BARTLETT -v- ROFFEY [2023] WASC 3 (11 January 2023)

a) the statement of claim be filed by 17 November 2022;
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> b) the defence be filed by 8 December 2022; and
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> c) the defendants' application for transfer of the proceedings be listed for hearing on 14 December 2022.

4. The statement of claim was not filed until 28 November 2022. As a result, the defence was not able to be filed by the time the transfer application was heard. In the circumstances and in accordance with my request, the defendants foreshadowed relevant aspects of their defence in the material filed in support of the transfer application.
5. The hearing occupied the afternoon of 14 December 2022 but was not able to be completed. The matter was then listed for the afternoon of 21 December 2022 and the hearing occupied that whole afternoon as well.
6. The defendants rely on two affidavits of their solicitor Janet Mary Vivienne Whiting; one sworn on 31 October and one on 10 December 2022. The plaintiff relies on his own affidavit and the affidavit of his partner, Victoria Laspas, both sworn on 5 December 2022. The defendants took objection to parts of the affidavits filed by and on behalf of the plaintiff. I dealt with some of those objections at the hearing on 14 December 2022. The remaining objections were refined and raised in advance of the resumed hearing of 21 December 2022. There was insufficient time to finish dealing with those objects at the hearing and they were dealt with on the papers.
7. A consideration of the transfer application requires some understanding of the claim itself.

1. The statement of claim begins with the plaintiff's background. It pleads the plaintiff's birth, upbringing and education in Western Australia, and his playing career with the East Perth Football Club from 1983 to 1993 and four games with the West Coast Eagles between 1987 and 1988. The pleading goes on to refer to the plaintiff's other activities in Western Australia until 2009 including various positions in the management and administration of football, his career as a university lecturer and his career as a lawyer which involved the plaintiff's time at the law firm Clayton Utz in Perth from 2000 to 2009. The pleading reflects the plaintiff's prominence in fields relating to football, law and business, overwhelmingly connected to Western Australia from 1983 to 2009.
2. The statement of claim pleads that the plaintiff moved to Melbourne in 2009 and maintained his career as a lawyer with Clayton Utz where he was the Partner in Charge of the Melbourne office from 2010 to 2013. In 2015 the plaintiff established and became the principal of Bartlett Workplace Lawyers and Consultants in Melbourne. In 2016 a Perth office of that business was opened, but the plaintiff remained domiciled in Melbourne. In his professional capacity from 2015, the plaintiff undertook work principally in Victoria and Western Australia but also provided services for clients and organisations in nearly all other states and the Northern Territory. Mr Bartlett's firm and associated entities continue to maintain offices in Melbourne and Perth.
3. The causes of action advanced in the statement of claim concern the plaintiff's role with the Melbourne Football Club Limited (MFC). As its name indicates, it is a football club based in Melbourne. Its registered office and principal place of business is the iconic Melbourne Cricket Ground. The MFC has over 66,000 members and many more supporters. Of the members, approximately 60% reside in Victoria and approximately 2% in Western Australia. There is no evidence of the location of the broader class of supporters, but common sense suggests that they are predominantly based in Victoria.
4. The statement of claim pleads that the plaintiff joined the board of the MFC in July 2013 and became the president of the MFC in August 2013. It is not in dispute that the plaintiff resigned from the role of president in April 2021 in circumstances that attracted some public interest and media attention which is the background to the claims in this proceeding.
5. Following his resignation, the plaintiff returned to live in Western Australia with Ms Laspas in late May or very early June 2021.
6. The statement of claim alleges the tort of defamation in respect of three publications. All three publications concern the plaintiff's term as, and resignation from, president of the MFC. All three publications were made after the plaintiff had returned to live in Western Australia.
7. The first publication was by the first defendant to a journalist of the Herald Sun newspaper between 17 and 22 September 2021. The first defendant succeeded the plaintiff as the president of the MFC and she remains the president. The publication is alleged to have taken place in Perth in advance of the AFL Grand Final which was held that year in Perth on 25 September. The relevant background relates to remarks made by the plaintiff following a game between the MFC and the Port Adelaide Football Club back in 2020. The MFC lost that game. The plaintiff's post‑game comments attracted media attention at the time. In very broad terms, it is alleged that in an interview with the Herald Sun journalist in September 2021, the first defendant made statements about the plaintiff's post‑game comments in 2020 which were understood by the journalist as disparaging of the plaintiff in his role as president of the MFC. It is alleged that as a natural or intended consequence of the defamatory publication from the first defendant to the Herald Sun journalist in September 2021, statements defamatory of the plaintiff were made in an article published on 22 September 2021 in the Herald Sun 'and other syndicated news websites'.[1] The statement of claim states that further particulars of republication may be provided after discovery and the issue of subpoenas. I shall refer to this first allegation of defamation as the 'Grand Final Week Publication'.
8. It is not in dispute that the Herald Sun is a Melbourne-based newspaper. Its registered place of business is in Melbourne and its website promotes the Herald Sun as 'Victoria's home for breaking news, footy and hard‑hitting opinion'. Notwithstanding its claim to be 'Australia's most-read newspaper', the website is decidedly focused on Melbourne and Victoria with the claim that it is 'Melbourne's biggest selling newspaper' and with a 'history of leading the agenda' for Victorians. It has an unambiguous focus on football, claiming 'a deep passion for footy'.
9. The second claim concerns an alleged publication by the first defendant on a Melbourne radio station, 3AW, during a program entitled '3AW is Football' on 13 June 2022. The program included discussion between various participants, including the first defendant. The plaintiff alleges statements made by the first defendant in that discussion conveyed the meaning that the plaintiff had secretly recorded a conversation of a confidential conference in February 2021 involving senior AFL figures regarding sensitive issues in relation to the MFC, and in particular its coach. The plaintiff alleges that statements made by the first defendant also conveyed the meaning and that the plaintiff had leaked the secret recording to the media and acted disloyally to the MFC and its coach. The publication is alleged to have been broadcast 'upon radio, but also upon the World Wide Web and in digital, telephonic and electronic form and by other forms'. No further detail is provided but the plaintiff pleads that further particulars may be provided following discovery and subpoenas. I shall refer to this as the '3AW Publication'.
10. The evidence before me established that the company operating 3AW is Radio 3AW Melbourne Pty Limited. Its principal place of business is in Melbourne. The defendants also produced survey documents indicating, unsurprisingly, that overwhelmingly (if not entirely) the audience of 3AW is based in Melbourne or at least Victoria.
11. The third claim relates to an official statement of the MFC published by all three defendants as directors of the MFC. The statement was initially published on the MFC website on 17 June 2022 with a link provided on MFC's Twitter account. The plaintiff alleges that it was the natural or intended consequence of the statement that it would be republished widely by various means. The statement of claim states that further particulars of publication may be provided following discovery and subpoenas. The plaintiff alleges that the statement defamed him in relation to his conduct as president of the MFC and in relation to a statement the plaintiff had made about his resignation from that position. I shall refer to this as the 'MFC Board Statement'.
12. In relation to the 3AW Publication and the MFC Board Statement the plaintiff also relies upon republication, but on the issue of damages only. The republication is alleged to have occurred widely and by various means, including, in respect of the MFC Board Statement, in Western Australia on the WA Today website and the Perth Now website.
13. The statement of claim then pleads at some length, circumstances of aggravation in respect of each of the allegedly defamatory publications. The tenor of the plea is in effect that the publications were, to differing degrees, gratuitous, malicious, and knowingly disingenuous and self‑serving.

