Thomas v Powercor Australia Limited

1 On 5 December 2011, the Court approved the settlement of this class action.[1] In terms, the first order made on that day was:

"Pursuant to sections 33V, 33ZF, 33ZG and 33ZJ of the Supreme Court Act 1958, settlement of the proceeding upon the terms set out in the document entitled 'settlement agreement' signed by the parties ('settlement agreement') is approved."

2 By clause 2.2 of the settlement agreement, the defendant agreed to pay the plaintiff's party-party costs of the proceeding, "to be taxed in default of agreement". The settlement agreement dealt comprehensively with all aspects of the settlement (although, by clause 10.1, power was reserved to Maddens and Powercor to "refer any issues arising in relation to the administration of [the settlement agreement] to the Court for determination"). In any event, the question of costs was dealt with in clauses 2.1, 2.2, 2.3, 3.1(b)(vii) and (viii), 3.2(b), 6.4, 7.3 and 8.3 of the settlement agreement.

3 The plaintiff now seeks an order from the Court that he be entitled to a gross sum for costs and an order that there be an increase, not exceeding 30%, in the solicitors' charges on taxation. In support of his applications, the plaintiff relies upon rules 63.07 and 63.34 of the Supreme Court (General Civil Procedure) Rules 2005.

"(1) Subject to this Order, where by or under these Rules or any order of the Court costs are to be paid to a party, that party shall be entitled to taxed costs.

(2) Where the Court orders that costs be paid to a party, the Court may then or thereafter order that as to the whole or any part of the costs specified in the order, instead of taxed costs, that party shall be entitled to-

(a) a portion specified in the order of taxed costs;

(b) taxed costs from or up to a stage of the proceeding specified in the order;

(c) a gross sum specified in the order instead of taxed costs;

(d) a sum in respect of costs to be determined in such manner as the Court directs."

"(1) Subject to paragraph (3), the solicitor for the party to whom costs are payable shall be entitled to charge and be allowed the fees set forth in Appendix A.

(2) Witnesses' expenses and interpreters' allowances shall be fixed in accordance with the scale in Appendix B.

(3) The Court may, on special grounds arising out of the nature and importance or the difficulty or urgency of the case, allow an increase not exceeding 30 per cent of the solicitor's charges allowed on the taxation of costs with respect to-

(a) the proceeding generally; or

(b) to any application, step or other matter in the proceeding.

(4) Where the Court so directs, the Costs Court shall have the same authority as the Court under paragraph (3) to allow an increase in the fees set forth in Appendix A."

6 The plaintiff's submissions in support of his application for a gross sum for costs are neatly encapsulated in paragraphs 2.2 to 2.12 of his written submissions dated 28 March 2012. These paragraphs provide:

"2.2 The plaintiff's submissions may be succinctly stated. The agreement takes effect as a contract. It is to be construed according to ordinary principles. Relevantly:

'It is not the subjective beliefs or understandings of the parties about their rights and liability that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.'[2]

2.3 The question therefore is simply what a reasonable person would have understood by reference to costs being 'taxed in default of agreement'. Plainly the reference is to be understood in the context of the Court Rules regarding the adjudication (to use a neutral term) of costs. The proper, objective construction of the Settlement Agreement therefore depends on the meaning of 'taxed' or 'taxation' under the Rules.

2.4 The starting point must be the definitions in the costs rule, Rule 63.01. First is the definition of 'taxation':

'taxation' or 'taxation of costs' means the assessment, settling, taxation or review of costs.

2.5 Clearly, therefore, 'taxation' under the Rules embraces all the procedures for fixing costs permitted under Rule 63.07. But there is a second relevant definition:

'taxed costs' means costs taxed in accordance with this Order.

2.6 The definitions of 'taxation' and 'taxed costs' together would tend to suggest that 'taxed' in the latter phrase means costs which have been fixed by the process of 'taxation' as defined, and therefore includes costs fixed via either assessment, or settling, or taxation or review. The plaintiff acknowledges, however, and indeed draws the Court's attention to the circumstance that in fact 'taxed costs', in the r.63.01 definition and wherever the phrase then appears in the Rules, in fact appears to mean only costs 'taxed' via the traditional Costs Court taxing procedure. Rule 63.07 itself draws a distinction between 'taxed costs' and, for instance, 'a gross sum specified in the order instead of taxed costs': see r.63.07(2)(c).

