Flynn v Flynn [No 2] - [2012] WADC 17

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FLYNN -v- FLYNN [No 2] [2012] WADC 17

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 30 JANUARY 2012

DELIVERED : 3 FEBRUARY 2012

FILE NO/S: CIV 1214 of 2009

BETWEEN: MARSHALL WARREN FLYNN
Plaintiff
AND
PRESTON JOHN FLYNN
First Defendant
YVONNE MARIA FLYNN
Second Defendant

Catchwords:

Practice and procedure - Objections to taxation - Turns on its own facts

Legislation:

Nil

Result:

Objections not allowed

Representation:

Counsel:

Plaintiff:     Mr P Sheavyn
First Defendant             :     Mr F Robertson
Second Defendant         :     Mr F Robertson

Solicitors:

Plaintiff:     Coulson Legal
First Defendant             :     Butcher Paull & Calder
Second Defendant         :     Butcher Paull & Calder

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

Nil

DEPUTY REGISTRAR HEWITT: This matter was tried on the 12, 13, 14, 15 and 18 April 2011 before his Honour Judge Staude and a judgment in favour of the plaintiff was entered on 7 September 2011. That judgment awarded costs to the plaintiff and pursuant to that entitlement the plaintiff brought in a bill of costs which came before me for taxation on 15 December 2012. Subsequently by a notice dated 29 December 2011 the defendant's gave notice of objections and those objections were argued before me on 30 January 2012.
Very briefly the action which was pursued by the plaintiff concerned the plaintiff's claim of a share of the winnings of a race horse known as Changing Lanes.
The full text of the objections is as follows:
As only an interim allocator has been signed, the learned registrar is not functus offcio and has power to reconsider the decisions he made in the court of the Taxation. Long v Fleming & Anor [2004] WADC 13; Hill v Town of Albany, unreported; DCt of WA; Library No 970261; 15 August 1997.
The plaintiff objects to the following determinations on taxation:
1.Item 38 – Getting up
The Learned Register erred in principle by allowing an excessive amount for getting up.
Mr Sheavyn commented that the amounts claimed on the bill of costs submitted for taxation ('the Bill') were his best 'guesses' taken from his review of the files. This was a common theme during the taxation. Where any doubt exists, it should be held against the Plaintiffs.
No schedule was attached to the Bill to particularise the amount claimed for getting up. In the absence of any schedule the amount allowed for getting up should only reflect the documents on the Court file. The Plaintiff speculated as to what work was probably done. On query the Plaintiff was unable to distinguish whether various work was completed by Ms Ayres, (a Junior Practitioner) or Mr McDonald (a Senior Practitioner) who both worked on the file. Without the assistance of a schedule it is also impossible to tell whether any duplication has occurred or otherwise solicitor and client costs have been claimed, for example in having Ms Ayres 'read in' on the file.
In relation to the various 'Trial Bundles' that were prepared, it is submitted that they are merely books of discovered documents and would not have taken long to compile. The certainly did not require the attention of Mr McDonald and should have reasonably been done by a clerk and then only checked by practitioner.
The case involved no unusual complexity or importance. The facts were simple and witnesses were few. The Plaintiff himself was his only witness. The quantum of damages were agreed and there were no complex questions of law pleaded.
Having regard to the above, the total amount allowed for getting up should be properly viewed as excessive, reconsidered and then reduced.
2.Item 39 & 41 – Counsel Fees
As a matter of fact, Counsel discounted his fees (on account of prompt payment). Therefore they were less than the amount actually claimed.
Otherwise the amounts which were originally claimed were the maximum allowable under the scale. Therefore the representation which is made by the bill is that Counsel undertook the full 3.5 days of preparation as provided for by the scale.
The time provided for preparation is a major component of the fee provided for by the scale (3.5 days v 1 day). No allowance should be made for Counsel's time to master the facts, which were already well know to him. The Plaintiff gave his evidence in chief by way of witness statement, so no examination for the two Defendants who also provided written witness statements.
The significant amount of preparation which has been claimed (3.5 days) was not required. Any extended time for preparation should be a treated as luxury and therefore is a solicitor client cost. One day at most should be allowed.
3.Item 42 – Solicitor attending Trial
The Defendant's withdraw their objection to this item.
4.Item 59 – Racing and Watering WA Disbursement
No explanation was provided for the reasonableness or necessity of this disbursement or its function. This should be disallowed, unless a satisfactory explanation is forthcoming.
The introductory comments in the objections concerning functus officio are not relevant. No determination has been made on the items in question for the particular purpose of allowing the defendants to bring in the objections which are now under consideration.
The first objection relates to item 38 of the bill. That was claimed in the sum of $47,885 from which the sum of $12,000 was deducted leaving a total of $35,885. The first aspect of the objection refers to an error in principle by allowing an excessive amount. In such an unparticularised form there is no basis upon which I can review my decisions on this matter. The next aspect of the objection requires a little explanation.
The solicitors who represented the plaintiff at trial where not those who had run the case for the majority of its life. Those solicitors declined to make the file available to the plaintiff's current solicitors save on a limited basis. That permitted the plaintiff to attend the offices of the former solicitor and view the file and the solicitors also produced the file to the court for the purposes of the taxation so that it was available for reference on the date of the taxation.
In those circumstances the plaintiff faced a difficulty because the detailed information which is normally available to a taxing party was not available to him.
In all bills of costs there are certain approximations and the like. In my view such practices are quite acceptable so long as the taxing officer is satisfied, taking a very conservative approach, that the paying party is being charged a reasonable sum for the services provided.
It is also the subject of criticism that no schedule was attached to the bill and that also that work carried out by various solicitors was unable to be identified. There is a suggestion within the objections that this may have caused duplication but nothing in the way of a positive case is advanced on that aspect of the matter.
With the information which was available to me at the taxation together with the court file and that of the plaintiff's former solicitor I was able to form a view as to what was a reasonable amount for the tasks which were undertaken by the plaintiff in the preparation of this case for trial.
Applying what I regard as mandatory in these circumstances I took a conservative approach and deducted approximately 25% of the amount which had been claimed by the plaintiff.
Further comment is made that various trial bundles were prepared which it said were merely books of discovered documents. The fact the amount of documents which were prepared for the purposes of this trial were massive and there were six volumes in total which occupy one complete archive box.
It is said that the case involved no unusual complexity or importance. In my view that does not do justice to the case which raised issues of whether property had been transferred by contract, whether conversion by a co-owner had taken place, whether conversion by a person registered as the owner of the relevant horse had taken place, whether time was the essence of the contract, whether the contract was terminated by late tender of the purchase price, failure to account for the share of proceeds of racing, the co-owners liability to account, the relevance of the Sale of Goods Act 1895, and of course the issue of damages. In the latter regard it appears the parties had agreed quantum but it clear to me that a very substantial amount of work was done by the plaintiff's solicitors in order to ground their claim in quantum and to simply to ignore the issue of quantum in the objections in my view is disingenuous.
On reconsidering the item and the objections I am satisfied no error in principle was made and accordingly I affirm my original allowance of $35,885.
The next item which is the subject of complaint is items 39 and 41 counsel fees. Counsel fees were claimed at a scale maximum but the plaintiff's solicitors realised that counsel had offered a very significant discount for prompt payment. Accordingly, a deduction was called for. That deduction, representing the amount of the discount was $7,315.
It is argued on behalf of the objectors that that represents an excessive allowance.
It is difficult to understand how the case which is described by the defendant as being so straight forward managed to occupy the attention of the court for five days.
Reading the decision it is clear to me that the case was not as straight forward as described by the objections and demands on counsel were significant. In the circumstances I feel that the amount allowed was an appropriate recognition of counsel's efforts in preparing for and presenting the case at trial.
As to the argument that the amount of preparation was excessive a substantial proportion of the amount deducted could be applied to that item which would satisfy the concerns of the objectors. In my view it is sufficient that the total amount claimed for counsel is appropriate and accordingly I disallow that objection.
The next objection is withdrawn.
The next objection concerns a disbursement of $220 from Racing and Wagering WA. That disbursement related to information concerning the winnings of the relevant horse which was supplied to the plaintiff's solicitors at a cost of $11 per page. Twenty pages were ordered hence the total of $220. The winnings of the horse were one of the critical aspects of the case. This was the means by which the amount of those winnings were established and I am satisfied that the disbursement was properly made.
I am therefore not persuaded that an error in principle had been made out on any of the grounds raised in the objection and I shall therefore sign a further allocator for the amounts of the items in dispute. The total of those items together with the taxing fee is $59,219.37 and that together with the additional sum of $250 to cover the costs of the objection shall be the amount of the further certificate.