Tranchita v Danehill Nominees Pty Ltd [No 3]

[2009] WASC 49

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   TRANCHITA -v- DANEHILL NOMINEES PTY LTD [No 3] [2009] WASC 49

CORAM:   MARTIN CJ

HEARD:   14 JANUARY 2008

DELIVERED          :   14 JANUARY 2009

PUBLISHED           :  6 MARCH 2009

FILE NO/S:   CIV 1124 of 2004

BETWEEN:   VINCENZO TRANCHITA

Plaintiff

AND

DANEHILL NOMINEES PTY LTD (ACN 008 867 623)
First Defendant

VINCENZO FAZIO
GIUSEPPINA FAZIO
Second Defendants

VINCENT CALALESINA
MARIA CALALESINA
Third Defendants

SEBASTIANO FAZIO
MARIA FAZIO
Fourth Defendants

BIANCA ROSIE NASO
Fifth Defendant

GIUSEPPE MONASTRA
NUNZIATA MONASTRA
Sixth Defendants

ERIGO FAZIO
Seventh Defendant

REGISTRAR OF TITLES
Eighth Defendant

SEBASTIANO CATALANO
First Third Party

ROSARIA CATALANO
Second Third Party

(BY ORIGINAL ACTION)

SEBASTIANO GIUSEPPE FAZIO
MARIA PALMA FAZIO
First Plaintiffs

GIUSEPPE MONASTRA
First-named Second Plaintiff

NUNZIATA MONASTRA
Second-named Second Plaintiff

AND

DANEHILL NOMINEES PTY LTD (ACN 008 867 623)
First Defendant

BASILIO TRANCHITA
LAURINA TRANCHITA
Second Defendants

CALOGERO TRANCHITA
CONCETTA SILVANA TRANCHITA
Third Defendants

GIACOMINA SEBASTIANA TRANCHITA
Fourth Defendant

ROSARIO TRANCHITA
Fifth Defendant

VINCENZO TRANCHITA
Sixth Defendant

MELINA TRANCHITA
Seventh Defendant

BIANCA ROSIE NASO
Eighth Defendant

VINCENT CALALESINA
MARIA PALMA CALALESINA
Ninth Defendants

ERIGO FAZIO
Tenth Defendant

ZELJKO GREGO
Eleventh Defendant

TONY GREGO
Twelfth Defendant

VINCENZO FAZIO
GIUSEPPINA FAZIO
Thirteenth Defendants

(BY COUNTERCLAIM)
 

Catchwords:

Costs - Item 23 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 - Costs to reflect attendance of counsel at mediation

Legislation:

Legal Practice Act 2003 (WA), s 215
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA)

Result:

Scale limit imposed by item 23(a) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 to be lifted

Category:    B

Representation:

Original Action

Counsel:

Plaintiff:    Mr S V Forbes

First Defendant          :    No appearance

Second Defendants          :    No appearance

Third Defendants          :    No appearance

Fourth Defendants          :    No appearance

Fifth Defendant          :    No appearance

Sixth Defendants          :    No appearance

Seventh Defendant          :    Ms L M Retallack

Eighth Defendant          :    No appearance

Solicitors:

Plaintiff:    Eastwood Law

First Defendant          :    Jackson McDonald

Second Defendants          :    Jackson McDonald

Third Defendants          :    CLP Lawyers

Fourth Defendants          :    Williams Handcock

Fifth Defendant          :    WA Legal Pty Ltd

Sixth Defendants          :    Williams Handcock

Seventh Defendant          :    Solomon Brothers

Eighth Defendant          :    No appearance

Counterclaim

Counsel:

First Plaintiffs          :    No appearance

First-named Second Plaintiff     :    No appearance

Second-named Second Plaintiff  :    No appearance

First Defendant          :    No appearance

Second Defendants          :    No appearance

Third Defendants          :    No appearance

Fourth Defendant          :    No appearance

Fifth Defendant          :    No appearance

Sixth Defendant          :    Mr S V Forbes

Seventh Defendant          :    No appearance

Eighth Defendant          :    No appearance

Ninth Defendants          :    No appearance

Tenth Defendant          :    Ms L M Retallack

Eleventh Defendant          :    No appearance

Twelfth Defendant          :    No appearance

Thirteenth Defendants          :    No appearance

First Third Party          :    No appearance

Second Third Party          :    No appearance

Solicitors:

