Waterhouse v Evans

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: WATERHOUSE -v- EVANS [2004] WADC 21

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 3 SEPTEMBER 2003

DELIVERED : 20 FEBRUARY 2004

FILE NO/S: CIV 1857 of 2000

BETWEEN: RONALD WATERHOUSE
Plaintiff
AND
MARTIN JOHN EVANS
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Costs - Application for special order to increase or remove limit - Whether good or sufficient reason to order increased allowance - Getting up case for trial and counsel's fee

Legislation:

Legal Practitioners' Act 1893

Motor Vehicle (Third Party Insurance) Act 1943

Rules of the Supreme Court, O 66, r 12(1)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr G R Hancy
Defendant: Mr P Sheavyn

Solicitors:

Plaintiff: Taylor Smart
Defendant: Talbot & Olivier

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

Clybucca Holdings Pty Ltd v Richard Ferrier Grey & Ors, unreported; SCt of WA; Library No 970191; 30 April 1997
Schmidt v Gilmour [1988] WAR 219
Tenbohmer v Eden (1992) 6 WAR 366

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
Giacci Bros Pty Ltd v Bunbury-Harvey Regional Council [2001] WASCA 282

DEPUTY REGISTRAR HARMAN: 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 7 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.
The only order now sought is that the limit expressed under Item 13 of the scale be raised to $50,000 and that a limit of $20,820 be placed on recovery for the services rendered to the plaintiff’s solicitor by counsel.
Order 66, r 12(1) of the Rules of the Supreme Court provides that:
"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."
The defendant raised a preliminary issue as to whether the jurisdiction provided by that rule was exercisable by a Registrar. Although inevitably most applications for such an order are made at the conclusion of a trial and accordingly are dealt with by a Judge, I was satisfied that there is nothing in the Rules that would preclude a Registrar from exercising jurisdiction. Perhaps I might note that because the application was not made in the usual context any momentum towards an exercise of discretion would only be generated by the evidence brought in support of the application.
Absent the order sought, under Item 13 the defendant's exposure under the order for costs would be limited to $23,475.00.
The case put by the plaintiff in relation to that part of the application was that the amount of work performed by his solicitor would justify the exercise of discretion.
In support of the application the plaintiff's solicitor deposes to what I understand to be the history of both the evaluation of the cause of action and the case brought on the cause. I will later consider that evidence in more detail. At this stage I only need to state that significant parts of the evidence reveal activity that would not fit the description getting up case for trial.
A significant feature of the plaintiff's case was that he sought to present the measure of the extent to which work had been performed as being the total of the periods of time recorded in relation to the performance of that work.
The relevant evidence is as follows:
"43. Up to the date the Plaintiff's judgment sum was received (13 June 2003) Taylor Smart's recorded hours of work undertaken on behalf of the Plaintiff total 252.8 hours. Costs of items other than getting up (item 13) are calculated at $8,075.00 and the maximum allowance for getting up pursuant to item 13 and item 14(h) is $23,475.00, a total of $31,550.00. Without an increase of the allowance for getting up the rate of remuneration for 252 hours' work would be $125.20 per hour. A proportion of the allowance for getting up would be attributable to work performed by Counsel in the nature of getting up and as a result the rate of remuneration for work undertaken by Taylor Smart would be less than $125.20 per hour. This sum would be further reduced when allowance is made for the fees of Willers & Co of $6,581.50 and Deacons in the sum of $1,623.12."
The first point to note is that par 43 neatly illustrates the point that I have already made, of the plaintiff's failure to articulate a case for recovery for getting up the case for trial. Indeed the only conclusion open on that evidence is that the plaintiff would consider that of all of the work undertaken, what is left after removing work that relates to other items in the scale is getting up case for trial. That simple reduction has the tendency to obscure the fact that as is the case with the other items in the scale, at a fundamental level, getting a case up for trial is a process. Item 13 is not a mechanism for transforming what measured against that process is properly considered to be mere activity, into something more significant.
Although as I have indicated, the balance of the evidence in support of the application canvasses what I imagine would be at least some of the more significant features of the case, it is left to the Court to infer how that evidence relates to the total of the recorded hours of work. The lack of precision imported into the case by the failure to somehow equate the work performed to the services for which recovery would be available under Item 13 of the scale has had an impact not only on the sufficiency of the evidence but also on the validity of the proposition that in the absence of an exercise of discretion, recovery for the work performed would be inadequate.
Even if I were satisfied that the extent to which process had been undertaken was represented by the total hours expressed, the case would still present a fundamental problem in the form of the ability to justify a determination in favour of the plaintiff. It is appropriate to consider that the Court would act only when it is satisfied that it is appropriate to do so. The test of the proposition put by the plaintiff is that on the scant evidence in support of the case I could not be satisfied that the extent of recovery would be any different regardless of whether the order was made.
In my opinion the proposition put forward by the plaintiff does not stand up to any level of scrutiny. In effect the proposition that recovery under Item 13 of the scale would be inadequate is no more than a submission put in no better than relative terms on minimal evidence that does not bear upon the issues to be addressed.
