Tahlia Burns by her next friend Liesel Nicola Burns v North Metropolitan Health Service
[2019] WADC 65
•10 MAY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: TAHLIA BURNS by her next friend LIESEL NICOLA BURNS -v- NORTH METROPOLITAN HEALTH SERVICE [2019] WADC 65
CORAM: GETHING DCJ
HEARD: 10 APRIL 2019
DELIVERED : 10 MAY 2019
FILE NO/S: CIV 3304 of 2011
BETWEEN: TAHLIA BURNS by her next friend LIESEL NICOLA BURNS
Plaintiff
AND
NORTH METROPOLITAN HEALTH SERVICE
Defendant
Catchwords:
Costs - Special costs orders - Whether court functus officio - Whether action is a catastrophic personal injury claim - Whether inadequacy under relevant costs determination - Whether inadequacy arose by reason of the unusual difficulty, complexity or importance of the matter
Legislation:
Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018 (WA)
Legal Profession Act 2008 (WA), s 280(2)
Rules of the Supreme Court 1971 (WA), O 70 r 12
Result:
Action declared to be a catastrophic personal injuries claim
Special costs orders made
Representation:
Counsel:
| Plaintiff | : | Mr D J Garnsworthy |
| Defendant | : | No appearance |
| Amicus Curiae | : | Mr F A Robertson |
Solicitors:
| Plaintiff | : | Ilberys Lawyers Pty Ltd |
| Defendant | : | HWL Ebsworth |
| Amicus Curiae | : | Jackson McDonald |
Case(s) referred to in decision(s):
Atwell v Roberts [2013] WASCA 37 (S)
Beasley v Ocean Foods International Pty Ltd [2005] WASC 116
Brookvista Pty Ltd v Meloni [2009] WASCA 180
Cachia v Hanes [1994] HCA 14;(1994) 179 CLR 403
Cadwallender v The Public Trustee [2003] WASC 72
Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S)
Cifuentes v Fugro Spatial Solutions Pty Ltd [2009] WASC 316 (S)
Cristel v Cristel [1951] 2 KB 725
Divjakoski v Boral Window Systems [No 2] [2010] WADC 166
Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S)
Ellis v East Metropolitan Health Service [2018] WADC 36
Ellis v East Metropolitan Health Service [2018] WADC 36 (S)
Forrest-Moore v Belswan (Mandurah) Pty Ltd [No 2] [2011] WADC 217
Haddon v Everitt on behalf of the Commissioner of Police (2001) 126 A Crim R 418; [2001] WASCA 420
Heartlink v Jones as Liquidator of HL Diagnostics Ltd (in liq) [2007] WASC 254 (S)
Hughes v St Barbara Ltd [2011] WASCA 234 (S)
Maio v City of Stirling [No 2] [2016] WASCA 45 (S)
McGlinn v Joondalup Hospital Pty Ltd [No 2] [2014] WADC 3
Murcia & Associates (A Firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209
Naidoo v Williamson [2008] WASCA 179
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Patterson v Humfrey [No 2] [2016] WASC 343
Perpetual Trustee Co Ltd v Cheyne (2011) 42 WAR 209; [2011] WASC 225
Sergi v Sergi [2012] WASC 18
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S)
Solomon Brothers (a firm) v Williams [2003] WADC 85
Stanley v Phillips [1966] HCA 24; (1966) 115 CLR 470
Terravision Pty Ltd v Black Box Control Pty Ltd [No 5] [2018] WASC 340
The Owners of Wellington Court v Freehill Hollingdale & Page (1989) 2 WAR 37
Wainright v Barrick Gold of Australia [2014] WASCA 15 (S)
Woodley v Woodley [No 2] [2017] WASC 94 (S)
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 11] [2011] WASC 74
GETHING DCJ:
In October 2011 the plaintiff commenced proceedings in the District Court claiming damages against the defendant arising out of injuries sustained at her birth at King Edward Memorial Hospital in April 2004.
On 3 August 2018 I made orders approving a compromise of the action (Compromise Order). The order gave the plaintiff leave to compromise by entering into a deed of compromise (Deed) that was annexed to the affidavit of the plaintiff's next friend. A court supervised trust (Trust) was created for the proceeds of the compromise with Perpetual Trustee Company Limited (Trustee) being appointed as trustee. The orders also gave the parties leave to file a minute of consent orders dismissing the action with no orders as to costs.
On 12 September 2018 orders were made by consent dismissing the action, vacating all previous costs orders and making no further order as to costs.
One of the plaintiff's counsel, Mr Howells (a senior junior) did not have a costs agreement with the plaintiff. He invoiced the plaintiff's lawyers an amount significantly in excess of the scale amount. In order to allow counsel to claim his full invoice on the taxation of the plaintiff's costs as between the plaintiff and her lawyers, the plaintiff's lawyers seek an order removing the scale limits pursuant to Legal Profession Act 2008 (WA) (LPA) s 280(2). As an alternative, the plaintiff's lawyers seek a declaration that the action was a catastrophic personal injury claim for the purpose of the Legal Profession (Supreme and District Courts)(Contentious Business) Determination 2018 (WA) (2018 Determination). The effect of a declaration of this kind is to remove certain scale limits, essentially achieving a similar outcome as an order pursuant to LPA s 280(2).
For the reasons which follow I am of the view that the action is a catastrophic personal injuries claim for the purposes of the 2018 Determination. To the extent that this does not achieve all that the plaintiff's lawyers seek, I am also prepared to make an order pursuant to LPA s 280(2).
Factual background
The application by the plaintiff's lawyers was filed on 8 February 2019 (Application) and sought orders that:
1.As between the plaintiff and her lawyers (including counsel) costs be assessed without regard to the limits (both as to ceilings and hourly rates) prescribed by the relevant Determinations of the Legal Costs Committee.
2.A declaration that the latest costs agreement between the next friend and her lawyers is effective to and including the settlement of the action.
3.The operation of O59 r1 of the WARSC be waived.
4.No orders as to the costs of this application.
