Paula Susan Chappell as executor of the estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd [No 4] - [2019] WASC 434 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   PAULA SUSAN CHAPPELL as executor of the estate of ROBERT HASTINGS HITCHCOCK -v- GOLDSPAN INVESTMENTS PTY LTD [No 4] [2019] WASC 434 (S)
CORAM:   ALLANSON J
HEARD:   ON THE PAPERS
DELIVERED          :   29 JANUARY 2020
FILE NO/S:   CIV 1597 of 2014
BETWEEN:   PAULA SUSAN CHAPPELL as executor of the estate of ROBERT HASTINGS HITCHCOCK
Plaintiff
AND
GOLDSPAN INVESTMENTS PTY LTD
First Defendant
KEVIN ROBINSON
Second Defendant
NEIL ROBINSON
Third Defendant
PETER ROBERT HALLAM
Fourth Defendant

Catchwords:

Costs - Where unsuccessful plaintiff gave notice to admit facts - Whether plaintiff should have costs of proving facts where no specific finding made - Whether other reasons for not ordering costs of proving those facts

Costs - Where late amendment to defence - Where matter raised late a question of law - Where question of law decisive as to defendants' liability - Whether there should be an adjustment to costs

Costs - Where the defendants pleaded defence of estoppel to claims of breach of contract and fiduciary duty - Where those claims failed on other grounds - Where finding that estoppel would not have been made out - Whether there should be an adjustment to costs

Costs - Whether there should be order for costs of application for particulars that was not pressed following amendment to the defendants - Whether either party acted unreasonably

Legislation:

Rules of the Supreme Court 1971 (WA), O 30 r 2, O 66 r 1, O 66 r 3

Result:

Costs order in favour of defendants

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Solomon Brothers
First Defendant	:	Russells Lawyers
Second Defendant	:	Murcia Pestell Hillard
Third Defendant	:	Murcia Pestell Hillard
Fourth Defendant	:	Russells Lawyers

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

Lafferty v Waterton [2016] WASCA 183
Tipperary Developments Pty Ltd v The State of Western Australia [2009] WASCA 126; (2009) 38 WAR 488

ALLANSON J:

Judgment was delivered in the action on 29 November 2019. The plaintiff's action was dismissed. The question of costs was adjourned to be determined on the papers with the parties to file written submissions. In these reasons I will give a very general summary of the causes of action and defences, but will not otherwise set out matters dealt with in the main judgment except where necessary to explain the present decision.
The plaintiff pleaded multiple causes of action: breach of fiduciary duty, breach of contract, and statutory causes of action for misleading or deceptive conduct and unconscionable conduct.
The defendants denied the claims, and raised positive defences. They pleaded an estoppel (to the fiduciary duty and contract claims); the effect of two contractual releases; and that the proceedings were not maintainable by the plaintiff in respect of the relief claimed under the statutory causes of action.
The specific defence to the statutory claims was pleaded relatively late. At the commencement of the trial, the plaintiff amended the statement of claim to include claims under the Australian Securities and Investments Commission Act 2001 (Cth) and the Corporations Act 2001 (Cth), with the plaintiff submitting that those statutes (and not the Australian Consumer Law and Fair Trading Act 2010 (WA)) applied. The defendants amended the defences to raise the standing issue. None of those amendments was opposed.
In short, I would have found for the plaintiff only on the claim in misleading or deceptive conduct, but the claim failed on the issue of the plaintiff's standing (as the executor of the Mr Hitchcock's estate) to obtain relief.
I would not have upheld the estoppel and contractual release defences, but the claims to which they were pleaded were dismissed on other grounds.

The issues raised in the submissions

The plaintiff submits that:
(1)She should have the costs of proving the facts set out in a notice to admit facts, dated 24 August 2018 (to the extent of the costs of including documents in the trial bundle).
(2)The effect of the late amendment was to introduce, at trial, a defence to a claim that would otherwise have succeeded.
(3)She should have the costs of the estoppel defences which failed.
On that basis the plaintiff submitted that costs should be apportioned, or there should be no order as to costs.
The plaintiff also submitted that she should have the costs of her application for further and better particulars of the defence of the first and fourth defendants - this application was not pressed following an amendment to the defence.

