Saraceni v Mentha
[2013] WASC 95 (S2)
•31 JULY 2013
SARACENI -v- MENTHA [2013] WASC 95 (S2)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 95 (S2) | |
| Case No: | CIV:2734/2012 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 31/07/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Taxed costs favouring the defendants to be payable upon quantification | ||
| B | |||
| PDF Version |
| Parties: | LUKE SARACENI MARK MENTHA SCOTT LANGDON KORDAMENTHA PTY LTD |
Catchwords: | Costs Costs payable immediately Upper limit scale allowances on interlocutory application Taxation of costs Consolidated Practice Direction allowances |
Legislation: | Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA) Legal Profession act 2008 (WA), s 280(2) |
Case References: | Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) Saracini v Mentha [2013] WASC 95 Saracini v Mentha [2013] WASC 95 (S) Town of Port Hedland v Reece William Hodder By Next Friend Elaine Georgia Hodder [No 2] [2012] WASCA 212 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MARK MENTHA
First defendant
SCOTT LANGDON
Second defendant
KORDAMENTHA PTY LTD
Third defendant
Catchwords:
Costs - Costs payable immediately - Upper limit scale allowances on interlocutory application - Taxation of costs - Consolidated Practice Direction allowances
Legislation:
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA)
Legal Profession act 2008 (WA), s 280(2)
Result:
Taxed costs favouring the defendants to be payable upon quantification
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First defendant : No appearance
Second defendant : No appearance
Third defendant : No appearance
Solicitors:
Plaintiff : Bennett + Co
First defendant : Norton Rose Australia
Second defendant : Norton Rose Australia
Third defendant : Norton Rose Australia
Case(s) referred to in judgment(s):
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Saracini v Mentha [2013] WASC 95
Saracini v Mentha [2013] WASC 95 (S)
Town of Port Hedland v Reece William Hodder By Next Friend Elaine Georgia Hodder [No 2] [2012] WASCA 212 (S)
1 KENNETH MARTIN J: On 25 June 2013 I published reasons dealing with the costs of these interlocutory applications (Saracini v Mentha [2013]WASC 95 (S)). In those reasons I confirmed as appropriate a prime facie costs outcome foreshadowed in my earlier reserved reasons resolving the merits of the mutual pleading strike out applications: Saracini v Mentha [2013]WASC 95 [91].
2 In Saracini v Mentha [2013]WASC 95 (S) I concluded at [13] - [14]:
Costs orders favouring the defendants should follow accordingly, as regards both sides' interlocutory applications, on the basis that the defendants were substantially successful on the strike out applications heard together.
The defendant should exchange and file a minute of orders for these interlocutory applications within seven days which gives effect to these supplementary reasons.
3 Subsequently, the defendants have proposed by their further minute of 3 July 2013, a series of orders which would effect a disposition of the interlocutory applications and determine costs.
4 Proposed orders 1 - 3 of the minute have been agreed by the parties. Proposed orders 4 - 5 of the minute concerning costs remain contentious. I am asked to resolve the residual dispute between the parties, once again, on the papers.
5 First, I set out the defendants' minute of proposed orders of 3 July 2013:
1. The time by which the defendants may apply to strike out parts of the statement of claim under Order 20 rule 19(3) of the Rules of the Supreme Court be extended to 12 February 2013.
2. Paragraphs 7.1, 7.2, 13.1 and 13.2 of the statement of claim be struck out with leave to re-plead.
3. Sub-paragraphs 7A(a)-(e) and 13A(a)-(e) of the amended defence (which refer to the imputation at sub-paragraphs 7.3 and 13.3 of the statement of claim) be struck out with leave to re-plead.
4. The plaintiff pays the first, second and third defendants' costs of the plaintiff's strike out application dated 4 January 2013 and the defendants' strike out application dated 7 February 2013, such costs to be taxed if not agreed and paid forthwith.
5. The defendants' costs are to be taxed without regard to the limit on costs referred to in items 2.4, 2.8 and 2.9 of the Schedule of Standard Costs Orders on Interlocutory Matters at [7020.7.1] of the Rules of the Supreme Court and the limit on costs imposed by item 10 (proceedings in chambers) of the relevant costs determinations under the Legal Profession Act 2008.
6 Proposed orders 4 - 5 in the defendants' 3 July 2013 minute concerning details of the defendants' now resolved entitlement to taxed costs.
7 Again, the parties filed written submissions articulating their positions. These were received from the defendants on 5 July 2013, followed by the plaintiff's submissions of 8 July 2013.
8 The first issue of controversy (arising from proposed order 4) is whether the award of taxed costs in favour of the defendants, once ascertained after a taxation (if not agreed), should be immediately paid by the plaintiff, or whether payment should instead await the more substantive determination of the whole defamation action.
