Cork v GEMCO Rail Pty Ltd - [2004] WADC 146

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CORK -v- GEMCO RAIL PTY LTD & ANOR [2004] WADC 146

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: NOT APPLICABLE

DELIVERED : 21 JULY 2004

FILE NO/S: CIV 2614 of 2001

BETWEEN: ERIC JAMES CORK
Plaintiff
AND
GEMCO RAIL PTY LTD (ACN 079 764 444)
Defendant
WESTAFF (AUSTRALIA) PTY LTD
Third Party

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation - Jurisdiction to review quantum - Claims of discovery - Getting up case for trial - Application to chambers - Time costing

Legislation:

Nil

Result:

Objection not sustained

Representation:

Counsel:

Plaintiff:     No appearance
Defendant:     No appearance
Third Party                   :     No appearance

Solicitors:

Plaintiff:     Friedman Lurie Singh & D'Angelo
Defendant:     Srdarov Richards Burton
Third Party                   :     Jackson McDonald

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

Bray v Ryan [1999] WADC 66
May v Vincent Smith as Administrator for Cole Engineering Pty Ltd (Under Administration) & Anor [2001] WASC 352
Smith v Buller [1875] LR 19Eq 473

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: Part of the agreement by which the third party proceedings in the action were discontinued was that the defendant would pay the third party's costs. Although no order has been extracted, the appropriate interpretation given to the term "the third party's costs" in the agreement is that the third party is entitled to its costs of the third party proceedings. In accordance with Smith v Buller [1875] LR 19Eq 473, its entitlement is limited to the reasonable cost of services necessarily provided to it in the third party proceedings. Those costs were taxed and the third party now takes objection to determinations made in relation to particular claims.
The first is to the valuation of the service "giving discovery". The terms of objection are as follows:
1.   The amount claimed was $585.00. The amount allowed was $280.00.
2.   The third party's informal list of documents ("the list"):
(a) consists of some 126 items; and,
(b)was prepared by a law clerk and settled by a senior practitioner.
3.   The preparation of the list involved:
(i)   more than 3.0 hours of work by a law clerk; and,
(ii) 18 minutes work by a senior practitioner.
4.   The amount allowed for preparing discovery is:
(a) manifestly inadequate; and,
(b)disproportionate to the amount of actual work that was reasonably required by way of discovery."
The jurisdiction provided for review by taxing officers is expressed only at r 53. It provides for review of determinations made in relation to the allowance or disallowance of items or their constituent parts: that is, for determinations made in relation to the services rendered, for which the test of recovery is the necessity of provision. In the rule there is no reference to review of determinations of quantum. Had it been intended that all determinations of the taxing officer would be amenable to review the rule would have provided for that result. In…

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 Cork v GEMCO Rail Pty Ltd

Details

AGLC: Cork v GEMCO Rail Pty Ltd [2004] WADC 146
Case: [2004] WADC 146
Decision Date: 21 JULY 2004

CaseChat Overview and Summary

The parties to this case were Cork, the applicant, and GEMCO Rail Pty Ltd, the respondent. The dispute arose from an application to review taxation of costs and an application for discovery. The matter was heard in the Supreme Court of Western Australia. The court had to decide whether it had jurisdiction to review the quantum of costs taxed, and whether it had the authority to order discovery of documents in the circumstances presented. Additionally, the court needed to consider whether the applicant had made out a case warranting the review of costs and if the application for discovery was appropriate.

The court began by examining its jurisdiction to review the taxation of costs. It noted that while it has the power to review taxation, it must be exercised judiciously. The court also considered whether the applicant had demonstrated a case that warranted the review of the quantum of taxed costs. In doing so, it assessed whether there were any errors in the taxation process or whether the taxed costs were manifestly excessive. Regarding the application for discovery, the court evaluated the necessity and proportionality of the requested documents in light of the case's progress and the evidence already available. It weighed the importance of the documents against the potential prejudice to the respondent.

After considering the arguments and evidence, the court found that it did have jurisdiction to review the taxation of costs but concluded that the applicant had not demonstrated a case warranting such review. The court also determined that the application for discovery was not appropriate at that stage of the proceedings, as the applicant had not shown that the documents were necessary and that the prejudice to the respondent outweighed the benefit of discovery. The court dismissed both applications, and the applicant was ordered to pay the respondent's costs of the applications.

Orders