Nairn v Metro Central Joint Development Assessment Panel
[2020] WASCA 183
•3 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NAIRN -v- METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2020] WASCA 183
CORAM: MURPHY JA
BEECH JA
VAUGHAN JA
HEARD: 21 OCTOBER 2020
DELIVERED : 3 NOVEMBER 2020
FILE NO/S: CACV 147 of 2019
BETWEEN: KARYL ANNE NAIRN
First Appellant
RICHARD RADCLIFFE HAWLEY
Second Appellant
AND
METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL
First Respondent
STATE ADMINISTRATIVE TRIBUNAL
Second Respondent
HILLAM ARCHITECTS
Third Respondent
EDGE HOLDINGS NO 6 PTY LTD
Fourth Respondent
FILE NO/S: CACV 13 of 2020
BETWEEN: KARYL ANNE NAIRN
First Appellant
RICHARD RADCLIFFE HAWLEY
Second Appellant
AND
METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL
First Respondent
STATE ADMINISTRATIVE TRIBUNAL
Second Respondent
HILLAM ARCHITECTS
Third Respondent
EDGE HOLDINGS NO 6 PTY LTD
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: ACTING JUSTICE STRK
Citation: NAIRN -v- METRO-CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2018] WASCA 18 (S2)
File Number : CACV 58 of 2017
Catchwords:
Costs - Appeal from decision pursuant to O 66 r 55 Rules of the Supreme Court 1971 (WA) allowing application for review of a taxation - Judicial review application referred to Court of Appeal under O 56 r 5(4) RSC - Whether costs should be recovered by reference to item 23 of Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA) - Proper construction of O 66 r 18(1) RSC - Finding that it was open to taxing officer to allow costs by way of analogy to item 23
Procedure - Leave to appeal - Where new point raised on appeal - Solely a question of law - Material facts incontrovertible - Costs consequences of entertaining and allowing appeal on basis of new point raised on appeal
Legislation:
Interpretation Act 1984 (WA), s 44
Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA), cl 4, cl 7, cl 12, cl 13
Rules of the Supreme Court 1971 (WA), O 56 r 5, O 66 r 11, O 66 r 13, O 66 r 18, O 66 r 19, O 66 r 21, O 66 r 23, O 66 r 53
Supreme Court (Court of Appeal) Rules 2005 (WA), r 68, pt 5
Supreme Court Act 1935 (WA), s 4, s 60
Result:
Appeal allowed
Category: B
Representation:
CACV 147 of 2019
Counsel:
| First Appellant | : | F A Robertson |
| Second Appellant | : | F A Robertson |
| First Respondent | : | No Appearance |
| Second Respondent | : | No Appearance |
| Third Respondent | : | No Appearance |
| Fourth Respondent | : | No Appearance |
Solicitors:
| First Appellant | : | Squire Patton Boggs |
| Second Appellant | : | Squire Patton Boggs |
| First Respondent | : | No Appearance |
| Second Respondent | : | No Appearance |
| Third Respondent | : | No Appearance |
| Fourth Respondent | : | Lavan |
CACV 13 of 2020
Counsel:
| First Appellant | : | F A Robertson |
| Second Appellant | : | F A Robertson |
| First Respondent | : | No Appearance |
| Second Respondent | : | No Appearance |
| Third Respondent | : | No Appearance |
| Fourth Respondent | : | No Appearance |
Solicitors:
| First Appellant | : | Squire Patton Boggs |
| Second Appellant | : | Squire Patton Boggs |
| First Respondent | : | No Appearance |
| Second Respondent | : | No Appearance |
| Third Respondent | : | No Appearance |
| Fourth Respondent | : | Lavan |
Case(s) referred to in decision(s):
Australian Coal & Shale Employees’ Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621
Geneva Finance Ltd v Resource & Industry Ltd [2002] WASC 121 (S)
Laing O'Rourke (BMC) Ltd v Dampier Port Authority [2007] WASC 87
Nairn v Metro-Central Joint Development Assessment Panel [2018] WASCA 18
Nairn v Metro-Central Joint Development Assessment Panel [2018] WASCA 18 (S)
Nairn v Metro-Central Joint Development Assessment Panel [2018] WASCA 18 (S2)
Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155
Wilson v Metaxas [1989] WAR 285
Zaghloul v Woodside Energy Ltd [2019] WASCA 187
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
JUDGMENT OF THE COURT:
Overview
These two appeals concern a decision by the primary judge (Strk AJ) on an application for review of a taxation.[1] Appeal CACV/147/2019 seeks orders reversing the decision of the primary judge to allow the review of the taxation. Appeal CACV/13/2020 seeks orders setting aside consequential costs orders, the costs orders being made after the commencement of the appeal in CACV/147/2019. The appeal in CACV/13/2020 relies on the appellants succeeding in appeal CACV/147/2019.
[1] Nairn v Metro-Central Joint Development Assessment Panel [2018] WASCA 18 (S2) (primary reasons).
The appeal in CACV/147/2019 raises a question as to the proper construction and application of O 66 r 18(1) of the Rules of the Supreme Court 1971 (WA) (RSC). That provision was not relied upon before the taxing officer and the appellants did not draw the primary judge's attention to the terms and consequences of O 66 r 18(1) RSC.
The first, second and fourth respondents, by notices of intention, have elected not to take part in the appeals. The third respondents were not directly affected by the subject matter of the appeals. Indeed, before both the taxing officer and the primary judge the contest was solely between the appellants and the fourth respondent. Accordingly, in these reasons, reference need only be made as to the competing positions of the appellants and the fourth respondent.
For the reasons that follow both appeals should be allowed. There was no error of principle by the taxing officer in the manner as found by the primary judge. However, as the primary judge did not consider all of the grounds on which the fourth respondent sought a review of the taxation, the application for review should be remitted to the General Division to consider the outstanding grounds for determination.
