Golden West Resources Ltd v Maxim Litigation Consultants

[2016] WASC 384

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GOLDEN WEST RESOURCES LTD -v- MAXIM LITIGATION CONSULTANTS [2016] WASC 384

CORAM:   LE MIERE J

HEARD:   10 NOVEMBER 2016

DELIVERED          :   25 NOVEMBER 2016

FILE NO/S:   LPA 26 of 2008

BETWEEN:   GOLDEN WEST RESOURCES LTD

Client

AND

MAXIM LITIGATION CONSULTANTS
Solicitor

Catchwords:

Practice and procedure - Costs - Whether taxing officer may backdate a certificate of taxation - Whether certificate of taxation should be treated as judgment of court - Powers of registrar sitting as a taxing officer

Legislation:

Legal Practice Act 2003 (WA), s 228, s 240, s 243
Public Sector Management Act 1994 (WA)
Rules of the Supreme Court 1971 (WA), O 42 r 2, O 43, O 60A, O 66 r 44, O 66 r 57

Result:

Application to review is dismissed

Category:    B

Representation:

Counsel:

Client:     Mr C E Chenu

Solicitor:     Mr S V Forbes

Solicitors:

Client:     Bennett + Co

Solicitor:     Stewart Forbes, Barrister & Solicitor

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

Ex Parte Walton In Re Levy (1881) 17 Ch D 746

Federal Commissioner of Taxation v Comber [1986] FCA 92; (1986) 10 FCR 88

Greenco Pty Ltd v Wilden Pty Ltd (Unreported, WASC, Library No 980029, 30 January 1998)

Harris v Calladine [1991] HCA 9; (1991) 172 CLR 84

Rankilor v Circuit Travel Pty Ltd [2012] WASCA 15

LE MIERE J: 

Summary

1. The issue in this case is whether a taxing officer may backdate a certificate of taxation to a date prior to the date on which the costs are determined and the certificate, or allocatur, signed by the taxing officer.  For the reasons which follow, the taxing officer has no power to backdate the certificate of taxation.  The client's application to review the taxation should be dismissed.

The taxation

1. The taxing officer fixed the amount at which the solicitor's bill of costs was to be allowed at $6,203.50.  The amount paid by the client was $249,062.97.  The taxing officer determined that the solicitor refund $242,859.40.

2. The client submitted that the result of the taxation is that to the extent there has been an overpayment of professional costs and disbursements, the client has been out of its money since at least the date of the last payment on invoices where it is has now been found the solicitor had no entitlement to payment. The last payment by the client was on 9 April 2008. The client submitted that the certificate of taxation can and should be dated with that date so that interest on the amount to be refunded runs from then. The client submitted that O 42 r 2 of the Rules of the Supreme Court 1971 (WA) (RSC) authorises a taxing officer to backdate a certificate of taxation. Order 42 r 2 is:

   2.Date from which judgment or order takes effect

   (1)A judgment or order of the Court takes effect from the day of its date.

   (2)Such judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court orders that it be dated as of some earlier or later day, in which case it shall be dated as of that other day.

3. The taxing officer found that a certificate of taxation is not a judgment within the meaning of O 42 r 2 and even if it is an order within the meaning of that rule, a taxing officer is not the Court for the purposes of that rule. The taxing officer found that there is nothing in RSC O 60A that delegates the power in O 42 r 2 to make a judgment or order operate from the date other than from the day of its date. The taxing officer determined that the certificate should bear the date of its issue.

Grounds of review

1. The client seeks review of the taxation on three grounds. The first is that the taxing officer overlooked the deeming effect of RSC O 66 r 57 which deems the costs allowed on any certificate of taxation to be a judgment of the court. The second is that for the purposes of O 42 r 2 the Court includes a taxing officer and hence a taxing officer has power under O 42 r 2 to order that a certificate of taxation, which is deemed by O 66 r 57 to be a judgment of the court, be dated as of some earlier date than the date on which the certificate was signed. Thirdly, the client says that the powers of a registrar sitting as a taxing officer are not confined by the power delegated under O 60A and include the signing and sealing of 'Rankilor certificates', thus importing the practices, procedures, and powers of the Court applicable to the entry of judgment including the power in O 42 r 2 to make a judgment or order operate from a date other than from the day of its date.

