Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd

[2014] WASCA 164 (S)

TECHNOMIN AUSTRALIA PTY LTD -v- XSTRATA NICKEL AUSTRALASIA OPERATIONS PTY LTD [2014] WASCA 164 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 164 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:5/2013	Heard:	3 SEPTEMBER 2014
Coram:	McLURE P NEWNES JA MURPHY JA	Delivered:	23/09/14
No of pages:	4	Judgment Part:	1 of 1
Result:	Costs order made
Category:	B
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Parties:	TECHNOMIN AUSTRALIA PTY LTD XSTRATA NICKEL AUSTRALASIA OPERATIONS PTY LTD XSTRATA NICKEL AUSTRALASIA PTY LTD
Catchwords:	Costs Whether limits on costs should be removed because of the unusual difficulty, complexity or importance of the matter
Legislation:	Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 Legal Profession Act 2008 (WA), s 280(2)
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TECHNOMIN AUSTRALIA PTY LTD -v- XSTRATA NICKEL AUSTRALASIA OPERATIONS PTY LTD [2014] WASCA 164 (S) CORAM : McLURE P

NEWNES JA
MURPHY JA

HEARD : 3 SEPTEMBER 2014 DELIVERED : 23 SEPTEMBER 2014 FILE NO/S : CACV 5 of 2013 BETWEEN : TECHNOMIN AUSTRALIA PTY LTD

Appellant

AND

XSTRATA NICKEL AUSTRALASIA OPERATIONS PTY LTD
First Respondent

XSTRATA NICKEL AUSTRALASIA PTY LTD
Second Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : ALLANSON J

Citation : TECHNOMIN AUSTRALIA PTY LTD -v- XSTRATA NICKEL AUSTRALASIA OPERATIONS PTY LTD [No 3] [2012] WASC 481

File No : CIV 1514 of 2009

Catchwords:

Costs - Whether limits on costs should be removed because of the unusual difficulty, complexity or importance of the matter

Legislation:

Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012

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

Result:

Costs order made

Category: B

Representation:

Counsel:

Appellant : Mr D E J Ryan SC & Mr M R Hall
First Respondent : Mr C G Colvin SC & Mr P D Quinlan SC
Second Respondent : Mr C G Colvin SC & Mr P D Quinlan SC

Solicitors:

Appellant : Tottle Partners
First Respondent : King & Wood Mallesons
Second Respondent : King & Wood Mallesons

Case(s) referred to in judgment(s):

Nil


1 JUDGMENT OF THE COURT: Judgment in this appeal was delivered on 3 September 2014. On that day, the court ordered that the appeal be dismissed and made associated orders in accordance with a minute of proposed orders filed by the respondents. The respondents also moved for proposed order 3 in the following terms:

Pursuant to s 280(2) of the Legal Profession Act 2008 (WA), in respect of the respondents' costs of the appeal, the limits on costs imposed by the relevant Legal Practitioners (Supreme Court) (Contentious Business) Determinations under the Legal Profession Act 2008 (WA):

(a) be removed in respect of Item 23(b);

(b) be increased to the rates for senior counsel in Items 23(g) and (i).

2 Notwithstanding the provision of an advance copy of the reasons, counsel for the appellant informed the court that he did not have instructions in relation to proposed order 3 and was not in a position to make submissions on that matter. Pursuant to directions made by the court, the appellant has now filed and served written submissions opposing the proposed order.

3 The relevant determination is the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (the determination). This court has the power to remove the limits on costs fixed in the determination if it is of the opinion that the amount of costs allowable thereunder is inadequate because of the unusual difficulty, complexity or importance of the matter: Legal Profession Act 2008 (WA), s 280(2)(c).

4 Item 23(b) relates to the respondents' answer, Item 23(g) is for counsel fee on hearing (including preparation) and Item 23(i) is for counsel fee for the second day of hearing.

5 We are satisfied that this is one of the very few appeals in which it was appropriate to use the services of two senior counsel. The financial stakes were very high and the factual and legal issues of unusual complexity and difficulty.

6 Unusually, the application to remove the limit on costs in respect of Item 23(b) is not supported by affidavit. However, it is apparent on the face of the respondents' answer, which includes a notice of contention, that it was prepared by two senior counsel, Mr C Colvin and Mr P Quinlan. Both senior counsel appeared and made oral submissions at the hearing of the appeal. The Items in the determination are not fixed by reference to the involvement of two senior counsel in an appeal.

7 In that light, and notwithstanding the absence of affidavit evidence, we are satisfied that the amount of costs allowed in Item 23(b) is inadequate. For the same reason, it is also appropriate that the amount in Items 23(g) and (i) be increased to the rate for senior counsel.

8 Accordingly, we would make an order in the terms of proposed order 3 set out above.