Dusol Pty Ltd t/as BW Duckham & Co (a firm) v Della-Vedova & Sons (a firm)
[2023] WADC 41
•6 APRIL 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: DUSOL PTY LTD t/as BW DUCKHAM & CO (a firm) -v- DELLA-VEDOVA & SONS (a firm) [2023] WADC 41
CORAM: LEVY DCJ
HEARD: 12 OCTOBER 2022
DELIVERED : 6 APRIL 2023
FILE NO/S: CIV 4286 of 2019
BETWEEN: DUSOL PTY LTD t/as BW DUCKHAM & CO (a firm)
Plaintiff
AND
DELLA-VEDOVA & SONS (a firm)
Defendant
Catchwords:
Application to change name of a party - Application for review of registrar's costs orders - Application to set aside costs certificate - Application to suspend costs judgment - Whether taxing officer made errors in principle
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
District Court of Western Australia Consolidated Practice Directions & Circulars to Practitioners Civil Jurisdiction, PD 4
Rules of the Supreme Court 1971 (WA), O 66
Supreme Court of Western Australia Consolidated Practice Directions, PD 4.7.1
Result:
Plaintiff's applications dismissed
Representation:
Counsel:
| Plaintiff | : | Mr B W Duckham |
| Defendant | : | Mr R J Squires |
Solicitors:
| Plaintiff | : | Duckham & Co Pty Ltd |
| Defendant | : | Greenstone Legal |
Case(s) referred to in decision(s):
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29
Forbes v Frigger [2009] WASC 77
Hesford v Hancock [2021] WASC 294
Mossensons (A Firm) v Coastline Associates (Unreported, WASC, Library No 970661B, 2 December 1997)
Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341
New Resource Holdings Pty Ltd v Lunt [No 3] [2008] WASC 221
Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155
Rapoff v Themelis (Unreported; WASC, Library No 7187, 8 July 1988)
Re Catlin [1854] EngR 481; [1854] 18 Beav 508 [52 ER 200]
Russell v Lee Holdings Pty Ltd [No 2] [2020] WASC 257
State Bank of Victoria v Parry (1989) WAR 240
LEVY DCJ:
This matter arises out of a dispute about legal fees.
By way of chamber summons (and properly understood following oral submissions made by the parties at the hearing on 12 October 2022),[1] Dusol Pty Ltd trading as BW Duckham & Co (a firm) (the plaintiff) seeks various orders in the proceedings brought against Della‑Vedova & Sons (a firm) (the defendant), namely that:[2]
[1] The chamber summons dated 7 July 2022 and filed on 11 July 2022 erroneously sought suspension orders 'in respect to costs ordered in favour of the Defendant pursuant to the Order made 27th October 2021' when properly understood it meant an order suspending enforcement of the certificate signed by Deputy Registrar Harman on 27 May 2022. The chamber summons also erroneously referred to LPA 11 of 2022 when it should have read LPA 16 of 2021. Furthermore, although the chamber summons only referred to 'the Certificate of the Taxing officer signed on 27th May 2022', it became apparent that the applications related to both certificates.
[2] Plaintiff's chamber summons filed 11 July 2022.
1.The name of the plaintiff be changed to 'Dusol Pty Ltd ACN 126192283 formerly trading as BW Duckham & Co'.
2.The time for the hearing of the applications brought pursuant to the chamber summons be extended.
3.The two certificates of taxation signed by Deputy Register Harman on 27 May 2022 be set aside.
4.In the alternative to 3 above:
(a)an order that a review occur with respect to both the certificates of taxation signed by Deputy Registrar Harman; and
(b)the plaintiff be granted leave to produce further evidence.
5.An order suspending the defendant's enforcement of the certificate of taxation signed by Deputy Registrar Harman on 27 April 2022 in the amount of $29,943.48 payable by the plaintiff to the defendant pending the outcome of separate but related Supreme Court proceedings currently on foot involving the parties.
6.Orders in relation to the costs of these applications.
Save for the application for an extension of time for the hearing of the application, the defendant opposes the orders sought by the plaintiff.
Background
It is not necessary in these reasons to fully canvas the long and complicated background to these applications. Nonetheless, it is necessary to set out some of the relevant history of the parties' relationship and some of the history of the matter.
The defendant, Della-Vedova & Sons, is a firm.
The plaintiff, Dusol Pty Ltd, traded under the name of BW Duckham & Co and, through its principal Mr Bruce William Duckham, from 2007 onwards provided legal services to the defendant. Prior to the existence of the plaintiff, Mr Duckham provided legal services to the defendant and others associated with the defendant. The parties, in one form or another, have had a professional relationship for about 40 years.[3]
[3] Affidavit of Bruce William Duckham, sworn 4 August 2022, pars 3 and 4.
Prior to the commencement of this matter, the defendant was a party to proceedings brought against them by CBSW Pty Ltd in the District Court of Western Australia (CIV 783 of 2016) (the CBSW matter). The defendant was represented by BW Duckham & Co in those proceedings.
By letter to the defendant dated 30 January 2019, BW Duckham & Co indicated that the legal costs that the defendant had incurred in the CBSW matter that were then due and payable, inclusive of counsel's fees, was 'estimated to be in excess of $200,000'.[4]
[4] See affidavit of Lucia Mary Della-Vedova, sworn 22 January 2020, in opposition to plaintiff's application for summary judgment, par 7 and attachment LMDV-1.
Following discussions between Lucia Della-Vedova on behalf of the defendant and Mr Duckham on behalf of BW Duckham & Co, BW Duckham & Co sent a letter to Ms Della-Vedova advising her as follows:[5]
[5] Affidavit of Lucia Mary Della-Vedova, sworn 22 January 2020, in opposition to plaintiff's application for summary judgment, par 10 and attachment LMDV-2.
I note your request that our fees in relation to this matter not including counsel fees and disbursements be set at $100,000 inclusive of GST. I agreed to this request upon the proviso that payment be made this month.
Following further discussions between Mr Duckham and Ms Della‑Vedova, BW Duckham & Co agreed to extend the date for payment of the money owed. On 13 April 2019, the defendant paid the plaintiff the sum of $100,000 together with a further amount of $14,410 payable to a barrister for outstanding counsel's fees.[6]
[6] Affidavit of Lucia Mary Della-Vedova, sworn 22 January 2020, in opposition to plaintiff's application for summary judgment, par 14.
By letter dated 18 April 2019, BW Duckham & Co sent to the defendant a 'statement of account' relating to fees and disbursements payable by the defendant. The statement of account included the following:[7]
[7] Affidavit of Lucia Mary Della-Vedova, sworn 22 January 2020, in opposition to plaintiff's application for summary judgment, pars 13 and 14 and LMDV-5.
Sub-total of outstanding fees $200,453.80 Less agreed compromise - BW Duckham & Co (*$100,000 inclusive of GST plus disbursements) ($100,453.80) Sub-total payable to BW Duckham & Co $100,000.00 Plus Disbursements (inclusive of GST) $605.00 *Plus fees of Counsel, Mr Bill Chesnutt $14,410.00 Total due and payable by 13 April 2019 $115,015.00
In or about April 2019, the defendant 'ceased to utilise the plaintiff's legal services'.[8]
[8] Affidavit of Bruce William Duckham, sworn 4 August 2022, par 14.
On 1 November 2019, the plaintiff, then identified as BW Duckham & Co (ACN 126 192 283), commenced proceedings by writ of summons (CIV 4286 of 2019) (the action) against the defendant and others. There were initially five separate defendants, namely:
•Della-Vedova & Sons (ACN 832 684 837), first defendant;
•Lucia Mary Della-Vedova as executor and trustee of Giovanna Della-Vedova, second defendant;
•Lucia Mary and Pietro Carlo Della-Vedova as managers of the estate of Egidio Franco Della-Vedova, third defendant;
•D.V. Management Pty Ltd (ACN 612 892 761), fourth defendant;
•Lucia Mary Della-Vedova, fifth defendant.
