Dugan v Pitcher [No 2] - [2023] WADC 6

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   DUGAN -v- PITCHER [No 2] [2023] WADC 6
CORAM:   STAVRIANOU DCJ
HEARD:   25 JANUARY 2023
DELIVERED          :   1 FEBRUARY 2023
FILE NO/S:   CIV 2394 of 2019
BETWEEN:   BRIANNA ANN DUGAN
Plaintiff
AND
JAMIE-LEE CHARLOTTE PITCHER
Defendant

Catchwords:

Review of Taxation - Order 66 r 53, O 66 r 54, O 66 r 55 Rules of the Supreme Court 1971 (WA) - Review of taxation by judge - Whether error in principle by taxing officer

Legislation:

Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020
Rules of the Supreme Court 1971 (WA), O 66 r 42, O 66 r 53, O 66 r 54, O 66 r 55

Result:

Application allowed in part

Representation:

Counsel:

Plaintiff	:	Ms A L Pascoe
Defendant	:	Mr D P Coster

Solicitors:

Plaintiff	:	Vertannes Georgiou Lawyers (Perth)
Defendant	:	Moray & Agnew Lawyers

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

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621
Bray v Ryan [1999] WADC 66
Dugan v Pitcher [2021] WADC 106 (S)
Larussa v Carr [2019] WASCA 34
Mossensons (a firm) v Coast Line Associates (Unreported, WASC, Library No 970661, 2 December 1997)
Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305
Schweppes' Ltd v Archer [1934] NSWStRp 17; (1934) 34 SR (NSW) 178
W J Green & Co (1984) Pty Ltd v Tace Pty Ltd [No 4] [2010] WASC 363

STAVRIANOU DCJ:

Introduction

In this action the plaintiff claimed damages for personal injury arising out of a motor vehicle crash. The defendant admitted liability and the only issue at trial was the assessment of damages.
On 4 November 2021, the plaintiff obtained judgment after trial together with an order for costs to be taxed.
The taxation took place before a deputy registrar acting as a taxing officer. Prior to the signing of the certificate of taxation the defendant filed objections, which were ultimately disallowed: Dugan v Pitcher [2021] WADC 106 (S).
The defendant has now applied for a review of certain items in the taxed bill of costs pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 66 r 55.

Overview of proceedings

On 12 January 2022, the plaintiff filed a bill of costs for taxation claiming $114,940.92.
On 18 February 2022 and 16 March 2022, the defendant delivered written submissions outlining her response to the items claimed in the bill.
On 30 March 2022, the bill was taxed in the sum of $107,016.84. An order was made that any objections be filed by 7 April 2022.
On 4 April 2022, the defendant filed objections to the allowance of several items in the bill namely:
•       Copying;
•       Preparation of case;
•       Counsel preparation for and attendance at pre-trial conference;
•       Counsel preparation for and attendance at listing conference;
•       Counsel…

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 Dugan v Pitcher [No 2]

Details

AGLC: Dugan v Pitcher [No 2] [2023] WADC 6
Case: [2023] WADC 6
Decision Date: 1 FEBRUARY 2023

CaseChat Overview and Summary

The case of Dugan v Pitcher [No 2] involved a review of a taxation decision under the Rules of the Supreme Court 1971 (WA). The plaintiff sought to recover costs under an order for costs for services necessarily provided for the purposes of the action. The defendant, Pitcher, challenged the taxation, arguing that the taxing officer had made errors in principle. The primary issues were whether the taxing officer had acted upon a wrong principle, failed to give weight to relevant considerations, or made a mistake as to facts.

The court examined the principle that an error in principle occurs when the taxing officer acts upon a wrong principle, gives weight to extraneous or irrelevant matters, fails to give weight to relevant considerations, or makes a mistake as to facts. The court noted that while errors in principle can occur in determining both whether an item should be allowed and how much should be allowed, errors regarding the quantum allowed are generally regarded as unusual. The court assessed whether any error in principle had been made by the taxing officer in this case. The defendant argued that the taxing officer had reversed the onus of proof and failed to assess the existence of multiple copies. The plaintiff had submitted a schedule of the copies made, and the taxing officer had allowed the claim for copying without deduction.

The court found that the taxing officer had not acted upon a wrong principle or failed to give weight to relevant considerations. The plaintiff had provided a schedule of the copies made, and the taxing officer had accepted this without deduction. The court held that the taxing officer had not made an error in principle in taxing the costs. The defendant's submissions were rejected, and the court upheld the taxation as determined by the taxing officer.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

An error in principle will only occur where the taxing officer acts upon a wrong principle, gives weight to extraneous or irrelevant matters, fails to give weight or sufficient weight to relevant considerations, or makes a mistake as to facts: Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621, 627. Errors in principle may be made both in determining whether an item should be allowed and in determining how much should be allowed: Schweppes' Ltd v Archer [1934] NSWStRp 17; (1934) 34 SR (NSW) 178, 183; Australian Coal & Shale Employees' Federation v Commonwealth (628). Although it is possible for an error in principle to be made regarding the quantum allowed in respect of a particular item, that is generally regarded as unusual. An error in principle on that basis could only be established if it is shown that no taxing officer acting reasonably could ever have taxed the particular item in the amount in question: Mossensons (a firm) v Coast Line Associates (Unreported, WASC, Library No 970661, 2 December 1997) 9 - 10; Larussa v Carr [2019] WASCA 34 [39]; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 229; Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305. Prior to the taxation, the defendant filed an outline of submissions dated 18 February 2022. In par 4 of those submissions it was observed, in relation to the claim made for preparation of case, that 'no breakdown has been provided identifying the work that was performed and who it was performed by'. On 21 February 2022, the plaintiff delivered a six‑page document entitled 'Getting Up Schedule' (plaintiff's schedule). The claim for each item and the allowance made was: The reasons contain the following uncontroversial statements: 1.The plaintiff obtained an order for costs by which she is entitled to recover the reasonable cost of services necessarily provided to her for the purposes of the action.…35.Recovery under an order for costs is had in accordance with the entitlement established by common law. In the case of the usual order for costs, for the purpose of considering what is reasonable for the cost of provision of a service or any particular part of a service, the relevant standard is established by reference to it being efficiently provided by a competent practitioner. In applying that standard, the focus is properly upon an objective evaluation of value of the task undertaken. It would be established by more than the passage of time taken by a practitioner to deliver a service or part of a service in the manner adopted by that practitioner. These paragraphs are identified as it is accepted that they represent orthodox statements of principle to be applied upon a taxation of costs. The plaintiff's claim for copying of $938.42 was allowed without deduction. A schedule of the copies made was provided to the taxing officer by the plaintiff. The defendant makes two primary submissions. First, that there has been a reversal of the onus of proof and, secondly, that the taxing officer erred in failing to take account of and assess the existence of multiple copies.