Frigger v Nigam
[2007] WADC 10
•14 FEBRUARY 2007
FRIGGER -v- NIGAM [2007] WADC 10
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 10 | |
| Case No: | CIV:1305/2005 | 23 AUGUST 2006 | |
| Coram: | SWEENEY DCJ | 13/02/07 | |
| PERTH | |||
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | ANGELA CECILIA FRIGGER SHARAD CHANDRA NIGAM |
Catchwords: | Allowance on taxation Review by Judge Costs Whether error in principle by taxing officer Turns on own facts |
Legislation: | Rules of Supreme Court of Western Australia (1971), O 66 r 53(1), O 66 r 55(1), O 66 r 55(2) |
Case References: | Bloomfield v Liebherr-Australia Pty Ltd (2005) WADC 113 Brooks v Sunlife Properties Pty Ltd & Anor, unreported; SCt of WA; Library No 970199; 30 April 1997 Clay & Anor v Carlson & Anor, unreported; SCt of WA; Library No 970424; 21 August 1997 Joyce v Hutchinson & Anor (2000) WADC 42 Mossessons (a Firm) v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997 Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SHARAD CHANDRA NIGAM
Defendant
Catchwords:
Allowance on taxation - Review by Judge - Costs - Whether error in principle by taxing officer - Turns on own facts
Legislation:
Rules of Supreme Court of Western Australia (1971), O 66 r 53(1), O 66 r 55(1), O 66 r 55(2)
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr S V Forbes
Solicitors:
Plaintiff : Not applicable
Defendant : Stewart Forbes
Case(s) referred to in judgment(s):
Bloomfield v Liebherr-Australia Pty Ltd (2005) WADC 113
Brooks v Sunlife Properties Pty Ltd & Anor, unreported; SCt of WA; Library No 970199; 30 April 1997
Clay & Anor v Carlson & Anor, unreported; SCt of WA; Library No 970424; 21 August 1997
Joyce v Hutchinson & Anor (2000) WADC 42
Mossessons (a Firm) v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997
Case(s) also cited:
Nil
(Page 3)
1 SWEENEY DCJ: This is a review of the taxation of a bill of costs, which was subsequently reviewed by Deputy Registrar Harman.
Background
2 The plaintiff, Ms Frigger, is suing the defendant, a solicitor, for damages for alleged professional negligence. The action was commenced on 16 June 2005 and there have been several interlocutory proceedings. From the outset, the defendant has maintained that Ms Frigger should not be the plaintiff in the proceedings, but rather her company, Computer Accounting and Tax Pty Ltd. This issue has led to some protracted arguments. On 17 June 2005, the parties appeared before Commissioner Schoombee during which a number of matters were discussed, including the issue of whether the plaintiff was correctly identified.
3 On 19 August 2005, the parties appeared before Mazza DCJ. The plaintiff was seeking an interlocutory injunction to compel the defendant to deliver her files the subject, it is said, of a solicitor's lien. During that hearing discussions were had concerning the correct identity of the plaintiff, and his Honour remarked that should the plaintiff wish to make application to join her company in the proceedings, she would need to do so in the usual way by filing a chamber summons supported by an affidavit. As I understand the defendant's position, it was that the plaintiff should be substituted by her company, (see O 18 r 6 Rules of the Supreme Court (WA) 1971) rather than the company simply being joined to the proceedings. His Honour adjourned the application for the interlocutory injunction to the trial Judge and reserved the costs to that same trial Judge.
4 On 30 August 2005 the plaintiff filed a chamber summons conceding that her company should be substituted as the plaintiff and applying for orders to the effect. That only occurred, however, following the defendant's application to strike out the action and seek judgment in his favour, by maintaining his original stance, namely that the plaintiff had no cause of action against him. While, prior to the filing of that application, the plaintiff had sent a letter to the court indicating that her company consented to being joined in the action, this constituted neither a formal application to that effect and nor, in any event, did it amount to an acceptance that the plaintiff's company should be substituted as plaintiff, rather than simply joined to the action.
(Page 4)
5 The matters came before Deputy Registrar Hewitt on 8 September 2005 and then again by special appointment on 13 October 2005, during which, given the plaintiff's acceptance by way of filing her application that she was the incorrect plaintiff, her application for substitution was granted and the defendant's application to strike out and seek summary judgment was dismissed. The plaintiff was ordered to pay "… the defendant's costs thrown away by reason of the fact that the action was conducted by the wrong plaintiff including costs reserved on interlocutory applications including this application … ". The Deputy Registrar has recorded in his draft judgment on the court file, delivered on 25 October 2005, that:
"It is clear that a substantial amount of effort and costs have been incurred in running this action to this stage. It is clear also that if not all, then certainly a very substantial part of those costs will have been expended to no avail and nothing will have been achieved towards resolving the issues between these two parties by the efforts in this action to this stage. … (p5). Whatever my decision today, it seems to me that my decision ought to recognise the fact that a substantial amount of costs have been incurred and have been wasted by the persistence of the defendant (sic plaintiff) in proceeding with the action, against the defendant's insistence that she was not the correct plaintiff, and that the company was. … if a substitution is to take place, … it should be on the terms that the cost of the action to the stage of substitution, which I regard as largely wasted, be paid by the existing plaintiff. In that regard, I consider that the interlocutory proceedings which have taken place to date have been wasted."