The plaintiff's lawyers filed two affidavits in support of the Application, each affirmed by Peter Harris, a director of the plaintiff's lawyers, being dated 6 February 2019 and 4 April 2019.[1] The plaintiff's lawyers also filed submissions in support of the Application dated 25 February 2019 and 8 April 2019.[2] There is some additional factual material which I have extracted from a copy of a letter dated 31 January 2019 from the plaintiff's lawyers to the plaintiff's next friend which was sent to the court and which is on the court file.[3]
[1] Which I will refer to as the First Harris affidavit and the Second Harris affidavit.
[2] Which I will refer to as the Lawyers' February Submissions and the Lawyers' April Submissions.
[3] Folio 168.
In both his affidavits, Mr Harris sets out in some detail the work which his firm undertook to manage the action, and which his firm and Mr Howells undertook to prepare the action for a 23 day trial which was listed to commence on 28 May 2018. He describes the events leading up to settlement discussions between the lawyers for the parties and which ultimately resulted in the settlement of the action.
As part of the settlement of the action, in the Deed the defendant agreed to pay the amount of $427,000 as a contribution towards the plaintiff's party and party costs.
In the First Harris Affidavit, Mr Harris goes on to depose that the time spent by Mr Howells on several items of work exceeded by a large margin the allowance allocated under the relevant costs determination. Further, his hourly rate exceeded the limits of the costs scales. Hence, the Application was made. He continues:[4]
30.Such application will be made at Ilberys' expense and without recourse to the estate of Tahlia or her Next Friend, Liesl.
31.Ilberys has advised Liesl of its intention to make the application and has also advised her that the application is not intended to increase what Ilberys is entitled to be paid on account of its legal fees.
[4] First Harris affidavit, pars 30 - 31.
On 15 August 2018 the plaintiff's lawyers received the $427,000 contribution for costs payable by the defendant under the Deed.
The plaintiff's lawyers raised a tax invoice for $597,612.70 for all work performed on the plaintiff's claim. They applied $300,000 of the money received from the defendant's insurer towards this invoice.
Mr Howell's fees for the matter were $564,825 plus disbursements of $30,000. The plaintiff's lawyers applied $110,000 of the money received from the defendant's insurer towards Mr Howell's fees.
The plaintiff had also engaged a second junior counsel, Mr Blades, whose fees for the matter were $30,000. The plaintiff's lawyers applied $17,000 of the money received from the defendant's insurer towards Mr Blades' fees.
On or about 21 September 2018 the plaintiff's lawyers received the balance of its tax invoice from the Trustee. It also appears that the balance of Mr Blades' fees have been paid.
The Trustee has declined to pay any amount towards Mr Howells' fees for the time being. It requested the plaintiff's lawyers to submit their legal costs, and the legal costs of Mr Howells and Mr Blades, for taxation.
As the plaintiff is under a disability, the cost payable to her lawyers, including counsel, must be taxed.[5] In the present case, the plaintiff's lawyers are claiming costs over and above the costs which the defendant has agreed to pay by way of party and party costs. Accordingly, the costs which the plaintiff's lawyers are entitled to charge are limited to their taxed costs.[6]
[5] Rules of the Supreme Court 1971 (WA) (RSC) O 66 r 24(3).
[6] RSC O 66 r 24(3), (4).
Mr Howells did not enter into a formal cost agreement with either the plaintiff's next friend or the plaintiff's lawyers. He is thus not able to receive taxed costs in excess of the scale limits, both as to the hourly rate and hours worked.[7] It was to address this situation that the plaintiff's lawyers commenced the Application.
[7] LPA s 271, 280; 2018 Determination, cl 13.
Prior to the application coming on for hearing there was correspondence with the court as to whether the plaintiff, more particularly her next friend, had been advised of her right to appoint independent counsel.
The Application came on for hearing before a deputy registrar on 13 March 2019. The deputy registrar ordered that the Application be amended to read:
1.That the costs of Mr S Howells be assessed without regard to the limits prescribed (both as to ceilings and hourly rates) in the relevant determinations of the Legal Costs Committee.
2.There be no order as to the costs of the application.
The deputy registrar also directed that the Application be adjourned to be heard by me, as the judge who had approved the compromise, and that the Trustee have liberty to appear as amicus.
The reason for the removal from the Application of the order in relation to the costs agreement is self-evidently that the District Court has no jurisdiction to rule on the effectiveness of a costs agreement between solicitor and client.[8]
[8] See generally: LPA s 288; Murcia & Associates (A Firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209 [14] – [16] (Steytler J with whom Wallwork J agreed); The Owners of Wellington Court v Freehill Hollingdale & Page (1989) 2 WAR 37, 39 (Ipp J); Solomon Brothers (a firm) v Williams [2003] WADC 85 [11] – [12] (Muller DCJ).
On 27 March 2019 the Trustee filed submissions and an affidavit sworn by Thomas Wilson in relation to the Application.[9] Mr Wilson is a legal practitioner employed by the Trustee's lawyers.
[9] Which I will refer to as the Wilson Affidavit.
At the hearing before me on 10 April 2019 counsel for the Trustee accepted that, in the particular circumstances of this case, it was proper for the scale limits to be lifted. The Trustee did not accept that the amounts invoiced by Mr Howells were reasonable for the work that was necessary, but was content to leave this issue to the taxing officer. The Trustee argued that the court was functus officio as regards to an order pursuant to LPA s 280(2), but accepted that it retained jurisdiction to declare that the action was a catastrophic personal injuries action for the purposes of the 2018 Determination. It did not oppose the making of this declaration.
Counsel for the Trustee also contended that it was not appropriate for the court to lift the scale limit in respect of the hourly rate charged by Mr Howells (something which would not occur if the action was declared to be a catastrophic personal injuries action). In response, counsel for the plaintiff's lawyers did not press this aspect of the Application.
In view of the fact that the costs are to come out of a trust established by this court, and over which the court retains ongoing oversight, it is appropriate that I independently satisfy myself that an adjustment to the scale fees is appropriate.
On the basis of the submissions from the parties, both written and oral, three issues arise for determination:
•Does the District Court have the power to make the orders sought?
•Should the action be declared to be catastrophic personal injury claim?
•Should the court make an order pursuant to LPA s 280(2)?
Does the District Court have the power to make the orders sought?
The Trustee contends that the plaintiff's lawyers are not able to bring the Application in the District Court. This is on three grounds.
