Gilroy v Western Desert Nganampa Walytja Palyantjaku Tjutaku Aboriginal Corporation [No 2] - [2023] WADC 90

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   GILROY -v- WESTERN DESERT NGANAMPA WALYTJA PALYANTJAKU TJUTAKU ABORIGINAL CORPORATION [No 2] [2023] WADC 90
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   ON THE PAPERS
DELIVERED          :   4 SEPTEMBER 2023
FILE NO/S:   CIV 4151 of 2020
BETWEEN:   PATRICIA MARGARET CECELIA GILROY
Plaintiff
AND
WESTERN DESERT NGANAMPA WALYTJA PALYANTJAKU TJUTAKU ABORIGINAL CORPORATION
First Defendant
CENTRAL AUSTRALIA HEALTH SERVICE
Second Defendant
NORTHERN TERRITORY DEPARTMENT OF HEALTH
Third Defendant
MINISTER FOR HEALTH (COMMONWEALTH)
Fourth Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court 1971 (WA) - Review of taxation - Scope for review under r 53(1) - Sufficiency of the content of the notice of objection

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

The content of the notice of objection is insufficient to establish review

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Chapmans
First Defendant	:	Not applicable
Second Defendant	:	HWL Ebsworth Lawyers (Perth)
Third Defendant	:	HWL Ebsworth Lawyers (Perth)
Fourth Defendant	:	Not applicable

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

Mossensons (a firm) v Coastline Associates (Unreported, WASCA, Library No 970661B, 2 December 1997)

DEPUTY REGISTRAR HARMAN:

