1 CHANEY J: This action was commenced in 2013. It has had a long and convoluted history of interlocutory disputes. The pleadings on both sides have been amended on numerous occasions. On 23 March 2016, I delivered reasons granting leave for the plaintiff (Mineralogy) to file a 'fourth further amended statement of claim' (current statement of claim) - see Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 10]

3 Order 14 r 1 of the Rules of the Supreme Court provides that a plaintiff may, on the ground that a defendant has no defence to a claim or to a particular part of a claim except as to the amount of any damages claimed, apply to the court for judgment 'within 21 days after appearance or at any later time by leave of the court'. The writ in this action was issued on 18 March 2013, and the defendants filed their memoranda of appearance on 10 April 2013. This application for summary judgment is therefore brought just short of three years after the time limited by O 14 r 1.

4 The policy of the rule that summary judgment applications be brought within a relatively short time frame is that such applications should be brought at an early stage of the proceeding and before unnecessary expense has been incurred: Barrick Gold of Australia Ltd v FL Smidth Inc [2007] WASC 186 [10] (Templeman J). The discretion to extend the time is given for the sole purpose of enabling the court to do justice between the parties: Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257, 262; Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 480. The discretion should be exercised in favour of an applicant where strict compliance with the rules will work an injustice upon the applicant. In order to determine that question, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time: Gallo 480. There should be material before the court upon which it can exercise its discretion: Ratnam v Cumarasamy [1964] 3 All ER 933, 935 (Lord Guest). Usually it will be incumbent on an applicant for an extension of time to provide an adequate explanation for the delay.

5 The plaintiff submits that leave should be granted because:

(i) the claim pleaded in [85] [106] of the current statement of claim is a new claim;

(ii) there can be no relevant factual dispute in relation to the claim because the facts upon which the claim is based are either facts pleaded by the defendants themselves in Schedule D to their counterclaim or are extracted from public documents produced by the defendants, such as stock exchange announcements;

(iii) in the absence of a factual dispute, the question is simply one of construction of the relevant provisions of the MRSLAs and in particular cl 16.1;

(iv) if a summary judgment application is heard and determined in the plaintiff's favour, it will resolve the issue of termination of the MRSLAs without the need for a trial to consider the other four grounds of repudiation pleaded in the current statement of claim. Mineralogy submits that while '[i]t is true that issues of damages, and issues of claims for damages relating to other breaches of the MRSLAs would remain', a decision that the MRSLAs have been terminated 'would effectively focus the parties' attention on whether there could be a commercial resolution of all issues'.

6 In those circumstances, and given that the trial of all issues is some considerable time away, Mineralogy submits that 'seeking to resolve the central issue, based on an argument of construction which is in short compass, where the facts are not in dispute, is an appropriate use of the court's resources and an appropriate means of doing justice between the parties'.

7 The defendants contend that the claim contained in [85] [106] of the current statement of claim is not a new claim. That submission is correct. The examination of the history of the proceeding undertaken by the defendants is supported by the extensive evidence filed in relation to the summary judgment application. The defendants accurately summarised that relevant history as follows:

(a) The stock exchange announcements that Mineralogy relies upon for this application are plainly publicly available documents. Moreover, by at least February 2013, Mineralogy was aware of their content, making reference to their statements about MCC's performance in preaction correspondence.

(b) Further, the progress of the Project and the status of the construction of each item of plant was regularly communicated to Mineralogy from the commencement of the project through monthly reports and meetings.

(c) The second source from which Mineralogy draws its factual material for the claim the subject of this application is Schedule D to the Counterclaim. This Schedule was first filed by the defendants on 20 June 2013.

(d) Paragraph 56 of the Reply filed by Mineralogy on 23 July 2013, pleaded 'by reason of the matters alleged in Schedule D, Sino and Korean respectively have breached clause 16 of the MRSLAs'.

(e) The 'standard of work' claim (being a claim that Sino and Korean had breached clause 16 of the MRSLAs) was introduced by Mineralogy in its Claim by paragraph 85 of its Further Amended Statement of Claim delivered on 14 August 2013. It was then withdrawn in the Second Further Amended Statement of Claim filed on 10 December 2013.

(f) The 'standard of work' claim was then reintroduced in the proposed Third Further Amended Statement of Claim delivered on 15 April 2014, only to be deleted from the subsequent version of the proposed Third Further Amended Statement of Claim delivered by Mineralogy on 6 June 2014, and did not appear in subsequent versions.

