| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GRIFFITHS -v- DELRON CLEANING PTY LTD [2005] WADC 28 CORAM : MARTINO DCJ HEARD : 25 NOVEMBER 2004 DELIVERED : 23 FEBRUARY 2005 FILE NO/S : CIV 4707 of 1999 BETWEEN : PAMELA MAY GRIFFITHS Plaintiff
AND
DELRON CLEANING PTY LTD
Defendant
Catchwords: Costs - Review of taxation - Reasonableness of claims - Failure of Taxing Officer to comply with earlier decision allowing objections
Legislation: Nil
Result: Objection allowed
Bill of costs remitted to another Taxing Officer
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Representation:
Counsel:
Plaintiff : Mr S V Forbes
Defendant : Ms M G Saraceni
Solicitors:
Plaintiff : S C Nigam & Co
Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191
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1 MARTINO DCJ: The plaintiff was injured in an accident on 18 January 1994. The defendant was her employer. In this action she claimed damages for those injuries. She was successful and judgment was entered in her favour on 23 August 2002. 2 Her bill of costs was taxed by Deputy Registrar Harman in November 2002. By my decision delivered on 5 June 2003, [2003] WADC 123, I allowed the defendant's objection to items in that bill of costs. 3 Two of the items I disallowed were the sums of $1,180 for answers to interrogatories and $21,000 for getting up case for trial. The claims for those items in the bill of costs were $1,180 and $24,990 respectively. 4 My reasons were that in taxing the items it was necessary for the Taxing Officer to have regard to the time spent, the level of seniority over the person or persons who did the work, and the hourly rate charged. In my reasons I noted that once that information was known the Taxing Officer should have regard to any other matter that might be relevant to determine whether the charge was reasonable. I remitted the bill of costs back to Deputy Registrar Harman for taxation in accordance with my reasons. 5 For the purpose of that taxation the solicitors for the plaintiff provided to Deputy Registrar Harman a print out of their time records. On the taxation Deputy Registrar Harman again allowed the sum of $1,180 for answer to interrogatories. He allowed the full amount claimed of $24,990 for getting up case for trial. The defendant filed objections to those allowances. In those objections the defendant stated: "10. The Taxing Officer … considered that, since Judge Martino had not made any reference to whether the time spent by the Plaintiff's solicitors was reasonably spent, or was spent efficiently, these factors were not to be considered; the Taxing Officer must begin with the amount actually charged by the Plaintiff's solicitors for the work, and modify that, if necessary, by reference to the complexity of the case or the work, the urgency with which it was done and the importance of the case.
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Item 14:Plaintiff's Answers to Interrogatories ... 14. The Taxing Officer erred by failing to observe the principle that the allowance, in any case, must be reasonable. If the time taken to do the work was unreasonably long or inefficient, the time actually taken to do the work cannot be the measure of the Defendant's liability. The Taxing Officer should have considered how long the answers to interrogatories ought to have taken to prepare, having regard to the circumstances of this particular case, and should have allowed one hour of a senior practitioner's time (which at the relevant date was determined to be $270.00 per hour). Item 13: Getting up Case for trial 15. Once again, the Taxing Officer incorrectly applied Judge Martino's dicta. The Taxing Officer stated that he was required to ignore the test which had been applied before Judge Martino's judgment (that is, the objective test of reasonableness) and instead apply the actual time taken by the Plaintiff's solicitors, with an adjustment for the complexity of the case or work, the urgency and the importance of the case. … 21. There were two errors of principle as follows: (a) The Taxing Officer reached the conclusion that the amount claimed was reasonable, without having regard to the actual time spent on getting up (there being no evidence to distinguish the relevant time ledger items) and (b) The Taxing Officer allowed an amount greater than an objectively reasonable amount on the basis that he was constrained to disregard the latter. In the Defendant's submission, costs can never be allowed at an amount greater than an objectively reasonable amount, even though they
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can be allowed in a lower amount if that was the actual costs. In other words, the Defendant submits that one of the 'other matters' is the reasonable amount that would be allowed in the absence of direct evidence of the actual time spent and by whom. 6 It is clear from those objections that the defendant's solicitors had the view following the taxation that Deputy Registrar Harman had considered only the time spent by the plaintiff's solicitors and failed to consider the reasonableness of the sums claimed. By his decision dated 6 August 2004, [2004] WADC 165 Deputy Registrar Harman disallowed those objections. In his reasons Deputy Registrar Harman said of the objection to the allowance for answers to interrogatories: "14. My reading of the terms the objection is that it assumes that the process of assessment came to the point where it was considered that the claim was not reasonable and that the taxing officer would have engaged in a process of evaluating the extent to which the claim made would be reduced to reflect the plaintiff’s entitlement under the order. That assumption is unfounded. I considered the claim under the directions and determined that it was reasonable. It is only on the defendant's assessment that the result is excessive. Whether it is excessive I will leave it for others to judge. As I understand authority on the point, the existence of a reviewable error in the determination of quantum depends on an assessment that no taxing officer acting reasonably could have made the determination. I suppose in this case there could be another basis for contended error, a failure to follow the directions. The defendant does not so contend." 7 Of the objections to the allowance for getting up the case for trial Deputy Registrar Harman said: "26. My understanding of the second error is that what was objectively reasonable for the value of the service was disregarded. At least from my point of view it was less a matter of disregarding what was objectively reasonable and more a matter of giving the direction that regard be had for time costing an appropriate impact. Perhaps I
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could put it this way: when I first taxed the bill and reduced the quantum claimed by $3,990 I determined the objective value of the service getting up case for trial provided to the plaintiff in accordance with the scale. That determination was as much a reflection of where I considered the service provided to the plaintiff fell within the scale as it was any other consideration. Under the directions, in addition to every other consideration to be taken into account in evaluating whether the claim made was reasonable, I was required to have regard to what the plaintiff considered amounted to the process of getting up case for trial and the value of the time represented by that activity. In making the assessment required by the directions I considered that the claim made was reasonable." 8 Although Deputy Registrar Harman has said that he did consider whether the claims were reasonable, it is clear to me from his reasons that he did not do so. When Deputy Registrar Harman said in par 14 that whether the claim was excessive he would leave it for others to judge, he clearly indicated that he had not determined whether or not it was reasonable. If it was reasonable, it was not excessive. It is for the Taxing Officer to determine whether the claim is reasonable or not, not to leave it to others to judge. Although he said in par 26 that he considered the claim was reasonable he did not explain how it was that the information as to time spent provided by the plaintiff's solicitors resulted in the reasonable charge increasing by $3,990. 9 I disallow the taxation of those two items. In view of the lengthy history I direct that the taxation be completed before another registrar.
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