Moore v Downer EDI Engineering - Projects Pty Ltd

[2010] WADC 42

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   MOORE -v- DOWNER EDI ENGINEERING - PROJECTS PTY LTD & ANOR [2010] WADC 42

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   23 MARCH 2010

DELIVERED          :   26 MARCH 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

Catchwords:

Taxation of the bill of costs of a non-party - Taxation under an order for indemnity costs - Objection to the determination that costs were limited by the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 clauses 3 and 9

Legislation:

Nil

Result:

Objection not sustained

Representation:

Counsel:

Plaintiff:     No Appearance

First Defendant             :     Mr S Forbes

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Bradley Bayly

First Defendant             :     CCS Insurance Law

Second Defendant         :     Williams Hancock Lawyers

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

Nil

1. DEPUTY REGISTRAR HARMAN:  Upon its application by summons dated 31 October 2008 the first defendant sought an order for discovery against Lampson (Australia) Pty Ltd.  Lampson was not a party to the action.  Ultimately Lampson received the benefit of an order for the costs of the application against the first defendant on an indemnity basis. 

2. Under its bill Lampson sought to recover $34,709.55. The only determination made at taxation was that recovery was limited by Item 10A of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008.

3. Its objection to that determination is as follows:

   "Lampson (Australia) Pty Ltd (the non-party) submits that the taxing officer has made an error in principle by ruling that the indemnity costs order to be paid by the first defendant to the non-party are limited in quantum by item 10A in the Legal Practitioners (Supreme Court) (Contentious Business) Report and Determination 2008. 

   The first defendant sought discovery from the non-party whose principal place of business is the State of New South Wales.  The non-party sought advice from its corporate solicitors who were also in New South Wales. 

   Deputy Registrar Hewitt in his reasons for decision delivered on 20 February 2009 said in paragraph 9 “Additionally if, as appears to be the case, the Supreme Court scale does not apply to the circumstances of this application, and bearing in mind that the non-party, its solicitors and counsel are all located in New South Wales, it is difficult to see any other basis upon which costs could be awarded”. 

   The non-party submits that its costs are not limited by the 2008 determination as they were not a party to the proceedings and as such they should, pursuant to the Order of the Court be indemnified for all costs incurred and paid to its solicitors save where those costs are of an unreasonable amount or unreasonably incurred. 

   The non-party has paid costs in accordance with the practice in New South Wales which does not have scales limiting costs.  It is submitted that the costs paid by the non-party to its solicitors are recoverable as they have been properly incurred."

4. According to cl 3 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008, it applies to the remuneration of practitioners in respect of contentious business carried out by practitioners in and for the purposes of proceedings before the District Court. According to cl 2, it came into effect on 1 July 2008. According to the detail in the bill, recovery was sought for services provided after that date. Although not a party to the action Lampson was the respondent to the application and thereby is properly characterised as a party to a proceeding. In any event, I am satisfied that the services to which the items in the bill relate are within the scope of cl 3. According to cl 9, absent an agreement, the costs recoverable by a party to a proceeding shall not exceed the amounts set out in the table that it introduces. There was no such agreement. Item 10A of the table specifies the maximum recoverable for the relevant service.

5. Under the terms of the order Lampson was entitled to recover the cost of services provided to it other than to the extent that the quantum sought was unreasonable.  The adverse party carried the onus of persuasion.  It discharged the onus by reference to the impact of cl 9.  

6. I have no difficulty with the content of the second paragraph of the objection.  Both at taxation and upon review the defendant requested that I noted features of the attachments to the affidavit of Mark Jason Civitella of 31 October 2008, sworn in support of the application.  First there is a standard equipment lease agreement of Lampson which shows an address in Toronto, New South Wales.  There follows a letter from the first defendant's solicitors dated 6 August 2008 addressed to the directors of Lampson at Bassendean Western Australia of which a copy has been sent to the managing director of Lampson at the Toronto address.  Also attached is a letter dated 12 August 2008 from Hewitts Commercial Lawyers of The Junction, New South Wales which reveals a Perth office in St George's Terrace, Perth. 

7. I note that on the court's file there is also a letter from Hewitts dated 2 February 2009 that contains the same detail. 

8. As to the third paragraph, I have been unable to locate any additional material that would support the quotation from the reasons for decision.  Be that as it may, the issue before me had not then been before the court for determination.  In any event I do not understand how the detail in either the second and third paragraphs of the objection would assist the objector.

9. As to the fourth paragraph, I repeat my response to the first.

10. As to the last, I have no difficulty with the proposition that costs have been paid by Lampson for services provided and that those services may properly have been provided.  It was entitled to recover for the cost of those services only to the extent that the item in the scale would permit.

11. The fundamental consideration not directly raised by the objection is that as much as cl 3 and cl 9 of the determination have an impact on the adverse party, they also have an impact on the solicitor for the beneficial party.