Brocx v Mounsey [No 2] - [2014] WADC 98

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BROCX -v- MOUNSEY [No 2] [2014] WADC 98

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: ON THE PAPERS

DELIVERED : 31 JULY 2014

FILE NO/S: CIV 600 of 2007

BETWEEN: MARGARET BROCX
Plaintiff
AND
ROBERT MEAKINS MOUNSEY
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia - Objections to determinations made at taxation - Quantum, recovery for preparation for mediation and pre-trial conference, recovery for counsel attending conferences and on information not before the taxing officer - Scope of review under O 66 r 53(1)

Legislation:

Nil

Result:

Objections not sustained

Representation:

Counsel:

Plaintiff: No appearance
Defendant: No appearance

Solicitors:

Plaintiff: Cornerstone Legal
Defendant: Spark Helmore Lawyers

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

Altorfer & Stow (a firm) v Lindsay [2005] WASCA 73
Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
Wilson v Cassidy [2013] WADC 184

DEPUTY REGISTRAR HARMAN: The plaintiff has the benefit of an order for costs the substance of which is often characterised as the usual order for costs under which in broad terms she is entitled to recover the reasonable cost of services necessarily provided to her in the course of the litigation. Her bill of costs was taxed and the parties were given 14 days within which to object. Each party has done so.
The plaintiff contends that the quantum determined for each of five items of her bill was manifestly inadequate.
Order 66 r 53(1) is as follows:
A party who contends that the Taxing Officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a certificate of taxation finally dealing with that item is signed, or at such time as may, in any case, be fixed by the taxing officer …
The only determination made on each of items 2, 4 and 12 was of the value of the service. Each determination was within the range of what is reasonable for the efficient provision of the service to the plaintiff by a competent practitioner.
If by some process of interpretation there is scope to review a determination made other than upon application of the test of necessity, it is my understanding that it is limited to circumstances where the objector contends that in assessing quantum the taxing officer failed to apply the test of reasonableness. It is open to consider that there may be little to distinguish the plaintiff's assertion from that datum; however in a context where jurisdiction to review is both enlivened and limited by the terms of an objection there is good reason to reflect on the what it conveys. It is relatively easy to distinguish the proposition that a determination reveals want of proper consideration from a contention that to an unspecified degree it differs from an unspecified datum.
Each of those objections is insufficient to establish jurisdiction to review.
The two remaining objections relate to determinations made on items 6 and 10, for the pre‑trial conference and the mediation conference respectively. At taxation the plaintiff had sought to recover under each item for both preparation for the conference and for attendance at the conference by counsel. Those parts of each item were disallowed. I take it from the terms of objection that the allegations of manifest inadequacy are each founded on the proposition that no allowance was made for either preparation or for attendance by both counsel and instructing solicitor.
The plaintiff's entitlement that I expressed in broad terms at the commencement of these reasons is subject to some limitation. One constraint is that the costs recoverable be determined in accordance with the scale. Recovery for the pre‑trial conference was assessed under the 2006 scale and the mediation conference under the 2008 scale. The relevant item in each is expressed as follows:
Pre‑trial, mediation, conferrals or other conferences:
(a)Where required by order of the Court, by the Rules of the Supreme or by practice direction; and
(b)Including informal conferences where reasonably held after commencement of proceedings
In Wilson v Cassidy [2013] WADC 184 I had this to say in relation to recovery for preparation [38]:
The other consideration is that over the period of time that recovery for the service 'pre‑trial conference' has been expressly provided for by the scale, it has not always been the case that preparation has been expressed to be part of the item. Upon the introduction of the item in 1991 preparation was included but by 1996, had been removed. It did not reappear until 2010. Over the intervening period the 1999, 2002, 2004, 2006 and 2008 scales had been published. In my opinion that history constitutes ground to consider that it was intended that recovery be limited to the extent provided regardless the prospect that in every case in this court that proceeded to that point some preparation would have been undertaken.
In that case whilst I had no difficulty with the proposition that preparation had been undertaken, I was satisfied that under the order there was no scope for recovery. In this case there could be no different result.
As for the engagement of counsel, O 66 r 11(4) is as follows:
Subject to the provisions of this Order, and to any order made by the Court and the terms of any relevant scale, the fees prescribed by any relevant scale cover all work done, whether by the solicitor or by counsel.
The plaintiff recovered for the provision of each service to the extent provided by the scale.
The plaintiff has not established any error in principle in the disallowance of each of those parts of each item.
Turning to the defendant's objections, he contends firstly that the plaintiff ought recover no more than the amount determined as payable upon taxation of her former solicitor's bill and secondly that because he made a particular offer for costs at a particular time, she should not recover for the bill, taxation and the taxing fee.
As for the first, I accept that during the course of taxation I had been informed that the plaintiff's former solicitor's bill of costs had been taxed and of the amount the solicitor recovered for getting up case for trial, the total amount for the balance of services provided and the total amount payable by the plaintiff. I do not recall that at any point in the process the defendant raised the proposition that he now puts.
By the measure of the rule the objection is deficient as it does not specify the error in principle either by reference to the context in which it occurred or to its consequence.
