Mulcahy v Motor Accident Commission of South Australia in right of Barry Wayne Page
[2003] WASCA 125
•16 JUNE 2003
MULCAHY -v- MOTOR ACCIDENT COMMISSION OF SOUTH AUSTRALIA in right of BARRY WAYNE PAGE [2003] WASCA 125
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 125 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:124/2002 | 9 MAY 2003 | |
| Coram: | MURRAY J PARKER J WHEELER J | 16/06/03 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BARRY JOHN MULCAHY MOTOR ACCIDENT COMMISSION OF SOUTH AUSTRALIA in right of BARRY WAYNE PAGE |
Catchwords: | Costs Special orders Turns on own facts |
Legislation: | District Court Rules 1996 (WA), O 5 r 1 Rules of the Supreme Court 1971 (WA), O 66 r 12(1) |
Case References: | Collins v Westralian Sands Ltd (1993) 9 WAR 56 Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 House v The King (1936) 55 CLR 499 Schmidt v Gilmour [1988] WAR 219 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Tenbohmer v Eden (1992) 6 WAR 366 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MULCAHY -v- MOTOR ACCIDENT COMMISSION OF SOUTH AUSTRALIA in right of BARRY WAYNE PAGE [2003] WASCA 125 CORAM : MURRAY J
- PARKER J
WHEELER J
- Appellant (Plaintiff)
AND
MOTOR ACCIDENT COMMISSION OF SOUTH AUSTRALIA in right of BARRY WAYNE PAGE
Respondent (Defendant)
Catchwords:
Costs - Special orders - Turns on own facts
Legislation:
District Court Rules 1996 (WA), O 5 r 1
Rules of the Supreme Court 1971 (WA), O 66 r 12(1)
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant (Plaintiff) : Mr D J Garnsworthy
Respondent (Defendant) : Mr D M Bruns
Solicitors:
Appellant (Plaintiff) : Stables Scott
Respondent (Defendant) : Willers & Co
Case(s) referred to in judgment(s):
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Case(s) also cited:
House v The King (1936) 55 CLR 499
Schmidt v Gilmour [1988] WAR 219
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Tenbohmer v Eden (1992) 6 WAR 366
(Page 3)
1 MURRAY J: I agree with the reasons for decision of Wheeler J. I have nothing to add.
2 PARKER J: For the reasons given by Wheeler J, with which I entirely agree, this appeal should be dismissed.
3 WHEELER J: This is an appeal from a decision of a District Court Judge on an application for special orders as to costs. The background of the application is as follows. The plaintiff (appellant) issued a claim for damages for personal injuries sustained in a motor vehicle accident in 1992. He was at that time engaged in the business of intra and interstate haulage. His vehicle was struck head on by another prime mover on the Nullarbor Plain and he was seriously injured. By mid-1993, it became apparent that liability was not in issue. From late May 1993 it became apparent that contributory negligence was also not an issue. The only issue remaining therefore was quantum. A writ was issued on 19 March 1997 and the matter set down for an eight day trial to assess damages, the issue being confined almost exclusively to the extent of the economic loss sustained by the plaintiff.
4 The action eventually settled. There was therefore no trial, but when the matter came before her Honour she had before her affidavits of the parties, a detailed draft bill of costs, and of course access to the court file so that she could consider the pleadings and other court process in order to get an idea of the nature of the action and the issues involved.
5 Special orders were sought in relation to getting up, fee on brief, and a pre-trial conference, together with a direction regarding the fees and expenses of certain accountants. Extraordinarily, the application for special orders apparently extended over three days before her Honour. She reserved her decision and delivered 10 pages of reasons in relation to the matter.
6 There are really only two issues in the appeal, although the second is put in a variety of different ways in the grounds of appeal. The first is that her Honour erred in finding that a particular letter written by the respondent's solicitor did not amount to "an admission of unusual complexity" (it is to be inferred, an admission of unusual complexity in relation to the whole action). Next, it is suggested that her Honour erred in failing to give any or sufficient reasons for rejecting the contention that the amount of work reasonably done amounted to a "good or sufficient
(Page 4)
- reason" within the meaning of O 66 r 12(1) of the Rules of the Supreme Court for making the orders sought.
7 The first of those contentions, although it appears not to have been formally abandoned, did not receive attention at the hearing of the appeal. One can see why that might be so. The letter of 22 November 1999 which is in issue, appears to have been written two business days before a pre-trial conference. It pointed out that the plaintiff had not complied with O 5 r 1 of the District Court Rules. That rule requires a plaintiff to file and serve a schedule setting out calculations and/or particulars quantifying seven heads of damages. The defendant (respondent) suggested that the pre-trial conference should therefore be adjourned. In support of that suggestion it made four points being:
• The pre-trial conference was only two days away;
• "This matter is a complex and substantial matter";
• Even if the plaintiff did then comply with O 5 r 1 the defendant would not have a reasonable time in which to be fully prepared for the pre-trial conference;
• The defendant operated from South Australia which gave rise to additional difficulties in preparation.