6 It was clearly the Deputy Registrar's intention that the plaintiff pay all the defendant's costs of the action to 13 October 2005, because he regarded those costs to the stage of substitution as having been wasted. The order for costs was all encompassing and expressly included all interlocutory proceedings and, by necessary implication, included all costs reserved to that date. Any previous orders by which the plaintiff had already been ordered to pay the costs of the defendant for any particular matter stood independent of that costs order and were simply consistent with it.
(Page 5)
7 On or about 26 October 2005, the defendant filed his bill of costs for taxation pursuant to the order of 13 October 2005. 21 November 2005 was the date appointed for the taxation. The plaintiff was represented at that taxation. A notice of appeal against the costs order made by Deputy Registrar Hewitt on 13 October 2005 was filed somewhat out of time on 7 November 2005 and the defendant's consent had been sought to an adjournment of the taxation pending the appeal. The defendant did not consent. No formal application for an adjournment was made.
8 The total claimed by the bill of costs was $16,472.22, which was reduced by $2,674.60 on taxation, to arrive at a final figure of $13,797.62. A taxing fee of $344.94 was added, producing an interim total of $14,142.56. The taxing officer, Deputy Registrar Harman, informed the parties that any objections to the taxation should be received by him prior to 4 pm on 29 November 2005.
9 By facsimile transmission, recorded on the document as having taken place on 29 November 2005 at 10 am, the plaintiff sent a letter marked "Attention: Registrar Harman, District Court of Perth" to the court enclosing an objection to the bill of costs and requesting that the taxation be stayed until the appeal hearing of 1 February 2006 (that is to say the appeal hearing before Fenbury DCJ) had been heard. This notice of objection objected to items 3(f), 3(g), 3(l), 3(m), 3(n), 3(o), 4, 5, 6, 7, 13, 17, 17(d), 22, 23, 24 and 25 of the defendant's bill of costs.
10 On 1 February 2006 the plaintiff's appeal against the cost orders made by Deputy Registrar Hewitt on 13 October 2005 was argued before Fenbury DCJ. While his Honour remarked "I agree with the Deputy Registrar's views generally" which are set out above, he did allow the plaintiff's appeal to the limited extent that he excluded from the order for costs the costs reserved in relation to the two interlocutory applications before Commissioner Schoombee and Mazza DCJ. The extracted order provides:
"Paragraph 4 of the order for substitution of plaintiff and transfer to the Magistrate's Court before Deputy Registrar Hewitt in chambers on 13 October 2004 be amended to read as follows:
'Ms Angela Frigger pay the defendant's costs thrown away by reason of the fact that the action was conducted by the wrong plaintiff including costs reserved and including this application but excluding the costs of the
- interlocutory applications heard by Commissioner Schoombee and Mazza DCJ, to be taxed and paid forthwith. The costs of the interlocutory applications before Commissioner Schoombee and Mazza DCJ be costs in the cause.' "
11 On 24 March 2006, following the delivery by Fenbury DCJ of the decision on the appeal on 10 March 2006, Deputy Registrar Harman reviewed his taxation of the bill of costs, during which review the plaintiff was unrepresented. Ms Frigger maintained most of her original objections. The defendant conceded that items 3 (a) – (o) and 4 had, by virtue of Fenbury DCJ's order, been deleted from the order for costs of 13 October 2005. Those concessions having been made, the plaintiff's objections to those orders became unnecessary. In his judgment delivered 3 May 2006 Deputy Registrar Harman stated at [2]: "Of the objections expressed in the notice of objection the first seven were withdrawn" which is a reference to the various sub-paragraphs under items 3 and 4. The plaintiff before me objects to that terminology, but the objection is of no moment. Her objections to those items became unnecessary after the defendant's concession and therefore were in effect withdrawn. Following the deletion of those items the Deputy Registrar certified the bill of costs on 5 May 2006 and allowed the same in the sum of $9,570.36.
12 The plaintiff was wholly unsuccessful on the review of the taxation of costs.
Nature of application before this Court
13 The plaintiff's chamber summons dated 12 May 2006 seeks a review of the taxation of costs signed 5 May 2006, pursuant to O 66 r 55 of the Supreme Court Rules (WA). The plaintiff also seeks the costs of this application which were, on 23 June 2006, ordered to be in the cause of this application by Deane DCJ. The plaintiff filed an affidavit in support sworn 12 May 2006 ("her affidavit") which, while it relates to some matters not the subject of this application, also contains, in effect, submissions on the matter before me. The plaintiff was unrepresented before me and considerable leeway was afforded her during the hearing of this matter and so a number of matters of evidence were raised with me from the Bar table from both parties. I am also armed with the plaintiff's original notice of objection to taxation which details her various objections to the individual items and I heard further from Ms Frigger when the matter was heard before me.
(Page 7)
14 It has been brought to my attention that a letter has also been sent to me from Ms Frigger dated 9 January 2007 containing further submissions, with no indication that the same was copied to Mr Forbes for the defendant. No further submissions having been requested in this matter, no opportunity having been given to Mr Forbes to make further submissions to me and the matter being concluded save for judgment, I have had no regard to the contents of the letter.
