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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brocx v Mounsey [No 2]

Details

AGLC: Brocx v Mounsey [No 2] [2014] WADC 98
Case: [2014] WADC 98
Decision Date: 31 JULY 2014

CaseChat Overview and Summary

Brocx v Mounsey [No 2] was a case before the Supreme Court of Western Australia, where the parties were engaged in a dispute concerning objections to the determinations made during the taxation process. The primary issue was whether the court should consider objections to the taxation process that were raised after the objections had been filed. The respondents argued that the court should not entertain such objections, while the applicants contended that the objections should be considered as they were filed within the specified period.

The court was required to decide whether the objections raised post-filing should be considered and, if so, the scope of the review under Order 66 Rule 53(1) of the Supreme Court of Western Australia. This involved examining whether the objections were made within the stipulated time frame and whether the objections were valid and relevant to the taxation process.

In its reasoning, the court noted that while it was generally the usual course to foreclose upon the opportunity to object, the circumstances of this case were different. The court had spent a significant amount of time considering the objections, and both parties had the opportunity to seek a reconvening of the taxation process. The court found that the objections raised post-filing were not novel and were a straightforward reading of the rule. Consequently, the court was not persuaded that there was any reason to defer signing the allocator.

The court concluded that the objections should be considered, and the taxation process would proceed as per the objections raised by the parties. The court's decision allowed for the review of the objections and provided clarity on the scope of review under the relevant rule.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.