Trandos v Western Australian Planning Commission
[2001] WASCA 346 (S)
•6 NOVEMBER 2001
TRANDOS & ORS -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2001] WASCA 346 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 346 (S) | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:17/2000 | 12 & 13 SEPTEMBER 2001 | |
| Coram: | ANDERSON J WHEELER J EINFELD AJ | 6/11/01 | |
| 19/12/01 | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part | ||
| B | |||
| PDF Version |
| Parties: | NICHOLAS TRANDOS STAVROS TRANDOS HARISI TRANDOS WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Costs Special order Turns on own facts |
Legislation: | Supreme Court (Contentious Business) Determination 1999, Cl 6 Items 20(c),(d) Supreme Court Rules, O 66 r 12(1) |
Case References: | Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Collins v Westralian Sands Ltd (1993) 9 WAR 56 Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Hawker de Havilland Ltd v Fernandes, unreported; SCt of WA (Commissioner Gilmour QC); Library No 960285; 1 March 1996 Way v Swan Television & Radio Broadcasters Ltd (1991) 5 WAR 323 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : TRANDOS & ORS -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2001] WASCA 346 (S) CORAM : ANDERSON J
- WHEELER J
EINFELD AJ
DECISION : 19 DECEMBER 2001 FILE NO/S : FUL 17 of 2000 BETWEEN : NICHOLAS TRANDOS
- STAVROS TRANDOS
HARISI TRANDOS
Appellants (Plaintiffs)
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent (Defendant)
Catchwords:
Costs - Special order - Turns on own facts
(Page 2)
Legislation:
Supreme Court (Contentious Business) Determination 1999,Cl 6 Items 20(c),(d)
Supreme Court Rules,O 66 r 12(1)
Result:
Application allowed in part
Category: B
Representation:
Counsel:
Appellants (Plaintiffs) : Mr D H Solomon
Respondent (Defendant) : Mr R M Mitchell & Ms L J Dias
Solicitors:
Appellants (Plaintiffs) : Solomon Brothers
Respondent (Defendant) : State Crown Solicitor
Case(s) referred to in judgment(s):
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Case(s) also cited:
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Hawker de Havilland Ltd v Fernandes, unreported; SCt of WA (Commissioner Gilmour QC); Library No 960285; 1 March 1996
Way v Swan Television & Radio Broadcasters Ltd (1991) 5 WAR 323
(Page 3)
1 JUDGMENT OF THE COURT: This appeal having been dismissed, the respondent seeks an order that the limits set by Items 20(c) and (d) of the Table to cl 6 of the Supreme Court (Contentious Business) Determination 1999 be raised to $9,000 and $11,000 respectively.
2 Item 20(c) relates to the costs of getting up an appeal for hearing and sets a limit of $2,700, assuming 10 hours work performed by a senior practitioner. Item 20(d) relates to the counsel fee at the hearing, including preparation, and sets a maximum of $6,900 for junior counsel, assuming two days of preparation and one day of hearing. In this case, the affidavit filed on behalf of the respondent demonstrates that approximately 60 hours of work was performed in getting up the appeal for hearing, most of it by a junior practitioner. Junior counsel engaged by the respondents spent approximately 53 hours in preparation and in attending the first day of hearing.
3 Under O 66 r 12(1) of the Rules of the Supreme Court, the Court may order that a particular allowance in a relevant scale be raised or a limit removed where it is of opinion that a special order as to costs should be made by reason of the unusual complexity or importance of the case or for any other good or sufficient reason. There is a basic principle that the successful party to litigation in the ordinary course of events will be entitled to an order for costs, the purpose of which is to enable the successful party to recover those costs which have been reasonably and properly incurred in conducting the litigation. Where, then, it is adequately demonstrated that an amount of work significantly in excess of that assumed by the relevant scale limit has in fact been performed, and the Court determines as a matter of judgment that on the face of it the amount of work done appears to have been reasonably done there will usually be a good and sufficient reason for making the order: Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 at 404 per Malcolm CJ. Submissions have been received which go to the issue of the reasonableness of the work done.
4 So far as legal issues are concerned, the principles governing the valuation of land in resumption or acquisition cases are not principles of legal complexity. Factually, it is true that the volume of material before the Court extended, as counsel for the respondent points out, to seven volumes of appeal books containing 2,245 pages. Much of that was of a somewhat technical nature. That alone would not in the Court's view justify the amount of preparation involved here; rather, it would be a question of whether it was really necessary to consider a substantial
(Page 4)
- quantity of that material in preparation for the argument of the appeal, or whether that material was merely peripheral or background material.
5 The outline of submissions and chronology of relevant events prepared by the appellant in this matter ran to some 46 pages. Almost 30 of those pages, from pages 17 to 45 inclusive, were concerned in essence with a detailed reassessment of the effect of all of the evidence tendered in the Court below. A prudent counsel for the respondent, faced with such an outline, would therefore give detailed consideration to that evidence. It appears from the affidavit filed on behalf of the respondent that this is what was done. In those circumstances, it would appear to be appropriate to make a special order in respect of counsel fees.
6 So far as solicitor's costs are concerned, the position is somewhat different. It appears that at the hearing below, Mr McMurdo, who swore the affidavit filed on behalf of the respondent in relation to costs, was the instructing solicitor having the conduct of the matter. The bulk of the getting up for appeal was in fact undertaken by another solicitor. Mr McMurdo's affidavit deposes that "other commitments" of his prevented him from taking a substantial role as solicitor in getting up the appeal for hearing, a course which it appears may have contributed very significantly to the need for the new instructing solicitor to undertake the work which was done. There is no suggestion that it was impossible for Mr McMurdo to take a greater role in the getting up; rather, his affidavit leaves the impression that it was not convenient for him to do so having regard to other priorities in the Crown Solicitor's Office. While that decision may well have been entirely appropriate having regard to Mr McMurdo's other commitments, it does not appear to be a sufficient reason to justify the lifting of the scale in respect of that item.
7 The Court would therefore order that, pursuant to O 66 r12(1) the limit within which the taxing officer may allow costs under Item 20(d) and cl 6 be raised to the sum of $11,000 for the purposes of this appeal.
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