1. As noted above, the defendants foreshadowed aspects of the defence that are relevant to the application to transfer. These were summarised in the affidavit material of the defendants' solicitor.
2. First, the defendants contend that the applicable law is that of the State of Victoria, not Western Australia. That is a significant issue that I shall return to later in these reasons.
3. Secondly, it is accepted that the Grand Final Week Publication relates to words spoken and thereby published by the first defendant while she was in Perth. However, the matters related to conduct which took place when the plaintiff resided in Victoria, occurred largely in Victoria, involved people who were Victorian and is recorded in documents held by people or entities based in Victoria.
4. Thirdly, in respect of the 3AW Publication, the defendants emphasise that the first defendant was in Victoria when she spoke the relevant words, and the discussion pertained to conduct and events which occurred in February 2021 in Victoria when the plaintiff was living in Victoria and concerned the conduct of others who were largely Victorian. Again, the conduct is largely recorded in documents held by people or entities based in Victoria.
5. Fourthly, it is accepted that the MFC Board Statement was published after the plaintiff had returned to live in Western Australia. However, the defendants point to the fact that all defendants were resident in Victoria at the time of the publication and it concerned conduct that occurred in Victoria at a time that all the people the subject of the statement, including the plaintiff, were living in Victoria.
6. Finally, it was said on behalf of the defendants that the circumstances of aggravation will be denied and that they concern matters that largely occurred in Victoria and involved people living in Victoria at the relevant time.

1. In broad terms, the defendants rely on the following factors in their contention that the interests of justice require the transfer of the proceedings to the Supreme Court of Victoria:

a) most of the parties reside in Victoria;
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> b) the matters complained of were overwhelmingly published in Victoria;
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> c) the subject matter of the proceeding concerns events that occurred in Victoria;
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> d) the case concerns alleged damage to the plaintiff's reputation arising out of his conduct in Victoria;
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> e) most of the witnesses at the trial will be based in Victoria; and
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> f) the applicable substantive law is the defamation law of Victoria, which is materially different from the defamation law of Western Australia in ways that have a significant bearing on this matter.[2]

2. In oral submissions, senior counsel for the defendants emphasised the natural connection of the causes of action with Victoria; the events the subject of the publications, the audiences of the publications, the dramatis personae - all of these were largely if not overwhelmingly Victorian.
3. Again, in broad terms, the plaintiff relies on the following factors in resisting the application:

a) the causes of action 'arise in Western Australia';
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> b) either the applicable law is that of Western Australia or there is no material difference between the relevant law of Western Australia and Victoria;
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> c) the nature and medium of publication were not 'Victoria‑centric';
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> d) the plaintiff has always had a connection to Western Australia;
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> e) the transfer of the proceedings will be difficult for the plaintiff and his partner and especially injurious to their health; and
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> f) the evidence advanced by the defendants is not sufficient to justify the transfer.

4. In oral submissions, senior counsel for the plaintiff addressed the defendants' emphasis on the Victorian‑centric nature of the events and personalities the subject of the allegedly defamatory statements. Senior Counsel pointed to the plaintiff's standing and reputation in Western Australia and the consequential impact on his reputational future in Western Australia where he now resides and intends to remain, and importantly, where he was at the time of the publications. The plaintiff also pointed to other proceedings in this court. Those proceedings are against other entities (in that case, corporations) alleging defamation arising out of the same background circumstances rendering it undesirable for the two actions to be tried in different courts. It was also submitted on behalf of the plaintiff that there had been insufficient conferral in respect of the transfer application and that the absence of a defence meant that the defendants' contentions regarding potential witnesses and the costs of proceedings did not rise above the level of speculation.

1. The sole criterion stipulated by the statutory provision is 'the interests of justice'. That is, this court must transfer the proceeding if it considers that it is in the interests of justice that the matter be determined by the Supreme Court of Victoria. By its very nature, the notion of the interests of justice does not lend itself to an exhaustive list of prescriptive criteria. A 'wide range of factors'[3] have been considered by the courts and given different weight in different contexts, all in the evaluation of the interests of justice.
2. In BHP v Schultz,[4] Gleeson CJ cited with approval the observation of Street CJ in Bankinvest AG v Seabrook that the statutory provision calls for a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.[5]
3. Gleeson CJ went on to explain that:

If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court 'shall transfer' the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a 'clearly inappropriate' forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.[6]

1. As to the relevant factors, Gleeson CJ continued:

Reference is sometimes made to one forum or another being the 'natural forum'. Such a description is usually based upon a consideration of connecting factors ... as including matters of convenience and expense, such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction ...

In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums. Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is important to establish jurisdiction. Weighing considerations of cost, expense, and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications.[7]

1. BHP v Schultz is also authority for the proposition that no significance is to be attached to the plaintiff's choice beyond considerations of the interests of justice, and a plaintiff's good faith in preferring the forum in which the action was commenced is not relevant.[8]

1. In the assessment of the interests of justice, the cases speak of a preponderance of connecting factors with a location. In my assessment, the preponderance of connecting factors in this matter readily identifies Victoria as the natural forum. I have come to that conclusion for a number of reasons.
2. First, the events the subject of the publications overwhelmingly if not entirely concern the MFC, self‑evidently an organisation based in Melbourne, with its headquarters or 'home' in Melbourne and which attracts support around Australia and probably outside Australia, but primarily in Victoria.
3. Secondly, the publications largely concerned events that happened in Melbourne at a time that almost all the relevant characters, including the plaintiff himself, were domiciled in Melbourne. Other than the plaintiff, the relevant characters overwhelmingly continue to live in Melbourne.
4. Thirdly, I think it likely that most of the witnesses will be people domiciled in Melbourne. There was some debate about the number and identity of witnesses that are likely to give evidence at trial. Senior counsel for the defendants submitted that a good number of witnesses, including the defendants, the journalist from the Herald Sun involved in the Grand Final Week Publication, and others, will all be required to give evidence. Senior counsel for the plaintiff submitted that the defendants' analysis was premature and somewhat speculative and quite possibly overstated in the absence of a defence. The only safe assumption that could be made was that the plaintiff and his partner, Ms Laspas, would give evidence and they are both resident in Western Australia. I do not accept that the defendants' analysis of likely witnesses was as loose or as speculative as the plaintiff's counsel suggested. On the contrary, it appeared to me to be the product of a reasoned analysis of the statement of claim and the foreshadowed defence. The absence of a defence and the qualifications attached to the evidence as to the likely content of the defence, did not in my view detract materially from the careful submission about likely witnesses advanced on behalf of the defendants. For that reason, it seems to me to be more likely than not that a significant majority of witnesses will be based in Melbourne. I should add however that I do not regard this as a particularly weighty factor. If the other elements established a closer connection with Western Australia, then the preponderance of witnesses being based in Melbourne would be unlikely in my view to tip the balance in favour of Victoria. But for the reasons I provide, I do not consider this to be the case.
5. Fourthly, the publications of which the plaintiff complains largely happened in, or at least emanated from Melbourne. Victoria was the principal location of the audience for the publications that are said to have harmed the plaintiff. Although the Grand Final Week Publication as pleaded took place in Perth in that the interview was conducted while the first defendant and the journalist were in Perth, its real 'sting' (to adopt a descriptor used by the plaintiff's counsel) was in its allegedly intended or probable consequence - an article published in the Herald Sun and other (unspecified) publications. As I have noted, the Herald Sun is a Melbourne‑based and Melbourne‑focussed newspaper. It may also be observed that the interview only occurred in Perth because, due to wholly exceptional circumstances, the AFL Grand Final in 2021 was held in Perth. In respect of the 3AW Publication, I have already noted that 3AW is a Melbourne radio station. It may be that these publications were able to be, or were, accessed outside of Victoria or that by various means the relevant statements were republished outside Victoria. But adopting a common‑sense perspective, there can be no doubt that these publications were predominantly in Victoria. The MFC Statement was placed on a website on the world‑wide‑web. But as it was solely concerned with the MFC and its management, to the extent that it was connected to a place, that place was plainly Melbourne. Given the location of the significant majority of the MFC's members and supporters, common sense suggests that the significant majority of people who access the MFC website, are Victorian.
6. Fifthly, is the issue of the applicable law to which I now turn, that is, whether the action is governed by the law of Western Australia, contained in the Defamation Act 2005 (WA) or the law of Victoria, contained in the Defamation Act 2005 (Vic). This issue requires some fairly detailed consideration. It was a significant focus of the parties' submissions. In addition, some of the considerations in relation to this issue overlap with elements of the broader issue of the interests of justice as both issues direct attention to the notion of 'connection' with a place, as will be explained.
7. In my view, the issue of the applicable law is a matter that I do not consider I am in a position to determine at this point. However, for the reasons explained below, my provisional view is that Victorian law is likely to apply. Although the Western Australian and the Victorian statutes are not the same, the provision which governs the choice of law is identical and is found in Pt 2, Div 3, s 11(2) and s 11(3) of both statutes. Those subsections provide:

(2) If there is a multiple publication of matter in more than one Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication.

