Randall v Hamersley Iron Pty Ltd
[2008] WADC 83
•16 JUNE 2008
RANDALL -v- HAMERSLEY IRON PTY LTD [2008] WADC 83
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 83 | |
| Case No: | CIV:2186/1998 | 21 MAY 2008 | |
| Coram: | KEEN DCJ | 16/06/08 | |
| PERTH | |||
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | PHILLIP CHARLES RANDALL HAMERSLEY IRON PTY LTD (ACN 004 558 276) MARK ANTHONY TROY |
Catchwords: | Practice and procedure Costs Application to allow costs above limits Principles involved |
Legislation: | Legal Practice Act 2003 s215(2) |
Case References: | Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 Jewel Walk Pty Ltd v Kondinin Group Inc [2001] WASC 197 McConnell v Nationwide News Pty Ltd & Anor, SCt of WA; Library No 920670; 10 December 1992 O'Rourke v P & B Corp Pty Ltd [2008] WASC 36 SDS Corporation Ltd v Pasdonnay Ltd & Anor [2004] WASC 26 Verdell Pty Ltd v F & G Nominees Pty Ltd & Anor [2002] WASC 58 (S2) |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
HAMERSLEY IRON PTY LTD (ACN 004 558 276)
Defendant
- Plaintiff
AND
HAMERSLEY IRON PTY LTD (ACN 004 558 276)
Defendant
Catchwords:
Practice and procedure - Costs - Application to allow costs above limits - Principles involved
(Page 2)
Legislation:
Legal Practice Act 2003 s215(2)
Result:
Application dismissed
Representation:
CIV 2186 of 1998
Counsel:
Plaintiff : Mr D Garnsworthy
Defendant : Mr J Ley
Solicitors:
Plaintiff : Cameron Eastwood
Defendant : Freehills
CIV 2196 of 1998
Counsel:
Plaintiff : Mr D Garnsworthy
Defendant : Mr J Ley
Solicitors:
Plaintiff : Cameron Eastwood
Defendant : Freehills
Case(s) referred to in judgment(s):
Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254
Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237
Jewel Walk Pty Ltd v Kondinin Group Inc [2001] WASC 197
McConnell v Nationwide News Pty Ltd & Anor, SCt of WA; Library No 920670; 10 December 1992
(Page 3)
O'Rourke v P & B Corp Pty Ltd [2008] WASC 36
SDS Corporation Ltd v Pasdonnay Ltd & Anor [2004] WASC 26
Verdell Pty Ltd v F & G Nominees Pty Ltd & Anor [2002] WASC 58 (S2)
(Page 4)
1 KEEN DCJ: Before the Court are applications pursuant to s 215(2) Legal Practice Act 2003 (the "Act") to allow costs to be taxed above the limits fixed by the determination made by the Legal Costs Committee in respect of these two matters.
The proceedings
2 The proceedings giving rise to this matter comprised claims made against the defendant. In each case the plaintiff was employed by the defendant upon the terms set out in the amended (substituted) statements of claim filed February 2002 (collectively called the "statement of claim").
3 In June 1992 industrial action was taken against the defendant which resulted in strike action at some of its mine sites.
4 It appears that picket lines were set up outside the gates of the mines. The statement of claim alleges that not all of the employees of the defendant supported the strike and some, including these plaintiffs, defied the strike and crossed the picket line at the mine.
5 The claims made by the plaintiffs arise out of that action which in turn resulted in the plaintiffs and their families allegedly suffering harassment, discrimination, physical violence or harm, psychological harm, written or verbal abuse or innuendo and threats of violence by the picketers and other employees who had not crossed the picket line. This was described in the statement of claim as the strike harm and post-strike harm.
6 The statements of claim set out the damage sustained by the plaintiffs as a result of this strike harm or post-strike harm and comprised a number of discrete matters including, but not limited to, psychiatric injury.
7 The statement of claim then sought to set up how it was that the claims against the defendant were made out. Those claims were based upon breach of contract and duty of care on the part of the defendant and, inferentially, breach of a number of representations said to have been made by or on behalf of the defendant amongst other things that the plaintiffs would receive support from the defendant.
8 The statement of claim also alleged a failure on the part of the defendants to provide timely post-trauma counselling and formal psychiatric review and treatment.
(Page 5)
9 The plaintiffs claimed damages including exemplary and aggravated damages.
10 After a long and chequered history both actions were settled by way of consent judgments on 2 August 2007. It is not necessary, for the purpose of these reasons, to go into the details of the settlement save to note that each settlement provided that the plaintiffs would have liberty to apply for a special costs order limited to matters under s 215(2) of the Act. It is as a result of that liberty to apply that the present applications are made.
