Brocx v Havilah Legal

[2012] WASC 153

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BROCX -v- HAVILAH LEGAL

CORAM:   MASTER SANDERSON

HEARD:   1 MAY 2012

DELIVERED          :   10 MAY 2012

FILE NO/S:   LPA 38 of 2010

BETWEEN:   MARGARET BROCX

Party Charged

AND

HAVILAH LEGAL
Practitioner

Catchwords:

Practice and procedure - Review of taxing officer's decision - Turns on own facts

Legislation:

Legal Profession Act 2008 (WA), s 280(2)
Rules of the Supreme Court 1971 (WA), O 43 r 16

Result:

Summons dismissed

Category:    B

Representation:

Counsel:

Party Charged               :     Mr W G Spyker

Practitioner                   :     Mr D J Garnsworthy

Solicitors:

Party Charged               :     Cornerstone Legal

Practitioner                   :     Havilah Legal

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

Brocx v Mounsey [2009] WADC 113

1. MASTER SANDERSON:  The practitioner seeks the review of a solicitor/client bill of costs that proceeded to taxation on 24 June 2011.  The bill of costs related to work performed by the practitioner during the period May 2007 to February 2010.  The facts, which are not in dispute, can be briefly stated.  The party charged was injured in a motor vehicle accident on 4 May 2001.  She consulted solicitors and eventually proceedings were issued in 2007.  The party charged changed solicitors on a number of occasions.  It would appear she did this because the file followed a particular practitioner.  Thus it came about, as at May 2007, the file was handled by the practitioner.  The case went to trial over 11 days between 30 March and 23 July 2007.  Keen DCJ delivered his judgment on 7 August 2009 (Brocx v Mounsey [2009] WADC 113). The only issue at trial was quantum. Liability had been accepted by the defendant. His Honour's judgment ran to 113 pages. He awarded the party charged an amount of $532,024.

2. Subsequent to the delivery of his Honour's reasons, the parties entered into what is described as a 'minute of consent order'.  It is dated 13 December 2010.  Paragraph 2 of the document is in the following terms:

   The plaintiff's costs of the action be taxed without regard to the limit relating to getting up (the scale limit) in relation to the relevant determinations of the legal costs committee applicable to the plaintiff's costs and without admission that the costs of getting up do exceed the scale limit.

3. The minute of consent order was said to be lodged pursuant to O 43 r 16 of the Rules of the Supreme Court1971 (WA). Deputy Registrar Hewitt of the District Court signed off on the order on 1 February 2011. By this stage the party charged had changed solicitors again and was represented by solicitors who appeared at this hearing.

4. No steps have been taken to tax the party charged costs in the District Court action.  But the practitioner did seek to have their costs of acting for the party charged taxed in this court.  The bill of costs as submitted to this court sought an amount of $108,181.92 for getting up.  Registrar S Boyle taxed off an amount of $72,181.92.  She allowed the getting up in the sum of $36,000.  The practitioner was clearly dissatisfied with the outcome of the taxation.  On 28 June 2011, Mr Garnsworthy, acting for practitioner, wrote to the registrar's associate, attaching a revised schedule which formed part of the bill of costs.  Although this correspondence did not seek reasons for the registrar's decision, the registrar clearly felt that she should explain the conclusion that she reached. 

5. The learned registrar did this by way of letter of 1 September 2011.  A copy of that letter is annexed to these reasons.  (Although the letter contained the learned registrar's reasons, it is not a public document.  However, in my view, it is appropriate to annex it to these reasons to put the present application in context.)

6. The practitioner was not satisfied with the response.  A notice of objection to the taxation was lodged.  Each party was given the chance to make written submissions.  On 2 February 2012, the learned registrar provided to the parties a written 'review of taxation'.  A copy of that document is annexed to these reasons.

7. The practitioner was not satisfied with the review.  On 28 February 2012, the practitioner issued a summons seeking to review the decision of the taxing officer.  The only point at issue was the adequacy of the amount allowed by the learned registrar for 'getting up the case for trial'.  The summons did not specify what errors the taxing officer allegedly  made.  However, from the written submissions it would appear the same arguments were advanced before the registrar as were advanced on the hearing of this summons.

8. Having heard the submissions of all parties and read the written submissions, I am satisfied the registrar reached the right conclusion - as expressed in her letter of 1 September 2011 and her reasons, on review, of 2 February 2012.  I do not disagree with anything the learned registrar said.  I could not have put the position any better and I do not propose to try.  The summons for review ought be dismissed.

9. Having said that, there are three matters about which I wish to comment.  The first has to do with the amount allowed by the registrar for getting up.  It is easy to underestimate the amount of work necessary to prepare a personal injuries case for trial.  But it must be borne in mind in this case that although the trial proceeded over 11 days, no question of liability was involved.  A reading of the decision indicates much of the conflict on the evidence was between medical witnesses.  The learned registrar carefully reviewed the schedules attached to the bill of costs and concluded an amount of $39,000 was reasonable.  It was submitted by counsel for the practitioner the learned registrar had been in error simply because of the difference between the amount claimed for getting up and the amount allowed.  In my view, there is no merit in that submission.  The learned registrar did what she was supposed to do - she taxed the bill.  In my view, the amount she allowed was entirely reasonable. 

10. Secondly, to set aside a registrar's decision on taxation, some obvious error on the face of the record or error of principle needs to be shown.  Registrars of this court are very experienced in taxing bills of costs.  Registrar S Boyle must have taxed hundreds of bills.  The failure of the practitioner to point to any specific error either in the approach to taxation or in amounts excluded shows, in my view, there is no basis for setting aside the taxation.

11. Finally, there is the question of the operation of O 43 r 16. In my view, the approach taken by the learned registrar was entirely correct, for the reasons she gives. Counsel for the practitioner did raise the question of whether a deputy registrar is a 'judicial officer' for the purposes of s 280(2) of the Legal Profession Act 2008 (WA). I accept the issue is not free from doubt. There is no definition of the phrase in the Act itself, nor is it defined in the Supreme Court Act 1935 (WA). However, on balance I am satisfied a deputy registrar of the District Court does not fall within that definition. A deputy registrar is not a member of the court in the same way a master is a member of the Supreme Court. In my view, once that position is reached, the reasoning of the learned registrar holds good.

12. As I have indicated, the summons will be dismissed.  The practitioner ought pay the costs of the party charged on the summons, including the reserved costs.