2.7 The plaintiff accepts, therefore, that under the Rules a reference to 'taxed costs' is narrower than a reference to 'taxation of costs'. What then is to be made of the Settlement Agreement? The phrase used there is a reference to party-party costs 'to be taxed in default of agreement': clause 2.2. It is not a reference to costs 'to be subject to taxation', so as to make clear that the wider usage of 'taxation' was intended. Nor does it use the defined phrase 'taxed costs' so as to make clear that the narrower form was intended.

2.8 The plaintiff submits simply that the natural construction of the phrase as used in the Settlement Agreement is one which can be paraphrased as 'such costs to be resolved using the Court's procedures for taxation of costs, in default of agreement' and accordingly that the wider usage of 'taxation' is the appropriate one. Three major factors point to that conclusion.

2.9 First, there is nothing in the language of Section 2 of the Settlement Agreement, or elsewhere in the agreement, to suggest that either party intended by the reference to costs to give up any rights in relation to the procedure for finalising costs which otherwise might have been available to them.

2.10 Second, the 'surrounding circumstances known to the parties, and the purpose and object of the transaction' (to use the language of Alphapharm) militate against any narrow construction of the reference to 'taxed' in clause 2.2. The Settlement Agreement was reached near the end of a long trial, of a grouped proceeding using the procedure in Part 4A of the Supreme Court Act, relating to the first of the 'Black Saturday' bushfires. The Settlement Agreement demonstrably seeks to navigate a path for the expeditious, cost-efficient resolution of all the claims affected by the 'class action'. So far as it dealt with costs, its provisions reflected that objective of expeditious cost-efficiency: it requires the parties to seek to agree party-party costs before approaching the Court. That costs provision was made in circumstances where, if the matter had gone to judgment and judgment had been in favour of the plaintiff, the plaintiff would have had his rights to seek gross sum assessment, instead of traditional 'taxed costs'. It is consistent with the overall objectives of expedition and cost-efficiency that the more expeditious, lower-cost procedures for taxation of costs (in the wider sense) should have been preserved under the Settlement Agreement. And as noted above, nothing in the language of the agreement suggests, much less compels, a conclusion that either party intended that both parties be locked into the longer, more expensive processes of determining 'taxed costs' instead of pursuing 'taxation of costs'.

2.11 Third, the same considerations just noted also demonstrate that the construction for which the plaintiff contends is the one best aligned with the overarching purposes of the Civil Procedure Act. Rule 63.07(2) offers litigants alternatives to the traditional procedures for setting 'taxed costs', but always depending on the exercise of the Court's discretion having regard to all the circumstances. A construction of the Settlement Agreement which preserves access to that discretionary power in the Court is plainly a construction which best ensures the efficient and cost-effective resolution of all issues arising between the parties to a proceeding.

2.12 The plaintiff accordingly submits that the Settlement Agreement, on its proper construction, did not preclude either party from applying to the Court for more efficient mechanisms of finalising costs, including by way of gross sum assessment of costs under r.63.07(2)(c)."

7 The plaintiff's submissions correctly set out what was said by the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[3] and the relevant parts of the Rules. That said, the plaintiff's application for a gross sum for costs must be rejected. The order sought by the plaintiff for a gross sum instead of costs to be taxed in default of agreement is not what the parties agreed. Reasonable people in the position of the parties would have been led by the terms of the settlement agreement to believe that what was agreed was the defendant would pay costs to be taxed in the usual way in default of agreement, rather than some gross sum.

8 The plaintiff's application for a gross sum for costs in the present case has parallels with the application made in Jenkins & Ors v GJ Coles & Co Limited.[4] In that case, the Court approved a compromise in which one of the orders made by consent was "an order that the costs of the plaintiffs, including reserved costs, and the costs of the application for approval of a compromise, should be taxed, and when taxed, paid by the defendant". Following the making of that order, the plaintiffs sought an order under rule 63.34(3) that the solicitor's charges allowed on taxation of costs with respect to the proceeding generally should be increased by a factor of 30%. Hayne J dismissed the application, stating:[5]

"In my view, it is not open to the plaintiffs now, in the face of the compromise that was reached, to obtain an order of the kind that they seek. The compromise that was made was a compromise involving an agreement on the part of the defendant to pay the taxed costs of the plaintiff. It was not an agreement to pay costs to be taxed on a higher or enlarged scale."

