| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : WYATT -v- MR & RC SMITH PTY LTD [2010] WADC 178 (S) CORAM : WAGER DCJ HEARD : 16 DECEMBER 2010 & 18 FEBRUARY 2011 DELIVERED : 30 NOVEMBER 2010 SUPPLEMENTARY
DECISION : 14 APRIL 2011 FILE NO/S : CIV 562 of 2006 BETWEEN : ROBERT WYATT Plaintiff
AND
MR & RC SMITH PTY LTD
First Defendant
ROKLEN INVESTMENTS PTY LTD
Second Defendant
ULTRA TUNE AUSTRALIA
Third Party
Catchwords: Costs - Bullock order or Sanderson order - Special costs order - Turns on own facts
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Legislation: Workers Compensation and Injury Management Act 1981 Result: Plaintiff's costs against first defendant be taxed without regard to the limits of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 and 2010 for:
(1) getting up for trial;
(2) counsel fee on brief - first day of trial and preparation
(3) refresher fee for counsel for 21 June 2010;
(4) certificate for preparation of closing submissions by counsel;
(5) certificate for costs of the transcript;
(6) Certificate for costs of issuing and answering interrogatories consistent with par 3(a) of the plaintiff's amended minute of proposed orders
First defendant pay the costs of plaintiff's special costs application to be taxed and including 16 December 2010
First defendant pay to second defendant the costs the second defendant claims against plaintiff. There be liberty to apply
No order as to costs between third party and first defendant and of the notice of appeal dated 25 January 2010
No order as to costs between third party and second defendant and of the notice of appeal dated 25 January 2010 Representation: Counsel:
Plaintiff : Mr Nugawela (16/12/2010) and Mr D Lang (18/02/2011)
First Defendant : Ms B Mangan
Second Defendant : Mr D Clyne
Third Party : Mr T R Stephenson
Solicitors:
Plaintiff : Macdonald Rudder
First Defendant : Lavan Legal
Second Defendant : SRB Legal
Third Party : Albert Chong Lawyer
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Case(s) referred to in judgment(s):
BankAmerica Finance Limited v Nock [1988] AC 1002
Bullock v London General Omnibus Co [1907] 1 KB 264
Cifuentes v Fugro Spatial Solutions Pty Ltd [2009] WASC 316 (S)
Coastal Hire Pty Ltd v Ewers [2009] WASCA 36 (S)
Gove v Black [2007] WASC 298 (S)
Heartlink Ltd v Jones as Liquidator for HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Michael Aaron James (by his next friend Rhonda Dawn James) v Grant [2009] WADC 201 (S2)
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [2011] WASCA 43
O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36; (2008) 36 WAR 197
Sanderson v Blyth Theatre Company [1903] 2 KB 533
Wyatt v MR & RC Smith Pty Ltd [2010] WADC 178
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1 WAGER DCJ: On 30 November 2010 I published my reasons for judgment in this action (Wyatt v MR & RC Smith Pty Ltd [2010] WADC 178). The parties now seek orders in relation to the issue of costs.
2 The history of this matter prior to trial relevant to this application is that before the plaintiff commenced proceedings for personal injuries against the first defendant (his employer) in respect of the fall on a stair in the place of employment the first defendant sought an indemnity from the second defendant (the owner of the premises) in relation to the first defendant's liability to the plaintiff pursuant to the Workers Compensation and Injury Management Act 1981. 3 The plaintiff subsequently commenced proceedings against the second defendant. At a later stage the second defendant issued third party proceedings against the third party (the franchisor of the first defendant's franchise and lessee of the second defendant's premises). The third party subsequently issued proceedings against the first defendant. 4 Proceedings were also commenced between the first defendant and the second defendant and between the second defendant and the first defendant. 5 The reasons for decision in this matter set out that the plaintiff established that the first defendant was liable but that the plaintiff failed to establish liability against the second defendant. Proceedings between the first defendant and the second defendant and between the second defendant and the first defendant were dismissed. 6 The third party proceedings against the first defendant were unsuccessful and were dismissed and, given the findings in relation to the second defendant, the proceedings between the third party and the second defendant were also dismissed. The reasons in relation to the third party proceedings in respect of the second defendant established that: 7 On 11 February 2011 the first defendant successfully applied for a suspension of judgment in favour of the plaintiff pending an appeal (Page5)
against this decision: MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [2011] WASCA 43. At [14] Pullin JA made the suspension order, but subject to $160,000 being paid to the (plaintiff's) solicitors to be held in trust by the (plaintiff's) solicitors for the purposes of payment of legal costs associated with the appeal and on condition that if the appeal succeeds on liability, that that sum will be repaid and on condition also that $25,000 (the sum adduced to be paid to the plaintiff in light of his prior financial circumstances) is paid to the plaintiff. 8 The trial was a protracted affair involving 23 sitting days over three periods that commenced on 2 February 2010 and ended on 20 August 2010. Delays in the trial were caused by illness (on two occasions), by the third party appealing a decision that had been made by Registrar Kingsley in relation to the pleadings and by an adjournment that was required on the afternoon of 2 July 2010 as a result of evidence from the third party's witness of a failure to disclose all of the files and documents in the third party's possession relevant to the third party and to the other parties. 