JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION	:	PERTH

CITATION	:	HANSON -v- ENGLISH [1999] WADC 141

CORAM	:	WISBEY DCJ

HEARD	:	26 NOVEMBER 1999

DELIVERED	:	6 DECEMBER 1999

FILE NO/S	:	CIV 194 of 1999

BETWEEN	:	BEN HANSON
Plaintiff
 
AND
 
RYAN LESLIE ENGLISH
Defendant

Catchwords:
Costs - Order 66 r12(1) of the Supreme Court Rules 1971 (WA) - Good or sufficient reason to order increased allowance - Getting up case for trial
Legislation:
Nil
Result:
Application refused
Representation:
Counsel:
Plaintiff	:	Mr D S Rawlinson
Defendant	:	Mr J G Staude
Solicitors:
Plaintiff	:	David Rawlinson
Defendant	:	John G Staude

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

Collins v Westralian Sands Limited, unreported; FCt SCt of WA; Library No 930171; 31 March 1993
Crisp v Mossensons, unreported; SCt of WA; Library No 970302; 18 June 1997
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
McConnell v Nationwide News Pty Ltd, unreported; SCt of WA; Library No 920670; 10 December 1992
Schmidt v Gilmour (1988) WAR 219

Case(s) also cited:

Lewandowski v Lovell, SCt of WA; Library No 9603110; 14 June 1996
Way v Swan Television & Radio Broadcasters Ltd (1991) 5 WAR 323

