Frigger v Nigam
[2008] WADC 2
•10 JANUARY 2008
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: FRIGGER -v- NIGAM [2008] WADC 2
CORAM: DEPUTY REGISTRAR HEWITT
HEARD :18 OCTOBER 2007
DELIVERED : 10 JANUARY 2008
FILE NO/S: CIV 1305 of 2005
BETWEEN: ANGELA FRIGGER
Plaintiff
AND
SHARAD CHANDRA NIGAM
Defendant
Catchwords:
Practice and procedure - Review of taxation - Turns on its own facts
Legislation:
District Court Rules
Result:
Taxation reconvened to consider fresh information
Allowance increased in light of that information
Representation:
Counsel:
Plaintiff: P Griffin/In Person
Defendant: Mr S V Forbes
Solicitors:
Plaintiff: Not applicable
Defendant: Stewart Forbes
Case(s) referred to in judgment(s):
Nil
DEPUTY REGISTRAR HEWITT: The plaintiff's bill of costs pursuant to orders made by his Honour Judge Fenbury came before me for taxation on 18 October 2007. The plaintiff was represented at that hearing by Mr Griffin whom she had appointed to represent her for the purposes of taxation. The defendant was represented by Mr Forbes.
The certificate was held open at the conclusion of the taxation to give the parties an opportunity to bring in objections. I have received objections dated 1 November 2007 from the plaintiff. Subsequently in a further letter the plaintiff flagged her intention to supplement those objections with a further document and sought until 16 November 2007 to do so, which I allowed.
The objections commenced by a general overview of the manner in which the taxation was conducted alleging there was a failure to grant the plaintiff procedural fairness which constituted an error in principle. The basis upon which it is alleged that procedural fairness was lacking appears to, in large measure, relate to an order which I made requiring the plaintiff to file in this Court a copy of a bill of costs which had been taxed in the Supreme Court. The relevance of that bill is the fact that the plaintiff acted in person for the most part in these proceedings. To the extent that she had a claim for costs in relation to the orders made by his Honour Judge Fenbury it related to work which was conducted on her behalf by Messrs Mossensons. Since that bill had been taxed by a taxing officer of the Supreme Court, and since it is axiomatic that a party may not recover a greater amount than would indemnify her against the costs she has been liable to pay, I considered it appropriate to inform myself of what figures had been taxed and allowed in the Supreme Court in relation to these matters.
As to the remainder of the general grounds of objection it is, of course, well understood that the amount to be allowed for an item on a taxation requires a consideration of the complexity of the task and whether it was appropriate to be completed by a senior practitioner, a junior practitioner or a clerk and the reasonable time required to perform the task in question. Save from agreeing with the general principle there is little more in the way of comment that is required to the general grounds and I now turn back to the specifics. The first two items of the bill related to the filing of a notice of appeal for which $4,262.50 was claimed and getting up and submissions for which $2,216.50 was claimed. The plaintiff objects to the allowance on the basis that the amount is manifestly inadequate and such that a reasonable taxing officer could not have reached that decision with a proper application of legal principle. It is alleged by the plaintiff that for the same work in the Supreme Court a taxing officer allowed $5,394.58. That prompts comment and the immediate comment on my part is that the plaintiff has claimed more in her bill than she alleges that she paid her solicitors for the work the subject of the claim.
Following receipt of the objections and the allegations that the plaintiff had paid $5,394.58 I reconvened the taxation to ascertain the true position. At that hearing I determined that various items shown in the solicitor client bill as "disallowed" were in fact aggregated with other items and allowed as a lump sum. Doing the best I could with the information before me I calculated that the plaintiff had paid her solicitors about $4,000 for the work which is covered in Items 1 and 2 of the bill namely preparing the notice of appeal and getting up the appeal. Whilst I do not think that the task of preparing the notice was in the least onerous (since r 15 of the Rules of the District Court require a notice of appeal to do no more than identify the orders appealed from and the final order proposed in lieu) much of the work claimed would properly be allowed as getting up. Accordingly, I decided to treat Items 1 and 2 as a single item.
Although the plaintiff paid about $4,000 to her lawyers they charged her at a higher rate than that allowable under the scale, which called for a reduction. I calculated the maximum which could be allowed to be $3,444. That figure I further reduced to $3,000 which I considered a fair allowance for the work involved. Following that determination the plaintiff has lodged a further objection.
Dealing with the substance of the objections:
(a)I was presented with a copy bill on which certain terms were noted as disallowed. No information was provided at the taxation to disabuse me of the notion that "disallowed" meant exactly that. Only when I was provided with a copy of the bill from the Supreme Court was I able to conclude that the items shown, as disallowed were in fact amalgamated with another item in the bill.
(b)I see no reason why the defendant should not have been allowed to make submissions at the hearing on 6 December 2007 and consider it would have been an error to deny that opportunity. The process engaged in on 6 December 2007 was a reconsideration of the earlier taxation in the light of fresh information. Both sides were entitled to and did make submissions.
