| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : OSBORNE -v- NRW PTY LTD [2013] WADC 66 CORAM : STONE DCJ HEARD : 5 APRIL 2013 DELIVERED : 30 MAY 2013 FILE NO/S : CIV 2250 of 2010 BETWEEN : KATHERINE SHARON OSBORNE Plaintiff
AND
NRW PTY LTD
Defendant
Catchwords: Appeal - Application for an extension of time to appeal - Costs - Special costs order Legislation: Legal Practice Act 2003 (WA) s 215(2)
Legal Profession Act 2008 (WA) s 280(2) Result: Special costs order refused
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Representation: Counsel:
Plaintiff : Mr P Lafferty
Defendant : Mr A Basile
Solicitors:
Plaintiff : O'Halloran Legal
Defendant : SRB Legal
Case(s) referred to in judgment(s):
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Fagan v Morien [2008] WASC 54 (S)
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942; [1985] 2 All ER 517
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Introduction 1 This appeal by the plaintiff was brought out of time. The application by the plaintiff for an extension of time within which to appeal and appeal itself were heard together. 2 The Notice of Appeal dated 21 December 2012 contained an error with respect to the relevant scale of costs determination. 3 At the hearing it became apparent that the plaintiff appeals from the decision of a deputy registrar of this court made on 23 November 2012 only insofar as the deputy registrar dismissed the plaintiff's application dated 12 July 2012 for a special costs order as follows: 1. The prescribed fee for work done in getting up the case for trial: not apply, and costs be allowed for all work reasonably and necessarily undertaken, at the rates set out in item 33 of the Scale of Costs in the 2010 Determination. 4 In effect the plaintiff was seeking an order whereby the taxing officer was not constrained by the relevant costs determinations in respect of the item for getting up case and he was entitled to allow such costs as he considered appropriate for all work reasonably and necessarily undertaken by applying the hourly rate set in item 33 of the Scale of Costs in the 2010 Determination. 5 The appeal proceeds by way of a new hearing of the plaintiff's application that was before the deputy registrar (r 15(6) of the District Court Rules 2005). 6 In the draft Bill of Costs for Taxation being 'Annexure PJOH 56' to the affidavit of the plaintiff's solicitor, Paul John O'Halloran sworn 4 July 2012 a sum of $65,000 was claimed for getting up case for trial. (Page 4)
This amount was $13,520 above the maximum allowable pursuant to item 17 of the 2010 Determination. 7 Item 17 of the 2010 Determination provided for a total of 120 hours with a maximum of $51,480. (The 2010 Determination applied from 1 July 2010.) 8 Item 16 of the 2008 Determination provided for 100 hours with a maximum of $39,650. (The 2008 Determination applied from 1 July 2008.) 9 Mr O'Halloran had been the plaintiff's solicitor since 28 October 2009. Accordingly, there had been work done in relation to the claim pursuant to the 2008 Determination and the 2010 Determination. At the hearing the plaintiff's counsel submitted that as the 2010 Determination was operational from 1 July 2010 the majority of the costs incurred by the plaintiff in respect of getting up fall to be determined under the 2010 Determination. 10 Item 9 of the draft Bill of Costs for Taxation was as follows: 17 Getting up case for Trial since October 2009 – including: (i) Instructions from Plaintiff (ii) Meeting with Plaintiff and preparing Proof(s) of Evidence (iii) Obtaining relevant documents and considering them (iv) Communication with Defendant's/Insurer's Solicitors (v) Obtaining medical reports and considering them (vi) Briefing counsel etc (vii) Meetings with medical specialists etc $65,000
The background 1. On 26 July 2010 the plaintiff commenced an action claiming damages for personal injury arising out of an accident at work which occurred on or about 16 July 2008. The cause of action was negligence. (Page 5)
2 On 10 March 2011 the plaintiff's claim against the defendant was ordered to be dismissed unless a statement of claim was filed and served within 14 days. 3. On 18 March 2011 the plaintiff's solicitor filed a statement of claim. It comprised 14 pages and 15 paragraphs. There were six injuries particularised, namely traverse fracture of T1, soft tissue injury to the neck, soft tissue injury to the mid and upper back, soft tissue injury to the low back, nervous shock and psychological sequelae. 4. On 5 April 2011 the defendant requested further and better particulars of the plaintiff's statement of claim. 5. On 3 June 2011 the defence was filed. The defendant denied liability. Causation and quantum were in issue. 6. On 12 July 2011 the plaintiff was ordered to provide further and better particulars as requested by the defendant on 5 April 2011 within 14 days. 7. On 12 July 2011 the plaintiff filed further and better particulars of statement of claim. 