The considerations that I have articulated in the previous paragraphs are fundamental. The onus is on the plaintiff to satisfy the Court that it is appropriate to exercise jurisdiction. I accept that the task that the plaintiff set for himself may have been difficult to discharge, however it is appropriate to consider that the plaintiff has presented the case that he sought to advance. It is appropriate to conclude that the plaintiff has chosen not to give the evidence upon which the proposition that recovery would be inadequate might be justified.
Be that as it may, I will canvass the two mechanisms by which the plaintiff contended the Court might find for the result sought.
The first is along the same lines as the obiter comment in Tenbohmer v Eden(1992) 6 WAR 366 to the effect that a party with the benefit of an order for the costs of an action should recover all costs reasonably incurred. That comment confuses the test of recovery of costs under such an order with the test of recovery of fees under a common law retainer. Under the order for costs recovery would be limited to the reasonable cost of services that were necessarily provided for the purposes of the action.
The transparency of the approach taken by the Legal Costs Committee in the process of setting the scale has allowed for the perception that it put in place a mechanism to facilitate recovery beyond the limits expressed in the scale to the extent of the total number of hours recorded as having been devoted to the provision of work. That perception draws on particular features of the Legal Practitioners (Supreme Court)(Contentious Business) Determination 1996. The first is that in undertaking its task the methodology used by the Committee task focused on the aggregation of periods of time utilised in the provision of services. The second is that it considered that in valuing a claim under the scale the same or a similar methodology would be followed. The third is that parties would make applications under r 12(1) as a matter of course in circumstances where the total of the time utilised in providing the relevant service exceeded the number of hours nominated by the Committee as its datum in setting the scale.
It is a matter of reflecting upon whether that perception and the features of the determination that support it can be reconciled with considerations that bear upon cost recovery.
I could have no difficulty with how the Committee chose to address the task set for it. The terms by which the determination is expressed provide not only some insight into its processes but also the reasons for what by any measure were then significant fee increases. If the Court were inclined to exercise discretion, the transparency of the Committee's approach to the task would at least allow for the prospect of a measured increase in scope for recovery commensurate with the maximum expressed in the scale.
The second part of the foundation of the perception is expressed at sub-clause 7(4) of the determination. Whether the taxing officer would actually follow the course proposed by the Committee on the strength of sub-clause 7(4) is another matter. Ultimately the rules make no reference to either the Committee or its pronouncements other than those in the form of the scale. According to r 11(3) in taxing a bill the only datum is the scale. As to the scale itself, the entries under headings "time" and "fee earner" provide the data by which the Committee calculated the maxima.
For the taxing officer to tax a claim for getting up case for trial by following the same methodology would involve the taxing officer determining an hourly rate of recovery over the scope of activity embraced by that process and then distributing that hourly rate over an arbitrary number of hours. To follow a similar methodology the taxing officer may seek to discern the number of hours actually devoted to the task or perhaps necessarily devoted to the task or perhaps reasonably devoted to the task.
It seems obvious to me that there would be a proper basis to distinguish those prospects. Even if one eliminated the first out of hand as the others at least engaged with the test of recovery of costs, to focus on the number of hours at all has the tendency to run together the two parts of that test.
Any attempt to disentangle those components must provide fertile ground for the perception that to conduct an evaluation would involve a return to the more intricate forms of taxation that the Committee itself sought to discourage. The alternative is that at sub-clause 6(4) the Committee was proposing that a taxing officer would choose to ignore both limbs of the test of cost recovery and substitute a single rate of recovery for activity that conceivably would not even qualify as getting up case for trial.
Given the choice of following any such a methodology or simply considering where a case properly lies in the range provided by the scale I would struggle to understand why a taxing officer would depart from the latter course.
The most significant consideration is that Item 13 does not provide for time costing, it simply provides for the limit of discretion of the taxing officer.
The third generator of the perception that the Committee put in place a mechanism for above scale recovery is by its reference to r 12(1) and the proposition that a party may seek recourse to that provision simply because its solicitor had utilised more than the arbitrary 100 hours that it had allocated to the process of getting up the case for trial.
Whether the Court would follow the course of analysis that the Committee proposed is another matter. I note that elsewhere in the determination the Committee itself recognised that at a lesser hourly rate more time may be accommodated within a limit. I only seek to add that even a practitioner seeking to recover a fee may accept that although perhaps 250 hours of work may have been recorded as utilised, taking into account that some of that work may have only been peripheral to the process, some may have been inefficiently provided and that some would not justify recovery at any significant level at all, an appropriate level of recovery for the process may still be accommodated within the scale.
