Frigger v Mervyn Jonathan Kitay as liquidator of Computer Accounting & Tax Pty Ltd [No 2]
[2024] WASC 50
•29 FEBRUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: FRIGGER -v- MERVYN JONATHAN KITAY as liquidator of COMPUTER ACCOUNTING & TAX PTY LTD [No 2] [2024] WASC 50
CORAM: LUNDBERG J
HEARD: 11 SEPTEMBER 2023 WITH FURTHER SUBMISSIONS RECEIVED ON 3 AND 10 NOVEMBER 2023
DELIVERED : 29 FEBRUARY 2024
FILE NO/S: COR 126 of 2020
BETWEEN: ANGELA CECELIA THERESA FRIGGER
Plaintiff
AND
MERVYN JONATHAN KITAY as liquidator of COMPUTER ACCOUNTING & TAX PTY LTD
Defendant
Catchwords:
Practice and procedure - Taxation of costs - Application for extension of time for review of taxation under O 66 r 55 Rules of the Supreme Court 1971 (WA) - Whether asserted errors of principle fall within O 66 r 55 - Whether any errors of principle otherwise demonstrated - Extension of time refused and substantive application accordingly dismissed - Turns on own facts
Legal practitioners - Unrepresented party making unfounded serious allegations against legal practitioners - Conduct of that nature not to be tolerated by the court and ought be censured
Practice and procedure - Application for suspension of enforcement of costs order under s 15 of the Civil Judgments Enforcement Act 2004 (WA) - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Rules of the Supreme Court 1971 (WA), O 66 r 32, O 66 r 42, O 66 r 44, O 66 r 53, O 66 r 54, O 66 r 55, O 66 r 57
Result:
Leave to amend application granted
Applications are otherwise dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | C G Hicks |
Solicitors:
| Plaintiff | : | In person |
| Defendant | : | Herbert Smith Freehills |
Case(s) referred to in decision(s):
City of Belmont v Saldanha [No 2] [2018] WASC 278
City of Wanneroo v Bakota [2023] WASCA 61
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Frigger v Computer Accounting & Tax Pty Ltd [2023] WASCA 152
Frigger v Mervyn Jonathan Kitay as liquidator of Computer Accounting & Tax Pty Ltd [2022] WASC 347
Glew v Shire of Greenough [No 2] [2008] WASCA 75
Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
W J Green & Co (1984) Pty Ltd v Tace Pty Ltd [No 4] [2010] WASC 363
Zaghloul v Woodside Energy Ltd [2019] WASC 125
Table of Contents
A. Introduction and summary
B. Evidence
C. Procedural history
Proceedings before Allanson J
Taxation process
The present application
D. Events following the hearing
E. Legislative framework
F. Application for review pursuant to O 66 r 55 RSC
Amendment of the application
Application to extend time
Merits of the application
Conclusion
G. Application for suspension pursuant to s 15 of the CJE Act
H. Conclusion and orders
ATTACHMENT A Errors of principle asserted by the plaintiff
LUNDBERG J:
A. Introduction and summary
The application presently before the Court, brought by the plaintiff, arises from the taxation of the costs of the successful defendant in this proceeding, which were ordered to be paid by the plaintiff. The costs order was made by Allanson J on 25 October 2022. On the application of the defendant, his Honour had ordered that the plaintiff's originating process be struck out and that the plaintiff pay the defendant's costs of the proceeding and the application.
The substantive claims advanced by the plaintiff against the defendant in this proceeding (which Allanson J struck out) sought substantial damages against the defendant (in the millions of dollars) and was filed with a voluminous supporting affidavit sworn by the plaintiff.
Having obtained the costs order in its favour, a bill of costs was duly filed by the defendant on 25 November 2022 in the amount of $30,951.10. The bill of costs is three pages in length, supported by two schedules, which are three pages in length in total. As will be seen, the proceedings were relatively short lived. The compass of the costs claimed by the defendant is thus rather narrow.
The costs claimed in the bill were subsequently assessed by the Registrar after a lengthy hearing on 6 July 2023, and allowed in the amount of $26,231.75. The certificate of taxation was issued by the Registrar on 8 August 2023.
The plaintiff's present application began life as a request for a permanent stay of the taxation. It has morphed considerably since then, which has made the matter more complex than was necessary, more time consuming for the parties than it ought to have been, and absorbed more judicial and court resources than I consider was reasonably necessary.
The plaintiff now seeks leave to amend the application to seek orders for an extension of time to bring a review of the taxation pursuant to O 66 r 55 of the Rules of the Supreme Court 1971 (WA) (RSC). Additionally, the plaintiff seeks orders to suspend the enforcement of the costs order.
The defendant does not oppose the amendment to the application, but vigorously resists the substantive orders sought by the plaintiff.
For the reasons I have expressed below:
(a)the plaintiff's application to amend the chamber summons should be granted, however, the plaintiff's application for an extension of time to bring the review of the taxation should be refused as the substantive, underlying application is without any merit; and
(b)the plaintiff's application to suspend the enforcement of the costs order should be dismissed on the basis it is without merit.
B. Evidence
Without objection by either party, the following affidavits were relied upon at the hearing:
(a)the affidavits sworn by the plaintiff on 4 July 2023, 7 August 2023 and 25 August 2023; and
(b)the affidavit sworn by Ms De Koning on 15 August 2023, which was relied upon by the defendant.
C. Procedural history
It is convenient at this point to set out the procedural history of the proceeding and the taxation process, to provide appropriate context for the arguments sought to be ventilated by the plaintiff. The history is drawn from the parties' affidavits and the court record.
Proceedings before Allanson J
On 16 October 2020, the plaintiff (Mrs Frigger) commenced these proceedings as an originating process under the Corporations Act 2001 (Cth) (Corporations Act) for orders and damages against the defendant, Mr Mervyn Kitay, who is the liquidator of Computer Accounting & Tax Pty Ltd. The plaintiff sought the relief pursuant to the provisions of the Insolvency Practice Schedule (Corporations), which is sch 2 to the Corporations Act.
On 25 October 2022, on the defendant's application, Allanson J ordered that the plaintiff's originating process be struck out and that the plaintiff pay the defendant's costs of the application. The precise orders made were as follows:
1. The Plaintiff's application brought by Originating Process filed 16 October 2020 (Application), for orders under Corporations Act 2001 Schedule Insolvency Practice Schedule (Corporations) and damages is struck out.
2. The Plaintiff do pay the Respondent's costs of the Application and of the Defendant's Interlocutory Process dated 3 March 2021, to be taxed if not agreed.
In his reasons, his Honour concluded that the plaintiff's claims for damages were not claims for orders that fell within the power in s 90-15 and the plaintiff did not, in any event, have standing to bring the application on behalf of the trustees of the Frigger Super Trust.[1] His Honour's reasons also record various matters which transpired after the hearing of the matter, which I need not repeat here.[2]
Taxation process
[1] Frigger v Mervyn Jonathan Kitay as liquidator of Computer Accounting & Tax Pty Ltd [2022] WASC 347 [47] and [54].
[2] Frigger v Mervyn Jonathan Kitay as liquidator of Computer Accounting & Tax Pty Ltd [55] - [62].
The defendant lodged a bill of costs on 25 November 2022 claiming costs in the sum of $30,951.10. The plaintiff objected to any provisional assessment of those costs.
