Alvaro v McGready

[2011] WADC 206

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   ALVARO -v- McGREADY [2011] WADC 206

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   ON THE PAPERS

DELIVERED          :   22 NOVEMBER 2011

FILE NO/S:   CIV 2079 of 2007

BETWEEN:   ROCCO DOMENIC ALVARO

Plaintiff

AND

JOANNE LESLEY JANE McGREADY
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia 1971 - Review of taxation of costs - Objections

Legislation:

Nil

Result:

Alleged errors not established

Representation:

Counsel:

Plaintiff:     No appearance

Defendant:     No appearance

Solicitors:

Plaintiff:     Not applicable

Defendant:     Lavan Legal

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

Nil

1. DEPUTY REGISTRAR HARMAN:  Under the order for the costs of the action the defendant was entitled to the reasonable cost of services necessarily provided by her solicitor and to recover the cost of necessary disbursements.  The plaintiff has objected to particular determinations made in the course of taxing the defendant's costs.

2. In her bill of costs the defendant claimed under the scale item for getting up case for trial.  There was no contest as to the provision of the service or any of its constituent parts but submissions were made in relation to the fee recoverable. 

3. The extent of the objection is limited to an unspecified part of what was determined.  The grounds of objection are as follows:

   Error in principle by allowing a total amount not supported in the circumstances viz

   ·That the dispute was not complex

   ·No difficult questions of law were involved

   ·Four witnesses were involved - had the action gone ahead

   ·Only the plaintiff gave evidence which was incomplete when the action settled

   ·The facts were not complex

4. In my opinion they do not identify the part of the determination to which the plaintiff objects.  In my opinion the objection is incompetent as it fails to specify the part of the determination to which it is addressed.  In any event as it does not specify any error in principle the objection is not within the scope of the rule.

5. The defendant also claimed for under the item solicitor attending trial.  At taxation both the item and the part of the item for the time spent on oral submissions were contested.  The item was allowed in each of its constituent parts. 

6. The objection is expressed to relate to the whole of what was determined.  The grounds are as follows:

   Error in principle - Mr Pentony had prior involvement and did not need the support of an instructor, as he was the lawyer responsible for the retainer.  The first part of the hearing was spent on oral submissions which did not need the support of an instructor.

7. I take it from the grounds that the objection is in two parts: first the allowance of the item, second allowance for the part that related to the period of delivery of oral submissions. 

8. I have some difficulty with the grounds of objection.  Whatever the plaintiff seeks to draw from the proposition that Mr Pentony had responsibility for the retainer, it would only sustain the objection if there had been a finding that Mr Pentony had had the conduct of the defendant's case.  The plaintiff does not contend either that there was any such finding or that it was made in error.  Furthermore, it is not clear what the plaintiff is proposing by the need for support.  The role of an instructor is to take instructions from the client, not to support counsel.

9. As for the part of the service identified by delivery of oral submissions, in light of what I have already canvassed, it does not put any better case. 

10. To make my position clear, I am familiar with reasons to the effect that justification for the allowance for a solicitor attending trial is found in the extent to which the solicitor engages in what I would describe as administrative tasks and that a judgment would made in relation to the intensity of that engagement.  In my opinion reasoning along those lines is well wide of the mark.

11. In the process of taxing the defendant's claim to recover the fees of Neville Harrison the only issue for determination was the extent of recovery for each of his accounts.  The result was that the defendant recovered the amount of each account.

12. The objection is expressed to relate to an unspecified part of the determination.  The grounds of objection are as follows:

    Error in principle.  The expert's report had been criticized by an opposing expert and had been found to be wanting in several respects.  The first report was corrected as a result but the expert did not adjust his fees to compensate for the errors in the first report.  But errors were still found in the amended report.  Therefore a full allowance was not appropriate.

13. The grounds are at least unhelpful as they neither identify the scope of the objection nor specify the error.  I have not overlooked the fact that although the ground commences with the words 'error in principle', none is specified and the ground is put in relative terms.  I take it that the plaintiff proposes that an unspecified proportion of the fee charged by the witness should not have been recovered by the defendant. 

14. At taxation I made no finding of error in either report.  Even if I had, that fact alone would not necessarily bring the result that recovery by the defendant should be less than she had paid.