| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : FEAVER -v- CAMM & ASSOCIATES [2010] WADC 85 CORAM : STAUDE DCJ HEARD : 26 MAY 2010 DELIVERED : 11 JUNE 2010 FILE NO/S : LPA 3 of 2007 BETWEEN : ANTHEA DAPHNE FEAVER Applicant
AND
CAMM & ASSOCIATES
Respondent
Catchwords: Costs - Review of taxation of practitioner - Client costs - Legal Practice Act 2003 - Refusal of taxing officer to allow amendment of bill of costs after taxation completed - Discretionary consideration - Whether impossible to tax amended bill without recommencing taxation - Whether interest in finality sufficient to prevent amendment - Turns on own facts Legislation: District Court Rules 2005
Legal Practice Act 2003
Motor Vehicle (Third Party Insurance) Act 1943
Rules of the Supreme Court 1971
(Page 2)
Result: Review granted
Amendment allowed Representation: Counsel:
Applicant : Mr S V Forbes
Respondent : Mr D J Garnsworthy
Solicitors:
Applicant : Stewart Forbes
Respondent : Camm & Associates
Case(s) referred to in judgment(s):
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Feaver & Ors v Smith [2008] WADC 72
House v The King (1936) 55 CLR 499
In re; Blyth & Fanshawe, Ex parte Wells (1882) 10 QBD 207
Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1
(Page 3)
Introduction 1 This matter came before me as an application for a review of the taxation of the practitioner's bill of costs by Deputy Registrar Hewitt on 22 and 27 April 2010 pursuant to Div 3 of the Legal Practice Act 2003 ("LPA 2003"). Procedurally, and in substance, the matter is unusual and complicated. 2 The circumstances giving rise to the application are that after taxing the bill of costs on 22 April 2010, the learned taxing officer adjourned the appointment for taxation to 27 April 2010 and directed that any objections be brought in by that date. No objections were lodged, but when the taxation resumed the practitioner applied to amend the bill of costs to include as further items of disbursement the fees of two counsel, Counsel A and Counsel B (for present purposes), to the extent that their fees were not recovered on a party/party basis. 3 The application to amend was refused and the learned taxing officer signed a certificate pursuant to s 240 of the LPA 2003 for the amount of the costs allowed and a further certificate pursuant to s 243 for an amount which represented the overpayment of costs by the client. 4 The learned taxing officer on 29 April 2010 published reasons for decision in which he concluded that the practitioner's application to amend the bill of costs should be refused. His reasons were as follows: (Page 4)
5 The document referred to by the learned taxing officer was headed "Table of Counsel Fees". It set out, with respect to each counsel, the total amount of their fees reduced by, in the case of Counsel A who rendered a lump sum bill, amounts which had been allowed or were allowable as party/party costs, and in the case of Counsel B who rendered a time-based bill, various periods of time representing work done by him the cost of which was allowable on a party/party basis.
Nature of the application 6 Following the taxing officer's decision the practitioner filed and served a notice of appeal dated 10 May 2010 pursuant to r 15(1) of the District Court Rules 2005 which provides that if a party is dissatisfied with a decision of a Registrar the party may appeal to a Judge. On a directions hearing on 19 May 2010 the learned Principal Registrar ordered that the appeal stand as an application for review of taxation. 7 There is a significant difference between an appeal from a Registrar's decision pursuant to r 15, which is by way of a new hearing of the matter, and an application for review of taxation. Section 242(1) of the LPA 2003 allows for a review of taxation in accordance with the rules of court. Order 66 r 55 of the Rules of the Supreme Court 1971 provides: "(1) If a party is dissatisfied with the certificate of the Taxing Officer as to any item or part of an item objected to under Rule 53 of this order, you may, within 14 days from the date of the certificate, or such other time as the court, or the Taxing Officer at the time he signs his certificate, allows, apply to a Judge in chambers for an order to review the taxation as to that item or part of an item. (2) The Judge, if of opinion that the Taxing Officer has made an error in principle, may thereupon make such order to rectify the error as the Judge thinks just. (3) The certificate of the Taxing Officer is final and conclusive as to all matters which have not been objected to in accordance with these rules." 8 The practitioner has not challenged the learned Principal Registrar's order. No other procedural objection has been taken. I therefore propose to deal with the matter on the basis that O 66 r 55 applies and that in order to succeed the practitioner must demonstrate an error of principle which (Page 5)
vitiates the exercise of the learned taxing officer's discretion to refuse the practitioner's application to amend the bill of costs. 9 Although s 237 permits a legal practitioner to serve an amended bill of costs within one month of being served with a notice of intention to tax, the amendment in question appears to have been sought pursuant to O 21 r 7(1) of the Rules of the Supreme Court which provides: "For the purpose of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in the proceedings, the Court may at any stage of the proceedings on the application of any party to the proceedings order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct." 10 As I read them, the learned taxing officer's reasons for deciding against the practitioner were, in summary, that it was not practicable to tax the respective fees of counsel on the information presented, and it was not reasonable to allow late amendment of the bill, the taxation having been effectively completed.