Factual and procedural background
The fourth respondent is a developer. It has sought to proceed with a proposed development in South Perth. The appellants own neighbouring properties and are opposed to the development.
There is a considerable history of litigation between the appellants and the respondents. While that history has an earlier commencement date, the decision currently under appeal has its genesis in a February 2018 decision of this court, Nairn v Metro-Central Joint Development Assessment Panel.[2] That decision concerned an application by the appellants for judicial review of a town planning decision by the first respondent (on 19 October 2016) and a related decision of the second respondent (on 3 April 2017).
[2] Nairn v Metro-Central Joint Development Assessment Panel [2018] WASCA 18.
In accordance with O 56 r 5(4) RSC the application for judicial review was referred to the Court of Appeal by order of Chaney J, apparently on the basis that it raised issues left unresolved by a notice of contention in earlier appeal proceedings between the parties.[3] Order 56 r 5 RSC deals with the procedure on an application for judicial review in the General Division of the Supreme Court. Order 56 r 5(4) RSC provides that:
A single judge dealing with the application may, without deciding it, order it to be heard by the Court of Appeal.
[3] Nairn v Metro-Central Joint Development Assessment Panel [5].
On 31 May 2017 the Court of Appeal registrar, Registrar Eaton, ordered that, pursuant to rule 68, pt 5 of the Supreme Court (Court of Appeal) Rules 2005 (WA) would apply to the matter. Among other things, there were orders that:
[The appellants] file and serve a document in the form of an appellant's case under rule 32 of the of the Supreme Court (Court of Appeal) Rules 2005, adapted as appropriate, by 11 August 2017.
The fourth respondent file and serve a document in the form of an respondent's answer under rule 33 of the of the Supreme Court (Court of Appeal) Rules 2005, adapted as appropriate, by 1 September 2017.
Rule 68 of the Supreme Court (Court of Appeal) Rules deals with referred matters including matters that are neither a criminal appeal nor a civil appeal. A single judge has jurisdiction to make any order that will or may facilitate the matter being conducted and decided efficiently, economically and expeditiously.[4] This includes jurisdiction to order that pt 5, or a rule within pt 5, apply to the matter with or without modification.[5] Subject to some presently irrelevant exceptions, a registrar has the same jurisdiction in respect of a Court of Appeal matter as a single judge.[6]
[4] Supreme Court (Court of Appeal) Rules 2005 rule 68(2).
[5] Supreme Court (Court of Appeal) Rules 2005 rule 68(3)(c).
[6] Supreme Court (Court of Appeal) Rules 2005 rule 10(2).
The appellants succeeded on two of the eight grounds of their application for judicial review. Accordingly, the application was allowed.[7] On delivery of the reasons for decision the appellants sought a special order as to costs, namely the removal of the limits on costs fixed in the Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA).[8] That application was dismissed. Among other things, the court stated:
In the present case, we were satisfied that the amount of costs allowable under the 2016 Determination was not inadequate because of the unusual difficulty, complexity or importance of the matters litigated in the application for judicial review.
The matters of construction of the town planning scheme were, no doubt, of importance to the parties to the application and had an element of general public importance, but we would not characterise the matters on which the applicants were successful as being of 'unusual' difficulty, complexity or importance.
…
We considered that the allowances in the 2016 Determination were in the circumstances reasonable and appropriate. It was our opinion that justice would be done as between the parties in relation to costs if the fourth respondent were ordered to pay the applicants' costs of the application for judicial review, including the costs of the grounds on which the applicants failed and any reserved costs, to be assessed if not agreed. That is the order we made.[9]
[7] Nairn v Metro-Central Joint Development Assessment Panel [203].
[8] Referred to as the '2016 Costs Determination'.
[9] Nairn v Metro-Central Joint Development Assessment Panel [2018] WASCA 18 (S) [6] - [7], [10].
The court's reasons did not identify the allowances within the 2016 Costs Determination that were considered, in the circumstances, to be reasonable and appropriate.
On 13 March 2018 the appellants filed a bill of costs for taxation in the amount of $131,912.30 inclusive of disbursements. The bill of costs included elements charged by reference to item 23 of the 2016 Costs Determination. As will be seen, item 23 is headed 'Appeals to the Court of Appeal and Single Judge appeals' (emphasis added).
In addition to an amount for 'settling appeal (application) book indexes' claimed under item 23(d) in an amount of $919.60 (par 8), the work claimed for in the appellants' bill of costs by reference to item 23 comprised:
1.par 3: directions hearing before Registrar Eaton ($1,023 claimed by reference to item 23(e));
2.par 10: application for an urgent appeal order ($968 claimed by reference to item 23(e));
3.par 11: appellant's case ($27,280 claimed by reference to item 23(b));
4.par 12: reply submissions ($2,046 claimed by reference to item 23(c));
5.par 13: preparation for hearing ($4,840 claimed by reference to item 23(f));
6.par 15: counsel fee for senior counsel for hearing including preparation ($20,460 claimed by reference to item 23(g));
7.par 16: counsel fee on hearing including preparation ($11,880 claimed by reference to item 23(h));
8.par 17: instructing legal practitioner attending hearing ($2,420 claimed by reference to item 23(k));
9.par 18: attending on reserved decision ($2,178 claimed by reference to item 23(l)).