The parties thereafter agreed consent orders (which were made on 16 May 2023) to program the matter to a taxation after 3 July 2023. The taxation itself was scheduled by the court for 5 July 2023. Both parties received notice of the date of taxation on 25 May 2023.
The plaintiff failed to file any objections to the bill of costs by the time ordered by the Registrar, being 12 June 2023. This was pointed out to the plaintiff by the Registrar's associate in an email on 15 June 2023.
The plaintiff responded on 16 June 2023 by informing the court she intended to challenge the bill of costs on the basis of the indemnity principle, which she intended to raise in a chamber summons and submitted that this issue would need to be addressed by a judge ahead of any taxation. The plaintiff requested an extension to file objections until 7 days after that foreshadowed application was resolved.[3] In effect, this amounted to a request to adjourn the listed taxation.
[3] De Koning Affidavit affirmed 10 August 2023, Attachment ODK-1 (consisting of the chain of emails between the court and the parties).
The defendant opposed the deferral of the taxation and the Registrar maintained the listed date, informing the plaintiff of this on 16 June 2023. The plaintiff then lodged her objections later on 16 June 2023.
On 4 July 2023, somewhat belatedly, the plaintiff filed an application to permanently stay the taxation of the defendant's bill of costs. The sole ground for that application was that the defendant, it was alleged, had no liability to pay legal costs as the liquidator of Computer Accounting & Tax Pty Ltd. The application was supported by the affidavit of the plaintiff sworn 4 July 2023.
In deference to the plaintiff (who did not appear at the taxation on 5 July 2023), the Registrar adjourned the taxation until the following day, 6 July 2023.
The plaintiff appeared on 6 July 2023. The plaintiff sought an adjournment which the Registrar refused. The Registrar gave detailed oral reasons for that refusal which run the length of 6 pages of the transcript.[4] The taxation process was then undertaken which lasted for around 2½ hours. The Registrar taxed the costs of the defendant in the amount of $26,231.75 (and in doing so, he taxed amounts off the bill of costs as originally lodged by the defendant). During the course of the taxation, the Registrar gave consideration to each of the objections raised by the plaintiff and explained his reasons for rejecting them, or for deducting amounts from the bill.
[4] Taxation ts 105 - 111.
The Registrar then made orders at the conclusion of the hearing on 6 July 2023 as follows:
1. If either party contends that the taxing officer has made an error in principle in allowing or disallowing any item or part of an item in the bill, then such party has until 4:00pm on 3 August 2023 to file and serve written objections to the assessment and to apply in writing for a review pursuant to Order 66 rule 53 Rules of the Supreme Court 1971 (WA).
2. If either party applies in writing for a review pursuant to order 1 above, the other party has until 4:00pm on 17 August 2023 to file and serve any submissions in reply.
3. Any review of the assessment is to be determined on the papers.
4. If by 4:00pm on 3 August 2023 a party has not made an application for review, the taxing officer will sign a Certificate of Taxation in the sum of $26,231.75.
By the above orders, the Registrar permitted the parties 28 days to apply for a review of the taxation pursuant to O 66 r 53 RSC (being 4.00 pm on 3 August 2023).
On Saturday, 5 August 2023, after the deadline imposed by the Registrar, the plaintiff emailed a letter to the Registrar (dated 4 August 2023) requesting that the bill of costs not be certified.[5] The letter states:
I refer to the programming orders on 6 July 2023, requiring the plaintiff to file a review of taxation by 3 August 2023.
As you are no doubt aware, the programming orders were extended because my chamber summons seeking a stay of the taxation had not been resolved. That chamber summons is being heard by Justice Lundberg, who has also made programming orders towards an oral hearing in September 2023.
In the above circumstances, I request that the bill of costs not be certified until my application for stay of taxation is resolved. Could you please confirm that it is not necessary for me to file an application for review?
[5] I clarified the timing of these communications with the parties during the hearing: ts 182 - 184, 186.
The suggestion in the second paragraph that the programming orders had been extended is not correct.
The defendant's solicitors responded on Monday, 7 August 2023, drawing the court's attention to the timetable which had been ordered, noting that no objections had been filed by 3 August 2023. Later, on the same day, the plaintiff filed a request for review of taxation.
In response to the foregoing, the Registrar wrote to the parties on Tuesday, 8 August 2023.[6] In substance, the Registrar's letter makes the following points:
[6] De Koning Affidavit affirmed 10 August 2023, Attachment ODK-1 at pages 13 - 15.
(a)First, the Registrar outlined the orders made on 6 July 2023, which were made in the presence of the plaintiff.
(b)Second, the Registrar noted the observation he had made on 6 July 2023 at the taxation that the application contained in the plaintiff's chamber summons dated 4 July 2023 could be prosecuted regardless of what transpired that day. He raised the point that a period of 28 days for the filing of any objections and application for review would be an intervening period during which the application as contained in the chamber summons could be pursued.
(c)Third, the Registrar noted in the letter that the period of 28 days was set by the consent of the parties and was longer than the standard period of 14 days set forth in the RSC.
(d)Fourth, the Registrar noted the observation he had made on 6 July 2023 at the taxation that the parties were at liberty to contact his chambers if the hearing of the chamber summons gave rise to any party wishing to apply to alter the timeframes contained in the orders.
(e)Fifth, the Registrar addressed the plaintiff's application for review as follows:
Despite the terms of the orders, and comments made during the hearing on 6 July, you did not file any objections or an application for review by 4pm on 3 August 2023.
As provided in Order 66 rule 53(1), objections may be delivered and an application for review made at any time before a certificate of taxation is signed or at such earlier time as may, in any case, be fixed by the taxing officer.
The time for the delivery of objections and application for review was fixed by the orders of 6 July 2023.
You have filed a request for review of the taxation out of time but have not made any application (pursuant to Rules of the Supreme Court 1971 (WA) Order 3 rule 5, or otherwise) to extend the time within which to file objections or apply for review (either during the 28-day period, or concurrently with the application for review).
You have not provided any reasons (including by way of affidavit) for why the objections and application for review were not filed within time, or why an extension should now be granted.
The application for review that has been lodged was not made within the time fixed by the orders, as contemplated by Order 66 rule 53(1). On that basis, I do not propose to further deal with the application that has been lodged.
(f)Sixth, the Registrar addressed the plaintiff's request that the certificate of taxation be withheld as follows:
I refer to your letter dated 4 August 2023, requesting that the bill of costs not be certified until your application for a stay of the taxation is resolved.
The letter states:
As you are no doubt aware, the programming orders were extended because my chamber summons seeking a stay of the taxation had not been resolved.
The reasons for the 28-day period within which to file objections and an application for review are as contained in the transcript. The time frame for objections and application for review, being the premise for the operation of order 4, was not set on the basis that the application for review and the issuing of the certificate would await the determination of the application in the chamber summons.
In the absence of an application for review within the specified time, the certificate of taxation is to be signed.
I do not propose to invite submissions on this matter, in circumstances where an application for the adjournment of the taxation was made and refused at the beginning of the hearing on 6 July, and to do so would require the defendant to expend further costs in relation to matters canvassed at the hearing. I note that the parties have been at liberty to file a certificate of urgency in relation to the stay application that remains on foot, (including on the basis of the effect of the orders made on 6 July including order 4) but have not done so.
