Russell v Lee [No 2]
[2018] WASC 246
•16 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RUSSELL -v- LEE [No 2] [2018] WASC 246
CORAM: TOTTLE J
HEARD: ON THE PAPERS
DELIVERED : 16 AUGUST 2018
FILE NO/S: CIV 2952 of 2017
BETWEEN: SHANA FRANCINNE RUSSELL
First Plaintiff
NERIDA JAYNE PUANGKHAM
Second Plaintiff
AND
FAY EILEEN LEE
First Defendant
JOHN ANTHONY CAMPBELL LEE
Second Defendant
AUSTRALIAN EXECUTOR TRUSTEES LTD AS TRUSTEE OF THE ESTATE OF THE LATE RONALD WILLIAM LEE
Third Defendant
Catchwords:
Practice and procedure - Costs - Indemnity costs - Where plaintiffs allege conduct of defendant improper - Where plaintiffs allege defendants' action hopeless - Whether first defendant acted unreasonably in opposing plaintiffs' action
Practice and procedure - Costs - Special costs - Where plaintiffs argue usual orders would be inadequate - Whether fairly arguable that allowance inadequate - Whether inadequacy due to unusual difficulty, complexity or importance of matter
Legislation:
Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA)
Legal Profession Act 2008 (WA), s 280
Result:
Application successful
First defendant to pay plaintiffs' costs to be taxed
Special costs order made
Category: B
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | Bennett + Co |
| Second Plaintiff | : | Bennett + Co |
| First Defendant | : | Cullen Macleod |
| Second Defendant | : | Croftbridge |
| Third Defendant | : | Jackson McDonald |
Case(s) referred to in decision(s):
Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Russell v Lee [2017] WASC 361
Sino Iron Pty Ltd v Minerology Pty Ltd [No 2] [2017] WASCA 76 (S)
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Tey v Optima Financial Group Pty Ltd [2012] WASCA 192
TOTTLE J:
Introduction
These reasons concern costs issues left unresolved by consent orders made on 4 April 2018 that disposed of the substantive issues in this action. The plaintiffs have applied for orders that the first and second defendants pay their costs on an indemnity basis, in the alternative, they seek a special costs order.
The action concerned the estate of the plaintiffs' late father, Mr Ronald William Lee (the deceased). The first defendant is the deceased's widow and the mother of the plaintiffs, and the second defendant is the deceased's son and the plaintiffs' brother. The circumstances that gave rise to the action are explained in more detail in my reasons for making orders on 21 November 2017 appointing the third defendant as the interim administrator of the deceased's estate and understanding those circumstances is essential to understanding these reasons.[1]
[1] Russell v Lee [2017] WASC 361 [5] - [23].
In the writ of summons the plaintiffs sought various forms of relief for the purposes of ensuring that:
(a)the first defendant did not obtain a grant of probate in respect of the deceased's estate (the Estate);
(b)a grant of letters of administration with the will annexed was made in favour of the third defendant.
The plaintiffs also sought permanent injunctions restraining the first and second defendants from holding themselves out as authorised representatives of the Estate.
In accordance with the orders made on 4 April 2018 I declared that, pursuant to s 36 of the Administration Act 1903 (WA), the first defendant was not willing to take a grant of probate or grant of letters of administration with the will annexed in respect of the deceased's estate and I directed that a grant of letters of administration (with the will annexed) in solemn form be made to the third defendant. I also made a number of ancillary orders that are not relevant to the present application. No injunctive relief was granted.
The plaintiffs characterise the first and second defendants' consent to the orders of 4 April 2018 as a 'capitulation' by them and submit that the action was only necessary because of the defendants' unreasonable and improper conduct and thus they are entitled to indemnity costs. The special costs order is sought under s 280(2) of the Legal Profession Act 2008 (WA) (the Act). The plaintiffs seek an order that the first and second defendants pay their costs on a party and party basis without reference to the limits provided for in items 1(c), 11(a)(3), 25(b) and 17 of the Legal Profession (Supreme Court) Contentious Business Determination 2016 (WA) (the Determination).
