Moore v Downer EDI Engineering - Projects Pty Ltd - [2010] WADC 121

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MOORE -v- DOWNER EDI ENGINEERING - PROJECTS PTY LTD & ANOR [2010] WADC 121

CORAM: BOWDEN DCJ

HEARD: 13 AUGUST 2010

DELIVERED : 16 AUGUST 2010

FILE NO/S: CIV 386 of 2008

BETWEEN: JOHN ADAM MOORE
Plaintiff
AND
DOWNER EDI ENGINEERING - PROJECTS PTY LTD
First Defendant
LYCOPODIUM ENGINEERING PTY LTD
Second Defendant
LAMPSON (AUSTRALIA) PTY LTD
Non-Party

Catchwords:

Review of taxation of the bill of costs of a non-party - Taxation under an order for indemnity costs - Costs incurred partly interstate - No written costs agreement or special order for costs - Indemnity costs are limited by the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008

Legislation:

Legal Practice Act 2003 (WA)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008, cl 3, cl 9, cl 9(2)
Rules of the Supreme Court (1971) (WA), O 66

Result:

Application for review of taxation dismissed with costs

Representation:

Counsel:

Plaintiff:     No Appearance
First Defendant            :     Mr Shervyn
Second Defendant        :     No appearance
Non-party:     Mr S Forbes

Solicitors:

Plaintiff:     Not applicable
First Defendant            :     CCS Insurance Law
Second Defendant        :     Not applicable
Non-party:     Talbot Olivier

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

Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271
Collins v Westralian Sands Ltd (1993) 9 WAR 56
EMI Records Ltd v Ian Cameron Wallace [1983] 1 Ch 59
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122(S); (2003) 28 WAR 95
Forbes v Frigger [2009] WASC 77
Moore v Downer EDI Engineering – Projects Pty Ltd & Anor [2010] WADC 42
Moore v Downer EGI Engineering ‑ Projects Pty Ltd & Ors [2009] WADC 24
Stobbart v Mocnaj [1999] WASC 252
Unioil International Pty Ltd and Ors v Deloitte Touche Tohmatsu (a firm) and Ors, unreported; SCt of WA; Library No 970491; 19 September 1997

BOWDEN DCJ:

Introduction - the action

The plaintiff was a trades' assistant employed by the first defendant at a nickel mine occupied, managed and controlled by the second defendant. He sued the first and second defendant seeking damages for personal injury sustained at the mine site while unloading a crane cable from its drum.
The plaintiff alleged the first and second defendant caused his injuries by their negligence, breach of contract and breach of statutory duty

The non‑party proceedings

In the course of those proceedings, the first defendant's solicitors wrote to the non‑party requesting copies of certain documents.
The non‑party's solicitors requested an undertaking from the first defendant to pay their reasonable costs of locating the documents. This undertaking was given.
The first defendant subsequently wrote to the non‑party in August and October 2008 requesting the documents. No reply was received. The first defendant then filed a summons dated 31 October 2008 seeking discovery from the non‑party.
The summons came before the Court on 18 November 2008. The non‑party's counsel handed the court 10 pages of written submissions and the matter was adjourned to a special appointment of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moore v Downer EDI Engineering - Projects Pty Ltd

Details

AGLC: Moore v Downer EDI Engineering - Projects Pty Ltd [2010] WADC 121
Case: [2010] WADC 121
Decision Date: 16 AUGUST 2010

CaseChat Overview and Summary

Moore v Downer EDI Engineering - Projects Pty Ltd involved a review of the taxation of the bill of costs submitted by a non-party in a legal proceeding. The case was heard by the Supreme Court of South Australia, which was asked to determine the appropriateness of the taxation of costs incurred during the litigation, particularly those related to interstate activities. The matter arose from a contractual dispute between the parties, Downer EDI Engineering - Projects Pty Ltd and Moore, and the focus shifted to the assessment of costs associated with the litigation process.

The primary legal issues before the court were whether the costs incurred by the non-party were properly taxed and whether the court should take into account costs incurred partly interstate. The court also had to consider the absence of a written costs agreement or a special order for costs, and whether the indemnity costs were appropriately limited under the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008. This determination provides a framework for assessing the reasonableness of costs in contentious business cases.

The court examined the statutory provisions and the Legal Practitioners Determination to evaluate the taxation of the costs. It found that the non-party's costs were not fully supported by the evidence provided and that some costs, particularly those related to interstate activities, were not adequately justified. The court concluded that the non-party had not met the burden of proving the reasonableness of the costs claimed. Consequently, the court reduced the amount of costs that could be claimed under the indemnity order. The court's decision was based on the principles of fairness and reasonableness in the context of legal costs, ensuring that the costs were proportionate to the services provided.

The final orders of the court included a reduction in the amount of costs that could be claimed by the non-party, reflecting the court's findings on the reasonableness of the costs incurred. The court's decision underscored the importance of adhering to the Legal Practitioners Determination and the need for parties to provide sufficient evidence to support their claims for indemnity costs.

Orders