Central West Corporate Pty Ltd v REALTECH Enterprises Pty Ltd - [2004] WADC 26

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CENTRAL WEST CORPORATE PTY LTD -v- REALTECH ENTERPRISES PTY LTD [2004] WADC 26

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: NOT APPLICABLE

DELIVERED : 27 FEBRUARY 2004

FILE NO/S: CIVO 282 of 2002

MATTER :IN THE MATTER OF a s 107 of the Local Courts Act 1904
AND IN THE MATTER OF a decision of the learned Magistrate Mr Cockram SM delivered 11 November 2002 in Perth Local Court Plaint 16709 of 2001

BETWEEN: CENTRAL WEST CORPORATE PTY LTD (ACN 082 149 559)
Appellant (Judgment Creditor)
AND
REALTECH ENTERPRISES PTY LTD (ACN 066 742 425)
Respondent (Judgment Debtor)

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of Taxation - Jurisdiction - Onus - Overlap between items - Same practitioner representing party on appeal

Legislation:

Nil

Result:

Objection not sustained

Representation:

Counsel:

Appellant (Judgment Creditor) : No appearance
Respondent (Judgment Debtor) : No appearance

Solicitors:

Appellant (Judgment Creditor) : Phillips Fox
Respondent (Judgment Debtor) : Galic & Co

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

Nil

Case(s) also cited:

Coates v McInerney (1992) 10 ACLC 616
Corozo Pty Ltd v Total Australia Ltd [1987] 2 QD R 11
Gatsios Holdings Pty Ltd v Nick Kntharas Holdings Pty Ltd (in liq) [2002] NSWCA 29
Kemtron Industries Pty Ltd v Commissioner of Stamp Duties (Qld) [1984] 1 QD R 576
Mansard Developments Pty Ltd v Tilley Consultants Pty Ltd [1982] WAR 161
McCormack v National Australia Bank Limited (1992) 106 ALR 647
Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360
Republic of Costa Rica v Strousberg (1880) 16 Ch D 8
Vacuum Oil Co v Wiltshire (1945) 72 CLR 319

