Absolute Analogue Inc v Sundance Resources Ltd

Absolute Analogue Inc v Sundance Resources Ltd - [2022] WASC 384 - WASC 2023 case summary — Zoe

[21]

The final submission made on behalf of the City in the written submissions filed in support of the City's application was in the following terms:
1. Even if it happens that [Viva Energy] for some reason does not have relevant documents or copies in its possession, given that there are frequent references in [Viva Energy's] correspondence to the appointment of consultants and work undertaken by consultants, the consultants referred to must have maintained files which would contain correspondence and copies of correspondence relevant to the action. As consultants to [Viva Energy], [Viva Energy] should be in a position to require the consultants to provide them with documents and copy documents from their consultancy files.
The court has power to direct a party to take steps to obtain access to, and discover, documents which are in the possession, power or control of a third party, where there is a real likelihood that the party to the proceeding will be given access to the documents upon request.[113] Such an order is sometimes referred to as a 'Sabre order',[114] and the court has the power to make such orders pursuant to the RSC O 4A r 2(1) and r 5(2)(b) and O 1 r 4B(1)(a) and r 4B(2).
Viva Energy's obligation to give discovery did not extend to taking the steps contemplated in par 33. I understood counsel for the City to contemplate in par 33 is the making of a Sabre order, but the City did not apply for the same in its summons.
In the written submissions filed on behalf of Viva Energy in opposition to the application, counsel for Viva Energy responded to par 33 of the City's submissions, opposing the making of a Sabre order.[115] The following matters were raised by counsel.
First, while the City suggests Viva Energy 'copy documents from ... consultancy files', there is nothing in the RSC O 26 which requires a party to create documents for the purposes of complying with an order. Moreover, to be ordered to create a document would be one step further removed from the nature of a Sabre order.
Secondly, any copies of documents made would be subject to legal professional privilege, in the form of litigation privilege,[116] and such privilege is unimpeachable and stands even where, for example, the original documents may cease to exist.[117] Therefore, there is no utility in the making of orders as contemplated in par 33 of the City's submissions as they will not facilitate the production of the documents and will unnecessarily add to Viva Energy's costs of litigation.
Thirdly, the effect of the City's submission is to support something quite akin to a Sabre order, and no such orders have been expressly requested in the City's application. The request for a Sabre order should be refused in light of the following considerations:[118]

[29]

Counsel on behalf of Viva Energy further submitted that the court may draw an inference that additional documents exist which ought to have been discovered by reason of an insufficiency that appears from one or more of the following: the pleadings; the affidavits of discovery of Ms Smith, or from the documents themselves which were formally discovered or otherwise disclosed by the City as relevant; an admission by the City; and by the City's misapprehension of its own case.
As to the pleadings, counsel submitted that the City had failed to discover documents relevant to its claim for damages or Viva Energy's pleas relating to set off, as was evident from the City's various lists of documents. Viva Energy says that the documents described in categories 11 to 15 are self‑evidently within the City's sole possession, custody or power and ought to have been disclosed.[126]
As to the discovery provided and its form, counsel submitted that it was clear that not all of the documents within the City's possession, custody or power had been formally discovered, and suggested that the informal lists provided sufficient grounds for the rebuttal of the presumption that the City had given full discovery of the categories of documents sought.[127] I also note that Ms Vasic deposed at par 22 of her affidavit of 31 March 2021 that from her review of the informal lists of documents prepared on behalf of the City, it appeared that many of the documents set out in the informal lists did not appear in the City's subsequent affidavits.
As to the admissions made by the City, counsel among other things referred to the informal lists of documents and submitted that by provision of the same, the City had by inference made an admission that it had failed to provide complete discovery in the proceeding in accordance with the RSC O 26 and the orders made on 11 December 2019.[128]
Finally, counsel noted that a misconception of the case (as a whole) by a plaintiff may assist in the drawing of inferences that other relevant documents exist which ought to have been discovered,[129] and drew the court's attention to the following:

[36]

Having regard to this correspondence, Ms Vasic deposed to having formed the belief that on or about 14 November 1995, a meeting took place between the City and Dryka & Partners in respect of the proposed development.[137] Ms Vasic also deposed that the City has discovered minutes of other planning meetings,[138] from which Ms Vasic inferred that minutes were generally taken of such meetings.[139]
The correspondence from Dryka & Partners, the discovery of minutes of other planning meetings by the City, and the obligation of the person presiding at a meeting of a council or committee to cause minutes to be kept of the meeting's proceedings, together provide the court with reasonable grounds for being fairly certain that the documents sought are (or were) in existence. An inference may be drawn in these circumstances that additional documents exist which ought to have been discovered in respect of the insufficiency which appears from the documents themselves which are referred to in Ms Smith's first affidavit of discovery.
I am also satisfied that the documents sought are relevant and ought to have been disclosed. Category one relates to documents referred to in the City's early discovery and relevance is presumed to be conceded by the City.[140] Further, for the purposes of this application, I accept that the City's internal deliberations, and discussions conducted internally at meetings such as its planning meetings, are relevant to the circumstances in which the City issued the development approval by letter dated 29 November 1995, including the imposition of condition 34, because they form the relevant surrounding circumstances in which the condition came into existence.[141]
In considering the first category, I had regard to the submissions made on behalf of the City and particularly to the matters deposed to by Mr McLeod in his affidavit sworn on 19 May 2021 at par 18. I proceed on the basis that the assurance proffered by Mr McLeod in his submissions that the City has no documents to produce, and Mr McLeod's hearsay evidence to that effect,[142] is not the end of the matter. Nor am I content to draw by inference the conclusions promoted by Mr McLeod at par 18(a) of his affidavit, following Mr McLeod's examination of the documents discovered by the City.
Having regard to the matters described at [143] above, I am satisfied that the circumstances favour the exercise of discretion in favour of the application. In this regard, I note that category one is very narrow in scope and it is unlikely that the number of documents within its ambit will be so extensive so as to be oppressive.

