| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GORMLEY -v- FORRESTANIA GOLD NL [2004] WADC 168 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 12 MAY 2004 DELIVERED : 12 AUGUST 2004 FILE NO/S : CIV 2552 of 1999 BETWEEN : SHANE KEITH PATRICK GORMLEY Plaintiff
AND
FORRESTANIA GOLD NL
Defendant
Catchwords: Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation of costs - Order for costs thrown away - Claims for getting up case, counsel fee and disbursements - Taxation practice - Availability of review
Legislation: Nil
Result: Notice fails to identify reviewable error
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Representation:
Counsel:
Plaintiff : S Forbes
Defendant : Ms D G Craig
Solicitors:
Plaintiff : S C Nigam & Co
Defendant : Mullins Handcock
Case(s) referred to in judgment(s):
Cruickshank v Producers Markets Co-Operative Limited [1960] WAR 184
Case(s) also cited:
Fashion Warehouse Pty Ltd v Pola [1984] 1QD R 251
Smith v Buller (1875) LR 19EQ 473
Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271
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1 DEPUTY REGISTRAR HARMAN: The plaintiff's claim in the action was tried over a period of 5 days in September 2003 and was listed for further trial commencing on 15 December 2003. On the first day of resumption the hearing was adjourned and according to the fiat of the trial judge the plaintiff was given the costs thrown away payable forthwith. The plaintiff's bill of costs lodged pursuant to that order was taxed. By its notice of objection the defendant commenced the process of review of particular determinations made at the taxation. The plaintiff listed the review for hearing and sought to be heard on review. The defendant contended that the plaintiff had no entitlement to be heard and proposed that the plaintiff was limited to filing submissions in response the objections.
2 There was no basis to determine that issue in favour of the defendant. The parties each made their submissions. 3 Unfortunately I overlooked the need to respond to the notice after the file was returned to the trial judge for the resumption of the trial. 4 At some 90 paragraphs and running to 13 pages the terms by which the notice is expressed are extensive. The extent of the task presented is compounded by the fact that on a broad assessment, in my opinion, the notice fails to articulate alleged error but rather advances submissions. Although I had commenced and was some way through a detailed response to the terms of the notice, I found that I was drowning the process of interpreting the terms of the objection in order to construct allegations of error on behalf of the defendant so that I could respond. Ultimately I considered that it was more appropriate to simply respond to the terms by which the notice is expressed. 5 The first part and particular paragraphs of later parts of the notice deal with the manner in which the plaintiff's claims were presented in the bill. The particular complaint is that the services claimed to fall within the scope of the order have not been identified. The defendant proposes that there ought to have been schedules provided for that purpose. The only actual expression of error relating to the point is at par 12 as follows:
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6 Rule 53 provides for jurisdiction for a taxing officer to review in circumstances where the objecting party alleges an error in principle in the allowance or disallowance of an item or a part of an item for which a claim is made in a bill. Review is available for determinations whereby claims for services or their component parts are either disallowed or allowed over objection. The error contended for by the defendant does not qualify as being within that limited scope. 7 Regardless of that observation, although r 44 requires the date of provision of a service to be expressed, it takes little imagination to realise that even in the case of relatively simple claims such as for a pleading, to fail to express the date of the provision of parts of the service or of the service itself by various inputs it is neither here nor there. In the case of more open ended services such as "getting up case for trial" or counsel fee, to provide dates would require exhaustive analysis of the process by which the service was provided. The only useful purpose served by the requirement under current taxation practice is in order to identify an application to which a claim relates. As to schedules, it is neither a requirement of the rules nor current taxation practice that schedules be filed. 8 The particular consideration that arises from the terms of the order is that it expresses a limit on recovery by reference to discrete services within a broader scope of services that would have been provided. I accept that one approach to the task of taxing under that order would be to engage in a process whereby discrete parts of services were identified and analysed to determine whether the cost of provision of such a part was actually wasted. At another part of the range, in undertaking an analysis of what fell within the scope of the order the focus of attention would simply be on the reason why aspects of the work previously performed would have been rendered valueless as a result of the adjournment of the trial.
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9 On taxation under the usual order, the services to which the claims in issue relate are not assessed by reference to accumulated discrete activity but rather to the features of the task performed. Recovery being limited to the reasonable cost of services necessarily provided, a useful mechanism for determining the extent of recovery is by reference to the provision of services in an efficient manner by a competent practitioner. Although the taxing officer would be informed of the services provided and the manner of their provision, at some point in the assessment consideration will be given to the application of features of that mechanism to all or parts of the activity to which the claims relate. It may be possible to discern that in a significant proportion of cases where there are no unusual features, the assessment made will be in line with the application of the mechanism to the circumstances of the case.
