GREISDORF v Body Corporate of Strata Plan No 10721 - [2003] WADC 183

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GREISDORF -v- BODY CORPORATE OF STRATA PLAN NO 10721 & ORS [2003] WADC 183

CORAM: DEPUTY REGISTRAR HARMAN

DELIVERED : 22 AUGUST 2003

FILE NO/S: CIV 2568 of 2002

BETWEEN: TIMOTHY GREISDORF
Plaintiff
AND
BODY CORPORATE OF STRATA PLAN NO 10721
First Defendant
JAMES NORRIE FORD
BEVERLEY JUNE FORD
Second Defendants

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court - Review of Taxation - Claim for getting up case where pleadings had not closed claim for costs of settlement as part of getting up case for trial - Impact of O 66 r 21 considered

Legislation:

Rules of the Supreme Court, O 66, r 55, r 21

Result:

Objections not sustained

Representation:

Counsel:

Plaintiff:     No appearance
First Defendant              :     No appearance
Second Defendants        :     No appearance

Solicitors:

Plaintiff:     Julienne Penny & Associates
First Defendant              :     Not applicable
Second Defendants        :     Mossensons

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

Anfrank Nominees Pty Ltd & Ors v Connell & Ors (1991) 6 WAR 271
Clybucca Holdings Pty Ltd v Richard Ferier Gray and Others & Ors, unreported; SCt of WA; Library No 970191; 30 April 1997
May v Smith & Anor [2001] WASC 352
Smith v Buller (1875) LR 19 Eq 473