The fourth respondent objected to a provisional assessment and the parties proceeded to taxation before Registrar Whitbread as taxing officer. Submissions filed by the fourth respondent provided, among other things, that objection was taken to recovery to the extent that the appellants relied on item 23 (other than in respect of the par 8 claim for settling the indexes to the application book). The fourth respondent contended that item 23 did not apply as the matter was not an appeal.[10] The fourth respondent submitted that, whilst the order made under O 56 r 5(4) RSC facilitated a transfer of the matter from the General Division to the Court of Appeal, 'it was still a judicial review proceeding'.[11] Accordingly, on the fourth respondent's argument, various costs claimed under item 23 ought instead to have been recovered under item 11 which refers to applications for judicial review.[12] As the appellants had already claimed separately under item 11, the fourth respondent contended that an allowance for costs under both items 11 and 23 would represent an 'impermissible double recovery' in an instance where there had only been a single substantive proceeding.[13]
[10] Fourth respondent’s submissions on costs dated 14 September 2018 pars 13, 27, 33 - 34, 39, 41, 44, 47, 53, 58 BAB 59, 61 – 64.
[11] Fourth respondent’s submissions on costs dated 14 September 2018 par 36 BAB 62.
[12] Fourth respondent’s submissions on costs dated 14 September 2018 pars 12 - 13, 35, 40, 42, 45, 48, 54, 58 BAB 59, 61 - 64.
[13] Fourth respondent’s submissions on costs dated 14 September 2018 par 38 BAB 62.
In that regard, the appellant's bill of costs contained a separate claim under item 11(a). Paragraph 1 claimed $40,000 by reference to item 11(a) for:
Application for judicial review in CIV 1633 of 2017, including grounds of review and initial preparation of affidavits:
a. Senior Counsel: 20 hours: $13,640.00.
b. Senior Practitioner: 68.95 hours: $47,011.80.
Claim limited to: $40,000.00.
It is helpful, at this point, to set out the specific terms of the two relevant items in the 2016 Costs Determination. Item 11 in Table B in the 2016 Costs Determination provides:
| Item | Time | Fee Earner | $ | |
| 11. | Motions and originating process - (a) Originating motion, originating summons or originating application and applications for Judicial Review under Order 56 (1) if senior counsel is briefed without second counsel (2) if senior counsel is briefed with second counsel (3) if counsel alone is briefed | 2 days preparation; 1 day hearing and preparation of case - 50 hours | SC C SP | 44,660 56,540 36,080 |
| (b) For 2nd and each successive day of hearing (c) Attendance at hearing by instructing legal practitioner (d) Attendance at directions hearings, strategic conferences, status conferences or other case management hearings where required by order of the Court, by the Rules of the Supreme Court or by practice direction Note: an allowance under item 11(a)(2) should only be made where in the opinion of the Court it was reasonable to brief two counsel. | per hour per hour | SC C SP | 6,820 3,960 |
The notes at the commencement of the 2016 Costs Determination specifically address the inclusion within item 11 of applications for judicial review under O 56 RSC (cl 7). Clause 7(a) of the 2016 Costs Determination refers to a change in practice occasioned by amendments to the RSC in 2013 which altered the title of O 56 RSC. In earlier costs determinations applications for judicial review had a separate item.[14] The Legal Costs Committee noted that it had determined that the appropriate course was to incorporate applications made under O 56 RSC into item 11 with appropriate amendments (cl 7(b)).
[14] For example, item 28 of the Legal Profession (Supreme Court) (Contentious Business Determination) 2014 (WA) applied to 'Proceedings by way of prerogative writ'.
Item 23 in Table B in the 2016 Costs Determination provides:
| Item | Time | Fee Earner | $ | |
| 23. | Appeals to the Court of Appeal and Single Judge appeals (including appeals by way of case stated) and applications for leave to appeal (a) Appeal Notice, Service Certificate, Notice of Respondent’s Intention (b) Appellant’s Case, Respondent’s Answer including relevant forms and all annexures (c) Appellant’s Reply to Notice of Contention, when required (d) Settling appeal book indexes (including drafting and settling appeal book index) (e) An application in an appeal, an interlocutory or directions hearing before a single Judge or Registrar (f) Preparation of case appeal for hearing (g) Counsel fee on hearing (including preparation) (h) Counsel fee for Senior Counsel (including preparation) (i) Counsel fee for the second and each successive day of hearing (j) Counsel fee for Senior Counsel for the second and each successive day of hearing (k) Instructing legal practitioner attending appeal (l) Attending on reserved decision (including preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders) | 40 hours 10 hours 8 hours 10 hours 10 hours 2 days preparation; 1 day hearing 2 days preparation; 1 day hearing per hour per hour | SC SC SP C SP C SC C SC JP/SP SP | 484 27,280 6,820 3,872 3,960 4,840 11,880 20,460 3,960 6,820 |
In responsive submissions, the appellants opposed the fourth respondent's objections, stating, among other things, that:
1.item 23 applied once the proceedings were referred to the Court of Appeal;[15] and
2.item 23 applied 'by analogy' because the proceedings were heard in the Court of Appeal.[16]
[15] Appellants' submissions in reply to fourth respondent's submissions on costs dated 5 October 2018 par 9 BAB 68.
[16] Appellants' submissions in reply to fourth respondent's submissions on costs dated 5 October 2018 par 19 BAB 69.
On taxation, the taxing officer determined the item 23 objections in favour of the appellants. The bill of costs was taxed in an amount of $100,944.36. At the taxation hearing, and before the allocatur was signed, the taxing officer made programming directions should any party object and seek review under O 66 r 53 RSC. In due course the fourth respondents pressed three objections.[17] Only the first objection is material for the present appeal. It raised the appellants' reliance on item 23, stating:
[17] See Fourth respondent's objections to taxation dated 23 November 2018 BAB 76 - 83.
The Taxing Officer made an error of principle in permitting [the appellants] to recover amounts under item 23 …
This error related to Items 3, 10, 11, 12, 13, 15, 16, 17 and 18 in the bill of costs.
This matter is a judicial review proceeding … under Order 56 of the Rules.