8. On 6 October 2011 notice of default (entry for trial) issued to the plaintiff because the plaintiff had not entered the action for trial as required. 9. On 24 October 2011 notice that the case was on the inactive cases list issued to the plaintiff due to the failure of the plaintiff to enter the case for trial within the time specified on the notice of default (entry for trial). 10. On 13 January 2012 a certificate of readiness and entry for trial was filed by the plaintiff. 11. On 24 January 2012 a minute of proposed amended statement of claim was filed by the plaintiff. 12. On 14 March 2012 the plaintiff filed particulars of damage claiming $1,944,379. 13. On 10 April 2012 the plaintiff's action was settled at a pre-trial conference by way of consent judgment. The consent provided for judgment to be entered for the plaintiff against the defendant for (Page 6)
Extension of time to appeal 11 In his affidavit sworn 26 February 2013 in support of the plaintiff's application for extension of time to appeal, Mr O'Halloran stated the Notice of Appeal was lodged 18 days late due to a number of factors including: • An oversight in relation to the exact deadline to lodge the appeal; • Significant work pressures in the lead up to Christmas; • The plaintiff's request to be further reassured about the merits of an appeal; • The need to obtain a transcript; • The fact that (he) did not receive firm instructions to lodge an appeal until on or about 17 December 2012 so far as (he could) recall. 12 At the hearing the defendant’s counsel properly conceded that the defendant was not prejudiced by the delay but maintained the application for an extension of time should be refused because the delay was the fault of the plaintiff's solicitor and there was no merit in the appeal. 13 The court has discretion to extend time to a party within which to appeal. 14 In Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198 Kennedy J stated by reference to Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942; [1985] 2 All ER 517 that in relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of the discretion which is conferred upon the court. They are, first, the length of the delay, (Page 7)
secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. Kennedy J went on to state that '[T]here may in a particular case be additional factors …' 15 Having regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties if the extension of time was granted or refused I do not consider the delay of 18 days to be lengthy. I am also satisfied that the reasons for the delay have been adequately explained by Mr O'Halloran and the defendant would not suffer any prejudice by that delay. I will say more about the plaintiff's application for an extension of time for appealing after I have dealt with the merits of the appeal.
The statutory framework and legal principles 16 The plaintiff's application was made pursuant to s 280(2) of the Legal Profession Act 2008 (WA). 17 Section 280 provides: (Page 8)
18 Section 280(2) of the Legal Profession Act 2008 was couched in identical terms to s 215(2) of the previous Legal Practice Act 2003 (WA). 19 The principles relevant to an application under s 280(2) were summarised by Martin CJ in Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) by reference to s 215(2) of the Legal Practice Act 2003 as follows: 1. The policy considerations that should guide a court when addressing an application under s 215(2) [s 280(2)] are: first, the taxing officer's role should not be usurped and second, that at least where party/party costs are concerned, the court should make an order that would give effect to the general principle of allowing the successful party to be compensated for their costs by the unsuccessful party: [13]. 2. The court must form an opinion which has two components: first, that the costs allowed by the applicable legal costs determination are inadequate and second, that the amount allowed is inadequate because of the 'unusual difficulty, complexity or importance of the matter': [11]. The word 'unusual' qualifies only the expression 'difficulty' and does not qualify the words 'complexity' or 'importance': [17]. 3. The reference to 'importance' in the section enables the court to have regard to the question of whether the work done was appropriate to the significance of the issues that arose in the litigation. Significance can arise either because of the significance of the issues to the parties or because of the significance of the issues to other prospective parties or to the public or to the community generally: [19]. (Page 9)
4. The application is determined as a matter of impression rather than as a matter of detailed evaluation as the determination was ordinarily made before a taxation had been undertaken: [20].