The plaintiffs rely on an affidavit sworn on 17 November 2017 by Ms Amy Rumble in support of the application for the appointment of an interim administrator and an affidavit affirmed on 8 May 2018 by Mr Hague Skinner. Ms Rumble and Mr Skinner are legal practitioners employed by the plaintiffs' solicitors.
Written submissions were relied upon by each party.
The issues
The issues are:
(a)In the absence of a determination on the merits is it appropriate to make any order for costs?
(b)If it is appropriate to make an order for costs in the plaintiffs' favour should an order be made against the second defendant?
(c)Has there been any conduct on the part of either the first defendant or the second defendant that justifies an indemnity costs order?
(d)Is the discretion to make an order under s 280(2) of the Legal Profession Act enlivened and, if so, should one or more of the orders stipulated in s 280(2) be made?
Litigation chronology
The chronology is as follows:
(a)6 November 2017 - the plaintiffs' solicitors sent a letter to the first and second defendants and, amongst other things, gave notice that the plaintiffs objected to the first defendant making an application for a grant of probate in relation to the deceased's will and that proceedings would be commenced if the first defendant proposed to apply for such a grant.
(b)16 November 2017 - the plaintiffs issued their writ of summons.
(c)17 November 2017 - the plaintiffs filed a chamber summons seeking orders for the revocation of the grant of letters of administration to the third defendant and for the appointment of the third defendant as interim administrator pending the outcome of the action.
(d)17 November 2017 - the second defendant sent an email to the plaintiffs' solicitors giving notice that an application for the grant of probate to the first defendant would be lodged 'on Monday'.
(e)21 November 2017 - the plaintiffs' chamber summons was heard and the orders sought by the plaintiffs were made.
(f)8 December 2017 - the plaintiffs filed and served their statement of claim.
(g)21 December 2017 - Cullen Macleod filed and served a notice of acting on behalf of the first defendant.
(h)21 December 2017 - Croftbridge filed and served a notice of acting on behalf of the second defendant.
(i)18 January 2018 - on the basis of discussions between the parties the plaintiffs' solicitors ceased their preparations for trial and commenced discussions regarding the appropriate final form of orders giving effect to the relief sought by the plaintiffs.
Should any costs order be made?
The general rule in civil litigation is that costs follow the event, that is, the successful party is entitled to recover its costs.[2] The general rule does not apply where there has been no determination on the merits because there has been no 'event' and, except in unusual cases, it is not possible to say that one party has been successful and the other unsuccessful. Orders made by consent may or may not demonstrate capitulation by one or other party.[3]
[2] Rules of the Supreme Court1971 (WA) O 66 r 1 (RSC).
[3] Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 [2] (Basten JA).
In Minister for Immigration and Ethnic Affairs; ex parte Lai Qin McHugh J summarised the principles governing an application for costs in a case which had been resolved without a hearing on the merits. His Honour stated:[4]
In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.
In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans.
Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in The South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare.
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases. (citations omitted)
[4] Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624.
In approaching this issue I remind myself that the facts on which the plaintiffs' case is based have not been resolved in their favour. In this case particular caution is required not to assume that the substantive action would have been resolved in the plaintiffs' favour simply on the basis that the plaintiffs' application for the appointment of an interim administrator was successful. It is important to bear in mind that the application for the appointment of an interim administrator was brought before the court on an urgent basis. The first and second defendants were not represented and they adduced no evidence.
In this case, however, there are two objective facts that lead me to conclude the plaintiffs were almost certain to have succeeded if the action had proceeded to trial and that, thus, this is one of the rare cases in which an order for costs should be made even though there has been no determination of the merits. The first such fact is that earlier proceedings (the Estate proceedings) - the background to which is set out in my reasons for appointing the third defendant as interim administrator[5] - had been compromised on terms that included the making by consent of a declaration that:
[P]ursuant to section 25 of the Administration Act 1903, and the failure of the Defendants to respond to the citations issued by the Plaintiffs, there is no person entitled in distribution to the estate of Ronald William Lee, late of 214 Marine Parade Cottesloe in the State of Western Australia (Estate), resident within the jurisdiction and fit to be so entrusted who has applied for or who, when duly cited, appeared and applied for, administration of the Estate.