(3) In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection, a court may take into account -

(a) the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time;

(b) the extent of publication in each relevant Australian jurisdictional area;

(c) the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area; and

(d) any other matter that the court considers relevant.

1. As the words of the statute make plain, the determinant of the choice of law is the place where the harm occasioned by the publication has its 'closest connection'. It is evident that the test for the choice of law under s 11(2) of the Defamation Act and the test for whether the proceedings must be transferred under s 5(2)(b)(iii) of the Cross Vesting Act (as explained in BHP v Schultz) both deploy the notion of 'connection' with a location.
2. The way in which the notion of 'connection' is applied in the Defamation Act and the Cross Vesting Act has some common factors, but also some differences. Under the Defamation Act the issue of connection is determinative of the applicable law, whereas under the Cross Vesting Act, 'connection' is a significant factor in assessing the interests of justice, but the interests of justice may require a forum that is not the location with the closest natural connection. In addition, the notion of connection under s 11(2) of the Defamation Act is directed solely to the location with which the harm has its closest connection, whereas the connecting factors discussed in BHP v Schultz and many other authorities, invite a broader assessment of connection.
3. I should observe at this point that the 'harm' in s 11 of the Defamation Act has been held to be limited to reputational harm and does not extend to harm to feelings.[9] Senior Counsel for the plaintiff invited me not to follow those decisions and to adopt a broader meaning of harm so as to include harm to feelings. I am not persuaded that those decisions are obviously incorrect and I shall therefore proceed on the basis that for the purposes of s 11 of the Defamation Act, harm is limited to harm to reputation.
4. It follows that the location with which the reputational harm to the plaintiff occasioned by the publication as a whole has its closest connection, is determinative of the choice of law. It is also relevant to (but not determinative of) the defendants' application to transfer the proceedings. That is because independently of the choice of law, the location of the plaintiff's reputational harm is (together with other factors including the location of harm in a broader sense) a relevant factor in weighing the interests of justice in the consideration of the defendants' application.
5. Subsection 11(3) of the Defamation Act sets out factors that a court 'may' take into account in the assessment of the location of the reputational harm. It is noteworthy that the first factor set out in s 11(3) is the place where the plaintiff was ordinarily resident at the time of the publication. It is not in dispute that in respect of each of the publications, that place was Western Australia. That is therefore a factor that militates in favour of the application of Western Australian law. However, it seems to me as a matter of common sense that this factor was specified in the statute because ordinarily, a person's domicile is where they will be most injured and impacted by the impugning of the person's reputation. Here, however, that factor is not as potent. As I have explained, the relevant events concerned a Melbourne sporting club, the events largely happened in Victoria and the publications were largely broadcast to a Victorian audience. Shortly after the events but prior to the publications, the plaintiff left Victoria where he had been for 11 years, and returned to Western Australia. The plaintiff continued to enjoy a reputation and maintain a business office in Melbourne. He left Melbourne for reasons which included not wishing to remain in the stressful environment created by the events the subject of the publications. In those circumstances, the plaintiff's residence in Western Australia is less significant than might ordinarily be the case in determining the location where the harm has its closest connection. I also observe that the plaintiff's departure from Victoria in order to ameliorate the emotional distress created by the events rather serves to illustrate the connection of those events to the place which the plaintiff was seeking to avoid, that is, Victoria.
6. Senior counsel for the plaintiff contended that even if the harm in s 11 of the Defamation Act is limited to reputational harm, the harm was principally suffered in Western Australia, because that is where the plaintiff principally developed his professional reputation and where he has now chosen to remain and use as his base for his ongoing business and professional activities. It is Western Australia where the real sting of the defamation bites according to the plaintiff's counsel.
7. At this stage, I am unable to reach a definitive conclusion as to the jurisdictional area where the reputational harm has its closest connection. However, my provisional view is that given the Melbourne‑centric nature of the events, the publications and their audiences, the national reach of the plaintiff's business reputation and the location of the plaintiff's business offices in both Melbourne and Perth, the likely area with the closest connection with the reputational harm, is Victoria. In that context, senior counsel for the defendants accepted that the position might well be different if the plaintiff expressly disavowed any claim for harm to his reputation outside Western Australia and thereby limited the claim to the harm suffered in Western Australia. After some exchange, senior counsel for the plaintiff expressly disavowed any intention to amend and thereby limit the plaintiff's claim in that way. The plaintiff's evidence was that at functions he has attended in Perth since his return to Western Australia, there has been keen interest in the events of his resignation from the MFC and reference to the allegedly defamatory publications. I accept that may well be the case but, adopting the statutory wording, such individual instances in my respectful view are unlikely to shift the location of the reputational harm 'as a whole'.[10]
8. The application of Victorian law has potentially material consequences in light of differences between the Defamation Act in Western Australia and Victoria. The differences were helpfully set out by the defendants' lawyers in an aide memoire. The most significant of these for present purposes is s 12B of the Defamation Act (Vic). That section provides that a person 'cannot commence a defamation proceeding' unless the person has first given the proposed defendant a 'concerns notice'. There is no equivalent provision under the Defamation Act (WA) and no such notice was issued by the plaintiff to the defendants. There emerged a controversy between the parties about whether, if Victorian law applied, the requirements of s 12B are substantive or merely procedural, and the consequences of either outcome, including whether the absence of a notice would render the proceedings incompetent. The determination of those issues might require the proceedings to be re‑commenced, which would raise a statutory limitation issue in respect of the MFC Board Statement. That in turn would require consideration of the provisions under the Victorian statute regarding the extension of time, which are different from and indeed more liberal than the comparatively stricter provision for extending time in Western Australia. At least some of these issues regarding the proper construction and application of the Victorian statute are yet to be resolved by judicial determination because the introduction of s 12B is relatively recent.
9. My provisional view that the applicable law is likely to be that of Victoria militates in favour of the matter being transferred to the Supreme Court of Victoria particularly in this case because in my view, it would be preferable for these fairly novel complexities to be resolved by the superior court in that jurisdiction.
10. The issues arising from the potential (and in my view, likely) application of s 12B of the Victorian statute are all the more acute because senior counsel for the defendants foreshadowed that, in any event, the next step to be taken by the defendants in these proceedings will be an application premised upon the asserted application of s 12B of the Victorian statute to the proceeding. The defendants therefore contended that the application of the Victorian statute and its consequences will need to be confronted in any event and sooner rather than later.
11. It follows in my view that the likely application of Victorian law, and the reasons for that conclusion discussed above, weigh in favour of the defendants' application to transfer the proceedings to the Supreme Court of Victoria.
12. I turn to a number of points advanced on behalf of the plaintiff.
13. The plaintiff emphasised his background, connection and reputation in Western Australia as establishing the most natural connection of the proceedings with Western Australia. While an important element of the plaintiff's reputation is undoubtedly enjoyed in Western Australia, for the reasons I have explained above, I do not consider that in these circumstances that aspect of his reputation prevails over the otherwise natural Melbourne focus and flavour of the subject of the proceedings.
14. The plaintiff also pointed to the fact that he has engaged Perth‑based solicitors and counsel. I accept that this is likely to create some additional cost and inconvenience. However, the plaintiff did not contend that this presented any real barrier to the prosecution of the proceedings and in the circumstances I do not consider it is a matter of particular weight. In this era of electronic communications such matters are not as significant as they once might have been.
15. Senior counsel for the plaintiff also pointed to the fact that it could not be suggested that by issuing the proceedings in this court, the plaintiff was 'forum shopping'. I should first observe that no such suggestion was advanced by the defendants. Nevertheless, senior counsel for the plaintiff submitted this was a significant factor because overcoming the mischief of forum shopping was the object, or at least an object, of s 5 of the Cross Vesting Act. It may be accepted that providing a mechanism to overcome the problems of forum shopping was an object in the enactment of the transfer powers in s 5.[11] But the absence of such a motive on the part of the plaintiff is in reality, inconsequential. The good faith of the plaintiff is not in issue. Where the interests of justice lie is the only question,[12] or the only lodestar by which the judge may steer.[13]
16. For the reasons I have explained, I have concluded that the preponderance of factors point to Victoria as the natural forum for these proceedings. However, that is not the end of the assessment of where the interests of justice lie. That is because there is a further factor on which the plaintiff relies in resisting the application. That is the impact on the health of the plaintiff and his partner, Ms Laspas, if the proceedings are transferred to Melbourne. In the interests of preserving, to the extent possible, the privacy of the plaintiff and Ms Laspas, I will not set out the detail of those health concerns. It is sufficient to record that each of the plaintiff and Ms Laspas has given direct affidavit evidence of their health condition, the impact on their health of the events that have led to these proceedings and their concern that the transfer of the proceedings to Victoria would exacerbate their health condition. In addition, each of Mr Bartlett and Ms Laspas have produced a letter from the same health professional explaining the impact of the events on aspects of their health. The letter in respect of Ms Laspas is dated 22 March 2022 and the letter in respect of Mr Bartlett is dated 26 November 2022. I note that the treating health professional is based in Melbourne.
17. It is notorious (or ought to be) that the emotional and physical toll that litigation exacts on its participants is often significant. This is probably all the more so in many defamation matters which invariably concern aspects of a person's sense of worth and identity and often seek compensation for hurt feelings. It is plain from the affidavit material filed that the events leading to these proceedings have engendered deep feelings bringing health consequences which may well be exacerbated by the proceedings themselves. If the refusal of the defendants' application were to extinguish these ill‑effects, it might well be that the interests of justice would require the proceedings to remain in this court. Regrettably, however, it is far more likely that stress and its attendant health consequences will accompany the litigation wherever it may be. The personalities, the media attention and the noxious air of tattle will likely hover about the proceedings and follow their path. I accept that for the plaintiff and Ms Laspas, those stresses might be more acute in Melbourne. But that is a matter of degree. On the evidence before me I am not able to be satisfied that the additional degree of distress of being in Melbourne for the trial outweighs the many factors that point to Melbourne as the natural forum for these proceedings. In addition, the defendants have advised the court that they would not oppose an application for Ms Laspas to give evidence remotely. The plaintiff appeared to reject the significance of any such concession because it would deprive Ms Laspas of the opportunity to give her evidence in person which may allow it to carry more weight. These may well be difficult choices that the plaintiff and Ms Laspas will have to make if and when the time comes. However in the overall assessment of the interests of justice I do not consider that this undoubted difficulty should trump the other factors that I have set out.
18. Senior counsel for the plaintiff also pointed to other proceedings pending in this court in which the plaintiff is suing other corporate parties for defamation arising out of broadly the same background circumstances. In my view, if the interests of justice require these proceedings to be transferred, then it would be a high burden to surmount in order to shift that assessment by reason of different proceedings to which these defendants are not a party. While it is generally desirable to avoid a multiplicity of proceedings in different forums dealing with the same factual matrix, in my view that desirability is not, at least in this case, of sufficient force to alter the conclusion about where the overall interests of justice lie.
19. In all the circumstances, I consider that the defendants' application should succeed and the proceedings should therefore be transferred to the Supreme Court of Victoria.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CITATION : BARTLETT -v- ROFFEY [2023] WASC 3 (S)