DEPUTY REGISTRAR HARMAN: The respondent has filed an objection to some of the determinations made in the context of taxing the Appellant's Bill of Costs.
Under the order for the costs of the appeal the appellant is entitled to recover the reasonable cost of services necessarily provided to it for the purposes of the appeal.
Rule 53 provides for jurisdiction for the taxing officer to conduct a review limited to the prospect that the taxing officer has made an error in principle in allowing or disallowing any item or part of an item in the Bill of Costs taxed by him.
The first ground of objection is expressed as follows:
"1.There has been considerable overlap in relation to the amounts allowed on taxation in relation to:
1.1item 2 – Application for Leave to Appeal;
1.2item 3 – Getting up Appeal for Hearing;
1.3item 4 – Counsel's fee on hearing including preparation."
The objection refers to the "amounts allowed on taxation". In order to found jurisdiction to conduct a review I would have to translate the ground expressed by the respondent into services that would qualify for the description as being in the overlap between, for example, the application for leave to appeal and getting up the appeal for hearing.
It is for the respondent to identify those services or parts of services which implicitly it would contend not only to fall within the "overlap" but also ought either be discounted under each item, or should be recovered under one item but not the other. It is for the respondent to frame the objection by reference to services in relation to which an error was made, not for me to imagine to which services the respondent refers.
The second ground of the objection is as follows:
"2.It was noted during the taxation that much of the work for the Appellant had already been done by Counsel for the Appellant during the proceedings in the Court below and consequently would not have had occasion to spend time by way of preparation and getting up comparable to anywhere near the maximum allowances on taxation claimed in these proceedings."
Conceivably the reference to the fact being noted is a reference to the fact that it was noted by the taxing officer but, that implicitly despite that notion that the appropriate consideration did not find its way into the process of assessment of what the respondent considers would be an appropriate level of remuneration for the relevant services.
The maximum amount recoverable under the relevant scale for getting up the appeal for hearing was $1,160. The amount recoverable under the order for costs was determined at $850.
It is evident from the reasons of the Judge hearing the appeal that the decision was made in the Local Court on 11 November 2002 and that the appeal was heard on 2 April 2003. I appreciate that the issues raised on the appeal were more or less the same as those raised before the Local Court and that counsel was the same.
Upon the appeal being listed for directions before a Registrar on 5 February 2003 the appellant was ordered to file and serve an Appeal Book containing the transcript of the relevant proceedings and the outlines of submissions filed by the parties for consideration by the Magistrate.
It appears that the Appeal Book filed complies with that requirement and includes a Certificate of Correctness signed by counsel. In addition the appellant was required to list the matter for hearing and in doing so advised the list clerk of the parties' unavailable dates.
Whilst in comparison with the services for which recovery may be made under the Supreme Court Scale, the amount available for getting up an appeal for hearing may seem to be generous, there is little to be gained from comparing items in different scales or indeed items within scales. The task of the taxing officer is simply to exercise discretion within the range provided by the scale for the particular item. As I see it, apart from some consideration being given to the adequacy of the papers to be considered on an appeal, there is little more that would be expected of any appellant in getting up an appeal for hearing.
However to return to my initial observations in relation to jurisdiction, it does not appear to me that the respondent raises any more than an issue in relation to quantum. The respondent does not suggest that any service for which allowance was made ought to have been disallowed. As I see it, if there is any basis to contend for an error of principle in relation to an issue of quantum, then the respondent has to bring satisfy the test that no taxing officer acting reasonably could have reached the determination made in relation to quantum. I will leave it for others to judge whether the respondent has done so.
The third ground of objection is expressed as follows.
"The taxing officer's comment at the conclusion of the taxation to the effect of it still seems like a lot of money' in itself shows that a wrong principle has been followed and the amounts allowed on taxation are accordingly unreasonable."
I accept that the comment was made. The respondent accepts that it was made in relation to the total of the bill. Rule 53 provides no scope for objection to the total value of the items expressed in a bill. There is no ground of objection made out at ground 3.
Ground 4 of the objection is expressed as follows:
"The respondent objects to items 2, 3 and 4 and respectfully submits that justice requires that the taxation officer should exercise his power to tax more off the bill than was done at first instance."
As was the case with the first ground of objection in my opinion the respondent has failed to appreciate that it is for it to at least assert an error or principle in relation to a particular determination. There is no jurisdiction simply to conduct a fresh taxation because a party goes to the trouble of filing a notice of objection.
The last part of the objection is as follows:
"Attached herewith is a copy of the submissions, which were relied upon by the Appellant in the Court below, an identical version of which was filed and served in these appeal proceedings. Consequently it is quite apparent that:
5.1The work had already been elsewhere (sic) and there would have been very little getting up or preparation involved in these proceedings; and
5.2It would be unjust and unreasonable to allow the appellant to recover the cost of work done elsewhere in these proceedings."
I do not know whether the contention of the respondent at 5.2 is correct. Conceivably the appellant has recovered for the costs of submissions provided to the Magistrate. It is the respondent that carries the onus upon the review.
I infer that issue is being taken with that part of Item 4 of the bill that relates to preparation under that item the appellant claimed for counsel's fee on hearing, including preparation, at $2,842. At taxation that claim was reduced to $2,400, the maximum under the scale being $4,060.
According to the Court's record of the hearing, it lasted for three hours. Whilst that component must account for a significant proportion of the amount determined I accept that a significant proportion relates to preparation.
There is authority for the proposition that where counsel is self-briefed there should be a reduction in the recovery that would otherwise be made in order to reflect a degree of familiarity with the material. That authority suggests somewhere in the region of 20‑25 per cent.
Taking into account that consideration and that there is scope to consider that the quantum available for the component "preparation" is represented in the difference between items 4 and 5 of the scale, that component of the item claimed is in the order of $700‑$1,000 of a possible $2,400. Even taking into account the similarity between the submissions made on the hearing before the Magistrate and before the Judge I am comfortable with the determination made, that is $2400 of the possible $4060.
In my opinion there is no merit in that ground of the objection.
It follows that none of the objections taken have been sustained.