The claims brought against each of the defendants was for separate amounts of money allegedly owed by each of them to BW Duckham & Co (ACN 126 192 283) for legal services provided to them pursuant to accounts rendered in the period between 17 April 2018 and 29 August 2018. BW Duckham & Co also claimed interest and costs in relation to the money owed by each defendant separately. Leaving aside costs and interest, the total amount claimed against all the defendants was $177,369.48.
On 3 July 2020, the plaintiff filed an amended writ of summons and statement of claim (Amended Writ).[9] By the Amended Writ:
[9] Plaintiff's amended writ of summons and statement of claim, dated and filed on 3 July 2020.
(a)The description of the plaintiff was changed to Dusol Pty Ltd trading as BW Duckham & Co (A Firm) ABN 43 126 283 (Note: CAN 126 192 283 was also deleted).
(b)All defendants, save for Della-Vedova & Sons, were deleted.
(c)The description of the defendant Della-Vedova & Sons was changed by adding '(A Firm)' and did not include 'ACN 832 684 837', but instead identified it as 'ABN 93 209 107 132'.
(d)The amount claimed against the defendant was amended to $86,043.80 (being the difference between the sub-total of outstanding fees in the amount of $200,453.80 and the amount paid by the defendant as per the statement of account sent by BW Duckham & Co to the defendant by letter dated 18 April 2019).
(The changes to the description of the parties are identified in bold type above.)
In the period between 3 July 2020 and 12 July 2021, the action remained on foot in the District Court. This included the defendant amending its defences on 22 November 2020 and 9 February 2021. In response, the plaintiff filed further amended replies on 11 December 2020 and 19 February 2021, respectively.
Ultimately, on 12 July 2021, the plaintiff was granted leave to discontinue the action. It was discontinued save as to the issue of costs. The plaintiff discontinued the action in circumstances where it accepted and admitted[10] that it had failed to comply with legislated costs disclosure requirements[11] which meant that the action could not be maintained until the fees in issue had been assessed. Consequently, the plaintiff filed an application in the Supreme Court seeking to have the disputed fees of the action assessed (Dusol Pty Ltd (trading as BW Duckham & Co) v Della Vedova [sic] and Sons, LPA 16 of 2021) (LPA 16 of 2021).
[10] Plaintiff's third further amended reply, dated 21 April 2021.
[11] Legal Profession Act 2008 (WA) s 260.
Following the commencement of LPA 16 of 2021, on 20 August 2021 the defendant, by way of writ of summons, commenced separate proceedings against the plaintiff seeking an order for declaratory relief to the effect that nothing was owed by the defendant to the plaintiff in relation to the action (Della-Vedova and Sons v Dusol Pty Ltd trading as B W Duckham & Co, Supreme Court CIV 1844 of 2021) (CIV 1844 of 2021).
Having discontinued the action, the question of costs was dealt with at a special appointment before Deputy Registrar Harman on 27 October 2021. On that date, the learned deputy registrar made the following orders:
1.The plaintiff pays the defendant's costs of the action.
2.The defendant pay the plaintiff's costs thrown away by reason of the defendant amending its defences.
3.The plaintiff pays the defendant's costs of the special appointment on 27 October 2021.
As a consequence of the orders made by Deputy Registrar Harman on 27 October 2021, both the plaintiff and the defendant filed bills of costs each was entitled to have taxed.
In the period between 31 January 2022 and 27 April 2022, there were various hearings relating to the taxation of these bills of costs. Ultimately, Deputy Registrar Harman completed the taxation of both bills on 27 April 2022. Deputy Registrar Harman had, by that stage, received an affidavit sworn by Mr Duckham on 20 April 2022. The learned deputy registrar advised the parties that he would delay signing the certificate of taxation for both bills for a period of seven days, until 4 May 2022, to give both parties an opportunity to file any objections.
On 4 May 2022, the plaintiff filed a document titled 'Plaintiff's Submissions in Respect to Costs Assessment' (plaintiff's objections to costs). At 2.16 pm on the afternoon of 4 May 2022, Mr Duckham sent an email to the learned deputy registrar's associate attaching a copy of the plaintiff's objections to costs.
Notwithstanding the plaintiff's email attaching the plaintiff's objections to costs, on 27 May 2022 Deputy Registrar Harman certified both the plaintiff's bill in the amount of $2,771.60 and the defendant's bill in the amount of $29,293.48. Each of the certificates of taxation bore a handwritten notation in the following terms:
'no objection having been received by 4/5/22' (Defendant's Bill of Costs).
'no objection being received by 4/5/22' (Plaintiff's Bill of Costs)
On 24 June 2022, the plaintiff received a letter from Greenstone Legal sent on behalf of the defendant seeking payment of the certified costs.[12] The plaintiff was not aware that Deputy Registrar Harman had signed the allocators prior to receipt of that letter.[13]
[12] Affidavit of Bruce William Duckham, sworn 7 July 2022, Annexure 'C'.
[13] Affidavit of Bruce William Duckham, sworn 7 July 2022, par 6.
On 27 June 2022, Mr Duckham sent an email to the learned deputy registrar's associate querying the handwritten notations on the bills to the effect that no objection to the bills had been received by 4 May 2022 and seeking a consideration of the plaintiff's objections. The plaintiff sought to have the certificates of costs 'withdrawn'.[14]
[14] Email from Mr Duckham to the Associate to Deputy Registrar Harman, dated 27 June 2022.
On 4 July 2022, Deputy Registrar Harman caused to be sent to the parties a letter, signed by him, noting the plaintiff's email dated 27 June 2022 and relevantly stating as follows:
I was aware of your submissions filed 4 May 2022 when I signed each of the allocators on 27 May 2022.
At the conclusion of the taxation, provision was made for any objection to be filed by 4pm on 4 May 2022. The submissions filed are not an objection or objections within the scope of Order 66 Rule 53(1) as there is no contention of error in principle made in the course of taxation and there is no application to review any determination made in the course of taxation.
Application to change the name of the plaintiff
As already noted at [13] above, the action commenced by way of writ of summons filed on 1 November 2019, with the plaintiff then described as BW Duckham & Co (ACN 126 192 283),
The Amended Writ was filed on 3 July 2020 whereby the name of the plaintiff was changed to Dusol Pty Ltd trading as BW Duckham & Co (A Firm) ABN 43 126 192 283.
At various times thereafter, the plaintiff filed documents in the proceedings naming the plaintiff as simply BW Duckham & Co (A Firm) ABN 43 126 192 283, or BW Duckham & Co (A Firm) ABN 43 126 192 28 [sic], or simply Dusol Pty Ltd (A Firm) ABN 43 126 192 283. Examples include:
•Plaintiff's 'Reply Filed Pursuant to Orders Made 19 June 2020', filed 31 July 2020.
•Plaintiff's 'Minute of Amended Reply Filed Pursuant to Orders Made 23 October 2020 filed 3 November 2020.
•Affidavit of Bruce William Duckham sworn and filed 4 February 2021.
•Affidavit of Bruce William Duckham sworn and filed 20 April 2022.
•Affidavit of Bruce William Duckham sworn 7 July 2022 and filed 11 July 2022.
•Plaintiff's Submissions dated 6 October 2022 (Note: defendant's ABN identified as 82 832 684 837).
•Plaintiff's chamber summons dated 7 July 2022 and filed 11 July 2022.
Despite filing various documents describing the plaintiff as 'BW Duckham & Co (A Firm) ABN 43 126 192 283 (or ABN 43 126 192 28 [sic])', no application to further amend the name of the plaintiff was made until the plaintiff filed a chamber summons on 11 July 2022. Obviously, by the time the chamber summons was filed the action had been discontinued and orders made by Deputy Registrar Harman as to costs.
The plaintiff's submissions on the application to change the plaintiff's name
During the course of the plaintiff's oral submissions, Mr Duckham who appeared on behalf of the plaintiff, submitted that in changing the name there would be no change in the actual entity or beneficial ownership of BW Duckham & Co, which was at all times owned by Dusol Pty Ltd.[15]
[15] ts 25, plaintiff's oral submissions, 12 October 2022.
