Bensky v Mercantile Mutual Insurance Company Limited - [2001] WADC 205

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BENSKY -v- MERCANTILE MUTUAL INSURANCE COMPANY LIMITED [2001] WADC 205

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 27 APRIL 2001

DELIVERED : 31 AUGUST 2001

FILE NO/S: CIV 1317 of 1995
CIV 2934 of 1997

BETWEEN: KEITH BENSKY
Plaintiff
AND
MERCANTILE MUTUAL INSURANCE COMPANY LIMITED
Defendant

Catchwords:

Practice - Western Australia - Rules of the Supreme Court of Western Australia - Order 66 review of taxation of costs under items 6(a), 13, 14(a), (c) and (f) and 16 for disbursements

Legislation:

Nil

Result:

Dismissed

Representation:

Counsel:

Plaintiff: Ms K Vernon
Defendant: Mr P Cruse

Solicitors:

Plaintiff: Metaxas & Vernon
Defendant: Godfrey Virtue & Co

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

Australian Coal & Shale Employees’ Federation v. The Commonwealth [1953] 94 CLR 621

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The defendant has sought review of some of the determinations made at taxation in relation to seven of the items and seven of the disbursements in the plaintiff’s bill of costs.
The first determination the subject of the defendant’s notice of objection relates to the plaintiff’s claim under item 6(a) of the scale.
In the bill the claim was expressed as follows: -
2 Statement of claim 16.5.95 6(a) $1000.00
Amended Particulars 23.4.97
8.10.98
26.7.95
At taxation I determined that the last two parts of the item be disallowed and that quantum for the balance be fixed at $900.00.
The first part of the objection states that $500 ought to have been taxed off the claim. The first support for that contention is expressed in terms that the pleading was straightforward. It is my appreciation of that ground of objection that it simply raises an issue as to quantum rather than to the allowance of the item.
The scope of review of quantum determinations was expressed in the obiter comments of Kitto J in Australian Coal & Shale Employees’ Federation v. The Commonwealth[1953] 94 CLR 621. On a review of authority he considered that there was scope for such review limited to circumstances where it could be demonstrated that there had been a miscarriage of justice in what was described as an extreme case. In my opinion there must be some doubt as to whether he made a correct assessment of the authority to which he referred as most of it did not go to purely quantum determinations but rather to the allowance or disallowance of items or parts of items.
In my opinion the rules reveal a distinction between "items" or services and the value of those services or "fees". On a plain reading of r 53 there is jurisdiction to review determinations as to the allowance or disallowance of items, it is silent as to the review of quantum determinations. In my opinion there is no discretion to review quantum determinations.
I accept that on any analysis of the recent local authority and perhaps no analysis of the rules, it has become the practice under r 55 to review quantum determinations. As the defendant may seek review under that rule I will comment on the relevant parts of the notice in order to record any special feature of the process of taxation.
As to the first ground I have no such comment.
The second ground is to the effect that the amendment of the particulars arose from some default on the plaintiff’s behalf. That ground raises the prospect of an error in the allowance of the particulars. However there is no allegation of an error in principle in that allowance, the defendant simply contends that the quantum for the item ought to be reduced.
The claim was determined not upon an appreciation that the plaintiff was entitled to recover for the process by which she put a pleading on the file but rather on the basis that had the pleading been initially framed in its final form, then the plaintiff would have been able to recover the amount at which quantum was determined. The basis for the determination was expressed to the parties at taxation. That may explain why the error alleged is as to quantum and not the allowance of that part of the item.
I accept that on the bill I have not indicated the disallowance of the part item for the amended particulars. If I had taken one alternative course I could have struck out the reference to the amended particulars, however that would indicate the only allowance made was for the original pleading and not the elements of the pleading on which the plaintiff ultimately relied. Perhaps the best course would have been to delete the part item and also the date of the pleading in order that I simply recorded my determination that the plaintiff was being awarded $900.00 for the pleading. I regret that I did not do so.
As to that ground, in effect there was disallowance of the process of amendment. That did not mean that the plaintiff was not entitled to recover the cost of the pleading and particulars upon which she relied at trial. Unless an order had been made disentitling her to recover the costs of the amended particulars I would have erred in disallowing that part of the item.
The next group of items the subject of review relates to claims made under items 13, 14(a), 14(c), 14(f) and 16 of the scale. In each case the objection refers to the determination of quantum. The ground of objection in relation to all but the claim under item 16 is difficult to discern. All that the defendant has expressed in the notice of objection is disagreement with the quantum determination. In my opinion in relation to those claims the notice raises no objection capable of providing jurisdiction to review.
As to whether there is any special feature of the process of the taxation that calls for special comment I would say that in relation to the claim under 14(a) I was satisfied that the presentation of the plaintiff’s case at trial presented counsel with a significant task.
As to the claim under 14(c) one part of the notice asserts that the appearances on the last two days of trial were each for half days only.
In determining quantum I referred to the associate’s record, that record indicates the time spent on each day. The penultimate day went from 9 am to 1.10 pm, a period in excess of four hours. A day in a civil trial is on average 4.5 hours. The action was listed to be heard for a full day on that date. It was heard for a full day on that date. I had no difficulty with the proposition that the plaintiff was entitled to recover for a full day.
According the associate’s record on the last day the action was heard between 10.35 am and 11.00 am. The plaintiff was entitled to recover on the basis that the action was listed and heard on that day.
