William Buck (WA) Pty Ltd v Faulkner [No 2]
[2012] WASC 257
•16 JULY 2012
WILLIAM BUCK (WA) PTY LTD -v- FAULKNER [No 2] [2012] WASC 257
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 257 | |
| Case No: | CIV:2995/2011 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 16/07/12 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application to increase scale allowance refused | ||
| B | |||
| PDF Version |
| Parties: | WILLIAM BUCK (WA) PTY LTD WILLIAM BUCK HOLDINGS (WA) PTY LTD CRAIG PETER FAULKNER LEDGER FAULKNER PTY LTD CSF CORPORATE PTY LTD MARK PETER COLLINS STEPHEN KENNETH BREIHL CHRISTOPHER JOHN BROWN FRANK DEL BORRELLO DAMON ALLAN HARRIS ROBIN BOYD JUDD |
Catchwords: | Practice and procedure Discovery and inspection Copying of inspected documents Fee for in-house copying challenged Item 31 of Costs Determination 2010 applicable Onus to persuade otherwise not met |
Legislation: | Rules of the Supreme Court 1971 (WA) Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 Legal Profession Act 2008 (WA) |
Case References: | Williams v Grainger [2000] WASC 89 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : WILLIAM BUCK (WA) PTY LTD -v- FAULKNER [No 2] [2012] WASC 257 CORAM : KENNETH MARTIN J HEARD : ON THE PAPERS DELIVERED : 16 JULY 2012 FILE NO/S : CIV 2995 of 2011 BETWEEN : WILLIAM BUCK (WA) PTY LTD
- First Plaintiff
WILLIAM BUCK HOLDINGS (WA) PTY LTD
Second Plaintiff
AND
CRAIG PETER FAULKNER
First Defendant
LEDGER FAULKNER PTY LTD
Second Defendant
CSF CORPORATE PTY LTD
Third Defendant
(BY ORIGINAL ACTION)
- CRAIG PETER FAULKNER
Plaintiff
AND
WILLIAM BUCK (WA) PTY LTD
First Defendant
WILLIAM BUCK HOLDINGS (WA) PTY LTD
Second Defendant
MARK PETER COLLINS
Third Defendant
STEPHEN KENNETH BREIHL
Fourth Defendant
CHRISTOPHER JOHN BROWN
Fifth Defendant
FRANK DEL BORRELLO
Sixth Defendant
DAMON ALLAN HARRIS
Seventh Defendant
ROBIN BOYD JUDD
Eighth Defendant
(BY COUNTERCLAIM)
BETWEEN : CSF CORPORATE PTY LTD
- Plaintiff
AND
WILLIAM BUCK HOLDINGS (WA) PTY LTD
Defendant
Catchwords:
Practice and procedure - Discovery and inspection - Copying of inspected documents - Fee for in-house copying challenged - Item 31 of Costs Determination 2010 applicable - Onus to persuade otherwise not met
Legislation:
Rules of the Supreme Court 1971 (WA)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010
Legal Profession Act 2008 (WA)
Result:
Application to increase scale allowance refused
Category: B
Representation:
CIV 2995 of 2011
Original Action
Counsel:
First Plaintiff : No appearance
Second Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
First Plaintiff : Solomon Brothers
Second Plaintiff : Solomon Brothers
First Defendant : Bennett & Co
Second Defendant : Bennett & Co
Third Defendant : Bennett & Co
Counterclaim
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Solicitors:
Plaintiff : Bennett & Co
First Defendant : Solomon Brothers
Second Defendant : Solomon Brothers
Third Defendant : Solomon Brothers
Fourth Defendant : Solomon Brothers
Fifth Defendant : Solomon Brothers
Sixth Defendant : Solomon Brothers
Seventh Defendant : Solomon Brothers
Eighth Defendant : Solomon Brothers
COR 174 of 2011
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : Bennett & Co
Defendant : Solomon Brothers
Williams v Grainger [2000] WASC 89
(Page 5)
1 KENNETH MARTIN J: Within the parties' pre-trial preparations, a dispute has arisen concerning the fee that the defendants (the Faulkner parties) should pay in order to obtain copies of a tranche of discovered documents the subject of the inspection process by the other parties (the William Buck parties).
2 The Faulkner parties offer to pay, in accordance with item 31 of the table to cl 11 for the Supreme Court Scale of Costs (pursuant to the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010), 11 cents per page for the requested copies (inclusive of GST).