10 If that exposition is considered to be a little radical in the days where unfettered time costing of activity is promoted at the drop of a hat I would refer to the often forgotten passage in the reasons of Virtue J in Cruickshank v Producers Markets Co-Operative Limited [1960] WAR 184 at 192 as follows: "…The 1953 amendments to the Costs Rules in order LXV and Appendix N have introduced a novel basis for the fixing of costs, as a result of which, broadly speaking, the remuneration allowable to the profession in litigious works is to be based not on work done but on the value of the subject matter of the lis – a value to be fixed by the Court where the claim is not for a liquidated sum. Formerly the costs recoverable in a civil action were fixed by the taxing master after a painstaking and sometimes protected consideration of the many items contained in elaborate bills of costs culled from diary entries and costs sheets, based on the old 6s and 8d attendance with its subsequent increments, and purporting to represent work actually and properly done for the client in connection with the litigation and allowable under the terms of a complex and detail scale. Under the new scale the costs allowable are by no means measured by the work actually done." 11 I might add that in the context of taxation the significance of the amendments was not simply found in the construction of the ad valorem component. After all, the recovery of that component was established by and expressed in the judgment. The significant consideration was that the discretionary component would no longer be determined by an intricate form of taxation but rather, as I have described.
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12 The issue raised by the objection may be considered along the lines that the fact that the plaintiff is entitled only to costs thrown away justifies any different approach to drawing the bill, the need for schedules and the procedure at taxation. In my opinion such an analysis misses a more obvious and significant point. It is that in drawing the bill and presenting the case the taxing party makes a significant choice. Although it may choose to construct a bill that would satisfy this defendant and accordingly establish a basis for some form of extended analysis it is not required to do so. If it fails to do so, that does not preclude the adverse party from taxing the beneficial party in order to obtain more detail as evidently it has done. It is neither for the taxing officer or the adverse party to tell the beneficial party how to run its case. If the taxing party elects to do as the plaintiff has done in this case it is not surprising that when tested, his case will be put on along lines consistent with the process of taxation under the usual order. As much as in the ordinary case the taxing officer undertakes the task presented on an analysis of the case and the submissions, there is no reason why the same process would fail to produce an appropriate result in a case such as this. As I indicated at taxation, the risk accepted by the taxing party in taxing prior to the trial is that the extent of recovery made may be less than would otherwise be the case. If none the less the taxing party wishes to proceed the taxing officer is powerless to prevent it from so doing. The same can be said of the result of the choice of proceeding other than in the manner suggested by the defendant. The onus being on the plaintiff and he having made the determination to present his case other than by reference to discrete activity it is appropriate that the taxing officer adopts a conservative approach to the task of taxing the bill. I might add that thereby I do not criticise the plaintiff. In my opinion the bill was appropriately drawn. Had the plaintiff filed either a detailed bill or schedules and had the defendant taken issue with the cost I have no doubt that on the current taxation practice established some 50 years ago the result would have been that the plaintiff would have been at risk of not recovering for the exercise.
13 The alternative proposition would allow for the prospect that different considerations would apply simply because the order for costs provided a limited benefit. In my opinion the limitation itself does not justify such a significant change in procedure. Ultimately taxation is no more a science than assessment of general damages. The process of analysis for which the defendant contends would only in part inform the tasks of assessing the services thrown away and their value.
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14 The next allegation of error is at par 13:
"The defendant objects to the Taxing Officer proceeding to tax the bill in its entirety as it was an error in principle for the Taxing Officer to: (a) find that there was proper material before him upon which he could properly exercise his discretion; and (b) purport to exercise his discretion to tax the Bill of Costs where such exercise of that discretion was manifestly wrong." 15 The result is the same. 16 The subject of the next part of the notice is identified as being in relation to the claim for "getting up case for trial". 17 By the standard that I have applied to the first allegations of error, in the case of the 20 or so paragraphs that relate to that claim none actually express contended error. From much of what is presented I infer that the allegation of error would be along the lines that the valuation of the parts of the services thrown away was too high. I have already referred to the limitations of r 53. It provides jurisdiction to review determinations that relate to the allowance or disallowance of items or their parts. No jurisdiction is provided for the review of quantum determinations. I accept that Judges have found jurisdiction to review the quantum determinations of taxing officers. I understand that the test of error sufficient to justify review is that no taxing officer acting reasonably could have made the determination the subject of review. I struggle to find any statement to that or similar effect in the extensive complaints of the defendant. 18 That said I accept that par 17(a) articulates the case for error in the allowance of unidentified matters that fell outside the scope of the order. It is for the objecting party to identify the error contended for by reference to a part of the item that was allowed. In the absence of such identification the allegation is meaningless. I accept that there is scope to recognise inconsistency in that determination. In recognising that scope myself I would simply say that the onus on the plaintiff under the order was to present a case for recovery. The order established jurisdiction to tax the bill. The onus on the defendant on review is to present a case for error. Unless the parts allowed in error are identified I am unable to find jurisdiction.
