Frigger v NIGAM

[2006] WADC 63

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   FRIGGER -v- NIGAM [2006] WADC 63

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   24 MARCH 2006

DELIVERED          :   3 MAY 2006

FILE NO/S:   CIV 1305 of 2005

BETWEEN:   ANGELA FRIGGER

Plaintiff

AND

SHARAD CHANDRA NIGAM
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation - Order 66, r 5 and r 53

Legislation:

Rules of the Supreme Court of Western Australia

Result:

Review unsuccessful

Representation:

Counsel:

Plaintiff:     Not appearance

Defendant:     Mr S V Forbes

Solicitors:

Plaintiff:     Not applicable

Defendant:     Stewart Forbes

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

Roblett v Pieroni [2005] WADC 215

Case(s) also cited:

Nil

1. DEPUTY REGISTRAR HARMAN:  On 13 October 2005 upon her application, Angela Frigger was removed from the action as a party and she 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 …"

2. On the same day she had also been ordered to pay the defendant's costs of his application dated 23 August 2005.  On 14 July 2005 she had been ordered to pay the defendant's costs of her application dated 20 June 2005.  The defendant filed a bill of costs expressed as being prepared pursuant to the orders of 13 October 2005.  That bill was taxed and the adverse party has objected to some of the determinations made at taxation.  She maintained some of those objections at the review of taxation.  Of the objections expressed in the notice of objection the first seven were withdrawn.  She 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.

3. Before dealing with the balance, 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 cost 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.  The second is that in the absence of any such contest, the process of recording the result of the taxation of any claim is no more than administrative.  Although not now represented, the adverse party was represented at the taxation and for a period of the time she attended the taxation.  During that period she would have observed that in addressing each of the defendant's claims I enquired whether she would raise any such issue.  In the event that she did not, I recorded that fact and moved on to the next.  On the occasions when issue was taken by her representative she may have appreciated that it was taken to the necessity of the provision of the service the subject of the claim; whether and to what extent it had been wasted; or to its value.

4. The scope for review of taxation is expressed at r 53(1) in the following terms:

   "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 … may …

   (a)   … deliver … an objection in writing to the allowance or disallowance specifying in the objection … the terms or parts of items objected to, and the grounds and reasons for the objections;"

5. It is for the objecting party to satisfy the provisions of that rule.

6. The first outstanding objection relates to the determination made in relation to item 6 of the bill under which the defendant had claimed for the cost of services associated with the plaintiff's application for interlocutory judgment.  By the terms of the objection, the plaintiff raises a number of factual issues.  It is not necessary that I repeat them, suffice to say that they canvass the ground upon which the application was made and the plaintiff's view of the defendant's solicitor's conduct.  They conclude with two propositions.  The first is that r 5 ought to apply; the second that the costs of the exercise of responding to the application do not fall within the scope of the order for costs thrown away made on 13 October 2005.

7. As to the second proposition, prima facie I agree with the objector.  However, recovery for the relevant service was had by the defendant under the order made on 14 July 2005.  To that extent the heading of the bill is misleading.  In my opinion that fact is of no consequence and there is no scope for doubt that in light of the result achieved by Angela Frigger on 13 October 2005 the defendant is presently entitled to recover the costs of the exercise to which the order of 14 July 2005 refers.

8. The only observation that I will make in relation to the conduct of the solicitor is that it had been displayed in the context of the hearing of an application under which his client was awarded costs.  The adverse party then had the opportunity to make any submission to the court in relation to costs.  Rule 5 outlines the process by which the court could arrive at the conclusion that the beneficial party's solicitor ought to pay some or all of those costs.  There is nothing that would suggest that any such prospect had been put before the court, certainly no order to that effect was made.  Rule 5 does not confer jurisdiction upon a taxing officer.  That is not to say that the conduct of a party or practitioner may not feature as a consideration in applying the test of recovery under an order for costs.  I would simply observe that it did not emerge as a consideration at the taxation of the claim and the objector does not contend otherwise.  My role at taxation was to quantify the benefit of the order made in the defendant's favour.  The exercise now before me is the review of the determination made at taxation.  Such review is available on the basis of contended error made at taxation.  No issue as to the defendant's solicitor's conduct having been placed before me for consideration at taxation there is no scope for objection on the basis that it ought to have been considered.

9. The next objection relates to the claim expressed at item 7 of the bill.  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 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 that 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.  Jurisdiction to review under r 53 depends upon an allegation that the taxing officer erred.

10. The next objection relates to the claim expressed in the bill at item 13; that is, for recovery of the value of services related to the defendant's application to strike out, alternatively for summary judgment.  The objector raises various matters that relate to what transpired at or about the time it was made and during the time that it was before the court.  I respond to those parts of the objection as I did in relation to the objections taken to items 6 and 7 of the bill.  The objector also addresses what I take to be components of the quantum determination on various constructs founded upon an analysis of the periods of time expressed in parts of the claim.  In effect, the objection goes to what the objector has understood to be the basis upon which the quantum determination was made.  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.

11. 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.

12. 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 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.

13. 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 submissions 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.

14. The next objection relates to the claim made for responding to the plaintiff's application for substitution and for transfer of the action to the Magistrates' Court.  In the notice of objection the plaintiff contents that six hours was excessive.  As was the case with the last item the subject of objection, the defendant had expressed one part of the claim by reference to six hours having been devoted to its provision.  The claim was made under the same scale item as the last preceding objection that I have canvassed.  At taxation the same process applied to the valuation of the service with the same result.  It was not significant that in expressing the claim the defendant had chosen to refer to time spent.  Rule 53 provides no scope for objection as to quantum.

15. The next objection is to a part of the claim to which the last objection was directed, in particular to an affidavit the content of which she describes as telling the court why it is that the defendant considers Angela Frigger to be the wrong plaintiff.  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.

16. The last of the objections that presently stand for consideration relates to the determinations made in relation to the claims for extracting two orders.  The objector contends firstly they were extracted quickly, secondly that they should have been expressed as parts of a single document and thirdly that r 5 should apply.  The only observation that I need to make is in accordance with what I have expressed in relation to the last objection that I have canvassed.  Going beyond that point, the first contention is of no moment, the last I have previously addressed.  As to the second, as a matter of practice, orders made on different applications are required to be separately extracted.

17. The plaintiff having been unsuccessful in the review, the defendant is entitled to the costs of the service.