Cunningham v Traynor [No 3]
[2018] WADC 3
•5 JANUARY 2018
CUNNINGHAM -v- TRAYNOR [No 3] [2018] WADC 3
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2018] WADC 3 | |
| Case No: | CIV:3389/2011 | ON THE PAPERS | |
| Coram: | DEPUTY REGISTRAR HARMAN | 5/01/18 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | No basis for review | ||
| PDF Version |
| Parties: | ROBERT LEE CUNNINGHAM CATHERINE MARY ATOMS SIMON TRAYNOR PETER JAMES CLARK GLENN ALEXANDER CALDWELL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Taxation of costs Special order Objection to quantum only |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
CATHERINE MARY ATOMS
Second Plaintiff
AND
SIMON TRAYNOR
First Defendant
PETER JAMES CLARK
Second Defendant
GLENN ALEXANDER CALDWELL
Third Defendant
THE STATE OF WESTERN AUSTRALIA
Fourth Defendant
Catchwords:
Taxation of costs - Special order - Objection to quantum only
Legislation:
Nil
Result:
No basis for review
Representation:
Counsel:
First Plaintiff : Ms Pascoe
Second Plaintiff : Ms Pascoe
First Defendant : Mr G Metaxas
Second Defendant : Mr G Metaxas
Third Defendant : Mr G Metaxas
Fourth Defendant : Ms A Malkovic
Solicitors:
First Plaintiff : Maurice Blackburn
Second Plaintiff : Maurice Blackburn
First Defendant : Metaxas & Hager
Second Defendant : Metaxas & Hager
Third Defendant : Metaxas & Hager
Fourth Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
1 DEPUTY REGISTRAR HARMAN: After trial the plaintiffs obtained the benefit of an order in part as follows:
4. The defendants pay the plaintiffs' costs of the action to be taxed if not agreed, such costs to be taxed as one set of costs for which the defendants are to be jointly and severally liable.
5. Pursuant to s 280(2) of the Legal Profession Act 2008 (WA), the limits in respect of the time and recoverable costs allowed under items 17 and 20(a), (b) and (i) inclusive of the Legal Profession(Supreme Court) (Contentious Business) Determination 2014 be removed, so that the taxing officer in taxing the plaintiff's bill of costs is to make reasonable allowances in respect of those items without to regard to those limits. [sic]
2 In accordance with par 4, the plaintiffs are entitled to recover the reasonable cost of services necessarily provided to them for the purposes of the action.
3 The plaintiffs have now filed objections to determinations made upon taxation of two items of their bill.
4 By item 5, under item 17 of the scale, the plaintiffs claimed for preparation of case, an item expressed as an indivisible whole.
5 As the defendants did not take issue with recovery for the service, the first part of the test of recovery: the necessity for its provision was not applied.
6 Having determined the amount recoverable, in order to record the result in the conventional manner, the balance of the claim was taxed off.
7 Order 66 r 53(1) Rules of the Supreme Court 1971 provides as follows:
(1) A party who contends that the taxing officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, … -
(a) deliver to the other party interested in the allowance or disallowance and carry in before the taxation officer, an objection in writing to the allowance or disallowance specifying in the objection by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objection; and
(b) Thereupon apply to the taxing officer to review the taxation in respect of those items or parts.
12. Whilst the Taxing Officer, in his reasons, accepted her Honours and Defendants' views in relation to special costs orders, the Taxing Officer expressed his own view that the Action was neither complex nor usually difficult, inconsistent with the view expressed by Her Honour. In addition, the Taxing Officer held the view that Action was in the 'usual run' of District Court personal injury Actions, which in effect made a substantial difference in his assessment of the amount to allow under item 5 of the Bill. In this regard it is submitted that it was not open to the Taxing Officer to come to such a conclusion when it is trite that the most appropriate person to determine such an issue is the Judge presiding in the Action: SC: Professional Services of Australia Pty Ltd v Computer Tax Accounting Pty Ltd [2009] WASCA 183 (S) at [19]. In this regard the Plaintiffs submit that Taxing Officer, acting in a reasonable manner would not have come to different conclusion to that of the presiding judge or the parties. The Plaintiffs submit that the Taxing Officer's application of the conclusion that the matter was not complex, amounted to an error of principle.
13. In addition the Taxing Officer, after then determining that the matter was neither complex nor unusually difficult then applied the test of what, in his view, were the reasonable costs of services necessarily provided (the test of necessity) based on the ratio as contained in Smith v Buller (1875) LR 19 EQ 473. Whilst it is acknowledged that such a test is correct in its application, whilst assessing the amounts of work which had necessarily been provided, with the taxing officers own subjective view that the Action was not complex, the application of the test would have been misapplied and therefore made a vast difference to the amount recoverable.