(g) On 15 September 2014, Mineralogy issued a notice of default to each of Sino and Korean alleging a breach of clause 16.1. However Mineralogy withdrew that notice the following week, on 22 September 2014.

(h) On 31 August 2015 Mineralogy commenced proceeding CIV 2368 of 2015, which did not include a claim concerning 'standard of work', but on 29 September 2015 Mineralogy amended its statement of claim to introduce such a claim.

(i) CIV 2368 of 2015 was permanently stayed as an abuse of process on 27 November 2015 (including because its commencement was found to be an attempt to circumvent procedural requirements including the need to apply for leave to bring an application for summary judgment concerning the 'standard of work' claim).

(j) Mineralogy then amended its statement of claim in this proceeding to reintroduce the 'standard of work' claim and is now seeking summary judgment.

8 Apart from the assertion, which I do not accept, that the cl 16.1 claim is a 'new claim', there is no attempt by the plaintiff to explain the delay. As I apprehend Mineralogy's position in relation to an extension, it is in substance that:

(i) the case for summary judgment is so clear that it would work an injustice on Mineralogy if judgment on the cl 16.1 claim was delayed until all of the other claims and counterclaims are dealt with at trial; and

(ii) the need for a trial to consider other grounds of termination for repudiation pleaded in the current statement of claim could be avoided.

9 It is not the case, and it was not contended by the plaintiff, that a successful summary judgment application would avoid the need for a trial. Rather, a successful summary judgment application on the cl 16.1 claim might shorten the trial by reducing the number of issues to be determined. The issue of damages which would remain in relation to the cl 16.1 claim would significantly overlap at least some of the issues which would remain alive in the proceeding.

10 An affidavit of Clive Theodore Mensink relied upon by Mineralogy deposed to the need for Mineralogy to access funds to enable various companies associated with Mr Clive Palmer, of which Mineralogy is one, to meet ongoing liabilities, including legal costs. On that basis it was said that there was a need for this summary judgment application to be dealt with quickly. Given that, if successful, this application would result in an order for assessment of damages which, in all likelihood, could only proceed after the trial of other issues in the proceedings which would impact on any assessment of damages, Mineralogy's financial position in the short term would not be enhanced if judgment is given in the terms sought. The frank assertion in Mineralogy's written submissions that an interlocutory judgment would focus the parties' attention on a commercial resolution is no basis for an extension of time.

11 The extent to which a case management advantage might be achieved by a successful summary judgment application on the cl 16.1 claim is by no means clear.

12 It follows that the plaintiff bears a significant burden in establishing that the justice of the case requires an extension of time. It sought to discharge that burden by arguing that the case for summary judgment is so strong and the absence of a defence is so clear, that the justice of the case requires an extension of time.

13 In order, in any case, to order summary judgment, the court must be persuaded that the defendants have no arguable defence to that aspect of the claim in respect of which judgment is sought. As will be seen, I am not persuaded that the plaintiff has made out a case for summary judgment in relation to the cl 16.1 claim. That being the case, the principal basis of Mineralogy's application for an extension of time lacks merit.

14 It is well established that the power to order summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99.

15 Mineralogy made reference to the statement by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 130 that it may be that extensive argument is required to demonstrate that there is no real question to be tried. Chief Justice Barwick's statement must be read in the context of the observations of Gleeson CJ, Gummow, Hayne, and Crennan JJ in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [44] [46]. Their Honours said [46]:

The statements in General Steel should not be given canonical force. More recently, in Agar v Hyde, Gaudron, McHugh, Gummow and Hayne JJ observed:

'It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way'.

16 The cl 16.1 claim must be seen in the context of the purpose of the MRSLAs. By cl 3.2 of the respective MRSLAs, Mineralogy granted certain rights in the following terms:

Subject to this Agreement, Mineralogy hereby grants to Sino (Korean), in relation to the Mine Area, the following rights (collectively 'Sino's (Korean's) Mining Right'), namely the right:

(a) To exclusively use and occupy the Mine Area for 24 months from the date hereof subject to the use of any other party to which Sino (Korean) may consent, but only in accordance with the terms of this Agreement and for the purpose of exploring for and mining Magnetite Ore;

(b) to carry out or participate in, establishing a Mine within the Mine Area for mining Magnetite Ore;

(c) to carry out or participate in, Mining Operations for mining and extracting Magnetite Ore from the Mine Area;

(d) to take a quantity of all Magnetite Ore mined from the Mine Area, up to the Annual Extraction Limit in any Operating Year, and up to the Total Extraction Limit over the Term of Sino's (Korean's) Mining Right, for processing through Sino's (Korean's) Processing Facilities into Products which shall never exceed a total of 12 million tonnes a year as provided in this Agreement.

