| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CLAFTON -v- TODD [2005] WADC 229 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 31 OCTOBER 2005 DELIVERED : 29 NOVEMBER 2005 FILE NO/S : CIV 2787 of 2003 BETWEEN : KARYN DIANNE CLAFTON Plaintiff
AND
MARLENE TODD
Defendant
Catchwords: Practice - Western Australia - Review of taxation - Turns on its own facts
Legislation: Motor Vehicle (Third Party Insurance) Act 1943
Result: Objection allowed in part
(Page 2)
Representation:
Counsel:
Plaintiff : Mr S V Forbes
Defendant : Mr P R Momber
Solicitors:
Plaintiff : Ilberys
Defendant : Peter Momber
Case(s) referred to in judgment(s):
Mercier Holdings Pty Ltd v City of Nedlands [1999] WASC 270
Re Bond Corp Holdings Limited (1990) 1 WAR 465
Case(s) also cited:
Nil
(Page 3)
1 DEPUTY REGISTRAR HEWITT: In this matter the plaintiff obtained a judgment of $197,399 on 4 November 2004 together with an order that the defendant pay the plaintiff's costs of the action to be taxed and that those costs be paid on an indemnity basis from 19 July 2004. The plaintiff has lodged a bill pursuant to the costs order which came before me in a taxation. The defendant has now objected to various allowances which were made on the bill at the time of the taxation by way of objections which were amended into their final form by a document filed on 12 October 2005. For the main part the objections relate to those parts of the bill upon which the plaintiff was entitled to indemnity costs.
2 An indemnity costs order entitles the taxing party to all the costs incurred in the conduct of the action save to the extent of that they are of an unreasonable amount or have be unreasonably incurred Re Bond Corp Holdings Limited(1990) 1 WAR 465. Additionally the onus in a taxation of a bill drawn upon an indemnity basis rests with the paying party to demonstrate that the amounts claimed are unreasonable an amount or unreasonably incurred. 3 I now turn to the various items under attack in the objections the first of which is Item 17 getting up case for trial an amount of $17,706.70 was claimed for that item from which a deduction of $3,745.55 was made at the first taxation. The amount thus allowed is challenged firstly on the basis that the defendant charged its clients a sum of $3,176.56 for work getting up the defendant's case for trial in the same period. The objection acknowledges that a greater burden would be cast upon the plaintiff but nonetheless advances its own charges as evidence of the fact that those levied by the plaintiff are unreasonable. 4 In my view the comparison cannot be a valid one. In order for the comparison to have validity it would be necessary to undertake an assessment of the work done by the defendant and its charges for that work. That is not a task which is presented in the taxation of the plaintiff's bill. Additionally there is no indication within the objection of the basis upon which the defendant was charged by its solicitor and as a consequence comparison is meaningless. 5 At this point I pause to mention the fact that the provisions of the Motor Vehicle (Third Party Insurance) Act 1943 in s 27A provide that any agreement entered between a solicitor and a client in an action in relation for damages in respect of death or bodily injury to a person directly caused by of either driving of a motor vehicle which purports to increase the amounts payable pursuant to any legal costs determination in force is
(Page 4)
void. There is in the present circumstances no costs agreement between the plaintiff and her solicitors and the costs therefore fall to be assessed in the terms of the determination relevant to the time when the work was undertaken. 6 The next challenge to Item 17 concerns the fact that the defendant on inspecting the plaintiff's file was unable to find documentary evidence supporting a number of the claims in the schedule. That is a matter which was raised at the original hearing and was resolved against the defendant by an inspection of the plaintiff's solicitors time records recorded on their computer system. There is in my view no basis upon which the defendant can properly contend that the items which were identified in the original submissions were not in fact performed. The next matter concerns the duplication of work in relation to a de bene esse application which is claimed for both in the getting up schedule and also under a separate Item 20 in the bill. In my view this submission has merit and there has been duplication. In my view the best way to resolve the duplication is to eliminate the item relating to the proceedings in chambers concerning the de bene esse application which I think the neatest way to cull out the duplication. There will therefore be a deduction of $682 from Item 17. The next matter which is challenged is that there is a duplication of attending a reserve decision the same work being claimed for in Item 17 and also Item 29 of the bill. Again I think this a sound objection and I uphold it. Again the simplest way to achieve what I see as a just result is to disallow the separate claim for attending the reserve judgment in Item 29 and therefore there will be a further deduction of $275. 7 The next complaint concerning Item 17 is that there was excessive contact with the plaintiff. The onus is on the defendant to show the contact was excessive. The proposition is supported by the allegation that over a period of four months some 12 letters were written to the plaintiff by her solicitors and 23 telephone calls took place between her and her solicitors as well as attendances proofing her and in conference. Undoubtedly the contact between the plaintiff and her solicitors was reasonably intense over the period in question. I am unpersuaded however that that level of contact was unreasonable. The four months in question were immediately prior to the trial of this action, a time in which reasonably intense communications would be expected to take place. Accordingly I am not satisfied that the contact was excessive as suggested by the defendant in the objection. 8 It is next alleged that there was excessive contact with counsel and that Item 17 should be reduced to reflect that conclusion. Again it is said