The plaintiff, on the basis of various affidavits filed in support of the chamber summons, submits that:
Dusol Pty Ltd CAN 126 192 283 formerly trading as BW Duckham & Co should be substituted as the plaintiff because it has not operated as a business since:
a)either 31 May 2022 when the business name was deregistered,[16] or
[16] Affidavit of Bruce William Duckham, sworn 12 October 2022, par 4.
b)20 June 2022 when the firm BW Duckham & Co Barristers & Solicitors 'ceased to carry on as a business apart from finalising matters extant.[17]
[17] Affidavit of Bruce William Duckham, sworn 7 July 2022.
The defendant's submissions on the application to change the plaintiff's name
The defendant objects to the application and points out that the costs orders made on 27 October 2021 were made against Dusol Pty Ltd trading as BW Duckham & Co (A Firm) ABN 43 126 192 283.
Furthermore, the defendant submits that, in the absence of 'proper and complete evidence' as to the basis for the application, there is a risk to the defendant that any subsequent action by it to enforce the costs orders made in its favour on 27 October 2021 could be prejudiced. That submission has force in circumstances where there is little more than a bald assertion by the plaintiff that the name change will not prejudice the defendant.
Conclusion on the application to change the plaintiff's name
Noting the stage of these proceedings and that this application was not 'heavily' pressed or pursued by the plaintiff,[18] I am not satisfied on the available evidence that it is appropriate to now change the name of the plaintiff at this stage of the proceedings. Furthermore, I am satisfied that there is a potential risk to the defendant that if such a name change is allowed the defendant might be prejudiced in attempting to enforce any orders made against the plaintiff in these proceedings.
[18] ts 25, plaintiff's oral submissions, 12 October 2022.
Consequently, the plaintiff's application to change its name is refused.
The plaintiff's application to set aside the two certificates signed by the taxing officer on 27 May 2022
As already noted, on 27 May 2022 Deputy Register Harman signed the certificates relating to both the plaintiff's and the defendant's bill of costs.
The plaintiff submits that both the certificates should be set aside.
As set out at [22] to [26] above, despite the plaintiff's email of 4 May 2022 sent to the associate to Deputy Registrar Harman within the time allowed setting out the plaintiff's objections to costs, the learned deputy registrar signed the allocators on both costs certificates on 27 May 2022.
Deputy Registrar Harman subsequently informed the plaintiff by letter dated 4 July 2022 that he was not only aware of the plaintiff's objections to costs at the time he signed the allocators, but had also decided that the plaintiff's objections to the bills of costs did not constitute 'an objection or objections within the scope of Order 66 Rule 53(1) as there [was] no contention of error in principle made in the course of taxation, and there [was] no application to review any determination made in the course of taxation'.[19]
[19] Letter from Deputy Registrar Harman to Dusol Pty Ltd dated 4 July 2022.
In considering the question of whether the certificates should be set aside, it is relevant to set out the process for a review of taxation by a taxing officer provided for under O 66 r 53 of the RSC, and an application for review of a taxation by a judge under O 66 r 55 of the RSC.
Applications for review of a taxation by a taxing officer- Order 66 rule 53 of the Rules of the Supreme Court
Order 66 rule 53 of the RSC provide and include:
1.A party to a taxation 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 may object and apply for a review of the taxed item or part of it.[20]
[20] RSC O 66 r 53(1).
2.The objection must be in writing and must:
(a)list the items or part of items objected to; and
(b)concisely set out the grounds and reasons for any objection and be delivered to any interested party.[21]
[21] RSC O 66 r 53(1)(a).
3.Any objection and application for a review by a taxing officer must be delivered to any other interested party.[22]
[22] RSC O 66 r 53(1)(a) and r 53(1)(b).
4.The objection and application for a review must be made before a certificate of taxation finally dealing with the item has been signed.[23]
[23] RSC O 66 r 53(1)(a).
The plaintiff essentially submits that, despite the learned deputy registrar's letter informing the plaintiff that he was aware of the plaintiff's objections to costs and had determined that they did not constitute objections pursuant to the RSC, in reality they were not considered at all. For that reason alone, the plaintiff submits that the certificates should be set aside.
The plaintiff submits that the power to set aside costs certificates falls within the inherent jurisdiction of the court. Furthermore, that in considering the question of whether to set aside the certificates, the question is not whether the costs would be amended, but rather whether upon review there are prospects of success.[24] As noted by Ipp J (with reference to the decision of Nicholson J in Rapoff v Themelis[25]) in Mossensons (A Firm) v Coastline Associates,[26] there is authority to this effect.
[24] ts 7, counsel for the plaintiff's oral submissions, 12 October 2022.
[25] Rapoff v Themelis (Unreported; WASC, Library No 7187, 8 July 1988).
[26] Mossensons (A Firm) v Coastline Associates (Unreported, WASC, Library No 970661B, 2 December 1997).
However, in Mossensons (A Firm) v Coastline Associates, Ipp J found that 'the court will only set aside a taxation certificate "if it is proper to do so" '. As to the test of whether it is 'proper' to set aside a taxation certificate, Ipp J found it was necessary for the court to 'have regard to the applicant's prospects of success on a review under O 66 r 55. The court will not exercise its inherent jurisdiction to set aside a taxation certificate unless it is satisfied that such an order would not be futile'.
The plaintiff accepts that the prospects of the success of any review of taxation is a factor to be taken into account in considering whether to set aside the certificates.[27]
[27] ts 7, Mr Duckham's oral submissions, 12 October 2022.
Fundamentally, as far as the plaintiff submits that the certificates should be set aside on the basis that the plaintiff's objection to costs were not considered by Deputy Registrar Harman, the difficulty that the plaintiff faces is that Deputy Registrar Harman said he did consider the submissions and formed the view that they did not constitute objections for the purposes of the relevant rules. There is no material before the court that would suggest otherwise.
In any event, leaving aside the application for review itself, in considering the plaintiff's application to set aside the certificates of taxation in the inherent exercise of this court's jurisdiction (assuming for the purposes of this application the court has such jurisdiction), it is necessary to consider the various items and issues raised by the plaintiff to determine the plaintiff's prospects of success.
The hearing on 12 October 2022 - the plaintiff's application for a review of Deputy Registrar Harman's taxation
In the event that this court does not set aside the certificate of the taxing officer signed on 27 May 2022, in the alternative the plaintiff seeks an order for a review of the various items identified. Additionally, the plaintiff seeks leave to produce further evidence pursuant to O 66 r 56 of the Rules of the Supreme Court 1971 (WA) (RSC).
As far as the plaintiff applies for leave to produce further evidence, during the course of the hearing before this court on 12 October 2022 the plaintiff did not identify what further evidence was sought to be adduced. Nor was the proposed additional evidence detailed in an affidavit or written submissions. Since the application is for a review of the various items, any evidence could only be relevant to those items.
However, during the course of the hearing the plaintiff did seek leave to tender an affidavit sworn by Mr Duckham on 12 October 2022, purportedly prepared in response to issues raised by the defendant in its submissions. No notice of the application to tender the affidavit was given to the defendant. Nor were the contents of the affidavit revealed to the defendant prior to the application to tender it.
According to par 5 of the affidavit, it was sworn by Mr Duckham in support of the plaintiff's application seeking a suspension order with respect to the costs ordered to be paid by the plaintiff in favour of the defendant pending the later of the outcome of Supreme Court proceedings CIV 1844 of 2021 and LPA 16 of 2022. This issue is considered further at [127] to [155] below.
According to Mr Duckham, this affidavit went to issues raised by the defendant to the effect that the affidavit of Mr Stewart (which on its face was filed in support of the plaintiff's application for a suspension order but was called in aid to support the plaintiff's application to amend the plaintiff's name) was deficient.
The defendant objected to the affidavit being tendered in the proceedings.
Notwithstanding the defendant's objections, I allowed the tender of the affidavit noting the objections raised by the defendant.
The affidavit carries little if any weight in relation to any of the issues raised by the plaintiff and is discussed at [138] to [145] below.
Application for review of a taxation by a judge - Order 66 rule 55 of the Rules of the Supreme Court
Despite having objected to an item or part of an item under O 66 r 53 of the RSC and the certificate of taxation being signed by a taxing officer, a party to a taxation may apply to a judge in chambers for an order to review the taxation as to that item or part of an item objected to.[28]
[28] RSC O 66 r 55(1).