17 Sino's (Korean's) Mining Right continues in force until such time as Sino (Korean) has taken one billion tonnes of magnetite ore from the site lease area (cl 3.4). By cl 4.2, Mineralogy granted a site lease for the purpose of construction of processing facilities; processing of ore and production of iron ore concentrates, pellets and hot briquetted iron; operation, maintenance and repair of processing facilities; and exercising all rights of the holder of the Mining Leases of which the site area was subject.

18 By cl 8, Sino (Korean) covenanted to pay royalties calculated in accordance with cl 8.2 on both the amount of ore taken and the amount of 'product' produced from the ore. A significant claim in the proceedings relates to royalties of the latter category.

19 By [85] [88] of the current statement of claim, Mineralogy pleads the existence and terms of a contract between Sino Iron and Metallurgical Corporation of China (MCC), referred to as the 'general construction contract'. The general construction contract was directed to construction of the mining and processing facilities contemplated under the MRSLAs. Mineralogy is not a party to the general construction contract. It is pleaded that the general construction contract required MCC to design and construct plant according to a schedule of times for completion of various aspects of the project. It is pleaded that, for the purpose of the MRSLAs, MCC was an agent, employee or contractor of Sino and Korean and that by reason of cl 1.6 of the MRSLAs, all acts and omissions of Sino and Korean's agents, employees, contractors and invitees are deemed to be acts or omissions of Sino and/or Korean. The work carried out by MCC pursuant to the general construction contract is said to have formed part of Sino's and Korean's 'activities' as defined by the MRSLAs.

20 Paragraph 92 of the current statement of claim pleads numerous failures by MCC to meet the requirements of the general construction contract between February 2008 and April 2013. Paragraph 93 sets out various steps taken by the defendants or related companies in response to the failures by MCC to meet its requirements of a timetable under the general construction contract.

21 Paragraphs 94 and 95 plead cl 16.1 of the MRSLAs, which provides:

Standard of work

Sino (Korean) must carry out all Sino's (Korean's) Activities to the standard of care, skill and diligence that would normally be expected internationally of a professional and competent organisation implementing a project equivalent to Sino's (Korean's) Project, and in accordance with Good Industry Practices.

22 Paragraph 96 and 97 plead that, in complying with cl 16.1, Sino and Korean were required to ensure that MCC exercised the standard of care, skill and diligence as described in cl 16.1. Paragraph 98 pleads that MCC did not carry out the work under the general construction contract to the standard required by cl 16.1. Paragraphs 99 and 100 plead that each of Sino and Korean was aware from February 2008 that MCC did not carry out the work to the required standard, and [101] pleads that Sino and Korean took no steps to comply with cl 16.1.

23 Paragraph 102 pleads that Korean and Sino were required, pursuant to the MRSLAs, to proceed to develop and implement the project and in particular to establish the requisite processing facilities and proceed to exercise their respective mining rights. That obligation is said to arise under cl 6.1 of the MRSLAs which is in the following terms:

Implementation of project

Sino (Korean) will proceed to develop and implement Sino's (Korean's) Project and, in particular:

(a) Sino (Korean) will proceed to establish Sino's (Korean's) Processing Facilities within the Site Lease Area, and

(b) Sino (Korean) will proceed to exercise Sino's (Korean's) mining right within the Mine Area.

24 Mineralogy pleads that by reason of the matters pleaded in [85] [101], Sino and Korean did not proceed to develop and implement their respective projects or proceed to establish their processing facilities in accordance with the MRSLAs or the 'Project Proposals'. Presumably 'Project Proposals' is a reference to what is defined as 'proposals' in [64] of the current statement of claim, being documents which comprised exhibit TLM8 to the affidavit Tracey Miley filed in support of the application. Those documents comprise some 223 pages. They are not otherwise mentioned in [85] [106] of the current statement of claim, being those paragraphs setting out the cl 16.1 claim. Other than in a passing reference by Mineralogy to the pleadings, the Project Proposals were not mentioned in either oral or written submissions by either party. What, if any, reliance Mineralogy places on the Project Proposals in the context of the present application is unclear. Because the proposals were proffered as part of the evidence in support of the application, it might be assumed that the plaintiff places some reliance upon them. That question illustrates the difficulty of dealing in a summary way with an application concerning events and transactions taking place over a number of years and involving activities the subject of a significant number of interrelated contractual and other instruments.