Factual background 11 Although it was submitted on behalf of counsel for the practitioner that it was unnecessary to have regard to the long history of this matter in order to determine the application, in my opinion, it would be impossible to do justice to the application without the benefit of a thorough analysis of the procedural chronology which obviously informed, to some extent, the taxing officer's decision. 12 The client engaged the practitioner to act on her behalf in an action for damages pursuant to the Fatal Accidents Act 1959 arising from the death of her husband on 2 July 1998. A writ was issued in this Court on 24 June 1999 but the client did not engage the practitioner until 2000. The claim was complex. A number of financial and accounting experts (to whom I will refer as consultants) were engaged to provide expert evidence. The action was settled in 2005 for an amount in the order of $2 million plus costs and the settlement was duly approved, leave to compromise being required with respect to the interests of the plaintiff's children. After payment of all fees and disbursements charged by the practitioner, but before party/party costs were recovered, the plaintiff requested the practitioner to tax its costs pursuant to s 232 of the LPA 2003. (Page 6)
13 The matter came before Registrar Johnston in the Supreme Court on 6 September 2006, 9 October 2006 and 26 October 2006. On the last occasion the learned Registrar ruled that the practitioner's costs agreement was void and directed that the practitioner serve a bill of costs for taxation by 23 November 2006. Costs were ordered in favour of the client. 14 I was informed by Mr Garnsworthy for the practitioner that the costs agreement was declared void on the grounds that it contravened s 27A of the Motor Vehicle (Third Party Insurance) Act 1943 ("the MVA"). This provision prohibits a practitioner who acts for a person in an action to which it applies from agreeing to receive any greater reward than is provided for by the Supreme Court Scale. Section 27A(3) provides that an agreement made contrary to s 27A is void and that any money paid under the agreement is recoverable by the person who has paid it. It is evident from the materials and submissions provided to me that the client has not sought to recover the costs paid to the practitioner on this basis. 15 Subsequent delay on the part of the practitioner resulted in the client commencing proceedings for contempt. The application was listed before Templeman J on 19 February 2007, but six days prior to that date the practitioner served a draft bill of costs. That bill included counsel fees in full. In the result the client's contempt application was dismissed, but the practitioner was ordered to pay the client's costs. 16 It appears that the practitioner then made some endeavour to resolve the matter informally, but no progress was made in this regard and eventually the client lodged the bill of costs for taxation on 6 June 2007. On 25 July 2007 a consent order was made remitting the bill of costs to the District Court for taxation. 17 When the matter came before this Court on 27 August 2007 the taxation of costs was adjourned to allow the practitioner to apply for special orders for costs against the defendant in the Fatal Accidents Act action pursuant to s 215 of the LPA 2003. The application was heard by Schoombee DCJ on 7 April 2008 and a decision dismissing the application was made on 27 May 2008: Feaver & Ors v Smith [2008] WADC 72. Mr Garnsworthy conceded that this application was made entirely in the practitioner's interests to maximise the party/party costs recovery and thereby reduce the differential between the charged costs and those recoverable against the defendant. No application for a special costs order was made by the practitioner against the client. (Page 7)
18 The practitioner appealed from the dismissal of the application, but the appeal was eventually discontinued and an agreement was subsequently reached between the practitioner and the defendant in the original action to fix the costs of the action at $85,000 inclusive of disbursements. This sum was net of an agreed reduction of $5,000 for costs owed to the defendant in respect of the application and the appeal, for which, I was informed, the practitioner indemnified the client. 19 No evidence has been adduced of the bill of costs submitted to the defendant on behalf of the client showing what was claimed on her behalf, or of any break-up of the agreed sum indicating how it was comprised in terms of scale item allowances and disbursements. Nor was there any evidence of any issue taken by the defendant as to the recoverability on a party/party basis of any claimed fees or disbursements. This struck me as an extraordinary feature of the case having regard to the existing controversy over the practitioner/client costs. 