The evidence 20 Mr O'Halloran's affidavit sworn 4 July 2012 outlined his conduct of the action since 28 October 2009. 21 'Annexure PJOH 60' of his affidavit (pages 408 - 502 inclusive) contained details of all the work carried out by the plaintiff's solicitor as and from 20 November 2009 (page 410) up to and including the date when the claim was settled on 4 April 2012 (page 496). The invoices total $100,467.93 including disbursements and GST. The professional costs were $99,941.42. 22 Mr O'Halloran stated in his affidavit that the action was unduly difficult and complex for the reasons set out in par 105 as follows: (a) the number of potential Defendants; (b) the difficulty identifying the correct potential Defendants; (c) the Plaintiff herself was a very high maintenance, inquisitive, suspicious, obsessive individual who was highly involved with her case at all levels as was her partner who actively participated in many interviews with me; (d) the Plaintiff experienced a vast array of symptoms that she related to her accident related injuries and which number and type of symptoms were unprecedented in my 31 year legal career; (e) it was necessary to seek medical support for each and every symptom relayed to determine to what extent those symptoms directly or indirectly related to this incident; (f) the medical evidence in support of the Plaintiff was so diverse and polarised that on one scenario it appeared the Plaintiff had an uncapped claim possibly in excess of $1,000,000. On the other hand the medical evidence suggested no claim at all. The level of polarization was remarkable in my experience; (g) it became necessary, on several occasions, to ascertain the extent to which, if at all, the Plaintiff was forever fettered by the WPI rating prevalent at the time she lodged her common law claim at WorkCover. Such was the level of (Page 10)
the Plaintiff's concerns that independent advice was also taken from an experienced WorkCover Advocate, Mr Philip Lafferty of Counsel and Mr Greg McIntyre, Senior Counsel; (h) assessing the liability of the Defendant and/or alternative Defendants was made more difficult given that the accident occurred in the North West of this State. Eye witnesses were either not known or still employed by the Defendant, thereby compromising their ability to provide evidence in support of the Plaintiff. As such, it was necessary to rely upon the evidence of the psychiatrically disabled Plaintiff along with her partner who was not always available to give evidence due to work commitments and who, himself, was compromised by reason of his ongoing employment with the Defendant; (i) the Defendant vigorously denied liability, causation and quantum from the outset and its Defence pleaded, inter alia, that the Plaintiff was entitled to no relief at all; (j) as part of its Defence, the Defendant pleaded that a company called 'Q Civil' was partly or wholly to blame for the accident. A search of this name was of no assistance, thus necessitating enquiries of the Defendant's solicitors who initially were not prepared to assist. The situation was made more difficult by the fact that there was an impending deadline to bring action against the legal entity known as Q Civil, about which we knew very little and enquiries about which revealed nothing in the way of useful information; (k) the Plaintiff was, on the one hand, extremely fastidious and involved with great attention to detail. On the other hand she was profoundly physically and mentally disabled and complaining of a vast number of symptoms that made the task of proofing her and interviewing her extremely difficult and slow. She was consuming heavy medication. As such, each and every meeting was far more time consuming than it might otherwise have been in a normal personal injury claim. Hence, the process of taking a proof of evidence, usually a relatively simple task, occupied 12 months which in my experience is rare if not unprecedented; (l) such was the importance of the evidence of Dr Watson, Physician, it was necessary for Counsel and I to personally attend upon his rooms to seek clarification concerning his calculations relating to the medical evidence and which calculations were complicated and confusing, if not (Page 11)
arguably invalid in part, as was pointed out by the opposing solicitor (m) the issue of whether or not the Plaintiff experienced a primary (compensable) as opposed to a secondary (non-compensable) psychiatric illness was also very important. The medical report of Professor Skerritt did not make the position sufficiently clear because Professor Skerritt himself felt constrained about even passing an opinion on the WPI rating having not been approved by WorkCover as an Approved Medical Specialist. Hence, it also became necessary for Counsel and I to personally visit Professor Skerritt to seek clarification on this important matter. (n) the issue of whether or not further evidence should be obtained in relation to the Plaintiff's cognitive defect problems was also considered but rejected on the basis that it would involve considerable expense and that nothing would likely turn on it given the medical scenario that had by then presented itself particularly in relation to the WPI ratings expressed by the numerous doctors concerned. I was also of the view that cognitive deficit problems, although clearly highly debilitating for the Plaintiff, could not be the subject of a separate and distinct WPI rating. Again, these difficult judgments had to be made and fully explained to the understandably bemused Plaintiff. (o) from the outset, this case was beset by urgent, often precarious deadlines and scenarios, which separately and/or in combination, had the potential to destroy the Plaintiff's entire case and often it was in circumstances where there was only one opportunity on my part to get it right, quickly.