Scope of the applications
11 The plaintiffs seek special orders as to the items in the schedule to the Legal Practitioners (Supreme Court) (Contentious Business) Determination1996 (the "determination") and being item 6(a) (1999 Scale), statement of claim; item 8(b) (1999 Scale), giving particulars of pleading; item 9(b) (1999 Scale), giving discovery of documents; and item 16 (2006 Scale), getting up case for trial.
The jurisdiction and relevant legal principles
12 There was no dispute between the parties that the jurisdiction to make a special costs order is to be found in s 215(2) of the Act. Section 215 provides:
"215 Effect of determination
(1) Subject to sections 221 and 241 of this Act and section 14 of the Legal Aid Commission Act 1976 –
(a) the taxation of bills of costs of legal practitioners, as between legal practitioner and client or party and party; and
(b) any other aspect of the remuneration of legal practitioners the subject of a determination,
is regulated by a legal costs determination in force under section 210.
(2) 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 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 –
(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 taxed.
- (3) Nothing in subsection (1) is to be construed as limiting the power of a court, a judicial officer or a taxing officer of a court to determine in any particular case before that court or judicial officer the amount of costs allowed.
(4) If a legal costs determination is in force under section 210 in respect of any business referred to in section 210(2), any other subsidiary legislation fixing or purporting to regulate the remuneration of legal practitioners in respect of that kind of business is of no force or effect."
13 Further, there does not appear to be any dispute between the parties that in s 215(2) when considering whether or not the determination is inadequate the qualifier "unusual" applies only to "difficulty" and not to the two other factors, that is to say complexity or importance of the matter; SDS Corporation Ltd v Pasdonnay Ltd & Anor [2004] WASC 26 (S2) at 102-106.
14 It also appears not to be in dispute that the former regime for special costs order, namely O 66 r 12 of the Rules of the Supreme Court no longer applies it having been repealed as at 1 March 2007. However, the defendant argues that cases determined under the old regime are still
(Page 7)
- relevant to what needs to be done in order to excite the discretion of the Court in favour of a special costs order.
15 For the plaintiff it was put that the matter has been simplified by the approach taken by his Honour the Chief Justice in two cases in the Supreme Court; Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S), delivered 11 February 2008 and O'Rourke v P & B Corp Pty Ltd [2008] WASC 36 (S), delivered 15 April 2008.
16 In Heartlink the Court was asked to make a special order in respect of item 11 in the 2006 determination which is in respect of originating motions, originating summonses and originating applications. It allowed for a maximum, based on one day of hearing and getting up of 50 hours, to a limit of $27,456. The solicitors for the liquidator deposed that the printout of time spent by members of the firm acting for the liquidator showed the billable time to be an amount of $106,279. The amount actually billed to the liquidators was $96,345. In addition to that there were fees paid to senior counsel. His Honour noted that it was not possible from the printout itself or at least without a lot more work to attempt to isolate the work done on the matter at hand and another matter. The solicitor for the liquidator estimated that 75 per cent of the time recorded was spent on the matter at hand.
17 His Honour at par 11 noted:
"Before the court can make an order under the subsection (s 215(2) Legal Practice Act), the court must form an opinion which has two components. The first is that 'the amount of costs allowable in respect of a matter under a legal costs determination is inadequate', and the second is that the inadequacy arises because of the 'unusual difficulty, complexity or importance of the matter'."
18 His Honour went on to note at par 12:
"Section 215(2) also falls to be construed in the context of the well-known principle that at least in respect of costs as between party and party, the principle is that the successful party should be compensated by the unsuccessful party for their costs …"
19 His Honour further stated at par 13 that:
(Page 8)
- "The policy considerations that should guide a court when addressing an issue under s 215(2) are, firstly, that the court should not usurp the role of the taxing officer and, secondly, that at least where party and 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, where appropriate."
20 His Honour then went on to consider two alternative ways of approaching the question of inadequacy posed by s 215. His Honour adopted the alternative: simply to require an applicant for an order under the section "to satisfy the court that there is a fairly arguable case to be put before a taxing officer to the effect that the bill to be taxed should be taxed out at more than the limit that would be imposed by the costs determination". His Honour went on to say at par 15:
"…the court could arrive at the conclusion that the limit was inadequate because the maintenance of the limit would preclude the applicant from presenting a fairly arguable case to the taxing officer. The considerations to which I have referred, and in particular the view that the court should not under this section, usurp or anticipate the role of the taxing officer, lead me to conclude that the latter of the two alternatives is the preferred approach to an application under section 215(2)."