9 The same might be said of the present application. Further, it is to be noted that, in his judgment in Jenkins, Hayne J saw no difference between the expressions "taxed costs" and costs to "be taxed".[6] The short answer to the plaintiff's application for a gross sum for costs is that it is not open to the plaintiff now, in the face of the compromise that was reached, to obtain an order of the kind he now seeks.

10 The conclusion I have reached that the settlement agreement was not an agreement to pay costs otherwise than costs to be taxed is sufficient to dispose of the plaintiff's application for a gross sum for costs. However, if I am wrong and the settlement agreement contemplates one or other party making an application for a gross sum, then I would, in any event, conclude that the plaintiff has not persuaded me that it would, in the circumstances of this case, be appropriate to order a gross sum for costs instead of costs to be taxed.

11 It may be accepted that the purpose of rule 63.07(2)(c) permitting the Court to award a gross sum is to avoid expense, delay or aggravation involved in protracted litigation arising out of a taxation. A further reason which could weigh in favour of awarding costs in a gross sum might be the likelihood of the party ordered to pay costs being unable to pay the full amount that would be ordered on taxation. However, there is no suggestion that this consideration arises in this case.

12 In support of the rule 63.07(2)(c) application, reliance was placed by the plaintiff on two affidavits sworn by Mr Graeme Peter Arnold, both sworn 14 May 2012, and an affidavit of the plaintiff's solicitor, Mr Brendan Francis Pendergast, sworn 15 May 2012.[7] Mr Arnold deposed to having extensive experience in the costing of commercial litigation. In one of his affidavits, he exhibited a report in which he summarised the total of the plaintiff's costs in the sum of $7,346,653.84. In his other affidavit, Mr Arnold:

(a) estimated his office's fees for preparing a bill in taxable form for party-party costs to be between $125,000 and $150,000;

(b) estimated that the defendant's solicitors would need to expend $50,000 in retaining a costs expert to review the bill and prepare a notice of objections;

(c) expressed the opinion that the costs of a 40 day taxation hearing at $10,000 a day would amount to $400,000; and

(d) estimated the total cost to both parties of a contested taxation would be "up to $659,000".

13 By contrast, Mr Arnold estimated the costs to both parties of a one day gross costs hearing would only be $53,700. In support of Mr Arnold's asserted belief that "the most just and efficient way to deal with the costs in this matter is to utilise a gross costs approach, as opposed to a traditional taxation", Mr Arnold deposed:

"I believe, based upon my experience, and with all due respect to the Costs Court, that the Costs Court (using a traditional taxation approach), is simply not equipped to adjudicate a costs dispute of this magnitude in a timely and efficient manner."

14 Insofar as this last opinion of Mr Arnold's was admissible, I reject it. Experience has shown that the Costs Court is well equipped to resolve contested taxations with considerably more efficiency and economy of approach than Mr Arnold's evidence might suggest he believes. No doubt it is easy to imagine worst case scenarios, where every issue is contested without regard to the obligations parties and practitioners owe to the Court and the administration of justice, and to then estimate the potential costs of such a scenario.[8]

15 Additionally, while a shorter gross costs assessment procedure will obviously involve less expense than a more detailed and longer taxation, the shorter and more summary the gross costs assessment procedure might be, the more likelihood that the costs assessed might vary from those which would have been allowed on a "traditional taxation". Care needs to be taken in resolving any dispute to ensure that a procedure is not so short and lacking in detail as to risk an unfair or wrong outcome.[9]

16 Having considered this litigation in some detail at the approval stage (and taking into account Mr Arnold's affidavits and Mr Pendergast's affidavits), I am not persuaded (even assuming the settlement agreement as properly construed contemplated such a course) that the ordinary course of taxation (in default of agreement) should be replaced by some order specifying a gross sum for costs to be paid by the defendant to the plaintiff. The fact that the settlement agreement operates in such a way that group members will not receive all of their compensation until party party costs and solicitor client costs are worked out (and the group members' liability for their share of unrecovered costs is determined) is not a sufficient reason in this case to depart from the usual form of taxation; nor is the fact that a taxation is likely to take longer than a gross costs assessment (a proposition that is probably true in respect of most proceedings).

