Gleghorn v Smith - [2000] WADC 196

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GLEGHORN -v- SMITH [2000] WADC 196

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 29 MAY 2000

DELIVERED : 28 JULY 2000

FILE NO/S: CIV 4263 of 98

BETWEEN: JOHN LAURENCE GLEGHORN
Plaintiff
AND
ROSSLYN GAY SMITH
Defendant

Catchwords:

Practice - Western Australia - Rules of the Supreme Court of Western Australia, O 66 - Review of taxation of costs under items 8b, 13, 24 and for witness fee

Legislation:

Rules of the Supreme Court of Western Australia

Result:

Dismissed

Representation:

Counsel:

Plaintiff: Mr P Kakulas
Defendant: Mr P Sheavyn

Solicitors:

Plaintiff: Kakulas & Kakulas
Defendant: Talbot & Olivier

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

Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Mossensons (A Firm) v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff has sought a review of the taxation of four items in its bill of costs.
The first two items the subject of review relate to claims made under items 8(b) and 13 of the scale. In each case the objection refers to an alleged error made in relation to the determination of quantum.
The ground of objection is that the quantum determined was insufficient and disproportionate to the amount of actual work necessarily and reasonably carried out in the provision of the relevant services.
At the review the plaintiff submitted that in each case an explanation for the determination was that the taxing officer may have determined that some relevant services were not recoverable on a party and party basis and that accordingly there had been a disallowance.
In my opinion the significant feature of that submission is that in the objection the plaintiff does not contend that there was any such disallowance. In any event there was no such disallowance.
The plaintiff submitted that a datum for determining disproportion was constituted by the "relatively simple personal injury case". It was the plaintiff’s contention that this case was in degree three times the complexity of the relatively simple personal injury case.
I do not appreciate the significance of that measure of complexity however I do recognise that it is implicit that arbitrary determinations are made in either simple personal injury cases or generally. That is not my experience in determining quantum.
The scope of review of a purely quantum determination was defined in the obiter comments of Kitto J in Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621. On a review of the authority it was considered that there was limited scope for such review where it could be demonstrated that there had been a miscarriage of justice in what was described as an extreme case.
It was the defendant's submission that proper test for the scope for review was whether a taxing officer acting reasonably could have made the relevant determination. In that submission he was supported by the reasons of Ipp J in Mossensons (A Firm) v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997.
According to the objection the datum for the allegation of disproportion is the actual work necessarily and reasonably carried out with or without reference to the time devoted to the provision of that work. In my opinion, the reference to time to one side, the objection confuses the issue to be determined in any taxation. After the parties have provided their submissions it is for the taxing officer to determine where the claim for the provision of services relevant to the item falls within the range of fees provided for in the scale. Ultimately a judgment is made as to the value of the services reasonably provided in the context of the case. That judgment is founded upon an objective assessment of the case. From that assessment a determination is made as to the services reasonably and properly provided. It is not and has never been the case that quantum is determined on the basis of the manner of provision of those services actually provided. Similarly the time devoted to the task of delivering services in a particular manner does not determine quantum.
The information supplied during the course of the taxation by the plaintiff was substantial and his submissions relating to the complexity of the case were expressed. The objection does not suggest, nor did the plaintiff submit, that he was in any way disadvantaged in putting forward its case at the taxation. Ultimately, in determining the quantum of the fee for the services provided under those items it was appropriate to reflect upon the extent to which appropriate services were provided to the client.
The burden of proof upon a party advancing such an objection is substantial and in my opinion has not been discharged. There is no ground to found a review in relation to those items.
The review sought in relation to the other two items the subject of objection relate to disallowance in the first instance of part of an item and the second, the item itself.
The first relates to the pre trial conference. The plaintiff's claim was for $1,500.00. The item in the scale is as follows:
24.Pre trial, mediation or other conferences - required by order of the Court, by the Rules of the Supreme Court or by practice direction per hour - $270.00.
The item in the plaintiff's bill was as follows: -
(9)Pre trial conference (item 24) 7.10.99 NB. Includes Counsel's fees and preparation - $1,500.00.
At taxation it was determined by agreement between the parties that the time spent at the conference was one and one half hours. The fee for service was determined at a rate of $230.00 per hour. To the extent that the claim included the preparation for the pre trial conference the claim was disallowed.
The plaintiff objects to that disallowance and in the alternative submits that the proportion of the claim disallowed should be included in the item getting-up case for trial and that item increased accordingly.
The datum for any consideration of the objection is that an order for costs in favour of a party are for scale costs. In the last proceeding version of the scale the item for pre-trial conference contained a reference to recovery for the costs of preparation for the conference and notices associated therewith. That expanded form of what is now item 24 is not a feature of the present scale. In the present scale the scope for the exercise of discretion is expressed to be time rated. In my opinion in that historical context the plaintiff ought to confront some considerable difficulty in seeking to recover the costs of preparation. Indeed it is my opinion that the taxing officer would err in principle to allow a party to recover the costs of preparation from its opponent.
The plaintiff’s alternative proposition is that if the preparation was not claimable as part of the conference then it is claimable as part of getting up the case for trial and that there ought to be an adjustment for that item accordingly.
Review is conditional upon an allegation of error in principle. There is no allegation that the plaintiff sought to have the item for getting up case for trial revisited after the disallowance was made.
There is no suggestion that the preparation to which reference was made in the bill related to other than services relevant to the conference. Indeed the terms of the objection state that counsel read and mastered the brief and conferred with the plaintiff prior to the conference. There is nothing to suggest that the brief was to do other than to attend at the pre-trial conference. There is no allegation of error to the effect that the brief was for another purpose. There is a fundamental distinction between the costs generated in relation to settlement and the costs of getting up the case for trial. Although courts are not unfamiliar with alternative claims I do have some difficulty in accepting that services relevant to and characterised by a party as "settlement" are capable of being transformed into services relating to getting up case for trial.
The last item the subject of review is for a witness fee that was claimed as a disbursement.
As I understand the plaintiff's case he considers that a claim is properly made for the costs of him attending at the pre-trial conference and that it is appropriate that the taxing officer makes allowance for that claim on the basis of analogy.
It is a little difficult to recognise there is any proper analogy to be drawn between the process whereby the Court requires the attendance of a witness at the hearing of the action and an occasion when the Court requires the parties to an action to attend at the Court for the purpose of ascertaining the prospects of the action being compromised. Furthermore, if it was paid at all the fee was paid by the solicitors for the plaintiff to the plaintiff. To be recoverable a disbursement must have been paid by or on behalf of the plaintiff to another party.
The action did not proceed to trial. No witness fee is claimable.
The plaintiff's application for review is in relation to the first two items unsuccessful and in relation to the second two items dismissed.