I have already expressed that it is fundamental that the Court would not act simply because it has the capacity to do so. It is appropriate to consider that unless the Court was satisfied that recovery under the scale would be inadequate, there would be no reason to provide for the prospect of inadequacy. The issue to be considered is not whether more than 100 hours was allocated to the task of getting up the case for trial but whether the maximum available under the scale would not be an appropriate measure of recovery under the order for costs.
There are two considerations that may be drawn from the terms by which the discretion provided by r 12(1) is expressed, which in my view, rather than facilitating above-scale recovery would suggest the result that the scale would moderate recovery.
The first is that it is evident that what would constitute a "good or sufficient reason" to exercise the discretion would properly be considered to take some meaning from the fact that the term "complexity or importance" is qualified by the word "unusual". Had the particular case not been stated or had it been expressed absent that qualification, conceivably one may find good or sufficient reason for the exercise of discretion in many cases indeed. Perhaps so many as would justify a view that the scale may be of limited application.
The second being that where a particular prescription has the potential for intended adverse impact, an appropriate approach to take to a provision which would allow for exception is that recourse would only be had to the benefit of the exercise of discretion in a deserving case, not simply because an applicant had taken the trouble to apply.
I have no difficulty with the fact that the determination discloses that the Committee promoted the prospect of above scale recovery. However ultimately the methodology by which the Committee went about the process of setting the scale and what it sought to define as its determination are no more significant than the task it was required to perform: that of determining and expressing the maxima recoverable under the scale.
Whether it is appropriate to consider that the Committee was engaged in any activity other than setting the scale is a matter to be considered in the broader context provided by the Legal Practitioners’ Act 1893.
Under the Act the legislature imposed some constraints on practitioners and conferred authority on the Supreme Court both in relation to particular practices and the recovery of fees. By s 58W it conferred authority on the Legal Costs Committee to regulate the remuneration of practitioners.
In my opinion that provision and the context in which it was enacted could only be explained by public policy considerations that would suggest an intention to limit recovery by practitioners. The significant feature of the context being that the Supreme Court would cease to set the scale by which recovery of both fees and costs would be determined.
Those considerations and that context resonate with r 11(2), which portrays something other than the prospect of unrestrained recovery of fees by practitioners. Rule 11(3) reflects that consideration in the context of the recovery of costs by parties.
As much as the focus of the plaintiff was on the prospect of above scale recovery, there are other features of the Committee's determination that should not be ignored.
In undertaking its task the Committee conducted a survey of practitioners' costings. By utilising the average of the responses to that survey to formulate and express the limit of recovery the Committee might properly be taken to have accepted the obvious consequence. As much as its choice of methodology would have notionally disadvantaged those at the higher end of the range of responses, it would actually confer disadvantage in any context in which the result would apply. As I understand the defendant's stance he might not have had too much difficulty with the proposition that the plaintiff fell into the cohort disadvantaged by the Committee. His proposition was that was the consequence of the proper operation of the scale.
Such operation is not simply to limit recovery as specified in r 11(3), it is also a primary datum for determining quantum under the test of recovery of costs, the reasonable cost of services necessarily incurred. Each maxima expressed in the scale would apply across the range of cases including those that were complicated, difficult or had generated a significant amount of work.
That a party is able to demonstrate that the scale operates so as to limit recovery or confer disadvantage is hardly surprising. Of itself that result would not translate into justification for a special order rather it is consistent with the proper operation of the scale.
Regardless of how the Committee chose to discharge its statutory responsibility, the fact that for the purposes of r 11(2) and (3) the scale would limit the discretion of taxing officers, made it inevitable that by some measure it would construct a mechanism by which disadvantage would be both perceived and conferred.
And finally there is the proposition itself, which would suggest that the cost of getting up case for trial is determined in accordance with an assessment of time spent on the process. As I have already recorded, that is not the case. It is probably not coincidental that the few items that provide for such a process of assessment relate to services that in the usual circumstances would be provided in the presence of the adverse party.
Ultimately it is for the Court to appreciate whether an exercise of discretion under r 12(1) is justified, not to guess what the taxing officer may do in the event that the parties cannot agree costs. In considering an exercise of the discretion it is a matter of reflecting upon whether the circumstances justify the removal of the intended moderating impact of the scale.
In Schmidt v Gilmour [1988] WAR 219 at 220 Burt CJ said in relation to O 66, r 12(1) that:
"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."

