| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BLOOMFIELD -v- LIEBHERR-AUSTRALIA PTY LTD [2005] WADC 15 CORAM : DEPUTY REGISTRAR HARMAN HEARD : NOT APPLICABLE DELIVERED : 7 FEBRUARY 2005 FILE NO/S : CIVO 174 of 2004
MATTER : IN THE MATTER of an application by Eric Wayne Bloomfield for leave to commence action against Liebherr-Australia Pty Ltd in the matter of Section 93D (4) and (5) (c) of the Workers' Compensation And Rehabilitation Act 1981(as amended) BETWEEN : ERIC WAYNE BLOOMFIELD Plaintiff
AND
LIEBHERR-AUSTRALIA PTY LTD
Defendant
Catchwords: Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation of costs - Impact of Workers' Compensation (Common Law Proceedings) Act 2004 s 7(3) on order for costs - Claim for reimbursement of disbursements
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Legislation:
Workers' Compensation and Rehabilitation Act 1981
Result: Review unsuccessful Representation:
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : Chris Phillips
Defendant : Crisp Civitella Smith
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 DEPUTY REGISTRAR HARMAN: The plaintiff commenced an action seeking leave to commence common law proceedings against the defendant for damages pursuant to the provisions of s 94D of the Workers' Compensation and Rehabilitation Act 1981. The action was dismissed and the plaintiff was ordered to pay the defendant's costs. Those costs were taxed and the plaintiff now raises objection.
2 The first ground of objection draws on considerations that emerge in the context of the plaintiff having commenced an appeal in light of s 7(3) of the Workers' Compensation (Common Law Proceedings) Act 2004. To deal with the objection it is not necessary to go into detail, suffice to say that the plaintiff contends that as the plaintiff commenced the appeal the order is something other than it purports to be. The plaintiff may be correct, however it remains the case that the role of the taxing officer is simply to give effect to the order. Until the plaintiff obtains an order precluding the defendant from taxing the costs it would be inappropriate for the taxing officer to refuse to act. The point was raised at the taxation and the determination made was the same. There is nothing to preclude the plaintiff from presently seeking to render the result of the taxation unenforceable pending the resolution of any issue that he seeks to raise in relation to the order. I accept that there would be a cost generated as a result of the taxation having progressed to this point and that somehow the defendant may be at risk. It was my appreciation that the defendant was prepared to accept that risk. In my opinion if it seeks to take the benefit of what presently stands as its entitlement and accepts the risk associated with adopting that stance there is no reason not to proceed with the taxation. Had I refused to tax the bill I would have erred. 3 The focus of the balance of the objection is the determinations made in relation to the claims by which the defendant recovered for its disbursements. Each disbursement was for medical opinion and each was for a significant sum. The defendant's entitlement established under the order is limited to the reasonable cost of services necessarily provided to the defendant. My understanding of the terms of the objection is that the plaintiff raises issues as to both the allowance of the claims and as to quantum. 4 The first contention of error that I will canvass is that recovery was had for disbursements that do not fall within the scope of what was necessary for the purposes of the action. My appreciation of the plaintiff's contention is that as he carried the onus to establish the likelihood of future pecuniary loss in excess of the prescribed amount, it was not necessary for the defendant to commission contrary opinion.
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5 In my opinion there is a distinction to be drawn between commissioning expert opinion that may enable the defendant to construct future prospects for the plaintiff that would not return him a sufficient loss to enable him to satisfy the test of a grant of leave and commissioning opinion to be utilised in an attack on the case advanced by the plaintiff. Having heard many such applications myself I have often had the opportunity to comment that in considering the case put by the plaintiff it is of no consequence that the defendant may have constructed and conceivably established myriad alternative prospects whereby no benefit would accrue to the plaintiff. I perceive that such a distinction would found the proposition that the cost associated with the construction of an alternative case by a defendant may be characterised as not having been necessarily incurred.
6 In this case it is my appreciation that the defendant did not incur the cost of obtaining expert evidence to the end of constructing alternative future prospects for the plaintiff but rather to contradict the evidence of the plaintiff: that is, to raise a contest as to the basis of the plaintiff's case. Further it was not simply a case of experts coming to different conclusions. As I recall the defendant put assumptions made by the plaintiff's expert to its own expert in order to obtain an opinion. It is of no consequence that at the hearing the experts would not have been cross-examined. 7 The next issue is as to quantum. The plaintiff raises two related matters. The first that the total amount claimed is significant. The second, that the total bears no reasonable relationship with at least that part of the cost of the exercise to the plaintiff that he is presently able to quantify. As to the first, taxation is conducted on the basis of individual claims; it is of no consequence that anyone may chose to add the results achieved on taxation. Such an aggregation has no role to play in the context of taxing individual claims. As to the second, I accept that one might be satisfied that particular costs for services provided are reasonable in the event that the costs generated by another party in relation to the same exercise is more or less of the same order. Yet there may be any number of reasons why the cost to one party of obtaining expert opinion ought not be constituted as the datum for considering the reasonableness of the cost to its opponent. At the very least, I gather that the cost of the exercise to the plaintiff has not yet been ascertained. 8 In my opinion the plaintiff's notice of objection raises no error.
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