Re City of Joondalup; Ex parte Mullaloo Progress Association Inc
[2003] WASCA 293 (S)
•28 NOVEMBER 2003
RE CITY OF JOONDALUP; EX PARTE MULLALOO PROGRESS ASSOCIATION INC [2003] WASCA 293 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 293 (S) | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:1285/2003 | 15 OCTOBER, 14 NOVEMBER 2003 & 9 & 25 MARCH 2004 | |
| Coram: | PULLIN J | 28/11/03 | |
| 25/03/04 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | MULLALOO PROGRESS ASSOCIATION INC THE CITY OF JOONDALUP RENNET PTY LTD |
Catchwords: | Practice and procedure Special costs order Extension of time |
Legislation: | Nil |
Case References: | Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271 Collins v Westralian Sands Ltd (1993) 9 WAR 56 Geneva Finance Ltd v Resource & Industry Ltd [2002] WASC 121 Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1994) 13 WAR 242 Snowtop Mushrooms v Powley, unreported, FCt SCt of WA; Library No 4501; 14 May 1982 Briggs v Glentham Pty Ltd, unreported; FCt SCt of WA; Library No 930223; 21 April 1993 McConnell v Nationwide News Pty Ltd, unreported; SCt of WA (Owen J); Library No 920670; 10 December 1992 Schmidt v Gilmour [1988] WAR 219 Tenbohmer v Eden (1992) 6 WAR 366 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 25 MARCH 2004 FILE NO/S : CIV 1285 of 2003 EX PARTE
MULLALOO PROGRESS ASSOCIATION INC
Applicant
AND
THE CITY OF JOONDALUP
First Respondent
RENNET PTY LTD
Second Respondent
Catchwords:
Practice and procedure - Special costs order - Extension of time
(Page 2)
Legislation:
Nil
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant : In person
First Respondent : Ms M L Coulson
Second Respondent : No appearance
Solicitors:
Applicant : In person
First Respondent : Watts & Woodhouse
Second Respondent : Hardy Bowen
Case(s) referred to in judgment(s):
Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Geneva Finance Ltd v Resource & Industry Ltd [2002] WASC 121
Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1994) 13 WAR 242
Snowtop Mushrooms v Powley, unreported, FCt SCt of WA; Library No 4501; 14 May 1982
(Page 3)
Case(s) also cited:
Briggs v Glentham Pty Ltd, unreported; FCt SCt of WA; Library No 930223; 21 April 1993
McConnell v Nationwide News Pty Ltd, unreported; SCt of WA (Owen J); Library No 920670; 10 December 1992
Schmidt v Gilmour [1988] WAR 219
Tenbohmer v Eden (1992) 6 WAR 366
(Page 4)
1 PULLIN J: This is an application by the first respondent, seeking a special costs order pursuant to O 66 r 12. The parties agreed that I should decide this application. The application is one which the rules say should be brought within 30 days after judgment has been handed down. This appears from O 66 r 51(2), which reads:
"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."
2 The Court has the power to extend time pursuant to O 3 r 5, even though the application for extension is not made until after the expiration of time for taking some step under the rules.
3 Geneva Finance Ltd v Resource & Industry Ltd [2002] WASC 121 and Snowtop Mushrooms v Powley, unreported, FCt SCt of WA; Library No 4501; 14 May 1982 are two authorities relating to applications of this kind. Both reveal that extensions of time may be granted in the present circumstances. Each case, of course, must turn on its own facts. Here it is clear that the failure to ask for a special costs order was as a result of the oversight on the part of the first respondent's solicitor. The failure to apply for the costs order sought in the Snowtop Mushroom's case was for that same reason, and an extension was granted.
4 Prime facie, the time limits laid down in the rules must be complied with. If an extension is to granted, then the discretion of the court will be exercised after taking into account a number of factors. The merits of the application is a relevant factor, the extent of the delay is relevant, and so is prejudice which might be said to be suffered if an extension be granted.
5 In relation to the extent of the delay, it is not great, given that the delay occurred over the Court vacation period. This application was made on 3 February 2004. The judgment was handed down on 28 November 2003, so the time for bringing the application in accordance with O 66 r 51 would have expired towards the end of December 2003. Taking into account the Court vacation period, the delay is not so great as to disqualify the first respondent's application.
6 There has not been any material put before me that indicates that there is any prejudice to the applicant, other than the applicant's concern about the possibility of a special costs order being made.
(Page 5)
7 At this point, I should turn to deal with the merits of the application for a special costs order because that is relevant in deciding whether or not to grant an extension of time.
8 The court may order that the scale limits be removed: see Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1994) 13 WAR 242. Factors which have to be taken into account when deciding whether or not to make such an order were set out in Collins v Westralian Sands Ltd (1993) 9 WAR 56 at 67. Factors which are relevant are whether additional work has been done, whether work was necessarily or reasonably done, whether the fees proposed were reasonable, and whether an inadequacy exists in the scale. It is also relevant to take into account the principle that a successful party should recover costs reasonably and properly incurred.
9 The evidence here reveals that a substantial amount of work was done and it exceeded what would normally be done in the conduct of litigation of this kind. The amount of time that would normally be spent is revealed by the scale of costs in the determination which applies in this case. It is clear from the evidence that the work done has well and truly exceeded the amount that would be done in an ordinary case. The other grounds put forward for a special costs order are the usual complexity of the case and the importance of the case. The mere fact that a substantial amount of work is done, is a good or sufficient reason to make the order.
10 The case was complex and, speaking as member of the court involved in mastering the issues in the case, I can agree that it was a case which had complexity beyond the ordinary case that might come before the court on prerogative writ proceedings. The case did attract a deal of public interest, although I accept the applicant's submissions that the extent of the publicity was not as great as the first respondent suggests in the affidavits. Taking into account what the applicant has put forward, it is clear enough that there were a considerable number of newspaper articles, probably 20-odd articles, concerning the development. This is evidence of the extent of public interest.
11 It is submitted by the applicant that the solicitors involved in this case had a considerable knowledge about the proceedings because of their involvement in other matters concerning the development. The applicant submits that they were involved in relation to proceedings in the Liquor Licensing Court, proceedings before the Minister, and in other related matters, which meant (so the applicant submits) that the solicitors became familiar with the history of the development. While that may be true, they
(Page 6)
- are points which would be considered on taxation of costs, and it would be a matter for the taxing officer to decide whether or not costs were unreasonably incurred or were unreasonable in amount.
12 A point is also raised by the applicant that the solicitors have a costs agreement with the first respondent. In my view, it is not relevant to this application, but it may be relevant in relation to taxation because in Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271 at 284, the Chief Justice said this:
"It is always possible that a party may have entered into a costs agreement with his solicitor which would provide for a lesser fee than that which would be allowed on taxation. If such an agreement was in existence, I consider that the solicitor for the party would be bound to disclose it in the taxation in the event that the amount of the bill as taxed exceeded the amount agreed. Failure to do so would amount to unprofessional conduct."
13 So the fact that the applicant raises the existence of a costs agreement between the first respondent and the solicitors acting for them in this case, is not a matter which would bear on whether or not I make the special costs order. It is a matter which may be relevant in relation to taxation; that would be a matter for the solicitors to consider.
14 So as a result of taking into account all of the submissions made by both parties, I am satisfied that a special costs order should be made. Because I consider that the merits warrant such a costs order being made, that is a relevant consideration also in relation to the exercise of the discretion to extend time. Taking into account the other factors that I mentioned and the fact that the application has merit, I would extend the time for the making of the application and make the orders which have been sought by the first respondent.
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