[39]

I had regard to the submissions and affidavit evidence filed in support of and in opposition to the provision of further and better discovery of documents which fall within the ambit of category two. Having regard to the same, I am fairly certain that documents exist that fall within the scope of the second category.
I gave weight to the evidence of Ms Vasic, who deposed that she is fairly certain that the City has, and had at the relevant time, written policies regarding the technical requirements for the construction of local roads based on the following.
First, the City's development approvals dated 29 November 1995, 31 January 1996 and 4 December 1996 refer to the requirements of the City's director of technical services and the requirements imposed by the City's engineering department. Ms Vasic deposed that given the City's statutory obligation to maintain local roads, it can be inferred that it has standard requirements (in the form of written policies or procedures) for the construction of such roads, including details such as the width of lanes, the thickness of the road base, the level of compaction required, the thickness and type of road surface required, any drainage considerations and the specifications of any curbing, including dimensions and permissible materials.[144]
Secondly, Ms Vasic had reviewed the City's website, which contained links to documents such as town planning schemes, requirements and guidelines with respect to developments, and even policies with respect to street verges and crossovers. She noted that the City's current crossover application booklet set out the types of specifications which Ms Vasic inferred to exist with respect to local roads.[145] Ms Vasic further noted that on page 13 of that booklet, it is stated that 'all new crossovers are to be constructed in accordance with the City of Bayswater Specifications for Crossovers'.[146]
Having regard to this evidence, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence.
I am also satisfied that the documents sought are relevant and ought to have been disclosed when regard is had to the pleadings, particularly:

[57]

As to existence, Ms Vasic relied upon the same documents as relied upon for the purposes of category three (as summarised at [172] to [174] above) to inform her belief that the category&#160[174]ur documents existed.174 As to relevance, Ms Vasic had regard to those matters referenced for the purpose of category three (described at [177] above) to inform her belief that the categor[175]four documents were relevant.175
With respect to category four, the City raised three matters in opposition to providing discovery.
First, the City noted that the development approval of 4 December 1996 was only relevant to the proposal originally approved in November 1995. It was the City's position that the amendments are not relevant to any issue in this action and further discovery of documents concerning the development approval of 4 December 1996 is not appropriate.[176]
Secondly, the City does not have any further documents to discover in this category. In this regard, Mr McLeod deposed to having been informed by Ms Smith and verily believing that the City had conducted diligent searches and enquiries, including with employees and former employees.[177]
Thirdly, documents related to the development approval dated 4 December 1996 that have not been discovered, if they exist, would only be documents in the possession or control of Viva Energy and/or its various consultants, and not available or known to the City.[178]
For the same reasons as expressed in relation to category three, having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am fairly certain that documents exist that fall within the scope of the fourth category.
Having regard to the evidence before me and the submissions made, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence. Further, I am satisfied that the documents sought are relevant and ought to have been disclosed.
As to the relevance of the documents, I am satisfied that the documents within category four are relevant to the matters in issue because:[179]

[65]

Ms Vasic further deposed to the relevance of this category of documents on three bases.[188] First, any agreement by the Owner to cede the land required for the construction of the slip lane is relevant to the plea at par 7(a) of the defence to the amended statement of claim, and the negotiation leading up to the entry into any agreement between the City and the Owner is likewise relevant to that plea. Secondly, the land shown at annexure A to the deed between the City and the Current Owner dated 21 September 2020 appeared, in Ms Vasic's belief, to be a different and greater area than that shown in annexure B to the 1997 Deed, which is relevant to the plea at par 9(a)(iv) to the defence to the amended statement of claim. Thirdly, the City had previously discovered correspondence between it and the Current Owner in relation to the Relevant Requirements (as defined in sch A of Viva Energy's application), thereby accepting the relevance of the same to this proceeding.[189]
Having considered the affidavit evidence and the submissions made, I accept that the steps taken after completion of the development of the Subject Land to meet the Relevant Requirements[190] are relevant to the matters in issue, which include steps taken to secure the ceding of land as contemplated by condition 34, and any variation of the obligation on the Owner prescribed by condition 34. The category five documents are relevant in light of the matters in issue as pleaded, and I am satisfied that they may either advance or damage the parties' respective cases.
Mr McLeod's assertion in his affidavit that it was clear that the securing of the ceding of the slip lane land to enable the construction of the slip lane more appropriately fell on Viva Energy than the City,[191] was not an opinion that I could properly weigh in the balance. The proper construction of the 1997 Deed is a matter in issue in this proceeding. Discovery ought not be curtailed by reference to one party's preferred construction in preference to another.
The City pleads that Recital B to the 1997 Deed stated, among other things, that Viva Energy would construct the slip lane in accordance with plans and specifications approved by the City, a copy of which was annexure B to the 1997 Deed.[192] Whether the arrangements proposed or made with the Owner or any subsequent owner were consistent with plans and specifications approved by the City (reflected in annexure B to the 1997 Deed), is a matter relevant to the defence of Viva Energy.
Having regard to the ambit of category five, I consider that it is clearly defined, and the scope appropriately focussed. In determining it appropriate to exercise the discretionary power to grant Viva Energy's application in relation to category five, I note that, among other things, I had regard to the principles in O 1 r 4A and r 4B; whether discovery is necessary for fairly disposing of the proceeding; and the notion of proportionality.

[67]

