| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : VULICH -v- SLATER & GORDON LIMITED [2011] WADC 209 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 16 NOVEMBER 2011 DELIVERED : 1 DECEMBER 2011 FILE NO/S : CIV 750 of 2010 BETWEEN : BENJAMIN VULICH Plaintiff
AND
SLATER & GORDON LIMITED
Defendant
Catchwords: Practice and Procedure - Application for order for costs taxed on District Court Scale - Rules of the Supreme Court 1971, O 66 r 17 Legislation: District Court Act 1969
District Court Rules 2005
Rules of the Supreme Court 1971 Result: Application dismissed
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Representation: Counsel:
Plaintiff : Mr D Connor
Defendant : Mr S Millman
Solicitors:
Plaintiff : Hoffmans
Defendant : Slater & Gordon
Case(s) referred to in judgment(s):
Darling Range Brewing Co Pty Ltd v Luciana Holdings Pty Ltd & Anor [2007] WADC 225
Langham & Anor v McDonald & Anor [2009] WADC 2
Nicvira Nominees Pty Ltd v Subramaniam [2006] WADC 136
Zurich Bay Holding Pty Ltd v ATM Enterprises Pty Ltd [2011] WADC 48
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1 DEPUTY REGISTRAR HEWITT: This action was brought in the District Court of Western Australia by a writ lodged 10 March 2007. Its progress through the court was unremarkable being set down for a trial on 26 - 27 July 2010 and ultimately being settled under the terms of a consent order approved by a registrar of this court on 24 October 2011. The amount of that judgment was $15,400, a figure well within the limits of the Magistrates Court jurisdiction.
2 As a consequence the plaintiff has brought an application which came before me for determination on 16 November 2010 in which the plaintiff sought an order that his costs of the action be taxed in accordance with the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 and/or 2010. 3 The application is opposed by the defendant and it raises a number of issues for consideration. 4 The first of those issues involves legislative changes introduced to the District Court Act1969 by the Courts Legislation and Repeal Act 2004. As originally enacted s 74 of the District Court Act provided: … when an action is brought in the Court that might have been brought in a Local Court without the consent of the defendant the plaintiff is not entitled to recover a greater sum by way of costs than he could have recovered had the action been brought in a Local Court unless the District Court Judge hearing the action certifies - (a) in the case of an action founded in tort that in his opinion it was proper to bring the action in the Court instead of the Local Court; and (b) in any other case, that by reason of some important principle law being involved, all of the complexity of the issues, or of the facts, the action was, in his opinion properly brought in the cause. 5 The present s 74 of the Act makes no reference to that principle and the applicant refers me to s 64 of the Act as it is presently constituted which is in the following terms: (1) Except as hereinafter provided in this Act, the costs of any action or proceeding shall be in accordance with any costs determination (as defined in the Legal Profession Act 2008 section 252) and shall be paid by or apportioned between the parties in such manner as the District Court judge directs and in default of such a direction shall abide the event. (Page 4)
6 The argument therefore advanced by the applicant is that the wording of the Act makes it mandatory that costs in the District Court should be determined according to the relevant determination. In the present circumstances the determinations which are identified and which the plaintiffs contends should govern the basis upon which costs are allowed are those of 2008 and 2010. In that regard the applicant refers me to the determinations themselves which by way of example in par 3(a) of the Schedule state: This determination applies to the remuneration of law practices in respect of contentious business carried out by law practices in or for the purposes of proceedings before – 7 It is therefore argued that to the extent to which O 66 r 17 Rules of theSupreme Court 1971 (RSC) (to which I will later refer) purports to impose some different costs regime which may be applied for work carried out in the District Court that rule is contrary to the legislative regime and should not be given effect. 8 This matter has received judicial attention within the District Court on a number of occasions which have been cited to me and in none of those cases has any judge held that the provisions of O 66 r 17 (RSC) do not apply to the District Court. Of the three relevant cases his Honour Judge Stevenson in Darling Range Brewing Co Pty Ltd v Luciana Holdings Pty Ltd& Anor [2007] WADC 225 put forward the tentative view that it was possible that O 66 r 17 (RSC) might have room to operate within the District Court jurisdiction. In Langham & Anor v McDonald& Anor [2009] WADC 2 his Honour Judge Keen held that O 66 r 17 did apply to proceedings in the District Court and in Zurich Bay Holding Pty Ltd v ATM Enterprises Pty Ltd [2011] WADC 48 his Honour Judge Scott likewise considered that the relevant provisions of the rule applied to this court. In the light of judicial authority I conclude that the provisions of O 66 r 17 do apply to the District Court of Western Australia, that (Page 5)