15 Order 66 r 55(1) and (2) of the Supreme Court Rules (WA) provide as follows:
"(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."
16 In this case the plaintiff challenges specific items of the bill of costs and I will detail the specific objections under separate headings. The matter is unfortunately complicated by the obvious hostility the plaintiff feels towards the defendant and his legal counsel, such that certain of these objections amount to mere invective. Prior to dealing with the plaintiff's specific objections, however, it is necessary that I make some comment on her broad objection to the taxation itself.
17 In par 9 of her affidavit the plaintiff states "The defendant insisted that taxation of his costs proceed before my appeal against those costs despite my request for postponement." Before me, the plaintiff made the submission that the defendant "refused point blank" the adjournment of the taxation and that she now considers, that "the whole nature of the bill of costs" has been altered by the appeal and "changed quite dramatically by the appeal".
18 The plaintiff contended before me that some two out of the three hours at the taxation was spent arguing the interpretation of the costs order made on 13 October 2005. Mr Forbes, counsel for the defendant, disputes those figures but, in any event, I find it difficult to understand how two hours could reasonably have been consumed arguing the
(Page 8)
- interpretation of the order when the Deputy Registrar had, on 25 October 2005, distributed his reasons which make the scope of the order quite clear in my view.
19 In any event, prior to signing the certificate of taxation, Fenbury DCJ had delivered his judgment allowing in part an appeal against the costs order and so it cannot be said that the certificate in this case suffers from being based on a costs order which was no longer in existence and was replaced with a different costs order (such as was considered in Bloomfield v Liebherr-Australia Pty Ltd [2005] WADC 113).
20 Specific items in the bill of costs fell away following the decision by Fenbury DCJ. This hardly amounts to changing the entire nature of the bill of costs or the taxation. The subsequent review was a simple matter of deleting those items from the bill of costs, which was done on the defendant's concession that they were no longer the subject of an order for costs in his favour.
21 The applicable scale of costs in this case was the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004 ("the scale") which applies to the remuneration of practitioners in or for the purposes of proceedings before the District Court in respect of costs incurred from 1 July 2004 to 1 July 2006. All of the work done and claimed in the bill of costs in this case fell within that time frame. The scale sets out maximum hourly and daily rates which can be used to calculate the dollar amounts in the scale of costs. Each item in the scale of costs specifies a dollar amount with reference to a particular fee earner. Pursuant to the scale, a senior practitioner is prescribed a maximum allowable hourly rate of $341 and differing rates are given for junior practitioners, clerks, paralegals and counsel, counsel being a practitioner acting as barrister. The costs recoverable by one party from another party are not to exceed the amount set out in the scale.
Legal principles
22 Before I make any order interfering with the Deputy Registrar's taxation of any item, I must first be persuaded that he has made an error of principle, either in the manner of his approach by way of the principles he applied in the taxation, or by the amount allowed itself, that is to say by demonstrable error.
(Page 9)
23 The decision of a taxing officer is generally final and will prevail on review by a Judge, unless the Judge is of opinion that the officer has made an error in principle. A very wide discretion is left to a taxing officer and, given the taxing officers' experience in this field, it will only be in a very exceptional case that a Judge will interfere with the taxing officer's decision as to quantum: Clay & Anor v Carlson & Anor, unreported; SCt of WA; Library No 970424; 21 August 1997. The quantum alone might be so outside the reasonable exercise of discretion as to demonstrate error in itself, but the mere fact that the quantum is generous, or perhaps very generous, is unlikely to be sufficient of itself to demonstrate error in principle: Brooks v Sunlife Properties Pty Ltd & Anor, unreported; SCt of WA; Library No 970199; 30 April 1997.
24 In Mossessons (a Firm) v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997 Justice Ipp stated:
"In my opinion an error in principle on this basis could only be established if it is shown that no taxing officer, acting reasonably, could have ever taxed the particular item in the amount in question … . The prospects of an applicant succeeding on such a basis when the amounts involved are to be measured in hundreds of dollars are remote, if not fanciful."
25 Having reviewed those authorities, Groves DCJ in Joyce v Hutchinson& Anor [2000] WADC 42 stated at [22]:
"Nevertheless it has to be said that the Deputy Registrar, being the officer of this Court who undertakes taxations of bills of costs is in the best position to make an evaluation as to the appropriate quantum for each item claimed in a party's bill of costs. He may have regard to costs taxed and allowed in similar cases. As against the plaintiff's contention the amount allowed may well be 'on the very generous side'. However can it be said that ' … no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question?' "
Plaintiff's individual objections
26 Item 6 in the bill of costs was a claim for $682 for costs incurred on 14 July 2005 for proceedings in chambers, being the plaintiff's application for interlocutory judgment filed 30 June 2005. This item included perusing the chamber summons, correspondence between the parties, drafting and settling an affidavit of service and preparing for and attending the hearing. A figure of $182 was taxed from this item,
(Page 10)
- allowing therefore in total the sum of $500 for those proceedings. The maximum allowable under the scale is $8,679.
