Baker v Maria GILGA Baker as Executrix of the Will of TRIFONAS Triandopulos (Deceased) [No 2]
[2016] WADC 132
•7 SEPTEMBER 2016
BAKER -v- MARIA GILGA BAKER as Executrix of the Will of TRIFONAS TRIANDOPULOS (Deceased) [No 2] [2016] WADC 132
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 132 | |
| Case No: | APP:4/2011 | 16 AUGUST 2016 | |
| Coram: | SCOTT DCJ | 7/09/16 | |
| GERALDTON | |||
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | INGRID TONI BAKER MARIA GILGA BAKER HADLEIGH PETER REG BAKER MARIA GILGA BAKER as Executrix of the Will of TRIFONAS TRIANDOPULOS (Deceased) THE PUBLIC TRUSTEE |
Catchwords: | Practice and procedure Review of taxation pursuant to Rules of the Supreme Court 1971 O 66 r 55 Whether error in principle Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 O 66 r 44, O 66 r 53, O 66 r 54, O 66 r 55 |
Case References: | Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621 Bray v Ryan [1999] WADC 66 Clay and Clay v Karlson and Kurelic (unreported, WASC, Library No 970424, 21 August 1997) Commonwealth Bank of Australia v Panka Oswal in his own capacity and ATF The Burrup Trust [No 2] [2012] WASC 180 [7]. Craig v Troy [2000] WASC 74 Forbes v Frigger [2009] WASC 77 Monitronix Ltd v Michael (1992) 7 WAR 195 Mossensons (a firm) v Coast Line Associates (Unreported, WASC, Library No 970661, 2 December 1997) Rankilor v Circuit Travel [2012] WASCA 155 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Appellant
MARIA GILGA BAKER
Second Appellant
HADLEIGH PETER REG BAKER
Third Appellant
AND
MARIA GILGA BAKER as Executrix of the Will of TRIFONAS TRIANDOPULOS (Deceased)
First Respondent
THE PUBLIC TRUSTEE
Second Respondent
(to interlocutory appeal only)
Catchwords:
Practice and procedure - Review of taxation pursuant to Rules of the Supreme Court 1971 O 66 r 55 - Whether error in principle - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 O 66 r 44, O 66 r 53, O 66 r 54, O 66 r 55
Result:
Application dismissed
Representation:
Counsel:
First Appellant : Mr D L Armstrong
Second Appellant : No appearance
Third Appellant : Mr D L Armstrong
First Respondent : Mr D L Armstrong
Second Respondent : Mr S V Forbes
Solicitors:
First Appellant : Altorfer & Stow
Second Appellant : Not applicable
Third Appellant : Altorfer & Stow
First Respondent : Altorfer & Stow
Second Respondent : Public Trustee
Case(s) referred to in judgment(s):
Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Bray v Ryan [1999] WADC 66
Clay and Clay v Karlson and Kurelic (unreported, WASC, Library No 970424, 21 August 1997)
Commonwealth Bank of Australia v Panka Oswal in his own capacity and ATF The Burrup Trust [No 2] [2012] WASC 180 [7].
Craig v Troy [2000] WASC 74
Forbes v Frigger [2009] WASC 77
Monitronix Ltd v Michael (1992) 7 WAR 195
Mossensons (a firm) v Coast Line Associates (Unreported, WASC, Library No 970661, 2 December 1997)
Rankilor v Circuit Travel [2012] WASCA 155
1 SCOTT DCJ: This is an application by the first and third appellants (the second appellant having died) pursuant to O 66 r 55 Rules of the Supreme Court 1971 for an order to review a taxation of costs awarded to the Public Trustee.
Relevant history of proceedings
2 Mr Triandopulos was the registered proprietor of a property in Chapman Road, Geraldton (property).
3 In late 1996 at his invitation the first, second and third appellants being Maria Baker and her two children (the Bakers) moved into the property. Mr Triandopulos had asked the Bakers to move in to provide him with company and some domestic assistance and to assist him financially in the upkeep of the property.
4 In June 2004 Mr Triandopulos entered residential nursing care and the Bakers continued to reside at the property. In September 2004 Mr Triandopulos executed an enduring power of attorney in favour of Ms Baker.
5 In February 2007 the State Administrative Tribunal ordered that the Public Trustee be appointed plenary administrator of the estate of Mr Triandopulos pursuant to the Guardianship and Administration Act 1990 (WA) and that the enduring power of attorney be revoked.