25 Paragraph 104 of the current statement of claim pleads:

In the premises Sino Iron and Korean Steel evinced an intention to carry out their obligations under the MRSLAs as they saw fit and not in accordance with the MRSLAs.

26 Paragraphs 105 and 106 plead that 'in the premises' Sino and Korean respectively breached cl 16.1 and repudiated the respective MRSLA.

27 The facts pleaded in relation to the cl 16.1 claim were not in issue. The consequences of the facts were very much in issue.

28 In its written submissions, Mineralogy contended that the pleaded conduct said to be a breach of cl 16.1 entitled Mineralogy to terminate the MRSLAs on two bases. The first, which is reflected in [104] of the current statement of claim, is that, by reason of the conduct pleaded, Sino and Korean respectively evinced an intention to carry out their obligations under the MRSLAs as they saw fit, and not in accordance with the MRSLAs. The second basis is that cl 16.1 is properly regarded as an essential term of the MRSLAs, breach of which entitled Mineralogy to terminate. Counsel for Mineralogy submitted that the breach of essential term claim is embodied in [105] and [108] of the current statement of claim.

29 In Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115, Gleeson CJ, Gummow, Heydon and Crennan JJ explained that:

[i]t is the common intention of the parties, expressed in the language of their contract, understood in the context of the relationship established by that contract and ... the commercial purpose it served, that determines whether a term is 'essential' so that any breach will justify termination [48].

30 The basis upon which Mineralogy submitted that cl 16.1 should be construed as a provision the breach of which entitled Mineralogy to terminate was expressed as follows:

It is obvious why compliance with clause 16.1 by Sino and Korean was a matter of considerable importance to Mineralogy. What Mineralogy was to receive under the MRSLAs was the payment of royalties. Subject to clause 6.3, commencement of the payment of royalties depended upon the commencement of production, and the ongoing amount of the royalties depended upon the quantity of product produced. It was vital to Mineralogy obtaining the benefits for which it bargained that production commence expeditiously and that production reach the quantity nominated by Sino and Korean in the Approval Proposals (27.6 MTPA) as soon as possible.

31 In the course of oral submissions, counsel for Mineralogy accepted the force of the proposition that there might be failures to perform work with the requisite care, skill or diligence which might have no impact at all on what Mineralogy asserts was the commercial purpose of the MRSLAs and no, or no significant, effect on the timeliness of development of the project. That proposition would appear to be supported by the fact that, unlike the general construction contract to which Mineralogy was not a party, the MRSLAs imposed no specific time frames for completion of activities or operations pursuant to the MRSLAs save for cl 6.3. Clause 6.3 required production of no less than 6 million tonnes of product (as defined in the MRSLAs) no later than seven years from the date of the MRSLAs. The consequence of a failure to meet that obligation (unless prevented from doing so by an act, matter or thing outside of Sino's (Korean's) control) was an obligation by Sino (Korean) to pay a stipulated amount to Mineralogy. Clause 6.3 is, in effect, a provision in the nature of a liquidated damages provision. A claim for breach of cl 6.3 by Mineralogy is one of the other claims made in the current statement of claim.

32 Counsel for Mineralogy accepted that cl 16.1 is 'probably better characterised' as an intermediate term, a sufficiently serious breach of which gives rise to a right to termination. I therefore take the alternative bases upon which Mineralogy puts the cl 16.1 claim as being either that Sino and Korean's conduct in breach of cl 16.1 evinced an intention not to be bound by the MRSLAs, or was a breach of an intermediate term of such seriousness as to substantially deprive Mineralogy of the benefit of the MRSLAs.