[5] Russell v Lee [2017] WASC 361.
The second objective fact is that pursuant to a grant of letters of administration in its favour on 28 August 2017, the third defendant had started to administer the Estate.
The declaration in the Estate proceedings was made after the first defendant had withdrawn her defence 'without admission' and after she had decided not to pursue her counterclaim for orders that she should be appointed to administer the Estate. The reasons given by the first defendant's solicitors for the first defendant's willingness to withdraw her defence and not press her counterclaim were the probable cost of the Estate proceedings and a deterioration in the first defendant's health.
In my view, in the light of the declaration made in the Estate proceedings and the fact that the third defendant had started to administer the Estate, it would have been extremely difficult for the first defendant to contend that she should be granted probate of the deceased's will and for her defence to have succeeded on the critical issue of who should administer the Estate. It is true that the first defendant withdrew her defence 'without admission' and consented to the declaration, on her account, before she knew about the existence of the deceased's will by which he appointed her executrix. In my assessment, however, given that the deceased did not include any testamentary dispositions in the will, with the result that the Estate is to be administered in accordance with the intestacy provisions of the Administration Act 1903 (WA), the fact of the late discovery of the will is not a matter that would have improved the first defendant's prospects of success in the action.
In the first defendant's written submissions it was contended that the plaintiffs' proceedings were commenced unnecessarily because they were based on the unsubstantiated assumption that the first defendant intended to apply for a grant of probate in her favour. Contrary to this contention the evidence supports the assumption made by the plaintiffs that the first defendant intended to apply for a grant of probate in respect of the deceased's will. As referred to in the chronology, on 17 November 2017 the second defendant sent an email to the plaintiffs' solicitors in which he stated 'the application for probate has begun … The application will be lodged on Monday'.
The first defendant also contends that the plaintiffs' action was unnecessary because they should have articulated their concerns by using the liberty to apply provision in the orders made in the Estate proceedings. The plaintiffs respond to this contention by arguing that the liberty to apply provision was intended to enable the parties to return to the court for further orders in the event that there was difficulty in obtaining a grant of letters of administration in accordance with those orders. The plaintiffs argue the liberty to apply provision was not intended to cater for a situation in which the first defendant relied on the deceased's will to obtain a grant of probate in her favour. I accept the plaintiffs' submission that it was not open to them to use the liberty to apply provision to resolve the issue raised by the first defendant's reliance on the will. The purpose of the liberty to apply provision was to enable further orders or directions to be made to give effect to the substantive orders made by the court in the Estate proceedings if required. It was not a procedural mechanism for dealing with the new factual situation brought about by the discovery of the will.
In my view, the plaintiffs were justified in commencing the action. It was clear that the first defendant intended to apply for a grant of probate to be made to her and to take steps to administer the Estate unless the plaintiffs commenced the action. Proceedings were only commenced after appropriate notice was given to the first and second defendants. In the light of my conclusion that the plaintiffs were almost certain to succeed in the action, I am satisfied that there should be an order for costs in their favour.
Should an order for costs be made against the second defendant?
The second defendant's primary position was that no costs order should be made because there had been no determination on the merits. He raised the further contention that he was not a necessary party to the action or to the extent to which there was an argument that he might be considered a necessary party, that could only have be so because the plaintiffs sought a permanent injunction against him. He points out that the consent order did not provide for any form of injunctive relief. He argues that as between the plaintiffs and him, he should be regarded as the successful party.
I accept the plaintiffs' submission that the second defendant was a necessary party to the action because he was a beneficiary who had standing to be heard about any dispute concerning the independent administration of the Estate.