20 For this reason I queried with counsel whether the client gave instructions with respect to the settlement of the party/party costs. Their responses revealed an issue of fact as to whether, and if so, to what extent, the client was advised, and her instructions sought, in this regard. From my point of view, I could not see how the party/party costs could have been settled unless the client was advised as to how much could be expected to be allowed on taxation so as to be able to give consideration to any offer of compromise by the defendant and provide informed instructions. 21 According to Mr Forbes, he was not informed of the settlement until it had been made. Mr Garnsworthy, however, understood that Mr Forbes had been consulted. I was not shown any correspondence. In the circumstances I am not in a position to resolve that issue. It is uncontroversial, however, that the settlement of the party/party costs did not involve an express agreement as to the quantum of the various scale items and disbursements claimed on behalf of the client. It is therefore impossible to know precisely how the lump sum was comprised. Obviously, that gives rise to a major difficulty in determining to what extent the practitioner should be allowed costs over and above party/party costs. 22 Eventually, the matter came before the taxing officer for directions in relation to the taxation. On 11 February 2010 the practitioner was ordered to file and serve an amended bill of costs for taxation within 14 days and to produce his files to the court within 21 days. The practitioner was also (Page 8)
ordered to file a schedule supporting the items claimed in the bill within 14 days. The matter was listed for taxation on 22 and 27 April 2010.
The taxation of the practitioner's bill of costs 23 An amended bill of costs, dated 12 February 2010 but stamped as being filed on 4 March 2010, was served. The amended bill did not show any marked-up amendments to the original bill of costs as filed in the Supreme Court. Rather it was a substituted bill of costs itemised by reference to the Supreme Court Scale. It also detailed disbursements which included court filing fees, consultants' fees and two items of counsel fees unrelated to the items now sought to be included. The bill was for professional fees of $66,677.90 and disbursements of $52,094.94, total $118,772.84. 24 It is clear from the form of the bill that it covers all of the costs of the action, including those that were subsumed by the agreement as to party/party costs. Although there was no specific reference to item 13A of the 1999 and 2002 Scales or item 32 of the 2004 Scale, which apply to work reasonably done by a practitioner (or clerk or paralegal) which is not covered by any other item, there was a claim for $14,735.47 for "costs as between lawyer/client". 25 All of the items claimed in the bill were disallowed, except for item 11 (defendant's chamber summons for answers to interrogatories) allowed at $800 ($1,174.50 taxed off) and item 30 (practitioner/client costs) allowed at $4,981 ($10,644.47 taxed off). The bill was therefore allowed in the amount of $4,891. This amount was reduced by $3,000 upon an application for costs being made on behalf of the client as a consequence of a Calderbank offer. The taxing officer's s 240 certificate was for $1,891. 26 I understand that the learned taxing officer took the view that no allowance should be made in respect of any items which were compensable as party/party costs. This view, unchallenged by the practitioner, is supported by the dictum of Ipp J in Collins v Westralian Sands Ltd (1993) 9 WAR 56 at 64 that where no costs agreement applies, "there should be no difference between the items and amounts allowed under a party and party bill of costs and those under a solicitor and client bill of costs". That statement was made in a matter involving a taxation of costs on the basis of the scale contained in the Fourth Schedule of the Rules of the Supreme Court which contained no equivalent to items 13A and 32 to which I have referred above. Its application to a case in which there is a large component of fees (Page 9)