27 In her affidavit, the plaintiff complains that the defendant's solicitor negotiated with her to withdraw her application of 30 June 2005, assuring her he would not seek a costs order. She complains that she wrote to the court withdrawing her application but Mr Forbes immediately filed an affidavit and appeared at the hearing, requested and was awarded costs. Ms Frigger was unaware that this had occurred until she saw the item in the bill of costs for taxation.
28 In her notice of objections to the various items in the bill the plaintiff states that she has never been served with a memorandum of appearance to the action and was advised by the court that on that basis she should apply for interlocutory judgment. She did so and the defendant's solicitor then advised her that he had served her with a memorandum of appearance by facsimile transmission and, should she not agree to dismiss the application, he would seek costs. She then wrote to the court requesting the matter be vacated and thought that was the end of it. However "again Forbes saw an opportunity to incur costs. He filed an affidavit on 12 July 2005 after he had received my letter of 11 July 2005. He then attended court, although he had agreed that the hearing should be vacated … . This application is not covered by any of the costs orders made by Registrar Hewitt on 13 October 2005 as it is not included in (sic) 'by reason of the fact that the wrong plaintiff started the proceeding' ".
29 This objection is misconceived. Item 6 was encompassed in the order of the court made 14 July 2005. That order for costs is unaffected by the order of Deputy Registrar Hewitt made 13 October 2005 and stands in any event. It is no part of the taxing process to consider the merits of an order for costs and the plaintiff's remedy was to appeal against that order.
30 The matter arose when the plaintiff made application for summary judgment without warning to the defendant. The defendant contends that in fact he had served a memorandum of appearance by way of facsimile within time. The correspondence filed in this matter indicates there has been an ongoing dispute between the parties as to whether service of documents by facsimile was authorised pursuant to r 21 of the District Court Rules 2005. Without finally deciding that matter, it is apparent that the plaintiff serves many documents herself by facsimile but refuses to accept service by facsimile. The hostility between the parties
(Page 11)
- has in part lead to the situation encompassed in item 6. By letter dated 6 July 2005, the defendant's solicitors wrote to the plaintiff, stating:
"In the circumstances your application is ill founded and I invite you to agree to it being dismissed with no order as to costs. If you do not avail yourself of this opportunity then kindly note that I reserve the right to rely on the contents of this letter in support of an application for indemnity costs against you."
"Please vacate the hearing for the above matter on Thursday 14 July 2005 at 10 am. I withdraw my application for these orders as the Defendant's solicitor has advised that he faxed me a copy of the appearance."
32 The plaintiff has stated and I accept that she considered that to be the end of the matter. Given that she is unrepresented, one can understand the plaintiff's viewpoint. Her letter to the court requesting that the matter be vacated was not, however, fulfilment of the offer put to her by the defendant's solicitor. Firstly, by simply writing to the court, there was no guarantee that the matter would not appear in the lists as matters are not simply vacated on the request of one party. Secondly, withdrawing an application is not the same thing as consenting to the application being dismissed.
33 Given the general hostility of the plaintiff towards the defendant's solicitor in this matter, which hostility is readily apparent in her affidavit, her notice of objections and her submissions before me, the defendant's solicitor prudently made no assumptions about what was to occur on 14 July 2005 and attended the court to protect his client's interests. He sought an order that the application be dismissed and sought and was granted costs of that attendance. In the absence of an appeal against that costs order, it is not appropriate for me to consider whether his drafting of an affidavit was reasonable and necessary in the circumstances, or not. The detailed facts of that matter have not been put before me, including what preparations the defendant's solicitor had made up until the point he received Ms Frigger's letter. In any event, the order for costs was made and governs item 6, quite independently of the costs order of 13 October 2005.
(Page 12)
34 Deputy Registrar Harman, reviewing item 6, referred to the objections made by the plaintiff concluding "they canvass the ground upon which the application was made and the plaintiff's view of the defendant's solicitors conduct". As to the plaintiff's contention that the costs under this item do not fall within the scope of the order for costs thrown away made on 13 October 2005, the Deputy Registrar agreed with the plaintiff however pointed out, as I have pointed out, that recovery was had by the defendant under the order made on 14 July 2005.
35 There is no error of principle identified before me in the taxation of item 6. In essence the plaintiff complains that an order for costs ought not to have been made. That demonstrates no error of principle in the taxation itself. Accordingly, the appeal in relation to item 6 fails.
36 The next objection relates to item 7 of the bill, being an item for $1,023 for the preparation and filing of the defence. The maximum allowable under the scale is $3,410. In her affidavit, the plaintiff objects that on 11 August 2005 the defendant notified her that he objected to her entire statement of claim and required her to amend it within 24 hours. The defendant has always contended that the plaintiff has no cause of action against him and that the correct plaintiff is the plaintiff's company. The defendant was of course under a time limit by virtue of O 20 r 4 of the Supreme Court Rules (WA). The plaintiff in her affidavit further states:
"I informed him (Attachment 4) that I would amend my Statement of Claim, as further evidence of the Defendant's deceit had come to my attention. Notwithstanding my notice, the Defendant filed a Defence when he knew that a new Defence would be necessary in reply to the amended Statement of Claim."