Categories six and seven concern the ceding of the Subject Land.
To the extent not already discovered, Viva Energy sought discovery of all communications between the City and the Owner and any subsequent owner of the Subject Land regarding the obligations set out in condition of the development approval dated 31 January 1996 and the 1997 Deed including, specifically, ceding the land required to construct the slip lane: category six.
Viva Energy also seeks to the extent not already discovered, all documents after completion of the development of the Subject Land, including communications and records of all discussions between the City, the Owner and any subsequent owner of the Subject Land and/or Viva Energy regarding the ceding of a portion of the Subject Land for the purposes of the construction of the slip lane: category seven.
As to the existence of documents that fall within the ambit of categories six and seven, Viva Energy referred to the terms of the deed between the City and the Current Owner dated 21 September 2020, which Ms Vasic deposed grounded an inference that there was significant correspondence and negotiations between those parties.[193] Viva Energy submitted that the terms of the deed gave rise to an inference which displaced the presumption that the City had complied with its discovery obligation.
Ms Vasic also deposed that the likely existence of further documents could be inferred by the letter from McLeods Lawyers to HWL Ebsworth dated 18 December 2020, in which the City stated that 'other documents relating to communications and dealings between the City and the owner are considered to be irrelevant to the action'.[194] (That is, the City did not deny such documents existed, but opposed discovery on the basis of relevance).
Having regard to the evidence before me and the submissions made, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought by categories six and seven are (or were) in existence.
As to relevance, in addition to the matters which grounded its submissions in relation to category five, Viva Energy submitted that categories six and seven relate specifically to communications between the City and the various owners of the Subject Land, from time to time, in relation to ceding the land required for construction of the slip lane.[195] Viva Energy submitted that, notwithstanding that the relevant portion of the Subject Land has now been ceded, the City's efforts since the 1997 Deed was executed to arrange the ceding remain relevant.[196] I understood counsel for Viva Energy to submit that the effort made by the City to have part of the Subject Land ceded is a matter relevant to the ongoing existence of any obligation on Viva Energy to construct the slip lane.
The matters raised in opposition to category five also grounded the City's opposition to providing further and better discovery of documents falling within the ambit of categories six and seven.[197]
Counsel for the City noted that the ceding was not relevant to the obligations the City seeks to enforce against Viva Energy because the obligation to cede was a separate obligation, which the City could enforce against the Owner.[198] Moreover, counsel for the City submitted that as the ceding had been effected, the documents relating to the same were irrelevant.[199]
I am satisfied that documents falling within the ambit of categories six and seven are relevant and ought to have been disclosed. The proper construction of the development approval, including condition 34, and the 1997 Deed, remain in issue between the parties. The position adopted by the City in relation to discovery of documents within the ambit of categories six and seven was informed by the City's view as to the proper construction of the development approval, including condition 34, and the 1997 Deed. However, discovery ought not be curtailed by reference to one party's preferred construction in preference to another.
The communications between the City and the various owners of the Subject Land regarding the obligations set out in condition 34 and the 1997 Deed (particularly those which concern the ceding of the land required to construct the slip lane); and the documents which concern steps taken after development to secure the ceding of the land as contemplated by condition 34, are relevant in light of the matters in issue as pleaded. I am persuaded by Viva Energy's submissions as to relevance and I am satisfied that they may either advance or damage the parties' respective cases.
I am also satisfied that, having regard to the matters described at [143] above, to the principles in the RSC O 1, r 4A and r 4B, and proportionality, the circumstances favour the exercise of discretion in favour of the application. Categories six and seven are narrow in scope, making it unlikely that the number of documents within their ambit will be so extensive so as to be oppressive. Further, I consider discovery of documents falling within the scope of these categories to be necessary for fairly disposing of this proceeding.

[71]

With respect to the existence of the documents sought by category eight, Ms Vasic deposed that there are now additional utilities and service pits located in the area of land on which the slip lane was to be located.[200] She noted that it is a legislative requirement that the City be given notice of a carrier's (for example, Telstra's) intention to install facilities on its land (and that it can object to Telstra doing so).[201] On that basis, Ms Vasic deposed to having formed the belief that the City must have had such notices, and it is likely that it also had other correspondence relating to the proposed addition of infrastructure within the communication pits.[202]
Ms Vasic further deposed to having reviewed the City's website and noted that it has a published Telecommunications Infrastructure Policy, from which she inferred that it is unlikely that conferral with telecommunications providers did not occur.[203]
As to existence, Mr McLeod deposed that the City has never been the owner of the slip lane land, and as such, Telstra would not have been obliged to give notice to the City.[204] Mr McLeod also deposed to being instructed by Mr Pearson that the City has no knowledge of any additional services being placed in the area, or whether any actually have been installed. Further, the City submitted that its Telecommunications Infrastructure Policy is irrelevant to the matters in issue, and Mr McLeod noted that the City is not concerned within this action with any telecommunications infrastructure installation or proposal on its land.[205] Finally, Mr McLeod deposed that the City had, in any event, discovered all documents of its communications with Telstra in relation to the communication pits and their relocation.[206]
Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence. In reaching this conclusion, two matters bore in the balance. First, the fact that the City does not own the Subject Land and that Telstra would not have been obliged to issue notices to, or seek consent from, the City is not the end of the matter. Viva Energy is seeking discovery of documents with respect to the installation of the communication pits, which may or may not involve Telstra. Secondly, the City disclosed by its solicitors to HWL Ebsworth an additional plan prepared in March 2019,[207] which included references to utilities and service pits which had been installed after the execution of the 1997 Deed. The City's possession of this map provides the court with a reasonable ground for being fairly certain that the City engaged in communications regarding the same.
As to relevance, Viva Energy submitted that the relevance of documents within this category appeared to be conceded by the City in its letter dated 18 December 2020, but said, in any event, the documents are relevant to whether the City, by reason of Viva Energy's alleged breach, will be obliged to have the slip lane works carried out at its own expense, and will thereby suffer damage.[208]
As to relevance, I consider the application as it concerned category eight cognisant that it is common ground that the communication pits have never been moved.[209] In the end, I am satisfied that documents falling within the ambit of category eight are relevant. The terms upon which the utilities and services have been installed in the communication pits, and any requirements that attach to their relocation, are matters relevant to the obligation on Viva Energy to take all reasonable steps to procure the owner of the communication pits to move or relocate them, and to the damage that might be suffered by the City in undertaking works at its own expense (as pleaded at par 15 of the amended statement of claim).
Finally, having regard to the ambit of category eight, I consider that it is clearly defined, and the scope appropriately focussed. In determining it appropriate to exercise the discretionary power to grant Viva Energy's application in relation to category eight, I note that, among other things, I had regard to the principles in the RSC O 1 r 4A and r 4B; and I consider the forensic benefit to be derived by the granting of the application as it concerns category eight to be proportionate to the cost and delay which will flow from the City meeting this order.

[77]

Viva Energy sought discovery of all documents, plans and drawings identifying the work which would now be required to construct the slip lane in accordance with development approval dated 31 January 1996 and the drawings annexed to the 1997 Deed or otherwise.
As to the existence of such documents, the same matters as referenced on behalf of Viva Energy in relation to category two (summarised at [154] to [156] above) informed Ms Vasic's belief as to the existence of documents within the am[219] of category 10.219
In addition to those matters, Ms Vasic deposed that she inferred that documents within the category must exist, otherwise there would be no standard to which Viva Energy would be required to construct the slip lane, and therefore at the very least there must be a document which adopts a published policy or standard for the construction of roads managed by the City.[220]
Further, Ms Vasic deposed that the City's website advertises that it is undertaking minor road construction works, including the Towns Development Program, and therefore she is of the opinion that it is highly unlikely that such a program would proceed without a written policy setting out the work required.[221]
Finally, Ms Vasic noted that of particular significance to this category was the existence of the City's Morley Activity Centre Plan dated 31 July 2018, which the City has not discovered but which is available on its website.[222]
I had regard to the submissions and affidavit evidence filed in support of and in opposition to the provision of further and better discovery of the documents which fall within the ambit of category 10. Having regard to the same, I am fairly certain that documents exist that fall within the scope of the tenth category.
As to relevance, Ms Vasic deposed that the documents within this category are relevant to the matters pleaded at par 15 of the amended statement of claim; pars 15 and 16 of the defence to the amended statement of claim; par 13 of the City's reply; and Viva Energy's response to the City's request for further and better particulars of defence filed 21 March 2019 (response 2).[223]
At the hearing of the application, counsel for Viva Energy summarised the relevance of the documents, submitting that they go to the issue of what work is now required to be performed, for example the nature of the road construction.[224]
As to the existence and relevance of documents within this category, Mr McLeod deposed that he had been instructed by Mr Pearson and verily believed that:[225]