21 That latter alternative is the one that I have described.
22 The case goes on to demonstrate that once the applicant shows that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit in the determination the second question arises, that is, whether the inadequacy arises because of the unusual difficulty, complexity or importance of the matter. His Honour noted that in that case the expression "difficulty" does not qualify the words "complexity" or "importance".
23 His Honour went on to consider the meaning of the words against a submission that the criteria of importance cannot be met having regard to the interests of the parties only but must, in order to be satisfied, import an element of importance to the community. His Honour did not accept that construction. His Honour construed the reference to "importance" as "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
(Page 9)
- because of the significance of the issues to other prospective parties or to the public or the community generally" (op cit at par 19).
24 Towards the end of his judgment at 25 his Honour noted that:
"The question for determination at this point of the proceedings is not whether the bill will, in fact, tax out at more than the limit, but rather whether there is a fairly arguable case that it may tax out at an amount above the limit."
25 His Honour re-stated that it would still be open to a taxing officer, after considering the bill, to allow an amount less than the limit on taxation. He said that it was "entirely for the taxing officer to determine whether or not the work was properly and appropriately done and, if so, the amount properly allowable".
26 In O'Rourke's case his Honour was there dealing with litigation which he described as "parasitic litigation". He said that a robust approach should be taken to the resolution of costs issues of this kind and "the practice of making elaborate and detailed submissions with respect to costs, supported by elaborate and detailed evidence and oral argument, should be actively discouraged by the court" (par 6).
27 His Honour noted the observations made by him in Heartlink and repeated that the "question of inadequacy is not to be determined definitively by the court from which an order is sought under s 215(2), in the sense of conducting a provisional taxation of costs and then ascertaining whether, on the basis of that provisional taxation, the amount allowed in the scale is inadequate. That I think, would result in the courts significantly usurping the role of the taxing officer and would also result in the undesirable practice of double handling of the assessment of costs". He went on to say at par 21:
"… all that is required of a court to which an application is made under s 215(2) is that it form a view on the question of whether there is an arguable case to be put before a taxing officer to the effect that the limit imposed by the scale would be inadequate because of the 'unusual difficulty, complexity or importance of the matter'."
28 His Honour then went on to consider what unusual meant. He compared it to what one might describe as the usual run of civil cases and said:
(Page 10)
- "… the question is whether this was an unusually difficult, complex or important case, having regard to the usual run of civil cases determined in the Supreme Court and generally in the District Court, because, of course, the scale is generally applicable to proceedings in both courts."
29 In dealing with the assessment of that question he noted that it was essentially a value judgment [24]:
"… and which the court is particularly well qualified to make having regard to the fact that the court has heard and determined the trial and can take into account the court's experience of the usual run of civil cases in the superior courts of the State" (par24).
30 In the current case the court did not hear or determine the trial and accordingly I did not have the benefit of considering the present application in the light of having heard the arguments in the case leading to judgment.
31 The plaintiffs argued in written submissions that the determination of the work done and its cost is essentially preliminary and provisional: Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S2) at 83. If one adopts what the Chief Justice had to say in relation to these matters in Heartlink and O'Rourke that would clearly appear to be the position particularly noting what he had to say about not usurping the taxing officer's function and that it would be an undesirable practice to carry out a provisional taxation which would lead to double-handling of the assessment of costs.
32 For its part the defendant argued that these latest cases emanating from the Chief Justice in effect say no more than earlier cases. Reference was made to McConnell v Nationwide News Pty Ltd & Anor, SCt of WA; Library No 920670; delivered 10 December 1992 per Owen J. At p 7 his Honour said:
"That brings me back to the amount of work done. The task which the judge must perform is to assess the materials which are available to him or her to decide whether the work was done, whether it was reasonably done and whether the limits in the scale would reasonably compensate for the work done. The judge is not the taxing master.
(Page 11)
- It would not be appropriate, nor is it necessary to review the schedule of work, item by item, and to assess its worth. That is the job of the taxing officer. The judge's task is to look at the schedule in the context of the proceedings as they were conducted and to ascertain whether it would be fair and reasonable to make a special order."
33 It would be fair to say that that is stating no more than has been stated by the Chief Justice in Heartlink and O'Rourke.