The notice to admit

The notice to admit was in these terms:
Further to our earlier letter where we invited admissions in the interests of reducing the documents in the trial bundle, we request that your client admit the following fax to potentially reduce the duration of the trial.
Our client gives notice that she requires your clients to admit the below facts within seven days:
'There is no reference to the Merredin Contract, McKee Project, Diamantina Contract, West Angelas Contract (as those terms are defined in the statement of claim), or the Company's relationship with Forge in any written communications sent by any of the second to fourth defendants to Mr Hitchcock or any written communication from Mr Hitchcock to any of the second to fourth defendants, during the period from 1 July 2008 to 20 January 2012.'
Where a party refuses or neglects to admit facts in a notice to admit, that party shall pay the costs of proving the facts unless the court otherwise orders: Rules of the Supreme Court 1971 (WA), O 30 r 2; O 66, r 3(3). The operation of this rule was discussed by McLure JA (Wheeler and Newnes JJA agreeing) in Tipperary Developments Pty Ltd v The State of Western Australia [2009] WASCA 126; (2009) 38 WAR 488 [292] - [300]. It is an exception to the general rule in O 66 r 1 that the court will generally order that the successful party recover its costs. Where O 66 r 3 applies, the prima facie position is that the party who fails to respond or disputes the fact the subject of the notice must pay the costs of proving those facts. That position only applies, however, where the truth of the facts in the notice has been established to the satisfaction of the court, reflected in a finding.
The court has a discretion to depart from the prima facie position where there is a reason to displace that position. The court may have regard to factors including the nature of the questions in the notice to admit, including whether they are 'vague or unfocused or of limited, if any, assistance in resolving the issues in contention': Tipperary Developments Pty Ltd v The State of Western Australia [299].
In my reasons for decision, I made no specific finding about whether the facts in the notice were proven. The first and fourth defendants submit that, in fact, I made a contrary finding at [471]. But the finding in that paragraph is more general, and included consideration of oral communications between Mr Hitchcock and his fellow shareholders in CTEC (in particular, Mr Hallam and Mr Van Veen), as well as emails from Mr Muir of CTEC regarding the McKee Project. Those emails are referred to specifically in the submissions of the second and third defendants. Although the emails were sent by CTEC, with the knowledge of the defendants, they were not actually sent by the defendants.
In my opinion, there are other reasons for departing from the prima facie position in O 66 r 3.
First, the period covered by the notice is unrealistic. The plaintiff's pleaded case was that the negotiations and tenders for the four specified projects and contracts were in a much more limited timeframe, beginning in about September 2010.[1] CTEC was alleged to have developed a 'relationship and informal arrangement' with Forge prior to July 2011, with meetings in April 2011.[2] The proof of the facts alleged in the notice, to the extent they were material, did not require consideration of emails from July 2008.
[1] Statement of claim [10] - [14].
[2] Statement of claim [14].
Second, the plaintiff's pleaded case was that none of the defendants disclosed, or caused CTEC to disclose, to Mr Hitchcock any information regarding the projects and the dealings with Forge. As the defendants point out, and as I found at [471], that allegation was not proved. I found that the allegation of misleading conduct by non-disclosure was made out on the more limited basis that it was misleading or deceptive for the defendants to not tell Mr Hitchcock that the Merredin contract had been awarded, or about CTEC's negotiations with Forge. It was not in dispute that Mr Hitchcock was told nothing about the Forge negotiations.
Further, I do not believe that the alleged facts, if admitted, would have affected the cost of trial. As I said in my reasons, at [450], the plaintiff's legal representatives selected five emails in September and December 2010 and February 2011, from nearly four years of correspondence. They distilled, from those five emails, seven statements or representations, three which were alleged to have been false when made, and four which were alleged to have subsequently become false. To properly consider the claims, any emails passing between the defendants and Mr Hitchcock that related to the negotiations over the sale of his shares were relevant evidence in the trial. The admission sought would not have affected the volume of relevant and admissible material.

The estoppel defences

The estoppel defences were in answer to the contract and fiduciary duty claims, both of which failed on other grounds. Further, the evidence relied on in the estoppel issue (other than the defendants' evidence of the assumptions they made, and resulting cross‑examination) was largely the evidence required on the other issues in the action.
In my opinion, the general rule that the successful parties have their costs should apply.

