| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BAXY -v- SEBO [2011] WADC 190 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 25 OCTOBER 2011 DELIVERED : 2 NOVEMBER 2011 FILE NO/S : CIV 2862 of 2010 BETWEEN : ARIANE MARIE JOSEE BAXY Plaintiff
AND
SCOTT JOHN SEBO
First Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Defendant
Catchwords: Practice and Procedure - Western Australia - Objections to taxation of costs - No new principles Legislation: Nil
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Result: Objections not allowed
Allocatur signed Representation: Counsel:
Plaintiff : Mr P Sheavyn
First Defendant : Mr G Nutt
Second Defendant : Mr G Nutt
Solicitors:
Plaintiff : Bradley Bayly Legal
First Defendant : Jarman McKenna
Second Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Brown v Brambles Australia Ltd (Unreported, WADC, Library No D980121, 12 May 1998 (8-9))
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1 DEPUTY REGISTRAR HEWITT: In this matter the plaintiff commenced proceedings by writ filed on 17 September 2010 claiming damages which she suffered in an incident whilst a passenger on a Transperth bus. The allegation pursued by the plaintiff was that as consequence of the driving of the bus, or alternatively of another driver who drove in such a manner as to cause an emergency, she came into contact with a panel on the bus and thereby suffered injury. The matter proceeded in the usual way until settled by a consent judgment filed on 11 July 2010 fixing the amount of her damages to be $250,000 and awarding her the cost of the action to be taxed. Pursuant to that entitlement the plaintiff brought in a bill of costs for taxation which came before me on 26 August 2011. The bill comprised of 17 items excluding disbursements and the defendant has brought in objections to the taxation relating to 14 of the 17 items. Details of those objections are as follows:
Statement of Claim (item 2) 1. The defendants agree with the decision to tax off the amount claims of amendment of the statement of claim. However, the defendants object to the determination not to tax off any amount claimed for preparation of the statement of claim and submits that the allowance of $2,800 was excessive in the circumstances. 2. The issues for determination in this action as to the nature of the injury suffered by the plaintiff and the assessment of damages were not complex or novel. The statement of claim was similarly not complex or novel and was standard for a motor vehicle personal injuries action. As liability was not denied, pleading of particulars of negligence was unnecessary and the particulars of injury and damages were not particularly detailed. 3. It is submitted that an assessment ought to have objectively been made as to the work reasonably required to prepare the statement of claim and not consideration of the number of pages produced as submitted on behalf of the plaintiff or as to the time taken by the plaintiff's solicitors. The assessment does not disclose consideration of an objective assessment of the value of the work required to prepare the statement of claim in the circumstances of this action. The amount allowed should be re-considered and reduced.
(Page 4) Discovery (item 3) 4. The plaintiff's list of documents were not given on oath and comprised a list of the documents held by the plaintiff. There was no evidence of consideration of whether any documents would be subject to a claim for privilege. In those circumstances, the amount allowed it is submitted was excessive and ought to be reconsidered. 5. Further, it is submitted that an objective assessment of the legal work required to prepare the list of documents ought to have been made and not, as was the method adopted, an assessment by the Deputy Registrar of the work that, in his experience, would have been required as part of the process of discovery, particularly when the plaintiff led no evidence as to the occurrence of that process in this instance (which, is submitted, would not have been to the point). By adopting that approach, the defendants submit that the assessment was made in error. Answering Interrogatories (item 5) 6. The defendants again object to the allowance made for this item on the basis that the Deputy Registrar failed to take an objective assessment of the worker that would reasonably have been required to provide answer to the interrogatories. Consideration of the particularities of the plaintiff and the time said to have been spent by the plaintiff's solicitors was not determinative. In any event, it was not apparent from the face of the answers to interrogatories that the plaintiff had any difficulty in English and, in any event, the interrogatories spanned two questions focusing on the plaintiff's employment history, which would have been well within her knowledge. The defendants contend that the amount allowed was excessive and should be re-considered. Getting Up Case for Trial (item 6) 7. The defendant object to the allowance on taxation for getting up case for trial, which it is submitted ought to have reflected an objective assessment of the work required to be performed in the context of the dispute on the pleadings in the action and not consideration of the work said to have been performed by the plaintiff's solicitors. Not all work performed is truly getting up. The particularities of the plaintiff were an irrelevant consideration. (Page 5)
