Butcher v Craig

[I]f 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 all or any 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.

1. The principles concerning special costs orders under s 280(2) of the Legal Profession Act are well settled.[295] Before exercising the power under s 280, the court must form an opinion which has two components. First, the court must determine that the amount of costs allowable under the relevant legal costs determination is inadequate. Second, the court must conclude that the inadequacy arises because of the unusual difficulty, complexity or importance of the matter.
2. It is not necessary for the court to find that the costs allowable under the relevant determination are inadequate; it is sufficient if the court considers it is fairly arguable that a greater amount should be allowed than that allowable under the relevant determination.[296]
3. The exercise of determining whether the amount of costs allowable is inadequate is more straightforward where the question relates to the time reasonably spent compared with that allowed. It is more difficult where the question is whether the costs allowable under the determination are not adequate because the prescribed hourly rate would result in inadequate compensation for the successful party.[297]
4. The adjective 'unusual' qualifies only the 'difficulty' of the matter, and not its 'complexity' or 'importance'. In the context of s 280 of the Legal Profession Act, this means having regard to the 'usual run of civil cases determined in the court'.[298] This 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.
5. The reference to 'importance' allows the court to have regard to the significance of the issues that arose in the litigation. Significance can arise either because of the significance of the issues to the parties, or because of the significance of the issues to other prospective parties, or to the public or community generally.[299]

1. On 28 April 2020, I ordered that the parties file and serve a memorandum setting out that party's costs. The costs of each party in respect of the proceedings were:

Maximum costs under 2018 Costs Determination[300]

1. I note that Chris' estate, apart from the Sorrento Property, has already been distributed. However, if the full amount of the parties' costs were paid from the estate, the residue of Chris' estate would still be more than $2.2 million.
2. The parties were in agreement that I should fix the costs of the proceedings to prevent further disputes between the parties. It is the usual practice to direct that issues regarding the quantum of costs be determined by a taxing officer following taxation, with the exception of costs of interlocutory applications. The advantages and disadvantages of this practice are summarised by Martin CJ in D & Z Constructions Pty Ltd v IHI Corporation.[302]
3. In this case, having regard to the relative simplicity of the costs sought by each of the parties, the fact that the parties have exchanged submissions in relation the matter and the advantages from my familiarity with the issues in the case in assessing the amounts claimed, I have concluded that the appropriate course is for me to fix the amount of the parties' costs.

1. The plaintiff contended that his costs should be paid by the defendants without reference to the limits provided in the 2018 Costs Determination and fixed in the sum of $130,791.15, being the amount paid by the plaintiff to his solicitors. In support of this submission, the plaintiff submitted that a substantial issue at trial was whether the plaintiff and the deceased were in a de facto relationship, on which the plaintiff was entirely successful.
2. The plaintiff contended that these proceedings were both unusually difficult and complex as well as important to the plaintiff. In support of this submission, the plaintiff referred to the length of the opening and closing submissions, the fact that substantial discovery was provided by the parties which is not usual in claims under the Act, and the length of the trial.[303]
3. The plaintiff submits that the maximum amounts allowable under Table B of the 2018 Costs Determination be lifted to reflect the significant work that was done. In addition, the plaintiff seeks additional allowances for costs for discovery, inspection and the preparation of witness statements.

1. The defendants contended that the costs of both parties should be fixed at $75,000 and paid from the proceeds of the Sorrento Property. The defendants submitted that the plaintiff was not entirely successful at trial. While he succeeded in his claim that he was the de facto partner of the deceased, he did not obtain orders in terms of the originating process for the transfer of the entirety of the deceased's share in the Sorrento Property to him and repayment of a loan of $149,000.[304]
2. The defendants submitted that no special costs order ought to be made as these proceedings were not unusual or complex. The defendants contended that any complexity was due to separate proceedings that had been commenced by the plaintiff.
3. The defendant specifically objected to any allowance being made for the plaintiff's costs of the preparation of witness statements and discovery. This was on the basis that these costs were incurred in CIV 1021 of 2017, which was discontinued by the plaintiff. In support of this submission, the defendants provided me with an unpublished judgement of Registrar Dixon delivered on 6 November 2018.[305]

