Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271

Collins v Westralian Sands Ltd (1992-1993) 9 WAR 56

Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1994) 13 WAR 242

Gorton v The Commonwealth of Australia [1992] 2 Qd R 603

In re Porteous (Dec) [1949] VicLawRp 68; [1949] VLR 383

McConnell v Nationwide News Pty Ltd, unreported; SCt of WA (Owen J); Library No 920670; 10 December 1992

Parker Wines Pty Ltd v Australia and New Zealand Banking Group Ltd, unreported; SCt of NSW (Young J) 4419 of 1995; 7 December 1995

Schmidt v Gilmour [1988] WAR 219

Tenbohmer v Eden (1992) 6 WAR 366

1 SCOTT J: Judgment in this action was delivered on Thursday, 25 November 1999.

2 Judgment was awarded for the plaintiff in the sum of $254,560 and on that day counsel for the plaintiff said to the court:

"I don't know whether we need at this stage to seek any specific directions in relation to costs, but I would seek that those costs be the plaintiff's costs perhaps with some liberty to apply in the event that there are special costs orders."

3 Counsel for the plaintiff indicated that he had commitments in another court and did not have time to argue any special issues in relation to costs and so sought leave to return to the court for further orders.

4 Counsel was asked if any specific certificates were required and responded that there were certificates that he sought in relation to each of the witnesses called for the plaintiff.

5 Ultimately the court granted the plaintiff liberty to apply with respect to any costs orders.

6 No application was made for any special costs orders before judgment was entered reflecting the terms of the orders made on 25 November 1999. The formal judgment was dated 7 December 1999 and filed on 15 December 1999.

7 Following judgment, an appeal was lodged by the defendant, and what was effectively a cross-appeal, lodged by the plaintiff.

8 The defendant took no steps to advance the appeal and as a consequence an application was made by the plaintiff to have the defendant's appeal dismissed, which was ultimately resolved by the defendant withdrawing its appeal on 14 June 2000. The plaintiff's cross-appeal remained live and was programmed through to a hearing.

9 By letter dated 30 October 2000 addressed to the Supreme Court and marked to the attention of the Listings Co-ordinator, counsel for the plaintiff sought to obtain special orders for costs. In particular, counsel for the plaintiff sought to substitute the original costs order awarding costs to the plaintiff with an order that:

"The defendant pay the plaintiff's costs of the action to be taxed on the appropriate scale but irrespective of the limits imposed by O 66 r 16 of the Rules of the Supreme Court in relation to item 13 (getting up case for trial), 14(a) (fee on brief and first day of trial), and 16 (drawing bill of costs)."

10 The amended minute also sought orders that the defendant indemnify the plaintiff against any GST incurred on costs in the action subsequent to 30 June 2000 and a certificate for transcript as well as costs of the application itself.

11 It is common ground that pursuant to the liberty to apply, the plaintiff should be granted a certificate for transcript. The application for indemnity with respect to GST was not pursued at the hearing of this application.

12 Counsel for the defendant contends that this Court has no jurisdiction to revisit the original order as to costs because once the order was perfected that was sufficient to conclude the hearing, subject to any ambiguity or matter necessary to enable those orders to be worked out. In support of that proposition, counsel cited the passage in "Civil Procedure Western Australia (Seaman)" at par 63.0.5 p 12158 where the author says:

"Once an order has been sealed or a judgment entered up following a determination by a single judge or master the only remedy, with few exceptions, is by way of appeal to the Full Court, for the general rule is that a perfected judgment cannot be recalled or varied because the public interest requires that when it is entered it should conclude the litigation (Permanent Trustee Co (Canberra) Ltd v Stocks and Holding (Canberra) Pty Ltd (1977) 15 ACTR 45 at 47). ... Reservation of liberty to apply, at least in a final judgment or order, does not authorise the court which made it to discharge or vary it but only to make those orders that are necessary or desirable to work it out (CSIRO v Perry (No 2) (1988) 53 SASR 538 at 557. ... However, the court has power to make supplementary orders which do not alter the original order but which is not limited to the enforcement or working out of the original order: Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd [1993] FCA 471; (1993) 45 FCR 224 at 234; [1993] FCA 471; 117 ALR 253 at 265 (FC)."

13 What is apparent from the transcript of 25 November 1999 is that on that morning there was some pressure both on counsel and the court. Counsel for the plaintiff indicated that he was involved in another matter and did not have time to argue any special issues as to costs. It would appear that the hearing on that morning was extremely brief.

