| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GOLDSWORTHY -v- BAUER [2002] WADC 160 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 16 JULY 2002 DELIVERED : 30 JULY 2002 FILE NO/S : CIV 1491 of 2000 BETWEEN : DALE VINCENT GOLDSWORTHY Plaintiff
AND
RICHARD BAUER
Defendant
Catchwords: Practice - Western Australia - Objections to taxation informal negotiations and conference
Legislation: Nil
Result: Objections disallowed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr P H Hopwood
Defendant : Mr J G Staude
Solicitors:
Plaintiff : Cocks Macnish
Defendant : John G Staude
Case(s) referred to in judgment(s):
Gardiner v Classic Laboratories Pty Ltd, unreported; DCt of WA; Library No 3541; 12 November 1992
Case(s) also cited:
Nil
(Page 3)
1 DEPUTY REGISTRAR HEWITT: This matter arises from the defendant's objection to taxation of its bill which was taxed by me. The objections concern my allowance in respect of two items. The first item to which objection is taken is getting up case for which an amount of $12,000 was claimed from which $10,000 was deducted. The objections to taxation are voluminous and I will not repeat them here since in large part they consist in of argument rather than the pith of the objection itself. In essence I take it that the objection is that the allowance was inadequate given the amount of work which was undertaken by the solicitors by way of getting up case for trial. The objections identify the work undertaken to be: investigating, liasing with the Department of Transport concerning a moratorium on enforcement of laws relating to the wearing of seatbelts in vehicles with air-ride seats (relevant to the defendant's plea of contributory negligence for failing to wear a seatbelt), preparation of detailed submissions in respect of liability and quantum for the State Government Insurance Commission and additional correspondence with the State Government Insurance Commission in relation to both liability concerning the seatbelt issue and quantum.
2 At this stage I pause to note that the action was commenced in June 2000, an appearance was filed in January 2001 and the matter was concluded by way of an agreement in approximately May of 2001. The plaintiff did not proceed the action to the filing of a statement of claim from which I infer active and promising negotiations were then on foot. 3 On the basis of the authority of Gardiner v Classic Laboratories Pty Ltd, unreported; DCt of WA; Library No 3541; 12 November 1992, I hold that insofar as the claim for getting up case includes the preparation for and presentation of argument in the process of informal negotiation, it should not be allowed. With that proposition in mind it appears to me that the only task that was undertaken by the solicitors in Western Australia, which could be properly characterised as getting up case for trial, was the investigation concerning the obligation to wear a seatbelt in vehicles fitted with air-ride seats. All other work concerning the gathering of evidence appears to have been undertaken by South Australian solicitors and is the subject of a separate allowance. 4 I have difficulty accepting that the process of investigating the attitude of the Department of Transport to the requirement to wear a seatbelt in vehicles fitted by an air-ride seat could possibly command an allowance of $12,000. To the extent that other items are included, I find them to be related to the informal negotiating process and not allowable. As a consequence I reach the view that the allowance of $2,000 for the
(Page 4)
work undertaken within Western Australia is an appropriate allowance and should not be disallowed. 5 The next item subject of objection relates to item 8 of the bill of costs which was the process of informal negotiation for which a claim of $540 was made. 6 On the basis of the authority I have previously quoted, I take the view that in the absence of a specific agreement between the parties that the plaintiff should bear the costs of that negotiating process, there should be no allowance for it. Accordingly, I see no basis to disturb my decision to disallow the whole of item 8. 7 For these reasons the objections are not allowed and the bill will be signed in the sum of $7,536 upon the delivery of these reasons for decision. 8 The time within which the parties may appeal shall be extended to 28 days from that date.
|