1. A significant issue at trial was whether the plaintiff and the deceased were in a de facto relationship at the time of the deceased's death, which was denied by the defendants. The plaintiff was successful on this issue. I accept that the plaintiff was not entirely successful in the proceedings as he did not obtain an order that the whole of the deceased's interest in the Sorrento Property be transferred to him or the loan be repaid. However, in my view, most of the time at trial (both in submissions and the evidence of witnesses) concerned whether the plaintiff and the deceased were in a de facto relationship at the time of her death. The remaining evidence as to the financial positions of each of the plaintiff and the second and third defendants as well as the circumstances of the loan would have been required even if the plaintiff's claim had been limited to the relief granted by the court. For this reason, it is my view that the plaintiff was successful in these proceedings and is entitled to his costs.
2. I consider that in line with the general policy of this court, these costs should be paid by the defendants. If these costs were paid out of the sale of the Sorrento Property, the plaintiff would be paying 50% of his own costs. In my view, that would not be a just outcome.
3. Turning to the question as to whether special costs orders should be made, the memorandum filed by the plaintiff's solicitors makes it clear that the amount payable under the 2018 Costs Determination would be inadequate.
4. In my view, the issues raised in these proceedings were unusually difficult and complex. The trial in this matter went for four days and a relatively large number of witnesses gave evidence. This was because the defendants contended that the plaintiff was not in a de facto relationship with the deceased at the time of her death which meant that evidence was adduced as to the plaintiff's relationship with the deceased over the length of their relationship. It was also necessary for the plaintiff to address a significant number of legal authorities.
5. I also accept that the application was important to the plaintiff in the relevant sense. I consider that the questions as to whether an allowance should be made from the estate of the deceased to the plaintiff and the nature of his relationship with the deceased at the time of her death were important to the plaintiff.
6. For these reasons, I am of the opinion that the amount of costs allowable in respect of the application by the plaintiff under the three costs determinations is inadequate because the proceedings were unusually difficult, complex and important. As a consequence, my discretion to make a costs order under s 280(2) of the Legal Profession Act is enlivened.
7. The relevant items in Table B of the 2018 Costs Determination are:

(a) Item 12 - $65,502 (for a plaintiff) - based on a 4 day hearing, 2 days preparation, an allowance of 40 hours for the preparation of the case and the attendance of an instructing solicitor at trial;

(b) Item 10(a) (application for interlocutory injunction) - $12,540.

1. In my view, the time allowed for this application under Item 12 (by reference to Item 11) of Table B of the 2018 Costs Determination is inadequate having regard to the unusual difficulty, factual complexity and importance of the matter as well as my assessment as to the amount of work which was reasonably necessary to prepare for the application.
2. The plaintiff has separately claimed costs for discovery, inspection and preparation of witness statements. I do not accept the defendants' submission that the plaintiff is not entitled to an allowance for these items. The reasons of Registrar Dixon, on a review of the taxation of costs in separate proceedings between the parties, make clear that he allowed a claim by the defendants for their costs of the witness statements in CIV 1021 of 2017 because at that stage it was unclear as to the extent the statements would be relied upon in these proceedings. This was for two reasons: first, it was not certain if this matter would go to trial, and second, the witness statements contained a significant amount of material not relevant to these proceedings. For those reasons, Registrar Dixon considered that the defendants' costs in relation to the preparation of the witness statements were properly recoverable in CIV 1021 of 2017.
3. What has since transpired is that these proceedings did go to trial and the witness statements of the plaintiff's witnesses stood as the outlines of evidence. For that reason, it is appropriate that the plaintiff's costs include the preparation of these witness statements.
4. However, this does not mean that the plaintiff is entitled to a separate allowance for these matters. In proceedings under s 7(1) of the Act, all work up to and including judgment, not included in Items 12(a) or (b) of Table B of the 2018 Costs Determination, is calculated in accordance with Item 11(a) of Table B of the 2018 Costs Determination. Similarly, under the 2014 and 2016 Costs Determinations, all work in relation to the originating summons was covered by Item 11. In my view, 'work up to and including judgment' includes the preparation of any witness statements or outlines, as well as discovery and inspection if these are required. For this reason, I do not consider that a separate allowance is payable to the plaintiff for these items.
5. In my view, it is appropriate that the maximum in Item 12(c) of Table B of the 2018 Costs Determination be lifted to reflect the work that was required to be done to prepare for a 4 day trial. In my view, this item should be lifted to $81,510 on the basis of a 4 day hearing, 2 days' preparation for trial, 90 hours' preparation and the attendance of an instructing solicitor at trial for 6 hours a day. I also consider that the maximum in Item 12(b) should be lifted to provide for the attendance at a second mediation.
6. Otherwise, I consider that the limits in Table B of the 2018 Costs Determination are appropriate for the work that was done. To reflect that the proceedings were commenced in January 2016 and subject to the 2014 Costs Determination, I consider that the maximum allowance of $7,250 should be reduced by 5% to $6,900 to reflect the difference in hourly rates that applied at that time.
7. In relation to the application for the interlocutory injunction, the records of the court reflect that this hearing went for approximately two hours. I do not consider that the maximum amount should be allowed for this and would allow an amount of $7,500.
8. I have set out in the schedule to these reasons a table setting out the specific amounts that I have allowed for each item claimed by the plaintiff. For these reasons, I consider that the plaintiff's costs should be fixed in the sum of $100,580.05 and paid by the defendants.