application arising by virtue of the combination of the rules themselves together with the rule making power in s 87 of the District Court Act which provides for the application of the Supreme Court Rules in applicable circumstances to the District Court. 9 The next issue canvassed before me was based on the assumption that the provisions of O 66 r 17 do apply to this court. That rule provides: If an action is brought in the Supreme Court which could have been brought in the Magistrates Court without the special consent of the defendant, the plaintiff shall recover no greater sum by way of costs than he would have recovered had the action been brought in the Magistrates Court, unless the Court certifies that by reason of some important principle of law being involved, or the complexity of the issues or the facts, the action was properly brought in the Supreme Court. 10 In interpreting that rule it is clearly necessary to substitute the words District Court for Supreme Court. It is therefore now necessary for me to consider whether this is an appropriate case to provide the certificate which is sought by the plaintiff in this application. 11 I start by acknowledging that the applicant does not contend that an important principle of law was involved. The aspect of the case which is relied upon is the complexity of the issues or the facts. In order to understand that aspect of the matter it is necessary to know something of the case. 12 The plaintiff was an employee of a company Ventara Holdings Pty Ltd who suffered an injury to his back which gave rise to a claim for workers compensation. Under the regime which has been created by the Workers Compensation and Injury Management Act 1981 there are certain procedural steps and time limits imposed upon a worker who wishes to pursue his employer in an action for common law damages. Specifically elections have to be made within certain tightly controlled time limits. There is likewise an obligation on employers to provide certain notices to employees informing them of their rights. 13 Without becoming enmeshed in complexities of the legislation unless an injured worker makes an effective election to pursue a common law claim he is precluded from doing so. Against that background the worker, who suffered a compensable injury in the workplace was referred by his union to the defendant firm. The plaintiff pleads that referral together with the interaction between the plaintiff and the defendant created a retainer between the plaintiff and the defendant which required the defendant to use reasonable skill care and diligence in conducting itself in (Page 6)
relation to his affairs. There is an allegation that standard was breached by the defendant leading to the plaintiff losing the opportunity to make a valid election. 14 It appears the situation was not irretrievable and the plaintiff's present solicitors, with what I might call commendable dispatch and expertise were able to restore the plaintiff's opportunity to pursue his employer for common law damages. I am told that action ultimately resulted in the plaintiff receiving an award in the vicinity of $375,000. The process of reinstating the plaintiff's rights required the solicitors representing the plaintiff to issue writs of certiorari and mandamus in the Supreme Court of Western Australia and it is for the cost of those proceedings together with some work in the worker's compensation jurisdiction that the plaintiff sued. As I previously have mentioned there is an allegation of a breach of a retainer, there is also an allegation that the defendant owed the plaintiff a duty of care in tort which was breached. Subsequently the plaintiff also amended the writ to include a claim under the Trade Practices Act1974 (Cth) for misleading and deceptive conduct. 15 It has been suggested that combination of causes of action would be sufficient to justify a certificate of the kind which sought by the plaintiff. On that score I do not agree. Claims for breach of contract and tort are commonplace in this court and there is nothing particularly special about either of the claims pursued by the plaintiff. Likewise the misleading and deceptive conduct claim is a relatively routine claim which although it may have been outside the individual solicitor's expertise is nonetheless not a matter of particular complication or difficulty. When referring to that aspect of the claim I have serious doubts whether there was every any point in bringing a Trade Practices claim since for the act to apply the parties must be engaged in trade or commerce. That would presumably require a finding that there was a retainer between the plaintiff and the defendant. The matters upon which the Trade Practices action rely are for all practical purposes the same as those relied upon for breach of contract. It is hard to see that the addition of the claim added to the plaintiff's prospect of success. 