Griffiths v Delron Cleaning Pty Ltd - [2003] WADC 43

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GRIFFITHS -v- DELRON CLEANING PTY LTD [2003] WADC 43

CORAM: DEPUTY REGISTRAR HARMAN

DELIVERED : 28 FEBRUARY 2003

FILE NO/S: CIV 4707 of 1999

BETWEEN: PAMELA MAY GRIFFITHS
Plaintiff
AND
DELRON CLEANING PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation of costs

Claims in relation to interrogatories - Getting up case for trial - various medical reports

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Unsuccessful

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The defendant has filed what is expressed to be its objections to the plaintiff's bill of costs. By and large that is an apt description of the content of the document.
Rule 53 provides for review of determinations of the taxing officer upon objection being taken to an error in principle as to the allowance or disallowance of an item or part item for which recovery is sought in a bill.
The first objection taken by the defendant identifies the determination the subject of objection as the quantum of the fee for answering interrogatories.
The defendant contends that the task set for the plaintiff was not difficult and the answers simple and brief. Those contentions are no more than submissions and in all probability were made at the taxation. Significantly the defendant does not contend for any error on behalf of the taxing officer.
It is also evident from the objection that the defendant sought to focus on what it expresses to be the plaintiff's failure at taxation to establish how long it took for her solicitor to render to her the relevant services.
Implicitly it may be the case that the defendant would contend that the consequence of that failure was that the taxing officer made a determination absent a proper basis sufficient to justify either recovery to the extent determined or any recovery at all.
Ultimately in litigation whatever the context may be it is for the parties to determine how to best advance their cases. It is of no consequence that the Court or anyone else may consider that a party may have approached a task in a different manner. Once the case is put it is for the Court to make a determination on that case. If the plaintiff chose not to address the matter of time actually spent in providing the relevant services then presumably she was content that a determination as to quantum would be made on the basis of the balance of the relevant material, that is, the pleadings, the questions and the answers and on the submissions. I accept that if the defendant had sought particulars of the time devoted to the delivery of the relevant services and the plaintiff had remained silent then the taxing officer would need to reflect upon his position prior to making any determination.
Taxation is a process for ascertaining the fee for services rendered to a party for the representation of that party in an action. The datum for such a determination is the scale. For the particular service the scale provides a range to the maximum of $1,800. Although the maximum is obviously derived from the other components of the item expressed in the scale and each of those components engages a consideration of time, the fee recoverable is not expressed to be time rated. There is no obligation on a practitioner to record time. There is no justification for promoting time above any other consideration in the assessment of quantum for a claim under the relevant item in the scale.
It is then a matter of considering what may be a proper exercise of discretion in light of the plaintiff's "default". The Rules countenance limited recovery in instances where bills are not filed. Conceivably a claim that may be characterised as somehow deficient may suffer a similar fate but in that event the taxing officer would err in failing to consider whether there was otherwise a sufficient basis to allow for a proper judgment to be made.
In making the determination in this case any consideration as to the amount of time devoted to the provision of the services could only have been on an objective assessment of the amount of time that a competent practitioner would have taken to provide those services.
Even if the plaintiff had provided the information sought, any reflection upon the impact of a consideration of time on the process of assessment would probably have drawn upon an objective assessment. The only prospects of there being any different result are either that it may have influenced the objective assessment or the proper impact of the indemnity principle in circumstances where the solicitors were obliged to charge hourly rates for the relevant services. At the taxation and in dealing with the objection there is no basis to come to the conclusion that the latter prospect is relevant.
As to the former, ultimately time is but one consideration in assessing quantum. If that proposition is considered to be contrary to the somewhat simplistic appraisal set out in the Legal Practitioners' (Supreme Court) (Contentious Business) Determination 1996, I would accept that criticism. Taxation is had under the scale, not the determination. Taxation under the relevant scale item is not time rated. The average maximum rates expressed in the determination simply provide the datum by which the maxima of the ranges expressed in the scale were fixed. There is no prohibition on charging or on taxation recovering more than those rates would suggest. The same considerations that would justify recovery at greater than those rates in any particular case may justify less.
In the process of the taxation of the bill the defendant was accorded the same protection as any adverse party in the same position. In the absence of information from the plaintiff the assessment may properly have been more conservative than may otherwise have been the case. It would be wrong to consider that simply because the fee was determined as claimed that an appropriate determination was not made.
Ultimately before I would address the issue with any greater enthusiasm it would have been appropriate for the objecting party to specify the error and the grounds of objection.
The defendant concludes what to this point in the analysis has been an insufficient objection with the statement that the amount allowed should have been substantially nearer the low end of the scale.
