Forbes v Frigger

Case [2009] WASC 77

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   FORBES -v- FRIGGER [2009] WASC 77

CORAM:   HASLUCK J

HEARD:   4 MARCH 2009

DELIVERED          :   1 APRIL 2009

FILE NO/S:   CIV 1659 of 2006

BETWEEN:   STEWART VIVYAN FORBES

Plaintiff

AND

ANGELA FRIGGER
Defendant

Catchwords:

Procedure - Costs - Review of taxation of bill of costs by judge - Whether taxing officer made an error in principle - Indemnity and special costs orders - Application of legislation concerning allowance of costs on taxation - Meaning of term 'other work' in Item 32 of Table of Supreme Court Scale of Costs - Whether error in principle by taxing officer in failing to give proper or any effect to order for indemnity costs - Certificate of taxation to be set aside and bill to be referred to another taxing officer for taxation in accordance with reasons for decision

Legislation:

Legal Practice Act 2003 (WA), s 210(2), s 214, s 215(2)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006, cl 9, cl 9(2)
Legal Profession Act 2008 (WA), s 598, s 616, s 617
Rules of the Supreme Court 1971 (WA), O 66 r 1, O 66 r 53, O 66 r 55(1)
Supreme Court Act 1935 (WA), s 37

Result:

Application for review of taxation granted
Matter remitted to taxing officer

Category:    B

Representation:

Counsel:

Plaintiff:     Mr P Sheavyn

Defendant:     Mr C P Stokes

Solicitors:

Plaintiff:     Stewart Forbes

Defendant:     Chris Stokes & Associates

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

Clay & Clay v Karlson & Kurelic, unreported; SCt of WA (Heenan J); Library No 970424; 21 August 1997

Collins v Westralian Sands Ltd (1993) 9 WAR 56

EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59

Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122(S); (2003) 28 WAR 95

Mossensons (a firm) v Coastline Associates, unreported; SCt of WA (Parker J); Library No 970166; 8 April 1997

Naidoo v Williamson [2008] WASCA 179

SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26(S2)

Stobbart v Mocnaj [1999] WASC 252

HASLUCK J: 

The nature of the application

  1. The defendant, Angela Frigger, has applied for an order to review the taxation of her bill of costs pursuant to O 66 r 55(1) of the Rules of the Supreme Court 1971 (WA). The application is contained in a chamber summons for review of taxation dated 26 September 2008.

  2. The application arises in this way.  The plaintiff, Stewart Vivyan Forbes, is a legal practitioner who played a part in certain proceedings in the District Court to which the defendant was a party.  It seems that as a consequence of that association the defendant made a complaint to the Legal Practitioners Complaints Committee which offended the plaintiff.  The written complaint and certain verbal exchanges led to the plaintiff commencing defamation proceedings against the defendant by writ of summons dated 23 June 2006.

  3. The defendant's denial of liability was followed by various interlocutory applications and other steps in the course…

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Forbes v Frigger [2009] WASC 77
Case
[2009] WASC 77
Decision Date

CaseChat Overview and Summary

The case of Forbes v Frigger involved a dispute concerning the taxation of a bill of costs by a judge in the Supreme Court of Western Australia. The plaintiff, Forbes, sought a review of the taxation, arguing that the taxing officer had made an error in principle in not properly considering an order for indemnity costs and in failing to give effect to the term 'other work' in Item 32 of the Table of the Supreme Court Scale of Costs. The defendant, Frigger, contended that the taxing officer had correctly applied the law and the costs determination. The court was required to decide whether the taxing officer had indeed erred in principle and whether the certificate of taxation should be set aside, with the bill of costs being referred to another taxing officer for taxation in accordance with the court's reasons for decision.

The court examined the relevant legislation and case law to determine the proper approach to special costs orders and the meaning of 'other work' in Item 32 of the Supreme Court Scale of Costs. It noted that prior to 1987, special costs orders were made under O 66 r 12(1) of the Supreme Court Rules, but this rule was found to be invalid as it conflicted with the Legal Practice Act. The court also reviewed the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA) and its implications for the allowance of costs. The court found that the term 'other work' in Item 32 was intended to cover time reasonably spent on work requiring the skill of a practitioner or work not covered by any other item, but that such allowances were only to be awarded between practitioner and client or if costs were awarded on an indemnity basis, unless the court otherwise ordered.

Following its analysis, the court concluded that the taxing officer had indeed made an error in principle in not properly considering the order for indemnity costs and in failing to give effect to the term 'other work'. The court found that the certificate of taxation should be set aside and the matter remitted to a different taxing officer for taxation in accordance with the court's reasons for decision. The court granted the application for review of the taxation and made an order to that effect.

In conclusion, the court's decision in Forbes v Frigger highlights the importance of properly considering orders for indemnity costs and the meaning of 'other work' in the context of the Supreme Court Scale of Costs. The court's order to set aside the certificate of taxation and remit the matter to a different taxing officer ensures that the proper principles are applied in determining the taxation of the bill of costs.

Orders

Orders of the court

Application for review of taxation granted

Matter remitted to taxing officer

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Prior to 1987 the power to make special orders as to removal of limits in cases of unusual complexity or importance was derived from O 66 r 12(1) of the Supreme Court Rules. However, it was determined that r 12(1) was invalid to the extent that s 215(2) of the Legal Practice Act provided for removal of limits in cases of complexity with the result that the rule in question is no longer operative. To obtain a special costs order pursuant to s 215 of the Legal Practice Act it must be shown that the amount of costs allowable is inadequate because of the unusual difficulty or the complexity or the importance of the matter: SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26(S2) at [98]. In 1996 the Legal Costs Committee made a determination introducing an entirely new scale applicable to costs in respect of contentious business. Before that date the remuneration allowable to the practitioner was based on the value of the subject matter but thereafter scales of costs reflected the fact that costs are in the main calculated by reference to the time reasonably spent in the provision of the services and by applying to that time a reasonable hourly rate, that rate varying according to the seniority and experience of the practitioner and the complexity of the work. There have been various determinations since that time but for present purposes the operative determination is that which took effect on 1 July 2006, being the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA). I note in passing that by cl 9(1) of the 2006 determination (subject to a written agreement as to costs) the costs recoverable by one party from another party or payable by a party to that party's own practitioner shall not exceed the amounts set out in the table to the clause (except as otherwise provided in Item 32 of the table). By cl 9(2) of the 2006 determination allowances made under item 32 of the table are only to be awarded as between practitioner and client, or if costs are awarded on an indemnity basis and not between party and party unless the court otherwise orders. Items 1 to 31 of the subject determination cover various steps taken in the course of litigation such as preparing and filing pleadings, providing discovery and so forth, getting up case for trial and counsel fees at trial. Item 32 covers 'other work' being (a) time reasonably spent by a practitioner on work requiring the skill of a practitioner but not covered by any other item; or (b) time reasonably spent by a practitioner or by a clerk on work not covered by any other item or by paragraph (a). I quickly remind myself, as noted above and in the registrar's reason for decision, that by cl 9(2) of the 2006 determination allowances made under item 32 are only to be awarded as between practitioner and client or 'if costs are awarded on an indemnity basis and not between party and party unless the court otherwise orders'. It will be apparent from discussion to this point that there is a tension between those provisions which appear to allow to the court a broad discretionary power to award costs including a power to override costs scales in special or complex cases and certain other provisions which suggest that the costs recoverable are prescribed essentially by the operative scale and in the absence of any explicit order purporting to set aside the requirements of the scale any special benefit by way of indemnity costs is to be governed by the language used in the relevant costs determination and related scale.