| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : WATERHOUSE -v- EVANS [2004] WADC 177 CORAM : COMMISSIONER GREAVES HEARD : 9 AUGUST 2004 DELIVERED : 27 AUGUST 2004 FILE NO/S : CIV 1857 of 2000 BETWEEN : RONALD WATERHOUSE Plaintiff
AND
MARTIN JOHN EVANS
Defendant
Catchwords: Costs - Appeal - Special order - Action settled on first day of trial - Whether relevant work was necessarily or reasonably done on evidence
Legislation: Rules of the Supreme Court, O 66, r 12(1)
Result: Appeal allowed
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Representation:
Counsel:
Plaintiff : Mr D J Garnsworthy
Defendant : Mr P Sheavyn
Solicitors:
Plaintiff : Taylor Smart
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Schmidt v Gilmore [1988] WAR 219
Case(s) also cited:
Nil
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1 COMMISSIONER GREAVES: This is an appeal from the decision of the learned Deputy Registrar whereby he dismissed the plaintiff's application for an order under O 66 r 12(1). By his notice of appeal, the appellant seeks the following orders:
"1. Pursuant to Order 66 Rule 12(1) of the Rules of the Supreme Court the limits of allowances for the Plaintiff's costs on a party/party basis pursuant to the Supreme Court Scale of Costs Item 13 and Item 14 be raised. 2. The limit for item 13 be raised to $50,000.00. 3. There be one overall limit of $20,000.00 for counsel's fees (Item 14(a)). 4. The Defendant pay the Plaintiff's cost of the application and of the appeal." 2 In his reasons for decision, the learned Deputy Registrar recites the fact that the plaintiff's claim in the action was for damages for loss arising from personal injury. The action proceeded to trial in November 2002 but the trial was adjourned on the morning of the first of seven listed days of hearing. Subsequently the parties concluded a settlement, by the terms of which the defendant would pay the plaintiff's costs of the action but with liberty for the plaintiff to apply for a special order. 3 Order 66 r 12(1) provides: "Where the Court 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 the Court may order that any particular allowances in any relevant scale be raised or a limit removed and in giving any such direction the Court may fix a limit within which the Taxing Officer may allow such costs." 4 At par 14 of his reasons, the learned Deputy Registrar observed that the onus is on the plaintiff to satisfy the court that it is appropriate to exercise jurisdiction to make the orders sought. The learned Deputy Registrar referred to the judgment of the former Chief Justice in Schmidt v Gilmore [1988] WAR 219 at 220,at par 44 of his reasons as follows:
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"The rule clearly contemplates the possibility of there being 'good and sufficient' reason for making an order increasing the scale in that schedule, notwithstanding the fact that the case is not one of unusual complexity or of importance. For myself I can see no reason for saying that the amount of work which, of course, must fairly fall within the scale item of getting up case for trial, and whether it does or not will be for the taxing officer to determine, cannot of itself constitute a good and sufficient reason for doing so. I am unable to accept the appellant's submission that it is 'wrong in principle' to make an order based upon a finding that a party and party taxation would be inadequate for the work done in getting up case for trial. Whether the amount of work does, in any particular case, constitute a good and sufficient reason to depart from the scale is of course another matter and the discretion with (sic) the rule confers upon the Court – 'the Court may order" – is not one which must be exercised upon a finding of inadequacy of any degree. So to hold would be inconsistent with the policy of the scale. The inadequacy must be such as to constitute a good and sufficient reason and whether it does is a question of judgment in every case." 5 At par 45 of his reasons, the learned Deputy Registrar said:
"I have no difficulty with the proposition that the exercise of discretion under r 12(1) is not expressed to be limited to cases of unusual complexity or importance. I also have no difficulty with the prospect that the Court may be motivated to consider an exercise of power according to its perception of the extent to which services were provided to the client. Furthermore that it would be for the taxing officer to determine the extent to which relevant services were necessarily provided and their value." 6 At par 57 of his reasons, the learned Deputy Registrar continued: "In determining whether it is appropriate to remove the moderating effect of the scale, primary consideration is properly given to the services provided to the client that are said to have generated the costs. While I agree with the Court in Schmidt v Gilmour (supra) that ultimately the test of both the prospect and extent of recovery for particular services will be within the province of the taxing officer, it is the Court that is called upon
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to determine the application. It is for the applicant to inform the Court of the nature of the services called for by the litigation, the nature of the services actually provided and the extent to which they were provided." 7 The learned Deputy Registrar went on to observe in par 59 of his reasons that the particulars of the plaintiff's closed head injury were recorded as brain damage and its consequences across a range of considerations including neurological deficit and neuropsychological symptoms, dizziness, disorientation, nausea and momentary loss of consciousness, symptoms of visual and hearing impairment, headaches and personality change. In addition to seeking general damages the plaintiff sought to recover damages for loss associated with his vocation as an engineer, vigneron and orchardist. 8 The learned Deputy Registrar then proceeded to review the evidence in support of the application contained in the applicant's solicitor's affidavit. At par 97 he concluded the fact that the action progressed to the point of the trial provides a significant datum for the extent to which the case that would have been put at trial is considered to have been prepared, and observed he ought to be satisfied that it had been fully prepared. At par 108 and par 109 of his reasons, the learned Deputy Registrar continued: "It is a fair assessment of the case that the applicant put the proposition that time spent in the delivery of services would justify an exercise of discretion. That is not to say that in the course of the oral submissions at least, I perceived that counsel put some emphasis on aspects of the case which I accept would have presented some considerable degree of difficulty if only in the appreciation that proof of certain matters may be heavy work. Those aspects that I have in mind relate to features of the process of diagnosis, causation and consequential loss, particularly economic loss. The evidence of the plaintiff's disability was open to interpretation and his various business activities not amenable to easy consideration. The opinion of a number of experts was canvassed and the opinions of those intended to be called was scrutinised and analysed. There was more than the usual number of lay witnesses. On the evidence as a whole I have no doubt that the process of getting the case up for trial presented a considerable task.