34 The defendant also referred to Verdell Pty Ltd v F & G Nominees Pty Ltd & Anor [2002] WASC 58 (S2). This was a decision of Wheeler J delivered 28 March 2002. Again her Honour was being asked to consider a special costs order and in particular gave consideration to the evidence required for such an application.
35 In the present case the defendant argued that there were deficiencies in the plaintiffs' materials (to which I will come) and what fell from the Court in Verdell is particularly appropriate.
36 In that case her Honour noted that Owen J in McConnell had noted deficiencies in the materials provided to him but, notwithstanding that, he was satisfied that the work done as "getting up for trial" was reasonably done and was such a quantity that the allowance in the scale was unlikely to compensate the plaintiffs adequately.
37 Her Honour noted that the approach of parties, when seeking a special order as to costs, had been to err on the side of caution and provide the Court with voluminous material relating to the work done but notwithstanding that detail there had been occasions where deficiencies in the materials had been noted particularly where the materials have not explained why the work was done.
38 Her Honour went on to note that in some cases the Court was able to draw on its general experience and knowledge of particular cases in making special costs orders. In a case of Jewel Walk Pty Ltd v Kondinin Group Inc [2001] WASC 197 Roberts-Smith J had a bill and detailed schedules but noted "none of this affords any useful clarification nor assistance for the purposes of this application". Apparently his Honour noted that none of the material produced to him explained the content of the voluminous affidavit and extent to which it related to matters pertaining to the action, what work was done in responding to it or why that particular work had to be done in response to it.
(Page 12)
39 Her Honour noted at [14]:
"If the judge has been the trial judge, he or she will be able to draw on experience of the trial, which will be of great assistance in understanding the issues involved, and appreciating the extent to which, for example, detailed preparation for cross-examination appears to have been necessary, or work appears to have been necessary beyond normal court sitting times to respond to matters arising suddenly during the course of trial. Whether or not the judge has been the trial judge, a perusal of the pleadings, the transcript, and the submissions, together with the materials which may relate to interlocutory applications will be of great assistance in understanding whether it was necessary for additional work to be done."
40 She went on to note that there may be work done of which the Judge is not aware and at [15] said:
"It will, of course, be necessary to establish that, prima facie, costs appear to have been incurred which exceed those allowable under the scale."
41 In looking at the material required her Honour said that:
"… the judge will not examine the material line by line looking for possible duplication or overlap, or enquiring about the way in which every 10 minutes was spent."
42 However, having said that in the circumstances of that case her Honour noted that the schedules prepared did not themselves explain or even hint at why it was necessary for any particular of item of work to be done.
43 As I have indicated, the defence take the view that there are deficiencies in the materials presented. I will come to the evidence shortly, but that may be summarised by the defendant's submission that all of that material contain merely estimates of time. There was no suggestion of any computer printouts being provided or timesheets but just bald statements of time spent on various matters. There was no indication of how that was arrived at and it is the defendant's case that there must be a proper basis to show how the quantum is arrived at before the discretion to exceed the limits can be exercised.
(Page 13)
Matters arising during the course of hearing
44 The plaintiffs' written submissions dealt with the specific scale items and the amount claimed as opposed to the scale limits.
45 At the hearing I was presented with the plaintiffs' draft bills of costs. In both, item 6, giving of discovery, appears. The claim in the schedule for the giving of discovery for Randall was for $6,039 against a scale limit of $1,800 and for Troy $6,633 against the same scale limit.
46 The amounts shown in the draft bills are $2,268 and $2,400 respectively. The plaintiffs abandoned the claims to the higher amounts set out in the submissions and rested their claims upon those sums shown in the draft bills. Accordingly, it can be seen that so far as Randall is concerned the amount in excess of the scale is $468 and for Troy $600. Notwithstanding these reductions the defendant continues to press its objection to an order being made.
The evidence
47 In this matter a number of affidavits were sworn on behalf of the plaintiffs by Cameron Victor Eastwood, the plaintiffs' solicitor.
48 The first affidavit was sworn on 9 August 2007 and gave a brief overview of the claims and what gave rise to them. It also gave a brief overview of what was said to be the difficulties in the case. Mr Eastwood deposed that the time allowed for the items to which this claim now relates exceeded those in the relevant determination. At that stage it was not possible for him to draw bills of costs in draft form. The affidavit ended with a paragraph in terms:
"36. Having consultant my own records I can say that time spent on each of the above items (that is to say, statement of claim, giving particulars, discovery and getting up case for trial) exceeds the time allocated by the Legal Costs Committee, e.g. 100 hours allowed for getting up case for trial; 10 hours for statement of claim; 5 hours for giving particulars and 10 hours for discovery."