6 On or about 9 February 2009 the Public Trustee in that capacity served notices to quit on each of the Bakers requiring them to deliver up vacant possession of the property by 9 March 2009.
7 The Bakers did not vacate the property and on 4 February 2010 proceedings were commenced by the Public Trustee as administrator in the Magistrates Court seeking orders for possession of the property and mesne profits from 13 March 2009 until the date of possession.
8 The matter proceeded to trial in the Magistrates Court. In their defence the Bakers relied on a number of contentions the effect of which was that they were entitled, at law, to occupy the property for as long as Ms Baker wished to remain there.
9 The Bakers also asserted at the trial that in seeking possession the Public Trustee was not acting in Mr Triandopulos' best interests as it had not consulted him to ascertain his wishes and that it was not his wish to breach the agreement he had made with Ms Baker. That contention was advanced in support of an argument that the proceedings instituted by the Public Trustee were not properly brought.
10 On 30 September 2011 the magistrate made orders that the Bakers vacate the property on 2 December 2011 and pay the sum of $100 per week by way of mesne profits from 13 March 2009 to the date the property was vacated. In addition they were ordered to pay the costs of the action.
11 On 19 October 2011 the Bakers filed an appeal notice in this court. The Public Trustee as the next friend of Mr Triandopulos lodged a cross appeal against the amount of weekly rent which was ordered to be paid by way of mesne profits.
12 Mr Triandopulos died on 17 November 2011 and upon his death the administration order ceased to have effect. Probate of his Will was granted to Ms Baker on 20 March 2012. Under the Will she was the sole beneficiary of his estate.
13 On 24 September 2012 the Bakers sought orders in the appeal that Ms Baker in her capacity as executrix of the estate, be joined as the second appellant in the appeal and the Public Trustee in its own right be joined as a respondent. The Public Trustee opposed the application that it be joined as a party in its own right.
14 The basis for the Bakers' application to join the Public Trustee in its own right as a respondent in the appeal was that the Public Trustee had failed to act lawfully or in the best interests of Mr Triandopulos in attempting to evict the Bakers without first consulting with him or endeavouring to ascertain his wishes to pursue that action.
15 On 16 October 2012 Deputy Registrar Hewitt heard the application and ordered that Ms Baker in her capacity as executrix of the estate be substituted as the respondent to the appeal but dismissed the application to join the Public Trustee to the appeal in its own right. He ordered the Bakers to pay the Public Trustee's costs of the application.
16 The Bakers appealed the deputy registrar's decision and that appeal was heard by Bowden DCJ. On 14 June 2013 his Honour allowed the appeal and made orders that the Public Trustee be joined as a respondent to the appeal in its own right and that the costs of the appeal and of the application before the deputy registrar, including reserved costs, be costs in the cause in the appeal.
17 The Public Trustee appealed that judgment and on 31 January 2014 the Court of Appeal allowed the appeal, set aside the order that the Public Trustee be joined as a respondent to the District Court appeal in its own right and ordered the Bakers to pay the Public Trustee's costs of the application before the deputy registrar, the District Court appeal and the appeal before the Court of Appeal to be taxed if not agreed.
18 The Public Trustee then filed a bill of costs in this court and the Supreme Court.
District Court cost proceedings
(a) On 3 December 2014 the taxing officer, before whom solicitors for the Public Trustee and the Bakers attended, assessed the Public Trustee's bill of costs.
(b) On 16 December 2014 the Bakers filed an objection and an application for the taxing officer to review all of the items assessed by him in the bill of costs pursuant to O 66 r 53. The Public Trustee filed a response to the objections on 21 January 2013.
(c) On 2 May 2016 the taxing officer delivered his determination and reasons on the objections in which he allowed, in part the objection to item 2 in the bill in the sum of $225, dismissed the objections to each of the other items, allowed the taxed costs at $17,398.80 and signed a certificate of taxation.
(d) By summons dated 16 May 2016 the first and third appellants sought an order to review each of the items in the taxed bill pursuant to O 66 r 55.
19 The costs of the appeal in the Court of Appeal, were taxed after hearings on 15 January 2015, 11 February 2015, 10 March 2015, 8 September 2015, 10 February 2016 and 24 February 2016.