The second defendant appeared at the hearing of the plaintiffs' application for the appointment of the third defendant as interim administrator and made submissions to the effect that the first defendant should be permitted to administer the Estate as that was the deceased's wish as recorded in the will. He also advanced criticisms of the manner in which the third defendant had dealt with various matters in the course of administering the Estate.
The primary relief sought by the plaintiffs in this action was directed to the first defendant and to her rights as the executrix named in the will. It is true that the second defendant supported the first defendant's position at the interlocutory hearing on 21 November 2017 and that he did not file a notice of intention to abide by the outcome of the action as it was open for him to do. In the circumstances of this case, however, I do not consider that those matters warrant the making of an adverse costs order against him.
The only defendant against whom an order for costs will be made is the first defendant.
Does the first defendant's conduct justify an indemnity costs order?
The principles governing an application for indemnity costs are well‑established. They were summarised by Pullin JA and Kenneth Martin J in Swansdale Pty Ltd v Whitcrest Pty Ltd.[6] In addition to the principles summarised in Swansdale, it has been held that, whilst litigants in person do not stand in a special position in relation to applications for indemnity costs, conduct on their part which might otherwise justify an indemnity costs order may be looked at in a different light when account is taken of their lack of legal expertise.[7]
[6] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10].
[7] Tey v Optima Financial Group Pty Ltd [2012] WASCA 192 [16].
In summary, the submission made by the plaintiffs in support of the application for indemnity costs is that the first and second defendants' opposition to the plaintiffs' case was hopeless and it was unreasonable for them to oppose the application for the appointment of an interim administrator. By failing to concede the plaintiffs' case at an earlier date, the plaintiffs argue the first and second defendants persisted with a hopeless case thereby increasing the plaintiffs' costs burden.
My view that the plaintiffs would almost certainly have succeeded in their action does not necessarily mean that the first defendant's position was 'hopeless' and that she should have acceded immediately to the making of the orders sought by the plaintiffs. Looked at in isolation, the will conferred a right on the first defendant to apply for a grant of probate. On any view, the existence of the will necessitated the revocation of the grant of letters of administration made in favour of the third defendant on 28 August 2017. The revocation of the letters of administration re-opened the question of who should administer the Estate. As noted earlier, the first and second defendants had criticisms of the manner in which the third defendant had administered the Estate between August and November 2017. It was not unreasonable for the first defendant as a litigant in person to consider that the discovery of the will was a new factor which might persuade the court to make a grant of probate in her favour. It was also not unreasonable for the first defendant to consider that her criticisms of the third defendant's administration of the Estate might strengthen her prospects of obtaining a grant of probate or, at the least, constitute grounds for resisting the appointment of the third defendant as the interim administrator.
The authorities make it clear that I must exercise caution in considering the question of whether the first defendant persisted in a hopeless case. With that in mind, I conclude the first defendant did not conduct herself in a manner that warrants the censure of the court by awarding indemnity costs against her.
Should the special costs orders sought by the plaintiffs be made?
Sections 280(1) and (2) of the Act provide:
280. Effect of costs determination
(1)Subject to any costs agreement made in accordance with Division 6 or the corresponding provision of a corresponding law, section 306 and the Legal Aid Commission Act 1976 section 14 -
(a)the taxation of bills of law practices; and
(b)any other aspect of the costs charged by law practices,
is regulated by an applicable costs determination.
(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 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.
The correct approach to applications for special costs orders was outlined in Sino Iron Pty Ltd v Minerology Pty Ltd [No 2]:[8]
First, the court must form the view that the maximum amount allowable under the relevant scale item is inadequate in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount which is greater than the limit which would be imposed by the relevant cost determination. Secondly, the court must also form the opinion that the inadequacy of the costs allowable under a costs determination arises because of the 'unusual difficulty, complexity or importance of the matter'.
