BETWEEN : CYNTHIA GAYE ANNE SHAW by her Next Friend PHILLIP JOHN LYSTER

Costs - Application for increase for getting up - Turns on own facts

Featherstone by his Next Friend Angela Feathersone v Westar Engineering Pty Ltd & Ors [1999] WADC 139

Geraldton Fisheries Co-operative Ltd & Ors v Minister for Fisheries & Ors, unreported; SCt of WA; Library No 9187; 12 December 1991

Jones v Moylan (1998) ATR 81-464

Lewandowsky v Lovell (1994) 11 WAR 124

Penfold by her Next Friend R D Penfold v Quinn [2000] WADC 115

Schmidt v Gilmour [1988] WAR 219

1 FENBURY DCJ: This action involved a claim by the plaintiff for damages for injuries she sustained when she was struck by a motor vehicle driven by the defendant. The plaintiff's injuries were serious and included brain damage. Liability and quantum were in dispute.

2 The issue of liability was tried first and separately before L A Jackson DCJ in the District Court on 29 November 1999. Orders were made on 8 December 1999 to the effect, inter alia, that the parties were equally responsible for the accident. In other words liability was apportioned between the parties on the basis of 50/50.

3 Both of the parties appealed against that order and the appeal and cross-appeal were dismissed.

4 As to the issue of damages, the matter was processed through the pre-trial conference system of the District Court. The issue was settled in August 2000 although the amount agreed upon was further increased some period later by about $4,000.

5 Thereafter the plaintiff issued a chamber summons seeking a number of orders consequential upon the settlement. There being dispute about the orders sought the matter was set down for hearing at a special appointment which occurred on 19 March last. It transpires that most of the orders sought by the plaintiff can be made by consent and the only matters that remain for determination are the application for a special costs order sought in par 6 of the summons and the order for costs of the application itself being sought in par 10.

6 The order sought by the plaintiff in par 6 of the summons reads as follows:

"Pursuant to O 66, r 12 the scale limit for legal costs set out in the Supreme Court Contentious Business Determination of 1999 and 1996 and the Fourth Schedule of the Supreme Court Rules at item 13 for Getting Up Case is increased to $33,190.80."

7 The limit for Getting up Case for Trial is relevantly set at $27,000. Thus the application seeks an amount of $6,190.80 over and above the scale for getting up.

8 Order 66, r 12(1) states:

"Where the Court is of opinion that a special Order as to costs should be made by reason of the unusual complexity or importance of the case or for any other good or sufficient reason the Court may order that any particular allowances in any relevant scale be raised or a limit removed and in giving any such direction the Court may fix a limit within which the Taxing Officer may allow such costs."

9 In support of the application the solicitor for the applicant swore an affidavit dated 12 February 2001 to which was exhibited a large number of documents including an extremely lengthy Bill of Costs. Attached to the affidavit are the times sheets which set out by charged unit of $25 the claimed time taken for every detailed item of work specified.

10 A question whether the amount of work claimed to have been done by way of getting up appears to have been reasonably done so as to constitute good and sufficient reasons for the making of an order increasing the allowance is a matter for judgment. Without reference to the issues in the case it can be seen that a meticulous record has been kept of every single item of work done on the file, no matter how small, which has amounted in total to a sum in excess of the figure provided for by the scale.

11 I agree with the description of counsel for the defendant that:

"It is clear from the records and from Mr Phillips' submissions that the application is based purely on the gross number of billable hours recorded by the plaintiff's solicitor. The following observations can be made;

(a) There has been no attempt to differentiate between party and party costs and solicitor and client costs.

(b) Whilst there appears to have been three rates charged, namely $50 per hour, $110 per hour and $250 per hour, all attendances have been charged at a minimum of 6 minutes which suggests that the relevant rate is charged for a 6 minute unit or part thereof.

(c) Many of the attendances, particularly those charged at the lower rates, appear to be of a secretarial nature, and such services are ... not chargeable but form part of overheads." (Summary of submissions provided by defendant par 15.)

12 What appears to have occurred in this case is that the solicitors for the plaintiff have simply added up all of the time spent and relied upon the total there arrived at to substantiate the application. I think this sort of application, to succeed, requires more than that.

13 Putting that issue to one side for the moment I think it is appropriate to make some reference to the circumstances of this case. The plaintiff was a pedestrian who was struck by a motor vehicle. The principle issue was whether the driver of the motor vehicle was negligent at all and if she was whether the plaintiff was guilty of contributory negligence. As issues for determination in this Court the circumstances of the accident do not appear, on their face, to have been unusual or particularly difficult.

14 The plaintiff sustained serious injuries and brain damage. There seems no doubt at all about her presentation and there does not appear to have been great dispute about the medical evidence. The matter was settled at pre-trial conference fairly expeditiously.

15 It seems to me that the litigation could not be described as complex. On the contrary, it was routine in a sense for this jurisdiction. The claim was a large claim and the injuries were severe but it seems to me that as a legal challenge, as a legal dispute, the case was fairly straightforward. As presented to me the issue of whether or not the plaintiff should be entitled to an increase in the scale has crystallised into one about whether the matter required such an amount of work in getting up so as to justify the making of an order.

16 I have carefully read the affidavit of Mr Phillips sworn 12 February 2001 and given consideration to its attachments. I am not convinced that this is a matter which justifies an increase in the scale. In my view the solicitors for the next friend will be adequately compensated by the provisional scale limit. I decline to make the order sought in par 6 of the chamber summons. As to the hearing in Chambers it would seem appropriate that the plaintiff bear the costs of the application rather than the reverse order sought in par 10.