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: At an early stage in the action the second defendants were successful both in having the plaintiff's claim dismissed and obtaining orders for costs. They now seek to review determinations made in the course of taxation of various claims made in their bill for getting up case for trial.
In the statement of claim the plaintiff had alleged that at all material times the second defendants were the owners of particular premises. After filing a memorandum of appearance, the defendants' solicitors had informed the plaintiff's solicitors that at the material date that was not the case.
Ultimately the plaintiff made an application to substitute for the second defendants a different party. By the time that application was made the first named second defendant had deposed in support of a proposed application for summary judgment. At the hearing of the plaintiff's application the defendants applied for judgment and they were successful. I was informed at the taxation that on the day they had sought indemnity costs but that application had been refused.
Before considering the issues raised by the objection I will canvass some fundamental considerations that had an impact upon relevant determinations made at taxation.
The first goes to the basis of the defendants' entitlement to costs. The relevant order was not extracted. The Deputy Registrar's fiat is as follows:
"1.Action against the second defendants be dismissed with costs;
…
3.Plaintiff pays the second defendants' costs of this application."
I was satisfied that had the order been extracted, it would have been expressed so as to enable the second defendants to recover their costs of both each application and of the action.
The second goes to the extent to which recovery for the cost of services provided to the defendants was available under that order for the cost of services provided to the defendants. In the absence of there being any contrary indication expressed in the fiat it was appropriate to tax the claims made by the defendants on what is known as the usual indemnity basis. The fact that I had been informed that the application for indemnity costs had been refused simply reinforced that conclusion.
The limit on recovery introduced by that consideration recognises the distinction between the extent to which a practitioner may have provided services in the context of an action and the extent to which such services were necessarily provided. That distinction is expressed at r 11(3). According to Smith v Buller (1875) LR 19 Eq 473 at 475 recovery under the usual order is limited to the reasonable cost of the services necessarily provided to the successful party.
It was appropriate to consider that it was the intention of the Deputy Registrar to limit recovery of the defendants' costs both of the action and each of the applications to services that were necessarily provided for the purposes of either advancing the defendants' case or opposing the plaintiff's case.
The third is that it was for the taxing party to satisfy the onus in order to establish each claim.
The fourth is the extent to which recovery was available under the order for the costs of the action.
At taxation it became apparent that the claims made in the bill were for each occasion that activity had been undertaken of which there was evidence on the solicitor's file. While I have no difficulty with the defendants drawing the bill as they chose and seeking to advance those claims, at taxation it is inevitable that a primary marker for recovery for services necessarily provided would be the extent to which the action had progressed.
The only step taken in the action by the defendants was to enter an appearance. For the purposes of analysis it is worth recording that had they not taken that step then despite the fact that other services perhaps considerable in magnitude had been rendered to them by their solicitor it is difficult to see that there would have been any scope for recovery by the defendants whatsoever. That such an order may have been made in such a case would have been of no particular significance when it came to taxing the bill. The order would simply have allowed for the beneficial party to put a case for recovery at taxation.
An appearance having been entered, it was appropriate to allow for that service and what was implicit in its provision. Conceivably the solicitor may then have been informed as to matters relating to service of the writ. In addition to providing any advice in relation to service, advice may also have been provided as to the validity of the writ, the nature of the cause of action canvassed by the pleading and the jurisdiction of the Court. The fact that in contrast with other items in the scale the scope for recovery under Item 5 is modest is noteworthy but nothing more.
It is conceivable that at the same or at a subsequent time or times any number of issues raised by the plaintiff's pleading were addressed by the defendants' solicitor by way of the provision of advice. Further that some detailed instruction was sought and advice given as to the case to be met and that which may have been put in response. However, in the absence of any indication that the defendants were taking the next step in the action by perhaps drawing a defence, in my opinion they could not make any greater recovery under the order for the costs of the action. If that Judgment were considered to be harsh, I would add that neither in the bill nor at the taxation was there any suggestion that any consideration had been given to formulating a defence. At the taxation there was no proposal to amend the bill to seek to otherwise characterise the activities in which the defendants' solicitors had been engaged.
Had the matter proceeded beyond the close of pleadings, on a proper analysis it is conceivable that recovery could have been had for services within the scope getting up case that had been provided prior to that time, even prior to the commencement of the action, on the basis that the services would have had to be provided at some time and it is my understanding that it would be contrary to proper effect being given to the order to disallow services provided simply because they may have been rendered "early".
