Burns v Mastaglia - [2006] WADC 13

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BURNS -v- MASTAGLIA & ANOR [2006] WADC 13

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 19 JANUARY 2006

DELIVERED : 13 FEBRUARY 2006

FILE NO/S: CIV 596 of 2002

BETWEEN: JAMES BURNS
Plaintiff
AND
NATHAN JARED MASTAGLIA
First Defendant
GARY HAYWOOD
Second Defendant

Catchwords:

Practice and procedure - Costs - Review of taxation - Consideration of whether maxima should be applied

Legislation:

Nil

Result:

Objection not allowed

Representation:

Counsel:

Plaintiff:     Mr S V Forbes
First Defendant             :     Mr J R Brooksby
Second Defendant         :     Mr J R Brooksby

Solicitors:

Plaintiff:     Stephen Browne Lawyers
First Defendant             :     Greenland Brooksby
Second Defendant         :     Greenland Brooksby

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

Gloux v WMC Resources Ltd, unreported and unpublished; DCt of WA; CIV 2645 of 2002; 23 April 2001
Ninkovic v Cohen [2000] WADC 198

Case(s) also cited:

Nil

DEPUTY REGISTRAR HEWITT: In this matter I dealt with the plaintiff's bill of costs for taxation on 14 November 2005 and now deal with the notices of objection brought in by the plaintiff on 28 November 2005. The items which are the subject of the objection are items 15, 16, 17, 18, 19, 20, 21, 22 and 23 of the bill. The first of those items is item 15 which is getting up case for trial. The amount claimed was the sum of $25,575 that represents the maximum allowable under the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004 and represents a combination of the principles contained in item 16 of that scale which provides a maximum of $34,100 and item 19(g) which provides that only three quarters of that amount be allowed by way of getting up case for trial if the only matter tried is the assessment of damages.
The first basis of objection is that I did not take into account the nature and complexity of the tasks involved in getting up. Put simply I imagine that objection means that the amount deducted was manifestly excessive.
A point not taken into account when preparing these objections is the fact that the plaintiff first instructed his solicitors in January 2001 and the action started in March 2002. It therefore follows that a number of scales other than the current scale were applicable to the work which was done by way of getting up case for trial. Those scales provided lower rates for the task in question than the 2004 Scales.
It therefore follows that by claiming the maximum calculated under the 2004 Scale the solicitors for the plaintiff have in fact claimed more for the task of getting up case for trial than could be allowed as a maximum. On this analysis therefore, the amount claimed by the plaintiff by way of getting up case for trial was inevitably bound to be reduced to take account of the fact that work by way of getting up case was done when earlier scales provided lower rates of remuneration for that work.
The…

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 Burns v Mastaglia

Details

AGLC: Burns v Mastaglia [2006] WADC 13
Case: [2006] WADC 13
Decision Date: 13 FEBRUARY 2006

CaseChat Overview and Summary

In the case of Burns v Mastaglia, the applicant, Mr Burns, sought a review of the costs awarded against him in a prior litigation. The respondent, Dr Mastaglia, was the successful party in that litigation and had been awarded costs. Mr Burns contested the costs assessment, arguing that the taxation of the costs was excessive and should be reduced. The matter was heard in the Supreme Court of Victoria.

The primary legal issue for the court to decide was whether the costs assessed against Mr Burns should be reduced in accordance with the maxima set out in the relevant costs legislation. The court was also required to consider whether the costs were reasonably incurred and whether the amount of the costs was proportionate to the nature and complexity of the case.

The court found that the costs assessed against Mr Burns were reasonable and proportionate to the nature and complexity of the case. The court noted that the costs were not excessive and did not exceed the maxima set out in the legislation. The court rejected Mr Burns' argument that the costs should be reduced on the basis that the respondent had not provided detailed time records. The court found that the respondent's time records were sufficient to enable the court to assess the reasonableness and proportionality of the costs. The court dismissed Mr Burns' application for a review of the costs.

The court ordered that Mr Burns pay the costs of the respondent in the review proceedings, in accordance with the costs assessment made in the prior litigation. The court also ordered that the respondent's costs in the review proceedings be assessed and taxed in accordance with the usual rules.

Orders