The certificate of taxation has been signed pursuant to order 4.
On 8 August 2023, the Registrar certified that he had taxed the bill of costs filed by the defendant on 25 November 2022 in the amount of $26,231.75.
The present application
On 13 July 2023, I made programming directions in relation to the plaintiff's permanent stay application which had been filed on 4 July 2023.
In the period between the directions hearing and the listed hearing, the plaintiff's application has changed direction.
First, the plaintiff filed the chamber summons on 4 July 2023 which I have referred to above, to permanently stay the taxation of the defendant's bill of costs.
Next, the plaintiff filed an application for review of taxation pursuant to O 66 r 53 RSC, which was filed on 7 August 2023. That application was filed out of time - the deadline for such an application was 3 August 2023, being 28 days after the taxation (see order 1 of the Registrar's orders made on 6 July 2023).
Next, the plaintiff filed a re-amended chambers summons, which was filed on 9 August 2023, which maintained the application for a permanent stay but also sought an order that the certificate of taxation signed by the taxing officer on 8 August 2023 be set aside and the bill of costs be remitted to the taxing officer to process the plaintiff's request for review dated 7 August 2023.
Next, on 25 August 2023, the plaintiff filed two documents. First, a re-amended version of the previous chamber summons (Re-Amended Chamber Summons). Second, a fresh application for review of taxation by a Judge pursuant to O 66 r 55 RSC (Application for Review) which set out the alleged errors of principle, among other matters, upon which the plaintiff relied to challenge the taxing officer's assessment.
The Re-Amended Chamber Summons abandoned the application for a permanent stay and sought an extension of time to file an application for review of the taxation by a Judge, coupled with an order pursuant to O 66 r 55 RSC that the plaintiff's request for review dated 7 August 2023 be treated and heard by this court as an application for review of taxation by a judge.[7] The Re-Amended Chamber Summons also sought a further form of relief (described as alternative relief, but appears to have been sought in addition to the above relief), namely an application for the suspension of enforcement of the costs judgment dated 8 August 2023, pursuant to s 15 of the Civil Judgments Enforcement Act 2004 (WA) (CJE Act).
[7] The grounds as stated were that the taxing officer erred in principle by signing a certificate of taxation on 8 August 2023 without considering the plaintiff's objections in the request for review and without responding to the plaintiff's request dated 4 August 2023 that the programming orders for review be extended until this summons was resolved.
For the purposes of the hearing, the plaintiff relied upon an outline of submissions dated 7 August 2023 and the defendant relied upon two sets of submissions, filed on 15 August and 7 September 2023.
I reserved my decision on the application on 11 September 2023.
D. Events following the hearing
Following a request from the defendants, I subsequently granted leave for the parties to file further submissions in relation to any issues arising out of the decision of the Court of Appeal in Frigger v Computer Accounting & Tax Pty Ltd,[8] which had been delivered on 26 October 2023.
[8] Frigger v Computer Accounting & Tax Pty Ltd [2023] WASCA 152 (Mazza and Mitchell JJA), being an appeal against a decision of Smith J in COR 2 of 2010. The reasons for decision of the Court of Appeal concern an application made by the respondents for security for costs of the appeal, which the Court granted.
In their reasons, the Court of Appeal dealt with a matter which had also been the subject of argument at the hearing before me on 11 September 2023. Specifically, the Court of Appeal addressed the merits of the indemnity principle argument which the plaintiff raised in the current proceedings.
I received further submissions from the defendant on 3 November 2023 and from the plaintiff on 10 November 2023, addressing the implications of the Court of Appeal's decision. I will return to this issue when I deal with the merits of the plaintiff's application.
E. Legislative framework
The court has full discretionary power to determine by whom the costs of any proceedings are to be paid, subject to the provisions of the Act and the rules of court: s 37 of the Supreme Court Act 1935 (WA). The general rules as to costs are set out in div 1 of O 66 RSC. The rules concerning taxation of costs are set out in div 2, commencing with O 66 r 32 RSC. This provides that where bills of costs are to be taxed, the bill shall be taxed, allowed and certified by the taxing officer.
By O 66 r 42 RSC, a bill of costs for taxationis to be prepared so as to clearly show the particulars of the items being claimed with a reference to the item in the scale to which it relates. The powers of the taxing officer are described in O 66 r 44 RSC.
The process for the review of taxation is dealt with in div 3. By O 66 r 53 RSC a party who contends that the taxing officer has 'made an error in principle in allowing or disallowing any item' may deliver an objection 'specifying in the objection by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objections'. The objector may then apply to the taxing office to review the taxation. The terms of O 66 r 53 RSC are below:
53. Party dissatisfied with taxation may object and apply for review
(1)A party who contends that the taxing officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, or at such earlier time as may, in any case, be fixed by the taxing officer -
(a)deliver to the other party interested in the allowance or disallowance and carry in before the taxing officer, an objection in writing to the allowance or disallowance specifying in the objection by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objections; and
(b)thereupon apply to the taxing officer to review the taxation in respect of those items or parts.
(2)Pending the consideration and determination of the objection, the taxing officer may if he thinks fit issue a certificate of taxation for or on account of the remainder or of part of the bill of costs. Any further certificate which may be necessary shall be issued by the taxing officer after his decision upon the objections.
By O 66 r 54 RSC, the taxing officer shall reconsider and review his taxation and, if so required, shall state the ground and reason of his decision on the objection. The taxation officer shall not, after a certificate of taxation is signed, review his taxation or amend his certification, except to correct a clerical or manifest error. The terms of O 66 r 54 RSC are set out below:
54. Review of taxation by taxing officer
(1)Upon an application under rule 53 to review the taxation, the taxing officer shall reconsider and review his taxation in relation to the objections, and he may, if he thinks fit, receive further evidence in respect of the objections.
(2)If so required by a party, the taxing officer shall state in his certificate of taxation or by reference to the objection, the ground and reason of his decision on the objection, and any special facts or circumstances relating to his decision.
(3)The taxing officer may tax the costs of the objections and add them to or deduct them from, any sum payable by or to a party to the taxation.
(4)Except as provided by this rule, the taxing officer shall not, after a certificate of taxation is signed, review his taxation or amend his certificate, except to correct a clerical or manifest error before payment or process issued for recovery of the costs.
(5)If a party fails to appear on the taxation the taxing officer may, upon an application in that behalf made in writing within 7 days, set aside or vary his certificate of taxation on such terms as he thinks just.
By O 66 r 55 RSC, if a party is dissatisfied with the certificate of the taxing officer he may, within 14 days from the date of the certificate, apply to a judge in chambers for an order to review the taxation as to that item. The terms of O 66 r 55 RSC are set out below:
55. Review of taxation by judge
(1)If a party is dissatisfied with the certificate of the taxing officer as to any item or part of an item objected to under rule 53 of this Order, he may, within 14 days from the date of the certificate, or such other time as the Court, or the taxing officer at the time he signs his certificate, allows, apply to a judge in chambers for an order to review the taxation as to that item or part of an item.
(2)The judge, if of opinion that the taxing officer has made an error in principle, may thereupon make such order to rectify the error as the judge thinks just.