The first ground is that the District Court is functus officio. The principle of functus officio is was succinctly stated by Le Miere J in Patterson v Humfrey [No 2]:[10]
A court is functus officio where it has discharged all its judicial functions in a case and is precluded from further considering the case. Once a court has made final orders, its function is discharged and it has no authority to further consider the case.
The circumstances or the nature of a judgment or order often render necessary subsequent applications to the court for assistance in working out the rights declared. Where the need for subsequent application to the court is foreseen it is usual to insert in a final judgment words expressly reserving liberty to any party to apply to the court. The judgment is not thereby rendered any less final.
[10] Patterson v Humfrey [No 2] [2016] WASC 343 [8] – [9].
His Honour went on to quote from the decision of Somervell L J in Cristel v Cristel:[11]
Prima facie, 'liberty to apply' is expressed very often - and, if it is not expressed, it will be implied - where the order that is drawn up requires working out and the working out involves matters on which it may be necessary to get the decision of the court. Prima facie, certainly, it does not entitle people to come back and ask that the order itself shall be varied.
[11] Cristel v Cristel [1951] 2 KB 725, 728; Patterson [10].
His Honour further observed that the phrase 'working out the judgment' can be found in many cases.[12]
[12] Patterson [10].
After reviewing a number of authorities, Le Miere J discerned five principles:[13]
First, liberty to apply is a judicial device which enables the court to supplement the main orders. Secondly, main orders may be supplemented but not to vary or change the nature or substance of the main orders. Thirdly, what amounts to a variation or impermissible change depends on the context of the individual case. What amounts to an order which supplements the main orders can only be appreciated in the context of the individual case. What appears in form to be a further order to give effect to the original order in one case may appear as a variation in a different context. Fourthly, the court may determine any unresolved rights that flow from the making of the main orders. Fifthly, the court may make consequential orders when new facts and circumstances emerge after the making of the main orders.
[13] Patterson [16].
The Compromise Order contains two paragraphs expressly reserving liberty to apply. The first is 'with respect to the defendant's payment obligations under the Deed'. This is not relevant for present purposes. The second is 'with respect to the Court Compensation Trust'.
More generally, the Compromise Order which created the Trust was made in the parens patriae or protective power of the District Court.[14] This power is ancillary to a claim otherwise within the civil jurisdiction of the District Court.[15] That being the case, the following observations of E M Heenan J in Cadwallender v The Public Trustee are apposite:[16]
I consider that it is desirable that issues concerning the administration of such court appointed trusts, and, in particular, applications for the termination of the trusts and transfer to the beneficiary of the trust property, should be brought in the court which ordered the establishment of the trust and in the proceedings in which that was ordered. Not only has that court already exercised the protective parens patriae jurisdiction in respect of the particular claimant, but it will have the direct experience and record relating to the composition of the fund which created the trust, the details of the damages suffered by the claimant and the nature of his or her disability which will make it the more convenient and better equipped forum to deal with the issue than a court which has no previous acquaintance with the litigation that led to the establishment of the trust.
[14] See generally: Perpetual Trustee Co Ltd v Cheyne (2011) 42 WAR 209; [2011] WASC 225 [57] – [64] (Edelman J); Cadwallender v The Public Trustee [2003] WASC 72 [27] – [48] (E M Heenan J).
[15] Cadwallender [49].
[16] Cadwallender [50].
In the case of moneys held in a court appointed trust where there is power to apply to the court in respect of matters concerning the administration of that trust, the court retains jurisdiction over the parties.[17] Specifically, the parens patriae power confers power on the court to supervise the trust and to deal with questions arising from its administration.[18] One aspect of the parens patriae power is 'to ensure that the solicitors acting for an infant or a disabled person are paid their proper costs and no more'.[19]
[17] Cadwellender [41].
[18] Cadwellender [42].
[19] Sergi v Sergi [2012] WASC 18 [39] (E M Heenan J).
To this is added RSC O 70 r 12(2) which provides that the court 'may at any time, and from time to time, give directions for the application of the income or of the capital and income of the investment for the maintenance, welfare, advancement, or otherwise for the benefit of the person under disability'. Of this power, E M Heenan J observed in Cadwallender:[20]
That sub-rule expressly recognises a far reaching continuing jurisdiction by the court in respect of all matters concerning the administration of the trust which, in my view, continues for as long as the trust remains in operation.
[20] Cadwallender [40].
The substantive effect of the orders sought in the Application are to determine the framework within which the taxed costs of the plaintiff are to be assessed, prior to the payment of those costs by the Trustee out of the Trust funds. So characterised, both the determination of whether the claim was one involving a catastrophic personal injury and an application pursuant to LPA s 280(2) in relation to the costs as between the plaintiff and her lawyers, are within each of:
(a)the liberty to apply expressly reserved in the Compromise Order;
(b)RSC O 70 r 12(2); and
(c)the parens patriae power of the court more generally.
Having come to this conclusion, I do not need to decide the question of whether District Court has the power, more generally, to determine an application pursuant to LPA s 280(2) as between a party to an action (within the substantive civil jurisdiction of the court) and their lawyer.[21] This issue arises because, whilst the District Court has a specific power to make orders as to the costs of any action,[22] which are to be taxed in the District Court,[23] costs as between lawyer and client are to be taxed in the Supreme Court.[24] Nor does the District Court have any more general supervisory jurisdiction over legal practitioners.[25]
[21] As to the power of the District Court to make orders pursuant to LPA s 280(2) as regards party and party costs, see generally: McDonald v Woolworths Group Limited [2019] WADC 66 (Gething DCJ).
[22] District Court of Western Australia Act 1969 (WA) (DCA) s 64, 66.
[23] DCA s 67.
[24] DCA s 68. See generally: Solomon Brothers [11] – [12]; The Owners of Wellington Court (39). Though no issue was taken as to the jurisdiction of the District Court to make an order as between a legal practitioner and his client in Divjakoski v Boral Window Systems [No 2] [2010] WADC 166 (Fenbury DCJ).
[25] Murcia [14] – [16].
The second ground is that the Application in effect seeks orders from the District Court 'intended to bind and effect the manner of the exercise of jurisdiction by a superior court, namely the Supreme Court'.[26] This is because assessments of costs as between solicitor and client are conducted in the Supreme Court pursuant to LPA pt 10 div 8.