Ground 1 - certificate of taxation is not a judgment within the meaning of O 42 r 2

1. The taxation and recovery of legal practitioners' costs at the relevant time was governed by pt 13 div 3 of the Legal Practice Act 2003 (WA). Section 240 provides:

   240.Certification, interest, amount, how recovered

   (1)The taxing officer must certify in writing the amount at which a bill of costs, and the costs of and incidental to the taxation of the bill of costs, are respectively allowed by the taxing officer.

   (2)A certificate under subsection (1) is binding and conclusive on both parties.

   (3)A certificate under subsection (1) bears interest, and may be enforced by either party against the person liable to pay, as if it were a judgment of the Supreme Court for the payment of the amount mentioned in the certificate.

   Section 228(1) provides that 'taxing officer' means a taxing officer of the Supreme Court. Section 155(2) of the Supreme Court Act 1935 (WA) provides that the registrars shall be the taxing officers of the court. Section 243 provides for overpayments to be returnable in these terms:

   243.Overpayments to be returnable

   If a bill of costs is taxed under this Division and, as a result of that taxation, the amount which has been paid or deducted in respect of that bill is more than the amount authorised by the taxation, to the extent of the excess, the person charged has a claim for repayment which may be certified and enforced under section 240 as though allowed under that section.

2. Section 240(3) of the Legal Practice Act provides that a certificate may be enforced by either party against the person liable to pay 'as if it were a judgment of the Supreme Court for the payment of the amount mentioned in the certificate' (emphasis added). The section does not provide that a certificate is a judgment of the Supreme Court. Section 240(3) does not provide for a certificate to be treated as if it were a judgment of the Supreme Court for any purpose other than enforcement. As a matter of statutory construction, s 240(3) does not provide that a certificate is to be taken to be, or treated as, a judgment of the Supreme Court for any purpose other than enforcement. Section 240(3) does not make a certificate a judgment for the purposes of O 42 r 2.

3. The client relies upon RSC O 66 r 57 which provides:

   The costs allowed by the taxing officer on any interim or final certificate of taxation shall be deemed to be a judgment of the court and should be recoverable accordingly.

4. Section 167(1)(a) of the Supreme Court Act empowers the judges of the court to make Rules of Court for regulating the procedure and practice followed in the court. Order 66 r 57 regulates or prescribes the procedure and practice followed in the court. The rule does not alter the substantive rights of the parties created by the Legal Practice Act. On its proper construction, the rule is not inconsistent with s 240(3) of the Legal Practice Act.  The rule provides that the costs allowed by the taxing officer on any certificate of taxation shall be deemed to be a judgment of the court and shall be recoverable accordingly.  Deeming provisions are required by their nature to be construed strictly and only for the purpose for which they are resorted to:  Federal Commissioner of Taxation v Comber [1986] FCA 92; (1986) 10 FCR 88, 96 (Lockhart J); Ex Parte Walton In Re Levy (1881) 17 Ch D 746, 756 (James LJ). The court must ascertain the purpose for which the statutory fiction is to be resorted to. The court must not extend by implication the express application of a statutory fiction. Order 66 r 57 resorts to the fiction of deeming the costs allowed under a certificate to be a judgment of the court for the purposes of recovery, that is enforcement. The rule cannot be extended by deeming the costs allowed under a certificate to be a judgment for the purpose of conferring power on a taxing officer to backdate a certificate.

5. Ground 1 of the review is not made out.

Ground 2 - taxing officer is not the Court

1. Order 42 r 2 provides that a judgment or order of the court shall be dated as of the date on which it is pronounced, given or made, unless the Court orders that it be dated as of some earlier or later day. The client says that the Court includes a taxing officer and hence the taxing officer may order that the certificate which is deemed to be a judgment may be backdated. That argument fails for two reasons. First, for the reasons I have already stated a certificate of taxation, or the costs allowed under the certificate, is not an order or judgment for the purposes of O 42 r 2.