8 In its context, the reference to a "complex and substantial matter" plainly cannot be read as suggesting anything more than that the matter was of sufficient complexity to make it unreasonable to require the defendant to consider a detailed schedule of calculations relating to it less than two days before a pre-trial conference. The letter could not conceivably be considered to be an admission of any kind relevant to the application before her Honour.
9 As to the second of the appeal issues, her Honour correctly identified three criteria set out in O 66 r 12(1) being the unusual complexity of the case, the importance of the case, or any other good or sufficient reason. Her Honour noted that the last matter could include the amount of work properly performed. Her Honour said that in this matter the plaintiff relied on both the unusual complexity of the case and what it advanced as another good and sufficient reason. She noted that in relation to the "good and sufficient reason" the plaintiff referred particularly to the amount of work which was actually done.
10 Before I turn to the rest of her Honour's reasons, I should establish what it was that was said, before this Court, to constitute the good and
(Page 5)
- sufficient reasons. It was accepted for the appellant that it was not enough for a party seeking a special order for costs simply to produce a very large bill, point to the quantum of the bill and the discrepancy from scale, and obtain its order. Rather, it was necessary for it to establish that it was at least arguable that the work was properly done. As was said by Malcolm CJ in Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 (at 402):
"It is a matter for the trial Judge to determine as a matter of judgment whether, on the face of it, the amount of work done appears to have been reasonably done so as to constitute good and sufficient reason for making the order.
That is a judgment which is essentially preliminary and provisional in nature …"
12 In the appeal book, there are two affidavits of Mr Timoney which address this question. In his affidavit of 20 October 2000, he deposes as follows:
"11. The case was unusual to the extent that a higher than usual degree of investigation was required to determine the extent of the plaintiff's economic loss. For that purpose it was necessary to consult the plaintiff's accountant as well as engage a forensic accountant to prepare the necessary report for the court about the degree of future economic loss together with other expenses to be incurred by the plaintiff.
12. The defendant engaged its own accounting and economic experts to prepare reports in reply.
13. As instructing solicitor for the plaintiff, it was also necessary that I fully investigate future treatment costs required by the plaintiff.
(Page 6)
- 14. The process of investigating economic loss required location of and consultation with witnesses relating to the transport industry.
15. The nature of the plaintiff's claim meant that business records became the subject of discovery on a continuing basis from 1992 up to and including the year in which settlement occurred - namely 2000.
16. I was assisted in giving discovery by my then secretary. Adjustment will be made to the discovery schedule in the draft bill of costs to reflect the lower charge out rate applying to her.
17. Not only did the plaintiff swear three affidavits verifying the discovery (at the insistence of the defendant's solicitor) but discovery took place on a continuing basis, even as late as the month of October 2000 in which settlement was effected.
…
23. The draft bill of costs is a provisional document in that insufficient time was available to complete the analysis of the work done before this firm was required to file its application for special orders as to costs. A supplementary affidavit will be filed, completing the exercise, but it is submitted that the documents now available to the court by this affidavit illustrate the justification for special orders as to costs."
13 A later affidavit of Mr Timoney simply annexes a draft bill of costs. As counsel for the appellant pointed out to us, her Honour of course had before her all the various materials on the District Court file, and counsel made submissions to her as to appropriate inferences to be drawn from them. However, it appears that Mr Timoney's first affidavit does accurately summarise the essential features of the appellant's claim for special orders. Those features are, summarised even more briefly:
• "A higher than usual degree of investigation was required in relation to economic loss";
• Accounting and economic experts were engaged;
(Page 7)
- • Future treatment costs for the plaintiff were investigated (at the hearing of the appeal this was expanded by referring to the plaintiff's unexpectedly good recovery, considering his injuries);
• Witnesses relating to the transport industry were consulted;
• There was discovery of a number of records including business records.
14 From the appellant's summary of issues which gave rise to the necessity for special orders as to costs, one can infer that it was suggested that the case; (1) involved greater than usual complexity of the issues; and (2) involved more witnesses and/or more documents than the usual case, even if it was not particularly complex. The issues of complexity and of "other good and sufficient reason", the latter apparently relating to the volume of matters to be considered, substantially overlapped.
15 Not surprisingly, because of the overlap which I have identified, her Honour considered issues of complexity and of whether there was another good and sufficient reason together. Her primary emphasis was on complexity, but it appears to me that it is not an accurate reading of her reasons to suggest that her whole focus was upon the issue of complexity to the exclusion of any other good and sufficient reason. I do not think it is necessary to set out all of her Honour's discussion of the issues. In what follows, I simply quote from her Honour's reasons a number of passages in which she expresses conclusions in relation to particular issues. The italicised portions are those which it appears to me make it plain that her Honour was concerned with the question of "other good and sufficient reasons" as well as with complexity.