The late amendment

Following the death of Mr Hitchcock, the plaintiff proceeded as the executor of his estate. The statement of claim was amended to include, as [1A]:
Paula Susan Chappell is the duly appointed executor of the estate of Robert Hastings Hitchcock ('Mr Hitchcock'), who died on 7 April 2015, and is continuing this action in that capacity.
The plaintiff did not amend the plea that, by reason of the breaches pleaded in [26], [27], [30], [31] and [32] of the statement of claim, 'Mr Hitchcock has suffered loss and damage'. That plea encompassed the allegations of breach of fiduciary duty and breach of contract, as well as the statutory causes of action.
Neither party appeared to have considered the issue which I found to be determinative.
The late amendment introduced a question of law that was decided against the plaintiff. It was first raised by the second and third defendants on 3 September 2018, two weeks before the scheduled start of the trial.
The plaintiff submits that the question of standing was a discrete matter and, if raised promptly, it could and would likely have been dealt with as a preliminary issue and 'had there been a final resolution of that issue holding that the plaintiff had no standing in respect of the statutory claims, that would have substantially reduced the time of trial and the volume of documents included in the trial bundle (if it did not result in the settlement of the action without trial)'.[3]
[3] Plaintiff's submissions on costs [17].
It is possible that the question of the plaintiff's standing could have been resolved as a separate preliminary issue if introduced earlier. It is difficult to assess what effect that would have had on overall costs, as the decision on that question would have likely been appealed.
Further, I must consider the question of costs on the assumption that the question of law was correctly decided at trial. I can only speculate about the effect the removal of the statutory causes of action would have had on the length of trial (which was comparatively short) and the volume of documents. All of the factual allegations relied upon to establish the statutory claims were relied upon also in the contract claim and the claim in equity.
I also accept the submission of the defendants that the issue of standing was one that the plaintiff should have considered when taking over the proceedings in a representative capacity.
I am not satisfied that the late amendment is reason to deny the defendants their costs of the action, or reduce the costs allowed.

The application for further and better particulars

In August 2014, the plaintiff applied for further and better particulars of the first and fourth defendants' defence. An amended defence was filed on 24 October 2014, and the application was not pressed. On 28 October 2014, a registrar reserved the costs of the plaintiff's application.
The principles which guide the exercise of the court's discretion where a matter has been resolved without a determination of the merits are settled: see, for example, Lafferty v Waterton [2016] WASCA 183 [16] ‑ [18]. Neither party acted unreasonably. In my opinion, there should be no order as to costs on the application for particulars.

Other reserved costs

Costs were reserved in respect of consent orders dated 9 October 2017, 11 April 2018 and 14 October 2019, made in relation to the freezing orders made against the third defendant. The plaintiff concedes that the costs reserved on these orders should be costs paid by the plaintiff to the third defendant unless no order for costs is made.
The costs of those orders should be paid by the plaintiff to the third defendant.

Conclusion

The plaintiff should pay the defendants' costs of the action, including the costs of the third defendant in respect of the consent order made on 9 October 2017, 11 April 2018 and 14 October 2019. The plaintiff should pay the defendants' costs of the costs application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CG
Associate to the Honourable Justice Allanson

29 JANUARY 2020

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CHAPPELL -v- GOLDSPAN INVESTMENTS PTY LTD [No 4] [2019] WASC 434 (S2)
CORAM:   ALLANSON J
HEARD:   24 APRIL 2020
DELIVERED          :   17 AUGUST 2020
FILE NO/S:   CIV 1597 of 2014
BETWEEN:   PAULA SUSAN CHAPPELL as executor of the estate of ROBERT HASTINGS HITCHCOCK
Plaintiff
AND
GOLDSPAN INVESTMENTS PTY LTD
First Defendant
KEVIN ROBINSON
Second Defendant
NEIL ROBINSON
Third Defendant
PETER ROBERT HALLAM
Fourth Defendant

Catchwords:

Costs - Special costs order - Where order made that plaintiff to pay defendants' costs - Whether court now has power to make special costs order

Legislation:

Acts Amendment (Legal Practitioners, Costs and Taxation) Act 1987 (WA)
Legal Practice Act 2003 (WA), s 215
Legal Practitioners Act 1893 (WA), s 58ZB(2), s 215
Legal Profession Act 2008 (WA), s 275, s 280, s 295, s 296
Rules of the Supreme Court 1971 (WA), O 66 r 12, O 66 r 32, O 66 r 51
Supreme Court Act 1935 (WA), s 167

Result:

Question of jurisdiction answered

Category: B

Representation:

Counsel:

Plaintiff	:	M Lundberg
First Defendant	:	B Katekar
Second Defendant	:	F Robertson
Third Defendant	:	F Robertson
Fourth Defendant	:	B Katekar

