Forbes v Frigger

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.