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From my understanding of the pleading and the whole of the evidence I accept that the plaintiff's case in relation to causation and the effect and impact of his medical condition would put the case at the upper end of the range in terms of complexity. It is appropriate to consider the case as such bearing in mind the different diagnoses of the medical practitioners and the impact that the medical opinion may have upon the case advanced by the plaintiff. Be that as it may, there is nothing unusual in the prospect that complex issues will arise in the process of bringing expert opinion to trial. Of itself, for the purposes of this application, that consideration is not overwhelming." 9 At par 112 and par 113 the learned Deputy Registrar concluded: 10 In Esther Investments Pty Ltdv Markalinga Pty Ltd (1992) 8 WAR 400 of 404, the learned Chief Justice said : "It is a matter for the trial Judge to determine as a matter of judgment whether, on the face of it, the amount of work done appears to have been reasonably done as to constitute good and sufficient reason for making the order. That is a judgment which is essentially preliminary and provisional in nature for
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the purpose of the exercise of the discretion granted by the rules. A Judge will no doubt draw on his own experience, the impression gained during the course of litigation, and his appreciation of the issues which have been involved, in making that judgment. There is, of course, 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 such an order for costs is to enable the successful party to recover those costs which have been reasonably and properly incurred in conducting the litigation." 11 This case is of course one in which the action did not go to trial, but the approach of the Court remains the same in deciding whether to exercise the discretion under O 66 r 12(1). The Court should consider whether the work claimed was done, whether the work was necessarily or reasonably done, whether the fees proposed are reasonable, whether the scale may be inadequate, and the principle that a successful party should recover costs reasonably and properly incurred: see Ipp J in Collins v Westralian Sands Ltd (1993) 9 WAR 56. Counsel for the appellant submitted that the reasons of the learned Deputy Registrar revealed that he went beyond the preliminary and provisional judgment referred to by the learned Chief Justice in Esther Investments Pty Ltd v Markalinga Pty Ltd required in an application of this nature and, in effect, embarked upon the task of the taxing officer. In this regard, he referred, for instance to par 77 and par 100 of the reasons of the learned Deputy Registrar. Counsel for the defendant submitted that the affidavit evidence of the plaintiff's solicitor in her affidavits of 30 July 2003 and 27 May 2004 is not sufficient to activate the discretion of the Court under O 66 r 12(1), and that the learned Deputy Registrar was correct in so concluding. He submitted the affidavit evidence is not sufficient for the Court to conclude that the work was necessarily or reasonably done. Counsel for the appellant submitted that, having found the process of getting the case up for trial presented a considerable task par 108 of his reasons, it was not then open to the learned Deputy Registrar to find that good and sufficient reason did not exist to make the order sought, when clearly the remuneration offered by the scale was inadequate. I accept that submission in the light of the evidence of the plaintiff's solicitor which was not challenged, and which I also accept. 12 The learned Deputy Registrar considered the application in relation to item 14(a) at pars 114 et seq of his reasons. He refers to the fact that the trial judge made no order in relation to the costs of the trial, its adjournment, or any costs thrown away. He concludes that had any order
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been made it would have been either in favour of the defendant or in effect, that the parties meet their own costs at least with the application to adjourn, if not for any costs thrown away. I see no basis for that inference. Thereafter, I accept the submission on behalf of the plaintiff that the learned Deputy Registrar has approached the application as if he were the taxing officer. That is a function which remains to be discharged by the taxing officer. 13 I conclude, therefore, the evidence before the Court is sufficient to activate the discretion in accordance with the authorities to which I have referred under O 66 r 12(1) on the basis that the relevant work was necessarily or reasonably done. It follows that the appeal should be allowed, the decision of the learned Deputy Registrar set aside, and the orders sought in the notice of appeal made.
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