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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] WADC 217
Decision Date: 7 DECEMBER 2011

CaseChat Overview and Summary

The matter before the court was a review of costs in the case of Forrest-Moore versus Belswan (Mandurah) Pty Ltd [No 2]. The parties involved were Forrest-Moore, the applicant, and Belswan (Mandurah) Pty Ltd, the respondent. The central issue was the taxation of costs incurred during the litigation process, which the applicant sought to challenge on the grounds that the assessment was excessive. The case was heard in the Supreme Court of Western Australia.

The legal issues before the court were primarily centred on the appropriate amount of costs that should be awarded to the respondent and whether the assessment of these costs by the taxing master was fair and reasonable. The applicant argued that the costs were disproportionately high and that the taxing master had made errors in calculating the amount. The respondent, on the other hand, contended that the costs were necessary and that the taxing master's assessment was accurate.

In its decision, the court examined the principles governing the taxation of costs in litigation, particularly in cases where the costs are deemed to be "getting up" costs, meaning they are incurred in the initial stages of the proceedings. The court considered the nature and extent of the work carried out, the complexity of the case, and the necessity of the costs incurred. The judge found that while some of the costs were reasonable and necessary, others were excessive and not justified by the work performed. The court reduced the amount of costs awarded to the respondent, reflecting the appropriate allowance for the services provided.

As a result of the court's review, the final orders included a reduction in the amount of costs awarded to Belswan (Mandurah) Pty Ltd. The court directed that the taxed costs be adjusted accordingly, ensuring that the respondent was compensated for reasonable and necessary expenses, but not for any excessive or unjustified costs. This decision provided clarity on the appropriate approach to assessing costs in similar future cases.

Orders