[26] Trustee's Submissions, par 21.
The effect of a declaration that the action was for a catastrophic personal injury claim or an order removing the scale limits pursuant to LPA s 280(2) is 'limited to setting the parameters within which the taxing officer will tax the relevant bill'.[27] The orders sought only bind the Supreme Court taxing officer. The effect of a declaration that the action was for a catastrophic personal injury claim adjusts the scale limits for both party and party costs and solicitor and client costs (though on the facts the former costs have been agreed in this case). So it is intended to bind both a District Court taxing officer on a party and party taxation[28] and a Supreme Court taxing officer on a solicitor and client taxation.[29] An order removing the scale limits pursuant to LPA s 280(2) for the purposes of determining party and party costs must flow on to have the same effect for any taxation of solicitor and client costs; were this not the case, the taxing party would be claiming from the paying party costs it had no obligation to pay his or her solicitor. Costs 'are awarded by way of indemnity (or more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation'.[30] So it is inherent in both powers that they bind a Supreme Court taxing officer on the taxation of solicitor and client costs. The position is no different where the power in LPA s 280(2) is exercised when party and party costs have been resolved and the order only has effect as between solicitor and client.
[27] Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [4] (Martin CJ).
[28] DCA s 67.
[29] DCA s 68.
[30] Cachia v Hanes [1994] HCA 14;(1994) 179 CLR 403, 410 (Mason CJ, Brenna, Deane, Dawson and McHugh JJ).
Accordingly, I do not consider that this second ground deprives the District Court of the power to determine the Application.
The third ground is that the Application should properly have been brought by the plaintiff's lawyers taking out an originating summons in the Supreme Court naming the parties who it wishes to be bound by the effect of the orders sought.[31] However, as I have already found, the District Court retains a supervisory power over the Trust. The plaintiff had standing to invoke that power. To the extent that there was a conflict of interest between the plaintiff and her lawyers, the conflict of interest was transparent and met, in part, by the presence of counsel for the Trustee as amicus, representing the plaintiff, and placing the relevant arguments against the Application before the court (I return to the issue of the conflict of interest below [86]). Bringing the application in the District Court was consistent with the observations of E M Heenan J in Cadwallender that it is desirable that issues concerning the administration of a court appointed trust be brought in the court which ordered the establishment of the trust and in the proceedings in which that was ordered.[32] This is what occurred with the Application. It was proper for the Application to be brought in the District Court.
[31] Trustee's Submissions, pars 15 - 18.
[32] Cadwallender [50].
For these reasons, I am of the view that the District Court can hear and determine the Application.
Should the action be declared to be catastrophic personal injury claim?
The plaintiff requests the court to declare her claim to be a catastrophic personal injuries claim. A declaration that a case is a catastrophic personal injuries claim provides the 'means by which the costs of preparation of a case for trial in certain personal injuries cases may be taxed without regard to the [relevant] limit prescribed …, other than by application pursuant to s 280(2) of the LPA on the grounds of 'unusual difficulty, complexity or importance'.[33]
[33] McGlinn v Joondalup Hospital Pty Ltd [No 2] [2014] WADC 3[28] (Staude DCJ).
As the costs are to be taxed after 1 July 2018, the relevant determination is the 2018 Determination. The significance of this declaration relates to Table B items 17 (Entry for trial/entry for hearing), 18 (Preparation of case) and 21(a)(Counsel fees) of the 2018 Determination (and its equivalents in previous determinations). Table B item 17(b) sets a limit of 8 hours of a senior practitioner's time for preparation of schedules required by DCR r 45C (particulars of damages). Item 17 then contains a note:
In relation to particulars of damages under District Court Rule 45C, if the claim is one declared by the Court to be a catastrophic personal injury claim, the time reasonably spent by a legal practitioner, or by a clerk or paralegal of a legal practitioner in preparation of case for trial, shall not be limited to 8 hours but shall be an amount which is reasonable in the circumstances.
Table B item 18 sets a limit of 120 hours of a senior practitioner's time for: 'Preparation of case for trial (includes work reasonably and necessarily undertaken prior to commencement of proceedings)'. Item 18 then contains a note:
If the claim is one declared by the Court to be a catastrophic personal injuries claim, the time reasonably spent by a legal practitioner, or by a clerk or paralegal of a legal practitioner in preparation of a case for trial shall not be limited to 120 hours but shall be an amount which is reasonable in the circumstances.
Table B item 21(a) sets a limit of 3.5 days for counsel for the fee on brief (first day and preparation, including submissions). Item 20(b) is in the same terms for the fee on brief for senior counsel. There is then a note:
If the claim is one declared by the court to be a catastrophic personal injury claim, the time reasonably spent by Counsel or Senior Counsel in preparation of case for trial shall not be limited to 3.5 days but shall be an amount which is reasonable in the circumstances.
By way of explanation, cl 6 of the schedule to the 2018 Determination provides:
6. Catastrophic personal injury claims
(a)The introduction of the items in the determinations relating to catastrophic personal injuries was explained in the Legal Profession (Supreme Court) (Contentious Business) Determination 2012 and Legal Profession (Supreme Court) (Contentious Business) Determination 2014.
(b)Since the introduction of the provisions for catastrophic personal injuries claims in 2012, the District Court decision in McGlinn as administrator for Jeffrey Craig McGlinn v Joondalup Hospital Pty Ltd [No 2] [2014] WADC 3 has meant that the stated objective of an early determination that a claim was a catastrophic personal injury claim has been unable to be achieved.
(c)In light of the decision in McGlinn as administrator for Jeffrey Craig McGlinn v Joondalup Hospital Pty Ltd [No 2] [2014] WADC 3 the Legal Costs Committee has decided that a determination as to whether a matter is a catastrophic personal injury claim for the purposes of items 18 and 21 will only require an assessment of the nature or extent of the injury or injuries sustained by the plaintiff that are at issue in the proceedings.
(d)The Legal Costs Committee remains of the view that determination as to whether a matter is a catastrophic personal injury should be made as early as possible in proceedings.
There are only two decided cases on the inquiry to be undertaken to assess whether an action is a catastrophic personal injury claim, being the decisions in Jeffrey Craig McGlinn v Joondalup Hospital Pty Ltd [No 2][34] (referred to in the quote in the preceding paragraph) and Ellis v East Metropolitan Health Service.[35] Each was based on the determinations in force prior to the 2018 Determination.
