Grainger v WILLIAMS
[2001] WADC 134
•11 JUNE 2001
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: GRAINGER & ANOR -v- WILLIAMS & ORS [2001] WADC 134
CORAM: DEPUTY REGISTRAR HARMAN
HEARD: 4 APRIL 2001
DELIVERED : 11 JUNE 2001
FILE NO/S: CIV 237 of 1999
BETWEEN: GEOFFREY ORMOND GRAINGER
JOAN HARRINGTON GRAINGER
Plaintiffs (Respondents)AND
GALE CURTIS WILLIAMS
First Defendant (First Appellant)RUTH EILEEN WILLIAMS
Second Defendant (Second Appellant)MARK CURTIS WILLIAMS
Third Defendant (Third Appellant)
Catchwords:
Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation of costs - Appeal against decision of a Registrar
Legislation:
Nil
Result:
Review failed
Representation:
Counsel:
Plaintiffs (Respondents) : Mr M G Clay
First Defendant (First Appellant) : Ms L McFarlane
Second Defendant (Second Appellant) : Ms L McFarlane
Third Defendant (Third Appellant) : Ms L McFarlane
Solicitors:
Plaintiffs (Respondents) : Martin de Haas
First Defendant (First Appellant) : O'Connor Partners
Second Defendant (Second Appellant) : O'Connor Partners
Third Defendant (Third Appellant) : O'Connor Partners
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
DEPUTY REGISTRAR HARMAN: By the objection of 2 March 2001 the defendants have sought a review of some of the determinations made upon the taxation of particular items of the plaintiffs' bill of costs.
Items 13, 15 and 16 of the plaintiffs' bill were presented as follows:
| Item | Description | Quantum |
| 23 | Motion on preliminary hearing as to jurisdiction of District Court to hear defendant's application to determine preliminary issues | $1,650 |
| 23 | Motion to determine preliminary issues (heard 8/3/200) | $2,400 |
| DDC2 | 22 directions hearings | $700 |
At taxation I determined that although separate claims were made in relation to items 13 and 15, the relevant services which comprised the claims were properly a single claim under item 22 of the Supreme Court scale. Although neither party has objected to that determination I concede that I was wrong. Item 22 of the scale is for an application made in court. The plaintiffs were correct in their assessment in relation to items 13 and 15 that the appropriate datum was item 23 of the Supreme Court Scale. In my opinion there is no issue which turns upon that error and in any event neither party has objected.
The circumstances in which the relevant services were provided being that in the course of the interlocutory proceedings for judgment the following preliminary issues were isolated:
1.the appropriateness of the respondents representation by their chosen counsel, Mr Mark Clay; and
2.the parties seeking leave to cross-examine opposing parties' witnesses on their affidavits.
Those preliminary issues appear to have been first formulated at a directions hearing relating to the appeal on 3 September 1999. Part of the claim made at item 16 is for that hearing. The balance of the issues canvassed on that date related to the appeal. The second date for which a claim was made at item 16 was for a directions hearing on 24 July 2000. The services relating to that hearing related exclusively to the appeal.
The next group of items the subject of objection are items 17 to 19 of the bill. They were presented in the bill as follows:
| Item | Description | Quantum |
| DC3 | Getting up appeal for hearing | $1,000 |
| DC4 | Counsel fee on hearing of appeal against summary judgment, plus presentation (heard on 4/10/2000 and 31/10/2000) | $3,500 |
| DC6 | Attendance on reserved decision (delivered 17/11/2000) | $200 |
At taxation I considered that those items and the balance of item 16 were properly considered to be a claim under item 23 of the Supreme Court Scale.
The issue raised on the objection is not as to the determinations made as to the groupings (although the defendants appear to have misunderstood the determinations made as to item 16) rather that the items so grouped were then taxed under the wrong scale
The defendants contend that each group of items ought to have been taxed under the District Court Appeals Scale of Costs.
That scale was most recently promulgated in the District Court Appeals (Contentious Business) Determination 1999. In that determination the Legal Costs Committee refers to services rendered to a party in the context of an appeal to the District Court. That expressed context reflects O 8 of the District Court Rules which refers to the jurisdiction of the court to determine appeals to the District Court form other jurisdictions. Indeed when those rules were originally made on 23 February 1977 they expressly drew upon the powers expressed in the District Court Act 1969 to 1976 and the Local Court Act 1904 to 1976. Those rules were expressed to relate to appeals from the Local Court to the District Court but went on to provide at r 30, "that … these rules shall apply mutatis mutandis to an appeal to the Court from any court tribunal or authority where a right of appeal to the court is given by law now or in the future." In recent times I understand that the procedures under the rules have been extended to cover appeals from determinations of Registrars of the court.
Order 6 of the Rules of the District Court provide for an appeal from a Registrar. By r 2 of that Order Registrars were conferred with jurisdiction by Judges. In effect, the jurisdiction exercised by the Registrar is that of a Judge which by the Judge has been delegated to the Registrar. It is not anything other than the jurisdiction of the District Court. Accordingly an appeal from the determination of a Registrar is not an appeal to the District Court. The relevant jurisdiction exercised by the Registrar is the jurisdiction of the District Court. Thus while an appeal from a Registrar is an appeal to a Judge, it is not an appeal to the District Court. The relevant jurisdiction exercised by the Registrar is the jurisdiction of the District Court. Thus while an appeal from a Registrar is an appeal to a Judge, it is not an appeal to the District Court despite the fact that such appeals now follow the procedures set out in Order 8.
It is also appropriate to reflect upon the fact that under order 6 an appeal from the determination of a registrar was by way of a hearing de novo.
As a matter of logic, if an application before a Registrar is properly under item 23 of the Supreme Court Scale and the hearing of an appeal against the determination of the Registrar is by way of a hearing de novo, in the absence of a clear statement to the contrary it is difficult to see that the appropriate scale could properly be other than the Supreme Court Scale. There is no such provision. Accordingly, the appropriate scale to determine the claims is not the District Court Appeals Scale of Costs but rather the Supreme Court Scale.
The determination upon review reflects the determination that I have made in relation to the application of the Supreme Court Scale and my rejection of the defendants' contention as I have outlined in relation to the prior objection. Accordingly the review fails.
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