[2012] WASC 129(S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS

CITATION : RE GRAHAM ANSTEE-BROOK; EX PARTE KARARA MINING LTD [2012] WASC 129 (S)

CORAM : LE MIERE J HEARD : ON THE PAPERS DELIVERED : 5 JULY 2012

FILE NO/S : CIV 1364 of 2012

MATTER : An Application for a Writ of Certiorari directed to Mr Graham Anstee-Brook exercising jurisdiction pursuant to the Construction Contracts Act 2004

EX PARTE

KARARA MINING LTD Applicant

Catchwords:

Costs - Application for special costs order - Turns on own facts

Legislation:

Construction Contracts Act 2004 (WA)

Legal Profession Act 2008 (WA), s 280(2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant : No appearance

Solicitors:

Applicant : Jackson McDonald

Case(s) referred to in judgment(s):

Nil

1 LE MIERE J : The applicant, Karara Mining Ltd, applied for an order nisi for a writ of certiorari to quash a determination by Mr Graham Anstee-Brook under the Construction Contracts Act 2004 (WA) (the Act) in respect of an application for adjudication by D M Drainage and Constructions Pty Ltd (DMC) determining that Karara must pay DMC $4,981,285.50 (the Adjudication). Karara also applied for a stay of the Adjudication. I granted an order nisi on two grounds and dismissed the application for a stay: [2012] WASC 129. I ordered that the costs of incidental to the order nisi be reserved to the return of the order nisi and that the applicant pay DMC the costs of the application for a stay.

2 DMC now applies for a special costs order in respect of its costs for the stay application. The orders sought are:

1. The maximum hourly and daily rates set out in cl 10 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (the Determination) be removed.

2. The taxation proceed on the basis that the stay application is principally subject to item 11 of the table to cl 11 of the Determination.

3. The limits on costs imposed by item 11(a) of the table to cl 11 of the Determination be removed and the taxation proceed without regard to those limits.

DMC seeks alternative orders that:

4. The maximum hourly and daily rates set out in cl 10 of the Determination be removed.

5. The taxation proceed on the basis that the stay application is principally subject to item 10 of the table to cl 11 of the Determination.

6. The limits on costs imposed by item 10(a) of the table to cl 11 of the Determination be removed and the taxation proceed without regard to those limits.

7. There be an allowance for an instructing solicitor to attend hearings (where appropriate).

3. The applicant, Karara, opposes the making of any special costs order.

The applicable scale

4 Proceedings by way of prerogative writ fall under item 28 of the scale of costs under the Determination. Paragraph 8 of the Determination states that item 28 is intended to cover all necessary procedural steps involved in the handling of prerogative writs, both in respect of an application for a motion to show cause and return before Court of Appeal. Item 28(a) covers 'motion for order to show cause (including preparation and hearing)'. In this case the originating motion for an order to show cause included a motion that the order nisi do operate as a stay of the Adjudication. It is arguable that item 28(a) of the Scale is intended to cover all proceedings on a motion for an order to show cause, including an application that the order nisi operate as a stay of the order or proceedings being challenged. DMC submitted that the taxation of DMC's costs of the stay application should proceed on the basis that the stay application is principally subject to item 11 or alternatively item 10 of the Scale. Karara submitted that item 11 has no application in these proceedings and that the proceedings generally fall under item 28, but that item 28 does not make provision for interlocutory applications or hearings. Karara submitted item 10(a) makes provision for proceedings in chambers generally and applies to the stay application in this matter.

5 In view of the submissions by Karara, I find it unnecessary to decide whether or not the costs of the stay application fall under item 28. I will order that, in accordance with DMC's alternative order, the taxation of DMC's costs of the stay application proceed on the basis that the application is principally subject to item 10.

6 Mr Nairn, the solicitor who has had day-to-day conduct of the proceedings on behalf of DMC, has sworn an affidavit in support of DMC's application for a special costs order. Annexed to Mr Nairn's affidavit is a schedule of the work that was done by DMC's solicitors in respect of the stay application. The schedule is divided into work items and specifies the scale item applicable to each work item. Mr Nairn allocated every work item to Scale item 10(a) except for two items of attending conferrals and conferences. Karara agrees, and I accept, that those are the applicable Scale items.

Special costs order

7 DMC seeks orders that the maximum hourly and daily rates set out in item 10 of the Scale be removed and the limits on costs imposed by item 10(a) be removed and the taxation proceed without regard to those limits.

8 Legal Profession Act 2008 s 280(2) provides that the court may, amongst other things, remove limits on costs fixed in the Determination, if the court is of the opinion that the amount of costs allowable under a determination is inadequate because of the unusual difficulty, complexity or importance of the matter.

Special order not warranted

9 I am not satisfied that the condition for making an order under s 280(2) is met, that is, I am not of the opinion that the amount of costs allowable in respect of the matters under the Determination is inadequate because of the unusual difficulty, complexity or importance of the matter.