49 A supplementary affidavit was sworn by Mr Eastwood on 24 January 2008.
50 That affidavit revealed that the matters which gave rise to these actions on behalf of Troy and Randall also affected other independent workers who were represented by Mr Eastwood. However, in the
(Page 14)
- affidavit Mr Eastwood sought to set out the work that was unique to each of the Troy and Randall actions. In doing so he described in par 10 the nature of the work involved. Thereafter at par 9 (sic) he sought to set out the work that contained common elements, that is to say work relating to the Troy and Randall cases and other independent workers represented from time to time.
51 Having given that overview in respect of the work unique to Troy and Randall and in relation to common elements, at par 14 Mr Eastwood deposed that of time taken in getting up the Troy action for trial exceeded 190 hours and that for Randall exceeded 179 hours.
52 The affidavit then went on to deal with the statement of claim and described the process of preparing the statement of claim and the substituted statement of claim. In par 20 of the affidavit it was said that the process of preparing the minute of substituted statement of claim exceeded 50 hours. It was also said in par 21 that counsel spent in excess of seven days (56 hours) in respect of drafting the statement of claim. Finally, under par 22 it was said that having regard to the amount of work common to the Troy and Randall actions and two other matters involving Chittleborough and Murdoch, Mr Eastwood estimated the total time spent on the statement of claim and substituted statement of claim to exceed 37 hours for each of the present claimants.
53 The affidavit then went on to give an overview of the work involved in the giving of particulars. Those particulars involved a request which produced particulars (the first answers) to the original statement of claim and a request which provided particulars (the second answers) to the substituted statement of claim.
54 The affidavit went on to deal with the work said to be necessary in order to provide these particulars or answers. It was said in par 26 that the total time spent drafting the first answers exceeded 35 hours including counsel's time, but that should be split between the four plaintiffs (then represented by Mr Eastwood) giving a total of 8 hours each for Troy and Randall.
55 In par 30 of the affidavit Mr Eastwood deposed that the time spent preparing the second answers was 98 hours, excluding 60 hours spent by a paralegal. He suggested that there ought not be an equal apportionment between the three (as there were at that stage) plaintiffs. In par 32 he estimated the time taken in preparation of the first and second answers for the Troy action to be 50 hours and for the Randall action 30 hours.
(Page 15)
56 The affidavit went on to deal with matters relating to discovery and the task of giving discovery and collating all the necessary documents. It was said that there were two lists of documents and at par 44 that the time spent in preparing the first and second list of documents, excluding time spent by a paralegal, exceeded 40 hours. Having regard to the time spent discovering documents common to all plaintiffs, Mr Eastwood estimated that the time spent on discovery in relation to the Troy action to be 13.5 hours and in respect of Randall, 10.5 hours (par 45).
57 Having given that overview of that affidavit, which is the principal affidavit on behalf of the plaintiffs, and before analysing the same further, it is to be noted that on 25 January 2008 Mr Randall swore a further affidavit in which he gave details of the rate at which he charged his time from time to time.
58 However, he went on to say in relation to the work described in pp 11 to 23 of his affidavit sworn on 24 January 2008 that the majority of the work was done after January 2006 and that the time detailed in respect of that work was indicative only and there were other tasks which had not been included in the work referred to as common work in the getting up of the Troy and Randall matters for trial such as the contacting of additional witnesses and considering response to the defendant's proposed interrogatories.
59 Further before analysing the affidavit of Mr Eastwood of 24 January 2008 I should note that an affidavit was sworn on behalf of the defendants by Jennifer Susanne Keane on 28 February 2008. It is a detailed affidavit. It sets out much of the history of the matter both prior to the cause of action arising and during the course of the proceedings. Without being critical of the affidavit it contains in many places comment, conclusions and arguments and was met by an affidavit sworn by Mr Eastwood on 27 March 2008 which picked up those criticisms and objections. For the reasons which will appear later it is not necessary for me to go into detail in relation to the Keane affidavit nor in relation to the objections.
60 I now revert to the affidavit of Mr Eastwood sworn 24 January 2008 and in particular by reference to the items in respect of which special costs orders are sought.
Getting up case for trial
61 I start by repeating the defendant's position, namely that on the authorities it is incumbent upon the plaintiffs in the materials presented to the Court to show what was done and why it was done (Verdell's case).
(Page 16)
- The defendant notes that there are no printouts or timesheets, just bald statements of the time spent.
