Rayney v Pan Macmillan Australia Pty Ltd
[2014] WASC 129 (S)
•2 MAY 2014
RAYNEY -v- PAN MACMILLAN AUSTRALIA PTY LTD [2014] WASC 129 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 129 (S) | |
| 02/05/2014 | |||
| Case No: | CIV:1587/2010 | 16 APRIL 2014 | |
| Coram: | EDELMAN J | 16/04/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for special costs orders dismissed | ||
| B | |||
| PDF Version |
| Parties: | LLOYD PATRICK RAYNEY PAN MACMILLAN AUSTRALIA PTY LTD MALCOLM CRAIG BROWN ESTELLE BLACKBURN |
Catchwords: | Practice and procedure Costs Application for special costs orders Whether special costs orders should be made Whether costs should be fixed |
Legislation: | Legal Practitioners Supreme Court (Contentious Business) Determination 2012 (WA) Legal Profession Act 2008 (WA) |
Case References: | Atwell v Roberts [2013] WASCA 37 (S) Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 Brookvista Pty Ltd v Meloni [2009] WASCA 180 Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 11] [2013] WASC 92 Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
PAN MACMILLAN AUSTRALIA PTY LTD
First Defendant
MALCOLM CRAIG BROWN
Second Defendant
ESTELLE BLACKBURN
Third Defendant
Catchwords:
Practice and procedure - Costs - Application for special costs orders - Whether special costs orders should be made - Whether costs should be fixed
Legislation:
Legal Practitioners Supreme Court (Contentious Business) Determination 2012 (WA)
Legal Profession Act 2008 (WA)
Result:
Application for special costs orders dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr M L Bennett
First Defendant : Ms C Galati
Second Defendant : Ms C Galati
Third Defendant : Ms C Galati
Solicitors:
Plaintiff : Bennett & Co
First Defendant : Ms C Galati
Second Defendant : Ms C Galati
Third Defendant : Ms C Galati
Cases referred to in judgment:
Atwell v Roberts [2013] WASCA 37 (S)
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Brookvista Pty Ltd v Meloni [2009] WASCA 180
Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 11] [2013] WASC 92
Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2)
- EDELMAN J:
(The following judgment was delivered orally and has been edited for grammar, syntax and citations).
1 This is an application by Mr Rayney for special costs orders. The costs orders sought are in relation to the defendants' unsuccessful application to strike out par 7 of Mr Rayney's statement of claim. Mr Rayney applies to remove the limits imposed by the Supreme Court Scale of Costs 2012 for the purposes of the taxation of his costs of the strike out application. The defendants seek to have the costs fixed.
2 Section 280(2) of the Legal Profession Act 2008 (WA) relevantly provides:
[I]f 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.
3 The relevant costs determination, or Scale, for the purpose of this application is the Supreme Court Scale of Costs 2012, which is Table B to the Schedule of the Legal Practitioners Supreme Court (Contentious Business) Determination 2012 (WA).
4 In Pourzand v Telstra Corporation Ltd,1 I summarised the principles to apply in relation to that scale to matters concerning lifting the Scale.
9. ... before a discretion can be exercised to make a special costs order, the court must be of the opinion:
(1) the Scale item is inadequate, and
(2) the inadequacy arises because of the unusual difficulty, or complexity, or importance of the matter: Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [11] (Martin CJ).
10. These questions are to be addressed as matters of impression rather than detailed evaluation: EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) [7] (Martin CJ). Courts should draw from their experience and act on impressions gained during the litigation to take into account the issues which have been involved, albeit without attempting to make an estimate of the time which is thought to be appropriate when the information for that assessment is not all available: Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S) [43] (Pullin J).
11. As to (1) (inadequacy of the Scale item), the inadequacy will be demonstrated if 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 that would be imposed by the relevant costs determination: Heartlink Ltd [16] (Martin CJ).
12. A conclusion that it is fairly arguable that the taxing officer might properly allow costs at an amount greater than the amount allowable under the Scale does not always require evidence of the costs actually incurred: Frigger v Lean [2012] WASCA 66 [81] (Allanson J; Newnes & Murphy JJA agreeing).
13. As to (2) (inadequacy arising due to the unusual difficulty, complexity, or importance of the matter), the adjective 'unusual' qualifies only the 'difficulty' of the matter, not its complexity or importance: see, in relation to the identical terms of the predecessor to s 280(2): Heartlink Ltd [17] (Martin CJ); Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S) [33] (Simmonds J); SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2) [102] - [106] (Roberts-Smith J).