Relevant Rules of the Supreme Court 1971 and law
20 Order 66 r 42 states:
Bills of costs, content of
(1) A bill of costs for taxation shall be prepared so as to show clearly —
…
(b) dates of items (specifying years, months and days); and
(c) where necessary, particulars of the services charged for; and
…
Taxing officer's powers
The taxing officer may, for the purposes of taxation of costs —
…
(c) direct or require the production of books, papers, and documents;
…
22 Order 66 r 53 states:
Party dissatisfied with taxation may object and apply for review
(1) A party who contends that the taxing officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, or at such earlier time as may, in any case, be fixed by the taxing officer —
(a) deliver to the other party interested in the allowance or disallowance and carry in before the taxing officer, an objection in writing to the allowance or disallowance specifying in the objection by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objections; and
(b) thereupon apply to the taxing officer to review the taxation in respect of those items or parts.
Review of taxation by taxing officer
(1) Upon an application under r 53 to review the taxation, the taxing officer shall reconsider and review his taxation in relation to the objections, and he may, if he thinks fit, receive further evidence in respect of the objections.
(2) If so required by a party, the taxing officer shall state in his certificate of taxation or by reference to the objection, the ground and reason of his decision on the objection, and any special facts or circumstances relating to his decision.
24 Order 66 r 55 states:
Review of taxation by judge
(1) If a party is dissatisfied with the certificate of the taxing officer as to any item or part of an item objected to under r 53 of this Order, he may, within 14 days from the date of the certificate, or such other time as the Court, or the taxing officer at the time he signs his certificate, allows, apply to a judge in chambers for an order to review the taxation as to that item or part of an item.
(2) The judge, if of opinion that the taxing officer has made an error in principle, may thereupon make such order to rectify the error as the judge thinks just.
25 For an order to be made rectifying any error on the part of the taxing officer the judge would need to be satisfied the error was one in principle.
26 An error in principle may be inferred from a decision of the taxing officer if the result is such that his discretion appears not to have been exercised at all, or where it has been exercised in a manner that is manifestly wrong: Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621, 628; Rankilor v Circuit Travel [2012] WASCA 155 [77].
27 Although it is possible for an error in principle to be made in regard to the quantum allowed in respect of a particular item, that is generally regarded as unusual. An error in principle on that basis could only be established if it is shown that no taxing officer acting reasonably could ever have taxed the particular item in the amount in question: Mossensons (a firm) v Coast Line Associates (Unreported, WASC, Library No 970661, 2 December 1997), 9 - 10.
28 In reviewing and altering the conclusion of a taxing officer, the court is being called on to review a discretionary judgment and generally will only do so with reluctance: Monitronix Ltd v Michael(1992) 7 WAR 195, 197.
29 Although the court will intervene to correct an error in principle, in all but exceptional cases the decision of a taxing officer as to quantum is final. The rationale behind this rule is that a judge will not usually be as familiar with the taxing process as a taxing officer and therefore not nearly as confident to say what is the proper amount to be allowed. Hence, in only a very exceptional case, will a judge review a taxing officer's decision as to quantum: Clay and Clay v Karlson and Kurelic (unreported, WASC, Library No 970424, 21 August 1997) (Heenan J); Forbes v Frigger [2009] WASC 77, 38.
30 Having said that, as McKechnie J observed in Craig v Troy [2000] WASC 74 [28]:
Undoubtedly the old style of taxation line by line, item by item has long gone. However, that is not to say a taxation officer is permitted or required to guess at an appropriate figure. The arrival at a proper allowance for the costs for getting up a case for trial is an exercise in judicial discretion. It is an 'art' only to the extent that a taxing officer brings to the exercise of his or her discretion, experience gained in other taxations relating to matters of differing complexity, importance and difficulty.
Costs order in the Court of Appeal
31 Counsel submitted that as the order for costs made by the Court of Appeal was in terms that costs were to be taxed 'if not agreed', that gave rise to an obligation on the parties to embark upon genuine negotiation before taxation.
32 There is, in my view, no merit in this submission. I have read the transcript of the exchange between Newnes JA and Mr Armstrong of counsel for the appellants which was, relevantly, in the following terms:
ARMSTRONG, MR: But I will ask that it be added onto – after the words 'to be taxed', the words 'if not agreed'.
NEWNES JA: I think we can take that as read, because if it's agreed, there won't be a taxation, so I don't think it's necessary.
ARMSTRONG, MR: Sir, I would ask that that be included, in light of the difficulties that the Public Trustee and myself have had over …
NEWNES JA: Alright.
ARMSTRONG, MR: … well, since the commencement. I think that there should …
NEWNES, JA: Alright. I will add those words.
