BETWEEN : CAZALY IRON PTY LTD (ACN 101 049 334)

Orders as to costs previously made by the court - Question referred by registrar to the court under O 66 r 45 - Turns on own facts

First Respondent : State Solicitor for Western Australia

1 WHEELER JA: I am generally in agreement with the reasons delivered by Buss JA. The order which was made removes the limits provided for in any relevant item. That order affects the dollar value of the item, which is calculated by reference to cl 8 and by reference to the various columns for "time" and "fee earner" referred to in each of the relevant items. Altering that dollar limit must necessarily have the result that each of the matters that go to make up that dollar limit are susceptible of variation at the discretion of the taxing officer. That is, once one alters the final dollar value by removing its limit, an increased amount is capable of being arrived at either by an alteration of the number of hours or by an alteration of the rate or by an alteration of the nature of the fee earner involved. For that reason it seems to me that the order made by the court affects all of those matters.

2 I would not express a view in relation to whether, had various issues been raised in the manner they were today, I would have made the same order. The matter was not agitated before us on 28 August as it has been today and the orders were made in those terms. I therefore think it inappropriate to consider what I would have done if making an order afresh.

3 PULLIN JA: I agree with the reasons of the presiding judge and the reasons of Buss JA. The only difference between them is about whether any view should be expressed about what would have happened if the question of costs had been considered today. I express no view either about what order would have been made today on the information presented.

4 BUSS JA: On 28 August 2007, this court made orders as to costs. The orders were in these terms:

(a) order 3: the applicant pay the first respondent's and the second respondents' costs of the application, including reserved costs, to be taxed;

(b) order 4: the limits provided in any relevant items of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA) (the Determination) be removed.

5 After a directions hearing in relation to the second respondents' bill of costs for taxation, the taxing officer, Registrar Powell, referred to the court a question pursuant to O 66 r 45 of the Rules of the Supreme Court 1971 (WA). The question is this:

In making allowances for the costs of the second respondents in accordance with the orders of the Court of Appeal made 28 August 2007 is the taxing officer precluded from allowing hourly and daily rates in excess of those contained in paragraph 8 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006?

6 The parties have filed and served written submissions in relation to the question in issue.

7 The critical point in dispute between the parties is whether this court, in making order 4, removed the limits in item 8 of the Determination on the maximum allowable hourly and daily rates, in addition to removing the limits in item 9 of the Determination on the maximum allowable times and amounts.

8 Today, the court is not making new or other orders as to costs, but is construing the orders it made on 28 August 2007.

9 In my opinion, the court intended by order 4 to remove the limits in item 8 of the Determination on the maximum allowable hourly and daily rates, in addition to removing the limits in item 9 on the maximum allowable times and amounts.

10 I emphasise, however, that orders 3 and 4 do not constrain or affect the discretion of the taxing officer to allow only for rates, hours and amounts which are, in all the circumstances of the litigation, reasonable.

11 My answer to the question referred by Registrar Powell is, therefore, 'no'.

12 I should add that if the court were today to be making new or other orders as to costs, I would make the orders that were made on 28 August 2007, as I have construed and explained them today.