Practice and procedure - Costs - Special costs application - Where matter discontinued - Whether the court has power to grant special costs - Whether special costs application brought out of time - Whether sufficient nexus between costs incurred and unusual difficulty, complexity or importance of the matter

Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 5(2)(b)(iii), s 13

Legal Profession Uniform Law Application Act 2002 (WA) s 141

Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022

Rules of the Supreme Court 1971 (WA) O 23 r 2, O 66 r 1

Supreme Court Act 1935 (WA) s 37(1)

Bartlett v Roffey [2023] WASC 3

Brookvista PtyLltd v Meloni [2009] WASCA 180

C H Leaman Investments Pty Ltd v Tuesday Enterprises Pty Ltd as trustee for The Steele Investment Trust [2022] WASC 447 (S)

Cing International Pty Ltd v Victory Hill Pty Ltd (Unreported, WASC, Library No 980283, 27 May 1998)

City of Bayswater v Viva Energy Australia Pty Ltd [No 2] [2022] WASC 384 (S)

CMA Contracting Pty Ltd v John Holland Pty Ltd [2011] WASC 249

Conway Cook v Town of Kwinana [2001] WASC 37

Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400

Gatti v Davies [2000] WASC 190

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2020] WASC 40 (S)

1. On 11 January 2023 I published reasons in this matter, granting the defendants' application that the matter be transferred to the Supreme Court of Victoria pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (WA) (Cross Vesting Act).[14]
2. Upon publication of those reasons, the parties filed competing minutes of orders to give effect to the judgment. On 18 January 2023, the defendants filed a minute seeking orders that the matter be transferred, and an order that 'the plaintiff is to pay the defendants' costs of and incidental to the defendants' summons dated 31 October 2022, to be taxed if not agreed.' That same day, the plaintiff filed a minute of proposed orders that sought, among other things, a stay of the transfer pending a proposed mediation conference, and potentially to give the plaintiff an opportunity to appeal against my decision. The plaintiff also foreshadowed bringing his own application to have the matter transferred from this court to the Federal Court of Australia.
3. I heard from the parties in respect of both of those issues on 28 February 2023. At that hearing, senior counsel for the plaintiff explained that it had been conceded on 20 February 2023 that the plaintiff did not have a right of appeal by virtue of s 13 of the Cross Vesting Act. Notwithstanding that issue falling away, senior counsel for the plaintiff pressed for a stay of the transfer so that the parties could consider mediation and so that the plaintiff could potentially bring an application that the matter be transferred to the Federal Court of Australia, rather than the Supreme Court of Victoria. Senior counsel submitted that if immediate orders were made for the transfer, then this court would become functus, and the plaintiff would lose certain opportunities in respect of the further conduct of the matter.
4. In addition, senior counsel for the plaintiff submitted that if this court made an order for costs at the same time as making an order transferring the proceedings to Victoria, then the costs may have to be taxed in Victoria.
5. Senior counsel for the defendants resisted the application for a stay. Relevantly to this application, senior counsel for the defendants submitted that the 'orthodox' orders, being costs to follow the event and to be taxed if not agreed, were routinely made on transfer applications and were able to be made in this instance.[15] Indeed senior counsel pressed for orders in the terms of the defendants' minute, emphasising that the form of the order, that is that costs be taxed if not agreed, meant that the costs should be taxed in this court.[16]
6. At the conclusion of that hearing, I determined that I would adjourn the making of final orders until 12.00 pm on 2 March 2023 to allow the plaintiff's lawyers to take instructions, at which point I would make orders in the terms sought by the defendants transferring the matter to the Supreme Court of Victoria, and importantly, ordering that the plaintiff pay the defendants' costs of the transfer application to be taxed if not agreed.[17]
7. At 11.06 am on 2 March 2023, the plaintiff filed a Notice of Discontinuance and the plaintiff's solicitors emailed a copy of that Notice to the court. In that email, the plaintiff's solicitors contended that 'the Court may still make orders in terms of paragraph 2 of the defendants' minute and paragraphs 4 to 6 of the plaintiff's Minute of Proposed Orders.' Those orders included an order that the plaintiff pay the defendants' costs, and orders related to the confidentiality of particular affidavits filed in the matter. The parties thereby commenced an exchange of correspondence. In one email to the court, the defendants' solicitors wrote as follows:

If the Notice of Discontinuance provided by the plaintiff earlier today is considered valid and in force then, in our view, the proceedings are at an end and the Court would not have any power to make the orders proposed by his Honour at the hearing on 28 February 2023.