[79]

With respect to the Morley Activity Centre Plan, Mr McLeod further deposed to having been instructed by Ms Smith and Mr Pearson and verily believing that this plan is broadly textured and ordinarily would not require precise detail of the design of a proposed slip lane addition to a small portion of Walter Road, especially when the construction date and the final detailed design is uncertain, as in this case at present. Any reference to or depiction of the slip lane in the Morley Activity Centre Plan is conceptual only, and not intended as an accurate depiction of the slip lane which in due course will be constructed.[227] Further, the Morley Activity Centre Plan is indicative of intentions and possibilities in the case of future works, contemplated and envisioned at the time of preparation of it or its relevant amendment, but the City does not consider it relevant to this case and is not considered appropriate for discovery. Mr McLeod noted that in any event it is available on the City's website.[228]
Having given careful consideration to the pleadings, I am not persuaded by the submissions made on behalf of the City, nor the matters deposed to by Mr McLeod. The assurances proffered by Mr McLeod to the effect that the City has no further documents to produce, and Mr McLeod's hearsay evidence to that effect, is not the end of the matter, particularly as the informal lists of documents provided by the City provide sufficient ground for the rebuttal of the presumption that the City had given full discovery of the categories of documents sought.
At par 9(a)(iv) of the defence to the amended statement of claim, Viva Energy pleads, further or alternatively, that any extant obligation Viva Energy may have had from time to time to construct the slip lane would become spent if and when the plans and specifications referred to in par 8 of the amended statement of claim no longer complied with the laws and standards governing the design and construction of slip lanes.[229] Viva Energy's case is that the laws and standards governing the design and construction of slip lanes at the relevant location have changed,[230] and on the pleadings, I accept that previous and current standards are relevant to the matters in issue. Therefore, I am satisfied that documents falling within the ambit of category 10 are relevant to the matters in issue and ought to have been disclosed. Further, I am informed by matters of proportionality and relevance, and consider it appropriate to exercise the discretionary power to order further and better discovery of documents falling within the scope of category 10.

[81]

Viva Energy sought discovery of all records of the City's internal meetings with respect to constructing the slip lane in accordance with the development approval dated 31 January 1996.
As to existence, Ms Vasic deposed that the City appeared to concede in its letter dated 18 December 2020 that documents within this category may well exist but that it had not undertaken a proper search for them.[231] Ms Vasic further deposed that the City's concession of the likely existence of relevant documents can be inferred by its acknowledgement in that letter that all documents relevant to the category would be provided in particulars of the City's damages (which had not yet been provided).[232]
Counsel for Viva Energy also referred to statements made on behalf of the City to the effect that, as to category 11, Viva Energy's request was unreasonably wide as it potentially covered private or personal notations made from time to time by officers or employees of the City, but had indicated that all documents relevant to category 11would be provided in particulars to the City's damages.[233] Counsel submitted that this response revealed that the City had misapprehended its obligation of discovery, as documents held by officers and employees of the City are documents within the possession of the City for the purposes of the rule.[234]
It was Viva Energy's position that the existence of such documents was also supported by the existence of other documents discovered by the City which contain handwritten notations and concern meetings which appeared to have been conducted between the parties at the time. Viva Energy contended that such discovery supported the inference that documents falling within the ambit of category 11 did at one time exist, and it was clear that not all such documents had been discovered.[235] Finally, Ms Vasic deposed to her belief that the City's employees and officers must have made a record of the discussions which occurred at meetings between those parties.[236]
As to relevance, counsel for Viva Energy noted that this category of documents concerned the obligation to complete the slip lane work and the amount that it will cost to do so.[237] Viva Energy maintained that documents falling within the scope of category 11 are relevant to the matters pleaded at par 5 of both the amended statement of claim and the defence to the same, particularly having regard to the context provided by pars 8 and 9 of both the amended statement of claim and the defence (relating to the 1997 Deed and the slip lane to be constructed pursuant to it).[238]
The City opposed discovery of this category of documents on two grounds. First, on the basis that the only documents known to exist in this category are communications between the City and its solicitors which are subject to legal professional privilege; and secondly, Mr McLeod had been instructed by Mr Pearson that the City had made enquiries with its employees as to any document in this category whether as records of discussions or meetings or otherwise, and no such documents had been disclosed.[239]
As to the first ground of opposition advanced by the City, a claim of legal professional privilege is not an answer to the obligation of the City to produce a list of relevant documents and verify the same by affidavit. As to the second ground of opposition advanced by the City, again, the assurance proffered by Mr McLeod in his submissions that the City has no documents to produce, and Mr McLeod's hearsay evidence to that effect, is not the end of the matter.
Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am fairly certain that there are other relevant documents which ought to have been discovered that fall within the scope of the eleventh category.
Having regard to this evidence, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence. The matters raised on behalf of Viva Energy, summarised at [244] to [246] above, are sufficient to displace by inference the rebuttable presumption. I am also satisfied that the documents sought are relevant and ought to have been disclosed when regard is had to the pleadings.
I am also satisfied that it is appropriate to exercise the discretionary power to order further discovery. Documents that fall within the scope of category 11 will be within the City's sole possession, custody and power, and will be unavailable from any other source. I also weigh in the balance consideration of proportionality, relevance and fairness in determining it appropriate to exercise the discretion.