3 When the 2010 Determination was made, cl 9(c) of the schedule said:
The Committee notes that the allowance for copies in item 31 of the table to clause 11 is intended to cover all forms of electronic reproduction and copying.
- See also cl 11(a)(1).
4 The 2010 Determination became operational from 1 July 2010. Its item 31 copying allowance of 11 cents per page was a significant reduction, in contrast to the levels of prior scale allowances for copying. The Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008, in operation from 1 July 2008, cl 9 table item 30, had provided:
Photocopies where necessary, including of documents for which allowance is otherwise made in this Determination - $1.00 per page.
5 Earlier than 2008 the position was: see the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006, cl 9 table item 30 - $1 per page; 2004 cl 6 table item 30 - $1 per page; 2002 cl 4 table item 29 - 95 cents per page.
6 So it is apparent the 2010 Determination of 11 cents (GST inclusive) delivered a significant per page reduction, in comparison to the higher levels of the past allowances for copying (especially as the 2010 Determination extends to all forms of electronic reproduction and copying).
7 For present purposes, the photocopying of the inspected documents of the William Buck parties required (concerning only one tranche of the documents for categories the parties have agreed) concerns approximately 14 lever arch files of documentation (with apparently about 300 pages per
(Page 6)
- lever arch file). This exercise extends to 1,530 different documents. Hence, there are (roughly) 4,200 pages of material needing to be copied.
8 The William Buck parties accept that by reason of item 31, and also s 280(2) of the Legal Profession Act 2008 (WA), they carry an onus of persuasion to show why the scale allowance of 11 cents per page (GST inclusive) as set under item 31 should not apply.
9 In written submissions filed on this application (which is substantively determined on the papers), the William Buck parties seek to meet their onus. They point out that some of the documents to be copied are bound, clipped together or carefully arranged. So it is not just a mundane task of running 4,200 pages of material through a high speed photocopier. The claim for a rate for photocopying of 55 cents per page (GST inclusive) proceeds on the assumption that some trained clerk or paralegal employed within the offices of the solicitors for the William Buck parties (Solomon Brothers) should manually carry out the task of copying each requested page, using that firm's in-house photocopying facilities.
10 In the midst of the conferral process between the parties, it was suggested by the William Buck parties, as an alternative to charging at 55 cents per page, that the copying exercise be undertaken on the basis of a charge levied by reference to the time expended by the clerk or paralegal concerned at Solomon Brothers to carry out the copying using the firm's photocopier. This would be at a charge out rate of $209 per hour for the copying task. That proposal was rejected.
11 In terms of how far apart the parties' rival positions presently are in a monetary sense, the dispute between a proposed charge of approximately 4,200 pages x 55 cents = $2,310 (GST inclusive) and the counter-position of the Faulkner parties who, contending for a rate of 11 cents per page (GST inclusive), say the charge should be only 4,200 x 11 cents = $462 (GST inclusive). A contest over a sum less than $2,000 in the Supreme Court is wildly uneconomic, to say the least.
12 However, the dispute has wider implications in respect of further tranches of discovered documents that will undoubtedly need to be copied in future as between these same parties. There is also a point of wider principle now raised concerning the applicability of item 31.
(Page 7)
13 For the purposes of the contest (dealt with on the papers), each side filed written submissions and affidavit materials, plus a memorandum. I was also referred by the William Buck parties to a decision of Master Sanderson concerning Rules of the Supreme Court 1971 (WA) (RSC) O 26 r 8 and r 8A: Williams v Grainger [2000] WASC 89. I will first set out those rules.
14 RSC O 26 r 8(5) provides, as regards the process of inspection:
The party making the inspection shall be entitled to make copies of any documents produced for inspection under this rule.
15 RSC O 26 r 8A(2) says:
The party producing the documents must provide facilities for inspection and copying of the documents and make available a person able to -
(a) explain the arrangement used; and
(b) assist in locating and identifying particular documents or classes of documents.
16 In Williams v Grainger it is suggested by the learned Master that a party producing discovered documents for inspection needs at the same time to make available its solicitors' in-house photocopying facilities, so the person or persons who are inspecting may themselves immediately proceed to use those facilities to make copies of the documents (presumably on the basis that they would then pay, or make acceptable arrangements to pay, an appropriate charge). For myself, I would suggest r 8A(2) is chiefly concerned with making provisions for the inspecting party to be able to locate and understand how the documents produced are arranged and locatable, so that the inspecting party is not left floundering about and attempting to find a needle in the proverbial haystack. Having said that, the preface to r 8A(2) does mention copying, in the context of the provision of facilities for inspection. It becomes a question of what is reasonable and the answer to that question must be addressed on a case by case basis.