Unless otherwise allowed by the court or the taxing officer at the time the certificate is signed, any such application must be made within 14 days of the certificate of taxation being sign.[29]
[29] RSC O 66 r 55(1).
A judge to whom such application for review is made may, if he or she is of the opinion that the taxing officer made an 'error in principle', rectify the error and make any order that the judge thinks just.[30]
[30] RSC O 66 r 55(2).
Given the wording of O 66 r 55, namely that the review of taxation by a judge is predicated on a party contending that an error of principle was made by the taxing officer with respect to 'any item or part of an item objected to under rule 53 of [Order 66]',[31] as opposed to anything that the taxing officer did or failed to do, this requires an examination of the merits of the actual objections filed with respect to any relevant item taxed.
[31] RSC O 66 r 55(1).
The question of whether the learned deputy registrar was correct to conclude that the plaintiff had not made an application to review any determination made in the course of taxation is, to some degree, a moot point since this court is now dealing with the application for review brought pursuant to O 66 r 55.
The plaintiff alleges that in dealing with both the plaintiff's bill and the defendant's bill the learned deputy registrar made errors in principle. Consequently, the plaintiff applies to have both certificates of taxation dated 27 May 2022 set aside.
The defendant accepts that this court has the power to set aside the taxing officer's certificates if it is satisfied that the learned deputy registrar made an error in principle in connection with one or both of the certificates dated 27 May 2022.[32] Consequently, it is necessary to consider each of the alleged errors in principle identified by the plaintiff.
[32] Defendant's written submissions, par 35.
Part 1: Alleged errors in principle relating to the plaintiff's bill
The plaintiff submits that Deputy Registrar Harman made numerous errors in principle in the course of the taxation of both the plaintiff's and the defendant's bills of costs. The alleged errors relate to various items in the bills. In addition, the plaintiff also submits that Deputy Registrar Harman's conclusion that the plaintiff's objections to the bills of costs were submissions that did not constitute 'an objection or objections within the scope of Order 66 Rule 53(1)' is in itself an error of principle.
What is an error of principle?
Before a judge can carry out a review under O 66 r 55, an error in principle must be demonstrated.[33]
[33] Mossensons (a firm) v Coastline Associates (9) - (10) (Ipp J); Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155 [75] (Murphy JA).
In Rankilor v Circuit Travel Pty Ltd, Murphy JA at [76] - [77] noted that 'errors in principle may be made both in determining whether an item should be allowed and in determining how much should be allowed'. Murphy JA also noted that an 'error in principle may be inferred from a decision of the taxing officer if the result is such that the discretion appears not to have been exercised at all, or where it has been exercised in a manner that is manifestly wrong'.
Ordinarily, questions that merely go to the quantum of costs are not errors in principle.[34]
[34] Re Catlin [1854] EngR 481; [1854] 18 Beav 508 [52 ER 200]; Rankilor v Circuit Travel Pty Ltd [75] (Murphy JA).
If the issue is about costs only, then an error of principle may only be made out if it is established that 'no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question'.[35]
[35] Mossensons (a firm) v Coastline (9) - (10) (Ipp J).
Consequently, an 'error in principle may be inferred from a decision of the taxing officer if the result is such that the discretion appears not to have been exercised at all, or where it has been exercised in a manner that is manifestly wrong'.[36]
[36] Rankilor v Circuit Travel Pty Ltd [77] (Murphy JA).
The plaintiff asserts that the learned deputy registrar made a number of errors in principle.
The plaintiff's bill
The plaintiff's bill of costs claimed a total of $8,167.00 in costs plus $478.17 in disbursements. Deputy Registrar Harman taxed the bill and allowed the sum of $2,771.60. The plaintiff's bill of costs and the assessment made by Deputy Registrar Harman in relation to each item is set out below:
Bill Item No Date Scale Item Description Scale Item Amount Taxed Off 1 24/11/2020 4 Reply $3,712.00 $2,212.00 2 17/02/2021 4 Reply $2,475.00 $1,575.00 3 19/10/2021 10(a) Preparation and attendance at court $990 $990 4 13/12/2021 32(a) Draw Bill of Costs $495.00 $495.00 4 31/10/2022 32(b) Preparation and attend taxation $495.00 $495.00
It is of note that the plaintiff does not now rely upon all of the items identified in the plaintiff's objections to costs dated 4 May 2022.[37]
[37] Items 1, 2 and 3 identified in plaintiff's submissions in respect of costs assessment dated 4 May 2022 not pursued.
First alleged error in principle: The determination by Deputy Registrar Harman that the 4 May 2022 objections to costs did not constitute objections within the scope of Order 66 rule 53(1)
As already noted at [41], a party to a taxation 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 may object and apply for a review of the taxed item or part of it.[38]
[38] RSC O 66 r 53(1).
The objection must:
(a)be in writing;
(b)list the items or part of items objected to; and
(c)concisely set out the grounds and reasons for any objection and be delivered to any interested party.[39]
[39] RSC O 66 r 53(1)(a).
Any objection and application for a review by a taxing officer must be delivered to any other interested party.[40]
[40] RSC O 66 r 53(1)(a) and r 53(1)(b).
There is no doubt that the plaintiff's objections to costs ostensibly objecting to parts of Deputy Registrar Harman's taxation of both the plaintiff's and the defendant's bills of costs was sent to Deputy Registrar Harman within the time allowed. In his letter to the plaintiff, Deputy Registrar Harman explained that he had formed the view that the document submitted by the plaintiff did not fall within the scope of O 66 r 53 of the RSC. The words used by Deputy Registrar Harman were:
The submissions filed are not an objection or objections within the scope of Order 66 Rule 53(1) as there is no contention of error in principle made in the course of taxation and there is no application to review any determination made in the course of taxation.
As to the latter part of Registrar Harman's reasons, namely that there was no 'application to review any determination made in the course of taxation,' I note that the plaintiff's objections to costs did not bear the word 'application' or words that explicitly sought a review. Nonetheless, when the document is considered as a whole, it is clear that the plaintiff was making an application for review of the taxation conducted by Deputy Registrar Harman. There is no other reasonable way to construe the document.
Furthermore, at least in form, the plaintiff's objections to costs complied with the rules in that they were:
(a)in writing;
(b)listed the items or part of items objected to; and
(c)concisely set out the grounds and reasons for the objection.[41]
[41] RSC O 66 r 53(1)(a).
I turn to Deputy Registrar Harman's statement that the plaintiff's objections to costs did not constitute 'an objection or objections within the scope of Order 66 Rule 53(1) as there [was] no contention of error in principle made in the course of taxation'. It is clear that the plaintiff's objections to costs identified multiple contentions that the learned deputy registrar had made errors in principle during the course of taxation. These were not limited to, but included:[42]
[42] Plaintiff's submissions in respect to costs assessment, dated and filed 4 May 2022, pages 2 and 3.
•Items 4 and 5 of the plaintiff's bill of costs - the plaintiff raised an issue that the status of Mr Duckham having no 'fixed interest' in the plaintiff did not disentitle the plaintiff to costs pursuant to the authority of Bell Lawyers Pty Ltd v Pentelow.[43]
[43] Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29.
•Items 2, 5, 6, 7, 14 and 16 of the defendant's bill of costs - were items that were covered by the Supreme Court of Western Australia Consolidated Practice Directions Practice Direction (PD) 4.7.1.
•Item 9 of the defendant's bill of costs - which related to the giving of discovery of documents, the plaintiff submitted that, pursuant to the authority of Mulley v Manifold,[44] costs were only allowable with respect to relevant documents that were discovered.
[44] Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 [7].
On the face of the document, leaving aside whether there was merit to the plaintiff's objections to costs, the plaintiff clearly identified various alleged errors in principle. Whether the objections could be sustained is a separate question to whether they constituted objections within the scope of O 66 r 53(1). For that reason alone, it may be possible to infer that the learned deputy registrar failed to properly exercise the discretion available to him at all.
