BETWEEN : THE AUSTRALIAN ELECTRICAL ELECTRONICS FOUNDRY AND ENGINEERING UNION WESTERN AUSTRALIAN BRANCH

Costs - Special orders pursuant to O 66 r 1 - Complex issues and extensive factual matters - No misconduct by respondent in failing to discover material in respect of which there was no issue on the pleadings - Evidence - Fresh evidence did not give rise to any real possibility that proceedings below would be different - Application for adjournment refused

Rules of the Supreme Court O 66 r 1; Fourth Schedule, item 22

AEEFEU v Hamersley Iron (1998) 19 WAR 145

1 MALCOLM CJ: This is an application by way of notice of motion dated 6 May 1998 for a special order as to costs pursuant to O 66 r 1 of the Rules of the Supreme Court. The applicant is the respondent in an appeal which was heard by the Full Court on 26 October 1997 and in respect of which judgment was delivered on 6 April 1998.

2 The order which is sought is that (1) the scale limit provided in item 22 of the scale of costs be removed and, (2) the court award costs that are just and reasonable in performing the work encompassed by item 22 of the scale of costs.

3 This appeal is from a judgment of Parker J given on 29 April 1997 in an action by the respondent against the appellants for damages and injunctive and declaratory relief arising out of industrial action which took place at the premises of the respondent in the north-west of Western Australia in June of 1992. The respondent claims approximately $37,000,000 by way of damages from the appellants, among others. The first and second appellants are the fifth and sixth defendants in the action.

4 The appeal was in respect of the dismissal by the learned Judge of an application by the appellants who sought to have the action struck out or dismissed for want of prosecution and, in addition, sought to have the action permanently stayed as against them as being an abuse of process.

5 In the context of the appeal there was an application for the admissibility of fresh evidence. This was in respect of the appeal against the refusal of the application for a permanent stay of proceedings on the ground of abuse of process.

6 The application to admit the fresh evidence was dismissed on the basis that it would not give rise to any real possibility that the result of the proceedings before Parker J would have been any different had the evidence been led at the original hearing. That application to adduce the evidence on the appeal was dismissed. There were very many affidavits filed in the proceedings and there were substantial issues of fact and law which were involved.

7 The costs of such an application are governed by item 22 in the Fourth Schedule of the Rules which contemplates 8 hours of work by a junior practitioner in connection with a motion to the Court not otherwise provided for, and sets a limit on the total amount of costs of $1450.

8 It was submitted on behalf of the plaintiff that this sum does not provide an adequate figure of costs for the application for the following reasons: there were a total of 14 affidavits filed in connection with the matter; objections were made by the respondent to 99 paragraphs of the affidavits relied upon by the appellants; the Full Court did not determine all the objections, although objections which were considered were upheld; the affidavits filed in connection with the application by the appellants made assertions concerning the conduct of seven persons who were employees of the respondent at the time of the hearing of the application; the affidavits filed in connection with the application by the appellants made assertions concerning the conduct of 10 persons, not employees of the respondent, as at 22 October 1997, including four persons employed by or partners of the respondent's solicitors; the factual matters raised in the affidavits ranged in time between June 1992 and November 1996; and there were issues which were raised concerning whether the proceedings before the primary Judge were in the nature of interlocutory or final proceedings which had to be considered.

9 In support of the application, there is a schedule providing a detailed resume of the work done in connection with this matter and the time spent on it by relevant practitioners. It is apparent that a number of relatively senior lawyers were engaged on the case, as was senior counsel, and his fees are many times the amount which is provided for as the total amount in item 22.

10 Having regard to the nature of the issues raised, their complexity and the scope of the factual matters which had been canvassed in the appeal, I am of the opinion that, on the face of it, a case has been made out for a special order as to costs.

11 At the outset of the hearing of this application, application was made on behalf of the appellants for the hearing of the motion to be adjourned. The basis of that application was that the appellants wished to put in issue the question whether or not the respondent had been guilty of conduct which amounted to misconduct which would disqualify the respondent from obtaining a special order as to costs under O 66 r 1(2).

12 The contention in that respect was that there had been deficient discovery at an earlier stage in the action which, had it been sufficient, would have provided material which would have facilitated the appellants in establishing that there was at least a real possibility that the result of the proceedings would have been different had proper discovery been given.

13 The Court has already ruled on this issue on the basis that at the material time, there was no issue on the pleadings in respect of which the matters which are said to have been discoverable should have been discovered.

14 It is conceded that that is the case. Subsequent to the delivery of judgment in the principal hearing the subject of the appeal, on 6 April 1998, we are told that the solicitors for the appellants gave notice to the solicitors for the respondent that issues would be raised regarding the use of a Mr Beales as an agent-provocateur in relation to the strike, the subject of the proceedings.

15 We have also been told that in anticipation of those matters being formally raised in the proceedings, discovery was given of certain documents which cast light on the role played by Mr Beales. Formal amendment of the pleadings has not yet been effected to raise those issues and they were not issues on the pleadings at the time of the hearing of the appeal.

16 While there were two issues resolved in favour of the appellants on the appeal; namely, that the nature of the application before Parker J giving rise to the appeal was an interlocutory rather than a final matter, and the issue of fresh evidence in the sense that the evidence of three deponents sought to be relied upon was characterised as evidence which would not have been available earlier as a matter of reasonable diligence, no application was made on their behalf for any modification to the order for costs when orders for costs were made in favour of the respondent.

17 In my view, nothing has been put on behalf of the appellants which would provide any basis for refusing the order which has been sought. In my opinion, therefore, the respondent is entitled to the two orders which it seeks on its application.