Mr Skinner's evidence
[8] Sino Iron Pty Ltd v Minerology Pty Ltd [No 2] [2017] WASCA 76 (S) [12].
Mr Skinner attached to his affidavit copies of the legal costs agreement between the plaintiffs and their solicitors. The agreement provides for the plaintiffs' solicitors to charge for their services on a 'time cost' basis in accordance with maximum hourly rates stipulated in it. The relevant maximum hourly rate for the senior practitioner and principal of the plaintiffs' solicitors who had carriage of the action was $742.50 inclusive of GST. That hourly rate is approximately 53% higher than the maximum hourly rate for senior practitioners stipulated in Table A of the Determination, $484 inclusive of GST. Mr Skinner deposed that the 'plaintiffs' actual costs of and incidental to the proceedings' amounted to approximately $100,000. Mr Skinner deposed that he had not conducted a detailed review of the plaintiffs' legal costs or prepared a draft bill but his evidence was to the effect that the plaintiffs' costs could be apportioned between the various items of work as follows:
(a)preparation for and attendance on the application for the appointment of the third defendant as interim administrator - $39,000;
(b)preparation of the statement of claim - $19,000;
(c)getting up - $5,000;
(d)preparation of the final form of orders and conferral with the defendant's solicitors regarding the same - $37,000.
Mr Skinner deposed that he was admitted as a legal practitioner in November 2015 and that he believed the usual orders awarding party and party costs by reference to the Determination would be inadequate to compensate the plaintiffs.
Bald statements about the amount of costs incurred by the plaintiffs on various aspects of the litigation without some analysis and explanation are of limited value on an application such as this.
As I have set out above, the plaintiffs seek increases in the hourly rates and limits imposed for particular items in Table B of the Determination. It is convenient to consider each item in turn.
Statement of claim - item 1(c)
The amount allowed under item 1(c) of the Determination is $4,840. This allows for a senior practitioner to spend 10 hours preparing a statement of claim. As noted earlier, Mr Skinner deposes that time costs of $19,000 were incurred in preparing the statement of claim.
Is it fairly arguable that the allowance for the statement of claim is inadequate?
The statement of claim pleads:
(a)the involved history of the relationship between the parties for the purposes of establishing why the first defendant would have conflicts of interest if she had carriage of the administration of the Estate;
(b)the conduct of the first defendant upon which the plaintiffs relied to establish an estoppel against the first defendant, alternatively, to establish that the first defendant had renounced her right to apply for probate; and
(c)the facts upon which the plaintiffs relied to establish that the first defendant was not competent to undertake the administration of the Estate.
The plaintiffs' claims arise in unusual circumstances and the statement of claim is not a 'run of the mill' or routine pleading. It is evident from the contents of statement of claim that considerable care and attention was required to plead the claims adequately and concisely. On the basis of my review of the statement of claim, I am satisfied that there is a fairly arguable case that the maximum of $4,840 allowed under item 1(c) will be an inadequate allowance for the work completed.
Is the inadequacy due to the unusual difficulty, complexity or importance of the matter?
I am satisfied that the inadequacy of item 1(c) arises because of the complexity of the matter and separately because of its importance or significance for the plaintiffs. The complexity arises by reason of the involved history of the relationship between the parties and the considerable history of litigation between them and the relevance of those facts to the issues in the case. The importance of the matter for the plaintiffs is largely self-evident. The action concerned who was to administer the Estate that the first defendant estimated to have a value of $8.5 million. From the plaintiffs' perspective the potential for further conflict with the first defendant if the Estate was not administered by an independent person and the potential for their interests to be prejudiced thereby was very significant. I have no doubt that the action concerned matters that the plaintiffs regarded, and were entitled to regard, as being very important.
For the reasons outlined in the preceding paragraph, I consider that the plaintiffs' costs of preparing the statement of claim should be taxed without regard to the maximum amount stipulated in item 1(c). I express no view as to whether the amount of $19,000 that Mr Skinner's evidence foreshadows may be claimed by the plaintiffs should be allowed; that is clearly a matter for the taxing officer.