(c)Of the submissions raised by the defendant the fact that the plaintiff had paid her solicitor at above scale rates was relevant. On a party‑party taxation a paying party (absent any specific order to the contrary such as an indemnity costs order) is not required to pay at a higher rate than that provided by the scale.
As to balance of the matters I am unable to distil any proposition to which I can usefully respond.
The next item relates to Items 3, 4 and 5 which were respectively a claim for costs thrown away attending a taxation of a bill presented by the defendant, some element of the amount claimed in that bill being said to be payable by the plaintiff by virtue of the order and the defendant's costs of attending that taxation. Of those matters the only one which could possibly be claimed was that proportion of the hearing on 21 November 2005 which was wasted by virtue of the fact that the bill had been drawn on a basis subsequently modified by the order made on appeal. As to the other two matters those were simply dealt with by virtue of the orders themselves and are not a basis upon which the plaintiff can make claim but the basis on which the defendant must relinquish its claim. My assessment of the amount of time which was occupied dealing with items to which the defendant's entitlement was removed was considerably less than the $1,093.50 claimed by the plaintiff. It is to be noted that that claim relates to one and a half hours and therefore is approximately $750 per hour, roughly twice the going rate for a senior practitioner. Accordingly, a deduction was called and the deduction was made. As to the balance of the objection, frankly I fail to understand it, but I gather there is said to be some disparity between the amount awarded to the defendant on the taxation and that awarded to the plaintiff. A simple answer to that proposition is that if the plaintiff wishes to object to the amount awarded to the defendant on his taxation she should bring in an objection. She has done so and in my view this is not the forum to deal with an objection on another bill.
Item 6 photocopies
The item was disallowed because:
(a)I failed to see why it was necessary to copy the file in order to obtain an opinion from Mossensons (the originals would have been satisfactory);
(b)the claim appeared to be based on Item 30 in the scale which relates to the amounts solicitors (who bear office overheads, wages, etc) may charge. A litigant in person is only entitled to recoup the amount actually paid for photocopies; and
(c)no evidence of any disbursement was presented.
The next complaint concerns Item 7 which was a fee for a transcript of the proceedings before the Appeal Court. No purpose in obtaining that transcript was demonstrated to me and as a consequence no allowance was made.
Although not relevant to the objections, it is to be noted that the plaintiff claimed a filing fee on a bill of costs which in fact was not paid, her fees being waived.
The next item concerns preparing for and attending taxation. That allowance was made after calculating the amount of time the taxation had occupied and the amount of time spent by the solicitor for the plaintiff in preparing for that taxation. As to interest it is simply irrelevant to the item.
On the rehearing the solicitor for the defendant sought to have this item revisited in light of the time taken at the rehearing. For her part the plaintiff complained that no regard was taken of about two hours she spent with her solicitor prior to the taxation. Weighing one against the other I have reached the view that the original allowance should not be disturbed.
For these reasons the objections are not allowed and the Bill now stands at a total of $3,767.50. I now turn to consider the defendant's objections which are:
1.The defendant objects firstly on the basis that in determining the allowance made by the Deputy Registrar of an amount of $3,000 the Deputy Registrar erred in principle by including services rendered by the plaintiff's former solicitors in relation to the affidavit of A Frigger sworn 7 November 2005 in circumstances where:
(a)the affidavit in question was directed solely to an application by the plaintiff for an extension of time within which to file the appeal;
(b)no costs order has been made in relation to the application for an extension of time;
(c)the costs orders made by his Honour Judge Fenbury on 21 September 2006 (as later amended) do not include the costs of the application for an extension of time; and
(d)the services in relation to the affidavit were therefore not necessary in this particular case.
2.The Registrar further erred in relation to the taxation of Items 1 and 2 by including in the allowance of $3,000 an allowance for getting up by the plaintiff's former solicitors in circumstances where such getting up was of no value in the litigation because the plaintiff terminated the retainer of her former solicitors shortly afterwards.
Dealing with those objections:
1.His Honour made what I would describe as an omnibus order in regard to the matters before him making no distinction between that part which related to the application for an extension and the appeal itself. I accept that his Honour could have made separate orders regarding the separate components but he did not, and on my interpretation of his order awarded the plaintiff the costs of the proceedings which he determined.
2.As to the objection relating to Items 1 and 2 I did not make a separate allowance for getting up appeal and notice of appeal but dealt with those items as a single item. My reason for doing so was that the plaintiff appears in person and in my view should not be penalised for failing to appreciate the niceties of what work constitutes getting up and what does not. It was sufficient for my purposes that the claim should relate to one or another of those heads.
3.The fact that the solicitors did not continue to represent the plaintiff is not to my mind relevant. The work was necessary to formulate the argument on appeal and is therefore allowable.
Having completed my review I allow the plaintiff's bill at $3,767.50.
The time of appeal against any part of this decision is extended to 29 February 2008.
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