If there is any jurisdiction to review errors made in assessing quantum then on the basis of the authority of which I am aware it is for the objecting party to establish that the error made goes to principle. The scope for promoting a quantum error as sufficient to constitute an error in principle is limited to instances where the objecting party establishes the result as being either so high as or so low as to demonstrate a patent error such that no taxing officer properly informed and acting in a proper manner could have determined the particular result. The fee was determined at some 65 per cent of the maximum of the scale. There is nothing in that determination which would suggest such a patent error.
Having failed to allege that the taxing officer made any error in principle at all there is no jurisdiction to review that determination.
The second determination identified by the objection is the assessment of quantum in relation to the item "getting up case for trial".
To a significant extent the defendant has continued as it commenced by making submissions as to the plaintiff's bill rather than taking objection to any error of principle of the taxing officer in making the determination. The defendant's complaint is only as to quantum and in my opinion that complaint would not qualify as one that identified an error in principle. There was sufficient raised on the issue of liability to engage the Court over a period of four days. The allowance made for getting up was less than 80 per cent of the maximum available under the scale.
It follows that there is no jurisdiction to review. Be that as it may, I will make some comment as to various parts of the relevant section of the defendant's notice.
The defendant asserts that the plaintiff failed to establish that the claim for getting up was based exclusively on the District Court proceedings. It is a curious way of expressing an error made by the taxing officer. That comment introduces two strands of 'objective facts' designated as such in the notice.
The first strand is comprised of a series of other proceedings commenced both in this Court and under the Workers' Compensation and Assistance Act 1981. The second being that services were provided to the plaintiff prior to the date of the writ. Any consideration of the two will result in convergence as the other proceedings were taken prior to the issue of the writ.
It would not have been the case that the plaintiff's solicitor at the taxation would have expressly drawn upon the services rendered to the plaintiff in the other proceedings to justify the claim for getting up this action for trial. I am satisfied that was the case as he is sufficiently experienced to know that each attempt to claim for those components would have been disallowed as they were articulated. The justification for that course would have been that recovery under the order for costs was expressed to be for the costs of this action. In the absence of any such attempt, any prospect of recovery for any such services could not have arisen.
That said, it is conceivable that material generated for the purposes of other proceedings would have been properly considered for the purposes of getting up the action for trial. In the context that I have outlined, I would expect that the plaintiff's solicitor would read any medical report in his possession relating to the plaintiff, her injuries and treatment if only to reflect upon the content. It is a task that it is reasonable to expect the solicitor in possession of the report to undertake and depending upon the content of the report may properly be considered to be part of the material that either party may utilise.
In one particular paragraph of the objection the defendant makes what I would take to be a concession in that it asserts that the medical reports obtained before a particular date were concerned with the issues in the workers' compensation proceedings "and the causal connection between the symptoms in various parts of the plaintiff's body and her back injury". In my opinion had I failed to take causation into account in assessing quantum I would have erred.
It is also evident from the terms of the objection that the defendant would contend that the evidence obtained in relation to medical issues during particular periods was primarily or perhaps wholly concerned with the other proceedings. That may be the case but it is ultimately of no consequence that material obtained was at any time utilised for some other purpose. The significant consideration is that the content of the material was relevant for the purposes of the action.
Aside from that consideration, the defendant points to the fact that the plaintiff submitted that getting up commenced in 1996, three years prior to the date of the writ.
Any analysis of getting up is properly taken upon the pleadings. That is not to say that where issue has been joined on the pleadings the taxing officer will not properly allow for work that has been done at an earlier time in anticipation of it being live. In such a case there is always the prospect that the issues on the pleadings will determine that more work will have been done than is necessary. That is a risk that all parties take in preparing for and embarking upon litigation, particularly those who chose to embark upon a successful application for summary judgment.
It transpires that in this case, at least until the pre‑trial conference, all matters were in issue and it follows that there is scope for the taxing officer to allow for recovery of the costs associated with what may count as proofing at an earlier stage than the commencement of the action. Similarly so for obtaining details of medical treatment, obtaining expert opinion and assessing loss.
The defendant distinguishes getting up case for trial from work which may have been performed by the plaintiff's solicitor for the plaintiff but which does not qualify for that description. It refers to a passage from Seaman at 66.11.6 as follows:
"It is to be remembered that the item ('getting up case for trial') does not apply to the general preparation of a case, but getting up the case for trial."
Regardless of whether that is the text, it is a proposition with which I have no difficulty.
The adverse party in taxation may fear that an inference will be drawn from the fact that the beneficial party attends at the taxation with volumes or boxes of written material. In my opinion it ought to be difficult for the taxing officer to justify drawing any inference in circumstances where it was not necessary to do so. In the circumstances that I have just described the need to draw any inference would not arise.
