Goux v W M C Resources Limited - [2001] WADC 42

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: GOUX -v- W M C RESOURCES LIMITED [2001] WADC 42

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 6 FEBRUARY 2001

DELIVERED : 26 FEBRUARY 2001

FILE NO/S: CIV 2645 of 1998
WC93D 270 of 1997

BETWEEN: MARCEL JEAN MARIE GOUX
Plaintiff
AND
W M C RESOURCES LIMITED
Defendant

Catchwords:

Practice - Western Australia - Taxation of Costs - Turns on its own facts

Legislation:

Nil

Result:

Objections not allowed

Representation:

Counsel:

Plaintiff: Mr S V Forbes
Defendant: Mr C Hollett

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: McAuliffe Williams & Partners

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HEWITT: In this matter I taxed bills of costs for taxation in actions 2645 of 1998 and WC93D 270 of 1997 on 13 December 2000. I held those bills open for seven days following the taxation to allow objections to be received. My note on the file is that I had not received any objection by 21 December 2000 and on that date I signed the bill. It transpires however that objections were brought in on 20 December 2000 and not brought to my attention. Consequently I set aside the certificates and proceeded to deal with the objections. In action 2645 of 1998 in each instance the grounds of objection include the following:
"(b)The respondent contends that the learned Taxing Officer made the following further errors in principle:
(i)an error of law or an error of discretion in that in determining the amount allowed the Taxing Officer failed to have any, alternatively, sufficient regard to the maximum amount allowable pursuant to the Determination;
(ii)an error of law or an error of discretion in that the amount allowed is so grossly disproportionate to the actual costs reasonably incurred as to demonstrate an error in principle;
(iii)an error of law or an error of discretion in that the amount allowed was neither just nor reasonable in the circumstances of the particular case and the subsequent successful appeal to the Full Court.
(c)The item should have been assessed by:
(i)identifying what services were reasonable;
(ii)objectively assessing a reasonable allowance for such services by applying the rules, the Determination and the underlying principles thereof;
(iii)measuring the amount actually claimed in the bill for the services against the objective assessment in order to determine whether or not the amount claimed was reasonable;
(iv)in which case the sum allowed would have been significantly more."
In some instances additional grounds of objection have been given and where applicable I shall refer to those.
The first objection relates to item 2 on the bill which is the statement of claim. The amount claimed was $1,500 and the amount allowed $800. In addition to the general grounds of objection an additional ground was raised as follows:
"(a)The Taxing Officer erred in principle in finding that the sum of $800.00 constituted a reasonable fee to plead the plaintiff's case and further erred in principle by finding that the plaintiff's statement of claim contained substantial portions that were repetitious and unnecessary and that the plaintiff's solicitor pleaded the plaintiff's case in a 'complicated and convoluted way'."
The plaintiff claimed for two separate accidents whilst in the employ of the defendant at its mine at Norseman. The first accident allegedly occurred when the plaintiff suffered a fall while evading a rock-fall and in doing so he injured his knee. The second accident concerned a back injury sustained while the plaintiff was mowing a lawn. The second accident was connected to the first in the sense that the allegation was that the duties to which he was assigned following the first accident were unsuitable and led to the second injuries.
One would not have thought that scenario would have been complex to plead, however the statement of claim occupied 23 pages of which 14 pages were devoted to particulars of negligence and breach of contract.
The objection refers to my finding that the case was pleaded in a complicated and convoluted way. That is indeed my view of the statement of claim. I consider that the statement of claim could have been quite adequately pleaded in a much more concise form than it was. It is my view that approximately three hours would have been sufficient for a competent practitioner to perform that task and my allowance of $800 is based upon that assessment. Accordingly I disallow objection one.
The next item relates to item 6 of the bill "Proceedings in chambers" on an application for leave to adduce expert evidence. The amount claimed is $270 and the amount allowed $100. The objections are the generalised objections to which I have earlier referred. The application was absolutely routine, in standard form, unsupported by an affidavit, and could have been handled by the greenest of articled clerks. Accordingly I consider that to allow for a full hour of a senior practitioner's time on such an application is excessive. I have allowed $100 and I think that an adequate assessment of the task involved.
The next item objected to is item 13 on the bill for which an amount of $540 was claimed and amount of $270 allowed. The grounds for objection are the general grounds referred to earlier. The application was supported by two affidavits each by Mr I T Blatchford. The second affidavit in my view was required because the first was patently inadequate to deal with the requirements for an application for further and better discovery. The application was not opposed. Had the two affidavits been prepared simultaneously an economy would have been achieved. All in all I consider that a reasonable assessment for the services provided is one hour of a senior practitioner's time. An allowance of $270 reflects that assessment. Accordingly the objection will not be allowed.