37 Attachment 4 to the affidavit is a letter from the plaintiff to the defendant's solicitor which commences:
"I believe that your short notice to consider your request is unreasonable and also an abuse of process and again points to your use of legal dirty tricks to sabotage me as an unrepresented litigant."
(Page 13)
38 At no point in the letter did the plaintiff indicate agreement that the statement of claim would be amended as the defendant's solicitor requested. At most the plaintiff stated:
"As your client hid documents and evidence of their professional negligence in November and December 2004, I will request the court for leave to file an amended statement of claim at the hearing on 19 August 2005."
39 It was entirely prudent of the defendant's solicitor to file a defence, which he did on 15 August 2005, in order to protect his client's position. The hostility of the plaintiff's letter to him and its content could hardly have inspired him to do otherwise. There was no agreement between the parties as to any delay in filing the defence and he was obliged to file it within time. The plaintiff's affidavit indicates the document was filed on 12 August 2005 although the court file indicates it was lodged on 15 August 2005. In the original notice of objection to this item the plaintiff contended that the filing of the defence the very next day constituted a breach of O 2 r 2(1) of the Supreme Court Rules but gave no particulars as to how that rule is said to have been breached and I am quite unable to follow any argument that it has. The defendant was obliged to file his defence.
40 Several of the plaintiff's contentions in this matter consist of personal and derogatory attacks upon the defendant's solicitor on the basis that he has taken some step in the proceedings when he was fully aware that she intended first to take some step herself. The defendant's solicitor's duty is to his client and he must look to his client's interests and protect them. Of course in litigation in this State it is often the case that solicitors representing the parties are able to reach sensible agreements and compromises allowing for some give and take on both sides. The history of this matter, unfortunately, is one of hostility and mutual mistrust and so there is limited prospect for such discussions. The plaintiff is also unrepresented and this has contributed to certain misunderstandings which have arisen when the parties have been at cross-purposes.
41 There is no objection taken to the quantum of item 7. As Deputy Registrar Harman says at [9] of his review judgment of 3 May 2006:
"The adverse party canvasses a number of issues that bear upon the allowance of the claim and she concludes with the proposition that the entire amount (I infer, claim) ought to be disallowed. Those issues include the prospect that she would
(Page 14)
- have amended the statement of claim and that she had expressed her intention to amend. The significant consideration is that at taxation the only determination made was as to the value of the services that fell within the scope of the order. I repeat the observation I made in relation to the last item, the exercise before me is review of the determination made at taxation, not the process of taxation."
42 In so confining himself, the Deputy Registrar appears to have put to one side the plaintiff's argument that no defence in effect should ever have been filed. Allowance of an item which did not fall within the scope of the order for costs on which the bill of costs was based would, in my view, demonstrate error in principle. Order 66 r 53 of the Supreme Court Rules provides for a party dissatisfied with a taxation of costs to demonstrate "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." Should there have been any merit in the plaintiff's objection, the Deputy Registrar could, in a case of difficulty, have referred the interpretation of the costs order to a Judge pursuant to O 66 r 52.
43 Earlier in his judgment on review, however, at [3], the Deputy Registrar stated:
"… I will record two fundamental considerations that had an impact at the point of taxation and will have an impact upon review. The first is that the extent to which recovery is available to a beneficial party under such an order is for no more than the reasonable costs of services necessarily provided that have been wasted. To the extent that the claims made by the defendant in his bill of costs had been put in issue at the taxation, they were determined upon the application of that test."
44 That passage makes it clear that the Deputy Registrar did consider that part of the review process included a power to reconsider any item which in its entirety did not fall within the order for costs thrown away.
45 This item clearly did however fall within the scope of the costs order and I have above stated my reasons for rejecting the plaintiff's contention that the filing of the defence was a cost unnecessarily incurred. This objection therefore fails.
(Page 15)
46 The next items to be considered are items 8-12 which relate to work carried out on 12 and 15 August 2005 in relation to copying certain affidavits and submissions. The total of these four items is $93.17. They were not the subject of objection in the plaintiff's objections to the taxation of 21 November 2005. Nor are these items mentioned in the review conducted by the Deputy Registrar on 24 March 2006 because they were not then the subject of any objection.
47 Order 66 r 53(1) of the Supreme Court Rules governs the procedure for a party to make objection to any item in a bill of costs by contending that the taxing officer has made an error of principle in allowing or disallowing the item and provides that the objecting party may "at anytime before a certificate of taxation dealing finally with that item is signed" deliver an objection in writing. I allowed the plaintiff in accordance with O 66 r 56 to adduce evidence of her facsimile transmission of 28 March 2006 to the Deputy Registrar in which she stated:
"At the taxation last Friday items 8-12 in the defendant's bill of costs were not considered, which items should be taxed off, as they are part of the reserved costs of the proceedings before Commissioner Schoombee and Judge Mazza."
48 Unfortunately, it appears from the court file that this correspondence did not reach the Deputy Registrar prior to his certifying the bill of costs on 5 May 2006. Those same items received no attention in his judgment delivered 3 May 2006.
49 There was some discussion before me as to whether or not I have jurisdiction to now deal with items 8-12, they being the subject of the certificate of the taxing officer which, pursuant to O 66 r 55(3) "is final and conclusive as to all matters which have not been objected to in accordance with these rules".