62 Much of what was said on behalf of the plaintiffs is a description of work which would be work that would be quite normal to be carried out in a personal injury action. However, it does point to certain aspects of these matters which were unusual. For example, in par 10(a)(ii) Mr Eastwood referred to the circumstances return to work of Troy and Randall which included allegations in relation to representations and assurances given by the defendant to those plaintiffs to induce them to return to work.
63 Mr Eastwood also referred to what again is an unusual circumstance, that is to say that this was not a single incident giving rise to injury to the plaintiffs. In respect of Mr Troy it involved some 86 instances of harassment and, I was told, in respect of Mr Randall, in excess of 20.
64 It was also pointed out that the process of preparation for trial involved considering matters stretching over a period of some 15 years and involving the impact not only upon the plaintiffs but on their families as well.
65 Having dealt with all those matters, as I have noted above, the process of obtaining instructions was said for the Troy action to have exceeded 35 hours and in respect to the Randall action 37 hours. There was no attempt in the affidavit to demonstrate those figures whether by way of timesheets, computer printout or otherwise. It was not apparent to the Court as to how those hours were in fact calculated.
66 Part of the getting up also required the assessment of injuries that were caused to each of the plaintiffs by way of the strike or post-strike harm. That was said to include expert evidence. In order to put that in context the defendant argued that it had only ever been provided with one medical report in respect of each plaintiff. Notwithstanding that, the affidavit detailed a number of medical practitioners consulted in respect to both Troy and Randall. For Troy the number of practitioners was eight and in respect to Randall, 11.
67 The obtaining of expert evidence in relation to injuries sustained in a personal injury action is a standard procedure. It is not apparent from the affidavit that in respect of these matters the obtaining of that evidence was any more difficult or involved than in any other personal injury action.
68 In respect of that assessment of injuries Mr Eastwood said that in respect of each of the Troy and Randall actions the time taken for these
(Page 17)
- tasks exceeded 20 hours. Again there is no material before the Court so as to be able to evaluate that claim.
69 As part of the getting up it was also said that there was the assessment of quantum. That involved obtaining various financial documents and obtaining instructions on them and preparing schedules of damages. Again it is worthy of note that these are all normal steps taken in any personal injury action where there is an economic loss element claimed.
70 It was said in the affidavit that the schedules were complex. There were some unusual features, for example, that the salary of employees of the defendant also included unusual elements of benefit one of which was afforded by the defendant's home ownership scheme. There were also higher rates of superannuation and other benefits. Apart from that, there was nothing in the description given which would suggest that the assessment of damages was out of the ordinary.
71 That is so in respect of the compensatory damages claimed. However, it is to be noted that there was also a claim for exemplary and aggravated damages. That is a matter that is unusual in a personal injury case and only arises in the most rare of circumstances. All that was said in support of the special order is that significant research was undertaken in respect of the application of these heads of damage to both actions. No further information was provided.
72 Having noted these unusual features and that apart from them the assessment is not dissimilar to any assessment in a personal injury action, it was said in the affidavit that the time taken for that assessment in respect of Troy exceeded 24 hours and in respect of Randall 22 hours.
73 Finally in relation to getting up that was unique to Troy and Randall it was said that there were a significant number of documents relating to them which had to be reviewed and in respect of each the time taken was 20 hours. In respect of that and the general claim for hours again there was no way of testing these figures by way of timesheets, printouts or any other material.
74 The common element work was set out in detail and it is not necessary for me to go into it in detail. It was wide-ranging and dealt with the circumstances surrounding the strike and whether or not the industrial action was engineered by the defendants. In par 13 of the substituted statement of claim it is alleged that the defendant wanted to alter the workplace trade union culture at its Pilbara operations. This was
(Page 18)
- described as the "objective". In relation to that there was, according to Mr Eastwood, the examination of a number of documents and court proceedings in the Supreme Court, Full Court and Court of Appeal.
75 It was said in respect of that task that the time taken in respect of each of the Troy and Randall actions exceeded 13 hours. Again I note that there is no further information given so that this figure can be tested.
76 It seems that an employee, Mr Beales, may have been the trigger or the agent for this industrial action occurring. In the affidavit Mr Eastwood said that there had to be consideration of a significant amount of material in relation to Mr Beales and interviews with him. It was said that that task involved for each of Troy and Randall another eight hours. Again there was no material to support that.
77 The affidavit then dealt with the circumstances surrounding the independent workers' return to work and the assurances given by the defendant. A claim in respect of investigating that is made in the amount of two hours and again no further information is provided to support the same.
