Agostino v McDonald - [2003] WADC 170

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: AGOSTINO -v- McDONALD & ANOR [2003] WADC 170

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 29 JULY 2003

DELIVERED : 8 AUGUST 2003

FILE NO/S: CIV 420 of 2002

BETWEEN: LEVIJAY AGOSTINO
Plaintiff
AND
APRIL ANNE HALL McDONALD
First Defendant
AMBER AGOSTINO
Second Defendant

Catchwords:

Practice and Procedure - Western Australia - Objections on Taxation - Turns on its own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Objections not allowed

Representation:

Counsel:

Plaintiff:     Mr P Kakulas
First Defendant             :     Mr B C Sierakowski
Second Defendant         :     Mr B C Sierakowski

Solicitors:

Plaintiff:     Kakulas & Kakulas
First Defendant             :     Brian C Sierakowski
Second Defendant         :     Brian C Sierakowski

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HEWITT: This matter arises from the defendant's objection to an allowance of $5,377.18 to item 9 of the plaintiff's Bill of Costs for Taxation which came before me on 8 May 2003.
Specifically the objection is stated in the following terms:
"The Defendants submit that the Deputy Registrar has erred in principle in allowing the amount of $5,377.18 notwithstanding that it was patently obvious to any reasonable assessment of this item that the work claimed for getting up was either not performed or was grossly excessive in respect of the alleged hours of work claimed for the work to be performed.
Further, the Deputy Registrar failed to adequately scrutinise and evaluate the alleged work performed. As a consequence, his allowance was contrary to the evidence or was unsupported by evidence to justify the amount allowed. He failed to make a decision about the reasonableness of the number of hours required to be spent and secondly, the appropriateness of the fee earner involved in the process given the complexity of the issues to be considered.
Further, the Deputy Registrar failed to particularise what amounts he disallowed for getting up from the plaintiff's worksheet of alleged work performed. Had he done so, it would have clearly illustrated that his allowance was grossly excessive.
The Deputy Registrar erred in not properly considering the following:
(a)the uncomplex nature of the claim for damages;
(b)the practitioner's experience;
(c)the quality of the practitioner's work;
(d)the time spent by the practitioner on the case;
(e)the responsibility involved.
The defendants submit that upon a proper determination of the alleged work prepared in getting up case for trial the appropriate allowance would be $3,000.00 given a proper exercise of the Deputy Registrar's discretion."
Ignoring the florid and emotive manner in which the objection is couched, in its substance the main thrust of the objection appears to me to be that given the nature of the case the amount allowed for getting up case for trial was so excessive as to disclose an error in principle. There are however various sub‑categories within the objection with which I shall first deal individually.
The first allegation upon which the defendant relied in argument before me is that the hours claimed to have been spent by the plaintiff's solicitors had not in fact been spent. It was an allegation in essence of fraud and the contention of the objecting party was that the solicitors had dishonestly presented information as to the amount of time which had been taken by them in preparing the case. That comment related specifically to an exhibit to the original bill setting out various tasks undertaken by the plaintiff's solicitors and the claim for them.
I reject the suggestion that the plaintiff's solicitors have made a fraudulent claim and that they have fabricated figures of the time which was taken to perform the various tasks for which they made claim under the heading of "Getting up Case". I therefore accept that the hours claimed to have been worked by the solicitors as set out in their schedule are an accurate reflection of the time which they actually took. I do not by that acceptance necessarily endorse the schedule as being correct in every particular, but I accept it as being an honestly prepared document intended to accurately reflect the time taken on these various tasks. The issue then becomes whether the time taken was reasonable. On that issue the solicitors in their schedule indicated a total time spent in the order of 30 hours, reduced to some extent for the purposes of taxation and claimed at $8,764, from which I deducted slightly over one third to achieve a final figure of $5,764.79. At the hearing of the objection a further itemised schedule was presented to me estimating what the solicitors considered to be a reasonable time to undertake the various tasks comprised in getting up, which totalled approximately 30 hours. Therefore, in response to this aspect of the objection I say that the evidence which was before me and which I accepted was that work in the vicinity of 30 hours was spent by way of getting up case for trial, that due to the nature of the case I considered that allowance to be too high and I therefore made a deduction of $3,000 to reach the figure allowed. Therefore, insofar as it is said that I failed to adequately scrutinise and evaluate the alleged work performed, I say that I had before me and accepted as broadly accurate a schedule of such work.
As to the allegation that I failed to assess the reasonableness of the hours performed I say that task was undertaken and led to the significant reduction in the claim which I have earlier outlined. As to the consideration of the appropriateness of the fee earner concerned that process was part and parcel of the reduction process to which I have earlier referred.
It is next complained that I filed to particularise what amounts I allowed from the work sheet and that had I done so that would have been illustrative of the fact that my allowance was grossly excessive.
The process of examination of the work sheet led me to the conclusion that the time taken for the tasks described was excessive. That formed the basis of the reduction to which I have referred.