A successful party to a judicial review proceeding is entitled to recover their costs by reference to item 11 in the [2016 Costs Determination] …
Although this matter was transferred to and determined by the Court of Appeal, it was still a judicial review proceeding under Order 56 of the Rules and not an appeal …
…
Despite the making of [Registrar Eaton's] procedural order, the matter was still a judicial review proceeding under Order 56 of the Rules and not an appeal.
…
[N]othing in the programming orders made during the course of this matter:
1.caused the proceedings to cease being an application for judicial review under Order 56 of the Rules;
2.rendered the proceeding an appeal, whether in form of substance; or
3.required [the appellants] to perform substantively more work in the proceedings, save for the requirement to prepare appeal books.
…
This case, by its very nature, was not an appeal to the Court of Appeal, so there is no basis upon which item 23 of the [2016 Costs Determination] can apply, based on a plain and literal reading of its description.
The referral to the Court of Appeal and the making of procedural orders saying that pt 5 of the [Court of Appeal rules] would apply did not render this matter an appeal and the matter has at all times remaining [sic] an application for judicial review under Order 56 of the Rules, for which item 11 in the [2016 Costs Determination] is the relevant cost item.[18]
[18] Fourth respondent's objections to taxation dated 23 November 2018 pars 4 - 7, 11, 14, 20, 24 - 25 BAB 76 - 79.
The other objections concerned apportionment between items 11 and 23 of the 2016 Costs Determination (objection 2) and whether the appellants could recover the costs associated in having three legal practitioners attend the final hearing in circumstances where junior counsel from the independent bar had not been engaged (objection 3).
On 21 December 2018 the taxing officer gave written reasons on the request for review of the taxation.[19] Those reasons are substantially reproduced in the primary reasons.[20] The taxing officer found that there was no error in principle and dismissed all three objections. The allocatur was signed and a certificate of taxation issued.
[19] BAB 34 - 50.
[20] Primary reasons [22], [25], [27].
In dismissing the first objection, the taxing officer found:
1.The review was ultimately to be determined by the taxing officer's view as to whether part of the bill of costs fell to be determined under item 23 (par 17).
2.The transfer from the General Division to the Court of Appeal fundamentally changed the amount of work that had to be undertaken (pars 16, 18, 20). Significantly more preparation is required for a Court of Appeal hearing than one in the General Division (par 19). While it was accepted that the proceeding always remained a judicial review proceeding, it would be inequitable to confine the appellants' costs to item 11 and not permit the appellants to recover costs under item 23 from the date of Registrar Eaton's orders (par 19).
3.The total costs allowed under item 11 and item 23 were considered, applying principles of proportionality, so as to fairly reflect the work that had to be undertaken prior to and consequent on Registrar Eaton's orders (par 23).
Order 66 r 55(1) RSC provides for a review of a taxation by a judge where a person is dissatisfied with the certificate of the taxing officer as to any item or part of an item objected to under O 66 r 53 RSC. The judge may make such order to rectify an error as the judge thinks just where the judge is of the opinion that the taxing officer has made 'an error in principle' (O 66 r 55(2) RSC). Only items covered by the objections carried in before the taxing officer may be considered.[21] Among other things, there is an error in principle where a taxing officer acts on a 'wrong principle'. The court will review the taxing officer's decision for the purpose of determining the principle that should be applied.[22]
[21] Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155 [74].
[22] Australian Coal & Shale Employees’ Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621, 627 - 628.
On 21 January 2019 the fourth respondent filed a chamber summons seeking review of the taxation by a judge.[23] The grounds of the application for review essentially repeated the objections made to the taxing officer (grounds 2 and 3 reflecting objections 2 and 3). As to the item 23 objections, ground 1 provided:
[The taxing officer] made an error in principle in allowing [the appellants] to recover amounts under item 23 in [the 2016 Costs Determination] in circumstances where the matter was an application for judicial review as opposed to an appeal.[24]
[23] BAB 31 - 32.
[24] BAB 32.
The decision of the primary judge
The primary judge recounted the history of the proceedings, the bill of costs and the taxation. Her Honour then considered the application by the fourth respondent for a review of the taxation and the taxing officer's reasons on the review. Having identified the principles governing a review of a taxation, the primary judge characterised the relevant question as being whether the taxing officer erred in principle in permitting the appellants to recover amounts under item 23. Her Honour then resolved that question adversely to the appellants, upholding the fourth respondent's application for review based on ground 1.
The primary judge found that the taxation proceeded on a wrong principle so far as allowances were made under item 23 - there was an error in principle in that the appellants' recoverable costs were not confined to the applicable scale limits.[25] Her Honour found that:[26]
1.Item 11 makes allowance for motions and originating processes and specifically, by item 11(a), refers to applications for judicial review under O 56 RSC.
2.The proceeding determined by the Court of Appeal in Nairn v Metro-Central Joint Development Assessment Panel was an application for judicial review.
3.The application of an item referred to in the 2016 Costs Determination was to be determined by a plain reading of the costs determination.
4.On a plain reading of the 2016 Costs Determination, in the context of an application for judicial review, there was no basis for an allowance to be made under item 23.
5.Neither the order of Chaney J nor the order of Registrar Eaton changed the character of the application from an application for judicial review to an appeal to the Court of Appeal.
6.Considerations of fairness, and the potential for an inequitable outcome, were not proper grounds on which to make an allowance under item 23.
[25] Primary reasons [42].
[26] Primary reasons [43] - [47], [50].
Counsel then appearing for the appellants (who was not counsel for the appellants at the appeal hearing) did not refer the primary judge to O 66 r 18(1) RSC. Nor did counsel for the fourth respondent. Argument proceeded simply on the basis that the relevant question was whether item 23 was applicable. The possible implications of O 66 r 18(1) RSC were evidently overlooked.
