COCKBURN CEMENT LTD -v- THE MINISTER FOR ENVIRONMENT (WA) [2011] WASC 260 (12 September 2011)

64 In oral submissions, the orders were sought by CCL in relation to four items only: cl 11, items 24(c), 24(d), 28(a), 28(b) (ts 12).

65 Items 24(c) and 24(d) concern the attendances by Counsel and instructing legal practitioners at conferrals and conferences in relation to the proceedings. It is unclear from those Items whether they permit recovery of costs incurred by attendance at conferrals and conferences by two senior practitioners. Costs could potentially be recovered for senior and junior counsel and a senior practitioner. This appears from the notation SP/SC/C. But there may not be provision for two senior practitioners. Mr Wark's affidavit of 12 October 2011 at par 30 deposes to conferences on 19 July 2011 and 7 September 2011 which he and Mr McLeod both attended as legal representatives on behalf of CCL. Those conferences were also attended by Mr Mitchell SC and Ms Ashford, legal representatives of the respondents.

66 I consider that the discretion of the taxing officer should not be fettered to allow, if he or she considers it reasonable, the costs of two senior practitioners.

67 CCL also acknowledged that Mr McLeod's rates were above those allowed for a senior practitioner in the Scale. The amount allowed in the Scale for a senior practitioner is $429: cl 10. CCL submitted that the limit in the Scale should also be removed to permit the taxing officer the possibility of allowing a higher rate for Mr McLeod, namely $693. CCL pointed to the amount allowed for a senior counsel, which is $605. The fact that the Scale differentiates between the rate for senior counsel and senior practitioners is not a sufficient reason to uplift the Scale in relation to the former.

68 As the respondents submitted, CCL adduced no evidence to show that the unusual difficulty, complexity or importance of the case required a senior practitioner who was only available at a rate higher than $429: Mercer v Western Australian Planning Commission [2008] WASC 124 (S) [65] (Jenkins J). I have reviewed all the evidence and the submissions before me on 12 September 2011, not merely the evidence that was limited to the matter which was conceded (ground 7). Despite the matters of technical complexity and importance raised by the case, I am not satisfied that the case required a senior practitioner who was only available at a rate higher than $429, nor do I consider that it is appropriate to remove the limit in the Scale to permit the possibility of taxing the bill at an amount of more than $429 for a senior practitioner.

69 The appropriate order is that any limit in items 24(c) and 24(d) which precludes recovery of the costs of two senior practitioners be removed.

70 Items 28(a) and 28(b) concern the costs of a senior practitioner for a motion for an order to show cause and the getting up for hearing.

71 For the same reasons expressed above at [67] [68], I am not satisfied that it is appropriate to remove the limit upon the rate for a senior practitioner in the Scale. The respondents accepted that in extremely complex matters a discretion could be exercised to remove limits on rates, based only upon the complexity of the matter (ts 22). This is not such a case.

72 However, I do consider that the technical complexity and importance of the matter, as well as the nature of the issues involved, requires that the time limits, respectively of 20 hours and 10 hours, in those two items should be removed. It is fairly arguable that the technical complexity of the matter could lead a taxing officer to tax the bill in an amount higher than the Scale totals of $8,580 and $4,290 respectively, due to additional time spent beyond that permitted by the Scale. In reaching this conclusion, I have also had regard to Mr Wark's 12 October 2011 affidavit and annexures which sets out a draft bill of costs, and to the detail of all the work done by senior practitioners in preparing the motion to show cause and getting the matter up for hearing. I express no conclusion about the extent of the time spent other than to say that it is fairly arguable that a taxing officer could tax the bill in an amount higher than the Scale totals.

73 The appropriate order is that the time limit in the Scale items 28(a) and 28(b) should be removed.

74 Although I have concluded this application in favour of CCL, the application would not have been necessary if CCL had sought the special costs order on 12 September 2011. This is a reason for the exercise of my discretion to award costs of this application in favour of the respondents: L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590, 595 (Mason ACJ, Wilson & Deane JJ).

75 On the other hand, O 43 r 1(2) provides as follows:

A party having the carriage of the judgment or order shall have the first option to enter or extract it, but any other party affected may do so if such first mentioned party fails to take steps within 3 days from the making thereof to have the judgment or order approved, or having taken such steps does not in the opinion of the Registrar diligently proceed to have the judgment or order approved and entered or extracted.

76 CCL had carriage of the judgment and orders, and should have had the first option to extract it after the orders were made on 12 September 2011. The respondents should have waited three days from the making of the orders before seeking to have them extracted. The correspondence which occurred on 14 September 2011 (above at [16] [18]), in which CCL sought a delay before extraction of orders be permitted, suggests that an application may have been made before orders were extracted if the respondents had waited for three days. This might have avoided many of the submissions before me concerning the operation of O 66 r 51(2).

77 Although each party sought orders for the costs of this application in their favour, both parties accepted at the oral hearing before me that an order that there be no order as to costs may be an appropriate alternative. For the reasons above, that is the order which should be made.

78 For these reasons I conclude that O 66 r 51(2) gives this court power to make special costs orders after orders have been perfected and extracted. The discretion to make those orders has also been enlivened and special costs orders should be made. Those costs orders are that any limit in the Scale, cl 11, items 24(c) and 24(d) which precludes recovery of the costs of two senior practitioners should be removed, and that the time limit in the Scale, cl 11 items 28(a) and 28(b) should be removed.

79 Although I have concluded that limits in the Scale should be removed in these respects, one matter should be emphasised. Nothing which is said in these reasons should be taken as any indication of the amount at which any of these items should be taxed. This is a matter which is entirely within the discretion of the taxing officer.

80 I will allow the parties the opportunity to confer on the precise terms of the orders but the orders which should be made are to the following effect:

(1) Any limit in cl 11, items 24(c) and 24(d) of the Scale which precludes recovery of the costs of two senior practitioners attending at the settlement conferences on 19 July 2011 and 7 September 2011 should be removed, but the applicable maximum hourly and daily rates for SP/SC/C under cl 10 for those items should not be removed.

(2) The time limit in the Scale, cl 11 items 28(a) and 28(b) and the limit for allowable costs for those items should be removed but the applicable maximum hourly and daily rates under cl 10 for SP for those items should not be removed.

(3) There be no order as to the costs of this application of 22 November 2011.