[34] McGlinn v Joondalup Hospital Pty Ltd [No 2].
[35] Ellis v East Metropolitan Health Service [2018] WADC 36 (S).
In Ellis I adopted the reasoning of Staude DCJ in McGlinn. The decision in Ellis was based on the position set out in Legal Profession (Supreme and District Courts)(Contentious Business) Determination 2016 (WA) (2016 Determination), which, like the 2018 Determination, cross referenced earlier determinations. The 2016 Determination does not add anything to the present analysis. The Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA) relevantly provided in cl 6:
6. Catastrophic personal injury claims
As noted in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012, the Legal Costs Committee then resolved that the costs associated with preparation of catastrophic personal injury claims for trial should be taxed or fixed without limit to the number of hours fixed under item 17 where the Court has declared a claim to be one for a catastrophic injury.
The Legal Costs Committee conferred with the Chief Justice of Western Australia and the then Principal Registrar of the District Court of Western Australia, and anticipated that the Courts would develop their own procedures for determination of whether a case is a catastrophic personal injury claim.
The Legal Costs Committee was, and remains of the view, that a determination of whether a case is a catastrophic personal injury claim for the purposes of item 17 would involve the assessment of two criteria —
(a)The injury or injuries sustained by the plaintiff that are at issue in the proceedings; and
(b)By virtue of the injury or injuries, whether an extra burden is placed upon the practitioners involved in the case for the preparation of the case for trial.
It is intended that the increase to the scale limit could apply to any or all parties not solely the plaintiff.
In making this Determination, the Legal Costs Committee has considered and accepted the submission by The Law Society of Western Australia (Inc) that if a claim is declared by the court to be a catastrophic personal injury claim, the limit on the number of hours and days in item 16(b), 20(a) and 20(b) in Table B should be removed.
Despite the lack of procedural rules for making such a declaration and the decision of the District Court of Western Australia in McGlinn as administrator for Jeffrey Craig McGlinn v Joondalup Hospital Pty Ltd [No 2] [2014] WADC 3, the Legal Costs Committee has resolved to maintain the scope to remove the limits in this Determination to catastrophic personal injury claims so that the cap on costs can be removed, regardless of when that declaration may be made by the court during the course of any proceedings.
The Legal Costs Committee remains of the view that determination as to whether a matter is a catastrophic personal injury should be made as early as possible in proceedings.
The Legal Costs Committee has noted that rules of Court incorporating procedures for declaring whether a case is a catastrophic personal injury claim have not yet been implemented.
Clause 7 of the schedule to the Legal Profession (Supreme Court) (Contentious Business) Determination 2012 (WA) (2012 Determination) is in similar terms:
7. Catastrophic personal injury claims
The Committee has resolved that the costs associated with preparation of catastrophic personal injury claims for trial should be taxed or fixed without limit to the number of hours fixed under item 17 where the Court has declared a claim to be one for a catastrophic injury.
The Committee conferred with the Chief Justice of Western Australia and the Principal Registrar of the District Court of Western Australia, and anticipates that the Courts will develop their own procedures for determination of whether a case is a catastrophic personal injury claim.
The Committee is of the view that a determination of whether a case is a catastrophic personal injury claim for the purposes of item 17 would involve the assessment of two criteria—
(a)The injury or injuries sustained by the plaintiff that are at issue in the proceedings; and
(b)By virtue of the injury or injuries, whether an extra burden is placed upon the practitioners involved in the case for the preparation of the case for trial.
It is intended that the increase to the scale limit could apply to any or all parties not solely the plaintiff.
The position remains that the District Court has not published rules of court dealing with this issue. The court did publish a circular to practitioners, Circular to Practitioners CIV 2012/03 Catastrophic Personal Injuries, however, this was withdrawn following the decision in McGlinn.
The determination as to whether a claim is one for a catastrophic personal injury involves the exercise of a discretion. The discretion must be exercised judicially, that is, in accordance with established principle and factors directly connected with the litigation, and not arbitrarily, capriciously or so as to frustrate the intent of the Legal Costs Committee (LCC),[36] being the body to whom Parliament has delegated the responsibility of drafting costs determinations.[37]
[36] Ellis [62]; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72[22] (Gaudron and Gummow JJ), [65] - [66], (McHugh J, with whom Brennan CJ agreed), [134] (Kirby J); Hughes v St Barbara Ltd [2011] WASCA 234 (S)[5] (judgment of the court) Naidoo v Williamson [2008] WASCA 179 [39] (Steytler P, with whom, Pullin JA and Murray AJA agreed); Brookvista Pty Ltd v Meloni [2009] WASCA 180 [26] (Newnes JA, with whom Buss JA agreed); Woodley v Woodley [No 2] [2017] WASC 94 (S) [14] (Pritchard J).
[37] Legal Professions Act 2008 (WA) div 5.
Prior to the 2018 Determination, the positon was that the LCC had identified two criteria identified that needed to be addressed in the exercise of the discretion to make a catastrophic personal injuries declaration, being:
(a)the injury or injuries sustained by the plaintiff that are at issue in the proceedings; and
(b)whether, by virtue of the injury or injuries, an extra burden is placed upon the practitioners involved in the case for the preparation of the case for trial.
In relation to this two criteria assessment, in McGlinn Staude DCJ observed:[38]
The application of both criteria is indicated because an injury which by its nature is catastrophic may not necessarily create an extra burden of work. For example, where a plaintiff, by reason of serious injury, is hospitalised for the rest of his or her life, the quantum of the claim may be uncontroversial.
[38] McGlinn [43].
Staude DJC set out a detailed analysis of the ways in which a catastrophic injury may create an extra burden of work by way of preparation of case for trial.[39] I adopted and applied this analysis in Ellis.[40] However, in the 2018 Determination the LCC removed the second criterion. In view of the removal of this second criterion, this reasoning no longer applies. Rather, the assessment 'of whether a matter is a catastrophic personal injury claim … will only require an assessment of the nature or extent of the injury or injuries sustained by the plaintiff that are at issue in the proceedings'.[41]
[39] McGlinn [55].
[40] Ellis [54] – [76].