Otherwise the defendant contends for some relatively simple factual propositions that it has extracted from some analysis of the case. In addition to presenting four concise issues the defendant is able to detail the length of time spent by the plaintiff and her witnesses in the box. It further contends that some significance attaches to the plaintiff having mentioned that the process of proofing required 45 hours. In my opinion on the basis of the determination made it would be relatively easy to come to the conclusion that the plaintiff failed to recover for both 45 hours of proofing and for the whole of the balance of the relevant services rendered. The fact that during the course of the taxation the plaintiff's solicitor informed the taxing officer that proofing took that long is of no more significance than the fact that the solicitor may have attended the taxation with enough paper to fill some files or boxes.
It is not unusual for the adverse party after the conclusion of an action to portray the case confronting its opponent as simple. Ultimately a determination in relation to quantum is founded upon an objective appreciation of the extent to which the proceeding progressed, the complexity of the issues raised in the action the scope of the relevant evidence and an appreciation of the amount of time which would reasonably be devoted to the task.
I suspect that no taxing officer in this jurisdiction would attach any particular weight to the information received from the taxing party as to the amount of time devoted to the provision of any particular services other than those which according to the scale are to be assessed on the basis of time spent. It is interesting to note that on each of those occasions the relevant services are those likely to be rendered in the presence of ones opponent.
In light of the generality of the concluding part of the objection it may be the case that the defendant would contend that there might be some discount applied on the basis that some of the information considered for the purposes of getting up would have been utilised for the other proceedings.
In a case which proceeds to trial the process of taxing getting up is not required to be other than on the basis of general submissions. It is unlikely in such a case that sufficient detail would be provided so as to allow for the taxing officer to properly effect any discount. I would add that even if it was otherwise the case, the prospect that a taxing officer would be sufficiently seized of all relevant information in order to allow for a determination that it was proper to effect a discount would be remote.
The third objection taken by the defendant goes to the allowance of various disbursements. Each of those claims is contested on the basis of the plaintiff's failure to prove the reports were obtained for use in the action. And that "if the cost of those reports could have been the subject of bills of costs in the s 93D and Form 22 proceedings, then they cannot be the subject of the present bill of costs".
Thereby the defendant seeks to draw support from s 84ZL of the Workers' Compensation and Rehabilitation Act 1981 which provides at subsection (1) that each party to the proceedings bears the party's own costs unless the review officer orders otherwise.
In my opinion there is a proper distinction to be drawn between this objection and the others. Considering the statutory provision, in my opinion it is insufficient for the defendant to implicitly impugn the determinations by reference to some default or oversight of the plaintiff.
Implicitly the defendant contends that somehow the relevant items are properly identified as having been potentially recoverable in other proceedings and that is the end of the matter. Yet there has been no process of identification of the claims with other proceedings for any purpose. At taxation the task to be performed was to determine whether the cost of each report was recoverable under the order for costs in this action. That assessment was made on the basis of relevance, the fact that a cost was incurred by the plaintiff and that it had not been paid by the defendant. The statutory provision would only have an impact if it were considered necessary in the process of taxation to undertake the task of excluding from consideration any costs that may have been the subject of the prohibition. I do not consider that there is any basis for the taxing officer in the District Court to seek to judge what may or may not be recoverable in another proceeding in another jurisdiction. The fact that the date of the reports may coincide with other proceedings is interesting but nothing more. I have no doubt that in most similar personal injury claims recovery is effected for reports that issued prior to the commencement of the action and during the course of workers' compensation proceedings.
As I have already noted, in relation to the utilisation of the content of reports for the purposes of getting up the case for trial, it is conceivable that reports serve both this action and other proceedings. In my opinion, as long as in part at least each report may have been obtained in anticipation of this action, that is a sufficient grounding for recovery of its cost. I accept that the qualification "may" may be considered by some to be unsatisfactory. However ultimately there has to be some efficiency in the process of taxation. The accepted practice does not allow for evidence and cross-examination. Properly so, taxation is an adjunct to litigation. The taxing officer ought to properly probe and evaluate information provided until the point of satisfaction. To seek to distil what may appeal to a reader as the components of such a report in my opinion would be artificial. To seek to apportion the fee claimed would be arbitrary.
At taxation I was satisfied that the plaintiff had discharged the onus of establishing that the disbursements were incurred at least in part for the purposes of the action which at the relevant time was at least in contemplation. In seeking the opinion, the plaintiff was motivated to obtain opinion to prospectively assist in the proof of her case. Whatever the content of each of the reports when they issued or the use to which that content may have been or was put, in my opinion was of no moment.
As the defendant is unsuccessful in each of the objections taken to the taxation I will record that the defendant has been unsuccessful and determine that the plaintiff is entitled to recover any costs associated with the review.