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.
I also accept that the Court may have considered that by a process of measuring of the extent of potential recovery given an exercise of discretion in favour of the applicant against what would otherwise be available, could justify an exercise of discretion. Equally it may not have considered that issue at all.
It appears to be the case that the majority considered that the only issue to be determined in the appeal was the proper interpretation of r 12(1). It found that there was no reason why the words “or for any other good and sufficient reason” should not be given their usual meaning.
Before I leave that passage, what I consider to be a significant consideration is expressed in the penultimate sentence in the form of the reference to policy that stands behind the scale. In context the comment could only refer to what the Court recognised as the appropriate impact of the scale. It would not appear to resonate with the proposition put forward by the Committee at sub-clause 7(5) of its determination. I would suggest that to describe the moderating effect of the scale, as being the operation of policy is a more accurate assessment of the proper impact of the scale than that offered by the Committee.
The reasons of the dissenting member of the Court, Wallace J has more to say about the reasons of the Judge in providing for the prospect of above-scale recovery. He quotes His Honour as putting the proposition that if the solicitor were to be remunerated in terms of hours spent, the scale would not provide an adequate return. Implicitly the Judge had been persuaded to the view that the combination of hours devoted to the provision of services and an hourly rate may have somehow been sufficient to justify an exercise of discretion.
It is difficult to understand why that may have been so. The scale did not provide for time costing. No reference was made to any agreement. Why the practitioner may have had an expectation of recovery on the basis of time costing is not disclosed.
That the Judge had recognised the prospect of recovery by the solicitor from the client would be greater than party and party is apparent in the passage:
"… commendable and necessary though it may be, (it) is hardly the sort of work for which a defendant should be expected to pay. Probably it should be the subject of remuneration on a solicitor and client basis but it should not be allowed on a party and party basis."
It is only speculation on my behalf but it may have been that an assessment of the evidence allowed for him to conclude that there was reason to raise the limit of recovery of fees by the solicitor. In recognition of the fact that the new limit on such recovery would be in the order of three times the scale maximum and that the client's indemnity would be limited, the order made against defendant was justified on the basis that it would have permitted recovery for what was considered to be an appropriate proportion of the increase.
If one puts the more fundamental problems raised by that prospect to one side such a rationalisation has some appeal.
That mechanism could not be translated to the case before me as the only respondent is the defendant. I know nothing about the relationship between the plaintiff and his solicitor. There is no scope to translate any concern about the extent of recovery of fees by the plaintiff's solicitor into any greater recovery of costs by the plaintiff.
I suspect that properly considered the case does not explain how in a case such as that before me the Court would come to the view that a case would be considered to be outside the embrace of the scale. Conceivably it would only be in a case where the disadvantage conferred on the successful party would be considered to be of a significant degree of magnitude.
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 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.
The plaintiff's pleading and an appreciation of the dimensions of the issues raised upon the pleadings provide the significant datum for analysis. On the close of pleadings the case to be got up for trial was an assessment of the plaintiff’s damages.
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.
The applicant's solicitor's affidavit provides evidence of the history of the translation of the cause of action into the claim and the progress of the action.
Up to par 7 the deponent gives evidence that prior to 24 September 1999, a date some 9 months prior to the issue of the writ, the plaintiff was represented by other practitioners.
According to par 8, prior to that date there had been no conference with the defendant. I accept that may have been the case, but considering that by the terms of the order for recovery is limited to the costs of the action, in the absence of any useful evidence it is difficult to conceive that fact is of any significance.
At par 43, the deponent states that the services rendered by the plaintiff's former solicitors are valued in the order of $7000. All that I know about those services is expressed at par 9. It provides that copies of medical notes and reports were obtained from a number of sources.
Even though that work had been undertaken prior to the action being commenced, it is conceivable that it could be categorised as a relevant service for the purposes of the action. I can only imagine that there may have been other facets of the work undertaken that may also be so classified and be capable of generating recovery under a claim for getting up case for trial, however in the absence of any more useful evidence I am in no position to make a judgment.
I have no better appreciation of the evidence than that work undertaken may justify fees for which the plaintiff may be responsible to the extent of $7000. Of itself the fact that the plaintiff engaged different solicitors at different times is not of any significance. In the absence of a particular order, the taxing officer would determine the services necessarily provided to the plaintiff without regard being had for the change. No such order is sought.