33 As Wilson J observed in Shevill v Builders Licensing Board [1982] HCA 47; (1982) 149 CLR 620, repudiation of a contract is a serious matter that is not to be lightly found or inferred, but needs to be determined having regard to all the circumstances of the case to see whether the conduct amounts to a renunciation or an absolute refusal to perform the contract (633). The defendants point to various matters referred to in the affidavit of David John Mason sworn in opposition to the application for summary judgment. Mr Mason said that the project the subject of the MRSLAs is the largest magnetite mine in Australia which, during construction, employed thousands of people. During 2009 through to 2013, the period during which the conduct said to be a breach of the MRSLAs, the capital expenditure on the project was in excess of A$8 billion. More than A$10 million have been paid in royalty payments to Mineralogy to date, and over A$20 million have been paid to the Department of Mines and Petroleum for state government royalties and other government charges.

34 Mr Mason identified various public statements made by the third defendant concerning its commitment to the project the subject of the MRSLAs.

35 As already noted, the facts relied upon by Mineralogy as amounting to a failure to carry out activities to the requisite standard of care, skill and diligence are said to have taken place over a number of years. In oral submissions, counsel for Mineralogy suggested that by August 2008, Sino and Korean had evinced an intention to develop the project in the manner and in the time which they saw fit, rather than in accordance with the MRSLAs. He contends that that conclusion can be objectively reached on the basis of the matters pleaded.

36 Whether or not, objectively, the events upon which Mineralogy rely can be said to evince an intention not to perform the obligations under the MRSLAs and to deprive Mineralogy of the benefit of the contract requires an examination of all of the circumstances. That includes the circumstances which the defendants may contend are relevant. It is not a question which is susceptible to summary disposal. It cannot be said that there is no real question to be tried in relation to that issue.

37 Similarly, any question of whether the conduct, either taken separately or in combination, constituted a breach of cl 16.1 of such seriousness as to entitle Mineralogy to terminate the MRSLAs is one which should be left to trial. Because the plaintiff itself, in the course of argument, changed the alternative basis upon which it sought judgment, from breach of an essential term, to a serious breach of an intermediate term, the latter was not fully argued. To the extent that the plaintiff's pleaded case is as to a breach of an essential term, there is clearly a serious question to be tried. To the extent that the case is as to a serious breach of an intermediate term, all the facts and circumstances surrounding the contract require examination at trial, rather than in a summary way.

38 The defendants raised a number of other arguments as to why summary judgment should be refused. One of those was that Mineralogy had failed to plead, or to bring any evidence, of the standard 'that would normally be expected internationally of a professional and competent organisation implementing a project equivalent to Sino's (Korean's) Project, and in accordance with Good Industry Practices', that being the standard imposed by cl 16.1. The defendants submit that without further pleading of specifically what, as a matter of fact, cl 16.1 required the defendants to do and the specific respects in which the defendants failed to meet the standard, it is not possible to understand the case which the plaintiff seeks to make. It is not appropriate in the context of this application to determine whether or not there is some defect in the pleading in the respect contended for by the defendants or whether, in order to determine the question of a repudiatory breach of cl 16.1, further evidence of the requisite standard is required. Those are matters for the plaintiff to consider. This issue between the parties illustrates, however, the unsuitability of determination of the cl 16.1 claim in a summary manner. The several thousand pages of affidavit material filed by the parties can only fairly and properly be considered in the context of a trial.

39 It is not necessary to deal with the various other defences which are pleaded by the defendants, or were the subject of the defendants' submissions. It cannot be said that there is no real question to be tried in relation to the cl 16.1 claim or that there is a higher degree of certainty that the claim will be determined in the manner contended for by Mineralogy.

40 In the circumstances, leave to bring the application for summary judgment out of time should be refused, and the application dismissed.

CITATION : MINERALOGY PTY LTD -v- SINO IRON PTY LTD [No 11] [2016] WASC 235 (S)

Costs - Special costs order - Questions to be addressed - Whether order should be refused despite discretion being enlivened - Whether new limit should be fixed

1 CHANEY J: On 4 August 2016, I delivered reasons for decision dismissing an application by the plaintiff for summary judgment. On 6 October 2016, the defendants made an application for special costs orders in the following terms:

1. The Plaintiff pay the Defendants' costs of and incidental to the Plaintiff's application for leave to apply for summary judgment, and for summary judgment, filed on 27 March 2016 (Summary Judgment Application), to be taxed on the basis that the limits on costs allowable under the Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA) (2014 Scale) and the Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA) (2016 Scale) be varied pursuant to the following orders.
2. The 2014 Scale be varied pursuant to section 280(2) of the Legal Profession Act 2008 (WA) in respect of Item 10(a) - Proceedings in Chambers other than proceedings to which item 11 applies, by:

(a) removing the limit on the hours allowed for preparation;

(b) allowing costs to be taxed for:

(i) clerks/paralegals;

(ii) junior practitioners;

(iii) senior practitioners;

(iv) two junior counsel; and

(v) senior counsel,

1. The 2016 Scale be varied pursuant to s 280(2) of the Legal Profession Act 2008 (WA) in respect of item 10(b) - Attending on a reserved judgment in Chambers (including preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders), by:

(a) removing the limits on the hours allowed for preparation; and

(b) allowing costs to be taxed for:

(i) clerks/paralegals;

(ii) restricted practitioners

(iii) junior practitioners;

(iv) two junior counsel; and

(v) senior counsel,

2 The application was supported by an affidavit of Rebecca O'Brien sworn on 6 October 2016 and reliance was also placed on an affidavit of David John Mason affirmed on 29 April 2016 which had been filed for the purposes of the summary judgment application.

3 Directions were subsequently made for the plaintiff to file any affidavits or submissions in response and for the application to be determined on the papers.

4 In accordance with those directions, the plaintiff filed submissions opposing the making of a special costs order. The plaintiff accepted that the nature of the summary judgment application was such as to enliven the court's jurisdiction under s 280 of the Legal Profession Act 2008 (WA), but submitted that the court should decline to exercise that discretion or alternatively should determine that any variation to the scales should be limited to an increase in the cap on the number of total hours, being 150 hours in relation to the 2014 Scale, and 5 hours in relation to the 2016 Scale.

5 Ms O'Brien deposed that on 26 March 2016, the plaintiff served the summary judgment application. Shortly afterwards, the plaintiff served two affidavits, being an affidavit of Clive Theodore Mensink affirmed 29 March 2016, which was seven pages in length, and an affidavit of Tracey Lyn Miley affirmed 29 March 2016, which was 752 pages in length including annexures. The following day the plaintiff delivered an outline of submissions regarding its application for leave to make a summary judgment application. On 31 March 2016, the parties conferred in relation to the issues in the summary judgment application prior to attending a directions hearing before me on that day. The directions hearing lasted a little over half an hour, although matters other than the summary judgment application were also dealt with at the time.

6 On 29 April 2016, the defendants served four affidavits in opposition to summary judgment being the affidavit of Mr Mason (669 pages in length), an affidavit of Malcolm James Northey affirmed 29 April 2016 (636 pages), an affidavit of Ian Peter Scott O'Donahoo sworn 28 April 2016 (475 pages including annexures), and a further affidavit of Mr O'Donahoo sworn 29 April 2016 (43 pages).

7 On 16 May 2016, the plaintiff served its further outline of submissions in support of its summary judgment application which was 18 pages in length. On 18 May 2016, the defendants served their outline of submissions which was 22 pages in length. The plaintiff then served submissions in reply on 20 May 2016, being 11 pages in length.

8 On 23 May 2016, the Attorney General of Western Australia sought and was granted leave to deliver a short outline of written submissions outlining the State's position with respect to the summary judgment application.

9 The application was heard on 26 May 2016 and I reserved judgment. Judgment was delivered on 5 August 2016.

10 Ms O'Brien said that, in preparing for the hearing on the summary judgment application, lawyers at Allens, the defendants' solicitors, spent 867 hours undertaking various specified tasks. In addition, counsel engaged on behalf of the defendants spent approximately 271 hours undertaking various tasks related to the summary judgment application. Thus, in total, the time spent by clerks, junior practitioners, senior practitioners, two junior counsel and senior counsel totalled 1,138 hours in relation to work covered by the 2014 Scale.

11 The work which fell within the 2016 Scale concerned the taking of judgment, and Ms O'Brien said that a total of 23 hours was involved in that work being 3.5 hours by junior practitioners, 12 hours by senior practitioners, 7 hours by the two junior counsel, and one hour by senior counsel.

12 The 2014 Scale item for proceedings in chambers is item 10. Item 10(a) allows for two days preparation and one day of hearing by counsel. That item applies in respect of work done on the application presently under consideration up until the completion of the hearing.