1. The defendants were the unsuccessful party and, in accordance with the policy of the Court set out in Dean v Collins, should bear their own costs. If an order was made for their costs to be paid out of the sale of the Sorrento Property, it would have the effect of the plaintiff paying these costs. In my view, this would not be a just outcome.

1. For the reasons set out above, it is my view that the appropriate costs orders are:

(1) Pursuant to s 280(2) of the Legal Profession Act:

(a) a limit of $5,000 be substituted for the limit of costs in Item 12(b) of Table B of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018 (WA); and

(b) a limit of $81,510 be substituted for the limit of costs in Item 12(c) of Table B of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018 (WA).

(2) The defendants pay the plaintiff's costs of the proceedings, including all reserved costs, fixed in the sum of $100,580.05.

5% discount to maximum to reflect rates in 2014 Costs Determination

Allow 4 days' hearing; 2 days' preparation; 90 hours' preparation; attendance at trial by instructing solicitor for 6 hours per day

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

[1] As many of the parties in this matter have the same surname, I will refer to the parties by their first names. No disrespect is intended to anyone by this.

[3] Scherini v Conwell [2018] WASC 172 [4].

[4] H v P [2011] WASCA 78 [53] (Murphy JA).

[5] Schmidt v Malcolm [2016] WASC 209 [9].

[6] Truman v Clifton [2010] FCWA 91 [336] ‑ [338].

[9] S v B [2004] QCA 449; [2005] 1 Qd R 537 [48].

[10] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [50] (Buss P); Dean v Collins (No 2) [2015] WASCA 151 [24] (Chaney J, Martin CJ & Buss JA agreeing); Daniels v Hall [2014] WASC 152 [127] (EM Heenan J); Kitson v Franks [2001] WASCA 134 [6] (Malcolm CJ, Kennedy J agreeing); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [56]; Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201, 208 ‑ 209.

[12] Lemon v Mead [54] (Buss P) and the authorities cited there.

[13] Lemon v Mead [55] (Buss P) referring to Dixon CJ in Coates v National Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 508.

[14] Singer v Berghouse (No 2), 208 ‑ 209 (Mason CJ, Deane and McHugh JJ).

[17] Golosky v Golosky [1993] NSWCA 111, 16.

[18] Waddingham v Burke [2015] WASC 65 [78].

[19] Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [26] (Gleeson CJ).

[20] Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 147 - 148 (Gibbs J).

[21] Hughes v National Trustees Executors and Agency Co of Australasia Ltd, 148 (Gibbs J).

[23] Singer v Berghouse (No 2), 210 (Mason CJ, Deane & McHugh JJ).