[41] 2018 Determination, cl 6(c).
The rationale for this change appears to be to give effect to the stated view of the LCC that the determination as to whether a matter is a catastrophic personal injury claim should be made as early as possible in proceedings.[42] The obvious rationale for this view to enable the determination to be made before the claim is the subject of a pre-trial conference or mediation conference, so as to provide a more certain basis for the plaintiff's lawyers to advise the plaintiff (and typically his or her next friend) as to the costs issues surrounding settlement. This is in the context of the obligation in DCR r 36:
Unless otherwise ordered, a lawyer for a party to a case must not enter the case for trial unless the lawyer has given the party written notice of —
(a)the approximate legal costs and disbursements of the party up to and including giving the notice;
(b) the estimated future legal costs and disbursements of the party up to but not including the trial;
(c) the estimated length of the trial and the legal costs and disbursements associated with it;
(d) the estimated legal costs and disbursements that the party would have to pay to another party if the party were to lose the case.
[42] As quoted at [42] above.
In McGlinn, the application for a catastrophic personal injures declaration was made after the close of pleadings and following the filing of the plaintiff's particulars of damages pursuant to DCR 2005 r 45C(3). The action had not been entered for trial. By its defence, the defendant denied liability for negligence and put in issue the plaintiff's allegations of injury, loss and damage. The reason given by the plaintiff for seeking a declaration during the course of proceedings was that it would assist the plaintiff's solicitors to provide a meaningful costs disclosure pursuant to DCR r 36.[43] The defendant contended that the making of a declaration should not be considered unless and until the party seeking the declaration has obtained an order for the costs of the action.[44] Giving weight to the inquiry required by the second criterion, Staude DCJ declined to determine the application, observing that 'it is difficult to see how [the] declaration could be made before any liability for the costs of the action is determined'.[45]
[43] McGlinn [81] – [82].
[44] McGlinn [87].
[45] McGlinn [96].
The removal of the second criterion opens up for judicial reconsideration whether the language of cl 6 now achieves the stated objective of the LCC that the determination as to whether a matter is a catastrophic personal injury claim should be made as early as possible in proceedings. Indeed, where, as in the present case, costs are limited to taxed costs and any compromise must be reviewed by the court, it is appropriate, perhaps even necessary, for the issue of whether the claim is for catastrophic personal injuries to be determined at least prior to the compromise hearing and, ideally, prior to settlement discussions. Alternatively, if there is no dispute, the application for approval of the compromise could include an order declaring the action to be for a catastrophic personal injuries claim. The judge dealing with the compromise will be ideally placed to make this declaration as the judge will already have to review the action in some detail to consider whether to approve the compromise.
The reason why the declaration needs to be made prior to the approval of the compromise is so the amount of costs which are to be deducted from the compromise amount (over and above those paid by the defendant as party and party costs) can be identified and brought to the attention of the judge approving the compromise. One can imagine a situation in which the amount of costs which the plaintiff's lawyers seek to be paid from the compromise amount (as an untaxed maximum) cause the judge to have concerns as to whether it is appropriate to approve the compromise.[46] As I have already observed, one aspect of the approval process is 'to ensure that the solicitors acting for an infant or a disabled person are paid their proper costs and no more'.[47] Prudent practice should be for this amount (as an untaxed maximum) to be identified in the affidavit of the plaintiff's solicitor filed in support of the compromise application. Had this approach been adopted in the present case, the court would not now be in a positon of having to deal with an application to declare a claim to be for catastrophic personal injuries many months after the approval of the compromise.
[46] As to the principles to be applied in considering whether to approve the compromise, see generally: Sergi [37] – [42].
[47] Sergi [39].
The remainder of the reasoning in McGlinn and Ellis remains applicable. The expression 'personal injuries' should, as a matter of consistency, bear the same meaning as contained in the definition of a 'personal injuries action' in DCR r 3, that is, as including 'any illness suffered by him or her and impairment of his or her physical or mental condition'.[48] The expression 'catastrophic injury' as used colloquially in personal injury litigation 'characterises injuries which have a profoundly disabling effect on the victim, generally by depriving the victim of independence such that a permanent need for attendant care and supervision is created'.[49] This definition is generally consistent with the approach taken in the Motor Vehicle (Catastrophic Injuries) Act 2016 (WA) and the Motor Vehicle (Catastrophic Injuries) Regulations 2016 (WA). The words 'at issue in the proceedings' mean the subject of the proceedings.[50] It is for the party seeking the declaration to satisfy the court that the action is appropriately characterised as one involving a catastrophic personal injury.
[48] Ellis [64].
[49] McGlinn [38]; Ellis [65].
[50] McGlinn [40]; Ellis [65].
The injuries sustained by the plaintiff at issue in the proceedings are those set out in the pleadings. In the statement of claim, the plaintiff pleads that at birth she:[51]
(a)had an Apgar score of 4/10;
(b)suffered fetal distress before delivery;
(c)had shown evidence of fetal bradycardia;
(d)had shown evidence of meconium liquor;
(e)suffered initial respiratory failure;
(f)required meconium suction; and
(g)required resuscitation via facial oxygen and bag and mask ventilation.
[51] Amended Statement of Claim 9 March 2018 (folio 117), par 45.
The plaintiff goes on to plead that she has suffered the following injuries, which were caused, or materially contributed to, by the defendant's breach of duty of care:[52]
[52] Amended Statement of Claim 9 March 2018 (folio 117), par 56.
(a)mixed type cerebral palsy;
(b)athetosis and spasticity;
(c)microephaly;
(d)plagiocephaly;
(e)brachycephaly;
(f)visual impairment;
(g)development delay;
(h)seizure disorder/epilepsy;
(i)choreiform/involuntary movements; and
(j)brain damage.
Extensive particulars were provided as to the medical treatment which the plaintiff has received for these medical conditions.[53]
[53] Amended Statement of Claim 9 March 2018 (folio 117), par 59.
The plaintiff's particulars of damages ran to 23 pages and itemised a claim in the order of $12.5 million (exclusive of general damages) including for full-time care 24 hours a day on a high intensity basis and a total loss of earning capacity.[54]
[54] Amended Particulars of Damages dated 10 April 2018 (folio 127).