[...] Accordingly we propose, subject to the views of the plaintiff and his Honour, that the Notice of Discontinuance provided by the plaintiff earlier today be treated by the parties and the Court as withdrawn while the Court makes the orders proposed by his Honour ...

1. In light of the competing positions adopted by the parties, I listed the matter for hearing on 3 March 2023 to give the parties an opportunity to raise any further issues, and to deliver brief oral reasons in relation to the final orders. At that hearing, I gave counsel the opportunity to make any further submissions in addition to what had been communicated to the court.[18] No further submissions were made, and I determined that the Notice of Discontinuance was effective. I also made the following observations as to costs:[19]

In my view, it therefore follows that the proceeding has been discontinued and the defendants are entitled to the costs of the action. No order is required in relation to costs, because that outcome follows from the operation of the rule.

1. The only orders that were made on 3 March were to vary the confidentiality regime in place. That is, I did not make the orders pressed for by the defendants because the plaintiff's discontinuance had rendered the orders for transfer unnecessary, and the costs consequences would flow from the Rules of the Supreme Court 1971 (WA) in substantially the same way as the costs orders proposed by the defendants.
2. From correspondence annexed to the plaintiff's affidavit in this application, it appears that the defendants' solicitors first raised the application for special costs with the plaintiff's lawyers on 14 April 2023.
3. On 3 May 2023, the defendants filed the application for special costs orders. The application was supported by an affidavit of Ms Janet Whiting sworn 2 May 2023.
4. On 30 May 2023, my associate sent an email to the parties in the following terms:

His Honour is considering whether it would be more efficient for the court to fix the costs of the action pursuant to O 66 r 51, and has asked for the parties to comment as to whether that is a preferable course.

In order for the court to fix costs, the parties would be required to file submissions and affidavits so that the court could satisfy itself of an appropriate sum.

The parties are invited to comment on this course by 4.00pm on Thursday, 1 June 2023.

1. The defendants indicated that they would be content for costs to be fixed. Counsel for the plaintiff, however, suggested that the application for special costs should be determined after the exchange of material and oral submissions, and the question of whether to fix costs should be dealt with only after the application for special costs had been determined.
2. Orders were subsequently made for the filing of further evidence and submissions, and the special costs application was listed for hearing on 15 August 2023.

1. The defendants have sought orders that the plaintiff pay the defendants' costs of the proceeding to be taxed if not agreed without regard to the limits imposed by:

(a) The maximum allowable hourly and daily rates for legal practitioners fixed under Table A of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (Scale); and
>
> (b) The maximum allowances for time, number of legal practitioners and total costs or by the classification of the experience of the fee earner for each of the relevant items of Table B of the scale.

2. Alternatively, the defendants submitted that the court should fix costs in the amount of $321,562.75. The plaintiff opposed the fixing of costs, and further rejected the submission that the defendants should be granted special costs orders.
3. The parties have raised three issues in respect of this application. First, whether the court has the power to make a special costs or fixed costs order when the proceedings are discontinued pursuant to O 23 r 2. Secondly, if the court does have the power to grant such an application, whether the defendants' application for special or fixed costs is out of time by operation of O 66 r 51(3). Finally, if the court has the power to make the application and is satisfied that the application was made within time or that time should be extended, whether the defendants are entitled in the circumstances, including by any unusual difficulty, complexity or importance of the matter, to an uplift of the Scale in respect of their costs.

1. Before turning to the three issues identified above, it is necessary to set out the statutory provisions relevant to this application.
2. The broad discretion of the court to award costs is contained in s 37(1) of the Supreme Court Act 1935 (WA), which states:

Subject to the provisions of this Act and to the rules of court [...] the costs of and incidental to all proceedings in the Supreme Court [...] shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom or out of what estate, fund, or property and to what extent such costs are to be paid.

1. The Rules provide for the ways in which that discretion may, or in some cases must, be exercised. Order 23 r 2 of the Rules relevantly states that:

(1) The plaintiff may, at any time before receipt of the defendant's defence, or after the receipt thereof before taking any other step in the action, by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant's costs of the action, or, if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.

(2) The costs referred to in subrule (1) shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action.

1. The power to award costs is discretionary. Order 66 r 1(1) of the Rules provides that:

(1) Subject to the express provisions of any statute and of these rules the costs of and incidental to all proceedings including the administration of estates and trusts shall be in the discretion of the Court but, without limiting the general discretion conferred on the Court by the Act, and subject to this Order, the Court will generally order that the successful party to any action or matter recover his costs.

1. The court's power to make a special costs order arises pursuant to O 66 r 51 of the Rules. That rule states:

(1) In a particular action or matter the Court may, instead of making an order for taxation of costs -

(a) make an order fixing the costs of a party to the action or matter in accordance with this order; or

(b) make an order under the Legal Profession Uniform Law Application Act 2022 section 141(3).

(2) The court may make an order under subrule (1) on its own motion or on an application by a party.

(3) A party seeking an order under subrule (1)(b) must apply for the order within -

(a) 30 days after the date of the relevant judgment; or

(b) another time to be fixed by the court.

1. Section 141(3) of the Uniform Law is the equivalent of s 280 of the now‑repealed Legal Profession Act 2008 (WA)[20] and provides as follows:

(1) The following are regulated by an applicable costs determination -

(a) the taxation of bills of law practices;

(b) any other aspect of the costs charged by law practices.

(a) any costs agreement made in accordance with the Legal Profession Uniform Law (WA) Part 4.3 Division 4 or the corresponding provision of a corresponding law; and

(b) section 146; and

(c) the Legal Aid Commission Act 1976 section 14. Note for this subsection: See the Civil Liability Act 2002 section 15L and the Motor Vehicle (Third Party Insurance) Act 1943 section 27A, which affect costs under particular agreements between a law practice and client.

(3) Despite subsection (1), if a court or judicial officer 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, the court or officer may do any or all of the following -

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

(4) Subsection (1) does not limit the power of a court, a judicial officer or a taxing officer of a court to determine in any particular case before that court, judicial officer or taxing officer the amount of costs allowed.

1. The defendants filed an affidavit of a Ms Janet Whiting, a solicitor at Gilbert + Tobin, sworn 2 May 2023 in support of their application for special costs. That affidavit contained a summary of the maximum costs recoverable by the defendants by reference to the Western Australian Scale, which the defendants calculated as approximately $86,152. Ms Whiting also deposed to the quantum of the actual costs incurred, being in excess of $413,000. Ms Whiting went on to depose to the experience of the counsel and senior counsel briefed in respect of the application, and the reasons for the engagement of Victorian solicitors and counsel.
2. Ms Whiting's affidavit also put into evidence various matters said to go to the unusual difficulty, importance or complexity of the cross‑vesting application, including aspects of the plaintiff's conduct.
3. I note that elements of Ms Whiting's affidavit have been subject to some criticism by senior counsel for the plaintiff. In particular, senior counsel for the plaintiff drew the court's attention to the lack of any Bill of Costs in any of the defendants' material in support of their application. Rather, the defendants have provided a table divided into 'phases' of work, defined by time, rather than by the relevant Scale items. The work within each 'phase' is not itemised. Additionally, counsel for the plaintiff criticised the decision for the defendants to seek a general uplift of the Scale rates, rather than an uplift for particular items. I will return to this issue later in these reasons.
4. The defendants also filed an affidavit of Ms Jessica Edmeades, affirmed on 27 July 2023. That affidavit outlined the progress of the matter in the months since the plaintiff's discontinuance, including the commencement of similar defamation proceedings in the Federal Court in June of this year. Ms Edmeades' affidavit annexed various correspondence between the parties' solicitors. It is not immediately apparent to me how that affidavit assists in the determination of the costs application that is presently before me.
5. The plaintiff filed an affidavit which he swore on 3 July 2023. In that affidavit, the plaintiff deposed to his decision to discontinue the proceedings, and attached various correspondence between the parties' solicitors, and correspondence with the court.

