Town of Port Hedland v Hodder [No 2]
[2012] WASCA 212 (S)
•19 DECEMBER 2012
TOWN OF PORT HEDLAND -v- REECE WILLIAM HODDER BY NEXT FRIEND ELAINE GEORGINA HODDER [No 2] [2012] WASCA 212 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 212 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:123/2011 | ON THE PAPERS | |
| Coram: | MARTIN CJ McLURE P MURPHY JA | 19/12/12 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for special costs order dismissed | ||
| B | |||
| PDF Version |
| Parties: | TOWN OF PORT HEDLAND REECE WILLIAM HODDER BY NEXT FRIEND ELAINE GEORGINA HODDER THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF PERTH |
Catchwords: | Costs Special costs orders Counsel fees |
Legislation: | Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA) Legal Profession Act 2008 (WA), s 280(2) Supreme Court Act 1935 (WA), s 37(1) |
Case References: | Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TOWN OF PORT HEDLAND -v- REECE WILLIAM HODDER BY NEXT FRIEND ELAINE GEORGINA HODDER [No 2] [2012] WASCA 212 (S) CORAM : MARTIN CJ
- McLURE P
MURPHY JA
- Appellant
AND
REECE WILLIAM HODDER BY NEXT FRIEND ELAINE GEORGINA HODDER
First Respondent
THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF PERTH
Second Respondent
- Appellant
AND
TOWN OF PORT HEDLAND
First Respondent
THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF PERTH
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
Citation : HODDER by his next friend ELAINE GEORGINA HODDER -v- TOWN OF PORT HEDLAND [2011] WADC 145
File No : CIV 1316 of 2008
Catchwords:
Costs - Special costs orders - Counsel fees
Legislation:
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA)
Legal Profession Act 2008 (WA), s 280(2)
Supreme Court Act 1935 (WA), s 37(1)
Result:
Application for special costs order dismissed
(Page 3)
Category: B
Representation:
CACV 123 of 2011
Counsel:
Appellant : Mr S Walsh QC & Mr J Campbell
First Respondent : Dr A S Morrison QC & Mr G Droppert
Second Respondent : Mr D R Clyne
Solicitors:
Appellant : DLA Piper Australia
First Respondent : Donna Percy & Co
Second Respondent : SRB Legal
CACV 127 of 2011
Counsel:
Appellant : Dr A S Morrison QC & Mr G Droppert
First Respondent : Mr S Walsh QC & Mr J Campbell
Second Respondent : Mr D R Clyne
Solicitors:
Appellant : Donna Percy & Co
First Respondent : DLA Piper Australia
Second Respondent : SRB Legal
Case(s) referred to in judgment(s):
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S)
Town of Port Hedland v Hodder [No 2] [2012] WASCA 212
(Page 4)
- JUDGMENT OF THE COURT:
Introduction
1 These reasons are concerned only with one aspect of the costs orders following from the resolution of these appeals, for reasons which were published as Town of Port Hedland v Hodder [No 2] [2012] WASCA 212. These short reasons should be read with those reasons, which describe the appeals, the issues which arose in the appeals, and their resolution.
The appeals
2 Put shortly, Mr Hodder brought proceedings claiming damages for personal injuries which he suffered while using a swimming pool owned by the Town of Port Hedland and managed on behalf of the Town by the YMCA. Mr Hodder claimed damages against both, and the Town claimed contribution and indemnity from the YMCA. The trial judge found that the Town was liable, but the YMCA was not, and accordingly Mr Hodder's claim against the YMCA, and the Town's claim against the YMCA for contribution and indemnity were each dismissed. The damages awarded against the Town were reduced by 10% because of the finding of contributory negligence made by the trial judge.
3 There were two appeals from that decision. The Town asserted that the trial judge was wrong to find the Town liable to Mr Hodder in negligence and to dismiss its claim for contribution and indemnity against the YMCA. The Town also asserted that the deduction made for contributory negligence was inadequate.
4 Mr Hodder also appealed. Like the Town, he challenged the conclusion of the trial judge to the effect that the YMCA was not liable. He also challenged the finding of contributory negligence.
5 The court unanimously dismissed the Town's appeal in its entirety, and Mr Hodder's appeal insofar as it challenged the finding that the YMCA were not liable to him. However, by a majority, Mr Hodder's appeal against the finding of contributory negligence was upheld (for differing reasons).
The costs orders made
6 When our reasons were published, orders were made by consent in each appeal to the effect that the Town pay the costs of the other parties to
(Page 5)
- be taxed, if not agreed, in one bill. Liberty to apply for any special costs orders governing the taxation was reserved.