Considering the process of proofing provides the obvious illustration of that point, it is conceivable that within a broad context one could conduct an analysis and draw from it the proposition that at an early stage in an action the solicitor had then at least in part been engaged in the process of taking a proof. The recognition of that prospect is not to recommend a solicitor following that course, it being perhaps a better practise to disassociate the features of taking instructions, whether for the purpose of providing advice or otherwise from the process of proofing. However, perceived efficiencies and cost savings will provide some momentum for the blending of those processes.
Of course early proofing may be far more extensive than is found to have been necessary upon the close of pleadings. The taxing party may seek to portray any more extensive proofing as otherwise recoverable but it would carry the onus and properly considered, in all probability it would only be satisfied in what may be described as a special case.
And so it is that solicitors conducting what may be characterised as early proofing on the one hand engage with efficient practice on the other, they engage the risk that under the usual order, recovery for that service by their clients will be precluded.
I suspect that the impact of that risk is most frequently obviously manifested where a plaintiff has made a successful application for summary judgment. And I might add, not only in the result of taxation but also evidently in the formulation by some practitioners of their clients' bills.
In considering the extent to which recovery was available under the order for the costs of the applications, although what appeared to me to be relevant claims were expressed to be getting up case for trial, it was appropriate that the defendants did recover costs for services that related to the plaintiff's application and the defendants' application including proofing for the purposes of the first named defendant's affidavit and preparation for and attendance at the hearing.
The fifth was raised by the terms by which each claim in the bill was expressed, that is, as a claim for part of getting up case for trial.
There is a range of activities associated with the process of getting up the case for trial. Broadly they fall into two categories. Those associated with the proof of issues at trial and those that respond to provisions in the rules and practice directions that impose obligations on both parties and practitioners.
The datum for the assessment of the extent to which any getting up of the issues on the pleadings was necessary can emerge only upon the close of pleadings. In this case the pleadings had not closed. In the context of what transpired in this case, that is the applications voluntarily made by the parties, it is evident that they each chose to follow a course other than to proceed to trial. In my opinion as a matter of principle there is no justification for the taxing officer to imagine how the case may otherwise have progressed for the sole purpose of facilitating recovery by any party.
As to the prospect that there was any obligation imposed by the rules or the practice directions which would have required the provision of services otherwise recoverable as getting up, I am not aware of any that would have had such an impact at any time before the order was made.
The final consideration was of the impact of the submission made by the defendants that r 21 provided scope for greater recovery than would otherwise be available. It is as follows:
"Where for any reason there is no substantial trial the judge or taxing officer may make such allowance in lieu of the fees prescribed by any relevant scale as he considers to be merited in the circumstances".
What appeared to be missing from the analysis which founded the submission was any consideration of the extent to which recovery is available under the usual order for costs. There is nothing magical that touches upon what would otherwise be constituted as the services necessarily provided by a practitioner for the purposes of an action simply because the action is brought to a close prior to trial. Although on one reading of r 21 enhanced recovery may be accorded, as a matter of logic there is no mechanism to generate any such enhancement.
In the context provided by O 66 there is a distinction that is open to be drawn between items or parts of items and fees. Items or parts of items refer to services for which a fee is claimed in a bill and may be recoverable at taxation. The impact of r 21 is expressed to operate on fees not services. Accordingly, the constraint lifted by r 21 is no more than in relation to the quantum of the fee recoverable. Logically the taxing party could not be advantaged by r 21 beyond the extent to which services were necessarily provided to the point when the action was concluded.
An obvious illustration of the operation of r 21 would be that had the defendants been in the process of preparing a defence but it had not then been filed, they would only recover to the extent that services comprehended by the item "defence" had actually been provided by the time that the action was dismissed. Presumably some would say, much as one would expect in the absence of the rule. And I would agree.
I recognise that every provision in the rules should be accorded some meaning. Others seem to have gone to some length to seek to distinguish the impact of r 21 from that of r 12(2) in order to find some meaning. In my opinion the meaning of r 21 is found on an historical analysis.
The significant feature of the rule is the word "prescribed". Presently there is no item in the scale for which the fee is prescribed; each is subject to the discretion of the taxing officer. That was not always the case.
When r 21 first took effect on 1 February 1967 it did so in a context where a component of the fee recoverable under some items was prescribed. It was in the following terms:
"Items (now 13, 14(a) and 14(h)) in the scale in the Fourth Schedule apply only where there has been a substantial trial. Where for any reason there is no substantial trial, the Judge or the Taxing Officer may make such allowance in lieu of the fees prescribed by any of such items as he considers to be merited in the circumstances."