9 In making the present application counsel accept that the court will generally order that the successful party to any action or matter recovers its costs but that the court's general discretion in relation to costs is not limited: O 66 r 1 of the Rules of the Supreme Court 1971. 10 Given the outcome at trial the first defendant acknowledges that it is appropriate that it pays the plaintiff's costs and the first defendant does not oppose the making of a Bullock order in respect of the second defendant's costs to be paid by the plaintiff given that the plaintiff was unsuccessful in his claim against the second defendant. However the first defendant opposes the making of a Sanderson order, which is the order that the plaintiff seeks in respect of the second defendant's costs. 11 In support of his application for a Sanderson order the plaintiff deposes in his affidavit sworn 16 December 2010 that it was after the plaintiff had commenced WorkCover proceedings against the first defendant that the first defendant commenced proceedings against the second defendant whereby the first defendant sought an indemnity from the second defendant in relation to the first defendant's liability to the plaintiff under the Workers Compensation and Injury Management Act 1981. The plaintiff also deposes that the first defendant's amended statement of claim in respect of the contribution proceedings greatly influenced his decision to sue the second defendant because the plaintiff understood from the second defendant's pleadings that the second (Page 6)
defendant was negligent. Pleadings filed by the second defendant in this matter prior to trial also provided support for that view. I accept that the plaintiff's affidavit accurately sets out the state of the proceedings and pleadings prior to the commencement of the trial and that it was both reasonable and fair for the plaintiff to proceed against the second defendant. In the circumstances the first defendant should indemnify the plaintiff in relation to the second defendant's costs either by a Bullock order or a Sanderson order. The issue to be determined is the form of order that should be made. 12 Bullock orders arose as a result of the case of Bullock v London General Omnibus Co [1907] 1 KB 264. Sanderson orders arose as a result of the decision in Sanderson v Blyth Theatre Company [1903] 2 KB 533. Newnes JA in the supplementary decision relevant to costs in the matter of Coastal Hire Pty Ltd v Ewers [2009] WASCA 36 (S) sets out the relevant principles in respect of the two orders at [22] and [24]: The court has a very wide discretion in relation to costs. It is a discretion to be exercised judicially. In the exercise of the discretion, the fundamental question must always be what is just in the particular circumstances of the case. It has long been accepted that where a plaintiff succeeds against one defendant but fails against another defendant in an action against them for substantially the same relief, the court may order that the cost of the successful defendant be paid, directly or indirectly, by the unsuccessful defendant. Where the court makes a Sanderson order the unsuccessful defendant is ordered to pay the successful defendant's costs of the action direct to the successful defendant: Sanderson v Blyth Theatre Company [1903] 2 KB 533. Where the court makes a Bullock order, the unsuccessful defendant is ordered to pay to the plaintiff the costs for which the plaintiff is liable to the successful defendant: Bullock v London General Omnibus Co [1907] 1 KB 264; Johnsons Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544, 572. Generally there is no practical difference between the two forms of order, except where the unsuccessful defendant is insolvent or there is at least a real risk that he is impecunious. Then the insolvency (or the impecuniosity) of the unsuccessful defendant is a factor to be taken into account as part of the overall circumstances for the purpose of determining which form of costs order should be made as a matter of fairness: BankAmerica Finance Limited v Nock [1988] AC 1002 at [1011]; State of Victoria v Horvath(No 2) [2003] VSCA 24 at [15]. 13 Accordingly, if a Sanderson order is made in this case then the first defendant would be ordered to pay the second defendant's costs on behalf of the plaintiff, payment to be made directly to the second defendant. If a (Page 7)
Bullock order is made then the first defendant would be liable to reimburse the plaintiff in respect of his payment of the second defendant's costs of the action. 14 It was argued by the first defendant and the second defendant in this case that a Sanderson order is the more punitive order, however there is no reason why such an order should be seen to be punitive. 15 It is conceded that the conduct of the unsuccessful defendant in the context of both the worker's compensation proceedings and the pleadings in this trial indicated that the joinder of the second defendant by the first defendant was reasonable and proper. There is no suggestion of impropriety on the part of the first defendant. Neither order, be it a Bullock order or a Sanderson order, should be seen to be punitive. 16 Further, counsel for the second defendant also submits that if a Bullock order is made then if the first defendant is successful in its appeal against the judgment in this case the first defendant would walk free from its obligations to the second defendant requiring further action on the part of the second defendant. 