Bosco v Solomon Brothers

[2006] WASC 307 (S)

BOSCO & ANOR -v- SOLOMON BROTHERS [2006] WASC 307 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 307 (S)
Case No:	LPA:20/2006	Heard:	30 AUGUST 2006
Coram:	MASTER SANDERSON	Delivered:	20/12/06
Supplementary Delivered:	25/06/07
No of pages:	4	Judgment Part:	1 of 1
Result:	Order for costs refused
Category:	B
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Parties:	GIZELLA SUZANNE BOSCO ROLAND CHARLES BOSCO SOLOMON BROTHERS
Catchwords:	Costs Whether practitioner acting in person on appeal from Registrar entitled to costs Turns on own facts
Legislation:	Legal Practice Act 2003 (WA), s 229, s 235, s 238, s 239, s 242
Case References:	Bosco v Solomon Brothers [2006] WASC 307 Dobree v Hoffman (1996) 18 WAR 36

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BOSCO & ANOR -v- SOLOMON BROTHERS [2006] WASC 307 (S) CORAM : MASTER SANDERSON HEARD : 30 AUGUST 2006 DELIVERED : 21 DECEMBER 2006 SUPPLEMENTARY
DECISION : 25 JUNE 2007 FILE NO/S : LPA 20 of 2006 MATTER : Section 229 of the Legal Practice Act 2003 BETWEEN : GIZELLA SUZANNE BOSCO

ROLAND CHARLES BOSCO
Parties Charged

AND

SOLOMON BROTHERS
Practitioner

Catchwords:

Costs - Whether practitioner acting in person on appeal from Registrar entitled to costs - Turns on own facts

Legislation:

Legal Practice Act 2003 (WA), s 229, s 235, s 238, s 239, s 242

(Page 2)

Result:

Order for costs refused

Category: B

Representation:

Counsel:

Parties Charged : Mr R A Zilkens
Practitioner : Mr D H Solomon & Mr B R Gannon

Solicitors:

Parties Charged : Zilkens & Co
Practitioner : Solomon Brothers

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

Bosco v Solomon Brothers [2006] WASC 307
Dobree v Hoffman (1996) 18 WAR 36


(Page 3)

1 MASTER SANDERSON: On 21 December 2006, I handed down reasons for allowing an appeal from a decision of a Registrar and refusing the parties charged an extension of time to request an itemised bill of costs for taxation: Bosco v Solomon Brothers [2006] WASC 307. There remains outstanding the question of the costs of that application.

2 The parties charged contend that there is no power under s 239 of the Legal Practice Act 2003 (WA) to award costs in a case such as this. It is to be remembered that this was an appeal from a decision of a Registrar which allowed an enlargement of time.

3 Section 239 of the Legal Practice Act is in the following terms:

"The costs of and incidental to the taxation of a bill of costs are in the discretion of the taxing officer."

4 That section is found in Div 3 of Pt 13 of the Legal Practice Act. The division is concerned with "taxation and recovery of costs". Various provisions outline the effect of costs agreements (s 235), the time and place of taxation (s 238) and various other mechanical matters. Section 229 gives to a taxing officer the power to enlarge the time prescribed for the taking of any steps. That, of course, includes the power to enlarge the time for a party charged to request an itemised bill of costs. There is nothing in that division which deals with what happens when the discretion of a Registrar is exercised and a party wants to appeal that decision. Section 242 of the Legal Practice Act allows for a review of the taxation. But that is a different thing. Here there was no taxation and it was the Registrar's exercise of discretion with which the practitioner took issue.

5 That being so, I am not satisfied that an appeal from the exercise of the Registrar's discretion can be described as a matter "incidental" to a taxation. The counter argument of course is that the party charged, being out of time, requires an extension of time so that there can be a taxation. Hence, it can be said that the decision to extend time is "incidental". It is a question of degree. On balance, I am not satisfied here that an appeal from a discretionary decision of a Registrar could or should be seen as incidental to a taxation.

6 If that be so, the question is whether the party charged can claim its costs as part of a contentious business determination.

7 Here the practitioner runs up against the decision of the Full Court in Dobree v Hoffman (1996) 18 WAR 36. In my view, there is no doubt as

(Page 4)

to the effect of that decision. Where a practitioner acts on his own behalf, he is not entitled to costs. That is the ratio of the case. Here it was the practitioner who appeared on the appeal and I can see no basis upon which it is open to award costs in their favour.

8 Accordingly, the order in this case should be that there be no order for costs.