Correia v Higgins Holdings Pty Ltd - [2001] WADC 60

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CORREIA -v- HIGGINS HOLDINGS PTY LTD [2001] WADC 60

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 19 JANUARY 2001

DELIVERED : 14 MARCH 2001

FILE NO/S: CIV 2433 of 1999

BETWEEN: ELIZABETH MARIA CORREIA
Plaintiff
AND
HIGGINS HOLDINGS PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation - Jurisdiction - Jurisdiction to review alleged error as to determination of quantum - Relationship with solicitor and client costs

Legislation:

Nil

Result:

No error in principle

Representation:

Counsel:

Plaintiff: Mr Y D Radich
Defendant: Ms T Jeyamohan

Solicitors:

Plaintiff: Separovic & Associates
Defendant: McAuliffe Williams & Partners

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff obtained judgment for costs and her bill of costs has been taxed.
The defendant has sought a review of the determinations made in relation to two items in the bill.
The first relevant item appears in the bill as follows:
"3. Statement of Claim including Further & Better
Particulars (Item 6(a)) $1,600"
At taxation the claim was allowed and quantum was determined at $1,300.
The defendant's objection relates to the allowance of that part of the claim for the pleading. However the objection is not to the allowance of the services comprehended by the item by rather the determination of quantum. The objection is expressed in the following terms:
"The defendant objects to the allowance of $650 for this (part) item on the basis that it is excessive as it largely involved a repetition of facts contained in item 21 of the Section 93D application."
The defendant does not allege that any discrete services that comprise the item ought to have been disallowed. In my opinion the ground of the objection does not articulate any error in principle. At best it raises an undefined issue as to the determination of quantum. There is no jurisdiction to review purely quantum determinations.
At the review the defendant contended that the essence of the objection was that in determining the fee for the item the taxing officer failed to apply a discount in order to reflect what it asserts was the repetition in the pleading of facts that had appeared in the papers generated in a different action.
I accept that the detail or part of the detail contained in the pleading may emerge from the papers that supported the other action. It is not unusual that pleadings are derived from documents whether they are agreements, communications, experts' reports, statements or indeed proofs of evidence. In this case the defendant contends that some detail was drawn from the plaintiff's evidence. I accept that the detail may have been similarly expressed in that evidence. That is not to say that the process of transfer would not involve some consideration as to whether the transfer ought to occur and the manner in which the allegations of material fact should or may be expressed. The fact that the borrowing of detail was from the evidence in another action is of no particular significance.
In my opinion the alleged failure to discount the figure which the statement of claim may otherwise attract does not amount to an error. To apply a discount to the fee which the item ought to attract simply because some detail was or may have been derived from another document in my opinion would constitute an error.
The second ground of objection relates to item 9 of the plaintiff's bill. That item is expressed as follows:
"9.Getting up case for trial (item 13) $10,500"
At taxation the plaintiff sought to amend the amount claimed for the item to increase that claim by $230 which was the amount that had been claimed in item 5 for inspection of documents. That amendment was allowed and the result of the determination of quantum was that $230 was taxed off the amended claim.
The defendant's objection is that the determination of the fee at $10,500 was manifestly excessive when considering the principle of proportionality as the action settled for $50,000.
I must confess that I have some difficulty in isolating a principle which is founded upon the need to maintain a degree of proportionality between the quantum of fees for services rendered and the agreed value of the subject matter of the action.
Under the scale that previously applied to taxation a component of the fee was determined by the value of the subject matter of the action. Under the present scale there is no direct connection between the two.
I accept that it is always open to the paying party to assert that there has been an over supply of services in what may be portrayed as a relatively simple case however that does not appear to be the basis of the defendant's contention. Rather the defendant contends that there ought to be some more artificial limit placed upon the costs recovered despite the extent to which services may have reasonably been provided. By expressing the defendant's proposition in that manner leaves me in no doubt that there is no such principle for which the defendant contends.
During the course of the review it became apparent that the defendant sought to broaden their scope of the attack on the basis of proportionality to include consideration of the fact that the matter settled at the stage of the pre-trial conference.
The defendant is limited by the terms of its objection. None the less it is my opinion that for a case which has reached the stage of a pre-trial conference and is ready to be listed for trial, there is nothing unreasonable about a determination of quantum for getting up that case for trial in the amount of $10,500. In my opinion it is a figure within a reasonable range considering that the maximum available is $27,000.
The objection goes on to state as follows:
"In addition, this allowance included costs which necessarily ought to have been considered to have been solicitor/client costs (eg meeting with the plaintiff, telephone calls to and from the plaintiff, various correspondence to the plaintiff)."
It is the case that during the course of the taxation the plaintiff in general terms canvassed the extent of the contact between herself and her solicitor. I do not recall that each contact was identified and detailed. It is not inappropriate to tax costs on the basis of submissions of a general nature in relation to the extent to which services were provided.
It is obvious that during the course of an action some of the services rendered to a client by a practitioner would relate to the need to communicate for the purpose of obtaining relevant instructions, proofs of evidence and advice. There is a limit that is appropriately placed upon the extent of that communication at least for the purposes of determining the extent of party and party recovery.
If the paying party, in this case the defendant, had sought to have a more detailed analysis of those communications take place then it was free to ask for such a detailed examination. It did not do so.
I am satisfied that it would have been appropriate that the plaintiff maintains an appropriate level of dialogue with her solicitor. I did not determine that any particular incident of that dialog be disallowed. The quantum determination reflects the fact that some communication was necessary and that it did occur. In my opinion the defendant has failed to make out any error in principle. In my opinion to fail to make any allowance in for such communication would have amounted to an error.
Finally the defendant asserts that part of the item getting up the case for trial included the costs of ascertaining whether the plaintiff would pursue an occupier's liability claim against a party other than the defendant.
It is the case that during the course of submissions the plaintiff indicated that she had considered joining the occupier. It was apparent that no great reliance was placed upon that consideration. The plaintiff submitted at the review that the prospect was considered after it was raised by the defendant during the process of negotiation at the pre-trial conference. At the review the defendant agreed that it did not suggest that any significant proportion of the fee was attracted by that part of the item relating to the consideration of that issue.
My notes of the submissions at the taxation do not record the issue at all. Had issue been joined in relation to the matter and a determination made in the course of taxation it would have been disallowed. I am satisfied that the disallowance of that part of the item would have had no impact upon the quantum determination.
I perceive that the defendant would contend that there ought to have been reduction in the claim as the claim was constituted by the plaintiff in part by a consideration of the issue. That may be an accurate assessment from the viewpoint of the plaintiff. She drafted her bill and may have taken that feature into account.
In assessing the claim the taxing officer simply forms a view in relation to the item founded upon the submissions and makes a quantum determination based upon that view. By way of illustration, it is possible that the taxing officer would have assessed the claim at something in excess of $10,730 but would have been limited in his capacity to make that determination by the terms of the bill drafted by the plaintiff.
In my opinion there is again no error in principle.
The defendant is unsuccessful in the objections raised. Accordingly the certificate has been signed and the defendant is obliged to pay the costs of the review which have been agreed at $150.