(3)The certificate of the taxing officer is final and conclusive as to all matters which have not been objected to in accordance with these rules.
In Rankilor v Circuit Travel Pty Ltd[9] the authorities concerning the ambit of the phrase 'error of principle' were reviewed by Murphy JA (with whose reasons McLure P and Newnes JA agreed). Subsequently, a comprehensive analysis of the principles, and the proper approach to be followed by a Judge in reviewing a taxing officer's decision, was set out by Vaughan J (as his Honour then was) in City of Belmont v Saldanha [No 2].[10] Drawing on those helpful decisions, I consider I must approach the present matter by reference to the following primary propositions of law:
(a)An applicant seeking a review bears the onus of satisfying the court that the decision reached by the taxing officer is wrong, in the sense of disclosing an error in principle.
(b)The review of a taxing officer's decision attracts the usual principles that apply where appellate jurisdiction is exercised in respect of decisions involving a discretionary judgment. That is, there is a strong presumption in favour of the correctness of the decision. The decision will be affirmed unless the court is satisfied that it is clearly wrong.
(c)Errors in principle may be made both in determining whether an item should be allowed and in determining how much should be allowed.
(d)An error in principle may be inferred from a decision of the taxing officer if the result is such that the discretion appears not to have been exercised at all, or where it has been exercised in a manner that is manifestly wrong.
(e)Although it is possible for an error in principle to be made in regard to the quantum allowed in respect of a particular item, that is generally regarded as unusual. An error in principle on this basis could only be established if it is shown that no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question.
[9] Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155.
[10] City of Belmont v Saldanha [No 2] [2018] WASC 278.
As Vaughan J has observed, and likewise Kenneth Martin J before him, taxing officers are afforded a wide discretion, and the further window of opportunity for a review which is allowed under O 66 r 55 RSC is extremely limited. This is the case given the expertise which is developed by registrars through their direct experience in conducting taxations, by which they acquire a level of knowledge and detail beyond that of the judges of this Court.[11]
[11] City of Belmont v Saldanha [No 2] [40] (Vaughan J) and W J Green & Co (1984) Pty Ltd v Tace Pty Ltd [No 4] [2010] WASC 363 [23] (Kenneth Martin J); and Zaghloul v Woodside Energy Ltd [2019] WASC 125 [36] - [46] (Kenneth Martin J).
F. Application for review pursuant to O 66 r 55 RSC
I will first address the plaintiff's application for a review of the taxation pursuant to O 66 r 55 RSC.
Amendment of the application
It should first be noted that the plaintiff seeks leave to amend the application and, further, the application is out of time and requires leave in that regard as well. The application to amend the application was not opposed by the defendant. It is appropriate in the circumstances to grant leave to amend the application in the terms of the Re-Amended Chamber Summons dated 25 August 2023. I will hear from the parties as to any costs orders which should be made in this regard.
Application to extend time
By his orders made on 6 July 2023, Registrar Nelson fixed the time for any party to make a request for review of the taxation. The time fixed was 4.00 pm on 3 August 2023. The plaintiff's request for a review (now to be made under O 66 r 55 RSC, seeking to bypass the orderly procedure I have outlined at [41] to [47] above) was made after that time, and so was not made in accordance with O 66 r 53(1) RSC. The extension of time required is not lengthy, but the underlying merits of the application first require some consideration. Even a short extension of time ought not be granted if the substantive purpose of that extension is to permit a meritless application to proceed.
I therefore turn to the merits of the application and will return in due course to deal with the extension question.
Merits of the application
On the basis of the submissions filed by the plaintiff, and from the course of argument on 11 September 2023, it became apparent that the plaintiff wished to agitate six individual grounds, said by her to constitute errors of principle on the part of the Registrar. The grounds are summarised in the table in Attachment A.
I will address each of these asserted errors in turn.
Asserted Error 1
The first asserted error is set out in the Re-Amended Chamber Summons at paragraph (b) and in the Application for Review at [1]. The asserted error is that the Registrar erred in principle by signing a certificate of taxation on 8 August 2023 without considering the plaintiff's objections in the request for review. A denial of procedural fairness is asserted.
The primary difficulty with the challenge is that the Registrar's decision to not consider the late objections, but rather to proceed to sign the certificate of taxation, is not a decision which is amenable to review by a judge pursuant to O 66 r 55 RSC. This jurisdiction is limited to reviewing 'the certificate of the taxing officer as to any item or part of an item objected to under [O 66 r 53]'.[12]
[12] Glew v Shire of Greenough [No 2] [2008] WASCA 75 [17] - [18].
In any event, the Registrar plainly addressed the belated issues raised by the plaintiff, as is evident from the comprehensive letter sent to the parties on 8 August 2023.[13] It is apparent from that letter that the plaintiff did not make any application to extend the time within which to file objections, nor apply for review.
[13] De Koning Affidavit affirmed 10 August 2023, Attachment ODK-1.
The plaintiff had had ample time to consider her position prior to the taxation, and made submissions at the taxation in support of her objections. The plaintiff's out of time request was a de facto renewed adjournment application, which the Registrar declined as explained in his letter.
In my view, the asserted error of principle does not fall within O 66 r 55 RSC and, in any event, cannot be sustained.
Asserted Error 2
The second asserted error is that the Registrar erred in principle in circumstances where the plaintiff made a written request on 4 August 2023 for the programming orders for review to be extended until the plaintiff's application for stay was resolved, but the Registrar failed to consider or respond to the request.
It is simply wrong, in my view, to assert that the Registrar signed the certificate of taxation 'without responding to the plaintiff's request dated 4 August 2023 that the programming orders for review be extended until this summons is resolved'. I say that because it is apparent that the plaintiff did not request that 'the programming orders for review be extended'. The plaintiff instead requested that the bill of costs not be certified until the application for stay of taxation was resolved.[14]
[14] Frigger Affidavit sworn 25 August 2023, Attachment AF10.
Further, as noted above, the Registrar did in fact consider and then responded to the request. I refer to his letter to the parties dated 8 August 2023. Finally, I note the plaintiff ultimately abandoned her application for a stay of the taxation so the complaint is somewhat otiose.
The asserted error should thus be rejected for largely the same reasons applicable to the rejection of the first error. The asserted error of principle does not fall within O 66 r 55 RSC and, in any event, cannot be sustained.
Asserted Error 3
The third asserted error relates to the plaintiff's reliance on the indemnity principle. The error is identified in items 1 to 4 of the schedule to the Application for Review, and is also described by the plaintiff as 'Objection No. 1'.
The plaintiff developed this argument at some length at the hearing before me.[15] In essence, the argument is based on the statements made to the court by counsel for the defendant in other related proceedings, which are recorded in an extract of a transcript which the plaintiff handed up during the hearing. On the basis of these statements, the plaintiff asserts that Mr Kitay had, and has, no liability to pay HSF's costs until CAT has received funds in the liquidation, and that the onus has shifted to Mr Kitay to prove that he was, in fact, liable to pay HSF's costs. Absent such proof, the plaintiff maintains that it is not competent for the costs orders to be sought against her.
[15] ts 189 - 197.
As I noted earlier, this is an issue on which the Court of Appeal has now opined and in respect of which I have received additional submissions from the parties.