10 DMC submits that the stay application was relevantly complex and/or unusually difficult having regard to:

(1) the complexity and scope of the law that had to be considered on an expedited basis - the stay application necessarily involved argument on the merits of the order nisi application, which in turn required a detailed consideration of a complex and developing area of the law, namely the availability of prerogative relief to the decision of an adjudicator acting under the Act, specifically in the context of s 27 of the Act;

(2) the volume and nature of the material that was filed by the parties; (3) the manner in which the application proceeded, including the fact ^{that the stay application proceeded on an expedited basis, the fresh} evidence that was filed by Karara on 9 March 2012 which 'shifted the focus of the stay application mid-stream'; and the practical need (via the mechanism of extensive written submissions) to truncate the time spent on oral argument.

11 Whilst the application for an order nisi was relevant to the stay proceedings, the costs of the order nisi application have been reserved to the return of the order nisi. Furthermore, I granted the order nisi on two of the grounds on which it was sought. At the order nisi stage it is not necessary to determine the merits of the order nisi application beyond that the applicant has a reasonably arguable case. In any event, I am not satisfied that the law that had to be considered in relation to the application for an order nisi, insofar as it was necessary to consider it on the stay application, is unusually difficult or complex.

12 There was a large volume of material before the court. Most of it consisted of annexures to affidavits. I do not consider that the volume of the material, or the marshalling and analysing of it, for the stay application was complex or unusually difficult.

13 I do not consider that the manner in which the application proceeded renders it unusually difficult or complex. There were five hearings. The first hearing on 2 March 2012 was principally devoted to the application for an order nisi. The hearings on 6 and 8 March 2012 were procedural in nature. The hearing on 12 March 2012 was principally concerned with the stay application. That hearing lasted approximately one hour 20 minutes. There was a further hearing of approximately one hour on 14 March 2012. The court hearings in total occupied approximately five hours. That approximately equates to a one-day hearing, or perhaps slightly longer than a usual one-day hearing, which is the time allowed for by Scale item 10(a).

14 DMC submitted that the stay application was of considerable importance, not only to the parties, but also to the administration and efficacy of the rapid adjudication scheme established by the Act. So far as DMC is concerned, it submitted that the stay application concerned an adjudication determination worth almost $5 million and if the stay application succeeded DMC faced being put out of that considerable sum of money pending the ultimate resolution of the prerogative relief proceedings. In my opinion, that is not sufficient to amount to importance so as to justify a special order under s 280(2). DMC further submitted a stay granted on the basis of a pending certiorari application would be of importance to the broader construction industry for two reasons. First, it would encourage prerogative relief applications and associated stay applications to be pursued by parties dissatisfied with an adjudicator's determination. Secondly, unpaid contractors considering pursuing rapid adjudication applications may be dissuaded from doing so on the basis that their efforts to obtain the interim relief afforded by the Act could well be frustrated in the event that the principal/owner brought a prerogative relief application. I am not satisfied the application was important so as to warrant a special order under s 280(2) for those reasons. The application involved no novel point of law. The application turned on its own facts.

15 I am not of the opinion that the amount of costs allowable under the Scale is inadequate. I was the case manager and presided over all of the hearings in this matter. Scale item 10(a) allows for two days' preparation and a one-day hearing. All of the hearings in this matter occupied the equivalent of one day. Approximately half of that time was taken up with the application for an order nisi. The costs of the order nisi application are reserved to the hearing of the application to make the order absolute. There is nothing about the materials prepared or presented by DMC in opposition to the stay application, or the materials which DMC had to consider in resisting the stay application that renders two days' preparation inadequate.

16 Mr Nairn states that the hourly rates of Lavan Legal, DMC's solicitors, relevantly exceed those of the Scale and depend on the seniority and rank of the particular practitioner. However, a court should not order that the hourly rates to apply in assessing costs should be in excess of the hourly rates allowed in the Scale merely because a party's solicitor or counsel have charged at a higher rate. There is not sufficient justification for a court to increase the maximum hourly rate beyond that allowed for in the Scale. The Scale reflects the fact that the costs of legal services provided in relation to Supreme Court actions are in the main calculated by reference to the time reasonably spent in the provision of those services and by applying to that time a reasonable hourly rate, that rate varying according to the seniority and experience of the practitioner and the complexity of the work. Scale item 10(a) allows for two days' preparation and one day hearing calculated at the rate charged by counsel. Those rates are the average maxima of hourly rates revealed by survey and enquiries conducted by the Legal Costs Committee. In cases not involving unusual difficulty or complexity or importance, those rates are sufficient for assessing party and party costs. A party is always entitled to the luxury of retaining more eminent or higher paid practitioners in the conduct of their case, but they cannot always expect to recover those costs from the other party.

Conclusion

17 I will order as follows:

1. For the purposes of taxing the costs of DMC in respect of the applicant's application for a stay:

(a) the taxation proceed on the basis that the costs of conferrals and conferences are subject to item 24(a) of the table to cl 11 of the Determination;

(b) the taxation proceed otherwise on the basis that the costs are subject to item 10 of the table to cl 11 of the Determination.

2. DMC's application for special costs orders are otherwise dismissed.

3. DMC shall pay the applicant's costs of DMC's application for special costs orders in relation to the stay application.