Sims v Jooste [No 2]
[2014] WASC 373 (S)
•5 NOVEMBER 2014
SIMS -v- JOOSTE [No 2] [2014] WASC 373 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 373 (S) | |
| Case No: | CIV:1991/2011 | ON THE PAPERS BY SUBMISSIONS | |
| Coram: | KENNETH MARTIN J | 5/11/14 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | DOUGLAS ARTHUR SIMS JAMES CECIL INNES JOOSTE |
Catchwords: | Civil law and procedure Costs Special costs Lifting of scale limits Unusual difficulty, complexity or importance Counsel fee Defamation |
Legislation: | Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA) Legal Profession Act 2008 (WA), s 280(2) |
Case References: | CMA Contracting Pty Ltd v John Holland Pty Ltd [2011] WASC 249 Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) Heugh v Central Petroleum Ltd [No 5] [2014] WASC 311 (S) Marsh v Baxter [2014] WASC 187 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
JAMES CECIL INNES JOOSTE
Defendant
Catchwords:
Civil law and procedure - Costs - Special costs - Lifting of scale limits - Unusual difficulty, complexity or importance - Counsel fee - Defamation
Legislation:
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA)
Legal Profession Act 2008 (WA), s 280(2)
Result:
Application granted
Category: B
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr M L Bennett
Solicitors:
Plaintiff : No appearance
Defendant : Bennett + Co
Case(s) referred to in judgment(s):
CMA Contracting Pty Ltd v John Holland Pty Ltd [2011] WASC 249
Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Heugh v Central Petroleum Ltd [No 5] [2014] WASC 311 (S)
Marsh v Baxter [2014] WASC 187 (S)
1 KENNETH MARTIN J: My reasons for decision following the trial of this action were delivered on 10 October 2014.
2 At that time, I dismissed Mr Sims' action and made some directions for the parties to provide written submissions concerning costs - so that this residual issue could be dealt with on the papers.
3 The defendant, as the successful party after trial, provided written submissions as to costs through his solicitors, on 16 October 2014.
4 Essentially, he seeks his taxed costs of the action against Mr Sims, including certain reserved costs. The defendant also seeks an order pursuant to s 280(2) of the Legal Profession Act 2008 (WA), asking that a special costs order be made in his favour allowing for the taxing officer at a taxation to make reasonable allowances for nine as specified scale items, 'without regard to the scale or hourly limits, imposed under the relevant legal costs determinations'.
5 The defendant's proposed orders seeking taxed costs with special orders as regards allowances are supported by the affidavit of a Ms Jocelyn Nicholson sworn 16 October 2014. Ms Nicholson is a solicitor employed by the defendant's current solicitors, Bennett + Co. Her affidavit provides certain information concerning the level of the defendant's incurred solicitor/client costs including at par 11 as to the approximate amount of those costs incurred in respect of the various scale items - in respect of which it is sought to have the scale limits removed for the purposes of a taxation (see pars 11.1 - 11.7 of Ms Nicholson's affidavit). Ms Nicholson also attaches to her affidavit as JRN-1 a table of various Bennett + Co hourly rates - said to be applicable to the various solicitors, counsel or law clerks who have been engaged upon the matter for the defendant. This table juxtaposes, in effect, the hourly rates charged by those participant legal practitioners and clerks in respect of work done for the defendant, in contrast to the comparable scale determination hourly rate allowed as a maximum under the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA).
6 By the directions I made when reasons for decision were delivered, the plaintiff, Mr Sims, who remains unrepresented, was to have filed any responsive submissions or materials bearing upon the issue of costs orders, by 24 October 2014. Nothing has been received from Mr Sims within that time frame, or at all.
7 Effectively then, the successful defendant now moves for his taxed costs and for special costs orders, ex parte, in the absence of any materials or submissions from Mr Sims.
8 Clearly, as the successful party after trial, the defendant is prima facie entitled to receive his taxed costs of the action paid by Mr Sims as the unsuccessful plaintiff at trial. The only real issue arising is whether the special costs orders sought concerning the removal of costs scale determination limits are appropriate. That issue in turn poses an underlying question as to whether the threshold requirements of s 280(2) are surmounted by the defendant in the present case, in order to support the special costs orders of the character sought against Mr Sims.
9 In Marsh v Baxter [2014] WASC 187 (S), I recently canvassed some of the leading costs authorities and principles in this jurisdiction, particularly the dual s 280(2) threshold requirements of showing a likely 'inadequacy' in the level of taxed costs recoverable absent a special costs order, and then the second but related requirement (see Allanson J in CMA Contracting Pty Ltd v John Holland Pty Ltd [2011] WASC 249 [2]) showing that the action has displayed one or more of the elements of either 'unusual difficulty, complexity, or importance'. These dual but related requirements are sometimes called the Heartlink factors - a reference to the decision of the Martin CJ in Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S), especially at [17] and [19]. I see no need to repeat the discussion about costs principles recently undertaken in Marsh v Baxter [2014] WASC 187 (S).
10 Here, by reason of the defendant's written submissions and the information in Ms Nicholson's affidavit, I find myself prima facie satisfied as a matter of overall impression as to the likely inadequacy of a possible taxation outcome for the defendant concerning allowances under the scale items identified upon this application. At the end of the day, it will be for the defendant, of course, to satisfy a taxing officer of this court as to the level of an appropriate allowance. Orders of the character sought from the Court simply open up the discretion of the taxing officer to allow an amount greater than might otherwise be allowed by reason of a scale limit.