Between 1 January 1954 and 1 February 1997 recovery under the item getting up case for trial was determined by the application of a formula expressed to be of universal application. By recourse to that formula the taxing officer would calculate both the maximum of the range of the fee available for recovery and an ad valorem component. That component was not amenable to the impact of any exercise of discretion by the taxing officer. Not surprisingly it became known as the fixed component. Prior to 1967 the application of the formula depended upon a determination as to whether the case was under the "Higher Scale". After 1967 it became necessary for either the court or the taxing officer to determine the value of the subject matter of the action under what is now r 20 in order to apply the formula.
The same analysis applied to claims under the item for the conduct of trial. Under the 1954 scale the "Higher Scale" provided for similar ad valorem recovery. In 1967 the determination of the value of the subject matter of the action under r 20 was translated by a formula expressed at what are now Items 14(a) and (h) into prescriptive recovery. However in the case of those items unlike what it is now item 13 the regime did not endure until 1996.
It is my understanding that such prescriptive recovery was regarded as a novelty and the subject of some criticism at the very least from other jurisdictions and no doubt the occasional adverse party in this jurisdiction. One criticism may have been redressed by the introduction of what is now r 21. Prior to that time there was no indication as to how a determination be made as to whether the lower, intermediate or higher scales applied. Conceivably that determination would have been made on either the quantum claimed or on quantum determined, at least in the case of a successful plaintiff. I suppose that after the introduction of r 20 the criticism would have translated into the prospect that the determination of the value of the subject matter was a contrivance to allow for a particular impact on recovery via the formula.
There is every prospect that by 1967 those responsible for the maintenance of the system introduced in 1954 would have been cognisant of the fact that parties would have a legitimate concern that where an action did not go to trial, the taxing officer having determined that the "Higher Scale" applied may simply have determined that either the whole or some arbitrary proportion of the ad valorem component would appropriately be awarded. In that event it would appear to me that what is now r 21 could be portrayed as having been a rational response.
The significant consideration addressed by that rule was not as to the construction of the range within which recovery under the relevant items was available and possibly not even as to the prospect of recovery of all or part of the ad valorem component. Rather that by the scheme it was actually intended that "windfalls" would be recovered. Rule 21 simply expressed two things, first that they could not be collected before they fell and second that they fell at trial.
Accordingly where the rule applied, the taxing officer having valued the subject matter and thereby having established the range, would then revert to the usual considerations that applied in taxing any other item in the scale. That is to assess quantum on the basis of work actually performed. A methodology not unlike that which then pertained in every other jurisdiction in Australia and in the United Kingdom.
I have no doubt that the context that I have described was such that had anyone then put the proposition that rather than limiting recovery the intention was to facilitate greater recovery such a proposition would not have warranted serious consideration.
The amendment made to r 21 to bring it to its current form was part of a more comprehensive package of amendments to O 66 introduced in 1992 whereby generic references were made to relevant scales in lieu of references to the Fourth Schedule. That course of amendment followed upon the task of drawing the scale having been removed from the jurisdiction of the Supreme Court and placed in hands of the Legal Costs Committee in 1987.
On the basis of the analysis that I have provided to this point, it may be that had the Court been aware that the Committee in 1997 would abandon the scheme for recovery under Item 13 that had then been in place for some 40 years, it might have recognised that as much as the references in r 21 to what are now Items 14(a) and (h) then no longer had any effect that would become the case with Item 13. Where the point is reached that there are no longer actions to which the scheme then in place for recovery under Item 13 would apply, r 20 and r 21 would fall into desuetude.
It may be that in due course those rules may simply be repealed as they serve no useful purpose but only distract the unwary. I suppose that one may marvel at what would appear to be either or both ingenuity or shortness of memory.
The process of taxation being fundamentally underpinned by the logic that recovery is limited to services actually provided determines that, but for cases where there was some getting up prior to 1997 on which costs are yet to be taxed r 20 and r 21 serve no purpose at all.
In accordance with that analysis I saw no basis to allow for greater recovery under r 21 than otherwise would be available. I will return to the impact of r 21 in dealing with ground 3 of the objection. Suffice to say at this stage that I considered the proper impact of the rule was that the datum for determining the defendants' claims was the scale.
It is obvious to me that the context in which the order for costs was made might suggest to some that the analysis that I brought to the taxation would produce what may appear to be an unfair result. The defendants had been mistakenly drawn into the action and they had engaged a solicitor to assist them out of their predicament. Those services having been provided by their solicitor at a price, no doubt they would consider that they ought to recover at least a significant proportion if not the whole of their costs. Indeed if that was not the case in all likelihood additional costs would be generated in dealing with their sense of grievance.