The plaintiff may accept that result, but would seek to utilise the prospect that a component of any sum recovered from the defendant would be allocated to his former solicitor in order to justify the conclusion that there will be insufficient recovery.
It could be the case that the former solicitors provided what anyone would accept as being $7,000 worth of valuable services in the nature of getting up case for trial. At the other extreme, but for the information at par 9, the fees charged may represent no more than the cost to the plaintiff of what may qualify as mere activity to no useful end, at least not for the purposes of getting up the case for trial. Of course there are myriad prospects that lie between. I am in no position to appreciate the significance of any particular prospect. Conceivably the only reason that the matter has been mentioned is that the fee has been quantified.
If the plaintiff is put in a difficult position as a result of being bound by any agreement with a third party, it would have been appropriate to put forward more than what is contended may be the result of such an agreement in an application of this nature.
At par 7 it appears that the solicitor considered that alternative cases were open on the pleadings in relation to the closed head injury being either diffuse brain damage or a psychotic illness or condition causing cognitive impairment and dysfunction. I recognise that both the prospect and reality of alternative cases would have lead to some detailed assessment of the case in the context of getting it ready for trial.
At par 10 reference is made to the contest with the defendant as to the causal link between the incident the subject of the action and any cognitive impairment.
At par 11 reference is made to the fact that an issue arose as to the plaintiff's competence and at par 12 that on obtaining a report from a psychiatrist that issue was resolved. I know nothing more than that the issue arose and was dealt with. There is nothing to suggest that it was a prominent feature of the services rendered to the plaintiff in the sense that any such services were of a significant degree of magnitude. In the absence of any useful evidence I do not know what to make of the evidence provided.
The focus of the content of each of par 10 and par 14 is that the solicitor provided services to the plaintiff that could be described as being associated with conferences held with the defendant. The particular activities referred to in par 10 being an assessment of the case, the preparation and provision of written submissions to the defendant and attendance at a conference. Those activities were undertaken immediately prior to the action being commenced. At par 14 reference is made to what I understand to be the first listing of the pre-trial conference on 6 December 2001.
Whether as a matter of definition or by any other criterion, the services provided to the ends of settlement are provided for a purpose other than for the purpose of getting up a case for trial. I accept that Wheeler J came to a different conclusion in Clybucca Holdings Pty Ltd v Richard Ferrier Grey & Ors, unreported; SCt of WA; Library No 970191; 30 April 1997. That she was so persuaded, of itself ought to be persuasive. However in my opinion her reasons demonstrate that the decision is probably, properly considered to be confined by the facts of that case. The significant feature of the context in which the determination was made was that a rule constituted services relating to the investigation of the prospects of settlement as part of a step in the action. The rule does not apply in this jurisdiction. Beyond that rule I can find nothing in the limited analysis provided in the reasons that would sustain the conclusion the costs of negotiation or services relating to that process would otherwise become part of the costs of the action.
The reasons suggest that to focus on the prospects of settlement is a facet of professional conduct of recent origin. Regardless of the accuracy of that assessment, it hardly commends itself as the mechanism for translating what has always been beyond the scope of recovery to being within it. Finally, the particular rule to one side, there was no attempt to explain how it was that the cost of the service would meet the test of recovery at taxation. That is, of a service necessarily provided for the purposes of the action.
I recognise that some or all of that analysis may be startling to those that adhere to what appears to be becoming a widely held view that any cost generated by litigation ought to be recoverable inter partes. That has never been the law in relation to recovery of costs under the usual order.
I do not have any difficulty with the prospect that the costs of the formal conference would satisfy that test simply because the rules constitute the pre-trial conference as a step in the action. Whilst I appreciate that it is conceivable that some of the services provided in the context of preparation for either conference may have been provided in lieu of them being provided for the purposes of getting up case for trial, there is no useful evidence to allow me to appreciate that such was the case. I am drawn to the proposition that the onus being on the plaintiff he is obliged to establish a basis for recovery beyond my speculation.
However it may be useful to take some further steps in the analysis. Paragraph 10 refers to an assessment of the case. An assessment of the case is properly considered to be part of the process of getting up case for trial. Indeed it is a primary focus in determining the extent of recovery under that item. The significant consideration is that any such assessment is ongoing. Whilst from time to time it may be focused, to the extent that it is engaged in at any particular time, in anything other than a simple case is likely to be of limited significance. In this case the only significance of the provision of the relevant service at the particular time would have been in the event that the claim had settled. The onus to establish that the assessment was for the purpose of getting up for trial is on the plaintiff.
As to the provision of written submissions, evidently they were to the end of settlement. It is difficult to see that such provision could be constituted as part of the process of getting up the case for trial.
The same can be said of the preparation for the pre-trial conference. In that case there is scope for recovery for the conference itself but under the present formulation of the scale, not for preparation. Recovery for the pre-trial conference is beyond the scope of the application.
Although some of the above may be considered to be a harsh result, prior to pre‑trial conference being constituted as a step in the action and O 24A offers being included in the scale, there was no scope for recovery for the costs of negotiation and/or settlement whatsoever. I would suggest that the reason for the lack of provision for any more extensive recovery for such services has not been the result of ongoing oversight in the process of setting the scale.
At par 14, par 15 and par 16 the deponent deals with services provided at or about the time of the action being re-listed for the pre-trial conference. In that context the plaintiff introduces the engagement of counsel "to provide advice". That advice is not qualified by any useful description. It could have been that what was sought amounted to advice on evidence in that case it would qualify as getting up the case for trial.
My difficulty is that I do not know for what purpose counsel was briefed. Counsel’s account indicates that he was briefed just prior to the re-listing of the conference but it makes no reference to the provision of any advice at all. The subject of consideration is recorded by counsel as reading the brief and engaging in conferences with the plaintiff and the solicitor. Whilst I accept that the advice may have been provided in the context of the conferences, the broader context demands that I take into account the prospect that the purpose of the brief was to provide advice in relation to the imminent pre-trial conference, that is for the purposes of settlement rather than the process of getting up case for trial.
In my opinion the only issue is whether the plaintiff has brought any useful evidence. The answer must be that he has failed to do so.
According to par 20 reports were obtained from various medical practitioners. Of those mentioned at par 20, par 19 may suggest that counsel had some input into the process. Because of the manner in which the application as it relates to counsel’s fee is framed I suppose that it does not matter how counsel’s involvement is characterised. One thing is clear, that the input of the solicitor in briefing counsel, if recoverable, could only have been part of the process of getting up case for trial.
Paragraph 21 deals with obtaining and reviewing records kept by a hospital.
At par 22 the deponent deals with attempts to locate a witness identified as a police officer but without any indication being provided of the degree of difficulty associated with that endeavour.
At par 23 and par 24, the deponent deals with the process of obtaining witnesses in relation to the plaintiff's pre and post accident capacity for employment as an engineer, orchardist, market gardener and vigneron. Similarly at par 25, witnesses were sought from among the plaintiff's friends. According to par 26 counsel reviewed that evidence and gave advice. At least the context would suggest that the solicitor had sought advice on evidence. Whether the solicitor makes such an assessment himself or seeks an opinion from counsel, r 12(4) provides that the identity of the service provider is irrelevant.
According to par 27, in late October 2002 further medical evidence was obtained in relation to what is described as the plaintiff's psychiatric condition. It is described as "conversion disorder". Counsel reviewed that evidence and spoke to the medical practitioners. Because the dates were close to trial, counsel’s involvement may be categorised as familiarising himself with the brief. I simply need to recognise that if that was the case, then recovery may be available for additional briefing as part of the process of getting up the case.
According to par 28 counsel's next involvement appears to have been on 8 November 2002 when he met with the plaintiff and the deponent to consider the plaintiff’s evidence and the medical evidence and to reflect upon the manner in which particular evidence would be presented.
The conference having been held approximately 10 days prior to the trial it is probably appropriate to consider that at least in part counsel was going about the process of familiarising himself with the brief and engaging in a conference with the solicitor for the purpose of trial. The solicitor's involvement may properly be considered to be part of getting up the case for trial.
There is further evidence at par 33, par 34 and par 35 of reviews of the plaintiff's condition by medical practitioners. The scope of the medical evidence is given at par 32 as follows:
"The plaintiff was first reviewed by a psychiatrist (Dr de Tissera) in December 1994, only 3 months after the accident. Subsequently he was reviewed by seven other psychiatrists, two psychologists, three neurologists, a rehabilitation specialist and an ophthalmic surgeon who reported that the results of the Plaintiff's eye tests indicated the Plaintiff had suffered brain damage. In addition, the medical reports were considered by a fourth neurologist. There was no consensus of opinion amongst the specialists either as to the plaintiff's diagnosis or in relation to causation. … "
Some detail is provided at par 36 of counsel's involvement in the process of seeking to reconcile the views expressed in the latest reports of specialist medical practitioners for each of the parties. Conceivably the solicitor played a part in that process however I do not know if that was the case.
Thereafter a further conference was held prior to which counsel prepared detailed written submissions on quantum at the request of the defendant. At par 37 the deponent deposes:
"Prior to the conference the Plaintiff and his partner and I met in conference with Mr Hancy who reviewed the medical and other evidence for the Plaintiff in detail and who advised the Plaintiff on quantum of damages."