17 For these reasons, the plaintiff's application for an order for a gross sum for costs will be dismissed.

The application for an increase (not exceeding 30%) in the solicitors' charges on taxation

18 In support of his application for an increase not exceeding 30% in respect of the plaintiff's solicitors' charges allowed on taxation, the plaintiff submitted as follows:[10]

"3.1 The second issue regarding the finalisation of costs concerns the rates at which items are allowed, within the party-party scale. More precisely, the issue which might arise as part of any taxation procedure is whether the Court (if the matter cannot otherwise be resolved between the parties) should in its discretion allow an increase not exceeding 30% of the solicitor's charges allowed on the party-party scale pursuant to the power conferred by r.63.34(3).

3.2 The circumstances of the present case would if the need arises need to be considered. It was, of course, the first of the Black Saturday bushfire class actions. It was novel, important litigation, involving difficult issues of law, very substantial documentary material (in particular relating to power utility asset management systems), technical electrical evidence and a large number of lay and expert witnesses.[11] It addressed issues of real public interest and importance. Its outcome directly impacts large numbers of people, and the procedure developed by the parties for its resolution involved a novel architecture designed to achieve the best objectives of Part 4A of the Act - access to justice and a cost-effective delivery of compensation to a substantial group of affected persons. There can be little doubt that the Horsham class action satisfied any reasonable criteria as to 'nature and importance', or 'difficulty', of the litigation, within the meaning of r.63.34(3)."

19 Like the application for an order for a gross sum for costs instead of costs to be taxed, this application must also fail. The short answer is that it is not open to the plaintiff to obtain an order of the kind he seeks. The compromise that was made was a compromise involving an agreement on the part of the defendant to pay party/party costs to be taxed in default of agreement. To borrow from the judgment of Hayne J in Jenkins, it was not an agreement to pay costs to be taxed on a higher or enlarged scale.[12] Reasonable people in the position of the parties would have been led by the terms of the settlement agreement to believe that what was agreed was the defendant would pay party party costs on the ordinary scale.[13]

20 Again, and as in the application for a gross sum for costs, this conclusion is sufficient to dispose of this application. However, if I am wrong and the settlement agreement contemplates the plaintiff making an application for an increase of the kind made here, then I would, in any event, conclude that the plaintiff has not persuaded me that such an increase should be ordered.

21 Rule 63.34(3) provides that the Court may "on special grounds arising out of the nature and importance or the difficulty or urgency of the case, allow an increase". In Jenkins & Ors v GJ Coles & Co Limited,[14] Hayne J surveyed some of the authorities in relation to rule 63.34(3) and its predecessors, and concluded:[15]

"I am of the view that the words of the rule require the identification of special grounds arising out of the difficulty or urgency of the case, or the nature and importance of the case."

22 In rejecting the application in Jenkins, Hayne J went on to say:[16]

"The case was ... a 'heavy' one, and important. ... The litigation raised difficult questions, but so too do many cases in this court.

In my view it is not shown that there are here special grounds arising out of the nature and importance or the difficulty of the case such as to bring the case within rule 63.34(3), even if the fact of the compromise did not stand in the way of the plaintiff, as I consider it does."

23 Eight days after the decision in Jenkins was delivered, rule 63.34 was the subject of a judgment of the Full Court in Mayor Councillors and Citizens of the City of Warrnambool v Tabone.[17] In that case, Fullagar J (with whom Brooking and Marks JJ agreed) said:

"The authorities make clear that the facts that the work of the practitioners was onerous and has been done extremely well or very efficiently, as appears to be the case here, is not enough to warrant an order under the Rule. There are some cases, indeed, in the law reports where the principles described in Williamson's case[18] have not been applied and some of them are collected in the unreported judgment of Hayne J referred to later, but in the English cases that fall within this class there has been no citation of the leading cases of Williamson and Paine. In Halsbury's Laws of England 3 Edn Vol 30 p429, it is noted that 'it is not enough that the case is important and difficult; there must also be special grounds arising out of the importance or difficulty.''

In my opinion, neither the reasoning of the learned judge in the present case nor the case itself discloses any 'special grounds' which, as it were, rise above and out of and in addition to the nature and importance, or the difficulty or urgency itself of the case."

24 A little further on in his Honour's judgment, Fullagar J referred to Hayne J's judgment in Jenkins (which was then unreported), saying ultimately that he "entirely agreed" with the reasoning of Hayne J in that case.