The primary judge made no findings in relation to the grounds of review that reflected objection 2 and objection 3 as they were framed in the alternative and premised on the first ground not being accepted.[27] Her Honour allowed the review of taxation and set aside the review by the taxing officer. So too the certificate of taxation was set aside. Her Honour also made orders that the taxation of the bill of costs be listed before a different taxing officer on a date to be fixed.[28] Subsequently, the primary judge made costs orders providing for the appellants to pay the fourth respondent's costs of the review of the taxation before the taxing officer and her Honour. Those costs were fixed in the amount of $3,267.[29] The subsequent costs order is the subject matter of appeal CACV/13/2020.
[27] Primary reasons [54].
[28] BAB 1 - 2.
[29] BAB 28 - 29.
Grounds of appeal
In appeal CACV/147/2019 the appellants rely on a single ground of appeal to challenge the primary judge's upholding of the application for review of the taxation. It is claimed that the primary judge:
erred in law in concluding that:
(a)the taxation proceeded upon a wrong principle in so far as allowance was made under scale item 23, such that [the appellants'] recoverable costs were not confined to the applicable scale limits (Reasons [42]); and
(b)there was no proper basis for an allowance to be made under scale item 23 (Reasons [45]);
when her Honour ought to have concluded that an allowance under scale item 23 was permissible by O 66 r 18 RSC and on that basis ought to have concluded that there was no error of principle by the taxing officer and thereby dismissed the application for review of taxation.
The appellants accepted that the primary judge was correct to find that a party's recoverable costs are confined by the scale limits prescribed by the 2016 Costs Determination. Where the primary judge fell into error, according to the appellants, was to conclude that on a 'plain reading' of the 2016 Costs Determination no proper basis existed for an allowance to be made under item 23. The appellants contended that her Honour's conclusion in that respect applied the terms of O 66 r 11(3) RSC without giving any or due regard to O 66 r 18(1) RSC.[30]
[30] Appellants' submissions (CACV/147/2019) pars 20 - 21 WAB 22 - 23.
The appellants submitted that an application for judicial review, which was subsequently referred to the Court of Appeal and made the subject of an order that pt 5 of the Supreme Court (Court of Appeal) Rules apply, was not a matter which is specially provided for in the 2016 Costs Determination within the meaning and for the purpose of O 66 r 18(1) RSC.[31]
[31] Appellants' submissions (CACV/147/2019) par 22 WAB 23; Appeal ts 4.
Thus, according to the appellants, it was open to the taxing officer to make further allowances by analogy with item 23 - that being the item in the scale most nearly applicable. That is what the taxing officer did. There was no error in principle on the part of the taxing officer.[32]
[32] Appellants' submissions (CACV/147/2019) par 22 WAB 23; Appeal ts 4.
As previously noted, the appeal in CACV/13/2020 against the primary judge's costs order is wholly dependent on the appellants succeeding in appeal CACV/147/2019. The ground of appeal is that the costs orders:
were affected by an error of law in that they were made on the basis that the application for review of taxation was successful when, as a matter of law, that application ought to have been dismissed. It follows that if the application for review of taxation was dismissed, an order for costs in the favour of the appellants ought to have been made but was not.
The application for leave to appeal in CACV/147/2019 requires an extension of time. It was filed 3 days out of time. So too the application for leave to appeal in CACV/13/2020 requires an extension of time. It was filed 53 days out of time. In both cases the reason for the failure to make application within time, and the delay in doing so, is properly explained on affidavit in terms of reasons that are not attributable to the appellants themselves. No prejudice is identifiable as a result of the failure to make the applications within time. Having regard to the substantive merits of the appeal in CACV/147/2019, we are satisfied that the appellants should be granted the necessary extensions of time.
Also, both appeals require leave to appeal.[33] Appeal CACV/147/2019 is an appeal against an interlocutory order.[34] Appeal CACV/13/2020 is an appeal against a costs order. Generally, leave should not be granted unless the decision below is plainly wrong or is attended by sufficient doubt to justify the grant of leave and a substantial injustice would be done if the decision remains undisturbed.[35] In both cases the question of leave is bound up with the merits of the appeals. Accordingly, it is best to revisit the question of leave after considering the merits of appeal CACV/147/2019.
[33] Supreme Court Act 1935 (WA) s 60(1)(e) and (f).
[34] Zaghloul v Woodside Energy Ltd [2019] WASCA 187 [56] - [61].
[35] Wilson v Metaxas [1989] WAR 285, 294.
The merits of appeal CACV/147/2019
Order 66 rule 18 RSC provides:
18 .Matters not provided for in scale
(1)In any matter not specially provided for in any relevant scale, the Court or the taxing officer may allow costs by way of analogy according to the item in the scale which is most nearly applicable thereto; or if in the opinion of the Court or the taxing officer, there is no such item, the costs shall be fixed at such sum as in the opinion of the Court or the taxing officer is adequate in the circumstances.
(2)Without limiting the generality of subrule (1), the taxing officer may allow such fees as he considers reasonable:
(a)in connection with the compromise of a claim by or against a person under a disability; or
(b)for a conference or consultation where and to the extent that the conference or consultation was necessary.
The term 'any relevant scale' means any costs determination, as defined in s 252 of the Legal Profession Act 2008 (WA), that relates to the costs that may be charged by law practices in respect of business before the court carried out by legal practitioners (O 66 r 11(1) RSC). The 2016 Costs Determination is such a 'relevant scale'.