claimed for the out-sourced professional services of experts and counsel which are not covered by Scale items is another question, but it does not arise in this case. Nevertheless, it is noteworthy that on the basis of the bill as drawn, with the exception of item 30 ("costs as between lawyer/client"), there was nothing to indicate that any items were, wholly or in part, of a practitioner and client nature. 27 As I have pointed out, no objections were made to the learned taxing officer in respect of the allowances made on taxation. Thus, the only issue to arise before the signing of the s 240 and s 243 certificates was whether the practitioner should be permitted to include claims for counsel fees, in the case of Counsel A, $8,913, and in the case of Counsel B, $11,954.25, a total of $20,867.25. 28 According to the practitioner's analysis, Counsel A had charged $13,200 as a lump sum, of which $4,287 (which included $3,000 for an opinion in support of the compromise) was said to be compensable on a party/party basis, and Counsel B had charged at an hourly rate for 62.4 hours of which 14.1 hours were characterised as party/party. The practitioner's analysis was partly reflected in the bill of costs to the extent that the fee for counsel's opinion on the compromise was included and that in Sch 6 of the bill the work of counsel in relation to a chambers summons and a pre-trial conference was claimed, but the bill did not indicate that any other items comprehended the work of counsel. 29 As there was no affidavit filed on behalf of the practitioner deposing to the reason for the omission of the counsel fees in question, I sought to clarify the situation in the following exchange: "STAUDE DCJ: Yes. Just one more matter, Mr Garnsworthy. You said earlier, I think, in answer to a question by me as to why counsel fees were not included in the amended bill, that it was an oversight or something of that nature. GARNSWORTHY MR: Yes, that is correct. STAUDE DCJ: Was that explanation given to the Deputy Registrar or was the omission of the items explained? (Page 10)
GARNSWORTHY MR: My recollection is that I believe that I may have said something but I stand to be corrected if my learned friend disagrees, but I thought that I had said something to the Registrar about that."
Section 243 certificate 30 The omission of the claim for counsel fees has particular significance in the context of the s 243 certificate which was issued on the basis of a calculation made by the client's solicitor of the total of all fees and disbursements paid by her in the course of the retainer. 31 Mr Forbes' affidavit sworn 23 April 2010 annexes a summary of professional fee invoices paid by the client to the practitioner in the amount of $121,682.93, inclusive of GST. In addition, the client paid counsel fees totalling $29,718.25, consultants' fees totalling $47,232.74 and court fees of $857. These amounts were all as set out in a letter from the practitioner to the client's solicitors dated 4 April 2010. In addition to the amounts set out in that letter, Mr Forbes deposed to the client having paid other court fees of $265.20 (writ of summons) and $1,104 (trial listing). 32 On this basis Mr Forbes calculated that the client had paid $200,861.12. Following the agreement as to party/party costs the plaintiff was paid $85,000. The learned taxing officer endorsed a s 243 certificate on a document which set out the client's overpayment as follows: "Amount as per Mr Forbes' affidavit $200,860.12 Less unpaid fees ($4,351.93) and court fee
refunded ($552) $4,903.93 Sub-total $195,956.19 Less party/party costs recovered $85,000.00 Sub-total $110,956.19 Less net solicitor/client costs $1,891.00 Amount of payment (excluding interest) $109,065.19" 33 The learned taxing officer granted a stay on the repayment, but only as to the sum of the counsel fees in question, $20,867.25. (Page 11)
Applicable principles 34 The principle governing the review of discretionary decisions was stated by the High Court in House v The King (1936) 55 CLR 499 at 505 as follows: "If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so." 35 In my view, the considerations which bear on a decision as to whether an amendment to a bill of costs should be allowed are those that apply generally to amendment of documents. In order to determine whether it would be just to allow an amendment of the bill of costs, the relevant considerations are the reason given for the omission of the items to be added, the detriment likely to be suffered by the practitioner if the amendment were not granted, any prejudice to the client caused by the amendment and the effect that allowing the amendment would have on the administration of justice, taking into account the public interest, including the interests of the Court and other litigants. Each warrants discussion in this case, bearing in mind that no one consideration or combination of considerations is necessarily determinative: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19].
