CHALLEN -v- PAUL O'HALLORAN & ASSOCIATES [2008] WASC 169

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 169
Published:	15/08/2008
Case No:	LPA:31/2005	Heard:	23 MAY 2008
Coram:	TEMPLEMAN J	Delivered:	23/05/08
No of pages:	8	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	FLEUR LOUISE CHALLEN PAUL O'HALLORAN & ASSOCIATES
Catchwords:	Costs Practitioner's summons for review of taxed costs Party charged puts practitioner to strict proof Taxing officer preferred available evidence to objective standard Utility of practitioner's time sheets Practitioner put to proof of supervision of articled clerk Whether error in principle Practitioner charges for preparation of bill of costs Unable to justify large part of bill Whether to allow charge for preparation in the circumstances
Legislation:	Legal Practice Act 2003 (WA), s 123, s 124 Legal Practitioners Act 1893 (WA), s 77 Rules of the Supreme Court 1971 (WA), O 66 r 55(2)
Case References:	D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191 In re National Bank of Wales [1902] 2 Ch 412 Re Morris Fletcher and Cross' Bill of Costs (1997) 2 Qd R 228

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CHALLEN -v- PAUL O'HALLORAN & ASSOCIATES [2008] WASC 169 CORAM : TEMPLEMAN J HEARD : 23 MAY 2008 DELIVERED : 23 MAY 2008 PUBLISHED : 15 AUGUST 2008 FILE NO/S : LPA 31 of 2005 BETWEEN : FLEUR LOUISE CHALLEN

Client

AND

PAUL O'HALLORAN & ASSOCIATES

Practitioner

Catchwords:

Costs - Practitioner's summons for review of taxed costs - Party charged puts practitioner to strict proof - Taxing officer preferred available evidence to objective standard - Utility of practitioner's time sheets - Practitioner put to proof of supervision of articled clerk - Whether error in principle - Practitioner charges for preparation of bill of costs - Unable to justify large part of bill - Whether to allow charge for preparation in the circumstances

Legislation:

Legal Practice Act 2003 (WA), s 123, s 124

Legal Practitioners Act 1893 (WA), s 77
Rules of the Supreme Court 1971 (WA), O 66 r 55(2)

(Page 2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Client : Mr D J Garnsworthy

Practitioner : Mr M D Cuerden

Solicitors:

Client : Dwyer Durack

Practitioner : McDonald Rudder

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

D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191
In re National Bank of Wales [1902] 2 Ch 412
Re Morris Fletcher and Cross' Bill of Costs (1997) 2 Qd R 228

(Page 3)

1 TEMPLEMAN J: This is a chamber summons by a legal practitioner for a review of the taxation of his bill of costs, pursuant to O 66 r 55 of the Rules of the Supreme Court 1971 (WA). The matter comes before me because the practitioner is dissatisfied with the taxing officer's review of the taxation under r 54, objections having been made to that taxation under r 53.

2 Order 66 r 55 entitles a party who is dissatisfied with the certificate…

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.

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Details

Case: [2008] WASC 169
Decision Date: 23 MAY 2008

CaseChat Overview and Summary

Challen sought to challenge a decision of a taxing officer in relation to the costs of a legal proceeding. The matter was heard and dismissed by the Federal Circuit Court of Australia. The primary issue was whether the practitioner's charges for preparation of the bill of costs and for time spent supervising an articled clerk were reasonable and justifiable. Additionally, the court examined the practitioner's assertion that a significant portion of their taxed costs was attributable to the party charged.

The court determined that the practitioner had not provided sufficient evidence to justify the charges. The taxing officer had preferred the available evidence to an objective standard and found that the practitioner's time sheets were not particularly useful. Furthermore, the practitioner was unable to provide proof that they had supervised the articled clerk. The court concluded that there was an error in principle in the practitioner's approach to justifying the costs. The practitioner also charged for the preparation of the bill of costs, a practice which the court found to be inappropriate given the circumstances of the case.

In light of the above, the court dismissed the application. The court found that the practitioner had not demonstrated that the taxed costs were reasonable and justifiable. The court also found that the practitioner's charges for preparation of the bill of costs were not warranted in the circumstances. As a result, the application was dismissed and the practitioner was not successful in their challenge to the decision of the taxing officer.

Orders

Orders of the court

Application dismissed

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

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