In any event, as already noted in relation to the plaintiff's application to set aside the certificates in the exercise of the court's inherent jurisdiction, it is now necessary to conduct an analysis of the merits of the various issues identified by the plaintiff as constituting errors in principle and whether the plaintiff's application for review has merit so far as the items identified are concerned.
Second alleged error of principle: The determination by Deputy Registrar Harman not to allow any amount for Items 4 and 5 of the plaintiff's bill (Item 4 - Drawing Bill of Costs - $495; Item 5 - Prepare and attend Taxation - $495)
The plaintiff submits that these tasks were undertaken by Mr Duckham, an employee of the plaintiff, and Granich and Partners at the time that the costs were incurred. The plaintiff submits, with reference to the decision of Kiefel CJ, Bell, Keane, and Gordon JJ in Bell Lawyers Pty Ltd v Pentelow,[45] that there is no reason these amounts were disallowed in circumstances where Mr Duckham had no direct interest in the plaintiff and Granich and Partners were acting.
[45] Bell Lawyers Pty Ltd v Pentelow [51].
In relation to item 4, the defendant submits that the plaintiff was not entitled to any legal fees before 8 October 2020 as the plaintiff was self-represented until then, a fact that the plaintiff had admitted in an amended reply filed on 11 December 2020.[46]
[46] Defendant's outline of submissions and list of authorities special appointment listed for 12 October 2022, pars 38(a) and (b).
Furthermore, there was no evidence that Granich and Partners had charged the plaintiff for preparing the plaintiff's bill.[47]
[47] Defendant's outline of submissions and list of authorities special appointment listed for 12 October 2022, par 38(c).
In relation to item 5, the defendant submits at the time of the first taxation hearing on 31 January 2022, Granich and Partners were the solicitors on the record for the plaintiff. However, no solicitor from Granich and Partners attended the hearing. Consequently, the first taxation hearing was adjourned.
On the second and third taxation hearings, 9 March and 27 April 2022 respectively, Mr Duckham appeared but by that time the plaintiff was acting in person. Consequently, it is submitted that it was appropriate for Deputy Registrar Harman to disallow the amount claimed pursuant to scale item 32(b).
I accept the defendant's submissions in relation to items 4 and 5. Consequently, in the circumstances, even if Deputy Registrar Harman erred by failing to properly consider the plaintiff's objections to costs, it was nonetheless appropriate for Deputy Registrar Harman to disallow the amounts claimed by the plaintiff with respect to items 4 and 5 of the plaintiff's bill of costs.
Conclusion in relation to the plaintiff's bill of costs
In relation to the orders sought by the plaintiff with respect to the certificate of costs signed by Deputy Registrar Harman, even if Deputy Registrar Harman’s failure to properly consider the plaintiff’s objections to costs constituted an error of principle, the plaintiff has not satisfied the court that it would be either appropriate to set aside the certificate of taxation or that the costs certified, upon review by a judge, should be varied.
Part 2: Alleged errors in principle: Defendant's bill
The defendant's bill of costs claimed a total of $32,472.00 plus disbursements in the sum of $777.00. Deputy Registrar Harman taxed the bill and allowed the sum of $29,293.48. The relevant parts[48] of the defendant's bill of costs and the assessment made by Deputy Registrar Harman in relation to each item is set out below:
[48] Those parts of the defendant's bill of costs set out in the 'Plaintiff's Submissions in Respect to [the] Application Dated 7 July 2022' at pages 5 and 6 or addressed orally by the plaintiff on 12 October 2022 (see ts 12).
Bill Item No Date Scale Item Description Scale Item Amount Taxed Off 2 21/11/2019 to 6/5/2020 10(a) Plaintiff's application for summary judgement pursuant to Order 14 RSC and defendant's application for summary judgment pursuant to Order 16 RSC
(20.9 hrs SP - set out in a schedule annexed to the bill of costs)
$9,196.00 $2,696.00 5 5/6/2020 10(a) Letter to the Court seeking listing of directions hearing (0.3 hrs SP) $132.00 $184.00 6 16/6/2020 10(a) Preparing minute of proposed orders for directions hearing on 19/6/2020 (0.8 hrs SP) $352.00 7 19/6/2020 10(a) Preparing for and appearing at directions hearing (2 hrs SP) $880.00 9 4/02/2021 to 11/2/2021 7(b) Giving discovery of documents (5 hrs SP) $2,200.00 $700.00 11 9/2/2021 3(b) Preparing further amended defence (1 hr C) $451.00 $1,450.00 12 22/3/2021 27 Preparing for and attending pre-trial conference (6.7 hrs SP) $2,948.00 13 1/4/2021 3(b) Preparing further amended defence (10 hrs SP) $4,400.00 14 22/4/2021 to 17/5/2021 14 Listing conference on 17/5/2021, including preparation and related conferral with plaintiff in respect to programming matter (4 hrs SP) $1,760.00 $880.00 16 14/10/2021 to 27/10/2021 10(a) Preparing for and attending special appointment on 27/10/2021, including preparing written submissions, minute of proposed orders and supporting affidavit
Instructing solicitor (8 hrs SP) $3,520.00
Counsel (5 hrs) $2,255.00$5,775.00 $0
First alleged error in principle: The determination by Deputy Registrar Harman that the 4 May 2022 objections to costs did not constitute objections within the scope of Order 66 rule 53(1)
This issue has already been discussed and considered in relation to the plaintiff's bill of costs at [73] to [81] and [88] above. As with the issues raised with respect to the plaintiff's bill, it is necessary to consider each of the alleged errors in principle identified by the plaintiff in relation to the defendant's bill of costs.
Second alleged error in principle: Item 2 of defendant's bill
The plaintiff contends that:
1.no costs should have been ordered at all in relation to the summary judgment applications made by the plaintiff pursuant to O 14 of the RSC or the defendant pursuant to O 16 of the RSC as the two applications were heard together and one was successful and the other was not;
2.if costs were appropriate, the quantum of the amount allowed, namely $6,500, was disproportionate to the work involved; and
3. if costs were appropriate, Deputy Registrar Harman should have applied the schedule amount of $1,485 set out at item 2.10 of the Supreme Court of Western Australia Consolidated Practice Directions at 4.7.1.1.[49] In this regard, the plaintiff submits that there was no reason for departure from the principles referred to by Registrar Whitbread in Hesford v Hancock.[50]
[49] PD 4.7.1.1.- Item 2.10 relates to interlocutory applications decided on the basis of written submissions without oral argument where the work includes a straightforward matter with up to one affidavit (not exceeding five pages and not exceeding three annexures) and submissions (not exceeding five pages). SP ~ 3.0 - amount of allowance is $1,485.
[50] Hesford v Hancock [2021] WASC 294.
The defendant submits that the plaintiff's submission that, where 'two applications are heard together and one is successful and the other is not,'[51] that no costs should have been allowed at all is misconceived. In that regard, the defendant points to the fact that on 6 May 2020 Deputy Registrar Harman made separate orders with respect to the applications for summary judgment brought by the plaintiff and defendant, respectively.
[51] Plaintiff's submissions in respect to application, dated 7 July 2022, page 5.
In relation to the plaintiff's O 14 summary judgment application, Deputy Registrar Harman made an order that the plaintiff pay the defendant's 'costs of the application from and including 23 April 2020 in any event, and otherwise the costs of the application be in the cause'.[52]
[52] Order of Deputy Registrar Harman made 6 May 2020 dismissing plaintiff's application for summary judgment.
In relation to the defendant's O 16 summary judgment application Deputy Registrar Harman made a separate order that 'the costs be in the cause'.[53]
[53] Order of Deputy Registrar Harman made 6 May 2020 dismissing first defendant's application for leave to apply for summary judgment, and for summary judgment.
The plaintiff contends that, prima facie, and in the absence of matters raised to the contrary, the allowances set out in PD 4.7.1.1 should be applied. Consequently, the plaintiff submits that only the amount of $1,485 should have been allowed. The defendant submits that this contention only goes to the amount of quantum and does not, in the circumstances, constitute an error of principle.
