions, may involve more work than the Scale allows. But all litigation in which legal practitioners are engaged proceeds on the basis of predicted outcomes, including costs consequences, such as, for instance, the likelihood of a party obtaining a special costs order pursuant to s 280(2) or being allowed on taxation the costs of senior counsel.
It is not a difficult or unduly risk-prone task, in my opinion, for a legal practitioner involved in the conduct of a personal injury action with respect to a catastrophic injury to predict the likelihood of any party entitled to costs obtaining an item 17 declaration.
There is force in the defendant's submission, and I accept, that it is at the conclusion of a case that the court is in the best position to determine whether the cl 7 criteria are satisfied. A claim in respect of a catastrophic injury may well be resolved prior to the point at which an extra burden may arise, such that it may be speculative to make an early declaration. Similarly, if there are issues as to the extent or cause of the subject injury, a declaration made before the claim is resolved may be premature.
In my view, an item 17 declaration will be occasioned by an order for costs in favour of a party. The question will be whether, in respect of that party, an extra burden was placed on the legal practitioners involved in the preparation of the case for trial by virtue of the subject injury. Indeed, it is difficult to see how an item 17 declaration could be made before any liability for the costs of the action is determined. It is for the party entitled to costs to satisfy the court of the extra burden occasioned by virtue of the injury in order to justify the declaration. That party may not be the plaintiff. In any event, the conduct of a successful party may affect its entitlement to costs, such as, for example, the rejection of an offer which is not bettered in the result.
For these reasons I would decline the plaintiff's application. I am not satisfied that an item 17 application should be made before the conclusion of the action.
I would add that I am not persuaded, in any event, the item 17 work which is broadly outlined in the plaintiff's solicitor's affidavit does not demonstrate, even as a matter of impression, that the work to be done by way of preparation of the case for trial would exceed the hours allowed for by the Scale so as to involve an extra burden, even though, having regard to the pleaded injuries and heads of damage, it may well be the case. Much would depend, as I have said, on the stage at which the action was resolved.

Solicitor-client costs

This appeal concerns a case where the purpose of the declaration, as I have observed, is to enable the plaintiff, if successful, to recover party‑party costs for preparation of the case for trial in excess of the limit in item 17. The uplift is not required for the purposes of solicitor-client costs if the legal practitioner has a valid costs agreement permitting the practitioner to charge above the Scale.
But there are circumstances in which a legal practitioner for a party is unable by law to agree to receive any greater reward than is allowed by a costs determination: see s 27A, Motor Vehicle (Third Party Insurance) Act 1943; s 87, Workers Compensation and Injury Management Act 1981.
Because costs are an indemnity a party cannot recover more from another party than the costs it has incurred: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, 410.
In circumstances to which s 27A or s 87 apply, an item 17 declaration may be required in an appropriate case in order to enable the legal practitioner for a party to charge in excess of the limit, as well as for the party so charged to be able to recover costs on that basis, if successful. The stage at which a declaration might appropriately be sought in those circumstances is not a question that arises for my determination in this appeal.

Conclusion

The conclusion to which I have come in this appeal is at odds with the Circular to Practitioners CIV 2012/3. I do not consider that item 17 declaration should be made early in the proceedings. The practice of applying for an item 17 declaration ought to be regulated by rules of court.
The appeal is allowed. The application for an item 17 declaration is dismissed. I will hear the parties as to costs.