Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulation
[2015] WASC 21
•23 JANUARY 2015
MINERALOGY PTY LTD -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT REGULATION [2015] WASC 21
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 21 | |
| Case No: | CIV:1476/2014 | ON THE PAPERS | |
| Coram: | EDELMAN J | 23/01/15 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Special costs orders made | ||
| B | |||
| PDF Version |
| Parties: | MINERALOGY PTY LTD CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT REGULATION CITIC PACIFIC MINING MANAGEMENT PTY LTD |
Catchwords: | Practice and procedure Costs Special costs orders Removal of limits allowed for preparation Allowance for senior and junior counsel |
Legislation: | Legal Profession Act 2008 (WA), s 280 |
Case References: | Atwell v Roberts [2013] WASCA 37 (S) Crawley Investments Pty Ltd v Elman [2014] WASC 233 (S) EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) Frigger v Lean [2012] WASCA 66 Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulation [2014] WASC 468 O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) Pourzand v Telstra Corp Ltd [2012] WASC 210 (S2) Red Hill Iron Pty Ltd v API Management Pty Ltd [2012] WASC 323 (S) Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT REGULATION
First Defendant
CITIC PACIFIC MINING MANAGEMENT PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Costs - Special costs orders - Removal of limits allowed for preparation - Allowance for senior and junior counsel
Legislation:
Legal Profession Act 2008 (WA), s 280
Result:
Special costs orders made
Category: B
Representation:
Counsel:
Plaintiff : No appearance (On the papers)
First Defendant : No appearance (On the papers)
Second Defendant : No appearance (On the papers)
Solicitors:
Plaintiff : Michael John Dunham
First Defendant : State Solicitor for Western Australia
Second Defendant : Allens
Cases referred to in judgment:
Atwell v Roberts [2013] WASCA 37 (S)
Crawley Investments Pty Ltd v Elman [2014] WASC 233 (S)
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S)
Frigger v Lean [2012] WASCA 66
Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulation [2014] WASC 468
O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S)
Pourzand v Telstra Corp Ltd [2012] WASC 210 (S2)
Red Hill Iron Pty Ltd v API Management Pty Ltd [2012] WASC 323 (S)
Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S)
- EDELMAN J:
Introduction
1 On 11 December 2014, I dismissed Mineralogy's application for judicial review in these proceedings. The second respondent, Citic Pacific Mining Management Pty Ltd (CPMM), now seeks special costs orders under s 280 of the Legal Profession Act 2008 (WA) and s 37(1) of the Supreme Court Act 1935 (WA). CPMM seeks an order removing the limits imposed by the number of hours and costs claimable under Item 11 of the Legal Practitioners (Supreme Court)(Contentious Business) Determination 2014 (the Scale) and also provision for the possibility of allowing for the costs of senior counsel. Those orders should be made.
The principles concerning special costs orders
2 Section 280(2) of the Legal Profession Act 2008 (WA) 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.
4 In Crawley Investments Pty Ltd v Elman,1 I summarised the principles concerning special costs orders under this section, quoting from the Court of Appeal in Wainwright v Barrick Gold of Australia Ltd2and other indicated authorities:
(i) 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'.
(ii) 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 'detailed evaluation', 'precision', 'science' or 'mathematics'.
(iii) As to the first question (inadequacy) 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. Until that threshold is crossed, the power will not ordinarily be exercised.
(iv) A conclusion that it is fairly arguable that the taxing officer might properly allow costs at an amount greater than the amount allowable under the Scale does not always require evidence of the costs actually incurred.3
(v) As to the second question (the cause of the inadequacy being unusual difficulty, complexity or importance), the word 'unusual' qualifies only the 'difficulty' of the matter and not its complexity or importance. 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. And the word 'importance' in s 280(2) encompasses importance to the parties; it does not require broader importance to the public or a sector of the public.4
(vi) Although replacing the amount of the Scale item with a different ceiling may be appropriate where sufficient information exists to make that assessment, it is not uncommon for an order to be made removing the limit for the Scale item without replacing that limit with a different ceiling.5
(vii) One of the principles that should guide a court in addressing an issue under s 280(2) is that the court should not usurp the role of the taxing officer.6
Inadequacy of Item 11 of the Scale
5 The starting point is to determine whether Item 11 is inadequate.
6 Item 11 of the Scale is concerned with the cost of an originating motion, originating summons, or originating application. The time estimate is 2 days of preparation by junior counsel and a one day hearing, and 50 hours preparation of the case by a senior practitioner and a one day hearing. The total amount for the one day of hearing at the Scale rates is $35,200 with an hourly rate for attendance by a senior practitioner at the hearing.