Solicitors:

Plaintiff	:	Quinn Emanuel Urquhart & Sullivan
First Defendant	:	Russells Lawyers
Second Defendant	:	Murcia Pestell Hillard
Third Defendant	:	Murcia Pestell Hillard
Fourth Defendant	:	Russells Lawyers

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

Cockburn Cement Ltd v The Minister for Environment (WA) [2011] WASC 260 (S)
Fitzpatrick v Emerald Grain Pty Ltd [2017] WASC 206 (S)
Geneva Finance Ltd (Receiver and Manager appointed) v Resource & Industry Ltd [2002] WASC 121 (S)
Maio v City of Stirling [No 2] [2016] WASCA 45 (S)
Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293 (S)
Siam Steel International PLC v Compass Group (Australia) Pty Ltd [2017] WASC 137
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S)
Snowtop Mushrooms Pty Ltd v Powley (Unreported, WASCA, Full Court, Library No 4501, 1982)
West Australian Construction Industry Redundancy Fund Ltd v Ortin [2002] WASC 185 (S2)

ALLANSON J:

Introduction

On 29 November 2019, I delivered judgment dismissing the plaintiff's action. The question of costs was adjourned to be determined on the papers and orders were made programming the filing of written submissions.
The parties' submissions on costs addressed who should be liable for the costs, and whether costs should be apportioned, with regard to certain issues at the trial. No party submitted that any special costs order should be made pursuant to s 280(2) of the Legal Profession Act 2008 (WA).
On 29 January 2020, in accordance with reasons published that day, I ordered that the plaintiff pay the defendants' costs of the action, including specified costs that had been reserved, and pay the defendants' costs of the costs application. I did not order that the costs be taxed: where an order of the court directs the payment of any costs, those costs may be taxed without any order in that behalf being made.[4]
[4] Rules of the Supreme Court 1971 (WA) O 66 r 32(2).
The plaintiff has appealed from the decision in the action. On 26 February 2020, the parties filed a minute of consent orders which, if made, would have extended the time within which the defendants may bring any application under s 280(2) until 28 days following the decision of the Court of Appeal.
I advised the parties that I would not make the orders. Costs orders should generally be made as soon as practicable following trial and not await the decision on appeal. The need for special costs orders to be applied for promptly is reflected in O 66 r 51 of the Rules of the Supreme Court 1971 (WA), which requires an application for an order under s 280(2) to be made within 30 days after the date of the relevant judgment or another time fixed by the court.
On 28 February 2020, the second and third defendants filed a summons seeking special costs orders; the first and fourth defendants filed a similar application on 29 February 2020.
The evidence filed in support of each summons is not relevant to the preliminary question, except as to one matter. It appears that the parties, or at least the defendants, read O 66 r 51 as requiring the application for special costs orders to have been filed within 30 days after the costs decision of 29 January 2020 - that is, the 'relevant judgment' in O 66 r 51(3)(a) is the decision on costs. My preliminary view is that the relevant judgment is the judgment in the action. It is not, however, necessary to determine that question in this application because the court has express power under r 51(3)(b) to fix another time.
The present application raises a more confined but fundamental point ‑ the plaintiff submitted that the court does not have power to make the orders sought because its power to make costs orders was exhausted by the making of a perfected costs order on 29 January 2020. Ordinarily, that question would have not been dealt with separately, as a preliminary question. But it was convenient to do so, with the agreement of the parties, in the peculiar circumstances brought about by the COVID-19 pandemic.

The legislative context

Part 10 of the Legal Profession Act provides for cost disclosure and assessment, including the assessment of legal costs payable by a client of a law practice or a person under a legal obligation to pay all or any part of the legal costs for services provided to a client (a third party payer).[5] Part 10, div 5 provides for the making of legal costs determinations, including determinations which apply to the remuneration of legal practitioners in respect of contentious business in the court.[6]
[5] Legal Profession Act s 295 and s 296.
[6] Legal Profession Act s 275(1)(b).