8. In this action, liability was not disputed and much of the claim for getting up appears to have taken place prior to the writ being issued. The action settled after a listing conference and there was no trial. The issues raised by the pleadings were limited and the question of causation of certain alleged injuries and quantum, which are not novel or complex in personal injury litigation. There was no submission in relation to provision of advice on evidence, notice to produce and no subpoenas for production of documents. The claim for getting up was for some 68.4 hours work and excessive. 9. Further and in any event, if the Deputy Registrar is unwilling to re-consider the allowance for getting up that allowance it is submitted was attended in error. The Deputy Registrar initially assessed getting up amount of $25,000. However, after correctly (it is submitted) accepting the defendants' submission that counsel fee was not a disbursement, the Deputy Registrar added that fee to the allowed claim for getting up. The defendants submit that such an approach was in error. Having taken a global approach to assess the work required as getting up, it was not it is submitted open for the Deputy Registrar to simply add counsel fee without any consideration as to whether the amount allowed with the addition of that fee correctly reflected the work reasonably and necessarily required to be performed. Entry for Trial and Letter to Client re Costs of Trial (item 11) 10. The defendant objects to any allowance for this item on the basis that Item 16(a) of the refers to an allowance for advising on and preparing documents required to be filed by the interrogatories alia, Rules of the District Court. Order 36 of the Rules of the District Court 2005 does not require the notice to be filed and the notice was not served on the defendants. The defendants submit that no allowance ought o have been made for this item. Schedules of Damages (item 13) 11. The schedule of damages reflected much what was in the statement of claim and an existing document prepared for the purposes of an informal settlement conference (the cost of which was, it is submitted, properly taxed off). The defendants submit that an objective assessment ought to have been made as to the work reasonably required to prepare the schedule in a personal injury (Page 6)
action that was not novel or particularly complex. The defendants object to the allowance made for this item as being excessive in the circumstances and request re-consideration. Photocopying (item 15) 12. The defendants object to the allowance made for photocopying for the purposes of the brief to counsel, which formed part of getting up and ought not to have been granted as a separate allowance. Drawing Bill of Costs and Service (item 16) 13. The defendants submit that the amount claimed was excessive and that the deputy Registrar erred by not making an objective assessment of the work required to prepare the bill, which was not on its face complex. No schedules were prepared and there were few vouchers. The defendants seek re-consideration. Preparing for and Attending Taxation of costs (item 14) 14. The defendants object to the amount allowed of $1,300 for this item. The defendants query whether any allowance ought to have been made for Mr Sheavyn's attendance as the defendants have not been able to identify his name as a certified legal practitioner. In any even, the amount was excessive given that the taxation lasted only approximately 1 hour. There was also no need for two appearances for the plaintiff. 2 Consistently throughout the objections is a reference to a failure to make an objective assessment. The objections were argued at a hearing which I convened on 25 October 2007 at which I sought some elaboration as to what was meant by the allegation that an objective assessment was not undertaken in these various matters. I sought that clarification in the light of the general principle that an assessment is only to be disturbed when it is demonstrated an error of principle has led to a wrong conclusion. 3 Throughout the taxation the guiding principle which I adopted, and which I believe to be the correct principle, is that each discrete task which formed an item or part of an item within the bill of costs should be assessed as to:
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(a) Whether it was reasonable to undertake the task; (b) Whether it was appropriate for the task to be undertaken by a clerk, a restricted practitioner or a senior practitioner and the rate for that input; (c) What was a reasonable time to complete the task. Brown v Brambles Australia Ltd (Unreported, WADC, Library No D980121, 12 May 1998 (8-9)) 4 In forming an assessment I enquired of the taxing party the actual time which was occupied in performing the task and by whom the task was performed. Obviously if the time which I thought the task would reasonably occupy was greater than that which was actually taken I would reduce the amount and conversely if the amount of time taken exceeded that which I thought was a reasonable allowance for the performance of the task I would reduce it to my assessment. In making those assessments I am guided by my experience in taxing other bills of costs and have a general impression of the time which solicitors expend in undertaking the same or similar tasks. I was never enlightened as to the meaning of the phrase of objective assessment save to the extent that it appeared to be an indication that too much had been allowed in the view of the paying party. 5 From that general overview I now refer to the individual objections. The first objection relates to the statement of claim. At the taxation I was informed that the time which was actually spent by a senior practitioner preparing the statement of claim had been reduced somewhat for the purposes of taxation and that reduced the amount was being claimed at the maximum applicable for a senior practitioner. I reviewed the form of the statement of claim and reached the conclusion that it was appropriate the statement of claim should be prepared by a senior practitioner and the allowance was a reasonable one in the circumstances. On that basis I allowed the item at $2,800. A subsidiary claim of $500 for amending the statement of claim was disallowed in its entirety. 6 The next item concerns the giving of discovery. That process, properly undertaken, requires the client to be brought to a proper understanding of what documents are or might be relevant to the proceedings in which she is involved and her obligations in regard to the discovery process. In the present circumstances the plaintiff was a person suffering from some level of psychiatric disturbance and English was not her first language. It is a complaint that no consideration was given as to whether there were documents over which privilege should be claimed. (Page 8) There was however, the general claim for privilege. The fact that further documents were not the subject of a claim for privilege does not demonstrate, as the defendant submits, that no consideration of such a claim was given. I take it as axiomatic that a senior practitioner preparing a list of discoverable documents will consider whether those over which a claim for privilege can be sustained should be the subject of a claim for privilege. I also take it as axiomatic that a senior practitioner preparing discovery for a client will properly discharge his or her duties to explain to the client the nature of the process, the ambit of potentially relevant documents and the obligations undertaken by the client to provide a proper discovery. The plaintiff has claimed something rather less than two hours of a senior practitioner's time for undertaking this task and in my view that is a reasonable allowance, accordingly I am not inclined to disturb the allowance made. 7 The next item subject of objection is answering interrogatories. A sum of some $2,200 was claimed and I allowed $1,600 for that process which was an allowance of rather less than four hours of a senior practitioner's time. My enquires ascertained that the task was undertaken by a senior practitioner, and given the nature of the questions, the language difficulties faced by the client, her general temperament, and the importance of the task I consider the allowance to be an appropriate one. My enquiries ascertained that rather longer was taken to prepare the interrogatories than my allowance would indicate however, I consider in the circumstances that the claim should be reduced somewhat to what I regarded as a reasonable figure. 8 The next item under attack is getting up case for trial. May I say to start with that I don't consider that the peculiarities (in the objections 'particularities') of the plaintiff were irrelevant. There were significant problems in the plaintiff's case largely concerning the onset of wrist and shoulder injury which the defendant disputed were the consequences of the events on 24 April 2009. After assessing the task I felt that an allowance of approximately $25,000 was appropriate. Subsequently the defendant challenged a claim for a disbursement of $2,200 being a fee being paid to Mr E J Myers who was engaged as counsel in the case. I considered that objection was sound on the basis that the amount was not properly claimed as a disbursement but as a profit cost. Accordingly I adjusted my assessment of getting up case to include the amount of $2,200 being the amount paid to Mr Myers. In this case the action went to a listing conference and it is a requirement of the District Court Rules 2005 that counsel attends or provides a certificate setting out the estimated length the trial, the number of witnesses to be called, unsuitable (Page 9) dates, that reasonable efforts have been made to settle the issues in controversy and the tender of expert reports without the witnesses being called, and that the pleadings are satisfactory. In order to sign such certificate, as Mr Myers did, it was necessary for him to be briefed, and for him to examine his brief and satisfy himself to the requisite standard of the matters he was called upon to certify. I consider that to be a proper task to be undertaken and properly considered as part of getting up it being a necessary step to progress the action toward an eventual trial. Accordingly I can see no reason why I should, as the defendant's submits I should, make no allowance for the charges which Mr Myers levied for his involvement in the action. 