2. Secondly, a taxing officer is not the Court for the purposes of O 42 r 2. The judges may make rules and delegate their powers to a registrar acting as a taxing officer so long as the judges continue to bear the major responsibility for the exercise of judicial power and the delegation is not inconsistent with the obligation of a court to act judicially and that the decisions are subject to review by a judge: Harris v Calladine [1991] HCA 9; (1991) 172 CLR 84, 91 (Mason CJ & Deane J). The Legal Practice Act confers the function of taxing a bill of costs on a taxing officer of the Supreme Court. Section 155(2) of the Supreme Court Act provides that registrars are the taxing officers of the court. That does not mean that taxing officers or registrars are 'the Court' for the purposes of O 42 r 2. Section 6 of the Supreme Court Act provides that the Court consists of judges, acting judges, auxiliary judges, commissioners, masters and acting masters.  Section 155(1) provides that there shall be appointed under and subject to pt 3 of the Public Sector Management Act 1994 (WA), a Principal Registrar, a Court of Appeal Registrar and such registrars and other officers as may be necessary for the administration of justice and the execution of all the powers and authorities of the Court. Registrars are not members of the Court whether acting as a taxing officer or carrying out other functions. A taxing officer is not the Court for the purposes of O 42 r 2. Ground 2 is not made out.

Ground 3 - power to backdate judgment is not delegated to taxing officers

1. The client's third ground is as follows. A taxing officer's powers are not limited to the powers conferred on registrars under O 60A. The powers exercised by a registrar sitting as a taxing officer are predominantly those referred to in RSC O 66 div 2 (taxation of costs) div 3 (review of taxation) and div 4 (miscellaneous). Those powers necessarily include the signing and sealing of 'Rankilor certificates' which imports the practices, procedures and powers of the Court applicable to the entry of judgment. A registrar sitting as a taxing officer issuing a Rankilor certificate has that power.

2. The reference to a Rankilor certificate is a reference to a document signed and sealed under RSC O 43 certifying the costs allowed by the taxing officer, as referred to by Murphy JA in Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155 [65]. Rankilor v Circuit Travel Pty Ltd was an appeal against certain orders made in the District Court in relation to the appellant's costs of an appeal to the District Court from proceedings initially commenced by the appellant in the Magistrates Court. RSC O 66 r 44 sets out the taxing officer's powers for the purposes of taxation of costs. They include that the taxing officer may for the purposes of taxation of costs make separate or interim certificates or allocaturs. The taxing officer may, for the purposes of taxation of costs, exercise all the powers of the Court in relation to the admission of evidence. The rules and procedures for taxation and review were summarised by Murphy JA at [62] ‑ [78]. In relation to a certificate of taxation Murphy JA said:

   By O 66 r 57, the costs allowed by the taxing officer on an interim or final certificate of taxation is deemed to be a judgment of the court and recoverable accordingly. The certificate, sometimes referred to as the allocatur, signed by the registrar at the foot of the bill which has been taxed, is the certificate referred to in the rules, although the court can and will, if asked, sign and seal under O 43 a separate document as a certificate: Civil Procedure Western Australia [66.57.2] [65].

   His Honour's statement that the court will, if asked, sign and seal under O 43 a separate document as a certificate does not mean that the costs allowed by the taxing officer on a certificate of taxation is a judgment or order of the court for the purposes of O 42 r 2. The sealing of the certificate as a separate document under O 43 is neither necessary nor the usual practice of the court: Greenco Pty Ltd v Wilden Pty Ltd (Unreported, WASC, Library No 980029, 30 January 1998) 6 ‑ 7 (Bredmeyer M).

3. If a certificate of the costs allowed by the taxing officer is drawn up as a separate document pursuant to O 43, that does not mean that the certificate, or the costs allowed, is thereby transformed into a judgment for the purposes of O 42 r 2. Ground 3 is not made out.

Conclusion

1. The time for filing and serving the application for review is extended to 20 September 2016.  The application for review of the decision of the taxing officer is otherwise dismissed.