The extent of the plaintiff's injuries was put in issue in the defence, there being a positive defence raised that the plaintiff did not suffer an acute hypoxic event causative of the injuries pleaded.[55]
[55] Defence dated 4 September 2013 (folio 21), par 44.
Assessing the nature and extent of the injuries sustained by the plaintiff that are at issue in the proceedings as set out in the pleadings, I have no hesitation in concluding that the present action is for a catastrophic personal injury claim for the purposes of the 2018 Determination. The plaintiff's injuries will require her to be in full time, high intensity, care for the rest of her life. The plaintiff is entitled to a declaration in these terms.
Should the Court make an order pursuant to LPA s 280(2)?
The making of a determination that the case was for a catastrophic personal injury claim deals with the Application in so far as it seeks orders in relation to preparation of the case for trial and counsel fees for trial preparation. It does not address the issue of the uplift sought for the statement of claim and application for leave to compromise. For this reason, and in case I am wrong in my determination that the action was for a catastrophic personal injury, I will also address the issue of an uplift for preparation and counsel fees for the first day of trial.
The power to make special costs orders contained in LPA s 280(2) is in the following terms:
… 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.
If an order is made removing the limits on costs fixed for certain items in the applicable determination, 'it nevertheless remains the task of the taxing officer to consider the reasonableness of and necessity for the work undertaken, and to make a judgment about the remuneration reasonably required'.[56] So for example, it will be an issue for the taxing officer as to whether the briefing of a second junior counsel by the plaintiff was reasonably necessary.[57]
[56] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [11] (reasons of the court).
[57] Haddon v Everitt on behalf of the Commissioner of Police (2001) 126 A Crim R 418; [2001] WASCA 420 [60] (Wallwork J); Stanley v Phillips [1966] HCA 24; (1966) 115 CLR 470, 479 (Barwick CJ).
The court can either remove the scale limits generally[58] or for specific items.[59]
[58] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 11] [2011] WASC 74 [102] (Murray J).
[59] Cifuentes v Fugro Spatial Solutions Pty Ltd [2009] WASC 316 (S) [54] (Murray J).
The principles for making an order pursuant to LPA s 280(2) are well established:[60]
(a)the court must first form an opinion that the costs otherwise allowable would be inadequate and second form an opinion that such inadequacy arises because of the unusual difficulty, complexity or importance of the matter;
(b)the requirement of inadequacy will be demonstrated if the applicant shows that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit that would be imposed by the relevant costs determination;
(c)because the determination would ordinarily be made in advance of taxation, it is a matter impression, rather than a matter of detailed evaluation, precision or science;
(d)word 'unusual' in LPA s 280(2) qualifies 'difficulty' only and not 'complexity' or 'importance';
(e)the characteristics of unusual difficulty, complexity or importance qualify the matter before the court, rather than the work done or services provided in respect of each applicable item of the costs determination; and
(f)there must be a causal connection between the unusual difficulty, complexity or importance of the matter brought before the court and the inadequacy of the costs allowable under the relevant determination.
[60] Sino Iron [12] - [16]; Maio v City of Stirling [No 2] [2016] WASCA 45 (S) [25] - [29] (reasons of the court); Atwell v Roberts [2013] WASCA 37 (S) [15] – [17] (judgment of the court); Wainright v Barrick Gold of Australia [2014] WASCA 15 (S) [7] – [9] (judgment of the court); Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S) [3] (judgment of the court); Electricity Generation [4].
There are six matters which reflect the profile of the present action:
(a)the nature and extent of the injuries sustained by the plaintiff;[61]
(b)the quantum of the damages sought;[62]
(c)breach, causation and quantum were in issue;[63]
(d)the plaintiff proposed to tender 12 expert reports from six experts at the trial of the action;[64]
(e)the defendant proposed to tender 25 expert reports from six experts at the trial of the action;[65] and
(f)the trial was listed for 23 days.[66]
[61] Above [62] – [64].
[62] Above [65].
[63] Above [66].
[64] Affidavit of Peter Lyndon Harris 27 June 2018, Exhibit PLH-01, Book of Documents Index Volume 1, Volume 4 (folio 153).
[65] Affidavit of Peter Lyndon Harris 27 June 2018, Exhibit PLH-01, Book of Documents Index Volume 2, 3 and 4.
[66] Order Registrar Kingsley 23 October 2017 at which the trial was listed from 28 May 2018 to 29 June 2018.
The first issue is whether the plaintiff's lawyers can show that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit that would be imposed by the relevant costs determination. The following table sets out the items claimed and the relevant scale limits:
Item
Description
Scale maximum
Amount claimed
Item 7(b)
(2016)
Statement of claim
$4,840.00
(2016)
$18,513.50
Item 17 (2010 ‑ 2016)
Item 18 (2018)
Preparation of Case
$59,400.00
(2018)
$253,095.60
Item 20(a)(i) (2016)
Item 21(a)(i) (2018)
Counsel fee on brief i.e. first day of trial and preparation (including submissions)
$18,810.00
(2018)[67]
$105,912.60
Item 10
(2018)
Compromise application
$12,540.00
(2018)
$34,694.00
[67] Plus 1 additional day ($3,960) for each five hearing days after the first five.
It is apparent that the work was done over a period of time in which multiple determinations applied. The amount available to a party for preparation of a case for trial and counsel fees is the amount specified in the relevant item as at the date the bill is taxed.[68] Where work is done over the span of multiple determinations, it 'may be that the taxing officer, mindful that most of the work of getting up was done at a time when the determination provided a lower amount for getting up than presently applied would take that into account in taxing the bill'.[69] The maximum hourly rates in each determination apply to costs incurred in the period to which that determination applies.[70] The LPA 'clearly intends that clients be charged rates which correspond to the scale in force at the relevant time not some scale which might be introduced some years after the relevant work was undertaken'.[71] Where the cost for a particular item is fully incurred within the time frame of a determination (for example, drafting a statement of claim), the limit is that which applied when the work was completed.[72]
[68] Beasley v Ocean Foods International Pty Ltd [2005] WASC 116 [14]; Ellis [87]; Forrest-Moore v Belswan (Mandurah) Pty Ltd [No 2] [2011] WADC 217 [3] (DR Hewitt).
[69] Beasley [14].
