Christophers v Murcia Pestell Hillard Lawyers
[2013] WASC 151
•10/04/2013
CHRISTOPHERS -v- MURCIA PESTELL HILLARD LAWYERS [2013] WASC 151
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 151 | |
| 10/04/2013 | |||
| Case No: | LPA:24/2012 | 22 MARCH 2013 | |
| Coram: | EM HEENAN J | 22/03/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | CAM CHRISTOPHERS MURCIA PESTELL HILLARD LAWYERS |
Catchwords: | Review of taxation of costs Alleged error or omission by taxing officer Objections required to be made at the time of signing the bill No capacity for review |
Legislation: | Legal Practice Act 2003 (WA) Supreme Court Rules 1971 (WA) |
Case References: | Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1956) 94 CLR 621 Glew v Shire of Greenough [No 2] [2008] WASCA 75 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
MURCIA PESTELL HILLARD LAWYERS
Respondent
Catchwords:
Review of taxation of costs - Alleged error or omission by taxing officer - Objections required to be made at the time of signing the bill - No capacity for review
Legislation:
Legal Practice Act 2003 (WA)
Supreme Court Rules 1971 (WA)
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr N G Pakes
Solicitors:
Applicant : In person
Respondent : Murcia Pestell Hillard
Case(s) referred to in judgment(s):
Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1956) 94 CLR 621
Glew v Shire of Greenough [No 2] [2008] WASCA 75
(Page 3)
1 EM HEENAN J: By a summons dated 30 November 2012, the defendant in this application, Mr Cam Christophers, seeks a review of a taxation of costs in its entirety conducted by Registrar Christopher Boyle on 16 November 2012. The circumstances are that the applicant, Mr Christophers, sought a review of a solicitor and client bill rendered to him by his former firm of solicitors, Murcia Pestell Hillard, pursuant to the provisions of the Legal Practice Act 2003 (WA) as it then applied. The bill was prepared and drawn in the amount of $10,137.60 plus disbursements of $72.87, in a total amount of $10,210.47.
2 When the matter came on for taxation, a representative of the practitioner's firm attended and Mr Christophers also attended. There were submissions before the Registrar as to the method of taxing the bill. Mr Christophers has submitted, and it seems to be the case, that rather than examine the bill item by item, the Registrar invited attention to be given to those parts of the bill or subject matters which were controversial in the sense that they were contested by Mr Christophers.
3 In the process of doing so, attention was given to whether or not amounts claimed for what Mr Christophers has referred to in his papers as professional time and effort spent on the preparation of a proof of evidence were allowable. It seems that the Registrar took the view that not all of the time claimed was allowable and that the bill should be reduced for that and perhaps other reasons.
4 At any event, the Registrar reduced the bill plus disbursements to a round sum of $7,500 and followed the usual procedure in inquiring whether or not he should then sign the allocatur. There being no objections to him signing the bill and Mr Christophers not asking for any review of the determination of any part of the bill made to that point, a right that he was entitled to exercise under O 66 r 53 of the Supreme Court Rules 1971 (WA), the Registrar signed the bill and allowed the costs in the sum of $7,500 under his certificate on the day of taxation.
5 Since then Mr Christophers has, in various ways, sought a review of the taxation, contending that the Registrar made a mathematical error or omission in failing to delete certain further moneys from the bill associated with the charges for the preparation of the proof of evidence which was the subject of at least one of the reductions by the Registrar. It is Mr Christophers' contention that the bill should have been reduced by a larger amount because of this.
(Page 4)
6 I am asked to review this matter under O 66 r 55. The terms of that rule are as follows:
(1) If a party is dissatisfied with the certificate of the taxing officer as to any item or part of an item objected to under rule 53 of this Order, he may, within 14 days from the date of the certificate, or such other time as the Court, or the taxing officer at the time he signs his certificate, allows, apply to a judge in chambers for an order to review the taxation as to that item or part of an item.
(2) The judge, if of opinion that the taxing officer has made an error in principle, may thereupon make such order to rectify the error as the judge thinks just.
(3) The certificate of the taxing officer is final and conclusive as to all matters which have not been objected to in accordance with these rules.
7 As I have already said, no objections were carried in under O 66 r 53. As r 55 says, the certificate of the taxing officer is final and conclusive for any matters which have not been objected to under r 53. This practice is well known to solicitors and those experienced in the taxation of costs. It has a long origin. It was explained and applied by the High Court of Australia in Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1956) 94 CLR 621 where its details were fully explained by Kitto J at 626 and 627. The principle emerging from that is that, in the absence of such an objection, there is no power of review.
8 That rule has been applied on many subsequent occasions. It is referred to in the standard practice book, Civil Procedure in Western Australia, in the annotations to O 66 r (51)1A, and it was applied recently in a decision of Beech J of this Court in Glew v Shire of Greenough [No 2] [2008] WASCA 75 where his Honour referred to the decision in the Australian Coal and Shale Employees' Federation case and several other unreported decisions and concluded that there was no power to exercise a review by a Judge under r 55 unless objections had been carried in.
9 It is clear that objections were not carried in in this case. Mr Christophers says that he was not aware of the obligation or the opportunity to do so. That is not surprising as he has no professional legal training or experience, but that is the law and I have no power to review this bill. Consequently, the application for review must be dismissed.
(Page 5)
10 Mr Pakes for the respondent, who has been served with the application to review the bill of costs for taxation, has appeared because he was served with the application, as was necessary, and he has asked for an order that the respondent's costs should be paid by Mr Christophers as his application has failed. The usual order is that the costs follow the event so I order Mr Christophers to pay the costs of Murcia Pestell Hillard of today's appearance, either to be agreed or taxed.
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