I do not consider that the hourly rate stipulated in item 1(c) should be increased. The fact that the plaintiffs may have agreed to pay their solicitors on a time cost basis at hourly rates exceeding the hourly rates stipulated in the Determination is not a basis for increasing the hourly rates.
Chamber summons for appointment of interim administrator and ancillary orders - item 11(a)(3)
The plaintiffs' submissions suggest that item 11 is applicable to their chamber summons for the appointment of an interim administrator. Item 11 governs the costs recoverable in respect of an originating motion, originating summons or originating application. The plaintiffs' application was brought by way of chamber summons in an action commenced by writ. Item 10 is the applicable item. It allows for two days preparation and one day of hearing and, unless senior counsel is briefed, the maximum cost recoverable for that work is $11,880. Mr Skinner deposes that the plaintiffs' costs were approximately $39,000.
Is it fairly arguable that the maximum allowable under item 10 is inadequate?
I have considered the papers filed in support of the application. The relief sought by the chamber summons was unusual. It was not straightforward. The chamber summons was supported by three affidavits sworn by Ms Rumble. The principal affidavit in support comprised 23 paragraphs and attached 16 documents. The two further affidavits were short. One dealt with the receipt of an email from the second defendant and one dealt with the service of the writ, application and supporting papers. The application was supported by written submissions and an aide-memoire listing the litigation between the parties. I am only required to consider whether this establishes a fairly arguable case for an allowance of costs in an amount greater than the maximum allowed by item 10. In my view, it is fairly arguable that maximum is inadequate.
Is the inadequacy due to the unusual difficulty, complexity or importance of the matter?
I am satisfied the allowance under item 10 is inadequate because of the complexity and importance of the matter as to which I repeat what I have said above.
Once again, for the reasons already given, I am not prepared to increase the hourly rates.
Settling and extracting judgment or order - item 25(b)
The maximum amount allowed by item 25(b) is $297. Mr Skinner deposes that the costs incurred in the preparation of the final form of the orders and in conferral with the defendants' solicitors regarding the final form of the orders was approximately $37,000. No further evidence in support of the application to increase the limit on this item has been provided. The amount Mr Skinner foreshadows would be claimed if the limit is lifted is extraordinary. It does not seem to me that item 25(b) was intended to cover time spend in conferral of the nature described by Mr Skinner in his affidavit. I think that this aspect of the plaintiffs' application is misconceived. Even if I were to assume in the plaintiffs' favour that item 25(b) was the applicable item, Mr Skinner's evidence is exiguous. It does not provide a basis upon which I could safely conclude that it was fairly arguable that the maximum allowable under that item was inadequate or if it was, that it was inadequate because of the 'unusual difficulty, complexity or importance of the matter'. Unlike the application for increases in the limits for the statement of claim and the chamber summons, there are no materials on the court record from which I can form an impression of the amount of work undertaken and the reason for it. I will not make an order increasing the limit under item 25(b).
Preparation of case - item 17
The plaintiffs seek an order lifting the limit in item 17, 'for the purposes of empowering any taxing officer to properly tax the plaintiffs' costs should the taxing officer consider the plaintiffs' costs to properly fall within the ambit of that item'. The maximum allowable is $58,000. That amount is calculated by reference to 120 hours of work by a senior practitioner. As Mr Skinner has deposed that only approximately $5,000 of the costs incurred by the plaintiffs relate to the preparation of the case, even if the entirety of the costs of $37,000 incurred in the preparation of final orders and in conferral with the defendants' solicitors were found by the taxing officer to be work that fell within item 17 ‑ an issue on which I express no view ‑ the maximum allowed under item 17 would not be exceeded. There is no basis for increasing the limit under item 17.
I will hear the parties as to the form of the orders to be made and the costs of the application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
ASSOCIATE TO THE HONOURABLE JUSTICE TOTTLE16 AUGUST 2018
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