9 The next matter challenged is the entry for trial and letter to client which comprised item 11 of the bill. In order to enter a matter trial it is necessary for the party entering it to have informed the client of a comprehensive range of potential costs outcomes. That task is a responsible one and needs to be responsibly undertaken. The advice needs to be in writing. It is a prerequisite in entering a matter for trial that the task be undertaken. I can therefore see no objection to making an allowance for that aspect of the task together with the formal entry for trial papers and their service. The claim was for one hour of a senior practitioner's time and that I consider reasonable in the circumstances. 10 The next item the subject of objection is the preparation of schedules of damages which it item 13 of the bill. The task of preparing schedules of damages is often undertaken in what I would describe as an extremely slip-shod way in this court. That criticism cannot be levelled against the schedules which were filled in the present case. These were properly prepared and the task was undertaken by a senior practitioner with some obvious level of thoroughness and precision. There were two claims made for two separate schedules which were prepared and filed on different occasions however I concluded that there should only be an allowance for one schedule that being for $2,500 representing something rather less than six hours of a senior practitioners time. That in the circumstances seems to me to a be a reasonable allowance for the task which was undertaken and as a consequence the amount is allowed. 11 The next item the subject of attack is photocopying which is item 15 on the bill. It is said that an allowance of 11 cents per page for the brief to counsel should not have been a separate allowance and should have been a part of getting up case for trial. That is not my understanding of the import of the item. The item allows a recoverable allowance for copies where reasonably necessary. Having made the decision to brief (Page 10)
independent counsel it was necessary to provide him with a brief. No complaint is made as to the extent of the brief and I disallow the objection on the basis that it was reasonable that he be briefed and that he be provided with copies of the relevant documents. 12 The next item under attack is drawing the bill of costs and service which is item 16 on the bill. An amount of $1,200 is claimed. I am told that the bill was drawn by the senior practitioner having conduct of the action and I consider that to be appropriate. I consider that the bill was drawn in a satisfactory way and the disbursements were all properly vouched. At the hearing I accepted that some four to five hours of the senior practitioner's time were absorbed in this task. In addition to the actual drawing of the bill was the process of filing and serving it and paying the necessary fees and so forth. Bearing all those matters in mind I consider that the allowance of $1,200 is appropriate and it will not be disturbed. 13 The final item under attack is item 14 preparing for and attending taxation. A complainant is made about Mr Sheavyn attending the taxation. The fact that Mr Sheavyn is not a certified legal practitioner is not to my mind to the point. Unqualified individuals regularly attend taxations indeed frequently articled clerks cut their teeth on such work. Additionally, I find it interesting that over many years the Insurance Commission of WA has been content to be represented by Mr Sheavyn on taxations, and had no difficulty claiming costs for his attendance when the opportunity arose, but now contends that no allowance should be made when he appears for a plaintiff. In fact Mr Sheavyn was attended by the senior practitioner with conduct of the action but only his fee of $209 an hour was claimed. I calculated the total time of preparation and attendance at the taxation to deserve an allowance of approximately $1,000. That represents in my view an economy for the defendant. A complaint is made about two individuals attending but no claim was made for the senior practitioner, so I am unable to understand the basis of that complaint. 14 Having reviewed the matters the subject of the objections I am not persuaded that any of my original allowances should be disturbed as a consequence I intend to sign the allocator for the sum of $58,627.54, upon the issue of these reasons for decision. 15 The amount comprises $57,827.54 being the original taxed amount and $800 for hearing the objections.
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