25 In support of the rule 63.34(3) application, reliance was placed by the plaintiff on Mr Pendergast's affidavit sworn 15 May 2012. That affidavit sets out in some detail a description of the proceeding, aspects of the proceeding that are alleged to be novel and aspects of the proceeding that are alleged to be difficult and complex. The affidavit also contains assertions as to the importance of the proceeding (both generally and because it was the first of the bushfire class actions, and as such was said to have broken new ground in a way that assists, or has assisted, in the conduct of subsequent proceedings). Mr Pendergast concluded his affidavit by deposing as follows:

"67. Turning to the second aspect of the plaintiff's application, I have been practising as a lawyer for 28 years. I have been a partner of my firm for 24 years. The 4 group proceedings that my firm is running are collectively the most complex, difficult and important litigation in which I have been involved. This is particularly so in relation to this proceeding, being the first of the bushfire class actions to go to trial.

1. 68. The complexity, importance and difficulty of this proceeding arises from a range of circumstances which make the case novel in many regards, which I have set out above.
2. 69. By reason of the above, I believe that each of:

(a) the novelty,

(b) the community importance,

(c) the importance for other proceedings either arising out of the Black Saturday bushfires or otherwise utilizing the 'class action' procedure in respect of 'mass tort' claims, and

(d) the difficulty of this proceeding are exceptional (sic).

1. 70. By reason of the matters set out above I respectfully seek orders that the party-party scale applicable to any assessment of costs in this proceeding be adjusted by the full 30% permitted by r 63.34."

26 Without wishing to be critical (particularly in the light of the high standard of work performed by the plaintiff's solicitors in the pre-trial stages of the proceeding, at trial and up to and including the time of the approval of the settlement), I was not greatly assisted by Mr Pendergast's affidavit. The complexities and difficulties associated with this proceeding were analysed in some detail at the approval stage. In circumstances where the Court has had access to all of the transcript and all of the evidence and all of the material in the various interlocutory applications conducted in the proceeding, expressions of opinion from the solicitor for the party entitled to costs as to alleged complexities and novel issues associated with the proceeding are of doubtful assistance. Further, in circumstances where the Court is well placed to consider such issues and to make comparison with other cases routinely heard by the Court, the opinion of such a practitioner can only be of limited utility.[19] In my view, when one compares this proceeding with the range of proceedings routinely heard and determined in this Court, the proceeding does not warrant being described as one of exceptional difficulty, novelty or importance.[20]

27 While the present case was a group proceeding, there was only one defendant. The claim was pleaded in negligence, nuisance and breach of statutory duty. There was no particular difficulty associated with these causes of action. Many cases in this court involve considerably greater complexities than were involved in this case. It is true there were some novel issues in relation to damages.[21] Further, it may be accepted that the present proceeding, as was submitted by the plaintiff, "addressed issues of real public interest and importance" and that "its outcome directly impacts (sic) large numbers of people, and the procedure developed by the parties for its resolution involved a novel architecture designed to achieve the best objectives of Part 4A of the [Supreme Court] Act - access to justice and a cost-effective delivery of compensation to a substantial group of affected persons".[22] However, in the end, whatever might be said about the nature, importance, precedential value, difficulty or urgency of the present proceeding, in my view, the material does not demonstrate the existence of special grounds arising out of these matters that would bring the case within the operation of rule 63.34(3).

28 For these reasons, the plaintiff's application for an increase of the solicitors' charges pursuant to rule 63.34(3) will be dismissed.

29 The plaintiff's applications will be dismissed. I will hear the parties on the question of costs.

[1] Thomas v Powercor [2011] VSC 614. See further, Thomas v Powercor Australia Limited (Ruling No 8) [2012] VSC 130 and Powercor Australia Limited v Thomas [2012] VSCA 87.

[2] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [40].

[3] [2004] HCA 52; (2004) 219 CLR 165, 179 [40]. See further, Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2012) 86 ALJR 1, 3 [5].

[4] [1993] VicRp 10; [1993] 1 VR 155.

[6] Cf paragraphs 2.6 to 2.8 of the plaintiff's written submissions dated 28 March 2012.

