| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GRIFFITHS -v- DELRON CLEANING PTY LTD [2004] WADC 165 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 28 APRIL 2004 DELIVERED : 6 AUGUST 2004 FILE NO/S : CIV 4707 of 1999 BETWEEN : PAMELA MAY GRIFFITHS Plaintiff
AND
DELRON CLEANING PTY LTD
Defendant
Catchwords: Practice - Western Australia - Practice under then Rules of the Supreme Court of Western Australia - Review of taxation conducted under directions - Claims for answers to interrogatories and getting up case for trial
Legislation: Nil
Result: No jurisdiction to review
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Representation:
Counsel:
Plaintiff : Mr S V Forbes
Defendant : Mr M L Greenland
Solicitors:
Plaintiff : S C Nigam & Co
Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Grigoletto v Myer Properties (WA) Ltd, unreported; DCt of WA; Library No 3667; 31 March 1993
Joyce v Hutchinson (2000) SR (WA) 23
Case(s) also cited:
Nil
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1 DEPUTY REGISTRAR HARMAN: Under an order for her costs of the action the plaintiff is entitled to recover from the defendant the reasonable cost of services necessarily provided to her by her solicitor. The Plaintiff claimed for answers to interrogatories and getting up case for trial. In setting aside determinations made at taxation relating to the extent of recovery for those services Judge Martino gave directions for their valuation. The directions are expressed within the text of his reasons for decision at par 13 and par 14 as follows:
"13 It is my view that following the 1996 Determination in determining an allowance on a taxation for work done by a practitioner or paralegal it is necessary for the taxing officer to have regard to the time spent on the item, whether the work was done by a practitioner or a paralegal and, if done by a practitioner, the level of seniority of that practitioner and the hourly rate charged by the practitioner or the paralegal. Once that information is known the taxing officer should have regard to any other matters that may be relevant to determine whether the charge is a reasonable charge. Other matters that might be relevant in a particular case could include the complexity of the case and of the work done, the urgency with which the work was required to be done and the importance of the case. 14 It would seem from Deputy Registrar Harman's reasons that he failed to have regard to the time spent on answering the interrogatories, whether the work was done by a practitioner or paralegal and the hourly rate charged for the work done in determining whether or not the sum claimed for that item was reasonable. In my view this constituted an error of principle and the objection should be allowed. The item should be reviewed by Deputy Registrar Harman who, having regard to all relevant matters, should determine whether or not the sum claimed for this item is reasonable. … " 2 In taxing under those directions I understood that the quantum of each claim would be constituted as the datum and that in assessing reasonableness regard would be had for considerations that in combination would allow for value to be attributed to periods of time.
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3 Absent the directions, determining the extent of recovery for the services the subject of the claims would be a matter of valuation of their provision in an efficient manner by a competent practitioner. The taxing officer would not have been particularly interested in the taxing party's assessment of either the manner in which they were provided or subject to one exception, their value. The claims would have been recognised for what they were, the assessment of the party who carries the onus of establishing recovery to any extent. In taxing the claims it would not have been inappropriate to consider that the datum was either zero or a nominal sum and that it would be for the beneficial party to make a case for any advance beyond that point. The only significance of a claim arises where it expresses a valuation at a figure less than the objective value of the service. Beyond that, a claim may prompt an enquiry as to whether a significant submission has yet to be made. In combination they permit the imposition of ad valorem taxing fees and as a matter of practice are used to record the quantum determinations. But for the case where the claim is less than the objective value of the service, taxations would be more conveniently undertaken in the absence of claims.
4 None the less the direction that the claim be constituted as the datum is relatively easy to accommodate. Instead of valuing the services, the assessment to be made is whether the claims are reasonable. The more difficult task is to discern the extent to which regard be had for the considerations that establish a basis for time costing in that assessment. 5 The determination of the Legal Costs Committee to which his Honour referred was expressed to be founded on time costing. The expression of that mechanism in both the scale and in the illustrations that the Committee provided for the benefit of the court in assessing applications under r 12 may suggest that the determinations of a taxing officer would directly reflect consideration having been given to time costing. 6 In exercising its authority in the form of the determination the Committee was not taxing a bill; it was simply setting the maximum recoverable on taxation under scale in response to its obligation to regulate practitioners' fees. It chose to make its determinations by adopting the mechanism for recovery established by costs agreements, under which the extent of recovery was calculated without reference to the scale, for time recorded as having been utilised at hourly rates. Upon taxation under such agreements practitioners were not required to justify recovery other than by identified periods of time. The extent of recovery by the practitioner would neither be tested by reference to the scale nor the considerations that apply to recovery under the usual order for costs.
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7 To consider that a determination of quantum may be justified either solely or primarily by time costing would have the effect of significantly distorting the extent to which recovery under an order for costs is available at common law. There would be a real prospect that recovery would be had for inefficiency, incompetence and for activity that had little or no connection with the provision of the service in question. I would not suggest that by its determination the Legal Costs Committee provided for that prospect. It is only by applying the methodology used by the Committee at taxation that it is realised. I might add that the Committee itself made a powerful case against the extension of time costing to taxation in the form of the statement that it did not countenance the return to detailed forms of taxation. The taxation practice endorsed by the Committee follows the test of recovery that I have articulated; the competent practitioner providing identified services in an efficient manner. Under that practice there is no need to consider the intricacies of the manner in which a service was provided. Under a regime of time costing it would only be by a detailed analysis that the interest of the adverse party would be protected.
