Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 3]
[2013] WASC 434 (S)
•12 FEBRUARY 2014
MINERALOGY PTY LTD -v- SINO IRON PTY LTD [No 3] [2013] WASC 434 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 434 (S) | |
| Case No: | CIV:1808/2013 | ON THE PAPERS | |
| Coram: | EDELMAN J | 12/02/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Costs of applications to be taxed and paid forthwith if not agreed | ||
| B | |||
| PDF Version |
| Parties: | MINERALOGY PTY LTD SINO IRON PTY LTD KOREAN STEEL PTY LTD CITIC PACIFIC LTD |
Catchwords: | Practice and procedure Fixing of costs Whether appropriate to fix costs |
Legislation: | Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA) items 10(a) and 11(a) |
Case References: | Frigger v Kitay (in his capacity as liquidator of Computer Accounting and Tax Pty Ltd) (No 3) [2014] WASC 24 Norilya Minerals Pty Ltd v Easterday [2009] WASC 191 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SINO IRON PTY LTD
First Defendant
KOREAN STEEL PTY LTD
Second Defendant
CITIC PACIFIC LTD
Third Defendant
Catchwords:
Practice and procedure - Fixing of costs - Whether appropriate to fix costs
Legislation:
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA) items 10(a) and 11(a)
Result:
Costs of applications to be taxed and paid forthwith if not agreed
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff : Ashurst Australia
First Defendant : Allens
Second Defendant : Allens
Third Defendant : Allens
Cases referred to in judgment:
Frigger v Kitay (in his capacity as liquidator of Computer Accounting and Tax Pty Ltd) (No 3) [2014] WASC 24
Norilya Minerals Pty Ltd v Easterday [2009] WASC 191 (S)
- (This judgment was delivered orally at the hearing on 12 February 2014 and has been edited for grammar and syntax.)
1 EDELMAN J: On 4 December 2013, I held a directions hearing in this matter. The orders sought by Mineralogy at that directions hearing were set out in a minute dated 2 December 2013. They included
(1) an interlocutory injunction restraining the Citic Parties (the defendants) from exporting Magnetite Ore under the MRSLAs; and
(2) an urgent hearing of issues including whether the MRSLAs had been terminated by frustration, whether there is an implied term to negotiate to replace Royalty Component B, whether that implied term has been breached and whether the Citic Parties had renounced the MRSLAs.
2 Although the interlocutory injunction was not brought as a chamber summons, was not supported by any submissions or affidavit evidence, and was simply tacked on to directions sought, the interlocutory injunction application would have had dramatic effects on the Citic Parties if it were granted. It would have effectively stopped the export of materials under a project which employs 2500 to 2800 people and on which the Citic Parties have spent approximately $7 billion. Understandably, the Citic Parties were represented by senior counsel and junior counsel. The potential consequences of both applications were such that it was entirely reasonable for the Citic Parties to be represented by both senior and junior counsel.
3 For whatever reason, and without notice to the Citic Parties, the interlocutory injunction application was not pressed.
4 The application for an urgent trial of legal issues was dismissed for reasons I gave which are published as Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 3) [2013] WASC 434.
5 I indicated at the directions hearing that I intended to fix costs. The purpose of fixing costs by the judge who hears the application is to save time and expense for the Court and the taxing officer. Practice Direction 4.7.3 provides that as a general rule in interlocutory proceedings costs will be fixed and ordered to be paid forthwith or by a particular date.
6 The relevant Scale items upon which the Citic Parties rely are item 11(a) (originating summons) with a maximum of $33,110 for 50 hours, and item 10(a) (proceedings in chambers other than originating summons) with a maximum of $10,560.1
7 The Citic Parties subsequently filed short submissions seeking fixed costs of $55,536.80 (at rates above Scale) or fixed costs of $11,866.80 at Scale rates but using the Scale rate for senior counsel. Although these amounts are substantial in the context of a directions hearing, and the presence of senior and junior counsel in a directions hearing is unusual, it is important to bear in mind the extraordinary nature of the applications by Mineralogy.