The test of recovery under the usual order for costs expresses the principle that recovery is limited by the costs incurred. Where the usual order extends to the costs of the action the principle operates at the point at which the taxing officer certifies the amount recoverable under the order. For a beneficial party to seek to recover by taxation more than it has incurred would not be contrary to principle but may carry some cost risk. The significant consideration for present purposes is that I have not yet addressed the task of completing and signing the allocator. Accordingly there is no prospect that any case of error in principle for which the defendant contends could now be established.
The plaintiff has responded to that objection and rather than make any concession she has put the proposition that the period of the former solicitor's instructions did not coincide with the period during which the action was conducted. An examination of the file reveals facts that justify that contention: her former solicitor did not act over the whole of the period of the action. The defendant has also replied along lines that indicate that rather than maintain the objection he would put forward two new objections by which he proposes that particular determinations of quantum made on taxation of the solicitor’s bill establish data that demonstrate error in the determinations of quantum on corresponding items in the plaintiff's bill. I understand that he would put the allegation of error by the proposition that the plaintiff would recover for the particular services at a level above which she is obliged to pay. Thereby he invokes the same principle that I have just considered. Although he is able to identify particular determinations, the order having been for the costs of the action they are not engaged by the principle. Otherwise the same reasoning applies: the principle has not yet been engaged.
As for the second objection, at taxation the defendant did not contest the allowance of either item or the fee. Indeed, the claim for the taxation was not in issue and the claim for drawing the bill was compromised. The defendant did not then present the information that he now contends would justify the result he seeks.
What I have outlined as having transpired at taxation resonates with the terms of the objection: the defendant does not assert that the taxing officer erred.
I note that according to the Red Book at [66.53.1]:
The taxing officer may make an error in principle for the purposes of this rule notwithstanding that the material issue of fact or law said to constitute the error was not bought to the taxing officer's attention by the parties at taxation; Altorfer & Stow (a firm) v Lindsay [2005] WASCA 73.
In Altorfer & Stow (a firm) v Lindsay [2005] WASCA 73 the court had this to say [56]:
The approach taken by the Registrar and upheld by the Master was that the taxing officer cannot make an error in principle for the purposes of r 53 unless the issue the subject of the objection had been raised and considered by the taxing officer at the taxation. There is no justification in the language of r 53 or in principle for such a limitation. The taxing officer's powers and duties on taxation continue until he becomes functus officio on the issue of a certificate: Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621. An error in principle can be made in allowing or disallowing an item notwithstanding that a material issue of fact or law has not been brought to the taxing officer's attention by the parties. The appellant's objection, filed in accordance with r 53, raised a potential error of principle, in which event the taxing officer was obliged under r 54(1) to reconsider and review his taxation in relation to that objection. However, the Master himself ruled on the substantive question which is now under challenge before this Court and I turn to that matter.
I am troubled by the proposition that more can be taken from the passage than that jurisdiction to tax endures until the allocator is signed.
In any event I struggle with the prospect that what purports to be a valid objection but which makes no allegation of error could establish jurisdiction to review.
The proposition that because the plaintiff had not accepted the defendant’s offer she ought not to recover for the particular services would not be engaged in the process of determining the necessity for their provision. Rather, in the event that discretion had been enlivened it would operate to disentitle the plaintiff regardless the necessity for their provision. It follows that any error established by the proposition would be a failure to apprehend the emergence of discretion or a miscarriage of justice in its exercise. It would not be an error in principle in determining the effect of the order. I ought to add that the failure to put a case both for the enlivenment and the exercise of discretion was on the part of the party who bore the onus of persuasion for its favourable exercise. And then there are the difficulties presented to the defendant in the form of the concessions made upon taxation of the items.
Returning to what I have characterised as the new objections, they are late by the requirement that issued upon the conclusion of the taxation. It is open to consider that there would be scope to exercise discretion to allow for their consideration. It is no more than implicit that the defendant so applies. He has put no basis upon which to reach a favourable outcome. I have previously indicated that the substantive issue sought to be raised has no merit. In my opinion there is no good reason to extend time beyond the period that was limited for objection.
Neither objection is within the scope of the rule. It follows that the defendant has not established jurisdiction for review under r 54.
In Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 Kitto J considered that foreclosing upon the opportunity to object had amounted to an irregularity. His Honour’s conclusion has prompted me to consider whether having ruled on each party’s objections I should do other than now draw the process of taxation to a close. It would be the usual course in the event that the process of review had not precipitated any reconsideration and neither party had sought to reconvene the process of taxation.
It seems to me that the context before me is markedly different to that which had been before his Honour.
The period of time for filing objections was significant. It was open to the parties to seek to reconvene the taxation during that period. The period of time I have spent dealing with the objections has provided considerably more time for reflection. The process of communication to which I have referred has provided the opportunity to reflect.
I do not consider that anything I have countenanced in my reasons would be considered to be novel. What I have considered and expressed has been no more than a straightforward reading of the rule and a contextual consideration of the objections.
I am not persuaded that there is any reason to defer signing the allocator.