[83]

Viva Energy sought discovery of all documents, including communications and policies, relating to the City's obligation to now construct the slip lane.
As to the existence of documents that fall within the ambit of category 12, Ms Vasic referred to the Morley Activity Centre Plan, and noted that it is a document which was not discovered by the City. Ms Vasic further noted that the Morley Activity Centre Plan contemplates a different slip lane to the one set out at annexure B to the 1997 Deed. From the existence of the Morley Activity Centre Plan, which specifically refers to the intersection and slip lane the subject of this proceeding, Ms Vasic inferred that relevant documents, very likely in the form of traffic counts, surveys, and expert reports (amongst others) exist.[240]
As to relevance, Viva Energy contended that this category of documents is directly relevant to the pleas at par 15 of the amended statement of claim and pars 15 and 16 of the defence to the same.[241]
In response to Viva Energy's request for documents within this category, the City noted that it does not have an obligation (statutory or contractual) to now construct the slip lane. Rather, the City's commitment to construction of the slip lane is related to the City's perception of the necessity for construction of the slip lane in the interest of public safety in connection with the functioning of the two crossovers between the service station on the Subject Land; the public safety issue relating to the use of the two Walter Road crossovers for access and egress by large fuel transporting vehicles; and the entry and egress to and from the site by customer vehicles. It was noted on behalf of the City that any obligation of the City to construct the slip lane is an obligation only in that sense. It is not prescribed, written down or recorded in any other way, there is no document to discover that falls within the ambit of category 12.[242]
With respect to Ms Vasic's claim that the Morley Activity Centre Plan exists and had not been discovered, Mr McLeod deposed that, for the same reasons as summarised at [240] above, the document is not relevant to any matter in issue in [243]s action.243 He further deposed that the depiction of the slip lane at the Walter Road and Russell Street intersection in the Morley Activity Centre Plan could not reasonably be proposed to be an accurate and final depiction of the slip lane intended to be constructed, such as could be expected in the developer's final design drawings, as that is inconsistent with the broad brush nature of that plan, and its purely conceptual treatment of detail, such as th[244]lip lane.244 Further, it was the City's position that the source of the information for any depiction of the slip lane in the Morley Activity Centre Plan wa[245]ot known.245
Mr McLeod further deposed that the City had no further slip lane design related documents to discover, relevant to damages or otherwise.[246]
Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am fairly certain that there are other relevant documents which ought to have been discovered that fall within the scope of category 12. That is, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence. I am also satisfied that the documents sought are relevant and ought to have been disclosed when regard is had to the pleadings, particularly the pleas at par 15 of the amended statement of claim and pars 15 and 16 of the defence to the amended statement of claim. The City has pleaded that it has an obligation. Documents which inform the nature of the obligation are relevant and ought be discovered, which in light of Mr McLeod's evidence, ought include those which inform necessity of construction in the interest of public safety.
Again, I am satisfied that it is appropriate to exercise the discretionary power to order discovery. In this regard, I am particularly informed by the relevance of the documents to the matters in issue, proportionality and fairness. I am also cognisant that it appeared that documents falling within category 12 would likely be in the City's sole possession, custody and power (particularly given the City's clarification as to what it meant by use of the word 'obligation' in its pleadings).

[85]

Viva Energy sought discovery of all documents relating to the City's costs from 1997 to present of maintaining roads such as the proposed slip lane.
As to existence, Ms Vasic deposed to having reviewed the City's website and to having noted that the City's budget is published, which reveals the City's actual expenditure for the previous year. Viva Energy's position was that this demonstrates that records of expenditure are created and kept.[247]
Ms Vasic also referred to the City's letter dated 18 December 2020, in which the City asserted that 'the cost is understood to be so minimal as to not require or justify assessment'. Again, Viva Energy contended that this communication suggested that not only are at least some records in existence, but that someone within the City has made a positive assessment with respect of them.[248]
Finally, Ms Vasic deposed that evidence of the existence of documents within this category can further be inferred from the City's advertised Road Resurfacing Program and Traffic Safety Improvement Works which appear on its website.[249]
As to relevance, Ms Vasic deposed that the documents within the ambit of category 13 are relevant to pars 15(b)(iv) and 16 of the defence to the amended statement of claim, where Viva Energy pleads that the costs of refurbishing any constructed slip lane must be taken into account by way of set off.[250]
The City opposed discovery on the basis that its records of actual expenditure from previous years and anticipated expenditure from a current year concerning road maintenance costs were not relevant to the question of what the cost of maintaining a portion of road (such as the contemplated slip lane in the present case) would have been.[251]
By his affidavit, Mr McLeod provided further background to the City's assertion in the letter dated 18 December 2020 that 'the cost is understood to be so minimal as to not require or justify assessment'. Mr McLeod deposed that the assertion was grounded upon the opinion of Mr Pearson, based on his many years' experience of road construction and maintenance work and costs.[252] Mr McLeod further deposed that there was no document known to the City which verified or contradicted the information provided by Mr Pearson that a road portion such as the slip lane in the present case would require no maintenance other than resurfacing in time, but the resurfacing would not be required until after approximately 15 years of use, and then the cost would be approximately 1% of the cost of construction of the slip lane.[253] He further deposed that there is no document the City could identify that documented the information provided by Mr Pearson, and thus no such document is available for discovery.[254]
Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am fairly certain that there are other relevant documents which ought to have been discovered that fall within the scope of category 13.
The evidence of Ms Vasic provides a basis upon which I can be satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence. I am also satisfied that the documents sought are relevant and ought to have been disclosed when regard is had to the pleadings, particularly the pleas at to pars 15(b)(iv) and 16 of the defence to the amended statement of claim, which pleads the need to take into account a set off for the costs of refurbishing any constructed slip lane. The City's obligation to give discovery on affidavit is not met by Mr McLeod's assurances and hearsay evidence.
Again, I am satisfied that it is appropriate to exercise the discretionary power to order further discovery. The likelihood that documents falling within category 13 would likely be in the City's sole possession, custody and power was a matter which weighs in favour of the exercise of discretion.