17 Counsel for the plaintiff submits that given that the first defendant is appealing against the decision in this case, if the plaintiff is required to pay the second defendant's costs prior to receiving the benefit of the judgment or if the appeal is successful and he does not receive the anticipated benefit from the judgment, then his financial position would be such that he could not meet the direct payment of the second defendant's costs without declaring bankruptcy. The plaintiff therefore submits that a Sanderson order would ensure that the plaintiff was not put in this position and the second defendant would receive its costs. Counsel for the plaintiff also submits that, consistent with the decision of Templeman J in the supplementary costs decision of Gove v Black [2007] WASC 298 (S) in which the approach of the Court of Appeal in Mayer v Harte [1960[ 1 WLR 770 that was subsequently approved in BankAmerica Finance Limited v Nock [1988] AC 1002 should be followed. That is, that the court should consider the hardship likely to be suffered by the parties depending on which form of order is made and make an order that favours the party that is likely to suffer the greatest hardship. 18 I accept that in this case there is the potential that a successful appeal by the first defendant could mean that the second defendant faced issues in relation to uncertainty in respect of its costs. That would be costly and (Page 8)
is clearly not the court's intention. However, I need to weigh that risk against the potential hardship caused to the plaintiff by the making of a Bullock order. 19 I had the opportunity during the course of the trial to assess the plaintiff's financial position. I accept that the plaintiff does not have significant savings nor assets, nor does he have the ability to borrow a sum consistent with the amount that is likely to be sought in costs by the second defendant. Factually I accept that it is very likely the plaintiff would be placed in a position where bankruptcy would be an almost inevitable result if the plaintiff was ordered to pay the second defendant's costs directly. Bankruptcy would cause hardship to the plaintiff and cause delay to the other parties. Although this is a difficult balancing exercise, I consider that a Sanderson order is more appropriate. I order that the first defendant pay to the second defendant the costs that the second defendant claims against the plaintiff.
Costs between the first defendant and the second defendant 20 Both the proceedings between the first defendant and the second defendant and between the second defendant and the first defendant were dismissed. The parties have agreed that it would be inappropriate for there to be any costs orders between the parties in respect of either of the proceedings. I accept that this approach is a sensible and pragmatic one. I have therefore made no order as to costs in respect of the action between the first defendant and the second defendant nor in respect of the action between the second defendant and the first defendant.
Third party costs 21 Given the court's findings in respect of the second defendant the third party proceedings were dismissed [283]. 22 Counsel for the second defendant submits that it was reasonable for the second defendant to have joined the third party because it was at the premises that the third party had leased from the second defendant that the plaintiff's injury occurred. It is further submitted that the third party as franchisor had entered into a franchise agreement with the first defendant. The first defendant is the plaintiff's employee. I accept that it was reasonable for the third party to be joined. 23 At trial the second defendant claimed that the third party had an obligation under the lease between it and the third party that inevitably led to the third party being liable for any negligence on the part of the second (Page 9)
defendant (the construction argument). This argument was not successful at trial [304]. 24 Immediately prior to trial the third party had unsuccessfully applied to amend its pleadings in respect of the second defendant to add to its claim pleadings in relation to the impossibility of the third party obtaining insurance that would have covered the second defendant from its own negligence at the relevant time, being the time of the plaintiff's injury (the impossibility argument). 25 The third party appealed against Registrar Kingsley's refusal to allow the amendment and the appeal was listed to be heard on the day prior to the commencement of the trial. Due to illness this did not occur and once the trial commenced it was apparent that any evidence or issues relevant to the third party's claim would not be reached within the allocated listed trial days and accordingly, given the inevitability of a time delay, the issue of prejudice fell away. The third party amended its pleadings and proceeded against the second defendant in relation to the impossibility argument. 26 The third party was not successful in relation to the issue of impossibility. In order to support the impossibility argument at trial the third party called an expert witness Mr Atkin. The second defendant called two expert witnesses in relation to the issue, being Mr Burton and Mr Mahoney. Counsel for the third party submits that, given that the second defendant's expert witnesses relied on documents introduced into evidence by the third party's expert witness, costs for the witness should be awarded to the third party. I do not accept this submission. The evidence of the second defendant's witnesses was preferred at trial. The issue of the identity of the witness who first introduced documents into evidence upon which the second defendant's expert witnesses made comment is not relevant to the issue of costs in this matter. I do not make an order in relation to the costs of the third party's expert witness. 27 During the course of its case the third party called evidence from Mr Chong who is the in-house counsel for the third party. In cross-examination by counsel for the second defendant it became apparent that Mr Chong was referring to files that were held by the third party in respect of the other parties that had never been disclosed to the other parties. The second defendant successfully applied for the cross-examination to be adjourned midway through the cross-examination of Mr Chong so that disclosure could occur. The trial was therefore (Page 10)