1	WISBEY DCJ:  By summons filed 7 October 1999 the plaintiff seeks an order that the maximum allowance for getting the action up for trial be raised to $40,000 notwithstanding the restriction imposed by the relevant costs determinations, the aforesaid limit to apply both for the purpose of a party and party and solicitor and client taxation.  
2		The application is made pursuant to O66, r12(1) which provides that:  
"Where the Court is of opinion that a special order as to costs should be made by reason of the unusual complexity or importance of the case or for any other good or sufficient reason the Court may order that any particular allowances in any relevant scale be raised or a limit removed."  
3		The application is in part directed to solicitor and client costs and has the potential to place the plaintiff's solicitor in conflict with the plaintiff.  However, Mr Rawlinson very properly made it clear that it was not intended to increase the plaintiff's liability above the amount recovered from the defendant.  
4		In order to consider the application it is necessary to briefly examine the history of this action.  
5		The file discloses that the plaintiff was involved in an accident on 16 October 1994 when he was struck by the defendant's motor vehicle whilst he was crossing Stirling Street, Northbridge, on foot.  The accident resulted in significant injuries including (inter alia) head and orthopaedic injuries, with substantial residual cognitive and physical disability.  
6		The plaintiff's solicitor issued a writ with a general indorsement on 19 January 1999, and a statement of claim alleging negligence by the defendant  was filed and served on 5 March 1999.  In a defence filed and served 11 March 1999 the defendant admitted negligence and asserted that the plaintiff was guilty of negligence which contributed to the accident.  The defendant otherwise put the plaintiff to the proof of the allegations of injury, loss and damage.  Because of the extent of the plaintiff's injuries the quantum of the claim was very substantial, although the legal and factual issues were straightforward, and of a kind regularly addressed by personal injury practitioners.  Nothing in the pleadings or in the submissions persuades me to the contrary, and the plaintiff's solicitor very properly conceded that the case was not one of unusual complexity or importance.  It is also to be observed that the action did not go to trial and was settled at pre‑trial conference on 29 July 1999 for $935,000 and costs to be taxed, with liberty to apply for any special costs orders.  
7		The case not being one of "unusual complexity or importance", the plaintiff's solicitor is obliged to establish that the amount of work required in getting the case up for trial was such that he would not be properly remunerated if the party and party costs were required to be taxed subject to the $27,000 limitation imposed by item 13 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996 and/or the Supreme Court Costs Scale 1991 relating to work done on and after 1 April 1991 and before 1 February 1997.  
8		In an affidavit sworn 4 October 1999 the plaintiff's solicitor, Mr Rawlinson, set out the issues involved in the action, and the work required to address contributory negligence and damages.  He stated that it was necessary to proof six witnesses on liability and obtain authorities from another four witnesses to gain access to their police statements.  Attempts were made to locate and interview several other witnesses.  In addition, it was necessary to monitor a criminal prosecution of the defendant arising out of the accident, and a subsequent appeal to the Court of Criminal Appeal.  It was proposed at trial to call 13 to 16 witnesses on the issue of liability.  In respect of damages the plaintiff's injuries were extensive and he was treated and assessed by a general practitioner and six specialists, it being necessary to obtain and evaluate approximately 25 reports.  There were particular problems concerning the assessment and evaluation of the plaintiff's loss of earning capacity.  The action was fully "got up" for trial, and had it not settled at pre‑trial conference it was estimated that the length of trial would be seven to eight days.  In the result the claim was settled at pre‑trial conference.  
9		Annexure "A" to the aforesaid affidavit identifies the various witnesses in respect to liability and damages.  Annexure "B" entitled "an itemised account" details the work done between 24 October 1994 (presumably the date of instructions) and the 27 July 1999, and identifies 1957 6 minute units or 195.7 hours of chargeable time.  Such a method of global time costing does not accurately and reliably reflect the time expended on work, and is at best an "ambit" claim.  Mr Rawlinson states that after allowing for work done in relation to discreet scale items other than getting up case for trial, the account demonstrates that approximately 160/165 hours work in the nature of getting up case for trial was carried out by him.  He pointed out in oral submissions that at $200 an hour that would amount to $32,000.  Annexure "C" to the affidavit is the proposed bill of costs for taxation in which there is a claim for $40,000 getting up case for trial.  
10		The defendant opposes the order sought on the application and has filed an affidavit of John Gerard Staude sworn 22 November 1999 outlining the defendant's perspective.  The affidavit refers to the fact that there was no dispute as to the nature of the plaintiff's injuries and their residual consequences; the plaintiff's credibility was not in issue; there was no medical specialist controversy; and for the purpose of achieving settlement the defendant abandoned the plea of contributory negligence.  
11		The principles governing an application such as this, although particularly referrable to the old fourth schedule, are set out by the Chief Justice in Schmidt v Gilmour (1988) WAR 219 at 220 as follows:  
"The rule clearly contemplates the possibility of there being 'good and sufficient' reason for making an order increasing the scale in that Schedule notwithstanding the fact that the case is not one of unusual complexity or of importance.  For myself I can see no reason for saying that the amount of work which of course must fairly fall within the scale item of getting up case for trial, and whether it does or not will be for the Taxing Master to determine, cannot of itself constitute a good and sufficient reason for doing so.  …  Whether the amount of such work does in any particular case constitute a good and sufficient reason to depart from the scale is of course another matter and the discretion which the rule confers upon the Court - 'the Court may order' - is not one which must be exercised upon a finding of inadequacy of any degree.  So to hold would be inconsistent with the policy of the scale.  The inadequacy must be such as to constitute a good and sufficient reason and whether it does is a question for judgment in every case."  