The next broad thrust of the objection is that I failed to properly consider the uncomplex nature of the claim for damages, the practitioner's experience, the quality of the practitioner's work, the time spent by the practitioner on the case and the responsibility involved. It was common ground that the plaintiff was a young boy when first injured in the first accident, still an infant when injured in the second accident and the combination of the injuries received for the two accidents was not great. Notwithstanding the assertion to the contrary by the solicitor for the defendants there was in fact the usual ambit of claims arising from a personal injury including a loss of income past and future. That claim was supported by certain of the medical reports upon which the plaintiff relied. Although the case settled for $15,000 the bold assertion by the defendants' solicitor that there was no allowance for economic loss in that judgment is unsustainable. The settlement was reached at a pre‑trial conference and although the defendants' solicitor in offering $15,000 may have made no allowance for economic loss the plaintiff's acceptance of that sum does no more than indicate a willingness to accept $15,000 as a settlement figure. There is not and I infer no abandonment of a claim for economic loss, simply a pragmatic settlement, as should be the case at a pre‑trial conference, of a claim which the plaintiff would prefer to see settled rather than proceed to a trial. It is wrong in principle in my view to impute the defendants' solicitor's evaluation of the claim to the plaintiff and infer that there was an acceptance that part of his claim was unmeritorious. I do not accept that to be the case and on the materials which I have reviewed, the plaintiff, had this matter proceeded to trial, had evidence upon which he might have persuaded a judge that an allowance for past and future economic loss was justified.
The next aspect which is raised is the practitioner's experience but I am unable to detect any propositions which are put forward on that score. By and large the case appears to have been handled by senior practitioners, ie practitioners over five years experience with assistance from junior practitioners and clerk paralegals where thought appropriate. That is the way cases are normally handled and I am unable to see any reason that this case should be regarded in a special light.
There is next a suggestion that the quality of the practitioner's work was not of a standard which should attract a substantial sum by way of getting up. That is not elaborated on but in essence appears to me to be a statement by the defendants' solicitor that since he took a different view of the case from that adopted by the plaintiff's solicitor that difference is illustrative of the fact that the plaintiff's solicitor failed to properly grasp and analyse the relevant issues in the case before him. That is not a proposition that I accept.
The next issue is the time spent by the practitioner on the case but that appears to be dealt with in other aspects upon which I have commented, and finally the responsibility involved which again, I assume, reflects on the amount of the eventual settlement.
As to the responsibility, the plaintiff was throughout much of the period for which a claim was made and the preparation of this case proceeded, an infant and I would have thought that would attract a higher level of responsibility and care than a normal case.
I now turn to the allowance which was made. The plaintiff's solicitors first took instructions in regard to the injuries sustained by the plaintiff in 1993. Clearly the injuries which he sustained in the first accident were not great and no great steps were made in respect of the claim save to lodge an intention to claim and obtain some medical reports in relation to the injuries. Given the nature of the original injuries I have no criticism of the plaintiff's solicitors for failing to initiate proceedings at that stage.
The matter was complicated by a subsequent accident which occurred in May 1998. The injuries sustained in that accident were more significant than in the first and reactivated the efforts of the plaintiff's solicitors on his behalf. The normal steps were undertaken including giving notice of intention to claim and seeking further medical reports relevant to the plaintiff's injuries and a further proof in addition to that which was taken at an earlier stage in regard to the first accident. The proceedings appear to have commenced after the defendants suggested that they proposed to bring an application under s 29 of the Motor Vehicle (Third Party Insurance) Act 1943 to force the plaintiff's hand. The matter proceeded thereafter unremarkably and the usual processes were undertaken and the matter was eventually listed for trial and settled at a pre‑trial conference. The factors which I took into account in reaching the allowance which I did were that the plaintiff was involved in two accidents and separate instructions and proofing were required in respect of each and separate investigations were required in respect of each. I also took into account the fact that for most of the period with which I was concerned the plaintiff was an infant which in my view places an onus on a solicitor to take special pains to ensure that the infant and (in this case) the infant's parent fully understood the position and the options which were open to them.
The plaintiff's solicitors kept a file open on this matter for nine years prior to issuing a writ. In that time there was some, although not intensive, contact with their client and particularly the level of contact became more intense after the second accident in 1998. None of the work for which the plaintiff's solicitors made claim in the bill struck me as being inappropriately claimed, in other words not matters properly the subject of a party/party bill and by making a deduction of approximately one third from a total in the vicinity of 30 hours that I have indicated that a total time taken of approximately 20 hours was reasonable in the circumstances of this case. I do not resile from that conclusion. In its final paragraph the defendants' solicitor has suggested that an allowance of $3,000 would be appropriate in this case. After considering the matter and hearing submissions and making the findings to which I have earlier referred I do not agree. I am not satisfied that an allowance such as I have made indicates an error in principle nor on reconsidering the matter, and in effect taxing the bill again, am I inclined to reach different conclusions to those which I reached at the first taxation.
Accordingly, the objections to taxation are not allowed.
There remains the issue of the costs of the objections. Any party wishing to make submissions as to the costs of the objection may do so in writing within 14 days from the date of delivery of these Reasons and I shall take those submissions into account when making a determination on that issue.