BETWEEN : GENEVA FINANCE LTD (RECEIVER AND MANAGER APPOINTED) (ACN 009 168 147)

Costs - Extension of time to apply for special order - Time extended - Special order removing limit in item in costs scale

Rules of the Supreme Court, O 66 r 12(1), r 18(1), r 51(2)

1 EM HEENAN J: In this action I gave judgment on 24 May this year dismissing the plaintiff's claim and ordering the plaintiff to pay the defendants' costs of the action, including any reserved costs, to be taxed as one set of costs with a certificate for second counsel. Those orders were made on the same occasion that my reasons for decision were published in the case, the decision having been reserved after a lengthy trial.

2 When the decision was given and motions were called for, counsel moved initially for a short adjournment to consider the effect of the reasons, but, then, in the light of some explanations which I gave, proceeded to make applications for costs which resulted in the formal orders which were made on that date and entered on 7 June.

3 It now appears that in order to claim what the first defendant considers to be an entitlement for costs which is merited by the result of this litigation, a special order for costs is needed under O 66 r 12(1) of the Rules of the Supreme Court. No such order was sought on the occasion when judgment was given, although it does seem clear that the potentiality of the need for such an order was at least considered by counsel for the defendants but on being pressed, counsel for the defendants was content to proceed and deal with the issue of costs without seeking any such special order.

4 It is not at all uncommon that the need for special orders is sometimes overlooked when judgment is entered. To cater for that contingency, there is provision under O 66 r 51(2):

"Where under these rules a party is required to obtain some special certificate for costs, there shall be deemed to be reserved to such party liberty to apply within 30 days."

5 It is acknowledged that had the defendants applied within 30 days of 24 May last there would be no restriction on the agitation of the application for such a special order. That time now having expired, an application is made for an extension of that time limit pursuant to the general power to extend time so that it may be brought and determined today. Authority for such a course was recognised by the Full Court in the case of Snowtop Mushrooms v Powley, unreported; FCt SCt of WA; Library No 4501; 14 May 1982. I am satisfied that the power exists under the Rules to extend the time beyond the 30-day limit and, once extended, to make a special order under O 66 r 12(1) in a case where a special order is warranted.

6 Having regard to the complexity of this litigation and the fact that it has not been finally determined because the plaintiff has instituted an appeal, keeping open its rights, there seems to me to be no reason why I should not follow the precedent provided in Snowtop Mushrooms and extend the time to today as sought and consider whether or not a special order under O 66 r 12(1) is merited, and I shall follow that course.

7 In support of the application for the entitlement to a special order, counsel for the defendants initially sought a modification of the relevant scale so as to remove the limits prescribed by the scale in relation to Item 6(b) dealing with the costs allowable for filing a defence and Item 13, being the limits prescribed for getting up case for trial. However, during the course of argument, it was pointed out that insofar as the costs for a defence were said to be inflated because of the need to make repeated amendments to the defence consequent upon successive amendments to the statement of claim, I pointed out that costs rendered necessary by successive amendments to the statement of claim requiring new versions of the defence would justify applications under O 66 r 18(1) as a special item in a bill of costs. That particular claim was then no longer pursued.

8 I am left, therefore, solely with the application to remove the limits prescribed by the scale in relation to Item 13 for getting up case for trial. Counsel for the defendants in support of his application and addressing the need to demonstrate 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 pointed out that the fees rendered by senior counsel included per diem claims for seven days or more of reading the brief plus general trial preparation and pointed out that if counsel's fees for that claim were met, there would be very little, if any, residue of the permitted maximum to meet the solicitor's fees. I do not consider that that argument will bear the conclusion which the defendants seek to be reached. What counsel charges really comes under the item of counsel's fee on brief. Nevertheless, there is some rough approximation provided by the fact that six or seven days' preparation were needed by counsel as indicating that this was a case of greater than usual complexity and that more than the usual amount of work was required for it.

9 Having presided at the trial, listened to all the evidence and seen the documents which were assembled for the conduct of the trial, I am satisfied that it was a case of unusual complexity and importance and that it is at least probable that more than the usual amount of work was necessarily done in order to prepare properly for the trial.

10 In making those observations I do not intend to indicate any final or conclusive finding about the magnitude of the work done because I have not scrutinised - nor am I required to scrutinise - that in close detail, but I am at least satisfied that this was a case that was complex, important and required a large amount of work to be done.

11 Mr Mason for the plaintiff says, and produces irrefutable authority for the proposition, that no special order should be made varying or increasing the amount allowable under the scale unless a case has demonstrated that there is good or sufficient reason for this or that the case was unusually complex or important. He points out, and again I consider with respect entirely justifiably, that the affidavit material filed in support of this particular application contains little in the way of demonstrating that more than the conventional amount of work was done or that remuneration at an amount at or less than the maximum provided by the scale would be inadequate.

12 So much may be acknowledged but that does not pay regard to the experience which I have already alluded to of sitting through the trial, examining the documents and addressing the issues which have been raised by the parties. That experience, as I have already indicated, has satisfied me that this was a case of more than average importance and complexity. As I have said, it has also satisfied me that the probabilities are that there was greater work which needed to be done in preparing for the case than is contemplated by the scale.

13 That being the case, I consider that there is more than enough shown to enliven my jurisdiction to make a special order as to costs and that the circumstances of this case warrant such a special order being made.

14 The order which is contended for is to remove the maximum amount allowable under Item 13 of the scale relating to getting up case for trial and in lieu to order that the taxing officer may allow reasonable costs which in his or her discretion are appropriate, having regard to his or her assessment of the work which has been done, its importance and complexity.

15 I am disposed to make such an order because it appears to me that it will allow the taxing officer to assess a proper amount for costs without what may turn out in this case to be an artificial restraint imposed by the maximum amount in the scale. This does not mean, and certainly does not necessitate, that an amount larger than the maximum in the scale would necessarily result from the taxation. Rather, it means that the taxing officer shall be able to do justice to the parties by allowing such amount on taxation as is shown to his or her satisfaction to be justified by the work, responsibility and complexity involved, even if that should turn out to be more than the maximum prescribed. It also seems to me that in a case of this magnitude, that is a responsibility which is best left to the taxing officer.

16 Accordingly, I make an order that in this case the taxing officer shall allow reasonable costs under the heading Getting Up Case For Trial as he or she shall in his or her discretion decide is appropriate on the evidence adduced at the taxation, without being confined by the limit imposed under Item 13 of the scale.