12		In Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 at 404 his Honour the Chief Justice said:  
"It is a matter for the trial Judge to determine as a matter of judgment whether, on the face of it, the amount of work done appears to have been reasonably done so as to constitute good and sufficient reason for making the order.  That is a judgment which is essentially preliminary and provisional in nature for the purpose of the exercise of the discretion granted by the rule.  A Judge will no doubt draw on his own experience, the impression gained during the course of litigation, and his appreciation of the issues which have been involved, in making that judgment.  There is, of course, a basic principle that the successful party to litigation in the ordinary course of events will be entitled to an order for costs.  The purpose of such an order for costs is to enable the successful party to recover those costs which have been reasonably and properly incurred in conducting the litigation."  
13		I do not understand his Honour to be saying that to obtain a special order an applicant has merely to show that the work done exceeds the scale allowance for such an approach would make the scale allowances unnecessary.  See Collins v Westralian Sands Limited, unreported; FCt SCt of WA; Library No 930171; 31 March 1993.  The issue is whether the costs have been reasonably and properly incurred, and whether the difference is one of such consequence that the justice of the situation requires a special order.  McConnell v Nationwide News Pty Ltd, unreported; SCt of WA; Library No 920670; 10 December 1992.  
14		In this case, there not having been a trial, I am left to the evidence produced on this application, my own experience (which in cases of this nature is not inconsiderable), a consideration of the file, and my appreciation of the issues which were involved in the action, in making the required judgment.  
15		The defendant points out, and I accept, that in this case some of the work done is subject to the 1991 scale, but the bulk of the work would be subject to the 1996 determination which came into operation on 1 February 1997.  In the preamble to that determination the Committee indicated that it was no longer possible to support a scale based on an ad valorem charge for the main item "getting up case for trial", as was the position in previous scales.  The Committee pointed out that the getting up allowance was calculated by reference to the time reasonably spent in the provision of services.  It recorded:  
"the new scale of costs shows the time and the fee earner whose hourly rates have been assessed to calculate the dollar amount in the scale.  Set out in the table are the average maxima of hourly and daily rates revealed by the survey.  Each item in the scale of costs specifies a dollar amount by reference to a fee earner."  
"It will be noted from items 13 and 14 of the Schedule that if more than 100 hours must reasonably be spent on getting up the case for trial and if more than 3 days must reasonably be spent by counsel in mastering the brief and preparing for the trial, then the Committee considers that to be a basis to seek a special order for costs under O 66, r 22 (sic) 12 of the Rules of the Supreme Court."  
Item 13 "getting up case for trial" provides a maximum of $27,000 based on 100 hours performed by a senior practitioner at an hourly rate of $270.  
16		Notwithstanding the view of the Committee, it does not follow that because a practitioner is engaged for more than 100 hours getting a case up for trial, the practitioner is prima facie entitled to a special order.  That would effectively remove the discretion referred to in O66, r12(1) and require a view to be taken that the maximum allowance provided by the item is nugatory.  Clearly that is not the intention of the Supreme Court Rules, or the effect of the determination.  It still remains to determine whether the time spent in preparation was reasonably required, and if so, whether the discrepancy between the maximum scale allowance, and the amount required to reflect the time spent, demand that the discretion of the Court be exercised in favour of the applicant.  
17		The defendant refers to s27A of the Motor Vehicle (Third Party Insurance) Act 1943 inserted by amending act 17 of 1994, which provides that in an action for damages in respect of death of or bodily injury to a person directly caused by, or by the driving of, a motor vehicle (and this is such an action) an agreement is not to be made for a legal practitioner to receive, for appearing for or acting on behalf of a person in an action to which the section applies, any greater reward than is provided for by a determination in force under s58W of the Legal Practitioners Act 1893.  The defendant argues that the section limits solicitor and client costs to the maximum recoverable under the determination, and consequentially limits party and party costs in like manner, notwithstanding O66, r12.  I do not accept that to be the position, and have no doubt that the legislation would have been specific had that been the intention of Parliament.  The section does, however, reflect the community view as enunciated by the Parliament that there must be moderation of legal costs in such matters, having regard to the fact that the payment is made from community funds.  That is a matter which I am entitled to take into account in exercising the discretion.  
18		The defendant also points out also that pursuant to O66, r21 the item "getting up case for trial" applies only where there has been a substantial trial (Seaman - Civil Procedure p12, 706); although it is to be noted that the order provides that a Judge or the Taxing Officer may make such allowance in lieu of the fees prescribed as is merited.  The position, however, is that a higher allowance should not be made when there has been no substantial trial than could have been made had the action been tried.  Crisp v Mossensons, unreported; SCt of WA; Library No 970302; 18 June 1997.  The fact that there was no substantial trial is not in my view fatal to this application.  
19		Having regard to the comments I have made concerning the accuracy and reliability of unit time costing, applying my own experience to the factual aspects of the case and the issues involved, and making a judgment as to the time that could reasonably be expected to be necessarily involved in getting the matter up for trial, I am not persuaded that the plaintiff's legal adviser is not appropriately remunerated provided in item 13 in the schedule to the determination.