It is my appreciation of that evidence that the purpose of the conference was to give consideration to the terms of the written submissions and the imminent conference. Be that as it may, I accept that some of the benefit of the services then rendered may be taken into account both for the purposes of "getting up the case for trial" and for "counsel familiarising himself with the brief". It is difficult to discern the extent to which such services provided may have been so utilised. I suspect that it would be inappropriate for me to draw an inference in circumstances where the plaintiff could have given evidence.
At par 31 the deponent states that the plaintiff proposed calling some 18 witnesses. On a comparison with par 30 it is apparent that up to 10 would have been lay witnesses.
According to par 33 at the commencement of the trial the defendant obtained an adjournment to allow for him to obtain some further medical evidence.
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. I ought be satisfied that it had been fully prepared.
There was no order then made or now sought for any costs "thrown away" or indeed either the costs of the adjournment or of the day.
Shortly after the conference described at par 37 the plaintiff accepted the defendant’s offer of $350,000 exclusive of costs.
Turning to counsel’s account, disregarding considerations as to the evidentiary value of its content, broadly speaking it refers to what in all probability was relatively incidental but never the less, necessary contact over a significant period. It would tend to support my appreciation of the case that counsel had significant involvement in the process of reviewing the case and assisting with the getting up as the action progressed to trial. I have already commented that significant consideration was given by counsel to the prospects of settlement. It is appropriate to consider that to the extent that such a level of engagement by counsel may have increased costs, r 11(3) may determine that such increased costs were not recoverable from the defendant.
At par 42 to par 47 reference is made to the draft bill of costs, counsel's fees, the impact of the scale and to a considerable shortfall in costs allowed. The evidence does not portray that shortfall in any useful context.
I have been told nothing of the relationship between the plaintiff and his solicitor. It may be the case that if the plaintiff fails in the application then he may be liable to meet his solicitor's fee for the relevant services in the order of some $70,000 but only be entitled to recover against the defendant to a maximum of some $30,000. Alternatively recovery by the solicitor may be limited to some $30,000. The issue is significant, in the first case the plaintiff would take a loss, in the second there would be no loss, at least for the purposes of this application, however the solicitor might apprehend a sense of loss.
There may be a perception that a solicitor may apply under r 12(1) for enhanced recovery against his client. So far as I am aware, no such order has been made in this case and none is now sought. In my opinion the discretion provided by the rule would not be available for the benefit of a practitioner, not simply because ultimately the relationship sought to be affected would either be contractual or quasi contractual but also because of the manner of expression of the rule, in particular the use of the term "Special Order". The limited jurisdiction provided to the Supreme Court under s 59(5) of the Legal Practitioners’ Act is not a context that would allow for what may be described as a special order. It provides what amounts to a complete code. In any event it is not a context in which this Court would ever find itself.
Although the parties did not address the issue, it seems to me that the retainer in this case would be subject to the regime provided by s 27A of the Motor Vehicle (Third Party Insurance) Act 1943 whereby a solicitor’s recovery is limited to the determinations made under s58W of the Legal Practitioners’ Act.
The determination expressed at clause 4 of the Legal Practitioners’ (Supreme Court) (Contentious Business) Determination 2002 is to the effect that the Court and taxing officers have particular powers including discretion under r 12(1).
I struggle to understand why the Legal Costs Committee would record that on 23 April 2002 it recognised powers of considerably longer standing. If the characterisation of that recognition as a determination was to facilitate recourse to r 12(1) in a context where s 27A would have effect, then in my opinion that part of the determination is patently a contrivance.
The only basis for any recovery by the plaintiff against the defendant is the indemnity provided by the order. The application does not seek to interfere with that order. The intention of the legislature in enacting s 27A was to limit recovery. Ultimately as much as s 27A would prohibit beyond scale recovery by the plaintiff’s solicitors, the indemnity provided by the order for costs would operate to protect the defendant. It would be inappropriate for the Court to construct a mechanism to subvert that intention.
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.
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.
Otherwise the number of witnesses that may have been interviewed and/or proofed is more than one may expect in the average case but upon reflecting upon the facets of the plaintiff's life that were put in issue by the action and the proposed length of the trial, that at least 10 witnesses may have been proofed of itself is not remarkable.
It is fair to assume that the plaintiff's solicitor would have had either more or less difficulty in obtaining proofs from the witnesses than would be the case in any broadly similar action. By that I mean some witnesses may have been steadfast in their refusal to be involved, some may have been reticent but succumbed to additional prompting, some may have been difficult to find. But in any such case evidently not sufficiently so that it was considered to be worthy of mention in the solicitor’s affidavit.
