Dunmall v O'Sullivan [No 8] - [2016] WADC 138

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DUNMALL -v- O'SULLIVAN [No 8] [2016] WADC 138

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: ON THE PAPERS

DELIVERED : 15 SEPTEMBER 2016

FILE NO/S: CIV 232 of 2006

BETWEEN: GEOFFREY DUNMALL
Plaintiff
AND
MARIE O'SULLIVAN
First Defendant
TERRENCE ALLDEN WALSH
Second Defendant
SHIRE OF MURRAY
Third Defendant

Catchwords:

Taxation of costs according to the scale and under an order for recovery on the business of indemnity - Objections of adverse party - Insufficiency of objections

Legislation:

Nil

Result:

Some objections insufficient
Others not sustained

Representation:

Counsel:

Plaintiff:     No appearance
First Defendant              :     No appearance
Second Defendant         :     No appearance
Third Defendant            :     No appearance

Solicitors:

Plaintiff:     Mossensons
First Defendant              :     DLA Piper Australia
Second Defendant         :     Not applicable
Third Defendant            :     Jackson McDonald

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

Nil

DEPUTY REGISTRAR HARMAN: The action proceeded to trial on the issue of liability and against the first defendant, the plaintiff was unsuccessful. The first defendant obtained an order for the costs of the action. According to the terms of the order, after 21 September 2012 the first defendant is entitled to recover costs on an indemnity basis.
The first defendant's bill was taxed and the plaintiff has now lodged objections.
Paragraph 1 of the plaintiff's notice of objection is as follows:
The plaintiff objects to each and every item in the bill of costs and says that the taxing officer erred in principle in failing to take into account the caps on legal fees for injury liability claims specified in Appendix A to Schedule 2 of the applicable Legal Services Agreement that applied, and that express notice of the category of claim was required by Section 1.1 of Schedule 2 of the applicable Legal Services Agreement.
The Legal Services Agreement to which the plaintiff refers is between the solicitors acting for the first defendant and her insurer. Taxation proceeded under the order for costs, not under that agreement.
Of the amount paid to her solicitors the first defendant was entitled to recover from the plaintiff the reasonable cost of services necessarily provided to her for the purposes of the action.
Both prior to the commencement of the process of taxing any item in the bill and on a number of occasions in the course of taxing the bill questions arose from enquiries of the plaintiff as to payment of particular disbursements. On each occasion I was satisfied by the defendant's response that the amount sought to be recovered had been paid. I also understood that in each of the periods established by the order that the costs paid had exceeded those sought to be recovered.
The relevant rule that establishes jurisdiction to review is O 66 r 53(1). It is as follows:
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, …
The rule requires an objecting party to articulate a particular error in the process of taxing an item or items.
Regardless the fact that the considerations that informed the taxation were determined by the order, par 1 of the notice does not assert any failure, want or deficiency in the provision of notice under the Agreement. It does not identify any cap or specify how it would operate such that it would have any impact on any determination made at taxation.
In my opinion par 1 fails to articulate any error in principle in the allowance of any item or its constituent services. It is insufficient to establish jurisdiction to review any determination made at taxation.
Paragraph 2 of the plaintiff's notice is as follows:
The plaintiff objects to item 42 in the bill of costs relating to indemnity costs and says that the Taxing Officer erred in principle in proceeding with the taxation when Schedule A to item 42 did not refer to items in the relevant scale of costs, alternatively in failing to direct the First Defendant to draw Schedule A to item 42 to reflect items in the relevant scale of costs.
Item 42 expresses the defendant's claim for recovery on the basis of indemnity. At that point a schedule specifies the date of an event for which a charge is raised, its description, the fee earner engaged and the time devoted to the particular activity. Along with an identifying number and an amount claimed, that detail was sufficient for the purpose of taxing each part of the item. I should add that the taxing officers of the District Court would only expect to be presented with bills in that form either where recovery is sought on an indemnity basis or for the costs of an originating summons or motion.
I was satisfied that the fees generated by the defendant's solicitor had been by reference to the period of time in which a fee generator had been engaged in activity and the charge out rate of that person. As there was no limit to the defendant's recovery during the period of the indemnity costs order there was no reason to require the defendant to specify a scale item for each part of the item in the bill.
To have failed to so require the defendant did not constitute an error in principle in taxing any part of the item.
Paragraph 3 of the notice is as follows:
The Plaintiff objects to item 42 in the bill of costs relating to indemnity costs and says that the Taxing Officer erred in principle in taxing each of the 677 individual items in Schedule A to item 42 of the bill of costs without reference to the relevant scale of costs to determine the reasonableness of the amount allowed.
Items of scale provide for recovery either by hourly rates or to a specified maximum. The onus was on the plaintiff to establish that the fee sought to be recovered for any part of the item was excessive. On no occasion did he seek to do so by reference to the scale. Each part of the item had been described in the bill. At taxation the description of those parts that were contested (and most were) was embellished upon by the defendant by reference to a context and a note, letter or document. It was then open to the plaintiff to raise the proposition that he now raises. He did not then contend that the fee for each part of the item should be assessed by reference to the scale. To the contrary, reference was frequently had by the plaintiff to the time specified in the bill for undertaking particular activity with reference to the charge rates of fee earners specified in the schedule to the bill.
