Bateman v Pittorino
[2008] WADC 131
•5 SEPTEMBER 2008
BATEMAN -v- PITTORINO [2008] WADC 131
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 131 | |
| Case No: | CIV:1006/2006 | 28 JULY 2008 | |
| Coram: | DEPUTY REGISTRAR HEWITT | 5/09/08 | |
| PERTH | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Objections disallowed | ||
| PDF Version |
| Parties: | MALCOLM JAMES BATEMAN ELIZABETH GLORIA PITTORINO |
Catchwords: | Practice and procedure Objection to taxation Discontinuance of action Appropriate basis of taxation |
Legislation: | Nil |
Case References: | Bridge Pump Co Pty Ltd v Myles South West Fuel Supplies Pty Ltd, unreported; SCt of WA; Library No 980554; 23 September 1998 Sharp v Pascoe, unreported SCt of WA; Library No 521.1 Uta v Albany Star Pty Ltd & Others [2007] WADC 186 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ELIZABETH GLORIA PITTORINO
Defendant
Catchwords:
Practice and procedure - Objection to taxation - Discontinuance of action - Appropriate basis of taxation
Legislation:
Nil
Result:
Objections disallowed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr D J Garnsworthy
Defendant : Mr G Bostock
Solicitors:
Plaintiff : Batemans
Defendant : Bostock & Ryan
Case(s) referred to in judgment(s):
Bridge Pump Co Pty Ltd v Myles South West Fuel Supplies Pty Ltd, unreported; SCt of WA; Library No 980554; 23 September 1998
Sharp v Pascoe, unreported SCt of WA; Library No 521.1; 12 August 1968
Uta v Albany Star Pty Ltd & Others [2007] WADC 186
(Page 3)
1 DEPUTY REGISTRAR HEWITT: This action was commenced by a writ filed on the 26 May 2006. Following the filing of the writ the plaintiff brought a summary judgment application which was filed on 26 June 2006. That application was opposed and went to a number of hearing dates but no decision in the matter was ever delivered. Ultimately by notice filed on 15 March 2007 pursuant to O 23 r 2(1) the plaintiff wholly discontinued the action. Subsequently by consent costs reserved on the summary judgment application were ordered to be paid by the plaintiff to the defendant. The defendant then, as was her entitlement, filed a bill of costs for taxation which was listed before me on 28 July 2008. The taxation proceeded and I granted the plaintiff a period until 18 August 2008 to bring in objections. Availing itself of that opportunity the plaintiff has brought in objections and those are now before me for decision. The objections are as follows:
(a) the bill ought to have been presented by reference to each scale reference applicable – but was not presented in a way that allowed that process to be carried out. The fact that the matter did not proceed to trial was not of itself justification for the method of presentation;
(b) the taxing officer erred by not taxing the bill as a motion not otherwise provided for in the scale. Further regard ought to have been had to the decision in Bridge Pump Co Pty Ltd v Myles South West Fuel Supplies Pty Ltd, unreported; SCt of WA; Library No 980554; 23 September 1998 which ruling was clearly applicable to the strike out application; and
(c) it was premature to make any allowance by way of getting up when the pleadings were not resolved. The defendant could not prepare for a trial until she knew precisely what case she had to meet. That was the point of the application relating to the pleadings.
2 The relevant order which deals with the entitlement of a party to costs upon a discontinuance is O 23 r 2(1) which provides:
"The plaintiff may, at any time before receipt of the defendant's defendant's defence, or after the receipt thereof before taking any other step in the action, by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged course of complaint, and thereupon he shall pay such defendant's costs of
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- the action, or, if the action not be wholly discontinued the costs occasioned by the matter so withdrawn."
- Rule 2 provides that the costs shall be taxed.
3 Relying on O 66 r 21 the defendant brought in a bill which in essence, apart from various additional charges sought for the taxation process, was a lump sum for the work undertaken in the course of defending the action supported by a series of schedules to explain the nature of that work by whom it was performed and giving some indication as to the purpose of the various tasks which were undertaken. It seems to me that such a process is legitimate although unusual. Order 66 r 21 provides:
"Wherefore any reason there is no substantial trial, the judge or taxing officer may make such allowance in lieu of the fees prescribed by any relevant scale as he considers to be merited in the circumstances."
4 In any event the matter is one of form rather than one of substance and the process of taxation focused not on the niceties of which item under the relevant scale various tasks might be pigeon holed but rather on the need for such tasks and a reasonable award for undertaking them. It strikes me as largely irrelevant to determine which particular item within a scale might encompass the claim for costs so long as the maxima provided by the scale are sufficient to accommodate the claim which is made. In this regard I consider that the maxima provided by item 10, chambers summons and item 16, getting up which total in the vicinity of $45,000 provide ample scope to deal with the defendant's claim for her costs. For that reason I do not consider that the objection in par 1(a) is sound. In my view the manner in which the defendant presented the bill was satisfactory, and even were it not satisfactory, to revise the bill to allocate various items of work to scale items would not have affected the quantum of the allowance.
5 The next objection concerns what is alleged to have been a failure by not taxing the bill as a motion. In support of that proposition the case Bridge Pump Co Pty Ltd v Miles South West Fuels Pty Ltd (supra) a decision by Wallwork J on a review of an objection to taxation is relied upon. I have read the case with some care and I am unable to distil anything within it which suggests that in the circumstances prevailing in this case it would have been appropriate to tax under the scale item for a motion not otherwise provided for. For a start the matter which was before Wallwork J concerned an appeal and the issue which he was
(Page 5)
- required to decide was whether various motions which had been presented in the course of that appeal should be treated as a component of the scale item for the appeal process namely 20(a) or whether it should be properly regarded as a separate motion. His Honour decided that it was appropriate to treat the matters as separate motions. I am unable to see how that decision has any bearing on the case before me. The Rules of the Supreme Court provide that upon discontinuance the plaintiff becomes liable to pay the defendant's costs in respect of the matters discontinued. There never was any motion in this case. The action proceeded in a regular way by the issuing of a writ and the commencement of a summary judgment application. I am unable to perceive any basis at all upon which I should regard the defendant's entitlement to be limited to the amount provided within the scale for motions not otherwise provided for.
6 The final matter is an objection to any allowance by way of getting up when the pleadings were not resolved. That point has been squarely decided by her Honour Judge Yeats in Uta v Albany Star Pty Ltd & Others [2007] WADC 186. Put simply her Honour has held in that case that the principles contained in the Supreme Court decision of Sharp v Pascoe, unreported SCt of WA; Library No 521.1; 12 August 1968 are still a valid expression of the law and a party is not precluded from obtaining costs for getting up notwithstanding the fact that a defence has not been filed.
7 It follows from this analysis that I am not satisfied that the plaintiff has made a valid objection to the taxation of the bill and accordingly I intend to sign my certificate in the sum of $18,631.42 upon the date of the issue of these reasons.
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