9 The second issue (by proposed order 5) concerns the upper limits of the applicable legal costs scales and whether the ambit of these upper limits should, as the defendants request, be increased for the taxation here, bearing in mind the potential amount capable of being recovered at a taxation by reason of those scale limits.
10 Issues then present as to whether, as a matter of principle, special costs orders pursuant to s 280(2) of the Legal Profession Act 2008 (WA) are justified or appropriate. An enquiry as to the potential inadequacy of the level of legal costs allowance requires consideration of whether there was 'unusual difficulty, complexity or importance' in the matter, under criterion set by s 280(2)(c) of the Legal Profession Act: see Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [11]; and Town of Port Hedland v Reece William Hodder By Next Friend Elaine Georgia Hodder[No 2] [2012] WASCA 212 (S) [14].
Determination
Proposed order 4 of the defendants' minute
11 In my view, order 4 as proposed is wholly appropriate in the circumstances. The defendants' entitlement to legal costs will be quantified by the taxation, or by agreement. It is the practice of the CMC List (where all defamation actions are case managed) that interlocutory costs outcomes should carry an immediate impact, in the normal course: see Consolidated Practice Direction 4.7.1 items (1), (3), (7) - (8) and (12) concerning costs and taxation.
12 Item (12) of the Consolidated Practice Direction recognises that the parties may submit to the court that it should deal with costs in 'some other way'. However, in present circumstances, I assess there to be no compelling reason to deviate from the orthodox path of immediate payment of costs, particularly bearing in mind the significant interlocutory outcomes in favour of the defendants on the applications.
13 Proposed order 4 of the defendants' minute is appropriate.
Proposed order 5 of the defendants' minute
14 There appears to be a misconception in the defendants reference (by their written submissions) to items 2.4, 2.8 and 2.9 as regards a Schedule of Standard Costs Orders on Interlocutory Matters at [7020.7.1]. What the defendants refer to under their proposed order 5 is a Schedule mentioned by item (8) of Consolidated Practice Direction 4.7.1, which appears at [7020.7.1.11] of LexisNexis, Civil Procedure – Western Australia.
15 However, item (8) of that schedule is inapplicable to circumstances where parties are seeking a taxation of their costs, as is the case here. Items (7) - (12) of the Consolidated Practice Direction have a limited applicability to circumstances where legal costs are not taxed. Rather, the Schedule applies when costs are fixed 'on the spot' by a judicial officer. Item (8) reads:
Further, judicial officers can be expected, in the usual run of routine matters, to fix the costs payable by reference to the attached schedule (4.7.1.1) rather than ordering them to be taxed.
16 Presently, the defendants are seeking a taxation, if their claimed costs are not agreed. That is a course open to them. But it is not the course explained in the Consolidated Practice Direction referred to by their written submissions.
17 For present circumstances, the correct scale allowance is found under cl 9 of the Schedule to the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA). By item 10(a) of that Schedule of potential costs allowances, chambers applications would be determined as:
10. Chambers -
(a) Proceedings in Chambers other than proceedings to which item 11 applies
Time - 2 days preparation, 1 day hearing;
$ allowance - $10,560
The scale amount in this case is:
(1) Special appointment: $1,782 plus $550 per extra hour of hearing time;
(2) Affidavit in support: $297.
19 Paragraph 9 of the defendants' submissions then contend as to the inadequacy of that amount. The defendants' reference looks to be to item 2.4 in the Consolidated Practice Direction scale. The defendants submit that the upper level limit of $1,782 (plus $550, plus $297) would be inappropriate bearing in mind the nature and moment of these interlocutory applications.
20 However, the correct upper limit for the applicable scale allowance for a taxation would be $10,560. That amount does not at all present to me as inappropriate as a potential taxed outer limit allowance for the present applications. (The actual amount that is allowed is of course the province of the taxing officer to assess at a taxation).
21 For completeness, I would observe that merely because the defendants chose to engage senior counsel to argue this interlocutory application does not influence my position as regards the adequacy of the level of costs allowance at an outer limit of $10,560 under the current scale.
22 The plaintiff's written submissions of 8 July 2013 contend that an affidavit of Dylan Christopher McKimmie affirmed 1 February 2013 was not 'read' into evidence at the hearing of the interlocutory application and so that its costs of preparation ought not be allowed. Whether in the circumstances it would be appropriate to allow anything as regards evidentiary materials not used at the hearing can be assessed by the taxing officer on taxation (see par 26 of the plaintiff's written submissions).
23 As a consequence, order 5 of the defendants' proposed minute is, on my assessment, both inappropriate and unnecessary.
Conclusion
24 On that basis, orders 1 - 3 (which are not contentious) and order 4 of the defendants' minute of 3 July 2013 should issue forthwith.
25 For this application, resolved as it now has been on the papers, the defendants have succeeded as regards proposed order 4 but failed as regards proposed order 5. In these circumstances, there should be no order as to the costs of the present arguments, now resolved on the papers.
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