33 An order for costs in these terms is by no means unusual and is commonly made although there appears to be little point in doing so given that, as Newnes J commented, if costs are agreed there will be no need for a taxation.
34 Nonetheless, that is all those words mean. The words do not cast an obligation on any party to engage in genuine negotiation.
35 In this case, counsel for the Public Trustee said that a draft bill was sent to the solicitors for the appellants who then sought further detail including billing guides (timesheets), memoranda of fees and a schedule of work done. The Public Trustee refused to comply with that request and the bill was filed.
Objections, determination of taxing officer and review
36 The taxing officer taxed the bill as follows. The scales used were the District Court Appeal Scale of Costs for 2010 and 2012.
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Bill of costs lodgement fee |
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First and third appellants' overall objection referable to each item
38 Counsel for the first and third appellants contended on the objections and this application for review that the taxing officer ought to have directed the Public Trustee to provide further particulars pursuant to O 66 r 44 in connection with items 1 – 7 of the bill. Those particulars being copies of tax invoices, billing guides (timesheets), memoranda of fees (both solicitors and counsel) and schedules of work done (further particulars) without which, it was submitted, the taxing officer could not properly tax the bill.
39 Counsel submitted that this was the course which was adopted by the Registrar of the Supreme Court when taxing the Public Trustee's bill with respect to the appeal in that court. Counsel contended that in failing to do so the taxing officer made an error in principle.
40 Counsel for the Public Trustee said that the registrar in the Supreme Court directed the provision of certain particulars because of the appellants' contention that there had been a duplication of work claimed to have been undertaken in the Court of Appeal and District Court matters. By then the Public Trustee's bill in this court had already been assessed.
41 Counsel for the Public Trustee submitted that the practice of justifying charges made under a scale item by producing a detailed bill of costs reflecting each item of work was unnecessary and undesirable. He submitted that the taxing officer had the benefit of all of the documents on the District Court file as well as comprehensive written and oral submissions from counsel for both parties and that no further documents were required for the taxing officer to undertake the task of taxing the Public Trustee's bill.
42 Counsel contended that in taxing a bill the taxing officer must determine, having regard to the complexity of the relevant matters, the necessary services which needed to be undertaken, the appropriate level or levels of seniority of the persons required to deliver the services and their reasonable hourly rate. Having done so to objectively assess a reasonable allowance for the services having regard to the applicable costs determination and then to measure the amount claimed in a bill against that objective assessment to determine whether or not the amounts claimed were reasonable and what adjustments, if any, should be made: citing Bray v Ryan [1999] WADC 66 [35] – [37]. See also Commonwealth Bank of Australia v Panka Oswal in his own capacity and ATF The Burrup Trust [No 2] [2012] WASC 180 [7].
43 In his reasons for determination of the appellants' objections under O 66 r 53 (reasons) the taxing officer said:
The assessment of [sic] Bill of Costs is based on whether it can be determined that the events claimed occurred and that the time claimed in the preparation of and attendance of those events are reasonable. Order 66 does not require a party to provide documentation to justify what they are claiming. Rule 44 allows for a taxing officer to request such documentation if it is deemed necessary. In this case the documents of the court file indicated the complexity of the matter and provided a guide to enable the taxing officer to make a reasonable assessment of the time necessary for the preparation of the case and the documents.
44 In my view the submission made by counsel for the Public Trustee as to the manner in which a taxing officer is to undertake his task and the taxing officer's reasons reflect the correct approach.
45 The need for additional documentation is a matter within the discretion of the taxing officer and is more likely to be appropriate where there is an application to increase or disregard a scale item or with respect to a taxation of costs awarded on an indemnity or solicitor and own client basis.
46 In this case the taxing officer had before him the court file from which he was readily able to understand the nature of the issues in the Magistrates' Court trial and the issues sought to be raised on the application before the deputy registrar and on appeal. Consequently the basis upon which and the context within which it was contended that the Public Trustee be joined in its own right was evident. It was open to the taxing officer to appreciate the nature and complexity of the application before the deputy registrar and on the appeal before Bowden DCJ in making an assessment as to the reasonable costs for each item.
Objection –form of bill
47 Counsel for the appellants contended that the Public Trustee's bill was not in proper form in that it did not clearly show as required by O 66 r 42(b)(c) and (e) dates of items (specifying years, months and days) and where necessary, particulars of the services charged for and professional charges.