14. Finally, although replacing the amount of the Scale item with a different ceiling may be appropriate where sufficient information exists to make that assessment, it is not uncommon for an order to be made removing the limit for the Scale item without replacing that limit with a different ceiling: EDWF Holdings [8] - [9], [13] (Martin CJ). When the Scale ceiling is lifted a taxing officer is otherwise unconstrained and need not allow costs above the previous Scale ceiling.
5 Counsel for Mr Rayney submitted that the Scale was inadequate for a number of reasons.
(i) The submissions encompassed, respectively, 16 and 23 pages.
(ii) An affidavit was sworn by Ms Galati, which is unusual in strike out proceedings.
(iii) The submissions involved 21 pages within a 300 page book.
(iv) The hearing took 2.5 hours.
(v) My judgment 'gave consideration to a variety of factors' such as inferences that were to be taken into account, and the significance of the 'general impression of the chapter'.
(vi) A number of ancillary objections that were taken by the defendants.
6 I accept these points although not the conclusion of inadequacy. The following four matters should be added.
7 First, although the submissions were 16 and 23 pages, a significant part of both sets of submissions was concerned with uncontroversial principles in relation to strike out applications or defamation law, or with references to extracts from the relevant chapter upon which each party relied.
8 Secondly, the affidavit sworn by Ms Galati was only six paragraphs long. It contained annexures which were the front cover of the book in issue, the contents, the introduction, and the relevant chapter.
9 Thirdly, the submissions did not cover the totality of the 21 chapters in the 300 page book in the sense of canvassing all of the content of all of those chapters. They focused heavily upon the single 20 page chapter, the photographs in the book, the contents page, and the introduction to the book.
10 Fourthly, although a determination of inadequacy does not always require a bill of costs, it is unusual for an application for special costs orders to be made without any reference or quantification of likely costs.2In this case no affidavit was filed by Mr Rayney or his solicitors annexing any bill of costs.
11 I indicated to counsel for Mr Rayney that this was a significant impairment in my ability to lift or remove the limits in the Scale. However, I also said that my impression in all the circumstances, including the hearing time of 2.5 hours, is that the Scale limit (which provides for a hearing in chambers of one day and preparation for that hearing of up to two days to a combined amount of $10,560) did not appear to me to be inadequate. My broad impression was that the limit ought to be adequate. In those circumstances, counsel understandably did not seek to provide an affidavit annexing a draft bill of costs.
12 In the circumstances I have described, and as a matter of general impression, I do not consider that the costs determination in item 10 of the Scale is inadequate.
13 It is therefore unnecessary to consider whether any inadequacy was due to the fact the matter was of unusual difficulty, complexity, or importance. It suffices to observe that this matter assumed substantial importance to the parties. The defendants also brought counsel from another state to argue the application. 'Importance' in s 280(2) encompasses importance to the parties; it does not require broader importance to the public or a section of the public.3
14 The defendants sought an order fixing the amount of costs. The Supreme Court Practice Direction 4.7.1.1 provides a schedule of standard costs orders for interlocutory applications. Item 2.4 of this schedule fixes costs for special appointments at $1,892 plus $583 per extra hour of hearing time. Counsel for Mr Rayney suggested that this would be an amount of approximately $3,000.
15 It is open to me to fix costs according to this schedule. However, for the same reasons that I have given in relation to the lifting of the Scale limit, including non-standard elements of the application and the absence of any draft bill of costs, it does not appear to me that I am capable, even on a broad brush approach, of ascertaining an amount which would be sufficiently logical, fair and reasonable,4 or to be confident to arrive at an appropriate sum, based upon sufficient material, within the range of zero to $10,560.5
16 For these reasons, the appropriate order should be that the defendants pay the plaintiff's costs of the strike out application to be taxed if not agreed.
1Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2) [9] - [14].
2Atwell v Roberts [2013] WASCA 37 (S) [23] (the Court).
3Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [17] - [19] (Martin CJ).
4Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, 123 (von Doussa J); Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 11] [2013] WASC 92 [24].
5 See Brookvista Pty Ltd v Meloni [2009] WASCA 180 [27] (Newnes JA); Harrison v Schipp[2002] NSWCA 213; (2002) 54 NSWLR 738, 743 [22] (Giles JA).
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