(Page 5)
that over a period of four months a solicitor in the firm of solicitors representing the plaintiff logged up approximately five and a half hours time in the way of telephone attendances and conferences with counsel. It is alleged by the defendant that that is excessive. Again this was in the period immediately prior to the trial, a time in which a fairly intense level of communication between the solicitors and counsel would be expected to take place. I am unable to see that five and a half hours spent over those four months could be regarded as excessive. 9 The next matter under attack within Item 17 is the preparation of brief for counsel it being said that the time spent was excessive and that a deduction of $477 should be made to reflect that excess. $477 reflects approximately one hour and 20 minutes at a senior practitioner's rate and I am unable to see how the total time spent over the days identified within the objection namely 24 and 25 August which total by my calculation is approximately two hours could be considered to be excessive. The next matter which is challenged within Item 17 is the preparation of proofs of evidence from the plaintiff and her daughter. Again this is challenged on the basis that it was excessive and unreasonable. A total of seven hours is said to have been prepared to prepare the proofs to which I have referred. It has been noted that some efficiencies were achieved because the involvement of a senior practitioner was limited to settling the statement drawn under supervision. Whilst therefore seven hours was perhaps a considerable amount of time to have spent on the task nonetheless it must be borne in mind that junior personnel were used to perform the task under supervision by senior practitioner with the economy that process brings. I do not accept that the defendant has demonstrated the claim to be unreasonable. The next matter challenged within Item 17 is preparing books and schedules for trial the challenge is that the time spent was unreasonable. The defendant advances its estimate of what a reasonable time to achieve the task would have been and seeks that I make a reduction on the basis of that proposition. The claim however relates not only to the collation of documents in a form suitable to be presented to the court, with the necessary decisions to be undertaken in such a process, but also the very preparation and revision of the schedules required by the rules of court to be submitted. A collation of documents is not a task of any great moment but the decisions as to what should and shouldn't be included is a weighty one and the preparation of the damages schedules is also a matter of some weight. Accordingly I am unable to see that the time which has been spent by the solicitors and which they claim in their bill can be said to be unreasonably incurred or of unreasonable amount. The next challenge to Item 17 is it is said that a number of items have
(Page 6)
been undertaken by people with a higher level of qualification than the task upon which they are embarked would justify. A figure of $238.70 is identified as being appropriate to be deducted but I am unable to understand the reasoning which leads to that conclusion. The next matter challenged within Item 17 is what is identified as over billing and it is suggested that $970.20 should be taxed off Item 17 to reflect that state of affairs. 10 In truth I have difficulty understanding the objection and there is nothing put forward within the objection which enables me to identify the particular tasks which are under attack nor the argument as to why the person performing those tasks was over qualified and nothing in my view which would lead me to a conclusion that on this basis a proportion of the amount claimed under Item 17 should be characterised as of unreasonable amount or unreasonably incurred. Therefore in regard to Item 17 there will not be any reduction to the amount allowed at the taxation but as a result of the issues which have been raised within that objection Item 20 and Item 29 will be taxed off the bill to reflect what has been identified to my satisfaction as double dipping. 11 The next item which is under attack is Item 22 of the bill which is counsel's brief on the day of trial which is claimed at and allowed at $8000. It is suggested that a deduction of $5360 should be made from that claim to reflect the fact that the first day of trial took approximately five hours. 12 The submission completely ignores the fact that the item also includes mastery of brief to which a maximum of three days may be allowed. When one bears in mind that an allowance for mastery of brief may be properly charged by counsel in my view the objection loses its substance. 13 The next item challenged is Item 24 which was a claim for $13.20 for photocopying which was allowed at $1 per page. That claim was excessive and will be reduced to 50 cents per page necessitating a deduction of $6.60 from the item. 14 The next items challenged are Items 25 and 27 those being counsel fee on the second and third day of trial. 15 It is said that the charges are excessively high and unreasonable in the circumstances. In support of that proposition it is pointed out that approximately four hours of court time was used on the second day and 4.5 on the third day. That is not much different to the amount of time