8 Whilst it may be considered that the reference by his Honour to the determination may suggest that I should apply time costing, according to the directions I chose to have regard for time costing considerations. I note that his Honour did not promote those considerations over others that may bear upon the determination of whether the claim was reasonable. 9 However regard for time costing may be reconciled with the usual form of taxation, it would appear to me that to follow the directions would provide scope for a greater level of recovery than would otherwise be available. That is so as the focus on the claim and regard had for time costing would generate the prospect of recovery for reasons that would not otherwise apply. 10 The defendant has filed objections to the determinations made under those directions. The starting point in the process of review is to ascertain whether there is jurisdiction to review. Regardless of the terms of the objections, as the assessments required to be made under the directions were only as to quantum any error contended for could only go to quantum. Rule 53(1) provides jurisdiction for the taxing officer to review errors made in the allowance or disallowance of items or their constituent parts. In Joyce v Hutchinson (2000) SR (WA) 23 at p 248 Judge Groves dealt with the existence of jurisdiction to review quantum determinations. He preferred the view expressed in Grigoletto v Myer
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Properties (WA) Ltd, unreported; DCt of WA; Library No 3667; 31 March 1993. At p 250 he stated: "In Grigoletto Heenan CJDC concluded that, although the logic of the interpretation adopted in (other) cases was clear, it was his opinion that their conclusion was wrong. His Honour had no hesitation in concluding that a taxing officer's decision as to quantum was still open to review if it had resulted from an error in principle." 11 I have nothing to say about how a judge may find jurisdiction to review the decision of a taxing officer. In my opinion it would be wrong for a taxing officer to conclude that he had jurisdiction to conduct a review of quantum determinations when patently the rule, the only source of jurisdiction for the taxing officer to review, does not extend that far. 12 Be that as it may, the defendant is entitled to reasons for the determination made. I will limit my reasons to the terms of the objections. 13 The first relates to the claim for answers to interrogatories. It is as follows: " 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)." 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
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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. 15 In coming to the conclusion that the claim was reasonable I had regard for the information provided by the plaintiff that related to the prospect that periods of time would be costed. I was informed of the total of the periods of time attributed to the claim and how that total was drawn from inputs from a senior and junior practitioner and an unqualified person. The figures were drawn from the record of the plaintiff's practitioner with which I was provided. 16 In its determination the Legal Costs Committee adopted and defined the terms senior and junior practitioner and paralegal. It had recourse to determinations that it had made as to average maximum hourly rates charged by the profession for those classifications under costs agreements with their clients. Those determinations expressed rates for senior and junior practitioners and for the unqualified. I understood that the plaintiff adopted those classifications and hourly rates. 17 Perhaps understandably his Honour did not articulate the other matters that would have a bearing on the assessment of the claims. Presumably they would include all of the considerations that would have a bearing on the determination of a claim absent the directions. The more significant of those considerations arise from the context in which the service was provided, how it was provided and the result. Ultimately a determination would be justified by reference to the scale. 18 The context was provided by the issues canvassed by the questions, the terms by which they were put, the issues raised by those terms and some 50 questions, the preponderance of which called for evidence. Once the response to the questions had been satisfactorily recorded the document was executed, filed and served. The result was that a significant number of questions were considered and answered and that the plaintiff recorded evidence. 19 The error contended for is the failure to follow the proposition that it is appropriate to utilise considerations that bear upon time costing to construct a mechanism for evaluating the extent to which claims would be reduced. To apply that mechanism would require the taxing officer to have a more intimate understanding of how time claimed was utilised than
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current taxation practice would provide. If the taxing officer was required to immerse himself in the minutiae of the task presented to the plaintiff's solicitor upon receipt of the questions I suspect that the process of taxation would take a good proportion of the 8.5 hours by which the plaintiff sought to justify the claim. The fact that the plaintiff chose to respond to the questions other than by way of objection would not exclude the prospect that difficulty was presented by the terms of the questions or that objection was not considered as a response. 20 It is my understanding that to apply the mechanism proposed would be contrary to the directions. To do so would amount to a determination that it was appropriate to promote time costing considerations above all others. Implicitly his Honour did not consider that the case justified that approach. It was not my appreciation of either the case or the service provided that it was appropriate to conduct an analysis that would have had that effect that other considerations were ignored. 21 In my opinion regard for time costing considerations has simply provided another perspective from which to judge the extent to which recovery was available under the order. 22 The second determination the subject of objection is that made for the quantum of the claim for getting up case for trial. 23 The terms of the objection are recorded by the defendant as follows: "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 can be allowed in a lower amount if that was the actual cost.
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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." 24 As to par (a), the fact that I had regard for the time recorded by the plaintiff's solicitor as having been spent on getting up the case for trial was precisely the reason for the result.
25 As to the suggestion that there should have been detailed analysis of the time recorded in the ledger, that is beyond the scope of current taxation practice. His Honour did not direct that taxation be other than in accordance with that practice. For what the observation is worth, neither did the Legal Costs Committee. The defendant does not contend for error along the lines that the exercise warranted that approach and that I erred by either failing to appreciate that fact or ruling against it on the issue.
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 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.
27 The last sentence of the second allegation of error does not appear to engage with anything that I determined. Having heard the parties in taxation twice and once at review I note that the last part of the sentence is a recurring theme. Ultimately the taxing officer may properly consider that in presenting a bill a practitioner will not act dishonestly or in breach of the duty owed to the court.
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28 As to the last part of par 21 it suggests that there was no direct evidence of actual time spent and by whom. According to current taxation practice determinations are made other than on the basis of evidence. In this case I had made a direction that the plaintiff put before me information/evidence before me as to time spent in any manner that she considered appropriate. The record of the plaintiff's solicitor was exhibited to an affidavit. The notes taken by me of the taxation under the directions indicate references by the parties to those records.
29 The defendant is probably right about the prospect that if the taxing officer was unable to perform the exercise of time costing that would not disentitle the plaintiff from recovering under the directions, however, such was not the case.
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