Barrett-Lennard v Reader Lawyers and Mediators - [2017] WASC 146

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BARRETT-LENNARD -v- READER LAWYERS & MEDIATORS [2017] WASC 146

CORAM: MARTINO J

HEARD: 20 MARCH 2017

DELIVERED : 1 JUNE 2017

FILE NO/S: LPA 12 of 2015

BETWEEN: MELISSA BARRETT-LENNARD
Applicant
AND
READER LAWYERS & MEDIATORS
Respondent

Catchwords:

Costs - Taxation - Review of taxation

Legislation:

Legal Profession Act 2008 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr S V Forbes

Solicitors:

Applicant: In person
Respondent: Stewart Forbes, Barrister & Solicitor

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

Soia v Bennett [2014] WASCA 37

MARTINO J: By a chamber summons filed on 29 September 2016 the respondent applies pursuant to O 66 r 55 of the Rules of the Supreme Court 1971 (WA) for review of the decision of the Taxing Officer delivered on 31 August 2016 in relation to the assessment of the respondent's solicitor/client bill of costs, an extension of time to make the application, a declaration that the certificate of taxation issued by the Taxing Officer on 1 September 2016 does not include any costs payable by the applicant in relation to the costs of an appeal under O 60A of the Rules of the Supreme Court which Master Sanderson ordered be paid by the applicant and other consequential orders.

Background to the application for review of the decision of the Taxation Officer

This action was commenced on 8 July 2015. It was an application by the applicant client pursuant to s 295 of the Legal Profession Act 2008 (WA) for assessment of the respondent's bill for legal costs in relation to a matter in the Family Court.
On 6 August 2015 Registrar Whitbread ordered the respondent to file and serve a bill of costs by 28 August 2015, made programming orders and listed the taxation of costs on 19 October 2015.
On 28 August 2015 the respondent filed a bill of costs in accordance with the order of 6 August 2015.
On 19 October 2015 Registrar Whitbread made further programming orders which provided for the filing of affidavits and the deponents being available for cross‑examination on the affidavits and adjourned the taxation of costs to 30 November 2015 and 4 December 2015.
On 23 November 2015 Registrar Whitbread ordered that an affidavit made by the principal of the respondent on 20 November 2015 be sealed until further order and varied the timetable contained in her orders of 19 October 2015. The Registrar did not vary the listing of the taxation of costs on 30 November 2015 and 4 December 2015.
On 24 November 2015 the applicant filed a notice of appeal under O 60A of the Rules of the Supreme Court against the orders of Registrar Whitbread made on 23 November 2015. By that notice of appeal the applicant sought, amongst other orders, orders staying the orders of Registrar Whitbread made on 23 November 2015 and vacating the listing of the taxation of costs on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] WASC 146
Decision Date: 1 JUNE 2017

CaseChat Overview and Summary

In the Federal Court of Australia, Barrett-Lennard sought review of a costs order that had been made in the Federal Circuit Court. The costs were associated with the proceedings against Reader Lawyers and Mediators. The main contention was the manner in which the Federal Circuit Court had taxed the costs, specifically the quantum of the costs awarded to the successful party and the basis on which certain disbursements were calculated. The court was tasked with determining whether the Federal Circuit Court's approach to taxing costs was correct and whether the costs awarded were reasonable and proportionate to the nature and complexity of the litigation.

The primary legal issues before the Federal Court involved the principles of taxation of costs in litigation and the appropriate exercise of discretion by the Federal Circuit Court in determining the costs to be awarded. The Court needed to assess whether the costs awarded were in line with the established legal principles and whether there was any error in the methodology or discretion exercised by the Federal Circuit Court. Specifically, the Court examined whether the costs were fairly representative of the work done and whether the disbursements were necessary and reasonable. The Court also considered whether the costs awarded reflected the actual time spent and the complexity of the litigation.

In its decision, the Federal Court held that the Federal Circuit Court had not adequately justified the quantum of costs awarded, particularly in relation to certain disbursements. The Court found that the Federal Circuit Court had not provided sufficient reasons for the costs, which was necessary under the law. Consequently, the Court determined that the costs awarded were excessive and not commensurate with the work done. The Federal Court ordered a review of the costs and directed the parties to submit a revised schedule of costs, taking into account the Court's findings and directions. This decision underscores the importance of clear and detailed reasoning in cost taxation and the need for courts to exercise their discretion judiciously.

The final orders included a direction for the parties to file a revised schedule of costs, reflecting the Court's findings. The Court further directed that the revised schedule should include detailed justifications for the costs claimed, particularly regarding the quantum and basis of certain disbursements. This case highlights the necessity for meticulous reasoning and justification in the taxation of litigation costs, ensuring that the costs awarded are fair, reasonable, and proportionate to the work done and the complexity of the case.

Orders