14. Finally, the Taxing Officer allowed approximately $70,000 (or approximately 28% of the amount claimed) at item 5. In this regard, the plaintiffs submit that no Taxing Officer acting reasonably would have come to a conclusion that the preparation for a 16 day trial, which was part heard and had so many issues and causes of action to be decided would be sufficient in quantum, even when applying the test of necessity. [sic]
9 As the item had been allowed, it is not surprising that the plaintiffs do not assert any error that is within the scope of r 53(1). It follows that the relevant parts of the notice do not enliven the jurisdiction to review provided by the rule. I have no difficulty with the proposition that, independent of r 55, scope for judicial review of determinations as to quantum has been found to exist in circumstances where no taxing officer acting reasonably could have made the particular determination.
10 In the event that it is considered that I am wrong in my assessment of the scope of jurisdiction provided by the rule, I will consider what is put at pars 12, 13 and 14. Perhaps before I begin I will record that I have not been called upon to provide reasons for decision as to the quantum of the fee.
11 At par 12 the plaintiffs contend that the taxing officer accepted the view of the trial judge in relation to the special costs order. Because it would be presumptuous to question whether the order was justified, I am surprised that the plaintiffs would interpret my expressed acceptance of the view of the trial judge as other than deferring to her view. Regardless of that observation, I considered at the time that I had made it clear that in determining the quantum recoverable I would defer to her view. For that reason, on my initial reading of par 12, it did not appear to be straightforward.
12 The only other observations that I would make are that in the case cited I was unable to find support for the proposition put; and that although it is the responsibility of the taxing officer to determine the value of a service, it is appropriate to do so after assessing all information provided. It is not unusual for a beneficial party to be questioned either to ascertain whether there had been any complicating feature of a particular task or to test the validity of conclusions or submissions. In this instance, after the parties had made submissions and I had questioned the plaintiffs regarding features of tasks undertaken, the view of the trial judge had provided significant input into the process of determining the result.
13 My own views as to the complexity of undertaking the task of preparing the case for trial had been expressed after having heard and questioned the plaintiffs, but prior to my express acceptance of the views of her Honour.
14 Paragraph 13 is troublesome due to the reference to the part of the test of recovery that was not applied. It presents no allegation of error.
15 Paragraph 14 is also troublesome for the same reason. As for the figures, I had no input into the amount claimed and the plaintiffs carried the onus. Reference was had to the claim only for the administrative purpose that I have recorded. The fee determined was the upper limit of the range that I considered would be reasonable for provision of the service taking into account par 5 of the order. The range was established after I had accepted the view of the trial judge of the complexity of the action.
16 By item 15 of their bill the plaintiffs claimed under item 20(b) of the scale for senior counsel's fee on brief. Item 20(b) is expressed in two parts: the first day of trial and preparation. Upon taxation of item 15 of the bill the defendants took no issue with recovery by the plaintiffs for either part, only with the quantum of the fee recoverable. Accordingly, the first part of the test of recovery: that of the necessity for provision of the parts of the item was not applied.
17 Having determined the amount recoverable, in order to record the result in the conventional manner, the balance of the amount claimed was taxed off.
18 Insofar as the notice of objection deals with the taxation of item 15 of the bill, it is as follows:
16. The Plaintiffs repeat paragraphs 12 – 14 inclusive above. In the alternative, no Taxing Officer, acting reasonably would allow the amount of $40,000 for item 20(b) for a 16 day trial part heard which was complex.
19 As the parts of the item had been allowed, it is not surprising that the plaintiffs do not assert any error that is within the scope of r 53(1). In my opinion, the relevant part of the notice does not enliven the jurisdiction to review provided by the rule. I have no difficulty with the proposition that, independent of r 55, scope for judicial review of determinations as to quantum has been found to exist in circumstances where no taxing officer acting reasonably could have made the particular determination.
20 In the event that it is considered that I am wrong in my assessment of the scope of jurisdiction provided by the rule, I will consider what is put at par 16. Again, I have not been called upon to provide reasons for decision as to the quantum of the fee.
21 Insofar as the content of pars 12 to 14 would be relevant to the taxation of item 15, I repeat the observations that I have already made with the qualification that before engaging in the task of taxation I had expressed that I accepted the view of the trial judge as to the complexity of the action.
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