The next item subject to objection was item 18, application in chambers for evidence to be taken by deposition. The amount claimed was $570 and that allowed $270. The grounds of objection are the general grounds of objection to which I have referred. The application was supported by an affidavit of the solicitor concerned which in effect indicates that upon a trial date being fixed, and the proposed witness being advised of that date, a letter was received indicating the witness was not available to attend. Ultimately the application was dismissed (apparently the witness became available) and the costs were ordered in the cause. There were two appearances before the Court on the first of which costs were reserved. No mention of the reserved costs was made in the final order which as a consequence are lost. Proceeding at the same time as the application to which I have just referred was another application for discovery and judgment and that application is the subject of a separate objection on the same grounds. At the taxation of the bill I dealt with both matters together since they were dealt with by the Court simultaneously. Although not reflected on the court file the parties agreed that an order for costs in the cause was applicable for both applications. The other application for judgment was supported by a short affidavit. The first appearance on that application was likewise one in which costs were reserved and therefore lost. In my view in combination the two applications, each with a short supporting affidavit and one brief attendance at court, would occupy approximately one hour of a senior practitioner's time. As a consequence I think an allowance of $270 on the first and $50 on the second giving a composite figure of $320 is ample allowance for the work entailed.
The next item objected to is item 20 a claim for inspection of the defendant's consolidated discovery. An amount of $270 was claimed and an amount of $50 was allowed. There was in fact no inspection, however, the allowance related to additional work which was caused by the defendant giving discovery on three occasions. On the first occasion a list was provided. On the second occasion a supplementary list was provided. On the third occasion a consolidated list was provided which included the first two lists together with some additional items. Although not framed very happily in the bill I considered some allowance should be made for the extra work required of the plaintiff by this process. My examination of the lists of documents indicates that it was very readily apparent that the first part of the consolidated discovery was simply a repetition of the first list with the addition of the second list. Insofar as additional were added items there was no inspection. My allowance of $50 reflected my assessment of the task involved in ascertaining that the list was composed as I have indicated by an amalgamation of the two existing lists with some additional items. The grounds of objections in this instance contained additional matters those being:
(a)the comparison of the defendant's consolidated lists of documents with the two previous lists of documents furnished by the defendant's solicitors;
(b)making no allowance for the consideration of which documents were required from the defendant's consolidated list of documents given that the plaintiff's solicitors had already obtained copies of some of the documents listed in the defendant's first two listed documents; and
(c)no allowance was made for the costs of considering and requesting documents required from the defendant's solicitors which have not proved previously been discovered by the defendant.
As to (a) my allowance reflects that task. As to (b) and (c) I recall no argument advanced on those proposition at the hearing of the objections. I am not aware that any documents were requested from the defendant's solicitors as a consequence of the process previously described.
The next item objected to is item 23 which was an amended reply to the defendant's amended defence.
Item 6(d) of the scale provides that an allowance may be made for a reply if it is necessary. My determination in the present instance was that the reply was not necessary and did no more than join issue with the defendant on the issues raised by the defence. In those circumstances I disallowed the claim for the reply. In any event the amount claimed of $405 would, in my view, be grossly excessive given the nature of the service provided.
The next item objected to is item 24 "Getting up case for trial." An amount of $25,000 was claimed and an amount of $20,000 allowed. The grounds of objection are the generalised grounds to which I have earlier referred.
A schedule was attached to the bill of costs for taxation which included a summary indicating that it was claimed that in the vicinity of 120 hours was spent by a senior practitioner preparing the case for trial and 45 hours was spent by a clerk. A total of 166 hours. The schedule contains various headings with particulars under each. For proofing the plaintiff and another witness a claim for 18 hours of a senior practitioner's time is put forward. For preparing various documents required to be filed a claim of 23 hours including 18 hours by a senior practitioner is claimed. For instructing a number of experts and perusing their reports 32 hours for a senior practitioner is claimed. For considering the defendant's documents and expert reports a senior practitioner claims to have spent 22 hours. For correspondence and various other miscellaneous items including considering evidence and the concluding evidence of the plaintiff history, pre-incident employment prospects and so forth, a claim of 28 hours by a senior practitioner and 34 hours by a clerk is made. I do not take issue that the various items for which claims have been made were properly undertaken in the course of preparing the case for trial. It does however seem to me that the claims for the time taken were very high. I accept that a considerable discount was applied when drawing the bill to reduce those claims to $25,000. In the light of the tasks required, in my view that discount was insufficient and I considered at the time of taxation, and I still consider, that an amount of $20,000 for getting up case for trial was a reasonable allowance bearing in mind that the maximum possible allowance was $27,000. The objection will therefore be disallowed.