50 Mr Forbes, the defendant's solicitor, was unable to tell me whether there was any merit in the plaintiff's argument that items 8-12 did relate to the proceedings before Commissioner Schoombee and Judge Mazza. He had, during the review of the taxation by Deputy Registrar Harman, made a number of concessions in relation to other items in the bill of costs as falling within that category but had made no such concession in relation to these items.
(Page 16)
51 It is not now necessary for me to decide whether or not I do have jurisdiction to entertain the plaintiff's objection in relation to items 8-12 because Mr Forbes indicated at the close of the hearing before me that, while making no concession as to his obligation to do so, the defendant was prepared to reimburse the contested items 8-12 to the plaintiff. Following the hearing, by letter of 25 August 2006, the defendant did just that and forwarded to the plaintiff a cheque covering those disputed items together with interest without any admission of his liability to reimburse those sums. While it is therefore not necessary for me to judge the merits of that objection I will make the comment that the sum represented by those items in total is proportionately tiny compared to the overall total of the bill of costs.
52 I turn now to item 13 on the bill of costs which was a claim for $3,580.50 which the Deputy Registrar allowed in its entirety in respect of proceedings in chambers, described in the bill of costs as pertaining to 28 August 2005, being the defendant's application to strike out the action or, alternatively, seeking summary judgment. The date of 23 August 2005 refers in fact to the date of the chambers summons, rather than the proceedings themselves. This item includes attendance before Registrar Hewitt when the matter was part heard and adjourned for a special appointment and also includes the drafting and filing of the chamber summons, the preparation and filing of the affidavit in support, considering the plaintiff's submissions in opposition, preparing and filing the defendant's list of documents and outline of submissions, correspondence between the parties and attendance upon the client. The maximum allowable under the scale for such an item is $8,679.
53 The matters were included in those matters which came before Deputy Registrar Hewitt on 8 September 2005 and 13 October 2005, during which, given the plaintiff's acceptance by way of filing her application that she was the incorrect plaintiff, her application for substitution was granted and the defendant's application to strike out and seek summary judgment was dismissed. The bill of costs then makes separate claim under item 17 for the costs incurred in relation to the plaintiff's application for substitution, these costs being $2,046.00. The bill item 13 indicates that the two matters were ultimately heard together and that the time between the two in chambers has been apportioned to each item on a 50/50 basis. It may be that apportionment was arbitrarily selected but the defendant was entitled to costs for both items anyway.
(Page 17)
54 In essence the plaintiff's objection to these items in her notice of objection was twofold: firstly, she objected to the amount of time claimed to have been spent in relation to this item by the defendant's solicitor, claiming it to be excessive and, secondly, the plaintiff contended that the defendant's application having being dismissed, the item should be disallowed altogether.
55 In relation specifically to the objection to item 13 the Deputy Registrar stated:
"In Roblett v Pieroni [2005] WADC 215, I canvassed the scope of the jurisdiction for review provided by r 53 at some length and consider that there is no point in undertaking the exercise again. The result of the consideration that I gave to the issue in that case is that r 53 does not provide a jurisdictional basis for a taxing officer to review a quantum determination. Be that as it may, it is not inappropriate that I respond to the broad thrust of the objection at that point in order to explain to the objector the process by which quantum was determined.
There will only be scope for recognition of a direct relationship between the amount recovered under a claim for a service and the time devoted to the delivery of that service where the item in the scale under which it is taxed provides that recovery be so regulated. In applying the test of recovery in the context of such a regime, the taxing officer would need to be satisfied that the period of time expressed in the claim had been devoted to the task and that that period would speak to the provision of the particular service by a competent practitioner in an efficient manner.
The item under which the relevant claim was made does not provide for such a modified process of time costing. It simply provides the upper limit of the taxing officer's discretion. Rule 11 provides that taxation be had according to the scale. Although time devoted to the provision of parts of the service was a relevant consideration in assessing the value of the service expressed in the claim, it was not the measure by which the defendant recovered under either the claim or those parts of the claim. The determination of quantum was reached on an assessment of the value of the service provided in the context of the particular case. The information provided in the bill as to time devoted to the provision of the particular parts of the
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- service was taken into account in determining quantum at a level that may be described as having been a matter of interest but nothing more.
I accept that the plaintiff may apprehend that because the time for some parts of the claim was specified and the result of taxation was that the fee claimed was not reduced, I either accepted or determined the claim on that basis. That apprehension would not accord with the process undertaken in valuing the service. In that process I considered the information expressed in the claim and the submission of both parties. I considered the issues raised in the action, the significance of the application, the facts and issues then put forward for determination, the hearing time and the need for preparation. It is fair to say that I did not reach the same conclusion as the defendant in valuing the service, however it was my assessment that there was no reason to interfere with his assessment. Before the defendant runs off with the notion that perhaps he might have claimed more, I would add that I considered that the fee claimed was about right."
56 Item 13 fell within item 10(a) of the scale which provided a maximum figure of $8,679 based on two days preparation and a one day hearing at which counsel attended. As earlier stated, counsel entails any senior practitioner appearing as counsel providing an hourly rate in that case of $264. The total fee allowed at taxation represents less than half the maximum applicable.
