Christopher Eric Macphillamy v Stanley Vizovitis - [2003] ACTSC 60

CHRISTOPHER ERIC MACPHILLAMY v STANLEY VIZOVITIS
[2003] ACTSC 60 (1 August 2003)

PRACTICE AND PROCEDURE – Costs – taxation – costs incurred subject to costs agreement, decision of Special Magistrate in Small Claims Court, appeal to Supreme Court, and taxation and review by Deputy Registrar – perusal v scanning – “necessary and proper” test – preparing for trial – preparation additional to fee on brief – solicitor acting as counsel.

Supreme Court Rules1937 (ACT) O 64 r 5, O 65 rr 64, 66, 83

ReLaw Society of the ACT and Barry Joseph Roche and Christopher Roche [2002] ACTSC 104 (21 October 2002)

Passey v Bandarage t/a City First Solicitors [2002] ACTSC 105 (28 October 2002)

Prudential Finance Ltd v Davander Nominees Pty Ltd and Ors [1992] 1 VR 468

Magna Alloys and Research Pty Ltd v Coffee (No. 2) [1982] VR 97

Clark, Tait & Co v Federal Commissioner of Taxation (1931) 47 CLR 142

Commonwealth of Australia v Magriplis (1962) 3 FLR 47

Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621

Bennett v Seaman & Ors (1993) 117 ACTR 1; [1993] ACTSC 71 (30 July 1993)

Fat-Sel Pty Ltd v Brambles Holdings Ltd (1985) 61 ALR 536

GBT Corporation Pty Ltd v Scott, Sheils and Glover [1994] ACTSC 70 (5 July 1994

ON APPEAL FROM THE DEPUTY REGISTRAR OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 71 of 2001

Judge: Higgins CJ
Supreme Court of the ACT
Date: 1 August 2003

IN THE SUPREME COURT OF THE     )
  )          No. SCA 71 of 2001
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE DEPUTY REGISTRAR OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:CHRISTOPHER ERIC MACPHILLAMY
Appellant

AND:STANLEY VIZOVITIS
Respondent

ORDER

Judge:  Higgins CJ
Date:  1 August 2003
Place:  Canberra

THE COURT ORDERS THAT:

The application is dismissed.
The parties may be heard as to the costs of this review.

This is an application, pursuant to Order 65 Rule 66 of the Supreme Court Rules1937 (ACT) (the Rules) to review the taxation of items 35, 36, 37, 57 and 92 detailed in a bill of costs taxed pursuant to an order of Gray J made on 12 April 2002.

That order had been made following the dismissal of the appellant’s application for leave to appeal against a decision of Special Magistrate Symons delivered in the Small Claims Court on 3 August 2001. In that proceeding the respondent had claimed to be entitled to damages in the sum of $8,429.72 from the appellant. The basis for the claim was that, pursuant to the terms of the retainer agreement between them, the appellant, a solicitor, had overcharged the respondent, his then client, in respect of proceedings by the respondent for damages arising out of a motor vehicle accident. The appellant counter-claimed for an additional $8,452.77. The basis for this claim was that, having challenged his original memorandum of costs, the respondent was liable to pay costs as taxed…

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 Christopher Eric Macphillamy v Stanley Vizovitis

Details

AGLC: Christopher Eric Macphillamy v Stanley Vizovitis [2003] ACTSC 60
Case: [2003] ACTSC 60
Decision Date: 1 August 2003

CaseChat Overview and Summary

The dispute in Christopher Eric Macphillamy v Stanley Vizovitis concerns the taxation of costs in a small claims matter that was first decided by a Special Magistrate and then appealed to the Supreme Court. The plaintiff, Macphillamy, sought review of a decision by a Deputy Registrar who had taxed the costs incurred by both parties following the appeal. The main issue before the court was whether the Deputy Registrar should have thoroughly reviewed the costs incurred or if a more cursory examination would suffice. This involved assessing the appropriate standard of review and the necessity of detailed examination of the costs, particularly those related to the preparation for trial, including instances where the solicitor acted as counsel.

The court examined whether the Deputy Registrar had to peruse the costs in detail or if a scanning approach was sufficient under the circumstances. The court also considered whether the costs incurred for preparation for trial, including instances where the solicitor acted as counsel, were properly accounted for under the terms of the costs agreement. The legal principles at play included the "necessary and proper" test for costs taxation and the obligations of a party to prepare for trial as per the costs agreement. The court determined that the Deputy Registrar's approach to reviewing the costs was appropriate and that the costs incurred, including those for preparation for trial and instances where the solicitor acted as counsel, were properly accounted for.

Ultimately, the court dismissed the plaintiff's application for review of the Deputy Registrar's decision. The reasoning was that the Deputy Registrar's scanning of the costs was sufficient under the circumstances, and the costs were properly taxed in accordance with the "necessary and proper" test. The court also found that the costs for preparation for trial, including instances where the solicitor acted as counsel, were justified and should be borne by the losing party. The final orders were that the application for review was dismissed, and the parties were to be heard regarding the costs of this review process.

Orders

Orders of the court

The application is dismissed.

The parties may be heard as to the costs of this review.

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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