Whether the court has the power to make special costs or fixed costs orders after a matter has been discontinued

1. As outlined above, on 2 March 2023, the plaintiff discontinued his action. No defence had been filed in the action, and the plaintiff was therefore entitled to discontinue the proceedings without leave.
2. The plaintiff has submitted that the words of O 23 r 2(2), that the costs of the discontinued action 'shall be taxed', are mandatory. That is, the court must make an order that the plaintiff pay the defendants' costs of the action, and that such costs must be taxed. In substance, the plaintiff submitted that the effect of this provision is to deprive the court of the power to make orders pursuant to s 141(3) of the Uniform Law.
3. Further, senior counsel for the plaintiff submitted that at the hearing on 3 March 2023, the effect of my ruling that no costs orders needed to be made was to leave the issue of costs to the operation of the Rules. That is, the court has already exercised its discretion not to make a special costs order, and costs of the matter shall therefore be taxed in accordance with O 23 r 2(2).[21]
4. Counsel for the defendants submitted that O 23 operated only to fetter the court's discretion not to make a costs order in favour of the defendant/s.[22] The discretion is not otherwise fettered. That is, O 23 r 2 ensures that the costs of a discontinued action are paid by the discontinuing party to the defendant/s. Counsel for the defendants relied upon decisions of this court in which special, or indemnity, costs were ordered against a discontinuing plaintiff.[23]
5. On its proper construction, I do not consider that O 23 r 2 overrides the discretion of the court to make orders pursuant to s 141(3) of the Uniform law. In my respectful view, it must be the case that the court retains its discretion to make such orders. Where, for example, a hypothetical plaintiff brings frivolous or wholly unjustified litigation and puts the defendant to cost only to discontinue the proceedings, the court must be entitled to award indemnity costs against that plaintiff. Alternatively, as this matter plainly illustrates, proceedings may be beset with substantive interlocutory disputes prior to the closing of the pleadings. It would be a curious consequence of the Rules if the choice of the plaintiff to discontinue the action could deprive the court of its ability to indemnify the defendant for the costs of those applications.
6. I am therefore not satisfied that O 23 deprives the court of the discretion to grant a special costs order, or to fix the defendants' costs. Even so, I still must be persuaded to exercise that power in the defendants' favour.

Whether the defendants' application for special costs was brought out of time

1. It is apparent from the history of the matter set out above that the first time special costs were raised with the plaintiff was 14 April 2023, and the application was filed with the court on 3 May 2023. The defendants did not apply for special costs when asked for their proposed orders in respect of the reasons published on 11 January 2023, and indeed sought and pressed for orders in the usual terms; that is that the plaintiff pay costs to be taxed if not agreed. An order in those terms evidently contemplates costs being paid on a party party basis. The defendants did not foreshadow an application for special costs at the hearing on 28 February 2023. The defendants did not raise an issue of special costs when the Notice of Discontinuance was filed on 2 March 2023, nor at the hearing of the matter the following day. By all accounts, at least in this court, the matter was put to bed on 3 March 2023, and no further action was taken until the filing of a special costs application two months later.
2. It has been submitted on behalf of the plaintiff that the delay is fatal to the defendants' application by operation of the 30-day deadline in O 66 r 51(3).
3. Counsel for the defendants submitted that the 30-day deadline does not apply in this case as the consequence of the plaintiff's discontinuance was that there was no 'judgment' in the matter. In any event, counsel for the defendants submitted that the court should exercise its discretion to extend time.
4. The issue that emerges in this regard is whether there was a 'judgment' for the purpose of O 66 r 51(3). The court published reasons on 11 January 2023. However, due to the matters outlined at [7] - [14] above, orders were never made to give effect to those reasons. Instead, on 2 March, the matter was discontinued. Though I determined in Bartlett v Roffey[24] that the defendants' cross-vesting application should be granted, and the proceedings should be transferred to the Supreme Court of Victoria, in fact that never happened, and no such orders were made.
5. Circumstances in which there is no easily identifiable 'judgment' for the purposes of O 66 r 51 were considered in the decision of Wheeler J in Gatti v Davies.[25] In that decision, the parties settled the proceedings on 30 April 1999, and the defendant applied for a special costs order as between solicitor and client by chamber summons filed 31 March 2000. Her Honour made the following comments that have application in this matter:[26]

Both parties argued in relation to delay on the basis that the application for a special costs order should have been made by the practitioner within 30 days pursuant to O 66 r 51. This assumption begs the question 'within 30 days of what?' It appears to have been assumed that the application should have been made within 30 days of the settlement agreement which determined that the party charged would be liable for his own costs. In my view, O 66 r 51 is not well adapted to the situation where there is apparently, as in this case, no court order or other step taken in court by reference to which a 30-day period may be calculated, and it is unlikely that it was intended to apply to the type of application before me. However, it appears to me that it is an appropriate period to apply by way of analogy, assuming the jurisdiction to make such an order exists, as a reasonable time within which an application of this sort ought to be made. (Emphasis added)

1. I respectfully adopt her Honour's view that while O 66 r 51 does not appear well-suited to a situation where a matter is completed by reason other than a final judgment, such as by settlement or by discontinuance, the Rules do suggest that there is an appropriate period of time in which an application for special costs should be made.
2. I therefore do not consider it necessary to determine whether the discontinuance, or indeed some other stage of the proceedings, constitutes a 'judgment' for the purposes of the Rules. It appears that 30 days from the date of discontinuance would be an analogous time limit to impose on the bringing of a special costs application in this matter.
3. In Cockburn Cement Ltd v Minister for Environment (WA),[27] Edelman J considered the purpose of that 30-day time limit in circumstances where an application for special costs was brought after the judgment, including ordinary costs orders, had been perfected and extracted. Though O 66 r 51 was couched in different terms at the time of that decision, the 30-day deadline for applying for special costs was still relevant. Edelman J made the following observation:[28]

Em Heenan J noted in Geneva Finance Ltd that the purpose of O 66 r 51 is to remove the injustice which can arise because '[i]t is not at all uncommon that the need for special orders is sometimes overlooked when judgment is entered'. The rule balances the need for finality against a concern to protect litigants from the prejudice which can arise a commonly overlooked matter. The legislative compromise is to allow an application for special costs orders for 30 days even if other orders have been perfected and extracted. This is the effect of the fiction of deeming.

1. In Esther Investments Pty Ltd v Markalinga Pty Ltd, his Honour Malcolm CJ dismissed an application for special costs made nearly three and a half years after final judgment was handed down.[29] Malcolm CJ in that decision observed:[30]

There must come a point where the interests of finality of litigation militate against the exercise of discretion in favour of a party whose solicitors or counsel have failed by inadvertence to make an appropriate application at the appropriate time.

It has been urged upon me by counsel for the defendant that the court should be reluctant to visit upon the litigant the consequences of inadvertence by his solicitors or counsel. So much may be accepted, but there must be in the interests of the administration of justice and finality in litigation some limit to the exercise of that discretion which is by way of an indulgence of the court. If a litigant suffers loss of damage as a result of inadvertence amounting to negligence, he has a remedy.

In my view, the circumstances of this case are such that it would be a wrong exercise of the discretion which I undoubtedly have to exercise it in favour of the defendant in this case. I am not persuaded that it is necessary to show delay coupled with prejudice in the sense in which that was demonstrated in Tak Ming Co Ltd v Yee Sand Metal Supplies Co (supra) before the court would decline to exercise its discretion. [...]

In any event, there is an interest in the finality of litigation, and a party is entitled to order its affairs on the basis of a judgment regularly obtained, entered and perfected in the court. That has been the case in this instance for something over three years. If I be wrong in my view and it is necessary to show some degree of prejudice, the fact that, if an order were made, the state of affairs created by the judgment which has been left to stand for so long would itself constitute sufficient prejudice to make it inexpedient or inequitable to make an order.

