Duzevich v Carrier Air Conditioning Pty Ltd [2001] WADC 32 (16 February 2001)

Last Updated: 29 November 2006

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH

CITATION : DUZEVICH -v- CARRIER AIR CONDITIONING PTY LTD [2001] WADC 32

CORAM : MARTINO DCJ

HEARD : 16 FEBRUARY 2001

DELIVERED : Delivered Extemporaneously on 16 FEBRUARY 2001 typed from tape and edited by Trial Judge

FILE NO/S : CIV 779 of 1999

BETWEEN : IVAN ROBERT DUZEVICH

Plaintiff

AND

CARRIER AIR CONDITIONING PTY LTD

Defendant

Catchwords:
Procedure - Costs - Application to increase limit contained in costs determination

Legislation:
Legal Practitioners (Supreme Court) (Contentious Business) Determination 1999
Rules of the Supreme Court

Result:
Application dismissed

Representation:

Counsel:

Plaintiff : Mr S V Forbes

Defendant : Mr R G Walton

Solicitors:

Plaintiff : Paul O'Halloran

Defendant : Civitella Smith

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

Kula v Stuckey & Ors [2000] WADC 226

Case(s) also cited:

Nil

1 MARTINO DCJ: This is an application by the plaintiff for an order that the plaintiff be entitled to tax the whole of his costs of getting up case for trial without regard to the limit imposed by item 13 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 1999.
2 I heard the trial of this action as a Commissioner of this Court. I delivered judgment for the plaintiff on 8 November 2000. At that time I made orders for judgment and an order that the defendant pay the plaintiff's costs of the action to be taxed. I did not then make any special costs order. No special costs order was sought. The reason for that is a misunderstanding or lack of communication, more accurately, between the plaintiff's solicitors and counsel who appeared before me in November. That has been made clear by an affidavit of Mr O'Halloran sworn on 5 December 2000.
3 The defendant submits that I do not have power to make the order sought by the plaintiff. That does not seem to me to be correct. Order 66 r 12 of the Rules of the Supreme Court provides that costs orders of the kind being sought in this case can be made by the court. Order 66 r 10 provides that costs may be dealt with at any stage of the proceedings or after the conclusion of the proceedings. I note also in this case that the judgment has not yet been extracted. I conclude that I do have power to make the order sought.
4 The cost determination was made by the Legal Costs Committee under powers that it has been given by Parliament under the Legal Practitioners Act 1893. The relevant item, item 13, provides:

		"Time	Fee Earner	$
13.	Getting up case for trial	100 hours	SP	27,000"

5 The setting out of items in that way by the Legal Costs Committee is dealt with in par 7 of its determination of 1996. Essentially the committee has explained that the reason why the number of hours has been specified in its determinations is to assist the courts in applications such as this one in determining whether or not the limits should be increased.
6 The plaintiff contends that the case was one of considerable complexity and his counsel referred to the decision of Fenbury DCJ in Kula v Stuckey & Ors [2000] WADC 226 in which after a 14 day trial on issues of medical negligence, Judge Fenbury said that it was not necessary for affidavits to be filed in relation to the application for increasing cost limits before him because he had heard the case and he was aware of all that was involved.
7 In this case there is no evidence before me that the time specified by the Legal Costs Committee in its determination of 100 hours for getting up the case for trial is not enough. The case itself went for some four and a half days. It dealt with issues of the duty of care owed by defendant to the plaintiff, whether that duty of care had been breached and the amount of damages. The case was not one of unusual complexity. It was a case of the kind that is regularly dealt with in this Court.
8 For that reason, plus the reason that there is no evidence before me that the 100 hours specified by the Legal Costs Committee is not sufficient in this case, I decline to make the orders that the plaintiff seeks.