Tag Archives: Supreme Court

Special Costs Orders

This is just a quick post to highlight what seems to me to be a recent increase in the making of special costs orders. 

A special costs order is, simply put, an order either removing or increasing the limits on party and party recovery imposed by the Legal Practitioners (Supreme Court) Contentious Business Determination 2010 (WA) (and other relevant determinations).  

Section 280(2) of the Legal Profession Act 2008 (WA) provides the basis for such an order. 

In order to obtain a special costs order, you need to satisfy the court of two matters. 

  1. is the scale, or the scale item inadequate?
  2. that the inadequacy arises because of the unusual difficulty, or complexity, or importance of the matter. 
To show inadequacy, you need only show that if the bill that would be presented to the taxing officer might tax out at an amount greater than the amount provided for by the relevant determination. This can usually be done by having an affidavit outlining the work undertaken and with an explanation why the work was necessary. It is also becoming increasingly common for parties to file affidavits from so-called ‘Costs Specialists’ meaning a practitioner who mainly practices in the area of legal costs, for example someone such as David Garnsworthy. 
 
Once an apparent inadequacy has been demonstrated, the second ‘limb’ of a special costs order needs to be fulfilled. There are three ways to do this. Show that the matter was unusually difficult. Show that the matter was complex. Show that the matter was important.  
 
I think it is fair to say that these are broad grounds and will usually be determined on the facts of the case and how the case proceeds. However, one could imagine that most Supreme Court litigation would likely fall into one category or another.
 
It is worth noting that even if you are successful in obtaining a special costs order, your bill might still tax out at less than the relevant determination. 
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No Writ for You!

I note with interest that yesterday the Supreme Court of Western Australia published its reasons in The Principal Registrar of the Supreme Court v Chin [2012] WASC 7.

This case is somewhat unique in that it dealt with an application by the Principal Registrar to declare Mr Chin, a solicitor, a vexatious litigant.

Over a period of approximately five and a half years Mr Chin commenced twenty-two sets of proceedings in various West Australian courts. These proceedings consisted of:

  • 1 State Administrative Tribunal action;
  • 2 Magistrates Court actions;
  • 1 District Court action;
  • 10 Supreme Court actions (7 of which sought certiorari and mandamus);
  • 4 Court of Appeal actions; and
  • 3 special leave applications to the High Court of Australia.

Mr Chin was also the respondent to disciplinary proceedings in the State Administrative Tribunal.

The proceedings in question related broadly to three separate events: firstly, the removal of a caveat lodged by Mr Chin purportedly to protect a solicitors’ lien; secondly, in relation to conditions the Legal Practice Board sought to impose on his practicing certificate; and thirdly in relation to a dispute he had with a Mr Thies, a solicitor to whom Mr Chin owed money.

The application was brought on the basis that the Mr Chin’s actions were vexatious as defined by Section 3 of the Vexatious Proceedings Restriction Act 2002 (WA).

  vexatious proceedings means proceedings —

(a)              which are an abuse of the process of a court or a tribunal;

(b)              instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;

(c)              instituted or pursued without reasonable ground; or

(d)             conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.

The Principal Registrar sought to characterise Mr Chin’s conduct as being covered by paragraphs (a), (c) and (d) of the Act.

At the substantive hearing Mr Chin spent his time and focus on defining ‘justice’ rather than directly responding to the contentions advanced by the Principal Registrar.

Murray J was satisfied that the proceedings relied upon may be characterised as an abuse of process, not because of any wrongful motive but because of their general character. His Honour also discussed that it was not necessary to show that the proceedings were intended to be vexatious but rather the general character of the proceedings was to be considered. It was clear from the reasons that Mr Chin’s proceedings amounted to no more than a collateral attack on the judgement of the court in each instance. The sheer volume of relief sought by prerogative writ it testament to that. It was not possible for Mr Chin’s proceedings to be regarded as a proper use of the appellate process.

It was likely Mr Chin’s ‘single minded willingness to litigate and re-litigate the same issues’ that was his undoing.

Orders were made that Mr Chin was not commence proceeding of any kind without the leave of the Court and that leave was only to be granted if the proceedings are not vexatious proceedings and there is a prima facie ground for the proceedings.

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