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[2011] WASC 249
General information, not legal advice.
Supreme Court of WA
2011-09-20
Allanson J
Original judgment source is linked above.
1 ALLANSON J: The plaintiff seeks a special costs order removing the limits on costs in the legal costs determination. The application is brought pursuant to s 280(2) of the Legal Profession Act 2008 (WA), under which the court may make an order if of the opinion that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter. The order was sought in a minute of proposed orders handed up at the hearing. There were no written submissions dealing with the application, and no evidence directed specifically to the question of the order.
2 The principles to be applied in such an application have been authoritatively set out. There are two questions: first, whether it is fairly arguable that the taxing officer might properly allow costs at an amount greater than the amount allowable under the relevant legal costs determination; and secondly, whether the inadequacy of the amount allowable under the relevant legal costs determination arises because of the unusual difficulty, complexity or importance of the matter: see Le Brun v Joseph [No 2] [6]; Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [16]. The two questions are interrelated: the difficulty or complexity or importance of the issues at stake to the parties is relevant to the degree of work that may be properly and reasonably done in preparing for and presenting the case.
3 Two issues were argued. First, the defendant submitted that an order under s 280(2) is usually made only on the completion of the whole of the proceedings. That may be so, but in my opinion, there is no limitation on whether an order can be made immediately in relation to a discrete interlocutory application. The text of the section does not convey that restraint. And it would be an odd result if a party who is otherwise entitled to an order that costs be paid immediately were to lose that entitlement because those costs should be taxed under a special costs order. Finally, I am aware of no authority to the effect that there is such a limitation, while there are several examples where orders have been made before final judgment: see Neesham v 6PR Southern Cross Radio Pty Ltd [No 2] [2008] WASC 72 (Le Miere J); Staley v Pivot Group Pty Ltd [No 4] [2010] WASC 120 (Martin J). I have previously made an order under s 280 at an interlocutory stage (Romeg Holdings Pty Ltd v Kelly [2010] WASC 404 (S)), although the present question was not then raised. The difficulty, complexity, or importance of a matter may be capable of assessment even at a comparatively early stage.
4 Second, the defendant submitted that the plaintiff had not put forward evidence to support an order that the taxation of costs should proceed otherwise than in accordance with the provisions of the relevant costs determination.
5 Section 280 requires consideration of the unusual difficulty, complexity or importance of the matter. In my opinion, s 280 uses the word 'matter' in the same sense as s 24 of the Supreme Court Act 1935 (WA) when it refers to a cause or matter. The court must have regard not only the particular application for further discovery, but to the matter before the court.
6 The questions arising under the section are to be addressed as matters of impression rather than detailed evaluation: EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) [7]. In some cases, it may be necessary to prove the criteria in s 280 by specific evidence. In other cases, the court may be able to form a view from its knowledge of the case, as in Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2) [14] - [15]. Even where no evidence is put forward, in my opinion I can act on my knowledge of the matter from the papers before the court.
7 I am satisfied that the matter is both complex and important. The defendant was the main contractor to BHP Billiton Iron Ore Pty Ltd for the demolition and reconstruction of an iron ore loading wharf in Port Hedland. The dispute arises out of a subcontract between the parties. The plaintiff claims damages under statute, contract and in quantum meruit. The amount in issue is large. For the purposes of discovery the parties agreed a protocol, under which the defendant provided a list of 77,671 documents.
8 Section 280 also requires a finding on whether the taxing officer might properly allow costs at an amount greater than the amount allowable under the relevant scale item in the determination. Counsel for the defendant submitted, correctly in my view, that the relevant item is that for a contested application in chambers. Would the limit under that item, which would be imposed if I do not grant the plaintiff's application, be inadequate because it would preclude the plaintiff from advancing to the taxing officer a fairly arguable case that its bill should tax at an amount greater than that limit: Heartlink [25].
9 The plaintiff applied for further and better discovery of several categories of documents. The defendant at first resisted, and the matter was set down for hearing. Further discussion between the parties first limited, and then resolved, the differences between them. At the time the application was made (in May 2011) the plaintiff supported it with an affidavit of over 1,200 pages most of it annexed documents. The defendant responded with a 700 page affidavit again mostly annexures. A page count is a limited guide, and prolixity is not generally encouraged. But a relatively quick examination of the great volume of material put before the court confirms me in my view that the plaintiff has a fairly arguable case to put to the taxing officer.
10 For these reasons I would make an order under s 280 of the Legal Profession Act removing the limits fixed in the relevant determination.