57 The plaintiff's assertion is that the times claimed were "excessive" but no particular basis is set out for suggesting that these times were not in fact the times taken and on what basis that time is said to be unreasonable. Further, it is clear from the passage quoted above that the Deputy Registrar considered the time devoted to the provision of the parts of the service to be relevant, but did not simply calculate the quantum by reference to time expressed in the claim but rather by an assessment of the value of the service provided, taking into account the significance of the application, the facts and issues put forward for determination, the hearing time and the need for preparation for that matter.
58 No complaint is made as to the Deputy Registrar's comments to the effect that r 53 does not provide a jurisdictional basis for a taxing officer to review a quantum determination and it is unnecessary for me to enter the debate canvassed in Roblett v Pieroni [2005] WADC 215, except to
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- note that the Deputy Registrar's conclusion is contrary to the judgment of Groves DCJ in Joyce and Hutchinson [2005] WADC 42 and the authorities cited therein, including the judgment of Grigoletto v Myer Properties (WA) Ltd, unreported; DCt of WA; Heenan CJDCJ, Library No 3667; 31 March 1993.
59 In this case, however, nothing turns upon whether the Deputy Registrar erred in concluding he had no jurisdiction to review a quantum determination, because his reasons do address the merits of the plaintiff's objection as to quantum and make it clear that he would not have altered the quantum on review in any event. Giving due regard to the experience of the Deputy Registrar in evaluating the appropriate quantum to be allowed I see no basis for concluding that I should interfere with this allowance on the basis that it is excessive.
60 As to the second issue raised by the plaintiff, this again goes to the fact of the order for costs in the defendant's favour, rather than the question of whether there was an error in principle at the taxation. While costs normally follow the outcome and an unsuccessful part would normally be ordered to pay the costs of the successful party, one can readily appreciate the reasons why the ordinary principles were departed from in awarding the defendant costs on 13 October 2005. In any event, it is no part of the taxing process to consider the merits of an order for costs and the plaintiff's remedy was to appeal against that order.
61 The next item to which objection is taken is item 17. Item 17 in the bill of the costs was described as related to proceedings in chambers on 30 August 2005, being the plaintiff's application for substitution of the plaintiff and transfer of the matter to the Magistrates Court. Items 13 and 17 were linked in that the plaintiff's application for substitution of the plaintiff was filed following the defendant's application to strike the matter out and it was the filing and granting of the plaintiff's application that in effect led to the dismissal of the defendant's application.
62 Item 17 includes preparation for hearing including considering authorities listed by the plaintiff and attending at the special appointment before Registrar Hewitt on 13 October 2005, being the hearing during which the costs order was made. The item therefore includes, as did item 13, the original attendance before Registrar Hewitt following which the matter was adjourned to a special appointment and that special appointment apportioned between the two items.
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63 The total figure claimed is $2,046 and that total figure was allowed at taxation. That figure is to be seen in the context of the scale which provides a maximum claimable sum of $8,679 and so the figure allowed on taxation is approximately one quarter of the maximum. In the plaintiff's notice of objection she asserts:
"This was a simple application for substitution of plaintiff and transfer of matter. The substitution of plaintiff had already been considered by the defendant and Forbes before the judgment of Schoombee and Mazza. I believe six hours is excessive."
64 This is a simple bold assertion which makes little allowance for the responsibilities of the defendant's solicitor to consider appropriate case law, take instructions and provide advice and look to his client's interests in the matter. In her affidavit in support the plaintiff states:
"Although I can see that some costs were reasonably incurred for my application for substitution and transfer, I believe for a hearing lasting 1.5 hours, 4.5 hours preparation is unreasonable and unnecessary because preparation for the plaintiff's substitution question had already been undertaken and is included in the costs for hearings before Commissioner Schoombee and Judge Mazza. Judge Mazza asked Mr Forbes whether the defendant would agree to the substitution and Mr Forbes stated he had not received instructions. However, I had already filed and served the substituted plaintiff's consent prior to the hearing".
65 Those passages rather demonstrate the plaintiff's lack of consideration for the obligation of the defendant's solicitor to look to the interests of his own client, rather than the plaintiff's interests. The plaintiff's attitude consistently expressed is to the effect that, if she has made her intentions and wishes known, the defendant's solicitor should take no further steps and incur no further costs in relation to those matters. Again, one understands her viewpoint, being one of a layman who has no client to protect. There was, however, no application before Mazza DCJ for substitution of the plaintiff. The "substituted plaintiff's consent" that she had filed and served was merely a letter giving consent of her company to be joined to the action. The defendant was entitled to seek formal orders and progress the matter.
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66 Apportioned between the two items 13 and 17, the defendant's solicitors attributed a total of six hours preparation for hearing, including considering authorities cited by the plaintiff in respect of this item. That is not on its face excessive and the plaintiff has failed to satisfy me that no taxing officer, acting reasonably, could have ever taxed the item at that amount.
67 As part of the objection to item 17, objection is also taken to item 17(d) of the bill being an item for which no specific quantity is specified for drafting, settling, filing and serving the defendant's affidavit in support. The plaintiff's objection again is that, the issue of the correct plaintiff having been discussed before Mazza DCJ on 19 August 2006 and the plaintiff having forwarded a letter to the court agreeing to the joinder of her company, the defendant's affidavit was totally unnecessary and this part of the claim should be disallowed.