The defendants sought an order that would have allowed for comprehensive recovery for the cost of services provided to them and they failed. The costs orders made provided only a limited indemnity. The extent of recovery under such an order is properly determined by principle. I suspect that other than in a broad sense rarely are the results of taxation fair. What is called justice is blind.
The defendants' objections are in the following terms;
"1The Registrar failed to have sufficient regard to our application that Item 13 of the Supreme Court scale of costs ('the scale') can include limited consideration in the course of preparation of the case to the desirability and feasibility of reaching of a settlement. Clybucca Holdings Pty Ltd v Gray (Supreme Court WA Library No. 970191, unreported 1997).
2.Pursuant to Seaman's 66.11.6 'Item 13 Getting up Case for Trial is composite and inclusive'. The Registrar failed to exercise his discretion to a sufficient degree in disallowing correspondence passing between the Second Defendant and the Plaintiff to be included in 'getting up for trial'.
3.Further and in the alternative, the Registrar failed to have sufficient regard to Order 66 Rule 21 of the Supreme Court Rules, whereby 'where for any reason there is no substantial trial, the Judge or taxing officer may make such allowance in lieu of the fee prescribed by any relevant scale as he considers to be merited in the circumstances.'
4.As explained to the Registrar, the circumstances of this case were that the Plaintiff wrongly and without any legal basis named the Second Defendant as a party to this action. In the circumstances and having regard to justice between the parties, the Registrar failed to have sufficient regard to the case of May v Smith [2001] WASC 352, whereby Order 66 Rule 21 may be invoked where reasonable remuneration is sought for preliminary work which cannot be properly described as getting up for trial.
5.Therefore, even if the Registrar was correct in his assessment that the work undertaken by the Second Defendant was not 'getting up' within the meaning of the scale, Order 66 Rule 21 should have been considered in the taxation.
6.Further at Seaman's paragraph 66.21.1 'A taxing officer is not required to make a detailed time analysis of the work and is not in error in determining the allowance which is merited by weighing and balancing a number of factors including the nature and amount of work done, the complexity of the issues, the stage in the proceedings when settlement occurred, the value of the subject matter, the degree of responsibility required and the amount which would have been allowed if the matter had gone to trial. Clybucca Holdings Pty Ltd ibid.
7.In this case the Second Defendants made every reasonable effort to settle this matter without the need for further litigation, which was constantly rebuffed by the Plaintiff. On this basis, Order 66 Rule 21 should have been invoked by the taxing officer so as to properly remunerate the Second Defendant for the costs incurred.
8.When authorising a taxation under Order 66 Rule 21, a taxing officer 'may make such allowance instead of the prescribed fees as he or she considers to be merited in the circumstances, and there is no prima face obligation upon him or her to allow some percentage of relevant scales'. D'Alessandro & Associates (1993, 930377 unreported). The Registrar failed to have sufficient regard to the blamelessness of the Second Defendant in determining the costs when declining to exercise the provisions of Order 66 Rule 21."
The first point to make is that as a whole in my opinion the objection fails to bring itself within the scope of r 53 as it purports to do. The defendants have failed to identify any particular item or part of an item that was disallowed but which ought to have been allowed. Although I do not intend to analyse each individual ground in order to substantiate my opinion that is not to suggest that it is not a matter of significance sufficient to dispose of the point. A simple reading of each ground demonstrates the point. Absent an objection that enlivens the jurisdiction to review that there is no jurisdiction to review.
Nonetheless I will address other features of the notice.
As to par 1 of the notice the defendants cite Clybucca Holdings Pty Ltd v Richard Ferier Gray and Others & Ors, unreported; SCt of WA; Library No 970191; 30 April 1997 in support of the proposition that preparation of the case can include limited consideration of the desirability and feasibility of reaching a settlement.
At the outset it is worth recording that in the objection the defendants do not actually refer to the concept of getting up case for trial but rather, preparation of the case.
It is my appreciation that prior to Clybucca Holdings Pty Ltd (supra) it was accepted that under the usual order, beyond the particular references made in the scale, the costs of settlement including consideration of the desirability and feasibility of reaching settlement are not recoverable. That was because they were not considered to be part of the costs of the action, alternatively they fell outside the scope of the test propounded in Smith v Buller (supra), alternatively that under r 11 (3) they were properly characterised as costs not properly recoverable against the adverse party but nonetheless may have been properly incurred. Each of those reasons taken alone being fairly compelling.
In Clybucca Holdings Pty Ltd the plaintiff's claim for getting up case for trial had been taxed and the defendants had sought review of relevant determinations made by the taxing officer. It is not altogether clear from the text of the reasons of Wheeler J whether the relevant determination of the taxing officer had been the allowance of discrete services or whether she had simply sought to support a quantum determination by reference to services categorised as relating to the desirability and feasibility of reaching settlement.
At p 6 of the reasons the following text appears;
"The Taxing Officer did not attribute a specific amount of the sum awarded to negotiations for settlement. However, she did have regard to the fact that settlement negotiations had occurred, in two respects. First, she observed that the assessment of the strengths and weaknesses of the case upon which a solicitor's advice in respect to settlement is based is the same sort of assessment that must be made in preparation for trial, so that it was often difficult to draw a clear line between the two. Secondly, she noted that it could be argued that the practice and rules of the court had moved to a point where consideration of settlement is one of the steps taken in preparation for trial (citing O 29A r (3)(a))".
