Evans v Pallet - [2004] WADC 200

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: EVANS -v- PALLET [2004] WADC 200

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: NOT APPLICABLE

DELIVERED : 30 SEPTEMBER 2004

FILE NO/S: CIV 1517 of 2003

BETWEEN: LEON EVANS
Plaintiff
AND
KEITH PALLET
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation under an order for the costs of trial thrown away as a result of adjournment - Sufficiency of objections - Availability of jurisdiction to review as to quantum

Legislation:

Nil

Result:

Objections not sustained

Representation:

Counsel:

Plaintiff: No appearance
Defendant: No appearance

Solicitors:

Plaintiff: Ilberys
Defendant: Talbot & Olivier

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff obtained an order for the costs of the adjournment of the trial and for costs thrown away as a result of the adjournment. As there was no reason to consider that the scope for recovery was intended to be any greater than that available under the usual order for costs, in taxing that part of the plaintiff's bill for the costs thrown away it was appropriate to consider that recovery be limited to what was reasonable for the services necessarily provided to him that had been wasted as a result of the adjournment. The bill was taxed accordingly and the plaintiff has now lodged objections to determinations made in the course of taxation.
The first determination to which objection is taken was that made in relation to the extent of recovery under the claim for the listing conference. The ground of objection is that the claim made for preparation for the conference was disallowed. Although no such claim was expressed in the bill it would have emerged at the point of assessing quantum as unlike the preponderance of items in the scale, the measure of recovery under item 24 is expressed on the basis of time actually spent in the delivery of the relevant service.
The context in which the service was provided was one where the registrar conducting the process would expect that a practitioner would have a good grasp of the issues to be determined at trial, the plaintiff's readiness for trial and the availability of witnesses and counsel. In assessing the extent of recovery under the item it was appropriate to consider that at that point in the litigation the solicitor with the conduct of the action would be sufficiently familiar with the case that preparation would not have been necessary. There is no reason to consider that as a matter of principle, because the court had moved from listing for trial at pre-trial conference to a listing conference or had previously moved from listing at call over to listing at pre-trial conference, such preparation should be considered other than as "getting up case for trial". Any preparation undertaken would be indistinguishable from "getting up case for trial". Because costs orders usually provide for limited recovery taxing officers will always be alert to the prospect of double recovery.
In my opinion in disallowing the part of the item represented by preparation for the conference there was no error in principle. To allow such a part would have amounted to an error in principle.
The next objection relates to the determination made in relation to "getting up case for trial". The grounds of objection are expressed as follows:
"(a)The taxing officer erred in principle in not making any or any adequate provision in determining an allowance for getting up costs thrown away for the time spent in:
(i)obtaining and considering medical reports;
(ii)preparing for the listing conference on 23 February 2004;
(iii)briefing counsel;
(iv)contacting and scheduling witnesses for the trial listed for 19 April 2004 and securing the attendance of witnesses at the trial;
(v)considering the defendant's medical reports and analysing the differences between the medical opinions expressed by the plaintiff's experts and the defendant's experts.
(b)The taxing officer further erred in principle in finding that it was conceivable that the plaintiff's solicitor would not have to refresh his memory at all in preparing for the new trial dates in August 2004."
Under r 53 the plaintiff is entitled to seek a review of taxation in relation to a contended error in principle in the allowance or disallowance of any item or part of an item in a bill of costs but otherwise the rule is silent. It is for the plaintiff to bring himself within the terms of the rule. That part of the objection that expresses inadequate provision could only be a reference to the determination as to quantum. There is no jurisdiction to review contended allegations of error made in relation to the assessment of quantum. I understand that some judges have found scope for conducting review on a finding of error as to quantum, however, as r 53 does not provide such jurisdiction to a taxing officer, it is inappropriate for a taxing officer to conjure jurisdiction. In those cases that jurisdiction has been found it is my understanding that the test of error is that no taxing officer acting reasonably could have reached the determination the subject of objection. No such contention is made in this case.
To the extent that under par (a) reference is made to the failure to make any allowance for the specified items, there is nothing to identify the relevant medical reports for the purposes of pars (i) and (v). Those parts of the ground do not provide any basis for appreciating that the activity associated with the tasks that they comprehend would fall within the scope of the order. A similar observation may be made in relation to par (iii).
As to par (ii), the fact that the trial was adjourned does not establish that the whole of the costs associated with preparation would have been wasted. The extent to which the plaintiff would contend that there was no recovery for preparation is not articulated.
As to par (iv), I have no doubt that the defendant would have accepted that the fact that the trial was adjourned determined that the costs of communication relating to availability of counsel and witnesses and the recording of information gleaned from that process had been thrown away.
It follows that at pars (ii) and (iv) the allegation of error may be more along the lines that inadequate provision was made for those parts of the item; that allegation goes to quantum.
As to ground (b), at the time that the bill was taxed the trial had not been concluded. Any party who seeks to tax costs thrown away prior to the point at which a definitive assessment could be made as to whether costs have indeed been wasted takes the risk that the assessment made may be characterised as conservative. That point was made at the taxation. None the less the plaintiff sought to satisfy me that the solicitor would have to refresh his memory in preparing for trial in August 2004. He did not achieve that result. No allegation of error is made out on the objection.
The next objection relates to the claim for counsel's fee. The grounds of objection are as follows:
"The taxing officer erred in principle only making an allowance for counsel's services on 19 April 2004 as a consequence of his view that he could not conceive that any particular work done by counsel was rendered of no utility because of the adjournment. This view included a finding that counsel would not have to refresh himself at all in the circumstances of this case where the trial was re‑listed four months after the adjournment."
At taxation other than to the extent that recovery was made the plaintiff failed to discharge the onus. In my opinion no particular facet of the work undertaken by counsel has been sufficiently identified for the purposes of establishing error for the purposes of r 53. The objection is insufficient for the purposes of r 53.
The last item in the notice refers to the disallowance of each of 5 claims for recovery of the cost of medical reports. The grounds of objection are as follows:
"The taxing officer erred in principle in making no allowance for the disbursements on the basis that they did not form part of the costs thrown away by reason of the adjournment of the trial, whereas these were incurred as a consequence of the amendment which led to the adjournment of the trial."
Perhaps I would not have chosen exactly that form of expression to justify the determination made but the basis of the determinations and the finding expressed by the plaintiff so closely approximate my views that there is little value in commenting further.