7 CPMM provided affidavit evidence that the amount of time actually spent on the matter by solicitors and counsel, independently of the one day hearing, included: clerks (31 hours), junior practitioners (306 hours), senior practitioners (296 hours), junior counsel (45 hours), senior counsel (45 hours).7
8 The written submissions for Mineralogy, authored by junior counsel, submitted, quoting from Atwell v Roberts,8 that the affidavit 'should annex a draft bill of costs that specifies the amounts proposed to be claimed under each discrete sub-item and the total amount proposed to be claimed'. The next sentence of that paragraph says the following:
Nevertheless, despite this omission in the present case, it is readily apparent, on the basis of the number of hours apparently worked and the maximum hourly rates permitted under the relevant scales, that the total amount which the first and second respondents' legal representatives have charged is highly likely substantially to have exceeded the total amount allowable under the relevant scales.
9 The same is true in this case.
10 Mineralogy also submitted that the affidavit evidence described above included a summary of all the work done which included preparation other than for the final hearing (about which Item 11 is concerned) and including 'time spent, amongst other things, on interlocutory matters and other matters distinct from preparation'. But this is not a circumstance where time spent on the one very short interlocutory hearing in this proceeding (concerning transfer of the proceeding from another judge's CMC list to mine) could have reduced the hours from approximately 600 hours to anything approximating 50 hours.
11 Mineralogy then submitted that the Scale only came into operation on 1 July 2014. Prior to that date, the 2012 Scale applied. Mineralogy's submission was that CPMM should have set out which costs were incurred between the filing of the application on 8 April 2014 and the operation of the 2014 Scale on 1 July 2014. Mineralogy's assumption seemed to be that the 2014 Scale might be adequate because much of the work in preparing for a hearing on 14 November 2014 could have been completed prior to July 2014. Another assumption seems to be that CPMM could claim for work done prior to July 2014 under the 2012 Scale, and then claim again for subsequent work done under the 2014 Scale without any reduction of the limit based on work to which the 2012 Scale applied. In effect, work being done over the periods in which two Scales apply would have the benefit of double the limit. I do not accept either of these assumptions.
12 Mineralogy then relied upon a comparison with the costs that had been incurred by the first respondent, the Chief Executive Officer of the Department of Environmental Protection.
13 In any event, this question is not one of mathematical exactitude. It is a matter of impression. My impression is 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. Although Mineralogy made submissions about the extent of the preparation and time spent by the solicitors for CPMM on the matter I make no comment on those matters. They will be for the discretion of the taxing officer.
14 I am also satisfied that the limits on costs in Item 11 of the Scale are inadequate in this case in that they do not provide for the cost of senior counsel. CPMM was represented by senior and junior counsel. Mineralogy was also represented by senior and junior counsel and the importance of the matter, to which I refer below, was such that it should be within the discretion of the taxing officer to allow for the costs of senior and junior counsel.
Whether the cause of the inadequacy is unusual difficulty, complexity or importance of the matter
15 Mineralogy made no substantial submission concerning whether, if the Scale was inadequate (in the sense I have explained above at [4(iii)]) then this inadequacy was caused by the unusual difficulty, complexity, or importance of the matter. In my principal reasons I explained the particular importance to CPMM of the Amended Transhipment Licence and the Desalination Licence.9 By themselves, I consider that those matters are a sufficient reason for 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. The importance of the matter is further enhanced by the vast size and scale of the project to which these licences relate and the potential for a very substantial effect on the project if orders had been made quashing the licences.
Conclusion
16 On 11 December 2014, I made orders on this application that Mineralogy pay CPMM's costs of the application to be taxed if not agreed. The appropriate order to make provision for the possibility of special costs is as follows:
Any taxation of the Second Respondent's costs of the application be on the basis that the limits on costs allowable under the Legal Practitioners (Supreme Court)(Contentious Business) Determination 2014 (WA) (the Scale)be varied pursuant to s 280(2) of the Legal Profession Act 2008 (WA) in respect of Item 11 - originating application:
(i) by removing the limits on the hours allowed for preparation; and
(ii) by making allowance for rates for both senior counsel and junior counsel to a maximum of the rates in the Scale.
17 Neither of these matters constrains the discretion of the taxing officer.10 It is a matter for the discretion of the taxing officer whether he or she considers it appropriate to award an amount based on hours beyond those provided in Item 11 of the Scale or for rates for both senior and junior counsel.
1Crawley Investments Pty Ltd v Elman [2014] WASC 233 (S) [5].
2Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S) [7] - [9] (the Court).
3Frigger v Lean [2012] WASCA 66 [81] (Allanson J; Newnes & Murphy JJA agreeing).
4Red Hill Iron Pty Ltd v API Management Pty Ltd [2012] WASC 323 (S) [7] (Beech J).
5EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) [8] - [9] (Martin CJ); Red Hill Iron Pty Ltd v API Management Pty Ltd [2012] WASC 323 (S) [5] (Beech J); Pourzand v Telstra Corp Ltd [2012] WASC 210 (S2) [14].
6Red Hill Iron Pty Ltd v API Management Pty Ltd [2012] WASC 323 (S) [6] (Beech J).
7 Affidavit of Mei Chien Koh, 24 December 2014 [9].
8Atwell v Roberts [2013] WASCA 37 (S) [23].
9Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulation [2014] WASC 468[176] - [178].
10O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) [20] (Martin CJ).
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