While on the subject of O 66 r 11 RSC, it should be recalled that it also provides that:
1.Subject to various matters - including the provisions of the Rules of the Supreme Court - the fees allowed under any relevant scale shall apply as between party and party (O 66 r 11(3) RSC). (Clause 12(a)(1) of the 2016 Costs Determination is to similar effect in the context of contentious business carried out by legal practitioners in or for the purposes of proceedings in the Supreme Court between 1 July 2016 and 30 June 2018.)
2.Subject to O 66 RSC and to any order made by the court (eg an order pursuant to s 280(2) of the Legal Profession Act 2008), the fees prescribed by any relevant scale cover all work done whether by a solicitor or by counsel (O 66 r 11(4) RSC).
Order 66 rule 18(1) RSC provides a discretion which, when enlivened, empowers the court or a taxing officer to allow certain costs to be recovered even though they are not provided for in any relevant scale. It is one of the exceptions contemplated by O 66 r 11(3) RSC. Other exceptions are found in provisions like O 66 r 13, O 66 r 19, O 66 r 21 and O 66 r 23 RSC. The continued legal validity of those discretions, despite the general provisions of the relevant scales (as found, by way of example, in cl 12 of the 2016 Costs Determination), is enabled through provisions such as cl 4 of the 2016 Costs Determination (there being like provisions in other costs determinations for contentious business in the Supreme Court). Clause 4 provides:
Application of O 66, r 11(3), r 13, r 18, r 19, r 20(3), r 21 and r 23 of the Rules of the Supreme Court
In the circumstances set out in Order 66, rules 11(3), 13, 18, 19, 20(3), 21 and 23 of the Rules of the Supreme Court, the Legal Costs Committee determines that the Court or the Taxing Officer, as the case may be, has the power to make the orders and allowances referred to in those rules.
In addition, as counsel for the appellants submitted, cl 4 of the 2016 Costs Determination demonstrates that the Legal Costs Committee made the costs determination cognisant of the terms of O 66 r 18 RSC and the need to provide for a situation where the work to be charged for did not fit within the categories specially provided for in the scale.[36]
[36] Appeal ts 2 - 3.
There has been limited judicial consideration of O 66 r 18(1) RSC.[37] In this appeal the key question is the meaning of the phrase 'any matter not specially provided for in any relevant scale'. The claim must be for a matter not specially provided for in the relevant scale if the discretion under O 66 r 18(1) RSC is to be enlivened.
[37] The rule has been mentioned, without explication, in a number of single judge decisions. See eg Cripps v Mossensons (Unrep; Templeman J; Del. 18 June 1997; SCL 970302) page 10; Geneva Finance Ltd v Resource & Industry Ltd [2002] WASC 121 (S) [7] (where reference might also have been made to O 66 r 23 RSC); Laing O'Rourke (BMC) Ltd v Dampier Port Authority [2007] WASC 87 [34].
The term 'matter' is defined in s 4 of the Supreme Court Act. That definition applies equally to the Rules of the Supreme Court.[38] Unless the context otherwise requires, by the statutory definition a 'matter' includes every proceeding in the court not in a cause. The term 'cause' is also defined in s 4 of the Supreme Court Act; it means any action, suit or other original proceedings between a plaintiff and defendant and any criminal proceeding. Accordingly, as defined, a 'matter' is every proceeding in the court not being either (1) an action, suit or other original proceeding between a plaintiff and a defendant or (2) a criminal proceeding.
[38] Interpretation Act 1984 (WA) s 44.
The s 4 definition of 'matter' does not apply to O 66 r 18(1) RSC. The context otherwise requires. The non-exhaustive examples in O 66 r 18(2) RSC concern specific items and categories of work rather than a specific type of proceeding. They do so in much the same way that the term 'matters' is used in O 66 r 11(2) RSC (there used as part of the expression 'matters referred to in that scale' in respect of which solicitors are entitled to charge and be allowed the fees set forth in the relevant scale). The reference to 'matter' in O 66 r 18(1) RSC may be contrasted to the 'matter or case' to which any relevant scale does not apply in O 66 r 13 RSC (where the court may award a lump sum or give directions to the taxing officer to allow costs on an analogous basis or a reasonable costs basis). The latter (ie O 66 r 13 RSC), unlike O 66 r 18(1) RSC, is concerned with a specific type of proceeding rather than a specific item or category of work. In O 66 r 13 RSC the word 'matter' must be read and construed as being of the same kind as the word 'case'.
The circumstance that only the court may exercise the power under O 66 r 13 RSC, but the power under O 66 r 18(1) RSC is granted to both the court and a taxing officer, is consistent with the different usage of the term 'matter'. The power in O 66 r 18(1) RSC is capable of being employed by a taxing officer in the course of taxation. That is not the position with O 66 r 13 RSC insofar as it is a power vested in the court alone. In this respect O 66 r 18(1) RSC has a potentially wider field of operation than the power in O 66 r 13 RSC (although O 66 r 13 RSC, when enlivened, allows the court to grant more varied and substantial relief by way of costs recovery). It is to be expected, given the everyday context in which O 66 r 18(1) RSC may fall to be employed, that O 66 r 18(1) RSC is available to meet gaps in the items and categories of work provided for in the applicable costs determination.
Additional support for a construction of the word 'matter' in O 66 r 18(1) RSC that departs from the s 4 definition is found in the requirement that O 66 r 18(1) RSC be construed and applied together with the applicable costs determination - that requirement appearing from O 66 r 18(1) RSC's reference to the matter not being specially provided for 'in any relevant scale'.
In the present case the relevant scale is the 2016 Costs Determination. The 2016 Costs Determination identifies specific items and categories of work - often in particular contexts - and prescribes maximum allowances for that work. Read and construed in the context of the 2016 Costs Determination, as the 'relevant scale', whether a matter is not specially provided for in the relevant scale for the purpose of O 66 r 18(1) RSC depends on whether the 'matter' is specially (in the sense of 'particularly' or 'specifically') provided for by one of the specific items or categories of work nominated in the 2016 Costs Determination. Thus the 'matter' is identified by the specific items or categories of work that are claimed for.
