Bendall-Harris v Aitken

[2009] WADC 25

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   BENDALL-HARRIS -v- AITKEN [2009] WADC 25

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   12 FEBRUARY 2009

DELIVERED          :   24 FEBRUARY 2009

FILE NO/S:   CIVO 2 of 2008

BETWEEN:   ELIZABETH ANNE BENDALL-HARRIS

Plaintiff

AND

COLLETTE MARY AITKEN
Defendant

Catchwords:

Practice and procedure - Review of taxation - Turns on its own facts

Legislation:

Nil

Result:

Objection disallowed

Representation:

Counsel:

Plaintiff:     Mr C V Eastwood

Defendant:     In Person

Solicitors:

Plaintiff:     GV Lawyers

Defendant:     Not applicable

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

Nil

1. DEPUTY REGISTRAR HEWITT:  On 6 August 2008 his Honour Judge Bowden made the following orders in relation to this matter:

   1.the plaintiff's amended originating summons is dismissed;

   2.the application of the defendant dated 17 June 2008 is dismissed;

   3.the plaintiff to pay the defendant reasonable legal costs except the costs of the 22 May 2008; and

   4.the defendant to pay the plaintiff's costs of 22 May 2008.

   Relying upon that order the defendant filed a bill of costs dated 13 January 2009 which came before me on 29 January 2009.

2. The defendant had been but was no longer represented by solicitors and the bill of costs which those solicitors had rendered to her had been the subject of a solicitor client taxation in the Supreme Court of Western Australia.  The original of that bill was presented to me together with the allocator signed by Registrar Christo.  I took the view that taxation should form the basis of calculation of the plaintiff's entitlement to costs in this action.

3. Some adjustments were required to the raw figures however and those adjustments were:

   (a)to deduct from the amount of the bill which was taxed in the Supreme Court those items which related to that taxation process, namely $800.  That reduced the amount properly connected to the District Court proceedings to $3,815.  Additionally the solicitor/client bill was taxed on the basis of a cost's agreement which provided for over scale payments.  A further deduction was made to bring the hourly rate for the work undertaken by the plaintiff's solicitors into line with the maximum allowable by the scale published by the legal costs committee.  With those two adjustments the amount of the bill was reduced to $3,400 to which the taxing and filing fee was added making a total of $3,608.

4. To that process the plaintiff has brought in the following objections:

   "1.I am objecting to the amount of $400 being taken off the bill because the bill has already been taxed at the Supreme Court by the Registrar there and the amount of $4,615.20 was considered to be a fair amount by the Supreme Court for the substantial work carried out.

   2.The other reason that I am objecting to the amount of $400 being taken off is that 9% has already been taken off the bill, reducing it even further in order to bring the hourly rate into alignment with the scale.

   3.My final objection to the $400 being taken off, is that there appears to be no basis to it, in that there does not seem to be a legitimate reason for it and the amount was just 'plucked out of the air', so to speak, with no set calculation or basis to a calculation.  The work carried out, documented in the bill, was all necessary for the end result and I believe should therefore be able to be claimed, especially as 9% has been taken off the bill in addition to the $800 also taken off for the cost of taxation carried out at the Supreme Court."

5. Dealing with objection 1.  I made clear to the plaintiff during the course of the taxation that the costs of drawing a bill and taxing a bill in the Supreme Court of Western Australia is not recoverable as a cost of the action in this Court.  It would appear that explanation has not been comprehended.

6. As to objection 2.  Again it was made clear that although on a solicitor client basis, over scale hourly rates may be recoverable where they are provided for in a cost's agreement, the order of this Court was not that the costs be taxed on a solicitor client basis, but that the plaintiff's reasonable costs be allowed.  Accordingly the scale published by the Legal Costs Committee applies and to the extent that the hourly rate charged by the solicitor exceeded the maximum allowable under the scale a reduction was called for which I calculated to be $400 and that was therefore deducted.  Again it appears to me that the defendant has failed to understand the basis of the deduction.

7. As to objection 3. It seems to me that it has been adequately answered by my answers to the previous two objections.

8. The objection is therefore disallowed and the allocation will be signed on the issue of these reasons.