48 It is not said that there was any difficulty encountered by the solicitors for the parties or the taxing officer in identifying the particular scale item and the ambit of work asserted to have been undertaken to which a claim for costs was made.
49 There is no merit in this objection.
Item 1 – 2010 scale item 2
50 The hourly rate for a senior practitioner was $341.
51 Counsel for the appellants contended on the initial objection and on this application that the amount allowed by the taxing officer of $3,410 was the maximum allowed under the scale and was manifestly excessive in that:
(a) The directions hearing before the deputy registrar on 2 October 2012 lasted 10 minutes. To that end counsel for the Public Trustee said that he had not received the appellant's application and charged three hours work including waiting time. The application was adjourned to 9 October 2012 for hearing and then administratively to 16 October 2012. In his submissions on this application for review, counsel for the appellants said that a copy of the application to join the Public Trustee was facsimiled to the Public Trustee on 27 September 2012. From material received from Mr Armstrong following argument that appears to be correct.
(b) The Public Trustee appointed different counsel, Mr Sheppard who charged in excess of $2,500.
(c) The hearing on 16 October 2012 lasted 45 minutes and included matters not the subject of the application to add the Public Trustee in its own right. To that end I note that it would seem that the only other matter was the substitution of Ms Baker as executrix given the termination of the administration order.
(d) The taxing officer was not advised with any precision, the work done by either counsel for the Public Trustee and had no written material to assist him in assessing the costs claimed.
52 Counsel for the Public Trustee submitted that the application to join the Public Trustee in its own right as a party to the proceedings was complex and substantial preparation was required for the hearing of the application on 16 October 2012. He said that although Mr Sheppard charged above scale rates, only scale costs were claimed about which the taxing officer was informed. Mr Forbes (for the Public Trustee) said that Mr Sheppard of counsel was briefed for the hearing on 16 October 2012 because he was counsel in the Magistrates Court.
53 Counsel said that although the hearing on 2 October 2012 was listed at 10.30 am, given difficulties in establishing the video link with counsel for the appellants, the hearing did not commence until 11.21 am.
54 The taxing officer in his reasons said that the District Court records showed that on 2 October 2012 the proceedings in court lasted 19 minutes, commencing at 11.21 am and on 16 October 2012, 51 minutes, commencing at 11.06 am and that on both occasions the parties were required to be at court at 10.30 am.
55 As I have mentioned, in his overview, the taxing officer observed that he was satisfied that the documents on the court file indicated the complexity of the matter and provided him with a guide to enable an assessment of the time reasonably necessary for the preparation of the matters the subject of the application to be considered.
56 I am not satisfied that no taxing officer, acting reasonably, could ever have taxed this item in the sum of $3,410. I am not satisfied that there has been any error in principle on the part of the taxing officer.
Items 2 and 3 - 2012 scale item 2
57 The hourly rate for a senior practitioner was $451.
58 Item 2 on the scale relates to interlocutory hearings in the appeal including preparation to be taxed on an hourly basis. On 3 December 2014 the taxing officer assessed the item claimed for preparation and attendance on 1 March 2013 at $676.50 and on 14 March 2013 at $451.
59 The objection with respect to each item was that the allowance was manifestly excessive because the solicitor for the Public Trustee who attended on each occasion had had the conduct of the matter for the Public Trustee for some years and was totally familiar with the action to enable her to attend to the directions hearings and negotiate with respect to any programming orders.
60 In determining the objection to each item, the taxing officer said that from the court records the appearance on 1 March 2013 lasted 34 minutes and on 14 March 2013, 15 minutes. He allowed the objection with respect to item 2 and taxed off $225.50. He dismissed the objection to item 3.
61 With respect to each item the taxing officer allowed, therefore, one hour for preparation and an appearance. Applying the appropriate test to which I referred with respect to item 1, I do not consider there to have been any error in principle on his part.
Item 4 – 2012 scale item 3
62 This item relates to the preparation of the appeal for hearing (including preparation of appeal books) for which the maximum allowance is 10 hours, being $4,510. The amount sought in the bill was $2,255.
63 The objection to this item was that the claim was for the work of Ms Nixon in preparing the appeal for hearing in respect of which the taxing officer was informed that she briefed counsel, had discussions with counsel, did 'all the running around', read the submissions prepared by counsel and engaged in correspondence with the solicitors for the appellants. Five hours work was claimed under this item.
