Belton v Roche Bros Pty Ltd

[2001] WADC 83

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   BELTON -v- ROCHE BROS PTY LTD [2001] WADC 83

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   7 MARCH 2001

DELIVERED          :   30 MARCH 2001

FILE NO/S:   CIV 3753 of 1999

BETWEEN:   TONYA CLAIRE BELTON

Plaintiff

AND

ROCHE BROS PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation of costs - Process by which the item getting up case for trial was dealt with at taxation - Pre-trial conference - Service of Writ

Legislation:

Nil

Result:

Review fails

Representation:

Counsel:

Plaintiff:     Mr S V Forbes

Defendant:     Mr C Tillich

Solicitors:

Plaintiff:     Paul O'Halloran

Defendant:     Jackson McDonald

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

Nil

Case(s) also cited:

Nil

1. DEPUTY REGISTRAR HARMAN: The plaintiff obtained judgment for costs.  The bill of costs was taxed and the defendant has sought review in relation to four determinations made in the context of the taxation.

2. The first item the subject of an allegation of error in principle is the claim made in relation to getting up the case for trial.

3. The relevant terms of the objection are lengthy however ultimately they come down to the process by which the taxing officer considered the claim and determined quantum.  That process was one by which the parties availed themselves of the opportunity to make submissions in relation to the services which were provided to the plaintiff.  At the conclusion of those submissions a determination was made which was no more than assessment of quantum.  There was no discrete allocation of any part of the quantum determination to any particular aspect of the services provided to the plaintiff.  It is not uncommon that taxations proceed in that manner indeed it is the norm.

4. That is not to say that if one party seeks a more detailed examination of the services actually provided that it is not inappropriate to allow for such a detailed examination of the services actually provided.  Obviously such a procedure is time consuming and even in those cases where a party (usually the adverse party) seeks such an examination, once it becomes apparent that attention would then be given to each part of the relevant services provided, in my experience, in every case the party proposing that cause is willing to abandon that course.  Indeed to the best of my knowledge I have yet to deal with a party and party taxation under the scale on that basis.

5. It is my recollection of the taxation that the defendant did not seek to adopt the procedure which would lead to a more detailed analysis and was content to listen to the generality of the plaintiff's submissions and respond in kind.

6. In my view it is a little late to now complain about the process of taxation.  The procedure adopted was implicitly with the consent of the parties.  If the process was flawed then in my view that is more as a consequence of the erroneous approach adopted by the parties than it is any error of the taxing officer.

7. One of the related submissions of the defendant on the issue, dealt with the absence of a schedule of services actually produced to the plaintiff. It is not the case that a party is required to provide a schedule of services actually provided to the client.  The only item for which a schedule is appropriate is item 21.

8. The next item the subject of review is the claim relating to the pre-trial conference.  Ultimately it is the defendant's claim that the amount awarded ought to have been reduced to $300.  There is no basis given for that proposition.  There is no allegation of error.  For what it is worth, it would appear that the determination made at the taxation was as a consequence of there being no contest in relation to the plaintiff's claim.  It seems to me to be odd that the defendant having previously failed to raise any contest now seeks to assert an error of the taxing officer in determining quantum in the amount claimed.

9. The next item the subject of review is for a claim which was not actually determined at the taxation.  The plaintiff explained that it considered that it had abandoned the claim as a consequence of its failure to reactivate the taxation.  Be that as it may, there being no determination, there can be no error and it follows there is no basis for review.

10. The last item the subject of review is the claim for service of the writ on the defendant in Queensland.  The defendant contends that the defendant's solicitor would have accepted service had an enquiry been made of the defendant's solicitor.  There was some basis for contending that such an approach ought to have been made as a result of the fact that the defendant's solicitors acted for the defendant in the previous action between the same parties in relation to the same cause of action.

11. The plaintiff informed me that whilst it was the case that the defendant was so represented; the defendant's solicitors did not actually formally appear on the record.

12. The more significant point in my opinion is the fact that there is no onus on a plaintiff to seek to serve the defendant's solicitors in lieu of the defendant.  The plaintiff simply chose to serve the defendant as it was entitled to do.

13. The review accordingly fails.