There is then some discussion concerning what was portrayed as an inconsistency in the position evidently adopted by the applicants in seeking to persuade the court that there was no proper allowance for that consideration and reference is made to a passage in Anfrank Nominees Pty Ltd & Ors v Connell & Ors (1991) 6 WAR 271 at 280. The text continues:
"In my view, it would be wrong to regard that portion of the decision in Anfrank which follows the passage I have quoted as an exhaustive statement of everything that could conceivably be covered by Item 13. It is necessary to consider the expression 'getting up for trial' in its ordinary and natural meaning. In my view, a practitioner would be failing in his or her duty, if he or she failed, other than in exceptional circumstances, to consider during the course of preparation for trial the desirability and feasibility of reaching a settlement either in relation to the whole of the matter or in relation to some of the issues which it may involve. I do not intend to suggest that all of the dealings between solicitors which often fall under the general description of 'negotiations for settlement' are to be regarded as preparation for trial, nor do I think that the Taxing Officer took that view. But to the limited extent I have indicated, it appears to me that consideration of settlement is a necessary and incidental part of the process of getting up for trial. Such consideration will normally be inextricably bound up with the usual consideration of the likely course and outcome of any trial.
In my view, it was to such consideration as was inextricably linked with an assessment of the likely course and outcome of the trial that the Taxing Officer referred, when she said that the fact that settlement negotiations had occurred was a 'very minor factor' in determining the allowance. Had she taken the view that any other, and greater, allowances in specific recognition of settlement negotiations were required, she said that she would have considered them allowable pursuant to r 11(3) and r 18. However, she stated that she "made no allowances under those rules."
I infer that the reference to O 29A r (3)(a) was made by the taxing officer and at least, Wheeler J intended to nominate r 8 (3)(a). It expresses the prospect that at a listing conference the judge would inquire as to the prospect of settlement.
The case having settled one month prior to trial in all probability it had passed the stage of the listing conference. If I am correct in that assessment I would have no difficulty in recognising scope for the recovery of the cost of the provision of relevant services. By the rule the conference has been constituted as a step in the action. The expectation of the Court at the conference is expressed in the rule.
That prospect would not assist the defendants in this case, at the very least because O 29A does not apply in this jurisdiction.
Although it is unclear from the first passage whether the regard had by the taxing officer did precipitate any recovery, presumably it was at least the perception of the adverse party that such had been the case as it would otherwise not have been before the Court. The effect of the decision appears to allow for the prospect that recovery may be available for limited costs associated with consideration of settlement. Unfortunately Wheeler J has failed to articulate the basis upon which she appears to have appreciated that there was scope to allow for such recovery.
She does not provide any assessment of the taxing officer's opinion along the lines that the rules or practice had moved to a point where consideration of the prospects of settlement is a step taken in the process of preparation for trial. Other than the rule to which I have identified to which I believe Wheeler J intended to refer, I am not aware of any rule that expresses any such step. As to the proposition that the rule or other rules may in the context of practice suggest the generation of such a step independent of the step expressly provided by the rule, I suppose that is a matter of perception.
My understanding of the term "step in the litigation" is that it refers to a formal step in the progress of an action to the last step being the trial. Steps that come to mind being the entry of appearance, the close of pleadings, the entry for trial and the pre-trial conference. Consideration of settlement is not such a step.
That is not to say that I have any difficulty with the proposition that considering the prospects of settlement in all probability would proceed in tandem with the progress of the litigation. The reference to practice may be no more than a broad reference to the implementation of various strategies by the Court to the end of encouraging parties to settle. In my opinion as a matter of principle, practice could not generate a step in the action.
As to the portion of the first passage that refers to an assessment of the case, to me it does not appear to be presented as a justification for allowance for a part item, "negotiations for settlement" but rather, that the assessment of the case for one purpose was more or less the same it would be for any other. I discern that the taxing officer recognised that an analysis of a case may be conducted for any number of reasons and at different times.
Indeed it may be that the regard expressed to have been had by the taxing officer was no more than that there would have been no proper basis to reduce the fee otherwise justified simply because recovery party and party for one purpose of the assessment of the case was not available.
If I am correct then I can appreciate that any comment made by her in the taxation was incidental. Fundamentally if the analysis was appropriate for one purpose, it is of no consequence that it may have been utilised for another. If I am wrong then it would appear to me that the taxing officer was thereby seeking to provide some alternative basis for the allowance for the relevant services. In my opinion any such proposition would manifest muddled thinking.
As I have indicated, I have no difficulty in recognising that analysis of a case for all sorts of purposes may follow along the same lines. Indeed it would be surprising if it were not the case. I have no difficulty with the prospect that if the analysis was conducted for more than the single purpose of settlement that it may not have been considered to be appropriate to reduce the quantum otherwise recoverable simply because the same analysis was also utilised for that purpose. The fundamental issue is whether there is any scope for recovery for such an analysis conducted solely for the purpose of settlement. That prospect was not addressed.