64 Counsel said that the taxing officer had no material before him as to the remuneration paid to Ms Nixon by the Public Trustee. In addition, counsel contended that conferences and consultations with counsel and numerous telephone calls are not items claimable under the scale unless shown to be necessary.
65 Counsel for the Public Trustee submitted that the allowance was open to the taxing officer having regard to the need for counsel to be properly briefed and for essential correspondence and telephone attendances to be undertaken in preparation for the appeal.
66 In his reasons the taxing officer observed that counsel for the Public Trustee detailed the preparation by Ms Nixon who was a senior practitioner and he considered that five hours was a reasonable sum for the preparation of the appeal for hearing including the preparation of the appeal books.
67 I am not satisfied that the taxed item representing five hours work was not reasonable having regard to the test to which I have earlier referred.
68 There is no error in principle with respect to this item.
Item 5: 2012 scale item 4
69 This item relates to counsel's fee on the hearing of the appeal including preparation. The allowance is for two days preparation and one day of hearing. The maximum is $10,890. The amount assessed by the taxing officer on 3 December 2014 was $7,986.
70 Counsel for the appellants contended that this amount was manifestly excessive and was assessed by the taxing officer without a copy of counsel's timesheets and tax invoices which, he contended, might have included work not claimable under the scale.
71 Counsel said that the taxing officer was informed by the solicitor for the Public Trustee that Mr Ashdown of counsel had claimed $363 per hour and had spent 27 hours in preparation and the appeal. The primary contention by the appellants was that the taxing officer could not have determined what work was undertaken by counsel in preparation. Court time involved with the appeal was said to be one hour and 25 minutes.
72 In response, counsel for the Public Trustee submitted that the hourly rate charged by Mr Ashdown was higher than $363. The claim for counsel on the bill of costs for taxation was for 27 hours at the scale rate of $363 per hour, being a total of $9,801. In his assessment the taxing officer reduced that claim by $1,815 (being five hours), representing 22 hours at that hourly rate. That was confirmed by the taxing officer in his reasons.
73 In my view having regard to his knowledge of the matters falling for determination in the appeal it was open to the taxing officer to allow this item in the sum of $7,986. There is no error in principle in him doing so, having regard to the test to which I have earlier referred.
Item 6: 2012 scale item 6
74 This item relates to the attendance at the appeal by an instructing legal practitioner at the rate of $451 per hour. The initial claim in the bill was for $902 in respect to which, the appeal lasting one hour and 30 minutes, the taxing officer reduced the sum assessed by $225.50 to $676.50.
75 The objection was articulated by counsel in terms that Ms Nixon, as the instructing solicitor was no more than a spectator at the appeal and no reason was given to the taxing officer as to why she was or was required to be present.
76 There is no error in principle demonstrated by the appellants with respect to this item. It is common practice for an instructing legal practitioner to be present to assist or instruct counsel if necessary during the course of hearing an appeal.
Item 7: 2012 scale item 7
77 This item in the bill was $676.50 for attending on a reserved decision which was then reduced on 3 December 2014 to $225.50. Item 7 refers to attending on a reserved decision (including preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders). The objection to the amount assessed of $225.50 was that there was no attendance to take the reserved decision (which was delivered to the parties) and orders were made without the need for any attendance in court.
78 Counsel for the appellants said that consideration of the reasons for decision only applies to a circumstance in which reasons are provided and then an attendance required for the final orders.
79 The item is not restricted in that way. Even without there being an attendance on a reserved decision, there is provision for consideration of the reasons. There is no error in principle in the sum allowed.
Items 9 and 10: 2012 scale items 10(a) and 10(b)
80 These items relate to the costs of and incidental to drawing a bill of costs, taxation and disbursements relevant to the taxation. The objection is that had there been genuine negotiation, these costs would have been avoided.
81 On 3 December 2014 item 8 was disallowed, item 9 was reduced from $676.50 to $225.50 and item 10 was allowed.
82 For the reasons to which I have already referred with respect to the order for costs made by the Court of Appeal, there is no merit in this contention. I am satisfied there has not been any error in principle by the taxing officer with respect to these items.
Conclusion
83 I am not satisfied that there has been any error in principle on the part of the taxing officer which warrants a review of any of the items about which the appellants make claim.
84 The application is dismissed.
85 The orders I propose are:
1. The application for review be dismissed.
2. The first and third appellants pay the costs of the Public Trustee on the application to review to be taxed if not agreed.
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