The plaintiff’s claim for the six days subsequent to the first was $11,500.00. The maximum claimable under the scale for those days was $13,800.00. As a result of the taxation the plaintiff is entitled recover $10,750.00. There is nothing on the bill or the objection that would suggest that the determination in relation to the last day was inconsistent with the time recorded by the associate. Significantly the defendant does not allege that any error was made in the assessment of the duration of the hearing on the last day.
It may be the case that the defendant has miscalculated the length of the hearing. According to the associate’s record the action was heard on the 9^th to the 12^th inclusive and on the two later dates. The objection suggests that the hearing dates were simply the 9^th and the 12^th and the two later dates.
As to the claim under item 16, the defendant raises an issue by two propositions. The issue is that the plaintiff failed to bring or serve sufficient vouchers for the disbursements. The first proposition is that accordingly the plaintiff ought not to have the costs of the taxation, alternatively that only $130.00 be recovered. I do not see that there is anything that would suggest any science in the last proposition. I gather it is intended to be a nominal sum.
I am not so sure that the issue is truly one of allowance of the item but rather to the prospect of the imposition of a penalty.
I note that on the first occasion the process endured for 2.5 hours. I have made no record of the time spent on the second. At the conclusion of the second and immediately prior to the determination of the fee the plaintiff sought to amend the relevant claim to $390.00. That amendment was allowed and $32.50 was taxed off.
Although the current scale is not so expressed as to rate recovery on the basis of time spent at taxation, the time spent is properly a primary consideration in assessing the extent of recovery for that service. It is my recollection that the majority of the taxation was unexceptional. Any additional time spent as a consequence of any default of the plaintiff was relatively insignificant.
In my opinion it would have been utterly arbitrary and therefore wrong in principle to follow either proposition advanced by the defendant.
The balance of the objection deals with the disbursements. My recollection of that part of the taxation was that the vouchers were less than satisfactory to the defendant and its solicitor needed to be persuaded that they were sufficient. The defendant’s acceptance of the disbursements was grudging. My memory accords with my notation of the bill that no contest was raised in relation to most items.
The opening comments in the defendant’s notice are difficult to understand. They may have some bearing upon the claim under item 16. There is a reference to the taxing officer having made a determination and not being prepared to reconsider. That allegation raises the prospect of an error in principle. Unfortunately the defendant does not identity which vouchers or claims were not reconsidered.
Upon analysis it would appear that the defendant recognises that the relevant determinations were made at the last listing of the bill when even on the defendant’s analysis all vouchers were before me. If my determination revealed any preference for the original vouchers over later vouchers that could only be coincidence. There is no reason to reject vouchers produced late simply because they are produced late. If I had done so then I would have erred. I find the argument difficult to follow without any specific allegation.
The objection deals with seven disbursements. In relation to all but the fourth the primary difficulty I have is that at taxation the defendant took no issue with the claims.
At taxation where the adverse party is represented and has been served with the appropriate papers my first inquiry in relation to each claim is directed to the adverse party. Where no issue is taken and no determination sought I mark the item as having been determined as claimed and move on to the next. I suspect that there is not an awful lot wrong with that approach.
The jurisdiction to review provided by r 53 is dependent upon the allegation of an error in principle in the making of particular determinations by the taxing officer. I have some considerable difficulty with the suggestion implicit in the defendant’s objection that an error was made by me in following the process that I have outlined above. In my opinion any error is that of the adverse party in not raising any issue in relation to the items or otherwise seeking a determination. I would suggest that if it now transpires that the adverse party ought to have sought a determination at the taxation that fact raises no error amenable to review.
But for the exception that I have isolated, at the taxation the defendant raised no issue and sought no determination in relation to the items the subject of the defendant’s notice.
According to my note on the bill I determined the fourth claim the subject of review. That claim was for recovery of $800.00 paid to Dr Traub. The first ground of objection goes to the constitution of Dr Traub’s account. In the bill recovery is sought of a witness fee. The voucher establishes that the fee includes cancellation fees. I suppose the bill misrepresents the voucher. None the less there is no doubt that the fee was paid and the plaintiff simply sought recovery of that disbursement regardless of its constitution. By the terms of the judgment the plaintiff is entitled to recover disbursements.
I was satisfied that the witness was entitled to cancellation fees for those days when he was not called. It would appear that the defendant’s contention is that the plaintiff ought to be bound by his misrepresentation of the fee in the bill. In my opinion it is at best an unworthy aside.
The other basis of objection is that a cheque for $400.00 was tendered to the witness in full and final satisfaction of his account. The defendant asserts that in effect it can take the benefit of the accord demonstrated by the deposit of that cheque. I have some difficulty with that proposition. It is evident that the witness expressly did not accept the cheque on the basis upon which it was tendered. The letter of demand for the balance is dated 16 July 1999. The defendant in its objection does not canvass the date of the deposit of the first cheque. I appreciate that prior to the taxation the defendant would not have been aware of the date of the deposit. It is my recollection that it was conveyed to the defendant at the taxation. In the circumstances the error alleged is not established.
Even if the first cheque was deposited prior to the demand for the balance, having been satisfied in relation to the claim, the payment and the entitlement to recovery I consider that the determination of the extent of recovery reveals no error in principle. By comparison the issue raised by the objection although it may be valid is no more than a nice point.
The application for review is unsuccessful in each of its parts.