The orders sought
7 Orders are sought on behalf of Mr Hodder to enable his costs to be taxed without regard to the limits imposed by items 23(g) and (h) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA) which impose limits upon the amounts which may be awarded in respect of counsel fees on an appeal. These are the only orders sought.
The evidence
8 The application is supported by an affidavit sworn by the solicitor acting on behalf of Mr Hodder. She deposes that senior counsel rendered an account for services related to the appeal calculated on the basis of 8.5 days of preparation and two days of hearing, at a daily rate of $7,700 inclusive of GST. In addition, an amount has been charged for expenses incurred during time spent in Perth, given that senior counsel is not normally resident in Perth.
9 Junior counsel has rendered an account on the basis of four days of preparation and one day's attendance at the hearing of the appeal at the rate of $3,410 per day inclusive of GST.
10 The solicitor's affidavit also annexes a report dealing with the importance of the need for high quality care for Mr Hodder over the balance of his life.
The scale
11 The maximum amount allowable for senior counsel under item 23(h) of the scale is $18,150 plus $6,050 for the second day of the hearing of the appeal pursuant to item 23(j). The maximum amount allowable under item 23(g) of the scale for junior counsel is $10,230 plus $3,410 for the second day of hearing of the appeal pursuant to item 23(i). It is apparent that the scale items covering preparation and the first day of hearing of the appeal have been stipulated on the basis of an allowance of two days preparation and the first day of hearing at rates of $6,050 per day for senior counsel, and $3,410 per day for junior counsel. In all cases, the rates in the scale are inclusive of GST.
12 It is therefore apparent that in the case of the limit applicable to senior counsel, the application is brought on the basis that the limit should
(Page 6)
- be lifted to enable the taxing officer to consider whether an amount should be allowed which reflects additional time in preparation, and a higher rate than that contemplated by the scale limit. In the case of junior counsel, given the concession by the Town to which I will shortly refer, there is no need to increase the limit imposed by the scale to enable the taxing officer to allow the fees charged by junior counsel in full.
The Town's position
13 The Town opposes the application. However, by its written submissions, it accepts that because there were two appeals, the limits applied in items 23(g) and (h) should be doubled, notwithstanding the order to the effect that the costs be taxed in one bill. Although that proposition might be contentious, the concession is clearly and unequivocally made, and would no doubt bind the Town in any taxation. Given that concession, the question becomes whether special orders should be made to enable the taxing officer to allow counsel fees greater than those which would be assessed on the basis of four days of preparation and two days of hearing at the maximum daily rate implicit within the scale limit. In the case of junior counsel, the answer to that question is apparent, as the fees actually charged by junior counsel are less than the limit calculated in accordance with the Town's concession.
The principles to be applied
14 The relevant principles to be applied in resolving this question are not contentious. Special costs orders can be made either pursuant to s 280(2) of the Legal Profession Act 2008 (WA), or pursuant to s 37(1) of the Supreme Court Act 1935 (WA). In either case, before the power will be exercised, the court must form the view that the maximum amount allowable under the relevant scale item is inadequate in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount which is greater than the limit which would be imposed by the relevant costs determination (see Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S) [11]). If that threshold is crossed, under s 280(2) other questions arise for determination. However, until that threshold is crossed, the power will not ordinarily be exercised.
15 Issues of the kind which arise when special costs orders are sought are addressed as matters of impression, rather than as matters of detailed evaluation, precision or science.
(Page 7)
The application of the principles in this case
16 Having regard to the concession made by the Town, on taxation the taxing officer will have the power to allow amounts for each of senior and junior counsel up to a maximum calculated on the basis of four days of preparation and two days of hearing at the maximum daily rate implicit in the scale. In our view, there is no reason to suppose that more than four days preparation was required for these appeals on the part of either counsel given that the bulk of the issues in the appeals involved the application of conventional principles of law to facts found by the trial judge which were not contentious. The issue of contributory negligence was more complex, but the relevant authorities were not overwhelmingly extensive, and the issues could have been readily researched and prepared within the time for preparation allowed by the scale. The appeal itself occupied less than two days of hearing.
17 So far as the daily rate of senior counsel is concerned, there is no evidence to the effect that appropriate counsel could not have been obtained at the maximum daily rate implicit in the scale.
18 So far as travel expenses are concerned, the choice of senior counsel resident in another State, gives rise to costs properly borne by the party engaging such counsel, and should not be included within party and party costs on taxation.
19 For these reasons, having regard to the concession made by the Town, the maximum amounts allowable in respect of counsel fees under the applicable scale are adequate, and the application for special costs orders should be dismissed. The Town should have its costs of responding to that application, to be taxed if not agreed.
0