The next item of objection is item 28 "Solicitor attending second day trial." A like objection relates to each of the second, third, fourth, fifth, and sixth days of trial. Deductions have been made in some instances reflecting the fact that the claim for the time spent was not in line with the court record of the time spent but the basis of the objection is that whilst I allowed $270 per hour for the solicitor attending the trial for the first day of the trial I considered that an allowance of $180 should be made per hour thereafter.
The basis of that reduction was the fact in my view that the demands upon the solicitor attending the trial was highest on the first day and thereafter diminished considerably as the trial progressed. Whilst I accept that counsel needed to be supported by a solicitor throughout the trial it appears to me that it is quite appropriate for a differential rate to apply for various days within the trial depending on the difficulty of the task confronting the solicitor at that time. In my view once the first day had passed the demands made of the solicitor's supporting counsel were not of a high order and therefore whilst it was appropriate for him to attend the trial in doing so he should not be able to command the highest possible rate. It is to be noted that junior counsel running the trial was entitled to $210 per hour and for the solicitor instructing him I have allowed $180. In those circumstances it appears to me that there is a proper relationship in those two items in the light of the responsibilities in which each carried and accordingly I take the view that the objections relating to the rate allowed for solicitor attending trials should not be allowed.
The final item relates to item 37 which is "Attending on reserved decision." An allowance of $360 was claimed and $200 was granted. The objection is that I erred in principle in making allowance only for the actual time spent in court and preparing for the court attendance therefore making no allowance to:
(a)due consideration of type written judgment of the Court, and
(b)communication and explanation of the type written judgment of the Court to the plaintiff.
The relevant item is 20(h) "Attending on reserved decision." In my opinion that task is completed when or the other of the parties moves for judgment and is granted judgment. What may happen thereafter considering the type written reasons of the Court is not something in my view that is encompassed by the item under which the claim is made. Since the objection recognises the fact that a proper allowance for the time of preparation and attendance in court was made and since I consider the claim for anything further is inappropriate and the objection is disallowed. Therefore insofar as objections made to the taxation in action 2645 of 1998, those objections are disallowed and the bill will be allowed in the sum of $64,403.42.
Insofar as there are objections to the allowances on the bill presented in WC93D 270 of 1997 those objections are to item 1 of the bill in which $2,400 was claimed and $1,200 allowed. The grounds of the objection are as follows:
1.1Item objected to:         Item 1 Originating Summons pursuant to Section 93D
1.2Amount claimed:        $2,400.00
1.3Amount allowed:        $1,200.00
1.4Grounds of objection:
(a)the respondent contends that the learned Taxing Officer made the following errors in principle:
(i)an error of law or an error of discretion in allowing only $1,200 in respect of item 1 of the bill of costs in that the amount allowed does not reflect the costs reasonably incurred by the plaintiff;
(ii)an error of law or and error of discretion in allowing only $1,200 in respect to item 1 of the bill of costs in that the amount allowed is so disproportionate to the costs reasonably incurred as to demonstrate an error in principle;
(iii)an error of law or and error of discretion in allowing only $1,200 in respect to item 1 of the bill of costs in that the Taxing Officer failed to have any regard, alternatively, sufficient regard to the maximum amount allowable pursuant to the Determination.
The application was supported by an affidavit by the plaintiff which mainly comprised annexures and an additional affidavit by the plaintiff exhibiting a further medical report. A complication arose because of the fact that after the original grant of leave was made the plaintiff applied for an amended grant of leave encompassing the second accident to which I have earlier referred in this decision. In my view the application was not in the least complex or demanding and a claim of $2,400 was excessive. My allowance of $1,200 reflects an allowance of approximately four and a half hours at the maximum rate of a senior practitioner which I consider to be ample allowance considering the nature of the application and the fact that it was determined by consent without argument. The objection will therefore not be allowed and the bill of costs will be signed in the original amount of $1,755. The time within which the plaintiff may appeal against this decision shall be extended to 21 days after the date upon which my decision is published.