The second and third defendants obtained an order that the action be stayed along with the costs of the application. The plaintiff was unsuccessful on appeal and the second and third defendants were awarded their costs of the appeal.
Under each order the defendants are entitled to recover the reasonable cost of services necessarily provided to them for the purposes of the process.
The defendants' bill of costs was taxed, and the plaintiff subsequently lodged what she presents as objections.
An overview of the notice of objection reveals that but for addressing the determination of the quantum of the fee recoverable for the application, the balance of its content relates to either the constitution of items or fees claimed; such that the balance is expressed as if it records submissions for delivery upon taxation of the bill.
By the terms of the notice the plaintiff contends that the amount allowed for the application is excessive. By presenting the contention as an objection, it is implicit that she would rely upon the contention to engage r 53(1) to provide jurisdiction to review the determination of the quantum of the fee payable.
Order 66 r 53(1) of the Rules of the Supreme Court 1971 provides as follows:
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, …
(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
…
By a notice of objection an objecting party would be expected to identify an item or part of an item to which the objection relates and provide the grounds and reasons for contending that an error in principle had generated either one of the alternative determinations specified in r 53(1) in relation to the item or part of the item.
To establish jurisdiction under r 53(1) it is implicit that the plaintiff would have the reader infer that the determination of quantum would be characterised as the allowance of part of an item and that the contention that recovery of the fee was excessive presents an error in principle.
The context in which r 53(1) appears has a bearing upon the meaning of the term 'part of an item'. Rule 42(1) provides as follows:
A bill of costs for taxation shall be prepared so as to show clearly -
(a)items consecutively numbered, together with a reference to the item in the scale to which the item in the bill relates; and
(b)dates of items (specifying years, months and days); and
(c)where necessary, particulars of the services charged for; and
(d)disbursements; and
(e)professional charges.
By a bill of costs drawn in accordance with r 42(1), recovery of a professional charge would be sought for provision of a specified service or services that had been constituted by the beneficial party as an item by reference to the scale.
The fee determined as recoverable for the application was for the services by which the defendants had constituted their claim under item 10(a) of the scale. In drafting the bill, the defendants provided particulars of the services by which they specified that there had been a further hearing. It was a hearing that had followed the special appointment.
At taxation no issue was taken with the services by which the defendants had constituted the item, only with the quantum of the fee claimed. In assessing the fee recoverable for the services, the standard applied was of their provision by a competent practitioner in an efficient manner. In accordance with that standard, the services were valued at $10,000. In accordance with convention the result was recorded by taxing off $4,704.80 from the fee claimed.
The only other purpose served by a fee claimed for an item is that it provides to the adverse party the opportunity to consider its position. In the event that a fee claimed is contested, unlike the process of applying the test of necessity to services, the fee claimed is not constituted as the datum in the process of determining the result.
Upon application of the test of necessity to an item or part of an item the consequence will be that it is either allowed or disallowed. Having determined the quantum of the fee recoverable for an item or what remains of the item after application of the test of necessity, the administrative task of recording the result is undertaken. In the event that recovery is had at least to the extent of the fee claimed, the claim stands as the record. If the determination is less than the claim, the result is recorded by taxing off the balance of the fee claimed.
Recording a determination of quantum that is less than the fee claimed does not establish the disallowance of the part taxed off, and the allowance of the part that remains. Along with the part taxed off, what remains, remains a part of the fee that had been claimed for the item. Neither applying the test of reasonableness nor recording the result of its application transforms the fee claimed into an item.
The scope of recovery of costs under the usual order, together with r 42(1) establish that the term 'part of an item' utilised in r 53(1) refers to a service or services that have been constituted by the beneficial party as part or parts of an item.
According to r 53(1) review is available for contended errors of principle in determinations that result in the allowance or disallowance of items or parts of items that the beneficial party has constituted by reference to an item of the scale. It is silent in relation to the proposition that review is available for a determination made in relation to the quantum of a professional charge. The silence emerges in a context that would be characterised as one for which a complete code has been established for procedure relating to costs.
I accept that for the purposes of considering the scope of review of taxation before a judge, the reasoning of Ipp J in Mossensons (a firm) v Coastline Associates (Unreported, WASCA, Library No 970661B, 2 December 1997), 9 - 10 may be indicative of a view of the scope for review. It is as follows:
The point is that there must be an 'error in principle' before a judge will carry out a review under O66 r55. 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. 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 ever have taxed the particular item in the amount in question.
The passage appears in a context where neither the terms of r 53 nor r 55 which provides for judicial review, had been presented for consideration.
If it is considered that review by a taxing officer would be open in relation to quantum determinations, there would be scope to consider that the same or a similar test of sufficiency would apply in order to establish the competence of an error to establish grounds for review. The plaintiff does not contend more than that the quantum determined was excessive by some unspecified standard and it is no more than implicit that she contends that it would qualify as an error in principle.
There is no impetus for drawing an inference that would assist the plaintiff in the task of establishing her contention as an objection. The subject of the relevant part of the notice and the deficiencies in the relevant part of the notice are such that the plaintiff fails to establish jurisdiction to review the determination.
If it is considered that the determination of the quantum recoverable for provision of the relevant services reveals an error for which review is available, it would not be due to the plaintiff contending that the wrong test of recovery or the wrong standard had been applied. It is open to consider that a review of the same determination would produce the same result.
Turning to the terms of the balance of the notice, each contention put by the plaintiff relates to either a claim in the form of an item of the bill or a claim for a fee.
Both at taxation and on filing the notice the plaintiff was represented by a solicitor. The deficiency in each part of the balance of the notice is such that she has failed to contend that any error was made in the process of taxation. In relation to those parts I intend to do no more than provide my observations in relation to the plaintiff's contentions and outline features of the process of taxation.
The first observation that I will make is of general application. It had been the defendants that had carried the onus of persuasion at taxation. At the time that the notice was filed no more than seven days had elapsed since her solicitor had heard the submissions by which the defendants justified recovery to the extent they achieved at taxation.
The first matter the subject of part of the balance of the notice relates to the item by which the defendants sought to recover a fee for the service 'Conferral on application'. The plaintiff contends as follows:
Plaintiff objects to this item of the Bill of Costs as this item does not allow the claim made. The amount allowed should be $0.
Conceivably the meaning of the words 'as this item does not allow the claim made' means that the service for which the claim was made is not within the scope of the item in the scale.
Item 27(a) to which the defendants refer in expressing their claim provides for recovery in circumstances where conferral is required by the Rules of the Supreme Court. Order 59 r 9 provides a sufficient basis to consider that prior to bringing the application, the second and third defendants had been required to confer with the plaintiff.