68 This objection is totally misconceived. The defendant having made application to strike out the claim, he was obliged by the rules of court to swear and file an affidavit in support of that application and, the defendant's application having been made the subject of an order for costs in his favour, the defendant was entitled to the costs of the affidavit.
69 On review in his judgment of 5 May 2006 the Deputy Registrar stated at [15]:
"At taxation no determination was made as to either the necessity of the provision of that part of the service or that it had been wasted. The only determination made at taxation was as to quantum of the relevant claim as a whole."
70 The defendant's application having being the subject of an order for costs in his favour and the defendant having been obliged to file an affidavit in support, Deputy Registrar Harman's role was purely to determine the quantum of that item and there is no error of principle shown. That is not to say that it is not the proper function of a taxing officer to disallow an item which cannot be shown to be properly claimable, in that costs unnecessarily incurred will not be costs reasonably incurred. However in this case there was no basis upon which to enter into such a consideration.
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71 The last items objected to are items 24 and 25 being the sums of $682 for the drawing of the bill of costs, copies and service and $1,023 for preparing for and attending at taxation. These items were canvassed in the notice of objection, however on review in his judgment at [2] Deputy Registrar Harman states:
"(The Plaintiff) also conceded that no error had been made by the taxing officer in taxing the claims to which the last item expressed in the notice related. Accordingly I will not canvass any of those objections."
72 In her submissions, the plaintiff contends she made no concession before Deputy Registrar Harman, but I am not prepared to go behind his judgment which constitutes the record of what occurred before him on the review of this taxation.
73 The substance of the plaintiff's objection is that, following the costs order made on 13 October 2005, the plaintiff informed the defendant's solicitor that she intended to appeal and that he should therefore not file his bill of costs until after the appeal. The defendant's solicitor did not consent to that course of action, being particularly mindful that the order remitting the matter to the Magistrates' Court was stayed on the condition that the defendant attend to taxation expeditiously.
74 The plaintiff's affidavit states:
"Item 24-25: At least 50% of these costs have been incurred unnecessarily and unreasonably, if indeed they have been genuinely incurred, as the taxation hearing would have lasted approximately 1 to 2 hours if held after the appeal."
75 The plaintiff was represented at the taxation and her solicitor made no application to have the matter adjourned, although there is in her notice of objection a request that the taxation be stayed. No such application having been made by her solicitor, however, there can be no error of principle in the Deputy Registrar proceeding to conduct the taxation as listed.
76 The Deputy Registrar proceeded at review on the basis that no error on his part was alleged in respect of items 24 and 25, and I find no basis for concluding that there was any error of principle on his part.
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77 Nor does the quantum allowed in respect of those particular items manifest error. The scale provides in respect of both items for "such amounts as are reasonable in the circumstances" with a view to the fee earner being a senior practitioner whose maximum allowable hourly rate is nominated at $341. On that basis it is apparent that the defendant is claiming two hours for the senior practitioner to draw the bill of costs, make copies and arrange service and three hours for attending the taxation itself. There is no manifest error in those allowances.
78 The final objection taken in par 28 of the plaintiff's submissions is as follows:
"The plaintiff contends that the taxing officer erred by failing to allow the plaintiff a credit for her taxation costs that were wasted resulting from the appeal. No allowance was made for these costs and an allowance ought to be set off against the defendant's bill of costs as, at his insistence, the taxation proceeded before the appeal which resulted in 46% of the defendant's claimed costs falling away."
79 In essence this is a repetition of the previous objection. Further, the plaintiff's appeal before Fenbury DCJ only succeeded to the extent of removing from the order for costs in the defendant's favour the interlocutory applications before Commissioner Schoombee and Mazza DCJ. It is impossible for me to quantify what portion of time at taxation was spent arguing over whether those applications were within the scope of the costs order made by Registrar Hewitt on 13 October 2005. I consider it clear that they were within the scope of his order as Registrar Hewitt expressed in his reasons for judgment that he considered all of the costs up to 13 October 2005 had been wasted. The taxation was not the occasion for the plaintiff to mount an appeal against that order. It may or may not have been sensible for the taxation to be adjourned, but the plaintiff's objection is answered by her solicitor's failure to make formal application for an adjournment and by the Deputy Registrar's recording of the fact that no error was alleged in this regard at review. I can find no error of principle in his judgment in this respect.
80 Accordingly, I dismiss the plaintiff's application and order the plaintiff to pay the defendant's costs of this application. I am mindful that, for the reasons stated above, I have made no determination as to the merits of the plaintiff's objection in respect of items 8-12. It may be the plaintiff had an arguable point in respect of those items.
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81 The total value of those five items, however, was $93.17. The time devoted by the plaintiff to the discussion of those objections showed no sense of proportion to their overall value to her appeal, or her case in general, or to the Court's proper use of its time and resources which are funded by the taxpayer. In all of those circumstances, I am not prepared to depart from the ordinary principle that the successful party in this matter is entitled to his costs for the entire hearing including the discussion of those items.
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