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19 At par 17(l) although the defendant identifies the affidavit of Tiffany Laslet as the subject of complaint and I might infer that the defendant's case is that the claim for some reason that part of the service should have been disallowed. If there had been such an allegation of error I presume that it would have been along the lines suggested in that paragraph. The first being that there was no requirement that the affidavit be filed. The circumstances in which the Court properly requires a party to file an affidavit are rare. Recovery for an affidavit does not depend on an order requiring that it be filed. The reference to the lack of a formal application is of no particular significance. Because the trial was listed it was not necessary to file an application in order to bring the issue of the appropriateness of adjournment before the Court. Had the plaintiff filed an application arguably that would have been unnecessary.
20 The subject of the next contended objection is for counsel fee. The defendant probably did not intend to object to the amount claimed but rather the amount determined. Even with that correction the case for jurisdiction to conduct review is no further advanced than at the previous points. My observation is that there is no error articulated, the terms of objection are no more than submissions. 21 Perhaps I would add at this point that reference is made throughout the terms of the notice to a want of evidence. Current taxation practice does not depend on the provision of evidence. I suspect that taxation under the practice described in Cruickshank did not depend upon evidence. 22 The next contended objection relates to the claim for the taxation of the plaintiff's bill. Again I suspect that the objection is to the amount determined not to that claimed as the objection expresses. None of the grounds express any error. None of the grounds bear an interpretation that any error for which the defendant contends goes to the allowance or disallowance of the item or its parts. To the extent that it may raise an issue as to quantum, there is no jurisdiction to review. The defendant does not contend that any such error would qualify as being a determination that no taxing officer acting reasonably could make. 23 The next contended objection relates to the claim for recovery of a disbursement for a witness fee. Any error for which the defendant contends is no better articulated than its earlier efforts. Assuming that the defendant's intention was to make something of the claim for recovery for the witness fee along the lines of some or all of the articulated complaints, I suspect that the simple answer is that the person who articulated the
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grounds has not had much exposure to the trial process. My other observation is that regardless of how the account of the witness was constituted and the terms by which the complaints of the defendant are framed it is difficult to ignore the fact that the address of the witness on the account is given as being in Queensland. 24 The next contended objection relates to another disbursement. 25 As the scope of the issue raised by the defendant is relatively small and the points raised are narrow, I will respond despite there being no allegation of error. Predictably the issue raised appears to relate to quantum. 26 The reduction effected to the claim at taxation reflected the fact that not all of the subject matter of the account of the employer of the witness would respond to the terms of the order. Part of the account is for the process of proofing. Whilst I was satisfied that the exercise would need to be revisited I was not satisfied that the plaintiff had discharged the onus of establishing grounds for recovery of the full amount for that part of the account. In other words, I was not satisfied that the whole of the cost of the exercise had been wasted. The proofing of the witness would need to be revisited but part of the benefit of the proofing to date had not been lost. The plaintiff was entitled to recover for no more than the ground that would need to be revisited in the exercise of reproofing. I would not pretend that taxing is a science; ultimately it is a matter of judgment. The onus on the plaintiff at the taxation was not discharged by the existence of the order for costs in his favour. It was the order that conferred the onus upon him. In exercising discretion at taxation I was satisfied that there was proper scope to provide for recovery. As is always the case where a party seeks to tax costs prior to the disposition of an action, particularly costs thrown away, and the taxing party must accept that the taxing officer will adopt a more conservative approach to assessment than would otherwise be the case. I have no doubt that the defendant has no interest in that consideration. The only reason that I mention it is that I considered that in my assessment I did adopt a conservative approach. 27 The last objection was abandoned at the review. |