[87]

Viva Energy sought discovery of all documents, including communications and records, regarding the additional telecommunications pits which were installed subsequent to the execution of the 1997 Deed, as shown on Plan No. SK003 dated 2019 provided by McLeods Lawyers to HWL Ebsworth on 11 May 2020.[255]
As to existence, the same matters as are set out for category eight (as summarised at [217] to [218] above) also informed Ms Vasic's belief with respect to category 14, and to the extent that any further documents are discovered by the City in response to category eight, it was submitted that the existence of internal communications regarding those do[256]ents may be inferred.256
As to relevance, in the submission of counsel for Viva Energy, Plan No. SK003 demonstrated that there are more underground services in the land than there were before, and documents that fall within the scope of category 14 would inform Viva Energy's understanding as to what other infrastructure had been or is being installed.[257]
Ms Vasic also relied upon the same matters as she set out for category eight (as summarised at [221] above) to inform her belief that the category 14 documents we[258]relevant.258
The City opposed discovery of this category of documents on two grounds. First, on the basis that the City has no knowledge of any requirement or proposal for installation of subsequent additional underground services connected with the slip lane; and secondly, there are no documents to discover in this category.[259]
Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am fairly certain that there are other relevant documents which ought to have been discovered that fall within the scope of category 14. That is, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence and that the documents sought are relevant and ought to have been disclosed. The terms upon which the utilities and services have been installed in the communication pits subsequent to the execution of the 1997 Deed, and any requirements that attach to their relocation, are matters relevant to the obligation on Viva Energy to take all reasonable steps to procure the owner of the communication pits to move or relocate them, and to the damage that might be suffered by the City in undertaking works at its own expense (as pleaded at par 15 of the amended statement of claim).
Finally, having regard to the ambit of category 14, I again consider that it is clearly defined, and the scope appropriately focussed. In determining it appropriate to exercise the discretionary power to grant Viva Energy's application in relation to category 14, I note that, among other things, I had regard to the principles in the RSC O 1 r 4A and r 4B. On balance, I consider the forensic benefit to be derived by the granting of the application as it concerns category fourteen is proportionate to the cost and delay which will flow from the City meeting this order.

[89]

Viva Energy sought discovery of any communications between the City and the State or Federal governments regarding road funding for the City in the period since 1996.
With respect to the existence of documents falling within the scope of the final category of documents sought, Ms Vasic deposed that by its letter dated 18 December 2020, the City objected to responding to (or providing discovery of) this category on the basis that it is irrelevant to the proceeding, but the City did not assert that no such documents exist.[260] Ms Vasic also stated that she inferred the existence of such documents from the publicised road works on the City's website, and the matters disclosed in the Morley Activity Centre Plan.[261]
As to relevance, it was submitted on behalf of Viva Energy that documents with this category are relevant to the question of what the City's actual loss is, taking into account actual funding.[262] To the extent that such documents relate to Walter Road or Russell Street, Ms Vasic deposed that they will be relevant to the damages claimed by the City at par 15 of the amended statement of claim. More generally, however, if such documents showed that a significant portion of the City's road funding were provided by third parties, that would also be relevant to the City's claim for damages.[263]
In response to the same, the City maintained that it had no documents within this category which can be discovered and raised four points.
First, while the City, like all local governments in Western Australia, endeavours each year to obtain Federal or State grants for roads, Mr McLeod deposed to having been instructed by Mr Pearson and verily believing that the City does not know of any case where funding has been provided for the provision of a slip lane the need for which arises from the activity of commercial enterprises adjoining the relevant road such as the present.[264]
Secondly, the City had not sought, and Mr McLeod was instructed by Mr Pearson that the City could confidently expect not to receive, any Federal or State grant funds for the construction of a slip lane where the City holds an agreement for the funding to be supplied by a developer, and where the City is actively pursuing payment by that developer, such as in the present case.[265]
Thirdly, there are no documents in this category relevant to funding for slip lane construction which can be discovered.[266]
Fourthly, the City does not receive funding for roads, whether slip lanes or otherwise, from any other third parties, other than developers in a similar position to Viva Energy in the present case.[267]
Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am fairly certain that there are other relevant documents which ought to have been discovered that fall within the scope of the final category.
It is clear from the submissions advanced on behalf of the City, and the matters deposed to by Mr McLeod at pars 39(a) to (d) of his affidavit sworn on 18 May 2021, that the City had sought to narrow the ambit of category 15, and depose to there being no documents within the narrower ambit. However, having regard to the evidence of Ms Vasic, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence. I am also satisfied that the documents sought are relevant and ought to have been disclosed.
I do not consider the ambit of category 15 as framed by Viva Energy as unreasonably wide, having regard to the pleaded case of the City and Viva Energy. Proportionality does not weigh against the exercise of discretion, and again I am satisfied that it is appropriate to exercise the discretionary power to order further discovery.

[153]

The defendant initially sought that its costs of prosecuting its application and defending the plaintiff's application be fixed in the sum of $95,000 and payable forthwith. In light of the limited evidentiary foundation for fixing costs in that amount, counsel for the defendant advised the court that an order fixing costs in that amount was not pressed.[269] That concession was appropriately made in light of the evidence before the court and the amount sought to be recovered.
In the usual run of routine matters parties can expect that rather than being taxed, costs will be fixed by reference to the schedule of standard costs orders for interlocutory applications at Consolidated Practice Direction 4.7.1.1, where the figures suggested have been calculated by reference to the time required in a typical, or median, instance.[270] In this case, the defendant submits that the applications were not typical and the figures suggested in the schedule do not reflect the work the defendant had been required to undertake.[271]
While initially framed in the alternative, the defendant seeks that its costs be paid by the plaintiff in an amount to be assessed if not agreed, and pursuant to s 141(3) and s 141(4) of the Legal Profession Uniform Law Application Act 2022 (WA), that those costs be fixed or assessed without regard to the limits imposed by item 10(a) of table B of the Legal Profession Supreme and District Courts Contentious Business Determination 2020 (WA) (2020 cost scale), and item 10(b) of table B of the Legal Profession Supreme and District Courts Contentious Business Determination 2022 (WA) (2022 cost scale).
In support of its position on costs, the defendant relies upon a minute of proposed orders filed on 23 November 2022 (an amended version of which was provided to the court on 8 December 2022); submissions filed on 23 November 2022; the affidavit of Stephanie Pin Jian Tan sworn on 23 November 2022; and the oral submissions made by counsel. I have had regard to the same in determining the appropriate costs order.
The plaintiff does not accept that the order proposed by the defendant is appropriate or warranted in the circumstances of the applications heard and determined. As to costs, the plaintiff seeks orders in the terms promoted in its minute of proposed orders filed on 6 December 2022, that is:
1. Pursuant to Order 66 rule 47(3) of the Rules of the Supreme Court 1971 (WA), the plaintiff pay the defendant's costs of and incidental to the defendant's application on a party and party basis, including the hearings on 15 November 2022, 24 November 2022 and 8 December 2022, to be taxed in accordance with item 10 of the relevant Cost Determination, if not agreed.
2. The costs of and incidental to the plaintiff's application for further and better discovery be in the cause.
3. Alternatively to para.2 hereof, pursuant to Order 66 rule 43(3) of the Rules of the Supreme Court, the plaintiff pay the defendant's costs of and incidental to the plaintiff's application on a party and party basis to be taxed in accordance with item 10 of the relevant Cost Determination, if not agreed.
In support of its position on costs, the plaintiff relies upon the minute of proposed orders filed on 6 December 2022, as well as submissions filed on 6 December 2022 and the oral submissions made by counsel. I have had regard to the same in determining the appropriate costs order.

