Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management

[2012] WASCA 79 (S)

SOUTHERN PROPERTIES (WA) PTY LTD -v- EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT [2012] WASCA 79 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 79 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:29/2010	Heard:	1 & 2 NOVEMBER 2011
Coram:	McLURE P PULLIN JA BUSS JA	Delivered:	4/04/12
Supplementary Delivered:	8/05/12
No of pages:	5	Judgment Part:	1 of 1
Result:	Application granted
Category:	B
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Parties:	SOUTHERN PROPERTIES (WA) PTY LTD OLD VASSE VINEYARD PTY LTD BARWICK ESTATE VINEYARD PTY LTD SOUTHERN PROPERTIES SYNDICATE OLD VASSE SYNDICATE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT THE STATE OF WESTERN AUSTRALIA
Catchwords:	Costs Application to remove limits on costs fixed in costs determination Turns on own facts
Legislation:	Legal Profession Act 2008 (WA), s 280(2)(c)
Case References:	Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S) Le Brun v Joseph [No 2] [2010] WASCA 52(S) Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SOUTHERN PROPERTIES (WA) PTY LTD -v- EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT [2012] WASCA 79 (S) CORAM : McLURE P

PULLIN JA
BUSS JA

HEARD : 1 & 2 NOVEMBER 2011 DELIVERED : 4 APRIL 2012 SUPPLEMENTARY
DECISION : 8 MAY 2012 FILE NO/S : CACV 29 of 2010 BETWEEN : SOUTHERN PROPERTIES (WA) PTY LTD

OLD VASSE VINEYARD PTY LTD
BARWICK ESTATE VINEYARD PTY LTD
First Appellants

SOUTHERN PROPERTIES SYNDICATE
OLD VASSE SYNDICATE
Second Appellants

AND

EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT
First Respondent

THE STATE OF WESTERN AUSTRALIA
Second Respondent

(Page 2)


ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MURPHY J

Citation : SOUTHERN PROPERTIES (WA) PTY LTD -v- EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT [No 2] [2010] WASC 45

File No : CIV 1065 of 2005

Catchwords:

Costs - Application to remove limits on costs fixed in costs determination - Turns on own facts

Legislation:

Legal Profession Act 2008 (WA), s 280(2)(c)

Result:

Application granted

(Page 3)

Category: B

Representation:

Counsel:

First Appellants : Mr M M Mony De Kerloy & Mr P J Hannan
Second Appellants : Mr M M Mony De Kerloy & Mr P J Hannan
First Respondent : Mr R M Mitchell SC & Mr B P King
Second Respondent : Mr R M Mitchell SC & Mr B P King

Solicitors:

First Appellants : Mony de Kerloy
Second Appellants : Mony de Kerloy
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western 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)
Le Brun v Joseph [No 2] [2010] WASCA 52(S)
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79


(Page 4)

1 JUDGMENT OF THE COURT: On 4 April 2012 this court ordered that the appeal be dismissed and that the appellants pay the respondents' costs of the appeal to be taxed if not agreed. The respondents also applied for an order that:

The limits contained in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 for Item 23 of the Table to clause 11 be removed.

2 The appellants opposed the application. Orders were made for the filing of written submissions and evidence on the issue and for the application to be determined on the papers.

3 Special costs orders may be made under s 280(2) of the Legal Profession Act 2008 (WA) which 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 -

…

(c) remove limits on costs fixed in the determination.

4 Such an application involves two questions: first, whether it is fairly arguable that the taxing officer might properly allow costs at an amount greater than the amount allowable under the relevant legal costs determination; and secondly, whether the inadequacy of the amount allowable under the relevant legal costs determination arises because of the unusual difficulty, complexity or importance of the matter: Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S), approved in Le Brun v Joseph [No 2] [2010] WASCA 52(S) [6]. We are satisfied that the requirements of s 280(2) are met in this case.

5 The issues raised in the appeal are of very significant public interest and importance in this State. The scope and content of the duty of care of a public authority is a complex issue, as reflected in the binding authorities on the subject: Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79 [91]. The issue of nuisance was addressed for the first time in the appeal, due in part to confusion generated by those conducting the appellants' case at trial, and raised novel matters of law. There was also an unusually long and difficult pre-hearing conferral process on the

(Page 5)

issue of whether the appellants alleged any error of fact. The matter was eventually resolved by consent, which resolution resulted in a substitution of the appellants' and respondents' cases. Finally, there is evidence before the court that, based on a broad time based estimate, the costs incurred by or for the respondents very significantly exceed the limits under the costs determination in respect of Item 23.

6 There is no proper basis for the order sought by the appellants that the respondents pay the appellants' costs of the appearance for judgment delivery on 4 April 2012 and the costs of the appellants' written submissions opposing the special costs order. The court ordered written submissions because not all members of the coram who sat on the appeal were present at judgment delivery and a differently constituted coram was sitting to hear other appeals.

7 We would order that:

The limits contained in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 for Item 23 of the Table to cl 11 be removed.