16 The next issue canvassed is however a matter where there was some level of complexity. There were issues as to whether or not the costs in the proceedings in which the solicitors for the plaintiff had engaged were as a matter of law recoverable because firstly, they should have been recovered from the plaintiff's employer and secondly, they in part constituted work within the ambit of the Workers Compensation and (Page 7)
Injury Management Act which provided no specific entitlement for remuneration. 17 I accept that it was necessary to consider the basic principles in regard to recovery of legal costs, the guiding light being that costs incurred within litigation are not recoverable in that litigation as damages. That does not apply however to costs incurred in litigation with third parties and that issue was disposed of in the summary of argument presented to the court prior to the trial in two short paragraphs supported by four authorities. 18 It would be rare for a case not to involve some degree of complexity but the issue which I need to consider is, whether the level of complexity is sufficient to justify the granting of a certificate. In my view it is not, the case was by in large routine. There was one interesting point but it was not in my view a sufficiently complex matter to lift the case to the higher level as is sought by the applicant. 19 The final matter advanced relies on the proposition that a defendant by standing by and allowing a matter to proceed in the District Court when it might have been transferred to the Magistrates Court might be taken as acquiescing to that state of affairs such that it might be regarded as consenting to the costs of the action being determined on the District Court scale. In support of that proposition the plaintiffs rely on Darling Range Brewing Co Pty Ltd v Luciana Holdings Pty Ltd& Anor op cit together and the decision of Judge Mazza Nicvira Nominees Pty Ltd v Subramaniam[2006] WADC 136. 20 I have reviewed those cases and in my view neither of them support the proposition advanced and neither of them support the existence of the discretion which is relied upon by the applicant. In the Darling Range case the action was commenced in the District Court the amount being sought being in excess of the Local Court jurisdiction as it existed at that time. Subsequently the jurisdiction of the court was enlarged but the action remained in the District Court. No moves were made to remit the action to the Magistrates Court. In those circumstances there can be no doubt that the action was commenced in the correct court. The issue was whether, the jurisdiction in the lower court having increased, it should have been remitted to the Magistrates Court and the plaintiff should be penalised for failing to take that step. To my mind that does not support the existence of the discretion argued for by the applicant. Likewise in the Nicvira Nominees Pty Ltd case the matter had begun in the Local Court and had been transferred by consent to the District Court. The (Page 8)
argument with which his Honour had to deal was whether the costs allegedly thrown away in the Local Court should be recoverable by the defendant against the plaintiff in the District Court. His Honour held that they were not, it being the case that the defendant was content for the matter to proceed in the District Court and acquiesced in that outcome. 21 There being no other legal proposition relied upon to support the existence of the discretion upon which the appellant relied it is my finding that there is no such discretion and I am not able to exercise it in favour of the applicant. 22 The simple fact revealed by the correspondence in this matter is that the plaintiff, knowing that the claim was within the monetary jurisdiction of the Magistrates Court, and otherwise susceptible to being determined in the Magistrates Court, nonetheless chose to commence the proceedings here in part, although not totally, in light of the plaintiff's view of the complexity of the case. 23 I have already determined that in my view the complexity does not justify a certificate and it is therefore not open to me to conclude that complexity would justify the exercise of the discretion in favour of the applicant. 24 The application will therefore be dismissed.
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