Explanation for omission 36 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 is a recent decision of the High Court relating to a late application to amend a statement of claim to add a substantial new claim. Extensive reference was made to this decision by counsel for the client. 37 Gummow, Hayne, Crennan, Kiefel and Bell JJ gave importance to the explanation given for the late amendment as a relevant discretionary consideration. At [82] their Honours held as follows: "The need for amendment will often arise because of some error or mistake having been made in the drafting of the existing pleading or in a judgment about what is to be pleaded in it. (Page 12)
But it is not the existence of such a mistake that founds the grant of leave …, although it may be relevant to show that the application is bona fide. What needs to be shown for leave to amend to be given … is that the controversy or issue was in existence prior to the application for amendment being made. It is only then that it is necessary for the court to allow it properly to be raised to enable a determination upon it." 38 As I have observed, no detailed explanation was forthcoming as to why the items sought to be added to the practitioner's bill were omitted or as to why it was not until after the taxation had been practically completed that the omission of these items was noticed. Mr Garnsworthy submits that it was an oversight. 39 It is conceded that the items were included in the bill lodged in the Supreme Court. It is also clear from the affidavit of Richard Parker Camm (Jnr) sworn 19 April 2010 in support of the amended bill of costs for taxation that the counsel fees in question formed part of the practitioner's charged disbursements because he deposed in par 3 to the fact that the client "was aware [of] and gave her approval to the engagement on [her] behalf by the [practitioner] of … various counsel", naming Counsel A and Counsel B. 40 The affidavit of Mr Camm annexed a schedule of letters and memoranda which were said to contain the dates and details of discussions with the client in which her approval to engage counsel was sought and obtained. There is also annexed to the affidavit notes and correspondence from the client referring to the briefing of counsel and their fees. In the circumstances the client must have wondered why the counsel fees were omitted from the amended bill. 41 There has been no suggestion that the application below lacked good faith. In my opinion, the explanation given does not militate against the grant. I am satisfied that to the extent that the fees of counsel were ever in issue, which I doubt for the reasons expressed below, the issue existed when the taxation was initiated and was always liable to be addressed. It does not amount to a new issue.
Detriment to the practitioner 42 It seems to have been common ground that the taxation of costs to which the client was entitled under the LPA 2003 included disbursements. Yet, it would appear from the practitioner's trust account statement (Annexure B to Mr Camm's affidavit), that in fact the fees of Counsel A (Page 13)
and Counsel B were paid from funds held on trust for the client, being the proceeds of the settlement, presumably in accordance with her written instructions. In the circumstances, although no issue has been taken, I have some reservations about whether, as a matter of law and fact, payments made to counsel from the client's funds with her authority constitute disbursements for the purposes of the definition of costs in s 206 of the LPA 2003. 43 The Act defines a legal practitioner relevantly as a person who is admitted as a legal practitioner. Accordingly, Div 3 of the LPA 2003 dealing with taxation and recovery of costs can be construed, in my opinion, to apply to legal practitioners who practise as independent barristers. It is not apparent to me that the client has ever had cause to seek to have counsel fees taxed per se, although, having paid substantial sums to counsel she has been concerned not to pay twice as it were for work done by counsel for which party/party costs have been recovered. 44 Mr Forbes' submission is that both counsel did a good deal of work which was effectively "getting up for trial", such that it would be impossible on taxation to work out how much of the work of counsel had been allowed for in the sum agreed for party/party costs. I do not accept that proposition. It is more likely that counsel were briefed principally for advice on the merits and conduct of the litigation, the cost of such advice being of a practitioner-client nature. 45 Accordingly, if the fees of counsel were for work that could be shown not to have been compensated by the party/party costs, then the s 243 certificate should have been calculated on the basis of the total fees and disbursements paid to the practitioner less counsel fees (net of any party/party components), such fees having been paid from the plaintiff's funds on her authority. 