14 Taking into account all of the circumstances and bearing in mind that counsel for the plaintiff was not afforded a reasonable opportunity to be heard on the question of costs, I have come to the conclusion that the plaintiff is not barred from arguing the question which he now seeks to ventilate.

15 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. Whilst 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.

16 In Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 McPherson SPJ said at 597:

"For reasons that are self-evident, the power of the court or a judge to set aside or vary a judgment or order made inter partes is closely circumscribed. Leaving aside powers exercisable on appeal, a judgment that is final given after a contested hearing cannot be set aside or varied after it has been drawn up, passed and entered except to the limited extent allowed by the slip rule. ...

'Liberty to apply' is sometimes said to be a further exception. It is however, not a true exception at all, because a judgment or order that expressly reserves to a party a leave or liberty to apply can be varied on an application pursuant to such leave only so far as may be necessary for the purpose of working out the actual terms of the order so as to make it more efficacious in matters of detail. And what is meant in this context by 'working out' of the terms of an order is considered in some of the cases on the point."

17 McPherson SPJ went on to refer to Cristel v Cristel [1951] 2 QB 727, 728 and other cases in which that principle was considered.

18 As with most cases, however, the context in which the liberty to apply is granted will vary according to the circumstances. In this case, it is clear that because of the pressure of time, the liberty to apply granted to the plaintiff was in general terms so as to permit the plaintiff to come back to the court and seek specific orders as to costs. One of the facts which clearly worked to the prejudice of the defendant and particularly so in this case, was the delay in exercising the liberty to apply.

19 In Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Malcolm CJ said at 403:

"The principles to be applied in determining whether or not an order should be made under O 66 r 16 had been considered in a number of cases. In Schmidt v Gilmour [1988] WAR 219, the learned trial Judge had expressly held that the case was not one of unusual complexity or importance. The only point in the appeal in that case was whether the amount of work to be done in a particular case in relation to getting up case for trial was capable of constituting a 'good and sufficient reason' within the meaning of, and for the purpose of O 66 r 12(1). Burt CJ said (at 220):

'The rule clearly contemplates the possibility of there being "good and sufficient" reason for making an order increasing the scale in that schedule, notwithstanding the fact that the case is not one of unusual complexity or of importance.

For myself I can see no reason for saying that the amount of work which of course must fairly fall within the scale item of getting up case for trial, and whether it does or not will be for the taxing Master to determine, cannot of itself constitute a good and sufficient reason for doing so.

I am unable to accept the appellant's submission that it is "wrong in principle" to make an order based upon a finding that a party and party taxation would be inadequate for the work done in getting up the case for trial.

Whether the amount of such work does in any particular case constitute a good and sufficient reason to depart from the scale is of course another matter and the discretion which the rule confers upon the court - "The court may order" - is not one which must be exercised upon a finding of inadequacy of any degree.

To so hold would be inconsistent with the policy of the scale. The inadequacy must be such as to constitute a good and sufficient reason and whether it does is a question for judgment in every case'."

20 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. In addition, in my opinion, whilst a great deal of work was done by counsel for the plaintiff in the course of trial, it is important to recall that the scale in relation to the items presently under consideration is a range and not a set amount so that the legal advisers for the plaintiff will be compensated within that range, even if the claim does reach towards the top of it. Whilst the draft bill of costs prepared by the plaintiff indicates that the plaintiff's claim will greatly exceed the scale allowance, in my view this is not a case which properly excites the application of O 66 r 12 in that it cannot be said that this case was one of unusual complexity or importance, or that there was any other good or sufficient reason why the scale limit should be raised or removed. The plaintiff's claim, in my view, can be accommodated within the existing scale. That having been said, however, it is clear that the getting up case component under item 13 should attract an award of costs towards the upper end of the scale. The late discovery of documents and the additional amount of work occasioned for the plaintiff's solicitors by reason of late discovery and the proximity of discovery close to and in the course of the trial process itself justifies a significant allowance. That, however, is a matter for the exercise of discretion by the taxing officer.

21 As to the issues of law which arose in the course of the trial, whilst I accept that the relevant provisions of the Local Government Act 1995, which were considered in the judgment, had not previously been the subject of judicial decision, that, in my view, did not occasion any greater difficulty for the plaintiff.

22 In my opinion, apart from the certificate for the cost of transcript which the plaintiff is entitled to, both because of the delay in bringing the application and because, in my view, the existing scale would adequately compensate the plaintiff for reasonable costs, the application should otherwise be dismissed.