In relation to the application of PD 4.7.1.1, during oral submissions, Mr Squires for the defendant noted that the taxation of costs in this matter occurred in the District Court, not the Supreme Court. The District Court of Western Australia Consolidated Practice Directions & Circulars to Practitioners Civil Jurisdiction at PD 4 expressly deals with the application of Supreme Court Practice and Procedure. Specifically, those parts of the Supreme Court of Western Australia Consolidated Practice Directions deemed to be included in the District Court's practice directions are set out at PD 4.1.1. PD 4.7.1.1 of the Supreme Court of Western Australia Consolidated Practice Directions is not one of the practice directions deemed to form part of the District Court's practice directions. Consequently, I am not satisfied that PD 4.7.1.1 has any application to these proceedings.
Even if PD 4.7.1.1 does apply, in Hesford v Hancock,[54] at [106] Registrar Whitbread said:
[54] Hesford v Hancock [2021] WASC 294.
Practice Direction 4.7.1 (pars 8 to 12) states that judicial officers can be expected to fix costs payable by reference to the Schedule rather than ordering them to be taxed (par 8). The Schedule has been prepared by reference to the applicable determination of the Legal Costs Committee (par 9). The figures suggested in the Schedule are calculated by reference to the time required in a typical, or median, instance. The court will fix costs in a lower sum in a simple matter or adjust the amount upward for unusually heavy matters. The intention is to fix costs in the appropriate amount approximated as the costs recoverable in a taxation (par 10). Practice Direction 4.7.1 and the Schedule do not fetter in any way the discretion of any judicial officer as to whether a costs order is to be made, or in whose favour. These discretions are to continue to be exercised in accordance with long‑established and well‑known principles. It remains open to counsel to submit, and to a judicial officer to determine, that costs be dealt with in some other way (par 12).
(emphasis added)
In this case, the defendant provided a schedule of work performed in relation to item 2 of the defendant's bill of costs. That schedule set out work that went well beyond the work set out in item 2.10 of PD 4.7.1.1. Consequently, it was open for Deputy Registrar Harman to allow an amount that was greater than the amount set out under item 2.10 of PD 4.7.1.1.
The plaintiff has not demonstrated that an error of principle was made by Registrar Harman in relation to item 2 of the defendant's bill of costs.
Third alleged error of principle: Items 5, 6 and 7 of defendant's bill of costs
These items were neither identified nor addressed in the Plaintiff's Submissions in Respect to Application Dated 7 July 2002. Oral submissions were however made by Mr Duckham on behalf of the plaintiff at the hearing on 12 October 2022. The error of principle allegedly made by the learned deputy registrar was the same as the second contention raised with respect to item 2 of the defendant's bill of costs, namely that PD 4.7.1.1 should have been applied and the costs allowed limited to the amount of $495. The plaintiff submits that this item is covered by item 1.2 of PD 4.7.1.1.
For the reasons set out above at [96] to [97] in relation to item 2 of the defendant's bill of costs, I am not satisfied that PD 4.7.1.1 applies to a District Court taxation of costs. Furthermore, even if it does apply, it was open to the deputy registrar to allow more than the scale item in circumstances where the defendant has identified reasonable work that exceeded the amount set out in the scale item.
No error of principle has been demonstrated in relation to items 5, 6 and 7 of the defendant's bill of costs.
Fourth alleged error in principle: Items 9 and 12 of defendant's bill of costs
Item 9 of the defendant's bill of costs was a claim for the costs of giving discovery of documents (5 hours) in the amount of $2,200.00, of which $1,500 was allowed. Item 12, which relates to the costs of preparing for and attending a pre-trial conference (6.7 hours SP), was a claim for $2,948 pursuant to the defendant's original bill of costs. Deputy Registrar Harman taxed off $968 of this amount.
Despite the contentions contained in the plaintiff's objections to costs submitted on 4 May 2022, namely that an allowance of $495 was appropriate for each of items 9 and 12, it appears that the plaintiff now submits that no amount should be allowed at all for either item.[55] The plaintiff submits that, based upon Mulley v Manifold,[56] that whilst a large number of documents were discovered, only about one page was relevant.[57]
[55] Plaintiff's submissions in respect to application, dated 7 July 2022, pages 5 and 6.
[56] Mulley v Manifold [7].
[57] ts 12, Mr Duckham's oral submissions, 12 October 2022.
The defendant submits that the plaintiff is now, in effect, inviting the court to ignore the order for costs made on 27 October 2021 so far as it related to the costs incurred by the defendant in connection with discovery and the pre-trial conference held on 22 March 2021. The defendant notes that the order was made generally for costs (which were to be taxed if not agreed) and was not an order for fixed costs. Consequently, when Deputy Registrar Harman came to consider the issue of costs in the taxation, he was taxing the bill of costs pursuant to O 66 of the RSC.
I accept that allowing costs for discovery where what was discovered was irrelevant may, in an appropriate case, amount to an error of principle. However, in the circumstances of this case I accept the defendant's submission in relation to items 9 and 12, namely that the plaintiff now essentially seeks to re-litigate the order for costs made by Deputy Registrar Harman in 2021. This application does not enliven such a process.
The plaintiff has failed to demonstrate any error of principle in relation to items 9 and 12 of the defendant's bill of costs.
Fifth alleged error of principle: Items 11 and 13 of defendant's bill of costs
Items 11 and 13 each related to the defendant preparing a further amended defence. Costs in an amount of $451 (1 hour C) and $4,400 (10 hours SP) were sought respectively in relation to these items. As already noted, the question of costs was considered by Deputy Registrar Harman at a special appointment on 27 October 2021. The plaintiff filed written submissions in advance of that hearing. It was the plaintiff's contention then that the defendant should pay the plaintiff's costs. In the alternative, that there be no order for costs.[58]
[58] Plaintiff's outline of submissions on costs, dated 25 October 2021, pars 2 and 3.
The plaintiff submitted then, and now again submits, that the defendant should not be entitled to costs because it had not pleaded the defence that ultimately caused the plaintiff to discontinue its action until April 2021. Obviously, Deputy Registrar Harman was aware of the issue raised by the plaintiff but nonetheless made an order that the plaintiff pay the defendant's costs. Subsequent to the orders made on 27 October 2021, in the period between 31 January 2022 and 27 April 2022, there were various hearings relating to the taxation of these bills of costs. The plaintiff also filed an affidavit sworn by Mr Duckham on 20 April 2022. Deputy Registrar Harman completed the taxation of both bills on 27 April 2022.
In the plaintiff's objections to costs filed on 4 May 2022, these issues were again raised. Notably, in that document the plaintiff suggested that an amount of $990 for two hours work was sufficient. That contention would, standing alone, amount to merely quantum, not an error of principle.
The defendant submits that Deputy Registrar Harman correctly applied the orders made on 27 October 2021 to the work the subject of items 11 and 13 of the defendant's bill of costs. Additionally, the defendant submits that this issue is also an attempt to re-litigate matters canvassed before the learned deputy registrar on 27 October 2021. That submission is well made in light of the materials and submissions that were before Deputy Registrar Harman both at the time the orders for costs were made on 27 October 2021 and the subsequent hearing on the taxation of the bills of costs. If the plaintiff did not agree with the order for costs against the plaintiff, the remedy was to appeal against those orders.
The defendant has failed to demonstrate an error of principle in relation to either item 11 or 13.
Sixth alleged error in principle: Item 14 of the defendant's bill of costs
Item 14 relates to the defendant's claim for costs for work done in relation to a listing conference on 17 May 2021, including preparation and conferral with the plaintiff (4 hours SP). The amount claimed was $1,760. Deputy Registrar Harman allowed $880.
The plaintiff submits that if costs were payable to the defendant, Deputy Registrar Harman should have applied PD 4.7.1.1 which at item 1.3 allows for $643. Notably, despite PD 4.7.1.1, the plaintiff's objections to costs dated 4 May 2022 submitted that $495 was the appropriate amount. The plaintiff submits that Deputy Registrar Harman's failure to apply PD 4.7.1.1 amounts to an error in principle.
