Forrest-Moore v Belswan (Mandurah) Pty Ltd [No 2] - [2011] WADC 217

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: FORREST-MOORE -v- BELSWAN (MANDURAH) PTY LTD [No 2] [2011] WADC 217

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 29 NOVEMBER 2011

DELIVERED : 7 DECEMBER 2011

FILE NO/S: CIV 2041 of 2006

BETWEEN: MARLENE GLORIA FORREST-MOORE
Plaintiff
AND
BELSWAN (MANDURAH) PTY LTD
First Defendant
AEGIS AGED CARE GROUP
Second Defendant

Catchwords:

Practice and procedure - Review of taxation of costs - Getting up case - Appropriate allowance

Legislation:

Workers' Compensation and Injury Management Act 1981

Result:

Objection allowed

Representation:

Counsel:

Plaintiff:     Mr A Gunasekera
First Defendant             :     Ms F Dempster
Second Defendant         :     Ms F Dempster

Solicitors:

Plaintiff:     O'Halloran Legal
First Defendant             :     Jackson McDonald
Second Defendant         :     Jackson McDonald

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

Beasley v Ocean Foods International Pty Ltd [2005] WASC 116
Feaver v Smith [2008] WADC 72
Forrest‑Moore v Belswan (Mandurah) Pty Ltd [2011] WADC 65

DEPUTY REGISTRAR HEWITT: This action was settled by a consent judgment dated 20 August 2010. The order provided that the plaintiff's costs be taxed. Subsequently the plaintiff applied to this court for an order lifting the allowable maximum for certain of the items within the relevant Supreme Court scales of costs and in particular item 16 of those scales. That application was unsuccessful.
On or about 22 September 2011 the plaintiff presented a bill of costs for taxation to the court which came before me on 4 October 2011. During the course of that taxation I was required to deal with item 19 of the bill, getting up case for trial. The amount claimed for that item was $51,480 and I allowed that sum in total. Subsequently the defendants brought in objections to my allowance on the relevant item.
In reaching the decision I did I relied on the decision of Master Sanderson in Beasley v Ocean Foods International Pty Ltd [2005] WASC 116 [14] where his Honour said:
In my view, the amount available to a party for getting up a case for trial is the amount specified in that item as at the date the bill is assessed. In this case, then, the scale allowed for getting up for trial is $34,100. It matters not when the getting up was actually done. It may be that the taxing officer, mindful that most of the work of getting up was done at a time when the determination provided a lower amount for getting up than presently applied would take that into account in taxing the bill. But that is a matter for the particular taxing officer dealing with a particular bill of costs. There is no basis for claiming costs as the plaintiff has done.
I also relied upon the decision of Registrar Kingsley when dealing with the application for a special costs order Forrest‑Moore v Belswan (Mandurah) Pty Ltd [2011] WADC 65 where at [22] Registrar Kingsley reached the conclusion that this matter was one of sufficient difficulty, complexity and importance to warrant an order being made but by virtue of the authority of Feaver v Smith [2008] WADC 72 he was unable to make the order sought by the plaintiff.
The thrust of the objection which has been brought is that this action took place over a number of years during which various scales were in place with different maxima and different hourly rates. The submission is that the amount awarded should reflect the fact that when the actual work was done in the course of the action the plaintiff was entitled to a significantly lower rate of remuneration than that prevailing at the date of the taxation.
I do not necessarily agree with the analysis which is advanced by the defendant in the objections. In my view if a sufficiently large amount of work was done under a current scale there is no proper basis for reducing the allowance because other work had been carried out at an earlier stage when a lower maximum and lower hourly rate were relevant.
Notwithstanding that rejection of the general proposition advanced by the defendants I nonetheless think that there is validity in their objection. The amount which I allowed was a maximum under the 2010 scale. A miniscule amount of work was carried out by the plaintiff in the way of getting case for trial under that scale. The scale came into effect on 1 July 2010 and the matter settled at a pre‑trial conference on 20 August 2010 such that most of the plaintiff's energies were devoted to pursuing that pre‑trial conference and additionally an application for a trial of issues.
Of further concern to me is the fact that the maximum for getting up case for trial in the 2010 determination was increased substantially because of the committee's view that the requirement to prepare written statements in the course of civil proceedings had significantly enlarged the task required to get up a case for trial such that it increased the hourly allowance for that item by 20%. In commenting on that aspect of the matter the committee in par 9(d) of the schedule to the determination in 2010 said:
The Committee considers it reasonable to increase the maximum time allowed for getting up case for trial under Item 17 of the Table to clause 11 by 20 hours given the increasing complexity of written witness statements that are required in civil trials and the need for all witnesses in Supreme Court civil trials to provide a written statement of their proposed evidence in chief.
The preparation of witness statements for trial in the District Court was irrelevant in the present case as the court had not imposed any order that such statements be prepared.
My conclusion is therefore that in making the allowance that I did I fell into error. Almost all the work which was undertaken in this case was undertaken under the 2006 and 2008 scales. A tiny amount was undertaken in an earlier scale and a very small amount was undertaken under the 2010 scale. A further issue in this case is the impact of the Workers' Compensation and Injury Management Act 1981. Section 87 of that Act provides that in an action for damages, if div 2 of the Act applies, then a solicitor may not make an agreement with his or her client providing for any greater remuneration than is provided for in any cost determination.
Without giving a detailed analysis suffice for me to say that the present proceedings are such an action. There is clear intent within the Act that solicitors may not charge their clients more than the scales provide in relevant litigation. When one bears in mind that a party/party taxation and a solicitor/client taxation proceed on the same basis, it is difficult to see why a solicitor would be entitled to charge his or her client a significantly greater sum simply because a new scale had been introduced prior to that taxation even though all of the work for which the claim was made was undertaken under earlier scales. My interpretation is that the Act clearly intends that clients be charged rates which correspond to the scale in force at the relevant time not some scale which might be introduced some years after the relevant work was undertaken.
Having satisfied myself that I have fallen into error I now turn to the appropriate amount to allow for getting up costs. In considering that I recognise the fact that this was a case attended with some unusual complexity and difficulty. I also recognise the fact that more work was undertaken than is strictly provided for in the relevant scales. With that in mind I take the view that the appropriate allowance is $39,650. That was the maximum which could be allowed under the 2008 scale which was only superseded on 1 July 2010. A very substantial amount of the work in the action was undertaken during the currency of that scale, and work significantly in excess of that recoverable took place under the 2006 scale and in that context I make note of the fact that in truth the claim for getting up case was rather more than the $51,480 to which I have referred because I disallowed a number of counsel fees totalling over $20,000 on the basis that those fees related to opinion advice which constituted getting up case for trial and could not be the subject of a separate allowance. My conclusion is therefore that in substitution for the sum of $51,480 being the allowance for item 19 of the bill there will be an allowance of $39,650. The original allowed amount of the bill was calculated at $75,508. The reduction including the component added in for the taxing fee is $12,125.75 and I calculate the new balance to be $63,382.25. At the conclusion of the hearing, counsel for the defendant indicated her claim for $1000 being the cost of preparing and arguing the objections. I consider that to be a reasonable claim and I shall allow it by a further reduction so that the final balance is $62,382.25. I shall sign my allocator in that amount upon the date of issue of these reasons.