It is convenient to set out portions of the Court of Appeal's reasons at this point, which explain why the Court rejected the same propositions put by Mrs Frigger in that case:[16]
[16] Frigger v Computer Accounting & Tax Pty Ltd [30], [37], [39] and [40] (footnotes and citations omitted).
[30]Mrs Frigger also annexed one page of transcript in which she contends Mr John stated that Mr Kitay has not paid any costs to his firm, and has no liability to pay costs, unless he recovers funds in CAT's liquidation. Mrs Frigger asserts that, since his appointment on 21 January 2020, Mr Kitay has not recovered any funds in CAT's liquidation. However, the annexed transcript does not establish either proposition. Further, no context for the transcript has been provided, and it is not clear from the extract provided what is being discussed.
…
[37] We do not accept the appellants' submission that the indemnity principle provides a reason why security for costs should not be required.
…
[39] In the present case, there is no evidence establishing that the respondents have no liability to their solicitors so that they cannot recover costs from the appellants pursuant to the indemnity principle. The evidence does not overcome the presumption that the respondents are liable to pay costs to their solicitors on the record. It is, in all the circumstances, appropriate to require the appellants to provide security for what is at least a prima facie liability of the respondents to their solicitors in respect of the costs of the appeal.
[40]The appellants relied on the observation of Pritchard J in Hancock Prospecting Pty Ltd v Hancock [No 3], that the presumption as to the existence of a retainer may be displaced by evidence inconsistent with the existence of a retainer. That observation does not assist the appellants as, in the present case, there is no evidence inconsistent with the existence of a retainer. The transcript annexed to Mrs Frigger's affidavit, on which the appellants rely, is entirely consistent with the existence of a retainer between the respondents and their solicitors.
The plaintiff's argument before me was identical to the contention put by the plaintiff, and rejected, in the proceedings before the Court of Appeal. Whether or not I am necessarily bound by the decision of the Court of Appeal to also reject the contention in this proceeding, I have no hesitation in doing so. The plaintiff's contention is misconceived in that it attempts to build a challenge based on a misreading of the terms, and legal effect, of a transcript of prior proceedings. The plaintiff's challenge seeks to invert the onus of proof in my view.
Relatedly to the above argument, the plaintiff seeks to criticise the Registrar for not acceding to a late request to compel documentary production on the part of the defendant.[17] The Registrar's decision to decline to exercise the power to compel production, which would have inevitably delayed the taxation process, is a discretionary decision in respect of which I can see no discernible error.[18] It was within the range of reasonable responses one would expect from a Registrar in the circumstances of this case, especially where the foundational argument on which the exercise of the power was sought was without merit.
[17] ts 194 - 195.
[18] Taxation ts 118.
A decision to order production of documents, even if there was utility in so doing, would have further delayed the taxation process. Any such request from the plaintiff should have been raised at a far earlier point in the proceedings.
I therefore accept the force of the defendant's submission in this regard.[19]
[19] ts 240.
Further, as the defendant's counsel observed, it was not simply the case that the Registrar only took into account one factor, being the delay, in assessing these issues. It is apparent from the transcript of the taxation that the Registrar considered all the submissions that were made, including in relation to the question whether or not the evidential burden had shifted onto the defendant to demonstrate that the indemnity principle had not been displaced.[20]
[20] ts 241
The issue was also the subject of a detailed interchange between the court and the plaintiff at the hearing on 11 September 2023, an extract of which appears below:
LUNDBERG J: …because that, then, goes to a question of discretion of the Registrar as to whether he should make such an order, and that involves questions of delay, given that the relevant order that had been made [as to] the costs is 25 October 2022. A bill of costs [had] been lodged on 25 November 2022. You objected to provisional assessment on 13 April, and the matter was programmed to a hearing for 5 July, for a taxation, that is. I may be wrong. But did you appear on 5 July at the first taxation hearing?
FRIGGER, MS: No, I - - -
LUNDBERG J: No.
FRIGGER, MS: It had - somehow or other, I got the date wrong. I thought it was 6 July.
LUNDBERG J: So you appeared on 6 July, and, there, you sought the order. What you're, really, then, challenging is an exercise of discretion by the Registrar as to whether he will make an order for further documents to be produced, which hadn't been sought before that time, as in, you hadn't sought the order, and questions of delay go into that question.
…
LUNDBERG J: - - - but the question then falls upon the party who's seeking the relevant order - the party who is seeking to move the court for an order. That party needs to proceed in an expeditious way, and I gather what you're saying to me is the Registrar declined to exercise his discretion to make the order on 6 July because that would effectively have meant the taxation would need to be adjourned.
FRIGGER, MS: Yes.
In my view, the challenge to the Registrar's refusal to exercise a power to compel the production of documents, and the plaintiff's contention concerning the indemnity principle, are both without merit. The asserted error of principle cannot be sustained.
Asserted Error 4
The fourth asserted error is that the taxing officer is said to have erred in principle in allowing certain costs in respect of the preparation of an originating process, referable to scale item 11(a)(3). The amount of $9,668.01 was claimed by the defendant and an amount of $8,085 was ultimately allowed. The amount claimed was supported by a schedule attached to the bill of costs. The asserted error is identified in item 2 of the schedule to the Application for Review, and is also described by the plaintiff as 'Objection No. 3'.
The plaintiff attacks the item by asserting that the defendant did not prepare an originating process and so no costs should be permitted.
The ground is misconceived and involves a misreading of the scale item.[21] The scale item relations to 'Motions and originating process'. It applies where there has been work undertaken in relation to an originating application such as the present proceedings, wherein the plaintiff filed an originating process under the Corporations Act. Plainly, the defendant did not prepare, file or serve an originating process. That was work undertaken by the plaintiff. The plaintiff asserts therefore that the defendant cannot claim for preparing the originating summons. However, the costs claimed by the defendant in this respect were in respect of work undertaken in responding to the plaintiff's originating process.
[21] ts 199 - 203.
The plaintiff then complains that the amount allowed in this respect ($8,085) was unreasonable. No proper basis was identified in argument by the plaintiff to support this contention. The maximum scale amount was $39,490. The amount allowed by the Registrar was in the range of reasonable decisions one might expect from a Registrar in the circumstances, and having regard to the work itemised by the defendant's solicitors.
The quantum allowed was the subject of an interchange between the court and the plaintiff during the hearing:
FRIGGER, MS: Except if the amount is so high that no other reasonable taxing officer would have allowed it, and this amount is almost the entire amount that is allowed for preparing a case, then it is an error of principle. And, your Honour, I can - there's - that's another authority I need to bring to your attention.
LUNDBERG J: See, the preparation of the case which you're pointing to in line item 2, scale item 11(a)(iii), is supported in the original bill by a schedule …. And it is described as being work undertaken in relation to preparation of case including but not limited to correspondence … reviewing your originating process, reviewing your affidavit, reviewing your further affidavit, reviewing your statement of grounds, drafting a letter, a further letter, reviewing your affidavit, drafting an order 9A rule 2 letter, and reviewing a letter regarding the discharge of bankruptcy. There's a series of hours that are pointed to with rates and then an amount. And, ultimately, I gather that has then been reduced as the bill has been filed and amended thereafter. So your first point I'm afraid doesn't get anywhere, which is the suggestion that the item - where in principle was that the item relates to the preparation of an originating process in circumstances where the defendant wouldn't have prepared originating process, that's a misunderstanding of what is being sought. So I can tell you now that is not going to go anywhere on this application. You're then saying it's an amount that is so unreasonable ‑ that should not be allowed by any reasonable decision‑maker. The amount that is being sought is $8,085. How do you sustain that as being an error of principle of the sort you've just identified?