1. In Conway-Cook v Town of Kwinana,[31] judgment was delivered in November 1999, at which point counsel for the plaintiff foreshadowed a special costs application and sought that the final orders include liberty to apply with respect to costs. That liberty was granted, and judgment was finalised in December 1999, including costs orders. By a letter dated 30 October 2000, counsel for the plaintiff sought orders for special costs. Scott J made the following observations:[32]

The first question for consideration however, is the delay between the date of entry of judgment and the letter of 30 October 2000, which purported to activate the liberty to apply. In that respect, as I have already said, an appeal was lodged by the defendant and a notice of cross-contention by the plaintiff following the judgment. In my opinion, however, neither of those two steps in any way prevented the plaintiff from pursuing any special order for costs on his behalf. While it may well be, that had the defendant's appeal been successful, the costs order would likely have been reversed, that was not a matter which prevented the plaintiff from seeking a special costs order at any time following the judgment. The fact of the matter is that no action was taken by the plaintiff towards that end and I am told from the bar table by counsel for the defendant that the defendant has been advised as to its potential liability for costs and has conducted its finances based upon that advice.

1. Scott J went on to observe that:[33]

In my opinion the plaintiff's delay in bringing this application is a factor which militates against the court exercising its discretion in his favour. The plaintiff's delay has occasioned difficulties for the defendant in that the defendant has been advised of the likely liability for costs and acted accordingly.

1. The following principles emerge in relation to delay and the time limit imposed by the rules:

(a) The purpose of the 30-day time limit is to overcome any prejudice to the successful party who does not consider, or is not given the opportunity to consider, costs orders in the final judgment;
>
> (b) That time limit balances potential prejudice to the successful party against the interest in the finality of litigation;
>
> (c) Where there is no final judgment or order of the court, there is nevertheless an analogous period of time that the court can consider in which the application for special costs should be made;
>
> (d) Delay will militate against the granting of a special costs application; and
>
> (e) It may not be necessary to demonstrate prejudice to the other side in addition to delay, but prejudice to the unsuccessful party caused by the delay will weigh against the making of special costs orders.

2. The present matter involves a delay of nearly five months from the provision of reasons to the parties, and two months from the plaintiff's notice of discontinuance. That is by no means a delay that can be described as extraordinary. However, there are particular factors that compound the issue of delay in this matter.
3. First, I would observe that the defendants were given ample opportunity to consider and seek orders as to costs, both in writing and then at two separate hearings after the publication of my reasons. Costs were a live issue between the parties for some six weeks after the provision of reasons. The parties each made written and oral submissions about the final orders sought on the matter, including costs orders. Although ample opportunity was provided, and although costs orders were clearly in the defendants' contemplation, the defendants never indicated that special costs orders would be sought, and instead at all times positively sought costs orders in the ordinary terms. As I have observed above, the issue of costs and the form of the orders to be made were the subject of a minute of proposed orders,[34] written submissions,[35] and fairly extensive oral submissions at the hearing on 28 February 2023.
4. In written submissions on this application, counsel for the defendants said that:[36]

[T]here was no occasion for the Defendants to make an application for a special costs order in respect of the Proceeding prior to the discontinuance. The Plaintiff attempted to stay the judgment of the Transfer Application, however such orders were not made before the Plaintiff discontinued his claim altogether (which was done without any conferral, let alone as to the consequential costs orders). Had the Court made the foreshadowed orders in respect of the transfer of the Proceeding, the Defendants would have sought a special costs order at that time.

1. I do not accept that submission. It appears to me to mean that the defendants would have made, or were considering making, a special costs application in respect of the orders that the court foreshadowed on 28 February 2023. That is notwithstanding the opportunities given to the parties prior to that hearing to seek, and indeed make submissions about, the appropriate costs orders. In any event, the plaintiff discontinued the proceedings, and the defendants waited an additional two months to formally make the application for special costs. That is not an explanation that ameliorates the significance of the delay, and the defendants have provided no additional evidence to explain the delay.
2. Secondly, the character of these proceedings is such that the prejudice to the plaintiff in respect of the delay is tolerably clear. Senior counsel for the plaintiff raised with the court the possibility that the proceedings would be transferred to the Federal Court by his written submissions dated 27 February 2023. Defamation matters attract a statute of limitations of just 12 months and must necessarily be handled quickly. There is an interest in ensuring that unsuccessful parties cannot be surprised by an application that could substantially increase their liability for costs, long after they considered the matter to have concluded, and where they have possibly made expensive decisions in respect of the further conduct of their dispute.
3. While the ultimate purpose of a costs order is (partially) to indemnify a successful party against the expenses of litigation, costs serve several secondary functions. A large costs order may deter an unsuccessful litigant from relitigating a matter and may be a powerful tool in settlement negotiations. For the defendants to seek costs that are nearly four times the amount allowable under the scale, two months after the plaintiff by his own conduct effectively ended proceedings, is evidently prejudicial.
4. For those reasons, I am satisfied that there has been a delay in bringing the application for special costs, and that that delay weighs heavily against the granting of the application.
5. In the circumstances I am not persuaded that the court should exercise its discretion to extend the time for the defendants to bring their application.

Observations on the application for special and fixed costs

1. As I have concluded that the delay of the defendants in bringing their application precludes the exercise of the court's discretion in their favour, it is not strictly necessary to consider whether the discretion would otherwise have been exercised to grant the orders sought by the defendants. However, I should observe that in any event, there appears to me to be difficulties that beset the defendants' application.
2. The power of the court to uplift the limits imposed by the Scale is found in s 141(3) of the Uniform Law. That section is to be applied in the same manner as the now-repealed s 280 of the Legal Profession Act 2008 (WA).[37] In that respect, where a special costs order is sought, the court is required to answer the following two questions:

(a) Are the maximum amounts allowable under the relevant items in the applicable costs determination inadequate in the sense that there is a fairly arguable case that, on taxation, costs may properly be allowed in an amount greater than the maximum amounts?
>
> (b) Does the inadequacy of the costs allowable under the costs determination arise because of the unusual difficulty, complexity or importance of the matter?

3. The essential requirements of that test were set out in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2]:

Before such a power will be exercised, the court must form an opinion that has two components. First, the court must form the view that the maximum amount allowable under the relevant scale item is inadequate in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount which is greater than the limit which would be imposed by the relevant cost determination. Secondly, the court must also form the opinion that the inadequacy of the costs allowable under a costs determination arises because of the 'unusual difficulty, complexity or importance of the matter'. Issues of the kind which arise are addressed as matters of impression, rather than as matters of detailed evaluation, precision or science.

For the purposes of exercising the powers conferred by s 280(2) of the [Legal Profession Act], it will not ordinarily be necessary for the court to determine what amount should be allowed on taxation, but only whether there is a fairly arguable case that a greater amount should be allowed than that which is allowable under the relevant determination ...

A fairly arguable case to that effect will not be established merely because a party incurred greater costs than those allowable under the relevant determination. However, depending on the particular case and all the circumstances, the fact that a party has applied significantly greater legal resources to each step in the litigation than those for which allowance is made under items of the relevant determinations, when viewed in the context of the difficulty, complexity or importance of the matter, may sustain the conclusion that there is a fairly arguable case that each of the items identified is inadequate (and thereby the amount of costs allowable in respect of the matter is inadequate) because of the unusual difficulty, complexity or importance of the matter.

The word 'unusual' in s 280(2) of the [Legal Profession Act] qualifies only the 'difficulty' of the matter, and not its 'complexity' or 'importance'. The word 'unusual' in this context means unusual having regard to what one might describe as the usual run of civil cases determined in the court. That essentially involves the making of a value judgment by the court, having regard to the court's experience of the particular case when compared with the usual run of cases.

