Culley and Russell Pty Ltd v Goyder - [2002] WADC 6

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CULLEY & RUSSELL PTY LTD -v- GOYDER [2002] WADC 6

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: THERE WAS NO FORMAL HEARING AND THE MATTER PROCEEDED ON WRITTEN SUBMISSIONS

DELIVERED : 16 JANUARY 2002

FILE NO/S: CIV 3649 of 1997

BETWEEN: CULLEY & RUSSELL PTY LTD
Plaintiff
AND
JOHN GOYDER
Defendant

Catchwords:

Practice - Western Australia - Taxation of costs - Objection to taxation - Turns on its own facts

Legislation:

Rules of the Supreme Court of Western Australia O 66 r 18

Result:

Objections as to photocopies allowed
The balance of objections disallowed

Representation:

Solicitors:

Plaintiff: Tottle Christensen
Defendant: Slee Anderson & Pidgeon

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

Stobbart v Mocnaj [1999] WASC 252

Case(s) also cited:

Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673
Bride v Australian Bank Ltd [2000] WASC 164
Grigoletto v Myer Properties WA Ltd, unreported; DCt of WA; Library No 3667; 31 March 1993

DEPUTY REGISTRAR HEWITT: In this matter the defendant filed a bill of costs for taxation pursuant to a judgment dated 16 December 1999 and that bill came before me for taxation.
Subsequent to that taxation the plaintiff brought in written objections and the parties have agreed that I should deal with those objections and that further attendances should not be required.
The first matter the subject of objection is item 5 of the bill inspection of documents for which $866 was claimed and allowed in full. The objection is:
"The taxing officer erred in principle in allowing $866 for inspection of the Plaintiff's discovered documents when no inspection took place. Any amount awarded to the Defendant for reviewing the Plaintiff's discovered documents should have been covered, and was covered, by the amount allowed for getting up. For example, item 5 of Schedule III to the Bill of Costs relates to the supplementary discovery provided by the Plaintiff (which is also referred to in Schedule IIA) an amount of $4077 was claimed for attendances with client to consider the discovered documents and a further $1701 was claimed for the preparation of a 3 page chronology of facts (not filed at court) based on a review of those comments. In the circumstances there was a duplication of the amounts awarded."
In my view it is not productive and cost effective to insist that solicitors attend the offices of their opponents to conduct inspections when the process can be achieved by the exchange of photocopied documents. In this case photocopied documents were exchanged and in my view it was appropriate to make an allowance by way of analogy under O 66 r 18 of the Supreme Court Scale to the process of physical inspection.
The process of inspection is different from the process of detailed perusal and analysis. Therefore insofar as the objection contends that the amount allowed for discovery was a duplication of amounts which were allowed elsewhere I do not agree. I was aware at the time of the taxation of the processes by which the defendant prepared his case and the allowance of $866 was in my view not encompassed within those other claims. Therefore I am of the view that the objections to item 5 should not be allowed.
The next item relates to item 6 getting up case for trial which was claimed in the sum of $12,754 and allowed in the sum of $11,000. The objection is:
"The taxing officer should not allow costs which have been incurred as a result of 'an over cautious or excessively investigative approach': Auspine v Australian Newsprint Mills Ltd [1999] FCA 673 per O'Loughlin J. The trial in this matter lasted for 1½ days. The issues in dispute were clearly defined and of narrow compass. It is submitted that the $1701 claimed for the preparation of a 3 page chronology of facts (not filed at court) based on the discovered documents was over cautious and excessive, particularly as a further 15 hours (costing $4077) had been spent obtaining instruction to consider those documents both of these amounts were identified in Schedule III of the Bill of Costs. They were taken into account by the taxing officer and contributed to the taxing officers decision to allow $11,000 for getting up. The Plaintiff submits that this amount was, in all the circumstances of the case, unreasonably high."
Supporting the claim was a schedule which contained at item 10 the following: Preparation of chronology of facts prepared from discovered documents 6.3 hours at $270 per hour, $1701.
The orders of the court and the Rules required such a chronology to be prepared and filed.
On consideration of the materials which were placed before me I considered that the time said by the defendants to have been spent on this task was in fact spent and that the task was reasonable and properly undertaken in the context of the case. The submissions contained in the objections were made before me at the taxation and I did not find them persuasive then and nor do I find them persuasive now. The objection will be disallowed.
The next matter of subject for objection concerns the attendance at a mediation conference on 19 June 1998. The objection is:
"The taxing officer erred in principle by allowing an amount for attendance at the 'mediation' conference on 19 June 1998 when there was no order as to costs."
The mediation was a court ordered mediation and I accept the submissions made by the defendant that the costs of court ordered mediations are in cause and no express order is required in respect of them. Accordingly the objection to item 12 fails.
The next objection is to the allowance for photocopies. The objection is:
"The taxing officer erred in principle by allowing a separate amount for photocopying when, under the applicable scale, photocopying was neither a disbursement of a scale item: Stobbart v Mocnaj [1999] WASC 252; affirmed in Bride & Anor v Australian National Bank Limited & Ors [2000] WASC 164."
By its determination of 20 December 1996 effective from 1 February 1997, the Costs Committee included as a scale item "29 Photocopies where necessary, per page $0.80". Subsequently by its determination of 16 December 1997 that item was deleted and replaced with the following:
"29Disbursements
In addition to the fees and charges allowed under this determination:
a)as between practitioner and client a practitioner may charge and be allowed disbursements necessarily or reasonably incurred; and
b)as between party and party, a party may be allowed disbursements reasonably and properly incurred."
Item 29 was restored to the scale in its original form by the determination of 15 June 1999 effective from 1 July 1999.
In this case the action was listed for trial on 4 October 1999 and tried on 4 and 5 November 1999. The claim for photocopies related to the brief delivered to counsel who was instructed to appear at both a pre-trial conference and the trial itself. The conference was listed to take place on 19 June 1998.
I accept the fact that Stobbart v Mocnaj [1999] WASC 252 is authority for the proposition that photocopying is not a disbursement. It follows that any right for a claim under item 29 could only be attached to photocopying after 1 July 1999.
On the facts in the present case I am unable to determine when the photocopying took place and the taxing party having failed to discharge its onus to show the amount is properly claimed it shall be disallowed. The amount involved is $120 and that shall be deducted from the amount to be certified.
I shall sign my certificate giving effect to this decision upon the delivery of these reasons.