adjourned on 2 July 2010 and did not recommence until 17 August 2010 when Mr Chong was recalled. 28 Counsel for the third party submits that because the parties did not seek to rely on any document that was in a file that had not been disclosed the third party should not bear the costs of the adjournment or the costs of reconvening the court in respect of Mr Chong's evidence and that, in any event, no additional court time was required to complete Mr Chong's evidence. I do not accept this submission. 29 The third party had an obligation to disclose by discovery. Had disclosure occurred at the appropriate time then a significant part of the cross-examination of Mr Chong by counsel for the second defendant would not have proceeded. In that event it would have been possible to complete Mr Chong's evidence on 2 July 2010. 30 It is also submitted by counsel for the third party that I should consider the making of a Bullock order or a Sanderson order in respect of the third party costs. The third party's claim against the first defendant was unsuccessful and there is no basis upon which the court would properly exercise its discretion to make an order of that type between the second defendant and the third party. 31 Counsel for the second defendant submits that the third party should pay at least two-thirds of the second defendant's costs in relation to the third party proceedings if a costs order between the parties is to be made. I do not accept that an order in respect of two-thirds of the costs is appropriate. 32 The time taken in court in relation to the construction argument raised by the third party was approximately equal to the total of the time taken in respect of the third party's argument in relation to impossibility together with the delay caused by non-disclosure. 33 I therefore order that there be no order as to costs in relation to the third party proceedings between the second defendant and the third party. 34 The third party was unsuccessful in its argument in relation to the first defendant's obligations. There is no order as to costs between the third party and the first defendant. (Page 11)
Plaintiff's application for special costs against the first defendant 35 By application dated 21 December 2010 heard on 18 February 2011 the plaintiff applies for an order that the costs scale limits be removed in respect of the following items on a party to party taxation: 1. Item 6(b) giving further particulars of pleading. 2. Item 9(b) answers to interrogatories. 3. Item 16 getting up for trial. 4. Item 19(a) counsel fee on brief – first day of trial and preparation (and after 1 July 2010) 20(b). 5. Item 19(b) counsel fee at trial for second and subsequent days and specifically the taxing officer have discretion to allow the plaintiff's counsel a 'refresher' fee for each of the first days after any break in this trial – this is 21 June 2010 and 17 August 2010 be treated as first days of trial pursuant to item 19(a) of the Supreme Court Costs Scale 2008 and item 20(a) of the Supreme Court Costs Scale 2010 respectively and there be a certificate for the written closing submissions prepared by counsel. 36 The plaintiff's application is made pursuant to s 280(2) Legal Profession Act 2008 that was proclaimed to come into operation on 1 March 2009. By s 616(1) the current provisions in relation to costs contained in pt 10 of the Act only apply where the client first instructs the law practice on or after the commencement day. Otherwise as in this case, pt 13 of the Legal Practice Act 2003 will continue to apply as will the provisions of legal cost determinations made under s 210 of that Act. In relation to contentious business the Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996 that operated at the relevant time applies. In this case the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 and the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 apply to the remuneration of practitioners based on the costs incurred during the period of their operation: see generally Cifuentes v Fugro Spatial Solutions Pty Ltd [2009] WASC 316 (S) [17] (Murray J). 37 Pursuant to s 215(1) of the Act the taxation of bills of costs of legal practitioners, as between legal practitioner and client and party; and any other aspect of the remuneration of legal practitioners the subject of a determination is regulated by legal costs determination (s 210 of the Act). (Page 12)