46 The same may be said of the consultants' fees which the learned taxing officer seems to have regarded as having been allowed in full in the party/party costs, even though there is no evidence of the extent to which those disbursements were agreed by the defendant, if at all. 47 It seems clear to me that if the party/party costs had been agreed in a way that clearly identified the expenses comprised in the lump sum of $85,000, and if the practitioner's amended bill of costs did not, in the schedules thereto, include work done by counsel, as appears in Sch 6 to the bill, then a different result may have been achieved. (Page 14)
48 As it is, the s 243 certificate has been calculated taking into account expenses for counsel fees incurred with the client's consent and paid from the proceeds of her settlement on her instructions for which only a minimal allowance has been made on taxation. 49 According to the practitioner's amended bill of costs, the disbursements to consultants (items 35 to 43 of the bill) total $47,158.74. The total amount of fees paid to Counsel A and Counsel B, according to the practitioner's trust account statement, is $28,718.25, giving a total of $75,876.99. 50 The practitioner has effectively recovered practitioner/client costs, inclusive of disbursements, of $94,891, made up of the agreed party/party costs of $90,000 (before deduction of $5,000 for the costs of the special costs orders application and appeal) and $4,891 as allowed on taxation (before deduction of $3,000 for the costs awarded to the client). It would seem, therefore, that the result of the taxation has been a significant under-compensation of the practitioner.
Prejudice to client 51 The client's concern is that the addition of the two counsel fee items would, by reason of the effect which they may have on the assessment of the bill generally, cause the taxation process to be, effectively, commenced afresh. This was a reason given by the learned taxing officer for refusing the amendment. The concern was that a detailed schedule would have to be prepared and verified by evidence in respect of each counsel's fees. 52 For the client it is also submitted that the addition of the two items would give rise to an issue as to whether any allowances should be made at all if the practitioner was shown not to have complied with the rule in In re; Blyth & Fanshawe, Ex parte Wells (1882) 10 QBD 207 which is to the effect that costs of an unusual sum or nature are not allowed as between practitioner and client unless they have been authorised by the client after full prior disclosure, including as to whether they are recoverable on a party/party basis. The issue as to the practicality of taxing counsel fees would fall away if they were disallowed on the basis of Blyth & Fanshawe (supra). 53 Mr Forbes contended on behalf of the client that she had not been advised with respect to the recoverability of counsel fees. I have commented earlier in these reasons on the fact that the fees of counsel appear from the practitioner's trust account records to have been paid from (Page 15)
the proceeds of the settlement, presumably on the client's instructions. I have also commented on the fact deposed to by Mr Camm in his affidavit that the engagement of counsel on both occasions was authorised by the client. 54 If there is an issue as to whether the client gave informed consent to the briefing of counsel, then that issue should be determined on its merits in the course of taxation. Unless that issue is resolved in the client's favour, the taxation will have proceeded on an incorrect basis to an unjust result. The client is not unduly prejudiced by having to make out that contention and can be compensated for the further costs involved. 55 Returning, then, to the question of practicality, my observation is that in the context of a complicated damages claim for economic loss settled for more than $2 million, the costs of counsel, although substantial, do not appear to be unreasonable or disproportionate, especially as the action was listed for trial before it was settled. Assuming the client validly authorised the briefing of counsel, the only issues that would arise on the taxation would be whether s 27A of the MVA was complied with in each case and whether the analysis by the practitioner as to how much of the fees has not been compensated in party/party costs is correct. 56 If the practitioner is to be penalised for mishandling the taxation process or for dilatory conduct, it should be by way of an award of costs and interest on any money repayable to the client and not by prohibiting the proper determination of all relevant issues.