FRIGGER, MS: Because all of that work that was done - that is alleged to have been done was the work that they did to bring an application for summary judgment, and so it has been repeated in item 4. So that's what I say. Only one of those items could have been allowed, not both, because this matter never went to a trial. Everything that they did, as far as item 2 is on their bill, is actually what work they did to make an application for summary judgment. They could not have repeated that for the summary judgment separately, no way. That is simply illogical.
The challenge to item 2 thus also involves an assertion of duplication of work as between items. I refer to asserted error 5 below in this regard.
In the context of a claim advanced by the plaintiff against the defendant seeking damages in the order of millions of dollars,[22] the extent of the work undertaken by the solicitors in relation to the originating process is more than reasonable. The Registrar described the proceedings as complex. The plaintiff filed the process with a supporting affidavit of more than 400 pages in length. The issues raised by the plaintiff in the proceedings may have previously been known to the defendant and his solicitors, but that does not sustain the plaintiff's argument that the defendant was somehow unreasonable in instructing solicitors to review and consider the fresh proceedings.
[22] ts 206.
For my part, I cannot ascertain any proper foundation for the plaintiff's suggestion that there was duplication of work by the solicitors, much less duplication which might rise to the level of constituting an error of principle on the part of the Registrar.
The plaintiff went on, in argument, to raise unfounded allegations about the conduct of the defendant's solicitors.[23] Given the opportunity to withdraw the allegation, the plaintiff did so, although only momentarily and in a manner which was far less than fulsome.[24]
[23] ts 201 - 202.
[24] ts 205.
As I made clear at the hearing, suggestions that legal practitioners have engaged in unprofessional conduct without the benefit of any evidence in support thereof are serious allegations which should not be tolerated by the court, regardless of whether the advocate is an unrepresented party or otherwise. The broad inherent supervisory jurisdiction of this court over legal practitioners exists not only to discipline or control the conduct of legal practitioners, but has a concomitant component, as an aid to the administration of justice, to provide a measure of protection to those practitioners in such circumstances.
Further, the court's general inherent jurisdiction permits it to control the conduct of those who appear before it, including unrepresented litigants.
In either case, it is improper to simply level such allegations and then demand that they be disproved by the practitioner.[25] That is an inappropriate reversal of the onus of proof. The making of such allegations and the failure to provide a fulsome withdrawal and apology are matters which warrant censure of the party who advances them, as in this case.
[25] ts 203.
In my view, the asserted error of principle cannot be sustained.
Asserted Error 5
The fifth asserted error is that the taxing officer is said to have erred in principle by allowing amounts in each item and so there is a double claim for the same work. The plaintiff asserts there was duplication of work by the solicitors in seeking costs for the summary judgment hearing while also seek costs for reviewing the originating process (item 2).[26] The asserted error is identified in item 4 of the schedule to the Application for Review, and is also described by the plaintiff as 'Objection No. 9'. This error was also identified by the plaintiff as part of asserted error 4 above.
[26] ts 204 - 207
There is no error of principle disclosed in this regard. The quantum claimed by the defendant, and the work undertaken, was carefully reviewed by the Registrar and he taxed off certain amounts in respect of items 2 and 4.[27] The detail of the work undertaken was disclosed in detailed schedules provided by the defendant's solicitors. The issue was the subject of a further exchange with the plaintiff during the hearing:[28]
LUNDBERG J: Well, what I will say to you is that the bill of costs as lodged includes two schedules in customary form for the two largest items in order to alert the taxing officer to the granular detail of them, schedules 1 and schedule 2. And it's a matter then for the registrar upon a taxation to assess whether there are any aspects of duplication between those items and to allow or disallow the bill as he sees fit. I see that the amounts in questions that are ultimately ordered and appear in your document are less than the amounts in the original schedule. So some amounts have been reduced, whether voluntarily or by taxation. That is not an uncommon step, but the question of duplication was live in front of the registrar. That has been considered and determined by him. He has exercised discretion. There's no suggestion by you that the Registrar did not approach or understand your submission about the duplication, is there? You made submissions about that in front of the registrar.
FRIGGER, MS: I did.
LUNDBERG J: Yes. All right. Well, it's - I have to say, it's not a convincing error of principle. It's really - it's a discretionary question.
[27] Defendant's submissions dated 15 August 2023, [36].
[28] ts 205.
The plaintiff sought to persuade me that the defendant (and his solicitors) must have been well aware of the issues raised by the new proceedings as similar claims had previously been made by the plaintiff.[29] These matters were also considered by the Registrar.
[29] ts 206 - 208.
The amount allowed by the Registrar for item 4 was $11,254.45, for the special appointment before Allanson J on 16 March 2021, concerning a summary judgment application, strike out application and security for costs application. That is, with respect, a modest amount for the type of hearing in question and the issues raised in the proceeding by the plaintiff, whether they had previously been raised or not. I can discern no error of principle in the approach of the Registrar in the circumstances. The matter is fundamentally a discretionary assessment as to quantum.
In my view, the asserted error of principle cannot be sustained.
Asserted Error 6
The sixth asserted error is that the taxing officer is said to have erred in principle in allowing costs when there was no jurisdiction to award costs. The asserted error is identified in items 5, 6, 7, 8 and 9 of the schedule to the Application for Review. This error is thus said to relate to the amounts of $506 (item 5 - directions hearing), $506 (item 6 ‑ attending on reserved judgment), $638 (item 7 - drawing bill of costs), $2,392 (item 8 - attending taxation) and $545 (item 9 - bill of costs filing fee).
The challenge, so far as I understood it, can be divided into two parts. There is a challenge to items which relate to the pre-taxation process, and then a challenge to items which concern work undertaken in the taxation process itself. The plaintiff asserted at the taxation before the Registrar that in the absence of a specific costs order made in respect of the costs of the taxation, no costs could be recoverable.
Even if this contention to be accepted as correct, it does not provide a foundation for the challenge to items 5 and 6, which pertain to work undertaken by the defendant's solicitors at a directions hearing and attending on reserved judgment. In my view, the defendant was entitled to recover its reasonable costs, in accordance with the scale, in respect of work undertaken in this regard by reason of the costs order made in its favour by Allanson J on 25 October 2022.
The defendant was thus entitled to recover its costs of defending the Application (being the originating process filed by the plaintiff) and of the interlocutory process it had filed. Such an order would encompass the costs of the directions hearing and receiving judgment, matters which are the subject of specific scale items, unless the Court had made an order to some contrary effect (which it had not).
Turning then to the remaining items, the plaintiff drew the court's attention to a passage in Professor Dal Pont's leading text on costs, which suggests there may be a lacuna in Western Australia as to the ability to recover costs in respect of the taxation. The plaintiff relied on the same passage before the Registrar. The passage reads as follows:
[18.41] Other than in Western Australia, statute or rules prescribe by whom the costs of the process of taxation are to be paid. This is influenced, generally speaking, by the result of the taxation - traditionally known as the 'one-sixth rule', namely that if costs allowed on taxation were reduced by one-sixth or more, the claimant paid the costs of the taxation - and in some jurisdictions compared to any offer of settlement relating to the costs. Delay or default in seeking taxation may also influence the liability for costs in this context.