38 Section 215(2) sets out that if the court is of the opinion that the amount of costs allowable in respect of the matter under a legal costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court may – (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; or (d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or taxed. 39 In dealing with s 215(2) in the supplementary costs decision of Heartlink Ltd v Jones as Liquidator for HL Diagnostics Pty Ltd(in liq) [2007] WASC 254 (S) Martin CJ said [12] – [15]: The question posed to the court under s 215(2) will almost always arise before taxation has occurred. It is of course the responsibility of the taxing officer to tax the bill and identify with precision the amount that should be allowed in respect of the particular claim for costs. Section 215(2) also falls to be construed in the context of the well-known principle that at least in respect of costs as between party and party, the principle is that the successful party should be compensated by the unsuccessful party for their costs (see O 66 r 1, Rules of the Supreme Court 1971 (WA)). Those two considerations provide a guide to the proper approach to be taken to the question posed to a court when an application is made under s 215(2). The policy considerations that should guide a court when addressing an issue under s 215(2) are, firstly, that the court should not usurp the role of the taxing officer and, secondly, that at least where party and party costs are concerned, the court should make an order that would give effect to the general principle of allowing the successful party to be compensated for their costs by the unsuccessful party, where appropriate. There are two alternative ways in which one might approach the question of inadequacy posed by s 215(2). The first would be to require an applicant for an order under that subsection to satisfy the court that the bill to be taxed will, on the balance of probabilities, tax at an amount that is greater than the limit that would be imposed by the item in the relevant costs determination, which is therefore inadequate. The alternative approach would simply be to require an applicant for an order under the section to satisfy the court that there is a fairly arguable case to be put (Page 13)
before a taxing officer to the effect that the bill to be taxed should tax out at more than the limit that would be imposed by the costs determination. On this alternative view of the section, the court could arrive at the conclusion that the limit was inadequate because the maintenance of the limit would preclude the applicant from presenting a fairly arguable case to the taxing officer. The considerations to which I have referred, and in particular the view that the court should not, under this section, usurp or anticipate the role of the taxing officer, lead me to conclude that the latter of those two alternatives is the preferred approach to an application under s 215(2). 40 And further [16] – [19]: … The second question is whether that inadequacy arises because of the unusual difficulty, complexity or importance of the matter. It is common ground between the parties that the word "unusual" qualifies only the expression "difficulty" and does not qualify the words "complexity" or "importance". Another issue was, however, raised in argument in relation to those words, and that concerns the meaning to be given to the word 'importance'. Heartlink submits that the criterion of importance cannot be met having regard to the interests of the parties only, but must, in order to be satisfied, import an element of importance to the community. I cannot see any reason in policy or principle why the word "importance" should be construed in this way. If it had been the intention of the legislature to require the court to give consideration to an issue of community or public importance, then I think it would have been reasonable to expect the legislature to use words that would connote that meaning, such as the well-known phrase "public importance" which is found in a number of other legislative provisions. It seems to me that by reference to "importance" in this context, the legislature is allowing the court to have regard to the question of whether the work done was appropriate to the significance of the issues that arose in the litigation. Significance can arise either because of the significance of the issues to the parties or because of the significance of the issues to other prospective parties or to the public or to the community generally. In this case, the issues raised were of considerable significance to the liquidators in the practice of their profession, and in respect of whom serious allegations were made. 41 I adopt the analysis of Martin CJ in my assessment of the plaintiff's application. (Page 14)
Was the plaintiff's case of unusual difficulty or complexity or importance? 42 The plaintiff relies on the following in support of this application: (a) affidavit of the plaintiff sworn 16 December 2010 (first Wyatt affidavit); (b) affidavit of the plaintiff sworn 11 February 2011 (second Wyatt affidavit) annexing Peter J Griffin & Co's itemised account for professional services in the sum of $173,834.17; and (c) affidavit of David Griffith Lang sworn 11 February 2011 (Lang affidavit) annexing a copy bill from counsel to the plaintiff in the sum of $150,381. 43 The pleadings relevant to the case relied on at trial were: 44 All proceedings are important to the litigants involved, however, in this case the plaintiff had been unable to work for a number of years and was impecunious. The findings at trial were that the plaintiff had a significant disability that had severely limited if not extinguished his opportunity for future employment or retraining and that the disability would continue to mar his enjoyment of life and his ability to function independently. I accept that the matter is of importance because of the significant effect the trial outcome had on the plaintiff. 45 Counsel for the plaintiff has also submitted that the issues at trial were of importance to the community because of the legal issue in relation to the nature of the step from which the plaintiff fell. For the purposes for this application the issue in respect of the step and its ramifications did not make this trial a matter of importance. 46 The issues pleaded relevant to the plaintiff's case do not disclose any unusual difficulty however I accept that the trial itself did not run smoothly. The plaintiff was cross-examined for four days by counsel for the first defendant and by counsel for the second defendant. Although the cross-examination did not, of itself, increase the level of complexity in the trial, I accept that the cross-examination added to the length of the trial. (Page 15)