78 Mr Eastwood then went on to deal with the strike itself and claimed various times for viewing video footage and considering the same, examining notes and proofs of evidence in relation to the strike and files relating to other independent workers. That is broken down but in the aggregate comes to 54.5 hours. It is said that the time taken in respect of those tasks in respect of Troy and Randall exceeded 36 hours. I must assume that that is a reference to them jointly and not individually, noting as I have that the total time spent was 54.5 hours. Again no material is provided as to how this apportionment in respect of Troy and Randall arises out of the total of 54.5 hours.
79 The affidavit then dealt with post-strike harm, but no individual time is given in respect of that work.
80 The affidavit then went on to deal with the preventative and disciplinary measures taken by the defendant against harassment. It described what is called the fair treatment policy of the defendant and proceedings that took place in relation to that. It was said that the exercise included the examination of proceedings brought by the defendant in the West Australian Industrial Relations Commission and examination was necessary of the investigations and outcomes of various dismissals that occurred. It was said that the time taken in respect to the tasks referred to in examining all of this for the Troy action exceeded 30 hours and for
(Page 19)
- Randall, 15 hours. Again no further material is provided by way of support.
81 As part of the claim it was said that the defendant should have taken steps to provide counselling to Troy and Randall. That was said to have involved further work undertaken by the Wasley Centre which prepared a series of reports. It was said that the time taken in respect to that task for both Troy and Randall exceeded 4 hours each.
82 Without doing the mathematical calculation, par 14 of the affidavit then summarised that amount as in respect of the Troy action as exceeding 190 hours and in respect of Randall, 179 hours.
Statement of claim
83 As I have noted previously, it is said that the process of preparing the minute of substituted statement of claim consumed in excess of 50 hours. Detail of what was involved in briefing counsel is set out in the affidavit. I have noted that counsel is said to have spent seven days (56 hours) in respect to the matter. No fee note from counsel has been provided. In par 22 Mr Eastwood estimated that the amount of time spent on the statement of claim and substituted statement of claim exceeded 37 hours for each of Troy and Randall and Chittleborough and Murdoch. It is not explained how that estimate was arrived at having regard to the amount of time said to have been spent by the solicitors and counsel nor is any other material provided to assist in this exercise.
Giving of particulars
84 It was said that the first answers involved detailed consideration of the request and any objections that might be raised and discussing the matters with counsel. It was said the total time taken to draft the first answers exceeded 35 hours including counsel's time. It was said that that time should be split equally among the four plaintiffs giving a total of 8 hours each for Troy and Randall. No further information is provided as to how the amount of 35 hours was arrived at, what part of that was counsel's time, what counsel's fee note reveals or the like.
85 Mr Eastwood deposed that by the time he came to prepare the second set of answers he no longer acted for Chittleborough but acted for Troy, Randall and Murdoch. He said that the task was onerous and resulted in documents of considerable length and that the answers covered some 124 pages. I note that in the Papers for the Judge they are to be found between pp 34 and 161. Without descending into a detailed analysis of those
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- particulars it is probably not surprising that the answer is lengthy given that the number of incidents involving Mr Troy was 86.
86 Mr Eastwood set out what was involved in the task and deposed that he had the assistance of a paralegal and that the total time spent in answering the second answers was 98 hours excluding the time of the paralegal which was another 60 hours. Again no other material was provided to support that claim. Mr Eastwood estimated the time for the Troy action to be 50 hours and the Randall action 30 hours again without giving any detail as to how that apportionment is arrived at.
Discovery
87 Mr Eastwood dealt with discovery by noting the difficulties involved in the discovery and the number of documents involved. He noted that documents were provided to him in boxes that were not in order and were difficult to read. It is debatable whether or not that is a matter which should concern the defendants. However, it is not necessary for me to decide that point.
88 Mr Eastwood obtained the assistance of a paralegal to assist him in the collating, ordering and numbering of the documents.
89 I observe that he claimed that a second list was prepared when additional documents came to light, but I note that this is just a feature of the ongoing obligation in respect of discovery.
90 The defendant noted and argued that in this case the plaintiffs had an advantage over other plaintiffs in other actions. In this case they had had the benefit of the fair treatment proceedings which contained a large number of documents. Those documents were all provided by the defendant to the plaintiffs. It was necessary for the plaintiffs to supplement those documents with their own personal documents, but it was said by the defendant that that was not an unusual number of documents.