According to the rule, provision of a memorandum recording conferral may be dispensed with in circumstances of urgency or for other good reason. There is nothing in either the context in which the application was made or the notice that suggests that in bringing an application for a stay, the applicants would not be expected to engage in conferral prior to bringing the application.
The next matter raised by the balance of the notice is the quantum claimed for attending chambers upon the reserved decision.
By the terms of the notice the plaintiff asserts as follows:
Plaintiff objects to this item of the Bill of costs as excessive and unreasonable. The most that should be allowed given the Defendants were charged at $440.00 per hour, should be 1 hour, ie. $440.
By the notice the plaintiff does not contend that by reference to some standard only one hour of time would be justified for provision of the relevant services. It appears that her specification of one hour for provision of the relevant services is simply an arbitrary period of time.
By the item of the bill the defendants specified that the claim was made under item 10(b) of the scale. Item 10(b) provides for attending on a reserved judgment in chambers. It expressly outlines the scope for recovery by reference to preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders.
In circumstances where judgment is not awarded under an application, there is scope for doubt that recovery is available under item 10(b) for attending upon a reserved decision. Be that as it may, neither at taxation nor by the notice does the plaintiff raise that issue.
In any event there would be scope for recovery for the relevant services under what remains of the fee available under item 10(a). Although in determining quantum under item 10(a) rather than item 10(b) the approach to the task of assessing quantum is different, it is unlikely that the result would be significantly different unless it emerged that the reasons for decision had either not been available or had not been read prior to their delivery. Unless they had been read prior to their delivery, it is likely that under item 10(a), recovery would not be had for reading the reasons. Disallowance of that part of the item would generate a significant reduction in the determination of the quantum recoverable under item 10(a).
The next matter raised by the balance of the notice relates to the claim for settling and extracting the order made on the chamber summons. It was made under item 28(b) of the scale.
By the terms of the plaintiff's notice, she contends as follows:
Plaintiff objects to this item of the Bill of Costs as the work was never undertaken. Should be allowed at $0.
Examination of the file reveals that on 11 May 2021 the order was extracted by the defendants.
The next matter raised by the balance of the notice relates to the claim made by the defendants for the directions hearing associated with the appeal. It was made under item 26(c) of the scale.
By the terms of her notice the plaintiff contends as follows:
Plaintiff objects to this item of the Bill of Costs on the grounds it is excessive. Attendance and preparation for one Directions Hearing only. Most, given the Defendant charged $440.00 per hour, should be $400.
It appears that the only ground for considering that the claim would be excessive is that the plaintiff has brought to the exercise of considering the extent of the defendants' entitlement to recover a fee, the view that more than one hour for providing the service would not be reasonable. The plaintiff had the opportunity to present that view at taxation.
The next matter raised in the balance of the notice is put against the defendants' claim for preparation of the appeal for hearing, including preparation of appeal documents and submissions. The claim was made under item 26(d) of the scale.
By her notice, the plaintiff contends as follows:
Plaintiff objects to this item of the Bill of Costs as the work was not done, given all preparatory work was done by Counsel pursuant to item 26(e). Should be $0.
The defendants claimed under item 26(e) for work undertaken by counsel, including preparation. There is no explanation for the conclusion expressed in the notice that all the preparatory work was undertaken by counsel.
In drafting the notice, having had the benefit of the defendants' submissions, it ought to have been evident to the plaintiff that the service provided to the defendants the subject of the claim under item 26(d) had been undertaken by their solicitors in addition to the preparation undertaken by counsel. One obvious part of the service so provided had been the process of briefing counsel.
The next matter raised in the balance of the notice relates to the defendants' claim for the service provided by counsel at the hearing of the appeal and for preparation. The claim was made under item 26(e) of the scale.
By the terms of her notice, the plaintiff contends as follows:
Plaintiff objects to this item of the Bill of Costs as excessive. Counsel fee on attendance at the hearing (1 hour), including preparation, at the most, should be $4,510 (10 hours).
Although the plaintiff refers to the item being excessive, I take it that she intended to refer to the quantum of the fee claimed. The plaintiff did not at taxation and does not in her objection contend that the services to which the defendants referred in their submissions had not been provided to the extent that they outlined. It appears that the plaintiff would place an arbitrary limit on the extent of recovery.
The next issue raised in the balance of the notice relates to the item in the defendants' bill for attendance by their instructing solicitor upon counsel during the course of the hearing of the appeal. That claim was made under item 26(g) of the scale.
By the notice the plaintiff contends as follows:
Plaintiff objects to this item of the bill of costs, as the appearance of instructing solicitor did not occur, and was in any event, not necessary. Should be $0.
At taxation I was satisfied that the second and third defendants' instructing solicitor had attended at the hearing.
I would observe that where counsel has been briefed, it follows that it is necessary for the instructing solicitor to attend the hearing should the need for instructions arise.
The next issue raised by the notice relates to the defendants' claim for recovery of the cost of attending upon the reserved decision in relation to which the defendants specified in their bill that the service included preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders. Recovery was had in accordance with the provision in the scale at item 26(h).
By the terms of the notice, the plaintiff contends as follows:
Plaintiff objects to this item of the Bill of Costs as excessive. Given the Defendant was charged at $440 per hour, it should be $660 (ie. 1.5 hours).
At taxation I did not consider that an arbitrary period of time would properly be allocated to the provision of the parts of the service and thereby determine the fee recoverable.
The next matter raised by the plaintiff in her notice, is the defendants' claim for the transcript of the hearing of the appeal. She contends that it was not required for these proceedings.
I consider that the plaintiff is correct in her assessment. However, the prospect that the claim would fail the test of recovery would not preclude an attempt being made to achieve recovery by including the claim in the bill. It transpired that at taxation, rightly or wrongly the claim was allowed. As I have indicated, had the plaintiff put an objection to the determination rather than to the item, she would have been successful in establishing error. I have reflected upon whether despite the terms by which the matter is presented, the plaintiff's contention ought to be reformed so as to express an objection to the determination. There are three reasons that I have decided not to do so.
The first is that the plaintiff's solicitors are taken to understand that there is a difference between a claim in a bill and a determination made in relation to the claim. The second is that it is not for the taxing officer to bring an issue within the scope for review provided by r 53(1). Until jurisdiction is established by an objection under r 53(1), the jurisdiction provided to the taxing officer is to tax a bill. The process of taxation has reached the point that a determination had been made to limit the time for filing objections failing which the allocatur would be signed. The third is that to not consider the matter as an objection does not derogate from the benefit accorded by the order.

The last matter raised by the plaintiff's notice that is not expressed to relate to a determination of the taxing officer, is the defendants' claim for drawing the bill. By the terms of the notice the plaintiff contends as follows:
Plaintiff objects to this as excessive, should be $440 (1 hour).
Item 32(a) of the scale permits recovery of an amount considered to be reasonable in the circumstances.
The terms by which the issue raised by the plaintiff is put suggests that she has simply allocated an arbitrary amount to the provision of the service.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MD
Associate to Registrar
1 SEPTEMBER 2023