[7] Reliance was also placed by the plaintiff on reply affidavits sworn by Mr Arnold and Mr Pendergast on 16 May 2012. These affidavits were filed in response to an affidavit sworn by Judith Rosalie Hedstrom, filed on behalf of the defendant, and to which I will make reference below.

[8] For the sake of completeness, I should mention that in opposition to this application, the defendant filed an affidavit of Judith Rosalie Hedstrom, a solicitor with extensive experience in costing matters. That affidavit disputed much of Mr Arnold's evidence. Ms Hedstom's evidence was then itself disputed in the reply affidavits sworn by Mr Arnold and Mr Pendergast to which I have already referred. Having regard to the conclusion I have reached, it is not necessary for me to specifically resolve each of these disputes. That said, the following paragraph of Ms Hedstrom's affidavit should be noted:

"The amount of the costs sought before uplift is not, I believe, such an unusual or extraordinary claim for costs that it could not be dealt with in the Costs Court. It is quite suitable for the Costs Court. I have appeared in many taxations in the Costs Court where the base costs claimed on matters significantly exceed the costs claimed by Maddens in these proceedings. My experience is that the Costs Court is well able to deal with claims in the way of Class Actions, particularly bearing in mind the changes to procedure which have occurred over the past few years. Contrary to the views expressed by Mr Arnold in his Affidavit, the Costs Court is well equipped through its ordinary processes to adjudicate the costs recoverable against Powercor in the normal way of any taxation. Particularly, the Costs Court has procedures through the making of interlocutory orders to regulate the dealings between the parties prior to taxation. Most claims of this nature before the Costs Court are subject to mediation following service of a Bill of Costs. More recently the Costs Court has made orders for the inspection of the files of the party bringing in the bill of costs. Taxations themselves run according to a routine process. The Costs Court routinely makes decisions on the issues identified by Mr Arnold in paragraph 14 of this second Affidavit. Thus, the Costs Court will make rulings on the rates for and the number of Counsel, allowances for experts and the number of solicitors which ought be allowed on instructions during hearings and a trial."

[9] Cf Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738, 743 [22]; and WM Wrigley JR Company v Cadbury-Schweppes Pty Ltd [2006] FCA 1186, [9].

[10] Paragraphs 3.1 and 3.2 of the plaintiff's written submissions dated 28 March 2012.

[11] City of Warrnambool v. Tabone VSC (Appeal Division) No.2119/1988, 25 August 1992, unreported (footnote in original).

[12] Cf Jenkins & Ors v GJ Coles & Co Limited [1993] VicRp 10; [1993] 1 VR 155, 156 (Hayne J).

[13] Cf Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, 179 (40). See further, Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2012) 86 ALJR 1, 3 [5].

[14] [1993] VicRp 10; [1993] 1 VR 155.

[17] Unreported Full Court delivered 25 August 1992.

[18] Williamson v North Staffordshire Railway Company (1886) 32 ChD 399, where Cotton LJ (with whom Bowen and Fry LJJ agreed) said:

"Although this case is one of importance and of extreme difficulty I do not think that there are in it special grounds arising out of the nature and importance or the difficulty or urgency of the case. I have great difficulty in understanding the meaning of the rule, and it is not necessary for us to determine its construction, but I think that in the present case, though important and difficult, there are no special grounds arising out of its importance or difficulty to justify us in giving costs on the higher scale."

See further, Paine v Chisholm [1891] 1 QB 531, 534 where Lord Esher MR said:

"In my opinion the application of this rule giving power to allow costs on the higher scale ought to be strictly limited. I think that the proper rule of conduct with regard to the exercise of the discretion should be a strict rule."

[19] Cf Midland Bank Trust Co Limited v Hett, Stubbs & Kemp (a firm) [1979] 1 Ch 384, 402; and Yates v Boland [1998] FCA 8; (1998) 157 ALR 30, 56 (but note the substantial criticism that decision received in the High Court in respect of unrelated issues in Boland v Yates [1999] HCA 64; (1999) 167 ALR 575, 603 [114]).

[20] Cf paragraph 69 of Mr Pendergast's affidavit sworn 15 May 2012.

[21] Cf Thomas v Powercor Australia Limited (Damages Ruling) [2011] VSC 586, upheld on appeal in Powercor Australia Limited v Thomas [2012] VSCA 87.

[22] Paragraph 3.2 of the plaintiff's written submissions dated 28 March 2012.