[154]

In circumstances where the defendant was wholly successful in prosecuting its application and also in its opposition to the plaintiff's application, costs ought to follow the event. That is, it is appropriate that the defendant recover its costs from the plaintiff as to each application, to be taxed if not agreed. It is also appropriate in the circumstances that the plaintiff pay forthwith to the defendant those costs.
I make a number of observations in relation to this disposition.
First, as to the defendant's successful application, there is no reason for the court to make an order other than as contemplated by the Rules of the Supreme Court O 66 r 47(3). The plaintiff acknowledged by proposed order 1 of the plaintiff's minute that those costs ought to be recovered by the defendant. The controversy as between the parties is limited to whether the costs of the defendant's application ought be taxed without regard to the limits imposed by the applicable cost scale if not agreed.
I am satisfied that in all of the circumstances costs ought follow the event and the defendant, having successfully prosecuted its application, is entitled to its costs to be paid forthwith. As to whether the limits imposed by the applicable costs scale ought be lifted, I deal with that below.
Secondly, on the materials before me, I am not satisfied that I am in a position to fix costs. The concession made by counsel for the defendant in this regard is appropriately made. The materials before me are not adequate to provide a proper foundation to fix an amount. If costs cannot be agreed, the quantum is best determined in this matter by a taxing officer.
Thirdly, as to the costs of and incidental to the plaintiff's unsuccessful application for further and better discovery, I am not satisfied that it is appropriate that they be in the cause.
In so finding, I have had regard to the submissions made on behalf of the plaintiff at paragraphs 11 to 16 of its written submissions. I am not persuaded by the same.
At par 13 of the plaintiff's submissions, the plaintiff accepts that the court has a general discretion to award costs on dismissal of the plaintiff's application, but submitted that the situation was not as clear as the costs obligation of a party against whom an order for discovery is made pursuant to O 66 r 47(3) of the Rules of the Supreme Court.[272] I understand the plaintiff to contend that the circumstances justify a cost order in relation to the plaintiff's application that does not reflect the general rule that costs follow the event.
As to the circumstances referenced on behalf of the plaintiff, counsel noted that I considered certain aspects of the plaintiff's application to be 'finely balanced', and that in the disposition of the application, discretion was exercised against the plaintiff.[273] I do not consider these to be circumstances sufficient to depart from the general rule.
Counsel for the plaintiff submits that it would be appropriate that the court order that the costs of and incidental to the plaintiff's application for further and better discovery be in the cause because the plaintiff had consented to the making of such an order by the learned Master on 12 November 2021 in the context of the plaintiff's successful application for separate trials of liability and quantum.[274] The fact that the plaintiff may have consented to such an order in the context of an entirely different application I find to be in no way persuasive.
Counsel for the plaintiff further submits that it may also be relevant to the disposition on costs that the defendant will have the benefit of an order for costs on the defendant's application in any event, under the orders proposed/consented to by the plaintiff.[275] It is not. The defendant was called to prosecute its application and also to defend the plaintiff's application. To the extent that there were efficiencies created by the concurrent programming of the applications and the hearing of the applications on the same day, such efficiencies will no doubt be taken into account by the taxing officer.
No circumstances exist that call for a departure from the usual position that costs follow the event. I do not consider it appropriate for the costs of the plaintiff's application to be in the cause.
What remains to be determined is whether the limits imposed by the applicable costs scale ought be lifted in relation to either application.

[155]