The regulation of costs by determinations, rather than rules of court, was introduced in Western Australia by an amendment to the Legal Practitioners Act 1893 (WA) (now repealed) in 1987.[7] At the same time, s 167 of the Supreme Court Act 1935 (WA) was amended to include a reference to costs determinations in the provision empowering the court to regulate matters relating to costs of proceedings. From when those provisions came into operation, if a determination was in force in respect of any business, any other subsidiary legislation fixing, or purporting to regulate, the remuneration of practitioners in respect of that kind of business was of no force or effect.[8] The Fourth Schedule of the Rules of the Supreme Court, which regulated costs, continued to apply only to work carried out before the determinations made under the Act came into effect, or where there was no applicable determination.
[7] Acts Amendment (Legal Practitioners, Costs and Taxation) Act 1987 (WA).
[8] Legal Practitioners Act s 58ZB(2). See also Legal Practice Act 2003 (WA) (now repealed) s 215(4) and Legal Profession Act s 280(4).
The court retained power to order costs above those fixed by the determinations. The current provision, s 280(2) of the Legal Profession Act, provides:
Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a 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 ‑
(a)order the payment of costs above those fixed by the determination;
(b)fix higher limits of costs than those fixed in the determination;
(c)remove limits on costs fixed in the determination;
(d)make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.
Section 215(2) of the Legal Practice Act was in the same terms.
Before 2003, the power of the court to make a special costs order was found in O 66 r 12 of the Rules of the Supreme Court.
Except in those cases where the court fixes costs, the effect of an order under s 280(2) is to enable a taxing officer to tax or assess the bill at an amount which is greater than the limit that would be imposed by the relevant costs determination. That is, a special costs order does not generally replace the process of taxation or assessment, but modifies the limits within which that process takes place: 'Even where orders are made under s 280(2) of the Act, it nevertheless remains the task of the taxing officer to consider the reasonableness of and necessity for the work undertaken, and to make a judgment about the remuneration reasonably required.'[9]
[9] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [11].
Order 66 r 51 Rules of the Supreme Court provides:
(1)In a particular action or matter the Court may, instead of making an order for taxation of costs ‑
(a) make an order fixing the costs of a party to the action or matter in accordance with this Order; or
(b) make an order under the Legal Profession Act 2008 section 280(2).
(2)The Court may make an order under subrule (1) on its own motion or on an application by a party.
(3)A party seeking an order under subrule (1)(b) must apply for the order within ‑
(a)30 days after the date of the relevant judgment; or
(b)another time fixed by the Court.
Order 66 r 51 was amended in 2018. Before then it provided:
(1)Where in any action or matter taxation of costs is not ordered, or any special costs are by these Rules or by any order reserved for the consideration of the Court at trial, the Court may fix the amount of costs payable, or the amount of such special costs, and in every judgment or order of the Court where the question of costs is not specifically dealt with there shall be deemed to be reserved to any party interested liberty to apply within 30 days.
(2)Where under these Rules a party is required to obtain some special certificate for costs, there shall be deemed to be reserved to such party liberty to apply within 30 days.[10]
[10] The reference to certificates reflects the Rules then in force, which, for example, authorised the court to certify for second counsel; to certify that an action was properly brought in the Supreme Court; and to certify that the total costs exceed the amount prescribed in the Fourth Schedule to the Rules.
In Cockburn Cement Ltd v The Minister for Environment (WA),[11] Edelman J considered whether O 66 r 51(2) permitted special costs orders uplifting items of the Scale after the perfection and extraction of orders, including an order that costs be taxed. After reviewing earlier decisions of the court,[12] Edelman J concluded that 'as a matter of authority O 66 r 51(2) permits liberty to apply within 30 days for orders lifting the limits of an item on the Scale of costs even if standard costs orders have been made'.[13]
[11] Cockburn Cement Ltd v The Minister for Environment (WA) [2011] WASC 260 (S).
[12] Snowtop Mushrooms Pty Ltd v Powley (Unreported, WASCA, Full Court, Library No 4501, 1982); Geneva Finance Ltd (Receiver and Manager appointed) v Resource & Industry Ltd [2002] WASC 121 (S); West Australian Construction Industry Redundancy Fund Ltd v Ortin [2002] WASC 185 (S2); Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293 (S).
[13] Cockburn Cement Ltd v The Minister for Environment (WA) [44].
Edelman J further held, as a matter of construction of O 66 r 51(2), as it then was, that the effect of the 'deeming' in that provision was that his earlier orders were to be treated 'as if' they included a further order permitting liberty to apply for a special costs order.
In Siam Steel International PLC v Compass Group (Australia) Pty Ltd, Martin CJ expressed the opinion that O 66 r 51(2), as it then was, 'may well be a relic of a bygone costs era with little or no current application'.[14] In Maio v City of Stirling [No 2][15] the Court of Appeal, referred to his Honour's comments and said:
… In particular, there may be a question as to whether the words 'Where under these rules a party is required to obtain some special certificate for costs' in O 66 r 51(2) should be construed as applying to an order made pursuant to s 280 of the LP Act …
If s 280 of the LP Act covers the field, and O 66 r 51(2) is a relic of a bygone era with no current application, once costs orders have been made and extracted, the only basis upon which a further order could be sought is by the application of the slip rule.[16]
[14] Siam Steel International PLC v Compass Group (Australia) Pty Ltd [2017] WASC 137 [32].
[15] Maio v City of Stirling [No 2] [2016] WASCA 45 (S).
[16] Maio v City of Stirling [No 2] [49] ‑ [50].
The Court of Appeal did not decide whether s 280 covered the field, and decided the matter before it on discretionary considerations.
The last of the authorities on O 66 r 51, before it was amended in 2018, is the decision of Martin CJ in Fitzpatrick v Emerald Grain Pty Ltd,[17] where, referring to the earlier authorities, his Honour said:
I should follow the series of decisions to which I have referred unless I am satisfied that they are plainly wrong, or that they should be distinguished as a result of the enactment of the Legal Practice Act 2003 (WA) and its successor, the LPA. I am not satisfied that the decisions are plainly wrong ‑ it is clearly arguable that the words 'some special certificate for costs' can be construed in such a way as to include an order made pursuant to s 280(2) of the LPA. Further, although I remain of the view which I expressed in Siam Steel to the effect that O 66 r 51(2) may be an inadvertent relic of a bygone era, the removal of O 66 r 12 from the Rules and its replacement with an equivalent statutory power does not, of itself, preclude the argument to the effect that a 'special certificate for costs' includes an order pursuant to s 280(2) of the LPA.
For these reasons I consider that I should follow the line of decisions to which I have referred and conclude that O 66 r 51(2) and O 3 r 5 authorise the grant of the order sought by the defendant.[18]
[17] Fitzpatrick v Emerald Grain Pty Ltd [2017] WASC 206 (S).
[18] Fitzpatrick v Emerald Grain Pty Ltd [53] ‑ [54].
There appears to have been no consideration of whether O 66 r 51, following the amendment in 2018, permits a special costs order to be made when an order for taxation of costs has been made and extracted.