16 In relation to the allowance sought in respect of the accountants' fees, her Honour noted that there is "no material before this Court as to what those costs are and no particular or specific argument is advanced to demonstrate that such costs were reasonable in the circumstances". On the same issue she said:
"On the material before this Court, and considering the nature of the plaintiff's business and his general economic circumstances, it does not appear, although the task facing the accountants in this matter involved material extending over a period of years, that the essence of what they were required to do was unusual or particularly complicated."
(Page 8)
17 In relation to discovery her Honour said, as to the volume of documents:
"That again in the context of litigation of matters of this nature is not unusualand indeed it would seem to be the norm, where a business is involved".
18 Her Honour further said that she was not persuaded that the contents of Mr Timoney's first affidavit "distinguishes the extent of discovery in this case to the point where it could be described as either unique or unduly complex".
19 In relation to discovery, her Honour further observed that it appeared to her that that material could have been discovered in readily ascertainable bundles and that considerable time could have been saved by the involvement of a suitably trained clerk or paralegal. Both of those last observations appear to me to be directed at the volume of work and whether it was reasonably done by the plaintiff in the way in which the plaintiff's solicitors chose to do it.
20 In relation to the medical reports her Honour referred to the volume of them and concluded:
"… I am not persuaded the amount is so voluminous, or the contents so complicated, that this would have involved the plaintiff's legal advisers in an unusually complex exercise".
21 Further, her Honour noted in relation to this issue that it was conceded by counsel for the plaintiff that the plaintiff's injuries were not the main focus of attention. Her Honour noted that in damages claims of the nature in question before her, the plaintiff was often reviewed by a number of medical practitioners over a period of time and so she concluded that "the number and nature of these reports do not vary in any appreciable way from what might be described as the norm."
22 Her Honour then adverted to an issue relating to counsel's fees, and appeared to accept a submission made by counsel for the defendant that there was a significant duplication apparent in the costs sought in that respect. While it may have been that the duplication was necessary in the circumstances of the case, her Honour observed that there appeared to be nothing before her to explain it.
23 In relation to a pre-trial conference, her Honour referred to a submission by counsel for the defendant. She did not refer to any dispute
(Page 9)
- in relation to that pre-trial conference, so that it appears that either those submissions were uncontested or, if they were contested, that her Honour preferred them. The assertion was that "nothing of unusual complexity or out of the ordinary transpired during the course of that pre-trial conference". Her Honour noted that the conference lasted approximately 3-1/2 hours. Although she made no finding in that respect, it appears to me that her Honour assumed that a pre-trial conference of that duration could ordinarily be covered by the amount allowed in the scale, being $750.
24 In her conclusion, her Honour said:
"In all of the circumstances I am not persuaded that this case was of unusual complexity. Stress must be placed on the concept of 'unusual' as distinct from complexity because the assessment of damages did raise some issues that would not properly be described as entirely straight forward or simple. Nor am I persuaded that there is any other good or sufficient reason for the orders sought as to costs or the directions sought to the taxing officer be made".
25 For completeness, I should note that there is some duplication in her Honour's reasons, in the sense that on a number of occasions she appears to have considered the same issue twice. For example, the reference to the plaintiff's economic circumstances (he being self-employed) and the question of the need for accountants' reports was first discussed by her Honour solely in the context of the question of unusual complexity. Her Honour then expanded upon that discussion and in the course of doing so made the observations which is have italicised above. It appears to me that the reason for the greater emphasis upon complexity which is apparent in the course of her Honour's reasons, is that this may well have reflected the emphasis placed by counsel before her Honour upon the two "limbs" of the plaintiff's application, with the "complexity limb" perhaps receiving a greater degree of emphasis.
26 In any event, whatever the explanation for the greater emphasis upon complexity, it cannot in my view be suggested that her Honour failed to apply her mind to the question of whether good or sufficient reasons other than unusual complexity existed, nor that she failed to explain her reasons for reaching the conclusion that it did not. Both at the beginning and at the end of her Honour's discussion of the facts of this case, she adverted both to issues of complexity and to the issue of whether there was any other reason, and, it is clear that at a number of points during her Honour's
(Page 10)
- discussion of the issues, her Honour's conclusions are to the effect that there is neither unusual complexity nor is there any greater than normal amount of work necessarily undertaken.
27 There remains only to mention one aspect of the grounds of appeal which is perhaps not sufficiently dealt with in the foregoing discussion. At a number of points it is suggested that her Honour erred in failing to make a special order when she did not specifically suggest that the totality of costs claimed in the draft bill was "inappropriate". The only observation I would make in respect of this aspect of the grounds is that it disregards the onus which clearly rests upon the applicant for such an order to persuade the court that the costs claimed are, at least prima facie, appropriate. It was not for her Honour either to find that the costs claimed were inappropriate, or to suggest that any particular figure would have been appropriate. It appears that in some aspects of its claim the appellant simply failed to discharge the burden which rested upon it. In my view that conclusion was open to her Honour.
28 I would dismiss the appeal.
0
3
2