It is difficult to discern to which circumstance Wheeler J was referring when she made reference the inextricable linkage between consideration of a case for considering the prospect of settlement and consideration for the purposes of getting up for trial. If it is no more than any multi-purpose analysis of the case, I have nothing more to add. However, I suspect that she intended more as the passage as a whole would suggest that the plaintiff could have recovered more had there been such negotiations than would otherwise have been the case.
Wheeler J proposed that the discharge of a relevant facet of professional responsibility would found recovery for services "necessary and incidental" to getting up case. I have some difficulty with that proposition in the context of taxation of party and party costs. I suppose that the first point to reflect upon is whether in that context the term "getting up case for trial" ought to have the ordinary or natural meaning for which she contends. It provides a significant datum in the context of the taxation of costs. It has a technical meaning that at least distinguishes considerations of what is objectively necessary from what is merely incidental activity.
It is perhaps no more than interesting to contemplate that it may have been considered that the particular facet may either have emerged only in recent times or have formerly been overlooked. I suspect rather that the contrary was the case.
Ultimately cost recovery must be founded upon some objective basis by reference to which a determination may be justified. The datum with which I am familiar is that the taxing party is entitled to recover no more than the reasonable costs of services necessarily provided. Those services will be identified upon an analysis of the pleading and the evidence. Services related to settlement and the prospects of settlement are not amenable either to such analysis or determination. Unless the principle that founds recovery under the usual indemnity is changed or modified, the fact that services may have been devoted to the prospect of settlement is of no consequence.
If it were otherwise, the ramifications would be significant. It takes little imagination to recognise that matters personal to the parties or their solicitors may dictate any course of negotiations. Conceivably the services associated with the prospect of settlement provided during the course of an action may have been considerable and an adverse party may be at some risk in litigation where the taxing party had followed a practice of regularly visiting the issue in what may then have been considered to have been either to the point of vexation or otherwise in a vexatious manner. Although any course of negotiations may broadly speaking proceed upon similar lines to the interlocutory processes, within each such interlocutory step there is an opportunity for the parties and the Court to focus upon where the costs should lie. There is no such opportunity in any process of negotiation.
The important consideration from the point of view of principle is that necessity could not be the test of recovery. Conceivably the ready response from many quarters would be that the concept of reasonableness could provide a useful test. The concept of reasonableness in the formulation "reasonable cost of services necessarily provided" does not apply to services but to fees. In my opinion reasonableness could not provide a satisfactory datum in relation to the provision of services. Wheeler J proposes scope for limited recovery without providing any basis for doing so. She suggests that there may be some limited recovery without defining how that limit might be recognised.
The comments of the taxing officer and Wheeler J may blur what otherwise are quite distinct. Simply because common sense, professional courtesy or professional standards may dictate that consideration be given to the broader picture does not justify recovery of costs for any manifestation of such consideration on a party and party basis. The fact that 100 per cent of litigants and practitioners may undertake such steps in the hope of settlement is no more significant than that at every opportunity the courts seek to promote the prospects of settlement.
In my opinion it is difficult to discern whether recovery was had on a novel basis and whether it was justified on any more than the rule that I have identified. In my opinion taking into account the settled state of the law and the lack of any useful analysis the case is no more than troublesome.
Paragraph 2 would suggest that correspondence passing between the parties should have been allowed as part of getting up the case for trial.
It is impossible to identify those items to which the determinations the subject of the objection relate. I might add to what I have already expressed in relation to the terms of the objection that at the taxation the defendants did not contend that each claim was of equal strength. It was then my impression that the defendants had simply sought recovery for all activities in which their solicitors engaged and that no thought had been given to the identification of party and party costs in the process of preparation of the bill. That is not a criticism of the defendants; I simply note that consistent with the defendants' approach and my appreciation, it is not as though even the terms of par 2 suggest that all of the claims disallowed ought to have been allowed.
As to what can be drawn from par 2, it is fair to say that any claim manifested in the form of correspondence would not have been disallowed simply because it took that form. The taxation proceeded, as I have indicated, by a process whereby I sought to discern the service the subject of each claim and to evaluate the extent to which it was provided.
It is also fair to say that the "objection" does not engage with the reasons for disallowance that I have earlier articulated.
Paragraphs 3, 4 and 5 draw into consideration the terms of r 21.
By par 3 the defendants simply contend that insufficient regard was had to that rule. I infer that the defendants would contend that the impact of the rule is such that they would escape the confines of the scale and thereby the constraints that would otherwise apply in taxing under the order. If that is not the case I do not understand the import of the objection. If it is, then the first response is that it is at least interesting that each claim was expressed to be made under Item 13 of the scale.

