BETWEEN : MACMAHON CONTRACTORS PTY LTD (ABN 37 007 611 485)

Costs - Needless application - Removal of limit imposed by Costs Determination - Certificate for two counsel - Payment of costs forthwith, to be taxed if not agreed

Plaintiff entitled to all costs reasonably incurred

1 TEMPLEMAN J: On 25 November 2008, I published my reasons for dismissing the defendant's application to strike out parts of the statement of claim: MacMahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271.

2 It is now necessary to deal with the question of costs, about which the parties have conferred further.

3 It is agreed that the defendants should pay the plaintiff's costs: and (following the intimation given in [60] - [61] of my reasons) that if the quantum of costs cannot be agreed, they should be taxed on a basis which allows the plaintiff greater recovery than permitted by the relevant costs determination.

4 In my view, and having regard to the plaintiff's actual costs, as set out in the affidavit of its solicitor, Maria Guarnieri, sworn on 5 December 2008, the taxation should proceed on the basis of s 215(2)(c) of the Legal Practice Act 2003 (WA). This provision removes the limit on the costs fixed by the determination. The plaintiff will therefore be entitled to all costs the taxing officer considers to have been incurred reasonably in opposition to the application.

5 There are two outstanding issues between the parties:

1. whether it was reasonable for the plaintiff to engage two senior counsel; and
2. whether the costs should be paid forthwith.

6 The plaintiff seeks to recover the fees paid to Mr C L Zelestis QC and to Mr F M Douglas QC, who was instructed when it became apparent that Mr Zelestis would not be available for a proposed hearing in November 2008.

7 In my view, it is appropriate to certify the matter as fit for two counsel. The fact that there was a change in leading counsel, and some inevitable duplication, is a matter to be resolved on taxation.

8 The plaintiff submits that there should an order for payment of costs forthwith, having regard to Practice Direction 4.7.1. It is there said that:

[T]he historical practice of ordering costs to be paid 'in any event' does not sufficiently serve the purpose of discouraging ill-considered or needless interlocutory applications. The overwhelming majority of actions settle and the orders are not enforced. The apparent benefit to parties in whose favour such orders are made is illusory [5].

...

Accordingly, the Court will generally order that interlocutory costs ordered to be paid by a party are to be paid forthwith or by a particular date, rather than in any event [7].

9 Against that, the defendants submit that if the costs are to be taxed, the matter is outside the scope of 'routine matters', in respect to which judicial officers can be expected to fix costs [8].

10 In my view, the fact that this is not a 'routine matter' does not detract from the principles stated in [5] and [7] set out above.

11 I have held that this was a needless application. I therefore see no reason to postpone the payment of costs.

12 I therefore order that the defendants should pay the plaintiff's costs forthwith, to be taxed if not agreed.