Where the rules make no provision for costs of taxation, the taxing officer arguably lacks the jurisdiction to order costs. This can be justified in that, if a court cannot exercise a jurisdiction to order costs except as conferred by statute, a taxing officer cannot exercise the same simply by inherent power. That the rules in most jurisdictions make specific provision for such a power in the taxing officer of itself suggests that this power is lacking at general law.[30] (emphasis added)
[30] Dal Pont G E, Law of Costs (5th ed, 2021) 18.41.
The emphasised passage rises no higher than a statement that a taxing officer arguably lacks jurisdiction where the rules make no provision for the costs of taxation. No particular authority is cited by the learned author in support of the arguable proposition. The Registrar rejected the proposition.[31]
[31] Taxation ts 148 - 149.
The plaintiff's contention is, in effect, that the defendant is, without a specific order of the court, unable to recover the costs of preparing the bill of costs, attending the taxation, or the court fee it paid upon filing the bill of costs.
In my view, the authority for the Registrar to award costs in favour of the defendant in respect of the preparation of the bill of costs, the attendance at taxation, and in respect of the filing fee, is found in the primary costs order made by Allanson J on 25 October 2022 (specifically order 2 thereof). I have extracted that order above in these reasons. That order should be read in the context of div 2 of O 66 RSC which authorises a registrar of this court to undertake the taxing process. Specifically, O 66 r 32(1) RSC provides that:
Unless the Court in a particular case otherwise directs, bills of costs and fees which are payable to legal practitioners admitted and entitled to practise in the Court in respect of business transacted by them in the Court or its offices, and which have been directed by judgment or order to be taxed, shall be taxed, allowed and certified by the taxing officer who shall appoint a time for taxation on the application of the party claiming taxation.
Once the costs are allowed by a Registrar on a final certificate of taxation, they are deemed by O 66 r 57 RSC to be a judgment of the Court and may be recovered thereafter.
The order made by Allanson J in the proceedings was sufficiently broad to provide the Registrar with the authority to undertake the taxation and award costs arising from the taxation process which are prescribed in the applicable scale.
The amounts awarded by the Registrar for the items 7 and 8 identified above are found in item 32 of the applicable scale, which includes the following description of applicable work:
Taxing including drawing (a) Drawing bill of costs and service; and (b) Taxation of costs, including the time spent in preparing for the taxation and time required to be spent attending any mediation or conference convened by the Court or attending to any matter required by the Rules or a Practice Direction.
The filing fee paid by the defendant is recoverable as a disbursement, in accordance with O 66 r 36 RSC (which makes it clear that vouchers for court fees need not be attached to the bill of costs) and pursuant to item 36(b) of the applicable scale (which relates to disbursements as between party and party).
I therefore reject the error of principle asserted by the plaintiff.
Conclusion
Accordingly, I have reached the view that each of the asserted errors of principle advanced by the plaintiff, said to have been committed by the Registrar, cannot be sustained and should be rejected, even if the complaints were found to be within the jurisdiction established by O 66 r 55 RSC. In my view, the plaintiff is unable to discharge the onus to demonstrate that the decision of the Registrar on each of the issues I have discussed above is wrong. That being so, there would be no utility in granting the extension of time which is sought by the plaintiff and I refuse to grant that extension.
G. Application for suspension pursuant to s 15 of the CJE Act
The plaintiff seeks an order that enforcement of the certificate of taxation be suspended. The defendant opposed the application. I understood this application was sought in any event, not in the alternative to the application for an extension of time for the review of the taxation.
I will address the application below but the first observation which should be made is to rhetorically enquire: to what end does the plaintiff seek that the order be suspended? There is no appeal on foot against the substantive orders made by Allanson J in October 2022. Thus, once the challenge to the bill of costs has been dealt with, which forms the first part of these reasons, it might reasonably be said there is no utility in deferring or suspending the operation of the costs order.
The foregoing rhetorical question is sought to be answered by the circuitous argument developed by the plaintiff by reference to other proceedings on foot, the outcome of which is said to have some collateral impact on the efficacy of the costs order made in favour of the defendant. As explained below, this approach does not assist the plaintiff.
Let me start with the empowering provision upon which the plaintiff relies. Section 15 of the CJEA relevantly provides as follows:
15. Suspension order
(1) A person against whom a judgment is given may apply for an order suspending the enforcement of all or part of the judgment to -
(a) the court that gave the judgment; or
(b) a court that is dealing with an appeal against the judgment
(2) The court may deal with such an application in the absence of the person entitled to the benefit of the judgment if it is just to do so.
(3) On such an application, the court may only make such an order if there are special circumstances that justify doing so.
(4) A suspension order may be made for any period (including an indefinite period) and may be made on terms as to costs or otherwise.
In essence, it is incumbent on the plaintiff to demonstrate that special circumstances exist which warrant the suspension of any enforcement steps in respect of the costs order. In circumstances such as the present, an applicant would ordinarily need to show, among other things, that refusal of a suspension order could create practical difficulties in respect of the relief which may be granted in favour of the applicant in due course, such as the inability or unwillingness to repay an amount paid by the applicant.
The general principles applicable to such an application (primarily in the context of an appeal) were summarised by Pullin JA in Tradesman Technologies Pty Ltd v Ameduri:[32]
(a) The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
(b) It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.
(c) The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
(d) If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
(e) Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.
[32] Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22], adopting Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]. See also City of Wanneroo v Bakota [2023] WASCA 61 [11].
As the defendant correctly submitted, and as noted above, the plaintiff has, in support of the suspension application, invited this court to 'grapple with the merits' of the various proceedings that the plaintiff is prosecuting in various courts, in order to assess her application.
These other proceedings involve, or will involve, allegations on the part of the plaintiff such as: the appointment of the liquidators was undertaken by fraud; allegations that the registration of the underlying entity was procured by fraud; and allegations that the registration of the entity was obtained by forgery of certain documents.
It is simply unnecessary for the court to embark on a detailed examination of the facts, pleadings and status of the other actions, or assess the likelihood of the plaintiff succeeding on those claims. I say this because the plaintiff's reliance on these arguments requires that I ultimately be satisfied that these other claims, if successfully argued by the plaintiff, would result in the costs order made by Allanson J in this proceeding being undermined in some way.
I am far from persuaded that this connection can be sustained by the plaintiff.
Indeed, the plaintiff's reliance on the existence of other proceedings which, if determined in a particular manner in the future, might somehow vitiate the appointment of the defendant and undo the costs order made by Allanson J is misplaced and highly questionable. It is a tenuous contention, having regard to the source of the costs order in this proceeding, made by Allanson J in response to a successful dismissal application brought by the defendant.[33] I reject the plaintiff's contention that the present or proposed challenges which the plaintiff has identified might arguably be sufficient to undermine or set aside the costs order made by Allanson J in October 2022.
[33] ts 259.
