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Gloux v WMC Resources Ltd, unreported and unpublished; DCt of WA; CIV 2645 of 2002; 23 April 2001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 next point to consider is whether or not the case was in fact one of unusual complexity and deserving of a maximum allowance. In my view the case was a substantial case and one deserving of a significant allowance. It is suggested that some 98 hours of senior practitioner's time was spent in preparing this case for trial and some 35 hours put in by paralegals.
In my opinion the case efficiently prepared did not require that level of input. In saying that I recognise the case had its complexities, as all cases do, but I have difficulty understanding how that many hours could be put in to the matter. The amount I have allowed, if one takes into account some necessary adjustment to the amount claimed by reason of the fact that the claim exceeds an allowable maximum, is probably somewhere in the vicinity of about 85‑90 per cent of a maximum. I am unable to understand how there could be a complaint that such an allowance reflects a deduction that is manifestly excessive.
The next limb to the objection to item 15 concerns the hourly rate. A view which I hold and have long held is that in the case of an assessment for damages the 25 per cent reduction provided by the scale in the case of an assessment of damages should be reflected in the application of a lower hourly rate to the reasonable hours undertaken in performing the tasks necessary to prepare the case for trial. I reach that conclusion on the basis of the original determination issued on 20 December 1996 in which the Costs Committee introduced the concept of time costing to the contentious business determination. At par 6(4) of the determination the committee said:
"The new scale of costs set out in the schedule reflects the fact that the costs of legal services provided in relation to Supreme Court and District Court actions are in the main calculated by reference to the time reasonably spent in the provision of those services and by applying to that time a reasonable hourly rate that rate varying according to the seniority and experience of the practitioner and the complexity of the work."
Elsewhere the committee dealt with the issue of special orders as to costs and made this comment in par 7(5):
"It will be noted from items 13 and 14 of the schedule that if more than 100 hours must reasonably be spent on getting up the case for trial and more than three days must be reasonably spent by counsel in mastering the brief and preparing for the trial then the committee considers that to be a basis to seek a special order for costs under Order 66 rule 12 of the Rules of the Supreme Court."
The proposition which is put the objection suggests that maximum hourly rates should automatically be the entitlement of a solicitor preparing a personal injuries case for assessment at trial and that in the event that he were to exceed a total of 75 hours in such work he would be entitled to apply to the court for a special order for costs. To my mind that interpretation is not a logical one. It seems to me the most logical interpretation of the determination is the proposition that cases that do not involve the question of liability are inherently less complex and deserve a lower rate of remuneration to reflect that diminished complexity. For that reason I take the view that the appropriate way to approach the 25 per cent reduction is by a reflection in the reduction of the hourly rate not a maintenance of the hourly rate and a reduction of the hours to open the way to a special costs order.
The next objection concerns item 16 of the bill and that item relates to counsel fee on brief. The amount claimed is a maximum and the objection is that in making a further deduction I erred in failing to have proper regard to the fact that the original scale item had been reduced by 25 per cent by virtue of the fact that the case involved the assessment of damages only. I first comment that of course I was aware of the nature of the case and of the manner of the calculation of the maximum. In my view the maximum which is derived by the interaction between the two relevant sections leading to a 25 per cent reduction is a maximum for all purposes and it is not sacrosanct. The very notion of a maximum indicates that there is a possibility of reduction. It is to my mind irrelevant to say that the maximum is less than it might have been in some other case. It is in fact a maximum and on a review of the nature of the case and of the trial and of the task thrown upon counsel I consider that a maximum was not justified and considered a deduction should be imposed. I am unable to see that I was in error in doing so.
The next items which are challenged are items 17, 19, 21 and 23 all of which involved a solicitor attending trial which was claimed for at the maximum hourly rate permissible for each of the relevant days. The objection is that once it was found appropriate for a solicitor to attend the rate for a senior practitioner of $341 should have been allowed. It is not in dispute that the solicitor attending was a senior practitioner but it seems to me that the objection simply ignores the fact that in every case the figures which are shown in the scale are maxima and where the task which was undertaken by the practitioner performing that task does not justify a maximum allowance a deduction can be made. In that regard I refer to item 5 of the 2004 Determination in which it is said in subpar (1): "The hourly and daily rate set out in the table to this clause are the maximum hourly and daily rates inclusive of GST which the Legal Costs Committee determine shall be used to calculate the dollar amounts in the scale of costs set out in the table to clause 6." Each item in the scale of costs specifies a dollar amount with reference to the fee earner. The determination specifically preserves the power of a taxing officer under O 66 r 12(2) which is in the following terms:
"In regard to any particular item or section of costs where the quantum of work performed does not justify the allowance of a fee according to the said scale or a fee equal to the minimum fee prescribed, the Court or Taxing Officer may fix such a fee as in the opinion of the court or Taxing Officer is just and reasonable."
In my opinion the task facing the solicitor who attended the trial was not a demanding one nor onerous nor complex. In those circumstances I take the view that a maximum hourly rate is not appropriate and as a consequence at the taxation chose to reduce the matter. The objecting party relies on a decision of Blaxell DCJ as he then was in Gloux v WMC Resources Ltd, unreported and unpublished; DCt of WA; CIV 2645 of 2002; 23 April 2001. In that case his Honour came to the view that a taxing officer who allowed a differential rate between the costs recoverable by a solicitor attending trial at different stages of the trial (intended to reflect the variation in the difficulty of the task faced by that solicitor) was an error and his Honour in allowing the objection allowed the full amount of time attended by the solicitor at the maximum rate. His Honour was not, however, called upon to determine what was a reasonable allowance for a solicitor attending trial in those circumstances nor was his Honour directed to the provisions of the Rules of the Supreme Court. I am of the view that the authority is of very little direct support to the objector and such support as it offers evaporates when one bears in mind the fact that his Honour was not called upon to adjudicate the relevance of the powers provided by O 66 r 12 of the Rules of the Supreme Court.
I find nothing in the decision repugnant to the proposition that it is appropriate in the circumstances of a case to allow less than a maximum hourly rate for a solicitor attending trial. In Ninkovic v Cohen [2000] WADC 198 referred to me by counsel for the objector his Honour Viol DCJ, in assessing whether an allowance for getting up case for trial was manifestly inadequate, made calculations and in doing so applied the maximum hourly rate for a senior practitioner provided for by the scale.
I am unable to perceive within the case anything which suggests that the maximum hourly rate should be applied in all circumstances. His Honour simply applied that rate as a rough and ready way to assess whether on his calculations the amount allowed fell within the range which would be expected by a proper exercise of the taxing officer's discretion.
The next matter challenged relates to items 18, 10 and 22 each of which involves a deduction from the fees allowed for counsel for attending the subsequent days of trial. The objection contends that those items were already subject to a 25 per cent deduction and a further deduction was not justified.
In my view that logic cannot be correct. The deduction of the 25 per cent is simply the process by which a maximum was derived.
It is not the case that counsel is automatically entitled to a maximum unless some reason for reducing it is to be shown. The approach is entirely the converse. It is necessary on an evaluation of the case to determine that it was sufficiently demanding to command a maximum. In this case I was not so persuaded and considered the matter to be a slightly more complex than usual assessment of personal damages.
For that reason I take the view that the objection is not a sound one and it will not be allowed.
As a consequence of these findings the objections are not allowed and the bill will be allowed in the amount originally taxed of $55,471.77 together with an additional allowance of $250 for preparation for an attendance at the objections.