First Plaintiffs          :    Williams Handcock

First-named Second Plaintiff     :    Cameron Eastwood

Second-named Second Plaintiff  :    Arthur Metaxas & Co

First Defendant          :    Jackson McDonald

Second Defendants          :    No appearance

Third Defendants          :    No appearance

Fourth Defendant          :    No appearance

Fifth Defendant          :    No appearance

Sixth Defendant          :    Cameron Eastwood

Seventh Defendant          :    No appearance

Eighth Defendant          :    WA Legal Pty Ltd

Ninth Defendants          :    CLP Lawyers

Tenth Defendant          :    Solomon Brothers

Eleventh Defendant          :    No appearance

Twelfth Defendant          :    Mony De Kerloy

Thirteenth Defendants          :    Jackson McDonald

First Third Party          :    Jackson McDonald

Second Third Party          :    Jackson McDonald

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

Nil

MARTIN CJ: 

(This judgment was delivered extemporaneously on 14 January 2009 and has been edited from the transcript.) 

1. Mr Erigo Fazio, the seventh defendant (tenth defendant by counterclaim) in these proceedings applies for an order pursuant to s 215 of the Legal Practice Act 2003 (WA), raising the limit that would be imposed by an item in a relevant scale, being in particular item 23 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA), made to take effect from 1 July 2006.  That item covers work done at a mediation and specifies an allowance of up to $363 per hour for time spent on the mediation to reflect the time of a senior practitioner. 

2. It seems to me that on the proper construction of that item, the taxing officer is required to assess the time spent in performance of the mediation relevant to the client for whom the work was done and to then apply a rate of up to $363 per hour for that time spent.  In this case the mediation was attended by senior counsel and a senior practitioner (as defined in the costs scale) on behalf of Mr Erigo Fazio and also on behalf of other parties, and also in respect of other actions which were listed for mediation simultaneously with these proceedings.

3. It is, therefore, necessary for the taxing officer to undertake an apportionment of the time spent by those representatives at the joint mediation in order to identify that portion of the time which was spent by them on the mediation on behalf of this defendant and in relation to this matter.  However, as I read item 23 when that task has been performed, the maximum allowance that the taxing officer could make in respect of that time which he evaluates as the portion of the total mediation spent on behalf of Mr Erigo Fazio and on the mediation of this action is $363 per hour.  Mr Fazio complains that that allowance is inadequate because it would make no allowance for the attendance of senior counsel.

4. Section 215 of the Legal Practice Act empowers the court to raise the limit provided by any item in a costs scale because of the unusual difficulty, complexity or importance of the matter. I am familiar with the matters in issue in these proceedings, having embarked upon the commencement of the trial of the various pieces of litigation of which this action formed a part. I have no hesitation in concluding that each of the qualifying conditions contained in s 215 are satisfied in this case. The matters were of unusual difficulty. They were complex and they were important to the parties, involving subject matter of considerable value. So it seems to me that the jurisdictional threshold is met and that the court is empowered to make an order, if it is satisfied that the allowance in the scale would be inadequate.

5. Because of the view which I take of the structure of the scale, it seems to me that in this case the rate prescribed by item 23 would be inadequate.  That is because it was entirely appropriate for counsel representing Mr Erigo Fazio to have attended the mediation.  Indeed, it seems to me that item 23 as presently structured, is inadequate generally to allow for the attendance of counsel at mediation, a practice which, in my opinion, is to be strongly encouraged.

6. Mediation is a most desirable process that has now become a primary focus of the activity of the court.  The success of mediations conducted by officers of the court has substantially reduced the proportion of cases going to trial.  That success is likely to be enhanced if parties are encouraged to bring all necessary legal advisers, including their counsel, to a mediation to give them advice at that mediation, with a view to achieving resolution of the action.

7. It seems to me to be regrettable that item 23 of the current scale discourages that desirable practice by not making an appropriate allowance for counsel to attend mediations.  That seems to me to be an inadequacy in the scale which should perhaps be addressed by the Legal Costs Committee, the next time the scale is reviewed, but it is sufficient in the present case for me to say that because of the view which I take of the current structure of the scale, it is not adequate to make appropriate allowance for the portion of the time of both the senior practitioner and senior counsel properly spent on behalf of Mr Erigo Fazio in the mediation of this action.

8. Therefore, I will make the following orders:

   1.The scale limit imposed by item 23(a) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 for the costs in respect of the mediation conferences held in this action be lifted, and the taxing officer make an allowance for preparation and attendance by both Senior Counsel and an instructing solicitor on behalf of the seventh defendant (tenth defendant by counterclaim) in relation to these proceedings at the mediation conferences.

   2.The plaintiff by original action (sixth defendant by counterclaim) pay the seventh defendant's costs of this application in an amount of $1,500.00, and that amount be paid following the completion of taxation of costs.