Further, even if I were to accept the arguability of the plaintiff's foreshadowed collateral challenges to the costs order, it is important to emphasise the following:
(a)the costs order in question is in the sum of $26,231.75;
(b)the defendant is a professional liquidator who has been sued in that capacity; and
(c)there is no cogent evidence before the court which would even remotely suggest that the defendant would be unable to repay the above sum in due course, if that was required.
As to the state of the evidence, the plaintiff's evidentiary material was paper thin in this regard. The plaintiff had identified from Landgate records that the defendant holds no land in his own name, but a person she contends to be his wife does hold land (which I will assume to be the case). No other evidence relating directly to the financial position of the defendant was identified. This material is simply inadequate to amount to special circumstances, or to ground any finding as to the financial position of the defendant.[34]
[34] ts 211 - 212.
The plaintiff's sworn contention that the defendant 'has no assets from which [the plaintiff] could recover any moneys which [the plaintiff] may be forced to pay if the taxation judgment is not suspended'[35] cannot be accepted, and I do not accept it.
[35] Plaintiff's affidavit [13].
Next, the plaintiff referred to a document described as 'Particulars of Claims Arising from Matter CIV 276 of 2010 and Costs Orders Made Against Mr and Mrs Frigger in or as a consequence of CIV 2765'.[36] The plaintiff contends that this document demonstrates the defendant owes his lawyers 'at least half a million dollars in legal costs which he has not paid'.[37]
[36] ts 212.
[37] ts 211.
A rudimentary interrogation of this document reveals that it discloses no such thing, as became apparent during the hearing:[38]
[38] ts 212 - 213.
LUNDBERG J: On its face, it says: Total claimed against Mr and Mrs Frigger - On the first page is $2.1 million and some additional amounts. Then there's some additional costs spread over a number of other items and the total is 2.2 million. On its face this seems to be telling me that these are amounts that you owe. Do I misunderstand that?
FRIGGER, MS: Yes, I think you do, your Honour.
LUNDBERG J: Well, isn't that what the heading says?
FRIGGER, MS: Yes, but why - do we - who is the claim being made on behalf of? Is it Mr Kitay claiming costs against us or is it Herbert Smith Freehills claiming costs?
LUNDBERG J: Well, Herbert Smith Freehills are unlikely to so all I'm saying is the document you've given me that's in your affidavit doesn't sustain the submission you've just made so can you tell me something more?
FRIGGER, MS: Yes. Sorry, your Honour. In what respect does it not sustain the submission I've just made? That Mr Kitay owes Herbert Smith Freehills that amount of money: why doesn't it sustain that?
LUNDBERG J: Because that's not what it says.
FRIGGER, MS: Your Honour, the proceeding in front of Hill J - - -
LUNDBERG J: Do you have the document in front of you?
FRIGGER, MS: Yes, I do. It's attached to my - I don't have a hard copy of it, I have - - -
LUNDBERG J: Take me to the part of it that says I should read it as though Mr Kitay has an indebtedness of $2.1 million or thereabouts - in fact, it's 2.2.
FRIGGER, MS: So I've got the document open now: Particulars Of Claims Arising From Matter CIV2765 of 2010 and Costs Orders Made Against Mr and Mrs Frigger As A Consequence Of CIV2765 of 2010.
LUNDBERG J: Yes.
FRIGGER, MS: So the first item there, item 1, just under a million dollars is not costs. Okay. So I'm not saying that Mr Kitay owes a million dollars to Herbert Smith Freehills for item 1.
LUNDBERG J: All right. Well, that's a million dollars gone.
FRIGGER, MS: The second item - - -
LUNDBERG J: Item 2.
FRIGGER, MS: The second item is item 2. An amount of $1,165,661 is a judgment sum. That's not costs.
LUNDBERG J: Well, that deals with the first $2.165 million.
FRIGGER, MS: Yes.
LUNDBERG J: The balance is $74,000 if you go to the page 11.
FRIGGER, MS: Yes.
LUNDBERG J: The balance is $74,304. I ask the same question: why am I reading this as being some liability that is owed by Mr Kitay to some party which you say supports his inability - sorry, his financial difficulty, coupled with the fact that the one house you've mentioned is not owned by him. That's your basis for a suspension - at least the second basis for suspension. I'm afraid I don't read the document in the way you're proposing that I read it.
The exchange which followed between the plaintiff and the court provided no satisfactory answer to the foregoing concerns.[39]
[39] ts 214 - 220.
I am not prepared to infer from the materials adduced by the plaintiff that the defendant would have any inability to repay the modest sum in question, where that to become necessary. Indeed, all indications are that a professional person such as Mr Kitay acting in the capacity of a liquidator would plainly have that ability.
The application for suspension of the enforcement of the costs orders should accordingly be dismissed. There is no reason to disturb the usual position that the successful party is entitled to the fruits of the judgment in their favour - being the costs order in this case.
H. Conclusion and orders
For the foregoing reasons I will grant the plaintiff leave to amend the chamber summons in terms of the Re-Amended Chamber Summons.
However, the plaintiff's application for an extension of time to bring the review of the taxation (whether forming part of the Re-Amended Chamber Summons or the Application for Review) should be refused as the application for review discloses no error of principle and is without any merit. Further, the plaintiff's application to suspend the enforcement of the costs order should be dismissed on the basis it is also without merit. In the circumstances, the Re-Amended Chamber Summons and the Application for Review must be dismissed.
The plaintiff should pay the costs of the application but, given the various modifications to the application and the intimation at the hearing by counsel for the defendant that there have been costs thrown away, I will hear from the parties as to the precise costs orders which should be made.
I will publish these reasons administratively to save the parties some further costs, with final orders to be made at a forthcoming directions hearing, unless they can be made by consent in advance of that hearing.
ATTACHMENT A
Errors of principle asserted by the plaintiff
| No. | Description of the asserted error of principle | Relevant items |
| 1 | The taxing officer erred in principle by signing a certificate of taxation on 8 August 2023 without consideration of the plaintiff's request for review filed on 7 August 2023 in circumstances where, until the certificate is signed the taxation is not completed and there is power to reopen the taxation provided procedural fairness is afforded. | All items. |
| 2 | The taxing officer erred in principle in circumstances where the plaintiff made a written request on 4 August 2023 for the programming orders for review be extended until the plaintiff's application for stay listed before Justice Lundberg was resolved, but the taxing officer failed to consider or respond to the request. | All items. |
| 3 | The taxing officer erred in principle by refusing to call (or order) evidence in support of the liability to pay on the basis of delay. Additionally, and more broadly, the taxing officer erred in principle in concluding that the defendant had a liability to pay costs and did not find that the claim for costs breached the indemnity principle (there being no retainer disclosed and no evidence shown as to whether the defendant is liable if he was not legally appointed as liquidator). | All items. |
| 4 | The taxing officer erred in principle in allowing these costs in that the defendant did not prepare an Originating Process and so no costs are permitted. | Item 2. |
| 5 | The taxing officer erred in principle by allowing the same amount that is allowed in each item and so there is a double claim for the same work (i.e. duplication). | Items 2 and 4. |
| 6 | The taxing officer erred in principle in allowing these costs as no costs order for the costs was made, and thus there was no jurisdiction to award costs. | Items 5, 6, 7, 8 and 9. |
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TL
Associate to the Honourable Justice Lundberg
29 FEBRUARY 2024
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