On the facts the relevant 'matter' or 'matters' could be characterised in broad or narrow terms:
1.In terms of an application for judicial review within O 56 RSC as heard by the Court of Appeal following an order for referral pursuant to O 56 r 5(4) RSC and an order that pt 5 of the Supreme Court (Court of Appeal) Rules is to apply to the proceedings.
2.In terms of the individual items as listed out at [13] above (ie the directions hearing, application for an urgent appeal order, appellant's case, reply submissions, preparation for hearing, counsel fees on hearing, instructing solicitor at hearing and attendance on reserved decision).
In effect, the taxing officer characterised the 'matter' in the former, broader, terms. That characterisation was open. At the appeal hearing, counsel for the appellants identified the 'matters' in the latter, narrower, terms, but submitted that the individual items of work took their character from the overall, broader, matter as identified in [48.1] above. In that respect the burden of the appellants' contention was that the 2016 Costs Determination did not specially provide for a judicial review application which had been referred to the Court of Appeal to which the procedural requirements under pt 5 of the Supreme Court (Court of Appeal) Rules applied.[39]
[39] Appeal ts 8 - 10.
We prefer to consider the application of O 66 r 18(1) RSC in terms of the individual items of work. It was the individual items of work that were charged for and in respect of which the appellants sought recovery. We accept, however, that the items of work as charged for must be characterised in the context of the broader overall matter as a whole. A good illustration of why this is so is provided by the appellant's case which was required as a result of Registrar Eaton's order of 31 May 2017. Ordinarily an appellant's case is only required for an appeal in the Court of Appeal; it forms no part of the work done in a judicial review application in the General Division. The requirement to perform that particular work, in the present case, only arose by reason of the proceedings being referred to the Court of Appeal and orders being made thereafter which had the effect that the usual procedures of the Court of Appeal were to apply to the proceedings.
The referral from the General Division to the Court of Appeal, coupled with the registrar's procedural order, fundamentally altered the nature and extent of the work that the appellants' legal representatives had to undertake in relation to the proceedings.
The primary judge was correct to observe that the proceedings were not an appeal. The matter (or matters) was not an appeal (or part of an appeal). Neither the referral of the proceedings nor the registrar's order pursuant to rule 68 of the Supreme Court (Court of Appeal) Rules transformed the proceedings into an appeal. But equally, in our opinion, after the referral to the Court of Appeal and the registrar's procedural order the proceedings were no longer a judicial review application as contemplated by item 11 of the 2016 Costs Determination. The proceedings were qualitatively different to a judicial review application as contemplated by item 11 of the 2016 Costs Determination. A judicial review application as contemplated by item 11 of the 2016 Costs Determination is one which is to be heard and determined in the General Division, before a single judge, and to which the practice and procedure of the General Division applies rather than the usual procedures of the Court of Appeal. That appears readily from item 11 grouping a O 56 RSC judicial review application with various other forms of originating application and item 11(d)'s reference to strategic conferences, status conference and case management hearings - the latter being associated with pre-hearing procedures in the General Division and having no place in the Court of Appeal.
From and including 31 March 2017 the work done by the appellants' legal representatives was not specially provided for in the 2016 Costs Determination. Item 11 of the 2016 Costs Determination does not provide - specially or at all - for the disputed items of work claimed for on an O 56 RSC judicial review application as referred to the Court of Appeal to which the procedural requirements under pt 5 of the Supreme Court (Court of Appeal) Rules applied. For example, for the reasons in [50] above, the work involved in preparing an appellant's case was a matter not specially provided for in the 2016 Costs Determination. By O 66 r 18(1) RSC it was open to the taxing officer to allow costs by way of analogy according to the item in the 2016 Costs Determination which was most nearly applicable to the relevant matter.
In substance that is what the taxing officer did in allowing recovery on pars 3, 10 - 13 and 15 - 18 of the appellants' bill of costs. The relevant sub-items in item 23 were clearly the most nearly applicable to the items and categories of work as claimed in the disputed portions of the appellants' bill of costs. In the particular and distinctive circumstances of the present case the taxing officer committed no error of principle in applying item 23 insofar as O 66 r 18(1) RSC authorised the taxing officer to allow costs by way of analogy by reference to item 23. Conversely, the primary judge was in error in concluding that there was an error of principle on the part of the taxing officer. The error arose because the primary judge was not referred to O 66 r 18(1) RSC.
While accepting that O 66 r 18(1) RSC was not expressly raised before the primary judge, counsel for the appellants pointed out that the submissions to the taxing officer had raised item 23 applying by analogy.[40] That is correct (see [19.2] above). But even then there was no reference to O 66 r 18(1) RSC in terms. Moreover, the fleeting reference to 'analogy' in written submissions to another judicial officer was patently inadequate to suggest that the possible application of O 66 r 18(1) RSC was raised before the primary judge. In our view, the appellants' reliance on O 66 r 18(1) RSC was a new point on appeal in the sense that it was never agitated before the primary judge. This has potential significance in two respects. First, there is an issue as to whether the appellants should be allowed to rely on the argument insofar as it was not relied on below. Second, the circumstance that the appeals are based on a new point is important in considering costs issues in connection with the appeals and the application for review of the taxation before the primary judge.
[40] Appeal ts 4 - 7.
The general principles relating to the exceptional cases in which a party may advance a new case on appeal are well known and need not be repeated.[41] This is one of the rare cases in which an appellant should be allowed to raise a new point on appeal. The question arising in appeal CACV/147/2019 is solely one of law. The material facts are incontrovertible. It is not a case where the point could possibly have been met by calling evidence. In all the circumstances we are satisfied that, putting aside issues as to costs, the raising of O 66 r 18(1) RSC on appeal works no injustice to the fourth respondent and it is otherwise in the interests of justice to allow the point to be raised.