17 The present litigation proceeds within the context of the CMC List where it is case managed. In that context, the parties are expected to conduct themselves with an eye to efficiency, expedition and cost minimisation wherever possible.
18 During the parties' negotiations over the cost of copying, one option offered to the William Buck parties' solicitors was that all documents
(Page 8)
- required to be copied by the Faulkner parties be uplifted by a private litigation support company, taken away, photocopied and returned (see second affidavit of Blanche Monique Lusty sworn 31 May 2012). That copying option would effectively be at no cost to the William Buck parties. The litigation support company would directly render their (far lesser) charges for the copying exercise to the Faulkner parties or to their solicitors.
19 A third affidavit of Ms Lusty sworn 11 June 2012 in support of the Faulkner parties' application outlines the commercial basis of charging for copying by that litigation support company. The material supports a conclusion that the maximum photocopying charge that would ever be likely to be incurred from this litigation support provider, even copying bound, clipped or assembled documents, would be at a rate of 25 cents per page.
20 That uplift and external copying solution was rejected by the solicitors for the William Buck parties. This was chiefly, it would seem, by reason of the asserted sensitive and confidential nature of accounting firm/client-related documents which need to be copied.
21 Having closely weighed those confidentiality assertions, I find myself completely unmoved and underwhelmed by them. In my view, they present as a far too convenient bulwark against the pragmatism of the copying task being taken out of the hands of the solicitors for the William Buck parties.
22 Having read and considered the affidavit-based material from the litigation support company, I am satisfied that the company has in place a careful, sensitive and appropriate regime of confidentiality and security measures as part of its institutionalised business operations. Its business credibility as a litigation support company would be prejudiced if that were not the case. I am satisfied that its prudential in-house measures render it overwhelmingly unlikely any of the documents would be misused, or that any confidential content is likely to be compromised.
23 The William Buck parties have not demonstrated to me that they have acted reasonably in taking a stance which, through their solicitors, Solomon Brothers, has been articulated as:
(a) claiming at 55 cents per page (GST inclusive), a level five times higher than the rate presently allowed under item 31;
(Page 9)
- (b) as an alternative, suggesting that the exercise be carried out in-house by Solomon Brothers using clerks or paralegals charging at the open-ended rate of $209 per hour for as long as the copying task may take; and
(c) declining, for inadequate reasons, what I assess as a more than reasonable offer of the Faulkner parties to have the materials uplifted and copied externally by a competent and experienced litigation support provider at no cost to the William Buck parties.
24 In my view, the William Buck parties must either submit to the external copying arrangement, pursuant to which the documents concerned are collected, taken away, photocopied and then returned by the third party litigation support provider (with an appropriate confidentiality assurance or undertaking); or have the copying done in-house by their solicitors. But in that latter event, the exercise must then be carried out at the item 31 rate of 11 cents per page (GST inclusive) and not higher.
25 It is clear that the most recent 2010 Determination consciously sets a far lower copying rate than previously. It is a rate which, in a commercial sense, is more reflective of a rate that can be obtained for copying in the Perth CBD market. This is obviously a measure that endeavours to make a contribution towards reducing the seemingly ever-increasing cost of litigation, which is a perennial access to justice problem, particularly for non-corporate litigants. Its evident intent is to be respected, not undermined by a bland assertion of inappropriateness due to 'confidentiality'.
26 I also observe that, if the copying exercise were ultimately to be carried out in-house by the solicitors, I would not countenance a scenario whereby those solicitors sought to claim from their client the 'gap' as between 11 cents a page and 55 cents a page, in the aftermath of this decision. That, in my assessment, would also be unreasonable even were there a client costs agreement in place in terms wide enough to allow that. I am not suggesting that this would occur. But I do make the observation lest there be any doubts.
27 As regards Williams v Grainger, it may be that on the facts of a particular case, practicality may require solicitors to make their in-house photocopying facilities available to an inspecting party or parties. However, for significant commercial litigation carried out in the capital cities of Australia and particularly in Perth, where there is ready access to
(Page 10)
- secure and competent photocopying services at commercial rates, the flexibility of the CMC List promotes a sensible recourse in the first instance to a viable cost saving measure if it is available: see RSC O 4A r 2(2)(a) and O 4A r2(1), referring to O 1 r 4B, in particular, O 1 r 4B(1)(b), (c), (e) and (f); and see also O 1 r 4B(2).
28 The copying exercise must be conducted accordingly.
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