13 The 2016 Scale came into force prior to the reserved decision being delivered. Item 10(b) of the 2016 scale permits an hourly rate for attending on a reserved judgment, including preparation, consideration of reasons for decision and all necessary work in attendances to obtain final orders, of $484 per hour being the rate applicable to a senior practitioner. No maximum number of hours is stipulated. The defendants submit that the item 'only allows for work done by one Senior Practitioner'. I accept that the item does not allow for time spent by senior counsel, but the hourly rate provided exceeds that of junior counsel or any of the categories of practitioners junior to a senior practitioner. I do not accept that the item is necessarily confined to a single senior practitioner. Work under the item might be performed by more than one practitioner.

14 Section 280(1) of the Legal Profession Act provides that legal costs are regulated by an applicable costs determination, being in this case the 2014 Scale and the 2016 Scale as defined in the orders sought in the application. Section 280(2) permits a court, where it 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, to do various things being:

(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 purpose of enabling costs above those in the determination to be ordered or assessed.

15 The requirement of inadequacy will be demonstrated where an applicant shows that there is a fairly arguable case that the bill to be presented to the taxing officer may tax an amount which is greater than the limit that will be imposed by the relevant costs determination. That is the first question to be addressed. The second question is whether the inadequacy arises because of the unusual difficulty, complexity or importance of the matter.[1]

16 There can be no doubt that those tests are satisfied in this case. The plaintiff accepted that the nature of the summary judgment application was such as to enliven the court's discretion under s 280.[2] In light of that concession, it is not necessary to say more than that Ms O'Brien's affidavit demonstrates that the allowance provided for in item 10(a) in each of the 2014 Scale is inadequate in the sense required by s 280, and that the complexity or importance of the matter is evident from Mr Mason's affidavit of 29 April 2016 which deals with the nature and extent of the mining operations the subject of the proceedings, and from my discussion of the background to the litigation and the issues arising in it in the primary decision, and in my earlier reasons in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 10].[3]

17 As to the 2016 Scale, it appears that, if reasonably spent, the time for all the practitioners involved other than senior counsel is potentially recoverable under item 10(b). The only question therefore is whether, having regard to the complexity or importance of the matter, the involvement of senior counsel was warranted. In the context of this action, it is clear that senior counsel who was involved in the ongoing conduct of what was undoubtedly a complex and important action concerning the future of a mining project in which billions of dollars had been spent, would necessarily have been required to review and consider the decision on the application. It is therefore fairly arguable that item 10(b) of the 2016 Scale is inadequate in the relevant sense.

18 I am satisfied, therefore, that the discretion to make an order under s 280 of the Legal Profession Act is enlivened. The question which must then be dealt with is whether I should decline to exercise that discretion or alternatively, in exercising it, whether I should place a limit on the number of hours in total that could be claimed. A further question arises as to whether the orders sought in pars 2(b) and 3(b) of the chamber summons should be made.

19 The plaintiff submits that it is unreasonable that the defendants be allowed to potentially claim for 1,138 hours spent preparing for and appearing at the hearing. The plaintiff observes that, if an assumption of 10 hours work per day is made, the total amount of time said to have been spent is almost four months of work for a single person working seven days per week. It submits that there is no satisfactory explanation as to why such an enormous amount of time was spent and 'it follows that the court should not exercise its discretion in the defendants' favour'.

20 I agree that the amount of time spent appears excessive, at least in the sense of what might reasonably be thought to be properly recoverable on a party/party basis. It is not clear from Ms O'Brien's affidavit how many clerks and paralegals, junior practitioners and senior practitioners were engaged on the application in addition to the three counsel used. Even if it were only one clerk or paralegal, one junior practitioner and one senior practitioner working with the three counsel, there is undoubtedly much duplication of time whilst those persons conferred with each other and reviewed work done by others. While it is a matter for a client as to whether it is prepared to bear the costs of a large team of lawyers working on its matter, that does not mean that those costs should be recoverable from the other party to the litigation.

21 The making of a special order which fixes higher limits than those imposed by a determination, or removes limits on costs imposed by a determination, does no more than that. It remains for a taxing officer to consider the reasonable necessity for the work and to make a judgment about remuneration reasonably required.[4] It is no basis to decline the exercise of discretion under s 280 that the party in whose favour the order is made may have incurred, and may be likely to claim for, costs, even substantial amounts of costs, that are not properly recoverable. The question is whether it appears that it is likely that the scale item is inadequate to compensate the successful party for the costs which are reasonably recoverable from the unsuccessful party. It is then a matter for the taxing officer to assess the proper amount of those costs.

