Pasdonnay Pty Ltd v SDS Corporation Ltd
[2005] WASCA 9 (S)
•21 JANUARY 2005
PASDONNAY PTY LTD & ANOR -v- SDS CORPORATION LTD [2005] WASCA 9 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 9 (S) | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:59/2004 | 23 SEPTEMBER 2004 | |
| Coram: | WHEELER J MILLER J JENKINS J | 21/01/05 | |
| 16/02/06 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PASDONNAY PTY LTD (ABN 86 009 131 622) CATHERINE MARIE O'BRIEN as Executrix of the Estate of IAN GRAEME REAR (Dec) SDS CORPORATION LTD (ABN 73 007 980 645) |
Catchwords: | Costs Turns on own facts |
Legislation: | Corporations Act 2001 (Cth), s 471B Legal Practice Act 2003 (WA), s 215(2) |
Case References: | Collins v Westralian Sands Ltd (1993) 9 WAR 56 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : PASDONNAY PTY LTD & ANOR -v- SDS CORPORATION LTD [2005] WASCA 9 (S) CORAM : WHEELER J
- MILLER J
JENKINS J
DECISION : 16 FEBRUARY 2006 FILE NO/S : FUL 59 of 2004 BETWEEN : PASDONNAY PTY LTD (ABN 86 009 131 622)
- First Appellant
CATHERINE MARIE O'BRIEN as Executrix of the Estate of IAN GRAEME REAR (Dec)
Second Appellant
AND
SDS CORPORATION LTD (ABN 73 007 980 645)
Respondent
Catchwords:
Costs - Turns on own facts
(Page 2)
Legislation:
Corporations Act 2001 (Cth), s 471B
Legal Practice Act 2003 (WA), s 215(2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
First Appellant : Mr C G Colvin SC & Mr A R Beech
Second Appellant : Mr C G Colvin SC & Mr A R Beech
Respondent : Mr M L Abbott QC & Mr D M Stone & Ms L A Fuoco
Solicitors:
First Appellant : Cullen Babington Hughes, Maxim Litigation Consultants
Second Appellant : Cullen Babington Hughes, Clayton Utz
Respondent : Williams & Hughes
Case(s) referred to in judgment(s):
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Case(s) also cited:
Nil
(Page 3)
- WHEELER J:
Background to the application
1 Judgment in this matter was delivered on 21 January 2005. The appeal was dismissed, with an order that the appellants pay the respondent's costs of the appeal and with a certificate for two counsel.
2 On 18 February 2005, the respondent applied for an order under s 215(2) of the Legal Practice Act2003 (WA). The parties were content for the Court to deal with the application on the papers.
3 Thereafter, there were a number of delays. The second appellant died and in July 2005 Catherine Mary O'Brien, as representative of the estate of Ian Graeme Rear, was substituted as the second appellant. Shortly after judgment, the first appellant went into liquidation.
4 In July 2005, the respondent filed submissions and an affidavit in support of its application.
The first appellant
5 Since the first appellant is in liquidation, proceedings against it are stayed by reason of s 471B of the Corporations Act 2001 (Cth). In November 2005, the first appellant's solicitors therefore informed the Court that they did not propose to file any submissions and would allow the application to take its course. In the same month, the respondent notified the Court that it would not seek to pursue its special costs order against the first appellant. This application is now therefore live only against the second appellant.
The application
6 Section 215 of the Legal Practice Act relevantly provides:
"215. Effect of determination
(1) …
(2) … if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following -
(Page 4)
- (a) …
(b) …
(c) remove limits on costs fixed in the determination … "
7 It is to be noted that s 215 is narrower in its scope than the former O 66 r 12(1) of the Rules of the Supreme Court1971 (WA), in that it may only be determined that the costs allowable under a determination are inadequate because of the unusual difficulty, complexity or importance of the matter; there is now no reference to a residual discretion arising because of any other reason. It is not the case pursuant to s 215, as it formerly was pursuant to O 66 r 12, that it is open to suggest that a special costs order should be made simply because a very significant amount of costs has in fact been incurred.
8 The respondent submits that, as was formerly the case under O 66 r 12, what is required at this stage is a "preliminary and provisional" judgment as to whether the relevant conditions are satisfied, citing Collins v Westralian Sands Ltd (1993) 9 WAR 56 at 64, 68. I accept that submission. I accept also the submission that the Court, having heard the appeal, is in a position to make that judgment from its own observations. Because some time has elapsed since the hearing of the matter, however, I have reviewed the judgment, the original notice of appeal and amended notice of appeal, and the submissions, in order to refresh my memory of those matters.
9 Although there was complexity in the facts, and some points of law of difficulty were raised, I am not satisfied, even as a matter of first impression, that the requirement of "unusual difficulty" or complexity is satisfied. No doubt many simpler and less difficult appeals are brought in this Court, but this matter would appear to me to fall somewhere around the middle of a range of appeals extending from the simplest to the most difficult and complex. In my view, none of the matters relied upon by the respondent in its written submissions demonstrates relevant difficulty or complexity. I deal with those matters briefly in the order in which they were mentioned in the submissions.
The expedition of the appeal
10 This may have resulted in a number of interlocutory appearances, but there is nothing to suggest any unusual difficulty or complexity in those appearances.
(Page 5)
Wasted work in relation to the first notice of appeal
11 There might, in my view, be some merit in this submission if the respondent had been able to demonstrate that there was no significant overlap between the original and the amended notice of appeal, and that substantial work had in fact been done prior to the substitution. The affidavit upon which the respondent relies does not demonstrate those matters.
The abandonment of some of the grounds of appeal
12 Again, there is no analysis of the way in which these particular grounds contributed to the difficulty or complexity of the matter.
The grounds of appeal raise difficult points of law and the appeal book comprised 10 volumes
13 These matters, in my view, do no more than demonstrate that the appeal was not one of the simplest which might be heard in this Court. However, it is not my view that there was unusual difficulty in the points of law, or complexity in the relevant facts.
The time allowed for the appeal required lengthy written submissions
14 It appears to me that proper preparation of argument, whether oral or written, would necessarily canvass the reading and organisation for presentation to the Court of the same materials. The submission does not explain why the fact that some of the material was presented in written, rather than oral, form led to increased difficulty or complexity.
The respondent's contribution in the preparation of the appeal books
15 If it were the case that the respondent had undertaken as part of its preparation of the appeal a significant number of tasks which would normally be the responsibility of an appellant, and had incurred costs thereby, then under the former O 66 r 12, one can see why this might have been a reason for the Court to exercise its discretion to depart from the scale. Unfortunately, however, s 215 directs attention to the difficulty or complexity of the matter itself, rather than to the role which the particular party takes within it.
16 However, in any event, it seems to me that even if it would normally be the responsibility of the appellant to prepare the appeal books, it would be the responsibility of the respondent to check their contents and to consider independently whether any material should be added to or
(Page 6)
- excised from them. This would not therefore have persuaded me to depart from the scale, even if I had the power pursuant to s 215 to do so.
Conclusion
17 For the reasons set out above, I would dismiss the respondent's application.
18 I would order that the respondent pay the second appellant's costs of the application, in a sum not exceeding $400.
19 MILLER J: I have had the advantage of reading in draft the reasons for decision of Wheeler J. I agree with those reasons and have nothing to add.
20 JENKINS J: I have had the advantage of reading, in draft, the reasons to be published by Wheeler J. I agree with those reasons and have nothing to add.
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