The defendant, in its written submission dated 11 October 2022, sets out the relevant history of orders as to costs made by Deputy Registrar Harman on 17 May 2021 and subsequently. This includes:
Orders made by Deputy Registrar Kingsley on 17 May 2021 in relation to the listing conference heard that day, namely:
1.the listing conference be adjourned to 14 June 2021 at 10.15am.
2.the costs of the listing conference be in the cause.
Consent Orders made on 11 June 2021, namely:
The listing conference listed for 14 June 2021 be vacated and re-listed for the first available date after 30 June 2021
Orders made by Deputy Registrar Kingsley on 12 July 2021 in relation to the listing conference heard that day, namely:
1.there be leave to discontinue the proceedings;
2.the action be discontinued save as to costs;
3.the issue of costs on the discontinuance be adjourned to a special appointment on 18 August 2021 at 11.00am.
4.the plaintiff and defendant to file and serve on or before 11 August 2021;
(i)a minute of proposed orders.
(ii)submissions on the issue of costs; and
(iii)any affidavit in relation to the issue of costs.
5.on the listing conference there be no order as to costs.
As noted by the defendant, the costs of the listing conference on 17 May 2021 were ordered to be costs in the cause. The orders made on 12 July 2021 that there be no costs in relation to the listing conference clearly related the proceedings that day.
No error in principle was made by Deputy Registrar Harman for a number of reasons. First, I am not satisfied that PD 4.7.1.1 applies to the District Court for reasons already set out at [96] to [97] above.
Secondly, the amount in dispute, based upon a comparison between item 1.3 of PD 4.7.1.1 and that allowed by Deputy Registrar Harman is $237. I adopt what was said by Ipp J in Mossensons (A firm) v Coastline Associates, namely where a very small amount is in issue, this fact 'militates strongly against any intervention on the part of [a] Court'.
Thirdly, the plaintiff's submission based upon Deputy Registrar Harman's order that there be 'no order as to costs' is misconceived. That order only related to the listing conference on 12 July 2021. The work the subject of costs sought by the defendant related to work between 22 April 2021 and 17 May 2021 (item 14).
Fourthly, the balance of issues raised go only to quantum.
Seventh alleged error in principle: Item 16 of the defendant's bill of costs
Item 16 relates to costs claimed by the defendant in relation to work performed by an instructing solicitor (8 hours SP) and counsel (5 hours) in the period between 14 October 2021 and 27 October 2021, being for preparing and attending a special appointment on 27 October 2021, including preparing written outline of submissions, a minute of proposed orders and the preparation of an affidavit in support. The amount of costs claimed by the defendant and allowed by Deputy Registrar Harman was $5,775.00.
The plaintiff again contends that Deputy Registrar Harman erred in principle by failing to apply PD 4.7.1.1. The plaintiff's objections to costs filed on 4 May 2022 suggested that an allowance of two hours at $1,114.00 was the appropriate amount.
The defendant submits that the issues raised by the plaintiff go only to quantum, and in the absence of anything exceptional,[59] the decision of the taxing officer is final.
[59] Forbes v Frigger [2009] WASC 77 [38].
No error in principle has been demonstrated in relation to items 16 for the following reasons. First, again for the reasons set out at [96] to [97], I am not satisfied that PD 4.7.1.1 applies to this matter.
Secondly, the complaint made is, properly understood, a complaint about the quantum, not an error of principle.
Conclusion in relation to the plaintiff's application for review of a taxation by a judge: Order 66 rule 55 of the Rules of the Supreme Court
Having reviewed each issue and item identified by the plaintiff, I am not satisfied that, even if Deputy Registrar Harman failed to consider the plaintiff's objections to costs filed on 4 May 2022, there is any merit to any of the contentions raised by the plaintiff. Consequently, I am not satisfied that anything raised by the plaintiff requires this court to rectify any amount of costs ordered to be paid pursuant to the bills of costs certified by Deputy Registrar Harman on 27 May 2022 in these proceedings.
The plaintiff's application for an order suspending the order in relation to the costs ordered to be paid by the plaintiff to the defendant pursuant to the Deputy Registrar's orders made on 27 October 2021
Pursuant to the chambers summons, the plaintiff applies for a suspension 'in respect to the costs ordered in favour Defendant pursuant to Order made 27th October 2021 pending the later of the outcome of Supreme Court proceedings CIV 1844 of 2021 and LPA 11 of 2022 [sic]'.
In this case, Deputy Registrar Harman did not identify the actual costs to be paid until he certified them on 27 May 2022. Consequently, the judgment sought to be suspended in this case is in fact the certified costs orders. Despite the wording of the plaintiff's application, properly understood, the plaintiff applies for an order suspending enforcement of the certificates of costs certified by Deputy Registrar Harman on 27 May 2022 following his order on 27 October 2021 that the plaintiff pay the defendant's costs of the action.[60]
[60] See Russell v Lee Holdings Pty Ltd [No 2] [2020] WASC 257 [20] (Martin J).
Furthermore, despite the erroneous reference to LPA 11 of 2022, I will proceed on the basis that the suspension order sought by the plaintiff in this action is until the later of the outcome of Supreme Court proceedings CIV 1844 of 2021 and LPA 16 of 2021 (not LPA 11 of 2022 as stipulated in the plaintiff's chamber summons filed 11 July 2022).
The defendant concedes that this court has jurisdiction, under s 15 of the Civil Judgments Enforcement Act 2004 (WA) (CJEA), to grant a suspension order in respect to the enforcement of a judgment for costs.[61] That concession is properly made. There is no doubt that the power to stay a judgment includes a monetary judgment.[62]
[61] Defendant's outline of submissions, pars 49 and 59(a).
[62] Section 3 defines the term 'judgment' as meaning and including 'monetary judgment'. See Russell v Lee Holdings Pty Ltd [No 2] [2020] WASC 257 [19] - [20] (Martin J).
The relevant parts are s 15 of the CJEA are as follows:
(1)A person against whom a judgment is given may apply for an order suspending enforcement of all or part of the judgment to -
(a)the court that gave the judgement; or
(b)a court that is dealing with an appeal against the judgment.
(2)…
(3)On such an application, the court may only make such an order if there are special circumstances that justify doing so.
The power to stay a judgment can only be exercised by the court if there are 'special circumstances' justifying such an order (s 15(3)). The defendant opposes the application and submits that there are no special circumstances justifying the order in this case.
In Russell v Lee Holdings Pty Ltd [No 2], Martin J, with reference to other cases including State Bank of Victoria v Parry[63] and Malcolm CJ's observations in New Resource Holdings Pty Ltd v Lunt [No 3][64] set out factors relevant to the exercise of a court's discretion in deciding whether there are special circumstances justifying a stay. Those factors relevantly include:
[63] State Bank of Victoria v Parry (1989) WAR 240.
[64] New Resource Holdings Pty Ltd v Lunt [No 3] [2008] WASC 221.
(a)the nature of the plaintiff's claim, in particular whether it displays a characteristic such that it may be of class where a stay of enforcement of a judgment would rarely be granted;
(b)the extent of the identity between the parties;
(c)the interrelationship of the respective claims;
(d)the strength of the pending claim;
(e)the size of the pending claim relative to the costs judgment;
(f)the likely delay before the merits of the pending claim will be adjudicated;
(g)any prejudice to the holders of the costs judgment if they were denied the fruits of their costs judgment until resolution of the [outstanding proceedings].
(h)any risk of prejudice [to the party seeking the stay] if they were required to render payment of the costs prior to the ultimate determination of [any pending proceedings].
The evidence relied upon by the plaintiff in support of the stay application
The plaintiff relies upon the evidence contained in the affidavits of:
(a)Bruce William Duckham sworn on 4 August 2022.
(b)Anthony Paul Stewart sworn 21 September 2022
(c)Bruce William Duckham sworn on 12 October 2022.
There is no dispute that the parties to this action are the same parties to LPA 16 of 2021 and CIV 1844 of 2021.
In his affidavit sworn on 4 August 2022, read together with the submissions made orally by Mr Duckham on 12 October 2022 and the written submission filed by the plaintiff on 6 October 2022, Mr Duckham sets out why he submits there are special circumstances justifying a stay, including:
(a)Some of the history of the action and LPA 16 of 2021.