8 Perhaps surprisingly, Mineralogy did not respond to this application by accepting that costs should be fixed and making submissions that they should be fixed at a lower amount. The reason for surprise is that the broad brush fixing of costs can sometimes result in a fixed costs order which is less than that which would be the result of the usual careful taxation. This could have been to Mineralogy's advantage. Furthermore, one might have expected that with Mineralogy's professed desire to move this litigation to trial as rapidly as possible, it would not have desired the delay which might be occasioned by a taxation of costs forthwith.
9 Nevertheless, instead of receiving the submissions from the Citic Parties and then conferring with the Citic Parties about the further information which Mineralogy might need to make submissions concerning a fixed costs order, Mineralogy responded with six pages of submissions concerning why a fixed costs order should not be made. In summary, Mineralogy said that:
(1) the Citic Parties had not provided sufficient information for even a broad brush calculation of costs;
(2) the Citic Parties had not established any basis for the award of costs under item 11(a) or that the maximum amount under item 11(a) should be awarded;
(3) the Citic Parties had not established any basis upon which the maximum under item 10(a) should be awarded; and
(4) the size of the costs claimed makes the claim more amenable to taxation.
To these matters, I would add that difficulty is caused by the potentially large range into which the fixed costs would fall.
10 For a number of reasons, although I raised the issue of fixing costs I now accept Mineralogy's submissions that it would be inappropriate to fix the costs. One reason is the substantial sums, and range, for the costs involved in the applications of this exceptional nature. Another reason is that the exceptional circumstances of these applications might also require awards of separate, apportioned, costs awards for each application.
11 I therefore accept, upon reflection, that a careful taxation of the substantial costs claimed with more information about the costs incurred is more appropriate than a taxation on a broad brush approach.2
12 This result is unfortunate. The parties will now be put to the further expense and delay caused by a taxation. It is possible that this further expense and delay could have been avoided by in person conferral, including identification by Mineralogy in the conferral process of each of the matters which Mineralogy contended would inhibit the fixing of costs, and response accordingly by the Citic Parties.
13 I should record that nothing in these reasons should be taken as accepting the submission by Mineralogy that item 11(a) is inapplicable because Mineralogy brought its application for an interlocutory injunction informally. Acceptance of that proposition would mean that Mineralogy could rely upon its own breach of formal rules to put itself outside a costs regime, despite having put the Citic Parties to the preparation of a response to orders which Mineralogy sought and which would have had extraordinary effect on the Citic Parties.
14 For these reasons I will order that:
(1) Order 3 of my orders on 22 January 2014 be vacated and in its place order that:
(a) The plaintiff (Mineralogy) pay the defendants' costs of:
(i) the plaintiff's (Mineralogy's) application for an urgent trial; and
(ii) the plaintiff's (Mineralogy's) application for an interlocutory injunction,
which costs should be agreed, or taxed and paid forthwith.3
15 Mineralogy did not oppose a further order as follows.
(3) There be no order as to costs of the application for fixing of costs.
16 Order (3) is appropriate in circumstances in which (i) the application was made following my initiative that costs be fixed; (ii) my initiative was based in part upon a desire to expedite these proceedings in circumstances in which Mineralogy has constantly professed a desire for expedition; and (iii) the submissions in relation to costs will be relevant to the exercise of taxation of costs before the taxing officer.
17 Mineralogy also, properly, did not oppose a further order sought by counsel for the Citic Parties as follows.
(4) The costs in order (1) be taxed as if the applications by the plaintiff (Mineralogy) for an interlocutory injunction and urgent hearing of issues had been made formally.
1Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA)items 10(a) and 11(a).
2 See also Norilya Minerals Pty Ltd v Easterday [2009] WASC 191 (S) [14] (Le Miere J).
3 See also Frigger v Kitay (in his capacity as liquidator of Computer Accounting and Tax Pty Ltd) (No 3) [2014] WASC 24 [68] (Allanson J).
0
3
1