Butler v Woolworths Group Limited

[2020] WADC 129

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   BUTLER -v- WOOLWORTHS GROUP LIMITED [2020] WADC 129

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   ON THE PAPERS

DELIVERED          :   25 SEPTEMBER 2020

FILE NO/S:   CIV 1353 of 2020

BETWEEN:   RACHEL SIMONE BUTLER

Plaintiff

AND

WOOLWORTHS GROUP LIMITED

Defendant

Catchwords:

Taxation of costs - Interpretation to be given to item 37 of the applicable costs scale - Turns on its own facts

Legislation:

Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018 (WA)

Result:

Item 37 is the basis upon which the taxation should proceed

Representation:

Counsel:

Plaintiff	:	Mr B Nugawela
Defendant	:	Mr B Ullinger

Solicitors:

Plaintiff	:	Eureka Lawyers
Defendant	:	SRB Legal

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

Nil

Background

1. In the course of a taxation in this action an issue arose as to the effect of item 37 of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018 (WA) in regard to the plaintiff's entitlement to costs under the bill which had been presented. Item 37 is a relatively new provision which has been introduced into the scale which is in the following terms:

   Settlement of a claim pursuant to section 92(f) Workers Compensation and Injury Management Act

   an allowance of 10 hours of a senior practitioner's time is allowed leading to a maximum allowance of $4,950.

2. In introducing the new item the notes to the scale provided in par 10 the following explanatory material:

   New item 37

   Item 37 has been introduced to provide for a specific item to cover work performed in relation to effecting a settlement under section 92(f) Workers Compensation and Injury Management Act 1981.  Whilst the Committee is of the view that this work is already claimable under other items in the Determination, the introduction of a special item is intended to remove any doubt in that regard.

3. In order to understand the relevance of item 37 in this taxation, it is necessary to understand a little of the relationship between the parties. The plaintiff was at the relevant time an employee of the defendant who was receiving compensation for an injury which she incurred whilst working for the defendant. In March 2020 the defendant made an offer to settle the plaintiff's workers' compensation claim in the amount of $25,000. The path which was chosen to achieve a settlement which was binding on both parties was by the use of s 92(f) of the Workers' Compensation and Injury Management Act 1981 (WA). That section provides a pathway by which workers compensation and injuries claims may be settled by the use of the provisions. In essence, what it requires is the commencement of an action in the court of appropriate jurisdiction, settlement of the action, submission of a memorandum of the terms of the settlement to the director in the workers compensation jurisdiction and the director not disapproving, as he may, of the terms of the settlement within the stipulated period.

4. If the terms of the settlement are not disapproved then it becomes binding on all parties to it.  In the present case, the parties followed that course.  In fact the defendant prepared the writ of summons and filed it on behalf of the plaintiff.  An appearance was lodged, again prepared and lodged by the solicitors for the defendant.  Consent orders dismissing the action were filed and given effect to on 17 April 2020.  The necessary memorandum was lodged with the director and was not disapproved, thereby making the settlement which had been achieved a binding one.  Notable in this process is the fact that all of the documents at that stage had been filed by the defendant and prepared by the defendant.

5. Subsequently, the plaintiff filed a bill of costs for taxation.  It included a range of items in addition to a claim of $3,520 under item 37.  The total bill was $9,152 and contained a number of other items from the scale, in particular for preparation of case, proving the plaintiff providing common law advice, and matters of that kind.

6. The argument therefore is whether the action should be characterised as entirely within the scope of item 37 or whether the other claims should be allowed.  In essence the argument advanced by the defendant is that, insofar as the action was concerned it was merely a mechanism by which an agreed settlement could be achieved.  There never was any intention that it be the vehicle for an action for damages.  That proposition is clearly correct since it was not the plaintiff that initiated the District Court action but the defendant.

7. The argument advanced by the plaintiff is that the work and advice for which extra claims have been made were necessary in order to properly advise the plaintiff to agree to the settlement and to accept the process which was proposed by the defendant.

8. It is argued by the plaintiff that the words in par 10 of the notes of 'effecting a settlement' should be interpreted to apply to more than the mere mechanics of the process which was required and allowance should be made for further work and advising the client.  In that regard it is relevant to note that the plaintiff has already received an allowance of $3,000 for work undertaken in the workers' compensation jurisdiction.

9. In my view, there is a world of difference between a writ which was commenced by a plaintiff with a genuine intention to pursue litigation and a writ which was issued by the defendant as a vehicle to allow a settlement reached between the parties to be achieved. It may well be that there are instances where an actively contested District Court action is ultimately settled and the process of s 92(f) of the Workers' Compensation and Injury Management Act is relevant.  This is not one such.  This writ was commenced purely for the purpose of obtaining finality for the agreement which had been reached between the parties.  I accept that in representing a plaintiff in such circumstances, some allowance for advising the plaintiff as to her rights and options would be appropriate.  An allowance should be made but nonetheless I am of the view that in the case such as the one which is before me, the appropriate maximum which can be allowed to be that which is fixed by item 37 of the scale.  There was for instance no getting up of this case because there was never a case which the parties intended to contest.  The same logical process applies to much of the materials which have been provided.

10. My conclusion is therefore that the whole of the work which was done by this plaintiff should be encompassed by item 37 and the maximum to that should fix the upper limit which is allowable.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

DH
Court Officer

25 SEPTEMBER 2020