(b)That the defendant had a history of failing to pay fees and disbursements due to the plaintiff on time.[65]
[65] Affidavit of Bruce William Duckham, sworn on 4 August 2022, par 21(a).
(c)That the proceedings brought by the plaintiff in LPA 16 of 2021 are 'eminently sustainable'.[66]
[66] Affidavit of Bruce William Duckham, sworn on 4 August 2022, par 21(c).
(d)That the defendant's conduct in ceasing to instruct the plaintiff has reduced the plaintiff's capacity to meet the order for costs made against it in favour of the defendant.[67]
[67] Affidavit of Bruce William Duckham, sworn on 4 August 2022, par 21(f).
(e)The issues at the heart of LPA 16 of 2021 are inextricably linked to the issues in the action.
(f)The pending claim in LPA 16 of 2021 is for costs in the sum of $120,918.30, whereas the order for costs the subject of the application for a suspension order is $29,293.00.
(g)That the defendant has not demonstrated that there is any real delay in relation to the outstanding matters.
(h)That there has been no evidence of any prejudice to the defendant if it could not enforce the order for costs against the plaintiff.
(i)That if the plaintiff has a negative cash flow (as of September 2022 based on the affidavit of Mr Stewart) and if it succeeded in one or both of the outstanding matters that would be of substantial benefit to the plaintiff.[68]
[68] Plaintiff's submissions, dated 12 October 2022, page 3, par 4(h).
In Mr Stewart's affidavit sworn on 21 September 2022, he says that 'the only activities carried out by Dusol Pty Ltd at present comprise of debt collection for outstanding difficult accounts'[69] and that 'Dusol Pty Ltd had a taxable loss in the years ending 30 June 2020 (‑$5,208.00) and 30 June 2021 (-$49,606.00)'.[70]
[69] Affidavit of Anthony Paul Stewart, sworn 21 September 2021, par 4.
[70] Affidavit of Anthony Paul Stewart, sworn 21 September 2021, par 4.
As noted above, during the hearing on 12 October 2022, the plaintiff sought leave to tender the further affidavit sworn by Mr Duckham on 12 October 2022. It was purportedly prepared in response to issues raised by the defendant about Mr Stewart's affidavit in its written submissions.
It was sworn by Mr Duckham in support of the plaintiff's application (see par 5) seeking a suspension order be made with respect to the costs ordered to be paid by the plaintiff in favour of the defendant pending the later of the outcome of Supreme Court proceedings CIV 1844 of 2021 and LPA 11 of 2022 (as already noted this should refer to LPA 16 of 2021).
According to Mr Duckham, this affidavit is relevant to issues raised by the defendant to the effect that the affidavit of Mr Stewart, relied upon by the plaintiff in support of the application to amend the name of the plaintiff (albeit that the affidavit on its face purports to have been filed in support of the plaintiff's application for an order suspending judgment[71]), was deficient. The relevant parts of the affidavit (pars 2 to 4) are reproduced in full:
[71] See affidavit of Anthony Paul Stewart, sworn 21 September 2021, par 5.
2.Further I say the company accountant Mr A.P. Stewart has and continues to have access to all records of Dusol Pty Ltd and that he is orally updated as to corporate matters by myself and by office assistant Victoria Hallam, by and with my direction and consent.
3.There is annexed hereto and marked 'A' a copy of the latest balance sheet for Dusol Pty Ltd prepared by Mr a. p. Stewart. The same was incorporated in the final accounts of Dusol Pty Ltd for the year ending 30th June 2021 and as I recall signed and lodged with the ATO.
4.I omitted to previously inform the Court that the firm BW Duckham & Co ceased trading on 31/5/22 and say that such business name has been deregistered.
At all times Mr Stewart was my accountant or the company accountant.
The balance sheet attached to the affidavit and marked 'A' showed that Dusol Pty Ltd had a total equity of -$117,901 as of June 2021.
The defendant essentially objected to the affidavit on the basis that it contained inadmissible evidence. The defendant submits that par 2, in essence, asserts what was in Mr Stewart's mind and the extent of his knowledge. Furthermore, the defendant submits that if there were any deficiencies in Mr Stewart's earlier affidavit, which the defendant asserted there were, then the remedy was for Mr Stewart to swear an affidavit to rectify those deficiencies.
The defendant also submits that the bare balance sheet attached to the affidavit did not support any contention that might be made by the plaintiff that if it were ordered to pay the judgment sum, it would be unable to do so.
Clearly par 2 of the affidavit, to the extent that it purports to set out what was known to Mr Stewart about the plaintiff's business affairs, is not admissible. In any event, par 2 says no more than that Mr Stewart has access to the plaintiff's records and is told things about the plaintiff regularly. What records Mr Stewart actually considered in forming any views expressed by him in his affidavit are not identified. Nor is there any real explanation for the views that he forms. For those reasons alone it is inadmissible or at best carries little weight.
The balance of the affidavit carries little if any weight in relation to any of the issues raised by the plaintiff.
The defendant's submissions opposing a stay
The defendant disputes the plaintiff's contention that there is a strong interrelationship between the respective claims involving the parties which favours a stay. The defendant submits that irrespective of the outcome of the outstanding proceedings involving the parties, it will not disturb the orders for costs made by Deputy Registrar Harman on 27 October 2021.
The defendant also relies upon the following contentions:
(a)It is not possible, in the absence of further materials, for this court to determine the strength of the plaintiff's pending claims or defence in the outstanding matters.
(b)CIV 1844 of 2021 is still in its early stage of the proceedings and therefore there is likely to be further delay, perhaps of several years.[72]
[72] Defendant's submissions, dated 12 October 2022, par 59(f).
(c)The defendant will suffer an obvious prejudice if the payment of its costs in the sum of $29,943.48 is delayed for years.
(d)Mr Stewart's affidavit provided little or no admissible evidence as to the plaintiff's financial position.[73]
[73] See objections to the affidavit set out at defendant's submissions, dated 12 October 2022, page 19, par 59.
Determination of the merits of the plaintiff's application for a stay
There is no doubt that the parties to the action are the same parties to the outstanding matters.
I am also satisfied that the issues the subject of all relevant proceedings are interrelated.
However, on the available evidence and information it is almost impossible for this court to properly assess the strengths of the pending claims made by the respective parties in the outstanding proceedings.
Furthermore, it is also difficult to assess the likely further delay that may arise before the resolution of those other outstanding matters. On the other hand, there is no evidence before this court that the outstanding proceedings will be dealt with expeditiously. In those circumstances, I note that the order for costs in favour of the defendant was made on 27 October 2021 and the certificate of costs signed by Deputy Registrar Harman on 22 May 2022. Thus, approximately a year and a half has passed since the costs order was made and nearly 11 months has passed since the costs were certified by Deputy Registrar Harman. Consequently, the defendant has already been prejudiced by the delay to date. Any further delay will add to that prejudice.
As to the prejudice to the plaintiff, it is difficult to understand how some of the issues raised by Mr Duckham could properly be taken into account. In particular, the assertion that the defendant had in the past been tardy in paying the plaintiff cannot sensibly be raised as an argument as to why a court order should be stayed.
Nor is the fact that the plaintiff currently has a limited ability to pay the costs (if the evidence of Mr Duckham and Mr Stewart set out in their affidavits were accepted in full) justification for a stay of the enforcement of the costs certificate where there is no evidence before this court, save for an assertion that it is likely to succeed in the outstanding proceedings, that it will in the future be in a position to pay the costs. Consequently, there is currently no evidence before this court that the plaintiff's position will be different to the position it is in now.
Irrespective of the outcome of the outstanding proceedings between the parties, the order for costs stands alone and will not be disturbed by those proceedings.
I am not satisfied that the plaintiff has demonstrated that there are special circumstances justifying a stay.
Orders
Each of the applications brought by the plaintiff pursuant to the chamber summons dated 7 July 2022 and filed on 11 July 2022 is dismissed.
I will hear the parties further in relation to the question of the costs associated with these applications.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DF
Associate to Judge Levy
5 APRIL 2023
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