11 I am also satisfied that the second limb of the Heartlink factors is met. This is, first, because the action was a defamation trial, carrying of its very nature some specialist considerations that would meet the criteria of showing unusual difficulty. Second, the touchstone of 'unusual difficulty' is also met here, due to the need for the defendant at this trial to engage against a plaintiff litigant in person - which, in the overall context of a defamation trial made the running of the litigation more difficult than, say, a trial against a legally represented defamation plaintiff. Third, the subject matter of the defendant's justification defence, as was successfully advanced ultimately at the trial, carried with it elements of difficulty and complexity as regards showing an infringement by Mr Sims against provisions of the Corporations Act 2001 (Cth) - as ultimately shown. There was unusual difficulty and, in my view, complexity arising from that consideration. Even beyond that, however, the criterion of importance in this action for the defendant, in refuting the plaintiff's defamation action brought against him is met. This defamation action presented as going beyond the ordinary Orwellian feature manifesting in all litigation whereby every case is considered naturally enough to be of importance to each participant. As to that, see the recent observations of Le Miere J in Heugh v Central Petroleum Ltd [No 5] [2014] WASC 311 (S) [8]. Here Mr Sims had made it plain by his evidence at the trial he was pursuing this defamation action as something of a personal retaliation against the defendant's father - with whom he had badly fallen out. For such circumstances the defendant's refutation of the attack brought against him by Mr Sims manifested as a scenario of more than usual importance as between ordinary litigants.
12 In all the circumstances, I am persuaded that there should be special costs orders as sought by the defendant, pursuant to s 280(2) of the Legal Profession Act. In Marsh v Baxter [2014] WASC 187 (S) I issued similar orders that removed costs scale determination limits in respect of the identified scale items, where the lifting of the allowance was sought. However, I did not in Marsh v Baxter, as it was opposed, lift the maximum hourly rate limit specified under the scale concerning the costs of legal practitioners. Here I am asked, once again, to make that order as regards the level of the maximum hourly rates levied by legal practitioners. Ms Nicholson's affidavit by attached JRN-1 and the table of hourly rates for legal practitioners and clerks at Bennett + Co displays that, overwhelmingly, the pragmatic impact of making such an order will be felt as regards removing the maximum hourly rate of counsel, vis-à-vis the 2012 maximum scale allowance rate of $363 per hour. Upon that hourly rate ceiling maxima being removed, the appropriate hourly rate allowance is left at the open-ended discretion of the taxing officer. A removal of the determination maximum hourly rate limit does not thereby deliver the outcome of approving the claimed hourly rate sought on behalf of counsel ($880 per hour).
13 In the Marsh v Baxter costs reasons I was not satisfied as to the required level in order to remove the scale limit maximum hourly rate ceiling applicable to legal practitioners. That was a conclusion reached upon the state of the material submitted. However, the position here is different. This was a defamation action and trial calling, appropriately, for specialist defamation expertise in counsel. My day-to-day experience as a case manager of multiple defamation actions automatically included within this court's CMC list shows there is a local deficiency in terms of readily available defamation expertise in the West Australian legal profession. In circumstances of limited supply and considerable demand, I do think it appropriate here to allow a taxation of the defendant's costs to proceed upon the basis that the maximum hourly rate limit set under the applicable scale is also removed.
14 With the outstanding issue of costs being dealt with, this matter no longer presents as being in need of intensive case management. I will therefore remove it from the CMC list.
15 Accordingly then, my assessment is that it is appropriate there be orders, broadly in accord with the defendant's minute of proposed orders as to costs of 16 October 2014, in these terms:
1. The plaintiff pay the defendant's costs of the action, including reserved costs of the proceedings in chambers held on 14 November 2013 and 26 May 2014, to be taxed if not agreed.
2. Pursuant to s 280(2) of the Legal Profession Act 2008 (WA), the taxing officer, in taxing the bill of costs of the defendant, is to make reasonable allowances for the following items and without regard to the scale or hourly limits imposed under the relevant legal costs determinations, in relation to:
2(i) defence (scale item 3(b));
2(ii) requesting and giving of particulars (scale items 6(a) and 6(b));
2(iii) giving discovery (scale item 7);
2(iv) inspection (scale item 8);
2(v) proceedings in chambers (scale item 10(a));
2(vi) preparation of case (scale item 17);
2(vii) counsel fee on brief and for counsel fee for subsequent days of trial (scale items 20(a) and 20(c));
2(viii) instructing solicitor attending trial (scale item 20(e)); and
2(ix) taxing including drawing of bill of costs (scale item 30).
3. Without limiting the taxing officer's discretion, the taxing officer is also directed to make reasonable allowances for:
3(i) the preparation and attendance at the trial by both counsel and junior counsel in addition to the allowances for the instructing solicitor;
3(ii) further preparation carried out by counsel, junior counsel and instructing solicitor after the commencement of the trial.
4. The plaintiff pay the defendant's costs of this costs application to be taxed on the same basis as the action.
5. The matter be removed from the CMC list.
16 Those orders are now made and take effect upon the publication of these reasons.
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