Public interest 57 The procedural rules considered in Aon (supra) were in no material way different from those that apply in this jurisdiction. The High Court roundly dispelled as erroneous the assumption that a party was entitled to amend to raise an arguable claim, subject to payment of costs occasioned thereby. The emphasis in each of the judgments was on the weight to be given to the public interest in determining the question of whether it is fair to allow a late amendment. French CJ at [34] cited approvingly the dictum of Lord Bingham of Cornhill in Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 31 that: "The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of (Page 16)
litigation, in the interests of the parties and the public as a whole." 58 This factor is reflected in O 1 r 4A and 4B of the Rules of the Supreme Court 1971 and r 48 of the District Court Rules 2005. Due consideration needs to be given to the public interest in finality lest confidence in the administration of justice be undermined: Aon at [35] per French CJ, and see also Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 at 409 per Malcolm CJ. This is so, in my opinion, even though the amendment sought in this case is not of a pleading and will not occasion the vacating of trial dates. But where the amendment being sought is of a practitioner/client bill of costs the procedural consequences of granting the amendment, though relevant, are bound to be of less concern as a factor affecting the exercise of the discretion than in the case of a late amendment of a pleading. 59 The public interest is also served by the proper determination of statutory processes. This matter has had a long history. Some delay can be attributed to the practitioner, particularly in the initial stages. It has, nevertheless, been a complicated process by its very nature. Much time and expense has been incurred by the parties in getting to the point of having the practitioner's bill taxed. For this reason, a merit-based adjudication is preferable to an outcome by default. The cost of achieving that end and any further delay so caused are not undue. 60 By the same token, considerable court resources have been applied to the resolution of this matter to date. Such further time as may be required on the part of the taxing officer to determine fully the issues is not so great as to weigh heavily against the grant.
Conclusion 61 That the appellate tribunal would have come to a different conclusion does not justify displacing the decision at first instance. Error must be shown. 62 In my respectful opinion, the learned taxing officer erred by failing to give any weight to the explanation for the omission of counsel fees from the bill of costs. It was clear that they were claimed in the original bill and that there was no reason for them to have been omitted from the amended bill other than oversight. Furthermore, the items were addressed by the affidavit of Mr Camm in support of the bill. (Page 17)
63 The learned taxing officer also failed to give any weight to the detriment to be suffered by the practitioner if the amendment were disallowed. The client, on the available evidence, authorised the briefing of counsel and the payment of their fees. Both counsel may be taken to have had experience and expertise in the assessment and proof of damages for economic loss. The result of the litigation suggests that the client benefited from their input. Regard should have been had to the substantial extent to which the fees in question affected the practitioner's costs recovery, especially in terms of the s 243 certificate. 64 As to the prejudice to the client, the taxing officer erred, in my respectful opinion, in holding that it was impossible to tax the bill as it was proposed to be amended, as the only issues (unless Blyth v Fanshawe applied) were as to compliance with s 27A of the MVA and the correctness of the practitioner's analysis of what constituted the party/party component in each case. These issues are capable of determination on their merits. 65 On the question of finality, the learned taxing officer came to the view that the taxation to the point it had reached when the amendment was sought would have to be wastefully abandoned. For the reasons I have given, I consider that this prediction overstated the task to be performed if the amendment were allowed. Insufficient weight was given to the private and public interest in a merit-based outcome in circumstances where the effect of the amendment would not be to effectively re-commence the litigation, but rather to bring it to a just conclusion. 66 For these reasons I am of the view that the application for review should be allowed, that the decision of the learned taxing officer refusing the amendment of the practitioner's bill be set aside, that the bill be amended subject to the payment of any further fee as may be due, and that the bill be remitted back to the taxing officer for taxation of the items included by the amendment. The order for amendment, however, would be on terms that the practitioner pay the costs thrown away by the amendment, including the costs of the further appointment for taxation.
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