These questions are to be addressed as matters of impression rather than detailed evaluation: EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) [7] (Martin CJ). Courts should draw from their experience and act on impressions gained during the litigation to take into account the issues which have been involved, albeit without attempting to make an estimate of the time which is thought to be appropriate when the information for that assessment is not all available: Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S) [43] (Pullin J).
As to (1) (inadequacy of the Scale item), the inadequacy will be demonstrated if there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit that would be imposed by the relevant costs determination: Heartlink Ltd [16] (Martin CJ).
A conclusion that it is fairly arguable that the taxing officer might properly allow costs at an amount greater than the amount allowable under the Scale does not always require evidence of the costs actually incurred: Frigger v Lean [2012] WASCA 66 [81] (Allanson J; Newnes & Murphy JJA agreeing).
As to (2) (inadequacy arising due to the unusual difficulty, complexity, or importance of the matter), the adjective 'unusual' qualifies only the 'difficulty' of the matter, not its complexity or importance: see, in relation to the identical terms of the predecessor to s 280(2): Heartlink Ltd [17] (Martin CJ); Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S) [33] (Simmonds J); SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2) [102] - [106] (Roberts-Smith J).
Finally, although replacing the amount of the Scale item with a different ceiling may be appropriate where sufficient information exists to make that assessment, it is not uncommon for an order to be made removing the limit for the Scale item without replacing that limit with a different ceiling: EDWF Holdings [8] - [9], [13] (Martin CJ). When the Scale ceiling is lifted a taxing officer is otherwise unconstrained and need not allow costs above the previous Scale ceiling.
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The approach sometimes taken to special costs orders, including the approach taken in this case, is to consider whether the whole of the litigation was of unusual difficulty, or complexity, or importance. This is not the correct approach. The question should be asked separately in relation to each item for which the lifting or removal of the Scale is sought. The words of s 280 refer to the inadequacy of the amount of costs allowable 'in respect of a matter under a costs determination' because of the unusual difficulty, complexity or importance 'of the matter'. Section 280 does not contemplate a usual course of removing all limits because of unusual difficulty, complexity or importance. It focuses attention upon particular items.
An application for special costs orders does not require lengthy evidence or submissions on an individual matter of costs. In some cases the same factors of unusual difficulty, or complexity, or importance will apply to all factors for which a lifting of the Scale is sought. But it is possible that an individual matter in litigation might be unusually difficult, or complex, or important, even if the litigation itself is not, or vice versa[52].