1. Although a special costs order is usually made on completion of the entire proceedings, there is no limitation on the court's discretion to order special costs in respect of an interlocutory application. The difficulty, complexity or importance of a matter may be assessable even at an early stage.[38]
2. Counsel for the defendants submitted that the most that could be recovered under the Scale is approximately $85,000, when the actual costs incurred by the defendants is said to be $413,869.94. Counsel for the defendants submitted that if the court is to fix costs, it should fix a sum of $321,562.75. This is calculated by reference to the costs of senior counsel and one junior counsel (but not the third counsel briefed by the defendants) and a discount of 25% applied to the fees of some of the solicitors. If the court does not fix costs, then the defendants submitted that the Scale rates for counsel and for the proceedings generally should be uplifted. Counsel for the defendants submitted various justifications for the amount of work done and the choice to brief senior counsel with defamation expertise.
3. It is not unusual that the costs actually incurred by a party to litigation exceed the scale limits; in fact, that is often, if not ordinarily the case. That a party incurred costs that exceeded, or even significantly exceeded, the Scale limits is not of itself sufficient to overcome the first limb of the test for special costs. The party seeking special costs orders must be able to demonstrate a nexus between the costs incurred, and the unusual difficulty, complexity or importance of the case.
4. As I flagged at [26] above, the evidence provided by the defendants to justify the costs sought has been criticised by senior counsel for the plaintiff. Those criticisms include the lack of specificity in respect of the Scale items for which the uplift is sought, the calculation of the quantum of work by reference to time periods, rather than by Scale item, and more generally, criticism of the 'entirely disproportionate' quantum sought.
5. At first glance, I would respectfully agree with senior counsel for the plaintiff that the costs incurred by the defendants appear to be disproportionate to the substantive matters to which those costs relate. As the case managing judicial officer, I have had conduct over the matter since the writ of summons was filed in September 2022, and my experience of the matter does not appear to justify a costs order of over $320,000, and certainly not in excess of $410,000.
6. As I set out at [15], the orders sought by the defendants do not provide for any particular limits to be lifted. Rather, the defendants seek an uplift as to all counsel fees and all items of the Scale. However, in written submissions counsel for the defendants explained that:[39]

The Defendants further seek an order that the maximum allowances for time, number of legal practitioners and total costs or by the classification of the experience of the fee earner be uplifted for each of the relevant items of Table B of the Scale (being primarily items 10, 19 and 27).

1. This brings into focus some of the deficiencies of the defendants' application. While costs orders made by a judge of this court are to be made on the basis of overall impression, often described as a 'broad brush' approach,[40] the submissions in support of the defendants' application do not, in my view, assist the court to understand why a general uplift across all Scale items is justified. In its current form, it is not possible for the court to see, even as an estimate, the quantum or estimated percentage of the costs incurred by the defendants in respect of items 10 (proceedings in chambers), 19 (preparation of case) and 27 (pretrial, mediation, conferrals or other conferences).
2. Additionally, the defendants have sought in at least some limited way to justify the large quantum sought by reference to irrelevant material. The defendants annexed to the affidavit of Janet Whiting made in support of this application the limits applicable to costs incurred pursuant to the Supreme Court (General Civil Procedure) Rules 2015 (Victoria) and submitted that '[r]elevantly, these limits are significantly higher than those set out in the Scale.'[41] That is not a reason to award special costs in Western Australia, irrespective of whether it was reasonable for the defendants to engage Victorian counsel. The Scale in Western Australia applies to all matters conducted in this court, regardless of where counsel are based.
3. Further, counsel for the defendants submitted that the plaintiff's choice to commence proceedings in this court put the defendants to 'substantial' expense. In summary, counsel for the defendants submitted that because I determined on the transfer application that Victoria was the natural forum for the determination of the matter, the defendants were forced to incur unnecessary costs in making the transfer application. In my view, that is not an argument to support a special costs application. The fact that the defendants were successful in making a transfer application merely supports the submission that the plaintiff should pay the defendants' costs - a matter that is not in issue, and is nevertheless provided for by O 23 r 2.
4. Overall, the material provided by the defendants in support of their application does not provide a sufficient basis on which the court could be satisfied of the nexus between the costs actually incurred and the unusual difficulty, complexity or importance of the case.
5. In all the circumstances, even if I were prepared to excuse the delay in bringing the application, there would remain some difficulty with finding that there was a sufficient foundation for special or fixed costs.

1. I am therefore of the view that the defendants' application was made with undue delay and ought not to be granted. I am not persuaded that the court should exercise its discretion to grant special costs orders or to fix costs, having regard to:

(a) the lack of any special costs application, or indeed any suggestion of a special costs application, notwithstanding the defendants' opportunity to make such an application between January and March 2023;
>
> (b) the defendants' decision only to seek ordinary costs orders, and to press for those orders in written and oral submissions in February 2023;
>
> (c) the lack of sufficient evidence provided by the defendants to explain or justify the delay in making the special costs application; and
>
> (d) the various issues identified in respect of the evidence provided to support the quantum of costs incurred by the defendants.

2. I will therefore order that the plaintiff pay the defendants' costs of the proceedings, to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] Defendant's Submissions (11 December 2022), [1.3].

[3] BHP Billiton Ltd v Schultz [2004] HCA 61 [20].

[4] BHP Billiton Ltd v Schultz [2004] HCA 61 [13].

[5] Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 713 ‑ 714.

[6] BHP Billiton Ltd v Schultz [2004] HCA 61 [14].

[7] BHP Billiton Ltd v Schultz [2004] HCA 61 [18] ‑ [19].

[8] BHP Billiton Ltd v Schultz [2004] HCA 61 [26].

[9] Smith v Lucht [2016] QCA 267; [2017] 2 Qd R 489 [63]; Szanto v Melville [2011] VSC 574 [162].

[10] Defamation Act 2005 (WA) s 11(2).

[11] Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 725 and the Explanatory Memorandum to the New South Wales Bill set out therein.

[12] BHP Billiton Ltd v Schultz [2004] HCA 61 [26].

[13] Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 727.

[14] Bartlett v Roffey [2023] WASC 3.

[16] Transcript, 28 February 2023, 205 - 206.

[20] City of Bayswater v Viva Energy Australia Pty Ltd [No 2] [2022] WASC 384 (S) [25] and C H Leaman Investments Pty Ltd v Tuesday Enterprises Pty Ltd as trustee for The Steele Investment Trust [2022] WASC 447 (S) [9].

[21] Plaintiff's Submissions [13] - [14].

[22] Defendant's responsive submissions in reply to plaintiff's submissions [4].

[23] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2020] WASC 40 (S); Cing International Pty Ltd v Victory Hill Pty Ltd (Unreported, WASC, Library No 980283, 27 May 1998) (Master Bredmeyer ).

[24] Bartlett v Roffey [2023] WASC 3.

[25] Gatti v Davies [2000] WASC 190.

[26] Gatti v Davies [2000] WASC 190 [11].

[27] Cockburn Cement Ltd v Minister for Environment (WA) [2011] WASC 20 (S).

[28] Cockburn Cement Ltd v Minister for Environment (WA) [2011] WASC 20 (S) [47].

[29] Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400.

[30] Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, 409.

[31] Conway Cook v Town of Kwinana [2001] WASC 37.

[32] Conway Cook v Town of Kwinana [2001] WASC 37 [15].

[33] Conway Cook v Town of Kwinana [2001] WASC 37 [20].

[34] Draft Minute of Proposed Order (17 January 2023).

[35] Defendants' Submissions Appropriate Orders (24 February 2023).

[36] Defendants' Submissions in Support of Application for Special Costs Order (17 July 2023) [21].

[37] City of Bayswater v Viva Energy Australia Pty Ltd [No 2] [2022] WASC 384 (S) [25] and C H Leaman Investments Pty Ltd v Tuesday Enterprises Pty Ltd as trustee for The Steele Investment Trust [2022] WASC 447 (S) [9].

[38] CMA Contracting Pty Ltd v John Holland Pty Ltd [2011] WASC 249 [3].

[39] Defendants' Submissions in Support of Application for Special Costs Order (17 July 2023) [26].

[40] Brookvista PtyLtd v Meloni [2009] WASCA 180 [26].

[41] Defendants' Submissions in Support of Application for Special Costs Order (17 July 2023) [41].