Fryer v Frost - [2009] NTSC 65

Fryer v Frost [2009] NTSC 65

PARTIES: FRYER, James Robert
v
FROST, Adrienne Veronica Elise
TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: 12 of 2006 (20604623)
DELIVERED: 4 December 2009
HEARING DATES: By Written Submissions
JUDGMENT OF: MASTER LUPPINO
CATCHWORDS:
Costs – Objection and reconsideration following taxation – Time limit for objection – Extension of time for objection – Form of objection – Service of objection.
Practice and procedure – Inherent Jurisdiction of the Master.
Limitation Act s 44(1)
Supreme Court Rules rr 3.01(2), 63.55, 77.01
REPRESENTATION:
Counsel:

Plaintiff: Written Submissions
Defendant: Written Submissions
Solicitors:

Plaintiff: Mary M Allan
Defendant: Withnalls Territory Lawyers
Judgment category classification: B

Judgment ID Number: Lup0903
Number of pages: 11
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Fryer v Frost [2009] NTSC 65
No 12 of 2006 (20604623)
BETWEEN:
JAMES ROBERT FRYER
Plaintiff

AND:
ADRIENNE VERONICA ELISE FROST
Defendant

CORAM: MASTER LUPPINO
REASONS FOR DECISION

This matter arises out of a taxation of a bill of costs. The taxation was completed on 18 September 2009. The order in relation to the taxation was authenticated on 3 November 2009.
The plaintiff has since given notice (“Notice”) pursuant to Rule 63.55(1) of the Supreme Court Rules (“the Rules”) requesting that I reconsider two rulings I made in the course of the taxation. Rule 63.55(8) requires that I give written reasons for decision following my reconsideration.
The Notice is in letter form dated 2 October 2009 which was received at the Master’s Chambers by facsimile on that date. The Rules do not specify a form for notice under Rule 63.55(1). The rules simply require that notice is to be given to the Taxing Master, within a specified time, served upon the other party within a specified time and that that notice shall include a statement of the objections upon which the request for reconsideration is based, see Rules 63.55(1)-(6).
A number of issues have arisen in relation to the Notice and some background information regarding the course of the taxation will put those issues in context.
The taxation in question commenced on 11 September 2009. It was on that date that the rulings the subject of the Notice was made.
The Statement of Objections subscribed to the Notice (“Objections”) show that the Objections relate to counsel fees. Various counsel fees were disallowed. Counsel’s account in relation to attendances at Court on 1 May 2008 described the attendances as “interlocutory”. Given the general rule in Rule 63.18 that each party bears their own costs in an interlocutory matter, the entire amount charged for the date ($2,000.00) was disallowed.
The second disallowance related to counsel fees generally. The fees were charged by Senior Counsel. The matter was not certified as fit for Senior Counsel. Accordingly I disallowed counsel fees across the board to the
extent that they were in excess of the applicable Senior Junior rate..
The taxation was not completed on…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Fryer v Frost

Details

AGLC: Fryer v Frost [2009] NTSC 65
Case: [2009] NTSC 65
Decision Date: 04/12/2009

CaseChat Overview and Summary

The case of Fryer v Frost involves a dispute concerning the taxation of a bill of costs in a legal proceeding. The matter was heard in the Supreme Court of the Northern Territory, with Master Luppino presiding over the case. The plaintiff, James Robert Fryer, sought reconsideration of certain rulings made during the taxation process, particularly those pertaining to counsel fees. The defendant, Adrienne Veronica Elise Frost, responded to the plaintiff's notice of objection, arguing that the notice was filed beyond the specified time limit and was therefore invalid.

The primary legal issues the court had to address were whether the plaintiff's notice of objection was properly filed and served within the required timeframe, and if not, whether the court had the inherent jurisdiction to extend the time for filing such a notice. Additionally, the court had to determine whether the counsel fees disallowed during the taxation should be reconsidered and adjusted.

Master Luppino found that although the notice of objection was filed seven days late, the late filing was due to an excusable error by the plaintiff's solicitor. The court exercised its inherent jurisdiction to extend the time for filing the notice, considering factors such as the excusable nature of the error, the lack of prejudice to the defendant, and the rarity of reconsiderations under the relevant rule. The court also found merit in the plaintiff's objections regarding the disallowance of certain counsel fees, allowing the objections and directing an appropriate adjustment to the fees.

Ultimately, the court ordered that the counsel fees should be allowed at a net amount of $27,672.12 and directed the plaintiff to submit a formal order for authentication. The court declined to make further orders regarding costs, as the additional work required arose from the plaintiff's solicitor's failure to address the objections promptly on the first day of taxation.

Orders