I also accept that the cross-examination of the plaintiff on issues of credibility and the cross-examination of medical experts by counsel for the first defendant and the second defendant did lead to the plaintiff calling Mr Rabin, physiotherapist, on the plaintiff's behalf in the second listing of the trial. The calling of a further witness would not alone have added to the complexity of the trial. 47 'Unusual' refers to whether the case can be considered as unusual compared to the 'usual run of civil cases' in the Supreme and District Courts and this involves a value judgment: see O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36; (2008) 36 WAR 197 [22] – [25] (Martin CJ). 48 The unusual aspect of the presentation of the plaintiff's case was the large gap between the first listed period in February 2010 and the second period in June 2010 combined with the trial running significantly longer than had been anticipated. I accept that the length of the gap required both the solicitor for the plaintiff and counsel for the plaintiff to do more than simply refresh the matter prior to recommencement in June 2010. The plaintiff's case was prepared on two occasions being in February and June 2010. 49 The third period of trial in August 2010 related to the third party proceedings. Counsel for the plaintiff submits that following the closure of the third party's case lengthy and detailed closing submissions had to be presented on the plaintiff's behalf and that, given that the submissions were presented in the third part of the trial period after the third party's case closed an additional getting up component should be allowed in respect of the third listing. Although I accept that the plaintiff was required to prepare its case prior to the third period of trial in August 2010 because of the length of the trial and the gaps between the trial dates, the preparation was in relation to closing submissions and not in relation to the third party's case. Consistent with the decision of Murray J in Cifuentes v Fugro Spatial Solutions at [35] an additional allowance for counsel's closing submissions is, in an appropriate case, a proper exercise of judicial discretion. 50 Counsel for the plaintiff also submits that the closing submissions prepared in respect of the first defendant's case contained inaccuracies and did not properly reflect the evidence that had been led at trial. I reject this submission. The first defendant's submissions were professionally and competently prepared and presented and were lengthy and detailed. It (Page 16)
would be very unusual in any proceedings to have submissions of one party reflect the summary and argument put by another party.
51 It is not disputed that a transcript was required in this case. I accept that a special allowance should be made for the costs of the plaintiff in acquiring the transcript: Michael Aaron James (by his next friend Rhonda Dawn James) v Grant [2009] WADC 201 (S2) [44] (Mazza DCJ). 52 A special order in respect of costs to be made in respect of the expert witness architect called by the plaintiff is also sought. Mr Brand gave expert evidence in relation to the safety and the compliance of the stair from which the plaintiff fell. No expert architectural evidence was called on behalf of the first defendant however the second defendant called evidence from an architectural expert Mr Airey. Although the first defendant ultimately relied upon some of the evidence given by Mr Airey, this, in my view, does not entitle the plaintiff to benefit from an order against the first defendant in respect of the evidence of Mr Brand in this case. 53 For the reasons that I have outlined, I order that the plaintiff's costs against the first defendant be taxed without regard to the limits of the Legal Practitioners (Supreme Court) (Contentious Business) Determinations 2008 and 2010 with respect to the following items: (1) 16 Getting up for trial. (2) 19(a) Counsel fee on brief – first day of trial and preparation. (3) 19(b) the taxing officer have discretion to allow the plaintiff's counsel a 'refresher' fee for 21 June 2010. (4) The plaintiff is entitled to a certificate for the preparation of written closing submissions by counsel. 54 The plaintiff is entitled to a certificate for his costs of obtaining a transcript of the trial, such costs to be paid by the first defendant. 55 I also order that the first defendant pay the plaintiff's costs of this application to be taxed and paid if not agreed including the costs of conferral. 56 In making these orders I note that it remains a matter for the taxing officer to conclude, after considering the bill in detail, whether the amount to be allowed on taxation is less than the limit. The effect of these orders (Page 17)
is to free the taxing officer of the constraint that would otherwise be imposed upon them: Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [27].
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