22 Section 280(2) permits the court to fix a higher limit of costs than those fixed in the relevant determination. The plaintiff suggests that should be done in this case by fixing a cap on the number of total hours to 150 hours under the 2014 Scale, and five hours under the 2016 Scale. The plaintiff makes several submissions as to why that might be done in this case.

23 It submits that the Legal Profession Act proceeds on the basis that costs are only to be left to the taxing officer up to a limit, and that 'it is for the person seeking to displace that limit to put forward a proper basis upon which that should occur'. What is required is for the person seeking to displace the limit to establish that the limit provided in the determination appears to be inadequate. That has been done. If the party liable for costs is seeking to have the court fix a new limit, some cogent basis for doing so must be put forward. That has not occurred in this case. There is nothing in the plaintiff's submissions which seeks to justify the selection of 150 hours and five hours respectively in relation to each item as an appropriate upper limit, or likely to represent an adequate upper limit in the circumstances of this case. A number of hours appear simply to have been chosen at random. There is no sound basis upon which the court could fix upon the hours suggested by the plaintiff, or indeed on the basis of the evidence before the court, on any other fixed limit.

24 The second contention by the plaintiff is that it would be unjust if the discretion under s 280 were to be exercised for the benefit of the defendants because it would deprive the plaintiff of funds that could otherwise be used to fund its proceedings against the defendants. That is an irrelevant consideration, even if there were evidence to support the submission which there is not.

25 The plaintiff's third contention is that it would be wrong to characterise the entirety spent by the defendants' lawyers as being wasted in circumstances in which issues may overlap with the issues in the substantive proceedings. That is a matter for the taxing officer.

26 The fourth contention is that the amounts in Ms O'Brien's affidavit are not said to be the amount of time that it is proposed to be charged to the defendants, but rather it is expressed as estimates of the time spent. It is submitted that it would 'be unjust to expose the plaintiff to a potentially enormous costs order in the absence of any evidence that those costs are proposed to be charged to the defendants'. The difficulty with that submission is that the making of an order lifting the limits under s 280 of the Legal Profession Act does not have the effect of exposing the plaintiff to potentially enormous costs. It does no more than remove a limit which is inadequate in the circumstances of the case.

27 There is no basis upon which the new limits as suggested by the plaintiff can properly be imposed. That is not to say that the court is in any sense suggesting that the defendants should recover costs reflecting the number of hours said to have been spent by the defendants' legal representatives on the application. The lifting of the limit does no more than reflect the view that the relevant scale items do not appear to be adequate having regard to the complexity and importance of the matter.

28 As well as lifting the limits on hours allowed for preparation, the defendants seek by pars 2(b) and 3(b) of the orders sought to have the court determine that the costs claimed in respect of the five different categories of practitioner be allowed at the maximum rates in the relevant scales. There is no basis to make those orders. The rates allowable in relation to a particular task by a particular practitioner are matters for the taxing officer. There will undoubtedly be some tasks which do not warrant charges at the maximum rates. In any event, there is no evidence as to the actual rates charged for the different categories of practitioners, or whether they fall inside or outside of the scale allowances. I would therefore not make the orders sought in pars 2(b) and 3(b) of the summons.

29 As I have observed above, the only basis upon which item 10(b) of the 2016 Scale should be lifted is to make provision for time spent by senior counsel in relation to the work encompassed by that item.

(1) the plaintiff pay the defendants' costs of and incidental to the plaintiff's application for leave to apply for summary judgment and for summary judgment filed on 27 March 2016 to be taxed on the basis that the limits on costs allowable under the Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA) and the Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA) be varied as follows:

(i) the 2014 Scale be varied pursuant to s 280(2) of the Legal Profession Act 2008 (WA) in respect of item 10(a) - proceedings in chambers other than proceedings to which item 11 applies by removing the limit on the hours allowed for preparation;

(ii) the 2016 Scale be varied pursuant to s 280 of the Legal Profession Act 2008 (WA) in respect of item 10(b) - attending on a reserved judgment in chambers (including preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders) by allowing for time reasonably spent by senior counsel on work covered by that item;

(2) the plaintiff pay the defendants' costs of and incidental to this application;

(3) the costs referred to in order (1) are to be taxed and are payable forthwith.

[1] Heartlink Ltd v Jones As liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [16] (Martin CJ).

[3] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 10] [2016] WASC 90.

[4] Cifuentes v Fugro Spatial Solutions Pty Ltd [2009] WASC 316 (S) [22]; O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) [20].