[41] See eg Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [65] - [67].
Accordingly, while we well appreciate that the O 66 r 18(1) RSC point could and should have been agitated before the primary judge - and appellate intervention on a point not raised below is, to a degree, inconsistent with the public interest in finality in litigation - appeal CACV/147/2019 should not fail by reason only that reliance on O 66 r 18(1) RSC was never raised before the primary judge.
The substantive merit of appeal CACV/147/2019, and the interests of justice, also persuade us that the appellants should have leave to appeal. In relation to the interests of justice we take into account that one consequence of the primary judge's determination is to set aside the certificate of taxation and require that the parties proceed to a new taxation on a basis consistent with the primary judge's ruling. That is inconsistent with the emphasis placed on efficiency and economy in the conduct of litigation that is now part and parcel of the due administration of justice, as it would require a new taxation to be undertaken when, on a proper analysis, no further process of taxation is required. That is all the more so where - for the reasons we have given - the new taxation would proceed on a basis that is inconsistent with the 2016 Costs Determination so far as it incorporates the discretion the costs determination preserves in relation to O 66 r 18(1) RSC.
As appeal CACV/13/2020 is derivative on appeal CACV/147/2019, there should also be leave to appeal in relation to appeal CACV/13/2020. The costs order in favour of the fourth respondents cannot be sustained given that appeal CACV/147/2020 is to be upheld. The event that justified the costs order has been reversed.
Conclusion and orders
The two appeals should be allowed.
If successful, the appellants sought orders that the application for review of the taxation pursuant to O 66 r 55 RSC be dismissed[42] and that there be an order that the fourth respondents pay their costs of the application for review of the taxation fixed in the amount of $3,267.[43] The appellants also sought a costs order in both appeals.[44]
[42] Orders wanted (CACV/147/2019) par 4 WAB 26.
[43] Orders wanted (CACV/13/2020) par 3 WAB 15.
[44] Orders wanted (CACV/147/2019) par 6 WAB 26; Orders wanted (CACV/13/2020) par 4 WAB 15.
There is a difficulty in ordering that the application for review of the taxation be dismissed. The primary judge never determined grounds 2 and 3 (relating to objections 2 and 3). Nor have those matters been raised on appeal. The fourth respondent ought to be afforded an opportunity to have these questions determined if it wishes to do so. That cannot happen if this court simply dismisses the application for review of the taxation. Such an order would see the application dismissed notwithstanding that there has never been a determination on the merits of the O 66 r 55 RSC review in respect of grounds 2 and 3 and their corresponding objections. In our view the appropriate order is to dismiss the application for review so far as it concerns ground 1 but allow the fourth respondent liberty to apply to relist the application for review for determination of grounds 2 and 3. While, ordinarily, it would be appropriate to remit the application for review to the primary judge, the primary judge had an acting commission which has now expired. In the circumstances the remittal should be to another judge in the General Division.
The appropriate costs orders were raised with counsel for the appellants at the appeal hearing.[45] Counsel for the appellants accepted that if this court concluded that O 66 r 18 was not squarely raised with the primary judge the appropriate order, in both the review proceedings before the primary judge and the appeals, was that there be no order as to costs.[46] That concession was properly made. The costs incurred in relation to ground 1 of the application for review of the taxation pursuant to O 66 r 55 RSC and the appeals are unlikely to have arisen had the appellants raised O 66 r 18(1) RSC expressly. While the costs orders made by the primary judge should be set aside - they being adverse to the appellants - the appropriate costs order in relation to both ground 1 of the application for review of the taxation and the appeals is that each party bear its own costs. Any costs in relation to grounds 2 and 3 of the application for review of the taxation should be reserved to the judge who determines that aspect of the application.
[45] Appeal ts 11 - 12.
[46] Appeal ts 12.
Subject to hearing from the parties as to the precise terms of the orders, we would make the orders to the following effect:
1.In appeal CACV/147/2019:
(a)The time for the appellants to apply for leave to appeal against the orders of the court made 15 November 2019 in proceedings CACV/58/2017 (review orders) is extended to 2 December 2019.
(b)The appellants are granted leave to appeal against the review orders.
(c)The appeal against the review orders is allowed.
(d)The review orders are set aside and the following orders are substituted:
(i)Ground 1 of the fourth respondent's application by chambers summons dated 21 January 2019 is dismissed.
(ii)The fourth respondent has liberty to apply, within 28 days of the making of these orders, to relist its application by chambers summons dated 21 January 2019 for argument on grounds 2 and 3 of the chamber summons on 5 business days' notice to the appellants.
(e)Grounds 2 and 3 of the fourth respondent's application by chamber summons dated 21 January 2019 is remitted to a judge in the General Division for determination.
(f)Each party bear its own costs of the appeal.
2.In appeal CACV/13/2020:
(a)The time for the appellants to apply for leave to appeal against the orders of the court made 2 December 2019 in proceedings CACV/58/2017 (costs orders) is extended to 7 February 2020.
(b)The appellants are granted leave to appeal against the costs orders.
(c)The appeal against the costs orders is allowed.
(d)The costs orders are set aside and the following orders are substituted:
(i)Each party bear its own costs of and incidental to ground 1 of the fourth respondent's application by chambers summons dated 21 January 2019.
(ii)The costs of and incidental to grounds 2 and 3 of the fourth respondent's application by chambers summons dated 21 January 2019 are reserved to the judge who determines those aspects of the application.
(e)Each party bear its own costs of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GD
Research Orderly to the Hon Justice Vaughan3 NOVEMBER 2020
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