| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : WIGGINS as Administrix of the Estate of DANIEL OWEN WILLIAMS (Dec) -v- BARRICK (KALGOORLIE) LTD [2013] WADC 138 (S) CORAM : HERRON DCJ HEARD : ON THE PAPERS DELIVERED : 23 AUGUST 2013 SUPPLEMENTARY
DECISION : 18 OCTOBER 2013 FILE NO/S : CIV 2 of 2010 BETWEEN : CARLIE MARIE WIGGINS as Administrix of the Estate of DANIEL OWEN WILLIAMS (Dec) Plaintiff
AND
BARRICK (KALGOORLIE) LTD
Defendant
Catchwords: Costs - Application for costs to be taxed without regard to limit prescribed by item 17 Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012
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Legislation: Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012
Legal Profession Act 2008 s 280(2) Result: Application dismissed
Representation: Counsel:
Plaintiff : On the papers
Defendant : On the papers
Solicitors:
Plaintiff : Macdonald Rudder
Defendant : SRB Legal
Case(s) referred to in judgment(s):
Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
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1 HERRON DCJ: On 23 August 2013 I delivered written reasons for decision in this matter and judgment was entered for the plaintiff in the sum of $1,714,721 and for her son Tyson Williams in the sum of $470,921. Further orders were made granting the plaintiff leave to bring an application for special costs orders and for the filing of affidavits and written submissions, with the application to be determined on the papers. Pursuant to those orders the plaintiff brings this application seeking an order that her costs be taxed without regard to the limits prescribed by item 17 'Preparation of case for trial' of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (Costs Determination) and a further order that the defendant pay the plaintiff's costs of the application.
2 The application is made pursuant to s 280(2) of the Legal Profession Act 2008 which provides: Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following — (a) order the payment of costs above those fixed by the determination; (b) fix higher limits of costs than those fixed in the determination; (c) remove limits on costs fixed in the determination; (d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed. 3 The principles of an application pursuant to s 280(2) of the Legal Profession Act are not in dispute. They are set out by the chief justice in Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S). 4 In determining such an application the court is required to consider: (Page 4)
5 In considering those two matters I should not usurp or anticipate the role of the taxing officer and, secondly, I should make an order that gives effect to the general principle of allowing the successful party to be compensated for their costs by the unsuccessful party. In addressing the first matter I am required to approach the matter as one of impression and not undertake a detailed evaluation of a draft bill for taxation. 6 The application is supported by a lengthy affidavit of David Griffith Lang sworn 30 August 2013 which largely contains submissions and opinions. 7 This action was commenced by writ issued on 30 April 2010. On 29 February 2012 a minute of proposed consent to judgment by which the defendant admitted liability was filed and judgment in terms of the minute was entered. 8 The action proceeded to trial before me on 8, 9 and 25 July 2013 in respect of an assessment of damages pursuant to the Fatal Accidents Act 1959. The evidence was completed on the second day and the action adjourned to 25 July for closing submissions which occupied no longer than half a day. The plaintiff called five witnesses and the defendant two. A large bundle of documentation including financial documentation and proof of wage rates and ranges was tendered. Neither of the first two days of the trial involved full days. The oral evidence of the plaintiff's witnesses was relatively brief as was the cross-examination of the defendant's witnesses. The factual issues were relatively straightforward. Written closing submissions with detailed calculations of damages for loss of dependency and loss of services were filed. 9 The plaintiff called one expert regarding economic conditions in the gold mining industry, the availability of employment in the industry and the prospects for promotion, working conditions in the gold mining industry, and the ranges of salaries payable. The expert prepared a written report which was tendered into evidence. The issues addressed by the expert were not complex. 10 The maximum allowance for preparation of the case is based on 120 hours work. In his affidavit Mr Lang states that based upon the recorded time by the plaintiff's solicitors he estimates 250 hours of time was spent in getting up the case for trial. He also estimates that the maximum which is able to be claimed under the scale, excluding disbursements, is in the vicinity of $123,767.46. (Page 5)
11 In my view it is not fairly arguable the scale limit is inadequate. The trial was relatively straightforward as was the evidence presented at trial. In my view the limit provided by the scale is adequate for the taxation of reasonable party and party costs. 12 Neither am I persuaded the trial was unusually difficult or complex. As I have already observed, it involved an assessment of damages under the Fatal Accidents Act for loss of dependency and services of the plaintiff and her son Tyson. Although it was necessary to undertake detailed analysis and calculation of the degree of dependency, there is no unusual complexity in that compared to the usual actions under the Fatal Accidents Act which come before this court. The assessment of damages involved an assessment of the deceased's projected earnings. The parties agreed the degree of dependency and there was therefore no need to undertake a detailed analysis and assessment of the respective past earnings of the plaintiff and the deceased. The parties also agreed that Table 9.1 in Luntz – Assessment of Damages for Personal Injury and Death (4th ed) was the appropriate method of assessing the degree of dependency. There was, for example, no need to analyse and assess the business or partnership records of the plaintiff and the deceased, or obtain forensic accounting evidence, which is not infrequently the case in Fatal Accident Act assessments which come before this court, and which can lead to unusual difficulty or complexity, to determine the degree of dependency. 13 The claim for loss of services was also relatively straightforward. 14 Further, given the agreement between the parties regarding the degree of dependency, and although an issue remained as to the proper measure of that degree of dependency, and without suggesting the work which the plaintiff's solicitors undertook in preparing for trial was unimportant, I am not persuaded that the work which was undertaken was of such importance that it justifies uplifting the scale allowed by the Costs Determination. 15 Accordingly, I dismiss the application and order the defendant pay the plaintiff's costs of the action to be taxed. 16 I also order the plaintiff pay the defendant's costs of the application.
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