The plaintiff's submissions 23 The plaintiff's written submissions dated 3 April 2013 were as follows: (Page 12)
24 At the hearing the plaintiff’s counsel accepted that the identity of potential defendants was a minor point.
Were the costs allowed by the applicable legal costs determination inadequate? 25 The first question for determination is the question whether the amount of costs allowable for getting up case for trial under the relevant legal costs determinations was inadequate. 26 The requirement of inadequacy would be demonstrated if the applicant showed that there was a fairly arguable case that the bill of costs to be presented to the taxing officer may tax at an amount which was greater than the limit that would be imposed by the relevant costs determination (Heartlink [16]). In this case I am satisfied that it was (Page 13)
fairly arguable that the draft bill of costs to be presented by the plaintiff to the taxing officer may tax at an amount which was greater than the limit that would be imposed by the relevant costs determination. 27 However, this case was settled at a pre-trial conference. It was resolved without trial. On the pleadings the plaintiff's claim to damages for negligence against her employer was fairly straight forward notwithstanding the need to deal with the plaintiff's difficulties. I will say more about that in a moment. 28 In all the circumstances and given the nature of the claim, I am not satisfied that the quantum of costs allowable in respect of getting up case for trial under the relevant legal costs determinations would be inadequate.
If the amount allowed is inadequate, does the inadequacy arise because of the unusual difficulty, complexity or importance of the matter? 29 In the event that I am wrong that the amount of costs allowable in respect of getting up case for trial under the relevant legal costs determinations was not inadequate, I turn to the second question for determination, which was the question of whether the inadequacy arises because of the unusual difficulty, complexity or importance of the matter. 30 On the pleadings the issues in dispute were the existence of a duty of care, whether the duty was breached by the defendant, whether the damages claimed by the plaintiff were caused by that breach and whether the plaintiff could be awarded damages if she did not have a permanent whole of person impairment. None of these issues were unusually difficult. In the circumstances of this case the issue relating to the identity of a potentially liable party would not constitute an issue of unusual difficulty. The assessment of an injured plaintiff's injuries was a normal part of every personal injury claim and there was nothing unusually difficult and/or complex about the numerous symptoms complained of by the plaintiff and the task of considering and assessing the evidence relating to those symptoms. In my view none of the issues in this case relating to the identity of the defendant, the nature of the plaintiff's injuries, the taking of the plaintiff's proof of evidence and the examination of a multitude of medical reports satisfy the requirement that the plaintiff's case involved issues of unusual difficulty or complexity. 31 Whilst I accept the plaintiff believed the issues undertaken by her solicitor were important to her and the work done by him was appropriate to the significance of the issues that arose in litigation, I am not satisfied (Page 14)
that the case was of such unusual difficulty or complexity or in fact importance as to warrant a special costs order. The pleadings did not raise an issue or a point of law that was of fundamental importance to the parties or to other prospective parties or to the public or to the community generally. Issues of duty of care, breach and assessment of damages were the type of routine issues raised in personal injury claims in this jurisdiction. The way the breach was particularised was not complex or difficult to understand. Essentially, what the plaintiff was saying was that she was employed by the defendant as a dump truck driver. She was sitting in the passenger seat or 'dickie seat' of a dump truck observing and learning to operate the dump truck as it was being operated by a fellow employee. The dump truck was stationery while waiting to be loaded with iron ore by a caterpillar loader. The dump truck was subjected to considerable external force from the impact of the loader boom and bucket full of iron ore that caused the plaintiff and her fellow employee to be thrown around the cab as a result of which the plaintiff sustained injury. The defendant should have provided an adequate seat with adequate safety mechanisms for the use of passengers learning to operate the dump truck. Insofar as damages were concerned the pleadings did not raise anything complex or unusual about the plaintiff's injuries. As an example, in this case there was no suggestion of any pre-existing condition or intervening act relevant to the assessment.
Conclusion 32 The orders I propose to make are: |