Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 (WA), Item 10, Item 11

Second-named second defendant : Maxim Litigation Consultants

1 MARTIN CJ: In reasons delivered orally on 11 February 2009, and not separately published, I rejected an application by Mr Tim Champion to be joined as a party to these proceedings. I further ordered that Mr Champion was to pay the costs of the plaintiffs and the second-named second defendant in relation to that application, to be agreed, or in default of agreement, to be fixed by me on the basis of written submissions exchanged by the parties.

2 The parties have been unable to agree the amount of costs to be paid by Mr Champion, and have exchanged written submissions. The plaintiffs seek an amount of $5,300, and the second-named second defendant seeks an amount of $2,500. Mr Champion submits that the appropriate amount to be paid to each party is $1,100.

3 The written submissions of both the plaintiff and the second-named second defendant rely upon Item 11 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 (WA) (Costs Scale). Item 11 is headed 'Motions and originating processes'. Item 11(a) more specifically states that it applies to originating motions, originating summons and originating applications. This application does not fall under any of these categories. The application is not originating as it does not commence an action. On the other hand, Mr Champion points to certain items in the Schedule of Standard Costs Orders for Interlocutory Applications (Consolidated Practice Directions 4.7.1.1) as providing a more appropriate guide to the amount properly awarded.

4 In exercising my discretion with respect to costs, I take account of the following matters. First, I take account of the principle that, in general, a successful party should recover their costs of the proceedings (Rules of the Supreme Court 1971 (WA), O 66 r 1). Second, the Schedule of Standard Costs Orders for Interlocutory Applications to which Mr Champion refers is a guide only, and is not determinative of the amount to be awarded in any particular case. Rather, the amount to be awarded in any particular case will reflect the particular circumstances of that case, and the amount and complexity of the work done.

5 Third, I take account of the nature of the proceedings and of Mr Champion's application. The proceedings essentially relate to the arrangements to be made with respect to the distribution of a fund established for the benefit of those who may have been entitled to native title over certain land upon which the first defendant is conducting mining operations. Mr Champion sought to become a party in order that he could be heard in relation to those arrangements. The interests he sought to advance were not restricted to his personal interests, but included the interests of others on whose behalf he might have been expected to speak.

6 Fourth, I take account of the fact that Mr Tim Champion's application was heard simultaneously with an application by Mr Malcolm Benjamin Champion, whose application for joinder was allowed. I have reserved the costs of that application for further consideration. The relevance of that application is that the work done by the legal representatives of the plaintiffs and the second-named second defendant in relation to the legal issues (and some of the factual issues) of joinder, was work that would have had to be done in any event in relation to the application by Mr Malcolm Benjamin Champion.

7 Doing the best I can to balance these various considerations, it seems to me to be appropriate to allow the plaintiffs and the second-named second defendant an amount which would reflect approximately 3.5 hours of professional time spent on the application by a senior practitioner.

8 Item 10 is headed 'Chambers'. Item 10(a) sets out the costs scale for proceedings in Chambers other than proceedings to which Item 11 applies (as seen above, Item 11 relates to originating processes). This application for joinder falls under Item 10(a). Item 10(a) allows a maximum amount of $9,570, assessed at two days of preparation and one day of hearing, of counsel time. As I have already stated in relation to this application, I will allow for 3.5 hours of senior practitioner time.

9 The rate of $396 per hour is appropriate in these circumstances given the type of work done and the fee earner (senior practitioner). It is also the maximum allowable hourly rate used for the time of a senior practitioner in the Costs Scale (cl 8(4) of the Schedule to the Costs Scale).

10 Rounding up the rate to allow for some modest disbursements, I will fix the amounts to be paid by Mr Champion to the plaintiffs pursuant to the costs order which I made on 11 February 2009 in the sum of $1,400 and in respect of the amount to be paid to the second-named second defendant, fix the same amount, namely $1,400.