[24] Butcher v Craig [2010] WASCA 92 [12]; Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [9] (McLure JA); see also Singer v Berghouse (No 2), 210 (Mason CJ, Deane & McHugh JJ); Kitson v Franks [35] (Parker J), [10] (Malcolm CJ agreeing), [20] (Kennedy J agreeing).

[25] Lemon v Mead [52] ‑ [53] (Buss P).

[26] Lemon v Mead [267] (Mitchell & Beech JJA).

[27] Lemon v Mead [269] (Mitchell & Beech JJA).

[30] Daniels v Hall [132] (EM Heenan J).

[31] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ).

[34] Vigolo v Bostin [115] (Callinan & Heydon JJ).

[35] Vigolo v Bostin [114] (Callinan & Heydon JJ).

[36] Lemon v Mead [70] (Buss P); Singer v Berghouse (No 2), 227 (Gaudron J).

[39] Family Provision Act, s 4(2).

[40] Blacket v Barnett [2017] NSWSC 1032 [243] - [257] (Hallen J). See also Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6] [2019] WASC 5 [26] (Tottle J).

[41] Day v Couch [2000] NSWSC 230 [9].

[42] Webb v Ryan [2012] VSC 377 [22] (Whelan J).

[43] Watson v Foxman (1995) 49 NSWLR 315, 318 ‑ 319 (McLelland CJ in Eq).

[44] Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 [7]; Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 [15]; Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 [157].

[45] Nominal Defendant v Cordin [2017] NSWCA 6 [171] (Davies J, Emmett AJA agreeing).

[46] Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (Unreported, FCA, 29 June 1995) 122 ‑ 123 (Tamberlin J).

[47] McClellan P, 'Who Is Telling the Truth? Psychology, Common Sense and the Law' (2006) 80 Australian Law Journal 655, 665, quoting Australian Psychological Society, Guidelines Relating to Recovered Memories (2000).

[48] Thomas v Times Book Co [1966] 2 All ER 241; [1966] 1 WLR 911, 916 (Plowman J) cited with approval in Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 [119] ‑ [129] and Miller v Taylor [2018] WASC 75 [16].

[70] Exhibit 1, TB, Tab 194, p 397 [7].

[74] ts 35; Exhibit 1, TB, Tab 70, p 145.

[75] ts 35; Exhibit 1, TB, Tabs 19 and 20.

[108] Exhibit 1, TB, Tabs 30 and 31; ts 45.

[122] The outline was prepared as a witness statement in CIV 1021 of 2017; pursuant to orders made 27 June 2019, the statement was ordered to stand as Jeremy's witness outline.

[125] Exhibit 1, TB, Tab 182 - 185; ts 69 - 70.

[173] Exhibit 1, TB, Tab 204 [12] ‑ [13].

[230] Exhibit 1, TB, Tabs 129, 140 and 141.

[231] Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2015] HCA 48; (2015) 257 CLR 544 [21].

[245] Exhibit 1, TB, Tab 210 [4(a)].

[247] Exhibit 1, TB, Tab 210, [4(c)].

[262] Exhibit 1, TB, Tab 199 [18] ‑ [20].

[265] Exhibit 1, TB, Tab 208, 'NWJ10'.

[266] Exhibit 1, TB, Tab 208, 'NWJ13'.

[268] Exhibit 1, TB, Tab 208, 'NWJ18'.

[272] Lawrence v Lawrence [2004] WASC 90.

[278] Plaintiff's closing submissions [144] - [145].

[282] Exhibit 1, TB, Tabs 10, 12, 14, 21, 25.

[286] ts 85 - 86; Exhibit 1, TB, Tab 39.

[289] Ryan v Zekas [2020] WASC 124.

[290] Frigger v Lean [2012] WASCA 66 [53].

[291] Rules of the Supreme Court 1971 (WA), O 66 r 1(1).

[292] Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [50].

[293] Daniels v Hall [No 2] [2014] WASC 272 [13] - [23].

[294] Dean v Collins [No 2] [2015] WASCA 151 [34] (Martin CJ & Buss JA agreeing).

[295] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [11] - [16].

[296] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] (S) [13].

[297] AGC Industries Pty Ltd v Karara Mining Ltd [2019] WASC 140 (S) [9].

[298] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] (S) [15].

[299] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] (S) [15].