It is open to consider that the plaintiff had been silenced by my determination that what had been paid by the defendant was the datum for recovery during the period to which the indemnity applied. To that I would observe that other rulings that I had made did not have such an impact.
To tax the constituent parts of the item by reference to the process by which the defendant had been charged did not amount to an error in principle.
With reference to the terms by which the objection is expressed the plaintiff has failed to identify the parts of the item to which reference would properly be had to the scale. At this point, after specification of the relevant activity by the defendant both in the bill and at the point of taxation it behoves the plaintiff to identify the scale item to which reference ought to have been had.
Paragraph 4 of the notice is as follows:
The plaintiff objects to item 42 relating to indemnity costs in the bill of costs and says that the Taxing Officer erred in principle in failing to consider the reasonableness of the amount allowed by reference to
(a)   The complexity of the matter
(b)   The time and skill involved
(c)   The scale of costs
(d)   The agreement as to costs
as required by regulation 18 of the Legal Profession Conduct Rules 2010.
I take it to be the case that the reference in the objection to the amount allowed is to unspecified discrete parts of the item rather than the sum of the parts. That is because the sum is simply an arithmetic result drawn from the range of activity undertaken by the defendant's solicitor after a particular date. Having reached that conclusion I make two observations. The first is that the plaintiff carried the onus and the second that without some greater degree of specificity the objection cannot be addressed.
Paragraph 5 of the notice is as follows:
The Plaintiff objects to item 42 relating to indemnity costs in the bill of costs and says that the Taxing Officer erred in principle in finding that the Plaintiff was not entitled to rely upon limitations in the agreement as to costs as the First Defendant had paid for the services provided.
As I have already recorded in response to par 1 of the objection, I was satisfied that during the period covered by the order for indemnity costs the defendant had paid more than was sought to be recovered. Taxation was had under the order for recovery of costs on an indemnity basis, not under the agreement.
Regardless that observation, as I indicated in response to par 1 of the objection the plaintiff does not identify any cap or specify how it would operate such that it would have any impact on any determination made at taxation. In my opinion absent such detail the allegation of error is illusory.
Paragraph 6 of the notice is as follows:
The Plaintiff objects to item 42 in the bill of costs relating to indemnity costs and says that the Taxing Officer erred in principle in failing to make any deduction for work done in relation to the contribution proceedings by the Second and Third Defendants against the First Defendant when the costs of such contribution proceeding were payable by the Second and Third Defendants by order of the trial Judge and not by the Plaintiff.
I have previously referred to the test of recovery for services and for fees. Is not apparent what mechanism the plaintiff would seek to engage in contending for deduction. In any event the plaintiff does not identify any particular determination the subject of contended error. Paragraph 6 of the notice is insufficient to establish jurisdiction to review any determination.
Paragraph 7 of the notice is as follows:
The Plaintiff objects to item 42 (being Schedule A Disbursements 7 and 11) 46, 47 and 50 of the bill of costs and says that the Taxing Officer erred in principle in allowing the same as no approval was obtained prior to incurring these expenses contrary to section 2.2 of Schedule 2 to the applicable Legal Services Agreement.
Disbursements 7 and 11 were incurred during the period covered by the order for indemnity costs and the balance otherwise. In taxing each of the disbursements there was no dispute that it had necessarily been incurred. In providing for recovery of each disbursement I was satisfied that to the extent that recovery had been sought the cost had been incurred.
Paragraph 8 of the notice is as follows:
The Plaintiff objects to the disbursements allowed in item 42 relating to indemnity costs in the bill of costs and says that the Taxing Officer erred in principle in allowing the same as no vouchers for payment of all disbursements were lodged as required by Order 66 rule 36.
In my opinion it is for the plaintiff to identify each disbursement the subject of objection. Each of the disbursements that was allowed was sufficiently vouched for by the first defendant.
Paragraph 9 of the notice is as follows:
The Plaintiff objects to item 44 of the bill of costs and says that the Taxing Officer erred in principle in allowing the First Defendant to increase the amount by $33,554.00 without notice to the Plaintiff, denying the Plaintiff an opportunity to be heard.
The particular item is for the cost of the taxation which had been specified in the bill at $9,460.
At taxation the plaintiff sought and recovered and additional $33,554. The additional amount reflected the time devoted to the process of taxation including preparation. The item was taxed under the operation of the order for indemnity. The plaintiff was given the opportunity to be heard in relation to the amended claim. The amount recovered by the defendant was determined after the conclusion of submissions.
The last paragraph of the notice is as follows:
The Plaintiff objects to items 46, 47, 49 and 50 of the bill of costs and says that that Taxing Officer erred in principle in allowing the same as no vouchers for payment of all disbursements were lodged as required by Order 66 rule 36.
The objection repeats par 8 of the notice but with reference to particular disbursements. I make the same response: each particular disbursement was sufficiently vouched by the first defendant. Indeed it appears that the vouchers upon which the defendant relied were each stapled to the bill that had been filed.