9 It can be seen that this new legislation does not include the words "for any other good or sufficient reason" which is in the pre-existing Rules. This phrase has been the subject of decisions by the Supreme Court in a number of cases including Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor [2003] WASC 122 which at p 14 states that "It is clear that the extent of work involved in preparation" may constitute good and sufficient reason. That case referred to the well known cases of Schmidt v Gilmour [1988] WAR 219 and Esther Investments Pty Ltd v Markalinga Pty Ltd (1982) WAR 400.
10 In 2004 there was an amendment of the Supreme Court Act in relation to cost rules. It now refers to the Legal Practice Act 2003 where it had previously referred to the Legal Practitioners Act 1893. At that time there does not appear to have been a review of the Supreme Court Rules.
11 The previous Legal Practitioners Act, that is that of 1893, was last reprinted in August 2001. The Legal Practitioners Act 1893 does not contain a provision similar to s 215(2) of the 2003 Act. It provides for the establishment of the Legal Costs Committee. Then for that Committee to report on the remuneration of practitioners in respect of contentious business and that taxations of bills of costs of practitioners and other aspects of remuneration of practitioners, the subject of a determination, shall be regulated by the determination in force under the Legal Practitioners Act 1893.
12 As a result of the passing of the 2003 Act the rule contained in O 66 r 12 is now inconsistent with an Act of Parliament and apparently beyond power.
13 During the course of argument the defendants' counsel sought to put before me a letter of 18 May 2004 from the Law Society to the Attorney General and his response of 31 May 2004 which confirms the interpretation that I have given to the legislation and the Rules. The plaintiff's counsel made the point, quite correctly in my view, that by virtue of the Interpretation Act 1984 these documents were not to be used for interpretation purposes. It is not necessary to use these documents for interpretation purposes but I do refer to them because I find it extraordinary that this drastic change was made apparently without the input of the Law Society.
14 Moving on from this first matter, the plaintiff's counsel then argued that in any event the cost determination that he was concerned with which was then the latest cost determination in existence was the "Legal Practitioners (Supreme Court) (Contentious Business) Determination 2002". This was made under the Legal Practitioners Act 1893 and the Legal Costs Committee reported under s 58ZA of the 1893 Act. At that time it could not be said that O 66 r 12 was outside the power of the Act. Regrettably I am unable to see how that assists the plaintiff because the power that I have to make a special order now comes from the Legal Practice Act 2003 and the Legal Practice Act 2003 does not allow me to make an order "for any other good or sufficient reason". No doubt the actual taxation of the bill will be done under the 2003 Determination but that is not where my power to make the special order comes from.
15 The only power I have to make a special order for costs comes from s 215(2) of the Act which means that I can make a special order because of "the unusual difficulty, complexity or importance of the matter."
16 Turning now to these particular facts, the trial here took seven days. There were two areas that were particularly factually difficult. The first was the question whether the plaintiff was in fact the employer of the person who actually did the design work. The defendants put this in issue. It was complicated by an attempted change in legal structures in the plaintiff's office during the relevant period and by the pragmatic but not necessarily formally correct way in which the plaintiff's office staff dealt with problems that had arisen. Proving that the designer did in fact work for the plaintiff required a great deal of work, the calling of evidence to explain the sequence of events and the production of a number of documents.
17 The second area was the tracing through of the various stages of the design process. In this matter the first defendants said that the design was done by another designer and he gave that to the plaintiff's designer who made some very minor amendments to it. The plaintiff's case was always that this was not the case, that these initial designs which indeed the first defendants had had done were never given to the plaintiff and that all of the work and all of the designs were the original work of the plaintiff. A great number of different versions of the design plan of this house were put into evidence. Experts were called by both sides to explain the development of these plans and this very complicated and difficult process had to be worked out in advance in a solicitor's office. There was an enormous amount of additional work involved in that.
18 Moving on to the complexity. While in fact I did not find an equitable estoppel, late in the piece this was put in issue by the defendants and there was considerable argument about that. Whether it was complex enough to warrant a special order it is not necessary for me to decide in view of the other decisions I have made.
19 So far as the importance of the matter is concerned, it was important to the local industry because until this decision it was believed locally that there were only two ways in which an aggrieved holder of copyright could be compensated and that was either simply by being paid a design fee or by seeking an account of profits. Either of these posed considerable difficulties for the plaintiff. A design fee is inadequate compensation for what has been lost but an account of profits is a cumbersome and sometimes futile exercise. Considerable argument was put into the way in which the plaintiff should be compensated and amongst other findings I said: