Bosch REXROTH Pty Ltd v Australian Danish Food Company Pty Ltd - [2004] WADC 92

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BOSCH REXROTH PTY LTD -v- AUSTRALIAN DANISH FOOD COMPANY PTY LTD [2004] WADC 92

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 3 MAY 2004

DELIVERED : 14 MAY 2004

FILE NO/S: CIV 1371 of 1993

BETWEEN: BOSCH REXROTH PTY LTD
Plaintiff
AND
AUSTRALIAN DANISH FOOD COMPANY PTY LTD (ACN 008 673 158)
Defendant

Catchwords:

Practice - Western Australia - Objections to taxation - Getting up case and other items - General principles discussed

Legislation:

Nil

Result:

Objections not allowed

Representation:

Counsel:

Plaintiff: Mr S G Leslie
Defendant: Mr W Naseem

Solicitors:

Plaintiff: Wilson & Atkinson
Defendant: Cocks Macnish

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HEWITT: On 8 March 2004 I taxed the plaintiff's bill of costs pursuant to the judgment of Yeats DCJ and the defendant has brought an objection in regard to a number of the items in the bill.
The first objection is to item 7 and is in the following terms:
"Item 7: Scott Schedule
Deputy Registrar Hewitt allowed the Plaintiff's claim for $600.00 for this item in full.
In circumstances where the Scott Schedule merely set out the details of the Plaintiff's invoices, which were already set out in full in the Statement of Claim, this amount is unreasonably high. The Defendant submits that this work should reasonably have taken no more than 30 minutes."
The Scott Schedule was a document prepared according to the order of the Judge giving directions in regard to the trial of this matter. It comprises six pages and was prepared by the plaintiff and delivered to the defendant for completion. The defendant did not complete and return the Scott Schedule as a consequence of which it was never used and does not appear on the Court file.
The objection suggests that the work merely sets out details of the plaintiff's invoices. That is correct. However, there were a large number of those invoices and the information required to be completed in the Schedule was quite detailed and necessarily needed to be accurate. In addition, the solicitor representing the plaintiff attended the library to examine precedents of various forms of Scott Schedule in order to select a precedent most suited to the purpose at hand.
An allowance of approximately two hours has been made for the work and I am satisfied that the requirement for accuracy and the need to establish a proper format for the schedule justifies an allowance in that order. Accordingly, insofar as the defendant objects to item 7 the objection is not allowed.
The next objection is to item 14 of the bill which is in the following terms:
"Item 14: Getting up
Deputy Registrar Hewitt allowed $55,000.00 for getting up in this matter, calculated on the basis of 50 hours work at $150.00 an hour (for work conducted at an early stage in the proceedings, and therefore under earlier Supreme Court Scales) and 150 hours work at $200.00 per hour, for work conducted in the lead up to trial.
In circumstances where:
(a)solicitors for the Plaintiff were considerably assisted in their getting up by having Roger Randall as effectively an in‑house expert preparing witness statements and advising in relation to technical issues;
(b)the Plaintiff's claim was a relatively simple matter of debt recovery;
(c)the Plaintiff called only 3 witnesses; and
(d)other than getting up the Plaintiff's costs have been allowed at approximately $44,950.00 which represents a great deal of time becoming familiar with the factual and legal basis of the claim;
an allowance of $55,000.00 for getting up is unreasonably high.
Furthermore, the Defendant submits that the Schedules do not justify the amount claimed, and notes in particular that:
(a)in relation to the Schedule entitled Research/Analysis/Preparation for Trial the Plaintiff claims amounts that should not be allowed in a claim for getting up, including:
(i)arranging and preparing the brief;
(ii)organizing the file;
(iii)drafting a 'to do' list;
(iv)perusing the file;
(v)drawing memoranda of conferences;
(vi)a settlement conference of 2 December 1997;
(vii)updating a summary of issues;
(viii)travelling to and from Supreme Court Library; and
(ix)collecting and copying authorities; and
(b)in relation to the Schedule entitled Trial Documents the Plaintiff claims unreasonably high amounts for certain tasks, including;
(i)amounts for entry for trial papers prepared in 1994 which were never filed;
(ii)20 units preparing entry for trial papers, which is a very simple task;
(iii)an amount for preparing Roger Randall's statement of evidence in circumstances in which it is claimed elsewhere; and
(c)in relation to the Schedule entitled Witness that Plaintiff claims 61.6 hours work by a senior practitioner on the statement of Roger Randall, in circumstances where Roger Randall was instrumental in the preparation of his own witness statements."
The first point to make is to correct some typographical errors in the objections. The rates allowed were respectively $200 and $300 per hour not $150 and $200 as is suggested in the objection.
The first point to note is that this matter was the subject of a special costs order included in the judgment entered 2 September 2002. That order provided that the upper limit for item 13, getting up case for trial, was to be raised to $60,000.
That said the proper approach, in my opinion, in assessing an allowance for getting up case for trial is to establish the work which needed to be undertaken, the appropriate personnel to undertake that work, and the time reasonably spent on the tasks involved.
On that score I now turn to the specifics of the objection. It is correct that the plaintiff's solicitors were assisted by having an expert employed by the plaintiff available to advise them. The next contention however is that the plaintiff's claim was a relatively simple matter of debt recovery. That is simply not correct and I am unable to understand how such a proposition could be included in the objection. There were issues raised in the defence and counterclaim which were anything but simple and were in fact rather complex. The trial before Yeats DCJ proceeded for five days on the initial occasion and then was adjourned for a further two days at a later date. The matter was settled before the trial resumed however, I would have thought that a case involving some seven days of court time could not be fairly characterised as a simple matter of debt recovery.
The next issue suggested is that the plaintiff called only three witnesses and the final matter is that various other items have been allowed at a fairly high figure. As to the last of those propositions it strikes me as irrelevant what I might have allowed for other aspects of the plaintiff's case. What matters is what was done to prepare the case for trial.
When taxing the bill I assessed that a total of approximately 200 hours work costed at different rates to give effect to the varying scales applying at the various times which the work was undertaken was appropriate. There is nothing in the first part of the objections to getting up which persuades me that is an unreasonable allowance. The case had many complications, virtually all of which were introduced by the defendant, and the defendant must pay for the work which was necessary to undertake to meet the case which it proposed to advance in defence of the plaintiff's claim.
The next aspect of the objection to getting up relates to various items which are included in the Schedule submitted with the bill and a criticism of those items. Without dealing with the items in detail it seems to me that much of what is criticised is in fact the core of getting up case for trial. In particular arranging and preparing a brief and preparing what in effect I am told is an advice on evidence I consider to be at the very heart of the process of preparation of a case for trial. The Schedule claims a total of some $75,000 and it to be noted that the amount which was allowed was some $20,000 less than the total of the Schedules and some $5,000 less than the amount claimed. To my mind that indicates some acceptance of the proposition that a reasonable allowance was beneath the amount displayed in the schedule and the amount actually claimed. It is not to the point to be able to identify some item in the Schedule which should not be properly claimed. The process of the taxation was not a process of taking a figure and making deductions from it. The process of taxation was a process of establishing the tasks which needed to be undertaken, establishing by whom those tasks should have been undertaken, and fixing a reasonable charge for that work. The objection starts at the wrong end of the process and seeks to show that certain items which were described in the Schedule should not be properly allowed. That is no doubt the case but it ignores the process by which the taxed sum was arrived at.
Like comments apply in regard to (b) and (c) in the second group of supporting paragraphs to the objection. The objection to getting up case for trial will therefore not be allowed.
The next matter is the pre‑trial conference on 26 October. There was some discrepancy between the stated positions of the parties but for the purposes of the taxation I accepted that the time taken for the taxation was approximately three and a quarter hours. There is a debate as to whether the work done in preparation for the pre‑trial conference should be a part of the pre‑trial conference or separately allowed as getting up case. For the purposes of the taxation I have accepted that approximately three hours was spent preparing for the pre‑trial conference and have included that in the allowance. It may be that the item should have been divided between that portion which should be claimed as getting up case for trial and that portion which relates to the actual attendance at the conference. For the purposes of the taxation it doesn't seem to me to be a productive exercise to separate out allowable portions of the same item allocating some to the pre‑trial conference and some to getting up case for trial. Suffice it to say that on the evidence before me the claim of $1,700 was justified and for that reason allowed. The various objections which are taken are as follows.
Firstly, the senior practitioner who attended the pre‑trial conference was familiar with the file. That may have some bearing on preparation but it is not really relevant to the process of taking instructions from and dealing with the plaintiff itself.
The next issue is that an advice on evidence had been earlier prepared and a settlement conference had taken place some three years earlier. To my mind that is issue is irrelevant save to identify the fact that the plaintiff's solicitors were, as they are supposed to be, properly prepared.
The next issue which is raised is that the party who attended the pre‑trial conference on behalf of the plaintiff was a principal witness of fact. Again that strikes me as completely irrelevant. In summary therefore I do not accept that the pre‑trial conference was approximately two hours long and my finding is that it was approximately three and a quarter hours long. It is suggested that two hours preparation was necessary and reasonable. I consider that three hours was reasonable in the circumstances. In those circumstances I am not inclined to allow the objection to the pre‑trial conference item.
It follows that the objections are disallowed in total. I shall therefore sign my allocatur in the amount of $118,585.06 on the date of issue of these Reasons. To that sum I shall add the costs of the objections of $600 making a total of $119,185.03.
The defendant shall have 21 days from the date of issue of the Reasons within which to appeal my decision.