[70] 2018 Determination cl 3(c): 'This Determination does not apply to the remuneration of law practices for costs incurred before 1 July 2018'. There are equivalent provisions I the Prior Determinations. See generally: Forrest-Moore [3] – [12].
[71] Forrest-Moore [11].
[72] Again based on 2018 Determination cl 3(c) and its equivalents.
In view of the matters in [73], I am readily satisfied that there is a fairly arguable case that a bill in terms set out in [74] if presented to a taxing officer may tax at an amount which is greater than the limit that would be imposed by the relevant costs determination.
The plaintiff's lawyers rely each of unusual difficulty, complexity and importance.
The word 'unusual' in the context of LPA s 280(2) 'means unusual having regard to what one might describe as the usual run of civil cases determined in the court'.[73] This 'essentially involves the making of a value judgment by the court, having regard to the court's experience of the particular case when compared with the usual run of cases'.[74]
[73] Sino [15].
[74] Sino [15]; Wainwright [9].
A case of the profile set out in [73] would, in my view, be an unusually difficult one compared to the usual run of civil cases in the court. As a broad measure of the usual run of civil cases in the District Court, the average length of the 47 civil trials conducted in the District Court in 2017 was 4 days.[75]
[75] District Court of Western Australia, Annual Review 2017, pages 14.
A case of the profile set out in [73] would also be a complex case of the same order of magnitude as the decision in Ellis v East Metropolitan Health Service.[76]
[76] Ellis v East Metropolitan Health Service [2018] WADC 36.
As to the 'importance' of the matter, in Heartlink v Jones as Liquidator of HL Diagnostics Ltd (in liq) the then Chief Justice observed:[77]
It seems to me that by reference to 'importance' in this context, the legislature is allowing the court to have regard to the question of whether the work done was appropriate to the significance of the issues that arose in the litigation. Significance can arise either because of the significance of the issues to the parties or because of the significance of the issues to other prospective parties or to the public or to the community generally.
[77] Heartlink v Jones as Liquidator of HL Diagnostics Ltd (in liq) [2007] WASC 254 (S) [19]; Sino [15].
In Corp v Robinson Kenneth Martin J observed:[78]
Every action at some level can be regarded as being personally important to a participant plaintiff or defendant. There must be something more shown to establish the general importance of the matter.
[78] Corp [14].
The damages awarded are going to be relied on by the plaintiff as her sole independent source of financial assistance throughout her life. It was significant to her. She has suffered what I have found to be a catastrophic personal injury, one that will require her to be in full time, high intensity, care for the rest of her life. In my view, the work done was important in the sense of being appropriate to the significance of the issues to the parties.
I am further of the view that there is a clear causal connection between the unusual difficulty, complexity or importance of the issues brought before the court and the inadequacy of the costs allowable under the relevant determination.
Where the costs allowable in respect of a matter under a costs determination are inadequate because of the unusual difficulty, complexity or importance of the matter, the court 'may' make an order of the kind set out in LPA s280(2). The court has a discretion as to whether to do so.[79]
[79] Wainwright [20]; Terravision Pty Ltd v Black Box Control Pty Ltd [No 5] [2018] WASC 340 [17] – [27] (Le Miere J).
There is one significant discretionary factor in the present Application. This is the submission by the Trustee that the effect of the Application is to place the plaintiff's lawyers in a conflict of interest with the plaintiff.[80] The conflict is between their duty to the plaintiff to minimise the funds coming out of the Trust funds and their own interest in ensuring that they are fully indemnified from the Trust funds for the amount they owe to Mr Howells for his fees as a barrister. The effect of the orders sought in the Application is to increase the amount able to be withdrawn from the Trust funds legal fees, decreasing the amount available for the plaintiff's future care and wellbeing.
[80] Trustee's submissions, pars 16 – 18.
Obviously it would have been desirable for there to have been a costs agreement between Mr Howells and the plaintiff's next friend which would have obviated the need for the Application. However, that not being the case, the plaintiff's lawyers acted prudently in bringing the issue before the court with supervisory power over the Trust. As I have already observed, the conflict of interest was transparent and met, in part, by the presence of counsel for the Trustee as amicus, representing the plaintiff, and placing the relevant arguments against the Application before the court.
On the materials before me it is clear that the plaintiff's next friend instructed the plaintiff's lawyers to brief Mr Howells.[81] As the plaintiff's lawyers no longer seek an uplift in the hourly rate beyond the scale limit, I do not need to consider whether the plaintiff's next friend knew of, and consented to, the rates being proposed by Mr Howells. It is also clear on the extensive affidavit evidence of Mr Harris that the plaintiff had the benefit of an enormous amount of work by Mr Howells, work which, in my view, was instrumental in the case proceeding to settlement on terms favourable enough to the plaintiff for the court to approve. The extent of the work done by Mr Howells was also evident to me in his counsel's opinion in support of the compromise application, which I have reviewed again for the purposes of determining the Application. The work in fact done by Mr Howells is a strong factor in favour of the exercise of the discretion. Whether the costs charged for this work were reasonable is a matter to be determined by the taxing officer.
[81] Second Harris Affidavit, pars 26 – 27.
A further factor in favour of the exercise of the discretion is that the orders sought mostly parallel the effect of the declaration that the action was for a catastrophic personal injury. There is no element of discretion in that determination, merely an objective assessment of the injuries in issue in the action. An order pursuant to LPA s 280(2) as to the balance of the items claimed, and which are not covered by the declaration, is analogous to the effect of the declaration.
In my view, it is appropriate in the somewhat unique circumstances of the present Application to make orders pursuant to LPA s 280(2) to cover the balance of the items claimed.
What final orders should be made?
As the present case is able to be characterised as a catastrophic personal injury claim, a declaration to this effect should be made. This addresses items 18 (preparation of case for trial) and 21 (counsel's fees).
The scale limit for the remaining items, item 1 (statement of claim) and item 10 (compromise application) should be removed pursuant to LPA s 280(2), leaving it to the taxing officer to assess the reasonableness of the amounts charged.
I will hear from counsel as to the precise terms of the orders as well as costs. I am of the preliminary view that the plaintiff's lawyers, personally, should pay the costs incurred by the Trustee in appearing on the Application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Court Officer10 MAY 2019
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