I turn now to whether it is appropriate that pursuant to s 141(3) of the Legal Profession Uniform Law Application Act, the costs of the applications be taxed if not agreed without regard to the limits imposed by item 10(a) of table B of the 2020 cost scale and item 10(b) of table B of the 2022 cost scale.
Section 141(3) is in identical terms to s 280(2) of the Legal Profession Act 2008 (WA), which section was discussed in Sino Iron Pty Ltd v Mineralogy [No 2] [2017] WASCA 76 (S), particularly at [11] ‑ [15]. I had regard to the principles expressed by the Court of Appeal in Sino Iron Pty Ltd v Mineralogy [No 2] as being applicable to an application made pursuant to s 280(2), in the disposition of this matter pursuant to s 141(3).
I proceed on the basis that s 141(3) operates to give the successful party the opportunity to recover those costs which have been reasonably and properly incurred where, in the court's opinion, the scale is inadequate because of the unusual difficulty, complexity or importance of the matter.[276]
I further proceed on the basis that s 141(3) is protective of the successful party in litigation, and serves the administration of justice, by facilitating, within the limits imposed by the statutory criteria, the operation of the general principle that a successful party is entitled to its costs of the litigation. I also note that an order under s 141(3) does not, of itself, mean that a successful party will recover all of the costs it has incurred, or seeks from the unsuccessful party. It remains the task of a taxing officer to consider the reasonableness and necessity for the work undertaken and to make a judgment about the remuneration reasonably required. I understand these principles to be accepted by the parties.
As to the statutory criteria, I also understand it to be common ground as between the parties that the court may make an order under s 141(3) if satisfied of two things. First, that the amounts allowed under the relevant scale item are inadequate in the sense that there is a fairly arguable case that the bill of costs may tax out at an amount which is greater than the scale limit. Secondly, that the inadequacy of the costs allowable arises because of the unusual difficulty, complexity or importance of the matter. These elements are to be addressed as matters of impression, rather than as matters of detailed evaluation, precision or science.[277]
I proceed on the basis that a special costs order will not be warranted simply by reference to the effort of the successful party, which may have been disproportionate in all of the circumstances. I also proceed on the basis that I do not understand the defendant to seek that the maximum hourly and daily rates for solicitors and counsel be raised.[278]
As to the first criteria, I find it to be a fairly arguable case that each of the defendant's bills may be taxed and certified in amounts greater than the scale limit, having regard to the maximum amount allowable. In so concluding, I have had regard to the evidence of Ms Tan as to the costs incurred by the defendant, and to the scale limits.
Item 10(a) of the 2020 cost scale is for proceedings in chambers, other than on motions and originating process. Under that item, allowance is made for 2 days preparation and 1 day hearing, by either senior counsel or counsel. Item 10(b) of the 2022 cost scale is for attending on a reserved judgment in chambers (including preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders).
Under item 10(a) of the 2020 costs scale, a maximum allowance of $13,530 is made for counsel, referable to 2 days preparation and 1 day of hearing. No separate allowance is made for preparation of the case, for preparation of written submissions, or for the attendance of instructing legal practitioners.
Having regard to the evidence of Ms Tan as to the costs incurred by the defendant, while acknowledging that some amount may properly be allocated to item 27 rather than item 10, I am satisfied that the scale allowance is inadequate in the sense that there is a fairly arguable case that the defendant's bills may tax out at amounts which are greater than the scale limit. While two days preparation will ordinarily be adequate, the applications before me were made more complex by the manner in which the plaintiff prosecuted its application and opposed the application of the defendant (which is discussed further below). Further, while the applications were heard in the course of one hearing day, this was only possible because the court had the benefit of the comprehensive written submissions filed on behalf of the defendant in advance of the hearing. I accept that if written submissions had not been filed, the hearing of the applications would most likely have been adjourned part heard, with the potential for at least a half or full day to follow. I also note that at the end of the hearing day the plaintiff sought, and I granted, leave to file further written submissions on the basis that there was insufficient time to make those submissions at the hearing and the defendant was granted leave to reply. No separate allowance is made in item 10 for submissions filed prior to a hearing, nor for submissions filed after a hearing in lieu of further oral submissions.
I again note that the making of an order under s 141(3) does not mean that the defendant will recover all of the costs that it has incurred or, indeed, the costs it seeks to recover from the plaintiff as the unsuccessful party in a taxation.
As to the second criteria, I have considered whether the inadequacy of the costs allowable arises because of the unusual difficulty, complexity, or importance of the matter. I approach the same as matters of impression rather than matters of detailed evaluation, precision, or science and, in so doing, I find the second criteria to have been satisfied.
In so finding, I am cognisant that the applications are interlocutory and for further and better discovery. The principles to be applied in the disposition of the applications before me were well settled and such applications are routinely determined. I weigh the same in the balance.
Despite this, the following matters contribute to my finding that the second criteria is satisfied.
Mr McLeod had sworn two affidavits with respect to the applications. The first was sworn on 26 March 2021 in support of the plaintiff's application; the second was sworn on 18 May 2021 in opposition to the defendant's application.
Mr McLeod elected to attach to his affidavit of 26 March 2021 10 documents that the defendant had long asserted were subject to without prejudice privilege.[279] The application for discovery was made more complex by the attachment of documents subject to that unresolved claim of privilege, and by the plaintiff seeking a 'preliminary determination' of the same in the course of the hearing of the applications for further and better discovery. As my reasons reflect, I was in the end not prepared to make a 'preliminary determination' as to whether 10 of 55 communications listed in the schedule to the amended statement of claim were privileged communications.[280]
It is evident from the materials filed on behalf of the defendant that the manner in which the plaintiff prosecuted its application and sought to defend the application made by the defendant, caused significant time to be spent by the defendant's representatives in an attempt to understand the materials filed, and to apply structure and principle to the same. The preparation for and hearing of the applications was also made more complicated by the inclusion in Mr McLeod's affidavit of inadmissible submissions and opinion.[281] The affidavits filed on behalf of the plaintiff conflated evidence, inadmissible opinion and submission, and made the hearing of the applications more difficult.
The complexity is also apparent in the reasons published. Determination of the disputed matters underlying each of the applications was a considerable task, and the court was assisted by significant work performed on behalf of the defendant. The issues raised on the pleading, I also accept, are complicated. The plaintiff's view that this is a straightforward, one‑issue proceeding does not take into account the defences pleaded and the complexity of the matters in issue when considered as a whole.
I am also cognisant that the matters in issue concern events that occurred over 20 years ago. While the documentary record is always important, the defendant says that in this case, the documentary record is crucial for its ability to fairly defend itself, and for this reason proper and complete discovery have assumed a particular importance. I give this submission considerable weight.
I also accept that the affidavit evidence and submissions filed on behalf of the defendant in respect of the applications were comprehensive. My impression is that the materials likely consumed considerable preparation time by the defendant's solicitors and counsel.
Finally, as noted above, while the applications took one hearing day, I accept the defendant's account that this was only due to many matters having been addressed in the written submissions filed. I accept that if written submissions had not been filed, the hearing would have been adjourned part heard, with the potential for at least a half or full day to follow. The volume of disputed matters underlying each of the applications meant that oral submissions were not concluded within the one hearing day, and warranted the grant of leave to file further written submissions at the conclusion of the hearing.
On balance, I accept the complexity of the matters in issue, the volume of evidence and submissions prepared, the volume of inadmissible and irrelevant evidence filed on behalf of the plaintiff, the annexing of documents the subject of an unresolved claim of privilege, and the importance of discovery to the disposition of this proceeding are reasons why the costs of the application are likely to have been considerable and in excess of the maximum allowance allowed under the scale. I accept that the s 141(3) order sought by the defendant is necessary. Without it, there is a real prospect that the defendant will not be able to recover reasonable costs of the applications.
I find the statutory criteria to have been satisfied. Of course, that is not the end of the matter. Even where orders are made under s 141(3) of the Legal Profession Uniform Law Application Act, it nevertheless remains the task of the taxing officer to consider the reasonableness of and necessity for the work undertaken, and to make a judgment about the remuneration reasonably required.[282]
The costs of the defendant associated with the contested costs order, including the defendant's costs of preparing the documents referred to at [8] above and the involvement and attendance of counsel, are to be paid by the plaintiff (to be taxed if not agreed), to be treated as falling within the ambit of item 10(b) of the relevant costs scale.
Finally, as to the making of an order that contemplates taxation rather than an assessment of costs if quantum was not agreed, I note that counsel for the defendant did not oppose the same.[283] I proceed on the basis that while Consolidated Practice Direction 4.7.2 contemplates the provisional assessment of bills of costs at the discretion of the taxing officer, it is appropriate that the court order that the costs be taxed if not agreed, reserving the question of whether a bill is suitable for provisional assessment to the discretion of the taxing officer as contemplated in Consolidated Practice Direction 4.7.2 pars 4 and 5.

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Judgment (398 paragraphs)

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Legislation Cited (4)

Cases Cited (19)