Consideration

As a matter of construction, O 66 r 51 no longer provides a 'deemed' liberty to apply. Rather, as the plaintiff submitted, O 66 r 51(1) provides for an order fixing costs or an order under s 280(2) 'instead of … an order for taxation of costs'.
The plaintiff submitted that the making of a general taxation order, the fixing of costs, and the making of special costs orders, are discrete and separate alternatives, not cumulative courses of action. The plaintiff submitted that, properly construed, O 66 r 51(1), in its present wording, allows for a general order of taxation to be made or an order as to special costs pursuant to s 280(2). But it is not open to make orders for taxation and then seek to re-open those orders by subsequently seeking special costs orders.
In the present matter, it is not necessary to decide whether an order under s 280(2) could be made where the court has ordered that costs be taxed. I can decide the question of the court's power to make the order sought by the defendants on a more limited basis.
The orders made on 29 January 2020 did not specify that costs were to be taxed, but determined only which party was liable. By O 66 r 32(2), costs may be taxed without any order in that behalf being made. The fact that costs may be taxed without an order is not a sufficient reason to deny the court's power to make the orders now sought when the earlier order did not deal with whether costs should be taxed, or fixed, or some special order should be made. To hold otherwise would, in my opinion, make a rule intended to facilitate the exercise of the court's jurisdiction into an instrument of possible injustice.

Costs against a third party

A second issue was argued on behalf of the second and third defendants. In written submissions, leave was sought to amend the chamber summons to seek a special costs order against the litigation funder, apparently on the basis that the questions of jurisdiction would not arise in respect of that application.
In the orders made on 29 November 2019, orders were made for the question of costs to be determined on the papers. A further order was made that the defendants have leave to bring an application for costs against a third party, the litigation funder. I said at the time that I thought the order was unnecessary where the litigation funder had executed a Deed Poll and where there was nothing before the court to suggest that the funder would default.
Having found that the court has jurisdiction, it is unnecessary to further consider the application for orders against the third party.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CG
Associate to the Honourable Justice Allanson

17 AUGUST 2020