As I saw the case unfold it was my impression that the case would not justify the description as being of unusual complexity or importance. It was my perception that if not for the prospect that a liability of $7000 odd may not be recoverable and for the prospect that some of the services canvassed by counsel’s accounts may be found to be getting up case for trial, that the plaintiff would have faced a difficult decision in determining whether to make an application for increased recovery under Item 13. I suspect that perception properly translates to the view that the plaintiff properly falls under the ‘policy the scale’ to which reference was made in Schmidt v Gilmour (supra). To put it another way, it is not a case that calls for intervention in the form of an order under r 12(1).
I might add that it would have been the easiest thing in the world to do to consider that it would not matter much if I allowed for the increase and left the difficult decision to the taxing officer. In my opinion to take that course would demonstrate a failure to recognise that the onus was on the plaintiff to satisfy the Court and that it has not been discharged.
I will now consider the matter of the plaintiff’s proposal for recovery of counsel’s fee. I have already canvassed what I appreciate to be significant evidence. Beyond the analysis to this point, at par 45 and par 46 evidence is given of counsel's experience, seniority and the benefit accorded to the plaintiff by counsel’s engagement.
On the evidence it is patent that that a significant component of counsels fee rendered to the plaintiff's solicitor relates to services that could not qualify as counsel's fee under Item 14 of the scale. It is my appreciation that to the extent that the plaintiff seeks recovery for more than preparation for trial he would seek to interfere with the extent to which recovery would be available under the order for the costs of the action. I consider that it is open for the plaintiff to seek to vary the impact of the order under the provision for liberty to apply for a special order.
In putting the particular case made for the prospect of full recovery for counsel’s fees the plaintiff has made no effort to classify the activities in which counsel was engaged, as, but for the order sought being made, they would be specified in any party and party bill of costs. Thereby the applicant has introduced a degree of difficulty to the task of reflecting upon the appropriateness of making the order sought.
There are significant claims made by counsel against the solicitor which would appear to be in the nature of services rendered for the purposes of counsel familiarising himself with the brief leading up to the first day of trial. I appreciate that although the case did actually progress to trial, the trial did not commence. Accordingly any scope for recovery under the scale would probably be limited to that part of Item 14(a) expressed as preparation. Yet there was no order in relation to the costs of the trial, its adjournment or any costs thrown away. No relevant submissions were made to me in that regard. My impression is that the plaintiff proceeded along the lines that he understood that he would be entitled to those costs. I can see little to support the prospect of recovery by the plaintiff. I have skimmed through the transcript and read the reasons of Her Honour. It is conceivable that had any order been made that it would have been either in favour of the defendant or in effect that the parties meet their own costs at least of the application to adjourn, if not for any costs thrown away.
The balance of the significant claims relate to the preparation of submissions and attendance at the "informal pre-trial conference" and I infer, giving attention to whether the defendant's offer ought to be accepted. Thereby counsel was engaged in activities beyond the scope services contemplated by the order for costs of the action. If the only issue raised in relation to those services is whether I ought to provide for the prospect of recovery then the result must be to refuse to do so as in that regard, this case is no different to any other.
As to the prospect that counsel performed some getting up, it would not necessarily mean that the cost associated with the process of engaging counsel might not be recoverable at least by the solicitor under r 11(3). I appreciate that is pure speculation on my behalf. None the less, unless I was satisfied that was not the case; I would not be in the position to subscribe to the view put at par 43 of the solicitor's affidavit that to the extent that counsel is paid, the only resource available to the solicitor is diminished.
Further, although I might make an assumption or two as to the relationship between counsel and the solicitor, it would have been to the advantage of the applicant that I had been told that there had been no unusual arrangement made in relation to the services relating to settlement, getting up case and the adjournment of the trial.
If I was to simply conduct an analysis of the services that related to mastery of brief then recovery sought would be probably fall within a range of $7,000 to $10,000, which, I accept would be at the top of the range and beyond.
Putting aside the lack of clarity in the case brought by the applicant, it is a matter of considering whether such a case warrants an order for beyond scale recovery. The scale maximum ought to be considered as being capable of accommodating the range of litigation presented at trial. Against that datum, it is difficult to see that there would be any justification in this case to interfere with ‘the policy of the scale', or to put it another way, any reason to exercise jurisdiction under r 12(1).
Accordingly I propose to dismiss the application.

[2004] WADC 21

20 February 2004