91 I have noted that it is said that the time spent preparing these lists exceeded 40 hours and that Mr Eastwood's estimate for the Troy action is 13.5 hours and for Randall 10.5 hours. Again no further material is given to support the total time nor to support the estimate made by Mr Eastwood of the time that ought to be allocated to each of Troy and Randall.
92 There is no doubt that, when taken at face value, the amount of hours set out by Mr Eastwood in respect of each of the items for which he claims a special order would result in the scales being exceeded.
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93 On that basis his Honour the Chief Justice's test as set out in Heartlink, that is "there is a fairly arguable case to be put before a taxing officer to the effect that a bill to be taxed should be taxed out at more than the limit that will be imposed by the cost determination" has been satisfied.
94 Nevertheless, it is not sufficient for a party merely to put forward material in a perfunctory way which might lead to that conclusion. If that was so then in almost every case, even with a paucity of evidence, a party would be able to successfully argue for a special order. I cannot think that that is what the Chief Justice envisaged when considering these matters and in particular, in O'Rourke, where he referred to there being a robust approach.
95 It is clear from what the Chief Justice had to say that there need not be a very detailed examination of the work carried out by the practitioners. Put another way, as her Honour in Verdell said there was no need to examine the material line by line. On my reading of the cases the difference that arises between the approach taken by the Chief Justice and by her Honour Wheeler J is that in the Chief Justice's "robust" approach it may not be necessary to give consideration as to why a particular piece of work has been carried out. As I read the Chief Justice's reasoning that sort of level of inquiry is one reserved for the taxing officer. All that is required according to the Chief Justice is that there be an arguable case to the effect that the limits imposed by the scale would be inadequate. With respect, I agree.
96 Nevertheless, that robust approach does not descend to the level where the discretion of the Court to make a special order can be excited in the absence of proper evidence as to the amount of work done.
97 In the present case Mr Eastwood has given estimates of the time taken for each of these plaintiffs in respect of various aspects of work and also has given estimates of how much of the common work should be attributed to each of these plaintiffs. In dealing with the matter in this way he arrives at his final conclusions to lead to the proposition that a special order should be made.
98 With respect, that is not sufficient. There is a good deal of evidence as to what work was carried out. However, as I have noted elsewhere in these reasons there is no evidence before the Court to back up the times said to have been taken.
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99 In Heartlink the solicitor for the liquidator also made an estimate as to what proportion of time had been spent on the matter in hand. That apparently was acceptable to his Honour the Chief Justice. However, that estimate was an estimate that was applied to time recorded in the matter, details of which were provided to the Court.
100 In the present case I do not have the benefit of any such evidence.
101 Not only do I not have the benefit of any evidence as to the number of hours spent on these matters, but I have no evidence as to how it is that Mr Eastwood comes to the estimates that he does and the attribution to each plaintiff.
102 The Court is being asked to exercise a discretion. In doing so the Court must act judicially and can only act upon proper material being presented to it. In my view the current materials before the Court fall short of what is required for the discretion to be exercised.
103 In the circumstances I find that there is insufficient evidence before the Court to demonstrate a "fairly arguable case" that the bill should be taxed out at more than the limits set out in the scale.
104 Having made those findings it is not necessary for me to go on to consider whether the determination is inadequate because of the unusual difficulty, complexity or importance of the matter. Nevertheless, these matters have been canvassed by the parties and it is appropriate that I make short reference to this aspect.
105 This aspect only arises if the first part of the equation is made out (see par 11 of Heartlink).
106 Elsewhere in these reasons I have commented upon the proceedings and the action itself. The actions were claims for personal injuries arising out of, inter alia, breach of contract or breach of duty of care. At that point there was nothing particularly unusual about the actions nor about the injuries or damage sustained by the parties. However, there were unusual features of the case. For a start the circumstances, namely the strike and the crossing of the picket lines which gave rise to the occurrences leading to the damage sustained, were unusual. Secondly, it was unusual that the parties should suffer their damage not by single incidents but by multiple incidents and in the case of Mr Troy of a very great number.
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107 I am not persuaded that the claim for exemplary or aggravated damages added any significant dimension to the case and there is a paucity of explanation in relation to this aspect of the claim in the affidavit of Mr Eastwood.
108 Nevertheless considering the matter in the light of the way in which the Chief Justice expressed himself in Heartlink I am satisfied that had the plaintiffs been able to get over the first hurdle of an application under s 215(2) of the Act I would have been satisfied the inadequacy that would have arisen would have been because of the unusual difficulty, complexity or importance of the matter.
Conclusion
109 In the circumstances the plaintiffs' applications herein should be dismissed.
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