Any more considered analysis of what I take to be the defendants' contention ultimately runs into a logical difficulty.
I have determined that the defendants were entitled to recover under the usual indemnity. Unless it was the case that the relevant services were provided under a regime for below scale recovery of costs, such recovery party and party, is constrained by the scale. It is illogical to view the intervening event of summary disposal as having had any impact on the extent to which recovery is available for those services other than to the extent of limiting the recovery that otherwise may have been available had the services been fully provided.
It is fanciful to consider that in an action that did not proceed to trial there could be any better result than had the action been tried. Frankly as the scale is largely composed of items where the bottom of the range is $0, and the fees for the balance are determined on hourly rates, r 21 conveys nothing more than that an investigation ought be conducted of the extent to which a service not fully provided had been provided up to a particular date.
At par 4 the defendants refer to May v Smith& Anor [2001] WASC 352 which they contend stands for the proposition that r 21 maybe invoked where reasonable remuneration is sought for preliminary work which cannot be properly described as getting up for trial in order to do justice between the parties. I am not sure that I would agree that proposition as being the ratio of that case. It is a fair assessment of all that I have recorded so far that at the very least the justice to be done is on the proper application of principle and nothing else.
It appears to me that at par 20 Templeman J distinguishes a claim for getting up a case for trial from a claim for the general preparation of a case. He speculates that the taxing officer may have erred in allowing what I infer he considered to have been a significant sum for getting up case for trial in circumstances where the scope for any allowance was relatively small. He makes that observation in a context where he has stated that the preliminary work carried out by the defendants in response to the writ could not be properly described as getting up case for trial.
As to the significance of the distinction and the terms in which it is expressed, I entirely agree and would add that in my experience it is a distinction that many practitioners at least pretend to find elusive.
The point at which I disagree with the reasons is with the comment that the determination made may have been justified under either r 21 or Item 13A. In the context presented in the reasons, the reference to Item 13A is curious. It appears that the action having been discontinued by notice, that the defendants were entitled to recover costs on the usual basis. There being no hint of the intervention of any other consideration, with respect it appears to me that Item 13A did not apply.
As to the application of r 21, it is apparent that at the point that it was considered Templeman J was already of the opinion that a proper assessment had been made under Item 13A. He states at [25] and following:
"25 Order 66 r 21 provides:
'Where for any reason there is no substantial trial, the Judge or the Taxing Officer may make such allowance in lieu of the fees prescribed by any relevant scale as he considers to be merited in the circumstances.'
26Item 13A of the Scale enables charges to be made for time reasonably spent by a practitioner, clerk or paralegal on work not covered by any other item in the Scale;
27Given that the taxing officer obviously considered that $4505 was a reasonable remuneration for the work carried out, I think it would be unjust to the first defendant to disallow those costs;
28The plaintiff's second submission in relation to getting up is that the Taxing Officer erred in principle by starting with the amount claimed of $10,505 and discounting it to $4505. … "
At the very least there was no analysis whatsoever as to the import of r 21. In my opinion there is no justification to conclude that Templeman J had considered the application of the rule.
Perhaps in fairness it is appropriate to record that it was the objection of the beneficial party as to quantum that was under examination in that case. Strictly speaking the basis of the determination made could not have been in issue.
Otherwise the terms of par 4 actually identifies the services the subject of objection as being "preliminary work which cannot be properly described as getting up for trial". As I have already recorded, I was not particularly interested in the fact that services that where incorrectly nominated as getting up were so designated. On analysis where they were recoverable they were allowed. I consider that it is odd that that the defendants now concede that some items were not properly getting up because it is preliminary work are nonetheless recoverable. At the very least it would have been helpful to identify the items and the proper basis of allowance. I may then have been in a position to at least guess what my error may have been.
I suspect that the defendants wish to be in the same position as the plaintiffs in May. That is that they had obtained before the taxing officer the determination that Templeman J speculated had been made in error. The reality is that they are not.
It would appear to me that in relation to par 5 there is nothing further to be said.
I have some difficulty in understanding the relevance of the ground expressed at par 6; it appears to have something to do with quantum. There was no allowance of any part of the services claimed as getting up, as getting up. Any issue as to quantum thereby fell away.
Paragraph 7 proposes that some effort was put in to the process of settlement and all of it by the defendants. Even if I was to accept those propositions, in my opinion they provide no basis for any different result than that I have expressed. The defendants obtained the usual order for costs; the taxation of those costs has proceeded on the basis that their limited entitlement was determined.
As to par 8 it appears to me to be comprised of two parts and I cannot integrate them. As to the first part, the reference suggests that under r 21 a taxing officer may make a determination other than as a percentage of the maximum recoverable under an item in the scale. As was the case with par 6, any issue sought to be raised is wide of the mark, the items in issue were disallowed, issues that go to quantum are irrelevant. I will comment that the case to which reference is made is evidently one determined under the pre 1997 regime. The part quoted would reinforce all that I recorded on that point particularly in the significance of the word "prescribed" and the reference to obligation.
As to the second part, there is no different principle or additional consideration that applies in the taxation of the usual order for party and party costs in circumstances where the beneficial party is blameless. As I have already recorded, what is called justice is blind. I suspect that other than broadly speaking rarely is the result of taxation fair.
If the notice constitutes a proper notice of objection in my opinion the defendants have failed to sustain any ground of objection.