(Page 7)
ordinarily absorbed in a civil trial on such days and in my view the allowance is well within scale, and in my experience well within the range normally charged by barristers for work of this kind. As a consequence I take the view that there is nothing advanced by the defendant which would justify any reduction. 16 The next items under objection are 23, 26 and 28 and those concern solicitors attending trial. 17 In this case counsel was an independent barrister who by virtue of the ethics of his profession was not permitted to take instructions directly from the plaintiff client. It was necessary for an intermediary to be present to enable that process to take place in the event that it was required. 18 In the past I have had reservations as to the need for a solicitor to attend a trial in circumstances such as these but the consistent decisions of Judges of this Court on review of taxation has been that independent counsel should be supported by the solicitor for the party in court. On that basis in my view it was necessary for an allowance to be made and that the allowance was an appropriate one. The defendant relies upon the case of Mercier Holdings Pty Ltd v City of Nedlands [1999] WASC 270 delivered 21 December 1999. In that case the issue arose as to whether or not the presence of a solicitor at a de bene esse hearing was required. The court held that it was not. The court also held that because of the nature of the case including its overall size and complexity it was reasonable to have an instructing solicitor attending at the trial. 19 In my view the defendant has not demonstrated that it was unreasonable of the plaintiff's solicitor to attend the trial nor that the charges for doing so are excessive. 20 The next challenge is to Item 29 which will be deducted for the reasons earlier stated. 21 The next challenge it to Item 30 namely an allowance of $173 for extracting a judgment it is suggested that the amount should be reduced by $115. 22 In my experience the amount set within the scale for extracting a judgment although by the preamble to the cost determination said to be a maximum is in practice regarded as a set charge.
(Page 8)
23 It is difficult to see how the task of extracting a judgment could be achieved without the involvement of a senior practitioner nor that an allowance of $173 could be excessive. The task involves drawing and settling the draft judgment, submitting the draft to court, attending court and uplifting the settled draft, engrossing the final judgment and resubmitting it to the court. In my view it has not been demonstrated by the defendant that a charge of $173 is excessively high and unreasonable.
24 The next challenge is to Item 31 which is copying reports which was allowed at $116.60 which the defendant alleges was excessively high and unreasonable. The usual allowance by taxing officers within this Court is 50 cents a page and that is the allowance I have made in this case which in my view is neither excessive nor unreasonable. Similar propositions relate to objections to Items 32 and 33. 25 The next objection is to Item 35 which was originally claimed at $1705 but which I allowed to be amended to be increased to $3069. The objection is based upon the proposition that there was wastage of time by virtue of the fact that the plaintiff was not cooperative with the defendant in producing its file so that the defendant could inspect that file for the purposes of determining whether the bill of costs was reasonable or otherwise. The parties have painstakingly examined the correspondence relevant to this issue and my conclusion is that no such request was ever made. Having reached that conclusion I take the view that the objection falls away but it is also to be noted that at the original hearing the defendant raised an objection to certain of the disbursements on the basis of what I might describe as GST point. That objection was later abandoned but I am satisfied that it absorbed a significant amount of time by the representative of the plaintiff. 26 In conclusion therefore there will be two deductions from the bill to reflect my earlier findings and the bill will be signed in an amount thus amended. In my view the defendant has been substantially, but not wholly, unsuccessful in the objections which it has brought. The total deduction achieved by virtue of the objections approaches $1000 but had the objections been confined to the successful points the time taken would have been very much less. In the circumstances I consider that the plaintiff should receive the costs of the objections but there should be a deduction to reflect those issues upon which the plaintiff was not successful. There will be an allowance for three and a half hours for hearing the objections and that amount shall be added to the bill as certified.
(Page 9)
27 By my calculations the addition shall be $1193.50.
|