Guest v WOOLLER - [2004] WADC 231

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: GUEST -v- WOOLLER [2004] WADC 231

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 12 NOVEMBER 2004

DELIVERED : 19 NOVEMBER 2004

FILE NO/S: CIV 3340 of 2001

BETWEEN: BRIAN THOMAS GUEST
Plaintiff
AND
AGNES WOOLLER
Defendant

Catchwords:

Practice - Western Australia - Objection to taxation - Getting up - Turns on its own facts

Legislation:

Nil

Result:

Objection not allowed

Representation:

Counsel:

Plaintiff: Mr S Forbes
Defendant: Mr P Momber

Solicitors:

Plaintiff: S C Nigram & Co
Defendant: Peter Momber

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

Joyce v Hutchinson & Anor (2000) WADC 42

Case(s) also cited:

Nil

DEPUTY REGISTRAR HEWITT: This matter was concluded by consent judgment dated and entered 8 June 2004 under the terms of which the plaintiff became entitled to the costs of his action to and including 5 April 2004. Pursuant to that order the plaintiff brought in a bill of costs for taxation which came before me. Subsequent to the taxation the defendant brought in objections to the amount which was allowed for item 12 of the bill "getting up case for trial". The amount claimed in the bill was $17,472 from which deducted $4,472 leaving a balance of $13,000.
The gist of the submissions which have been filed on behalf of the defendant is that the quantum allowed for "getting up case" is such that an error of principle is displayed. As I understand the appropriate criteria an error of principle is disclosed no reasonable taxing officer acting on proper principles could have made the allowance complained of (Joyce v Hutchinson & Anor (2000) WADC 42).
The analysis provided by the defendant identifies various tasks required to be undertaken by the plaintiff's solicitors and postulates a time reasonable to undertake those tasks and leading from that analysis it is suggested that the total time reasonably spent on the file by the solicitors excluding taking instructions and preparing proofs of evidence by the plaintiff would be in the vicinity of 10.7 hours with an addition of an allowance of time spent by a clerk para-legal of 3.8 hours. At the initial taxation I determined that the time taken by the plaintiff's solicitors to proof him was approximately 6.5 hours. It is postulated in the objections that approximately half of that time would have been absorbed subsequent to the cut off date and the allowance that would therefore be approximately $1,895 for that aspect of the task. The total which the defendant contends should properly have been allowed on the taxation is therefore $5,714 obviously a figure considerably adrift from that which was in fact adjudged to be appropriate.
On the information which has been provided to me it appears that the total amount of time which was spent on this file by the plaintiff's solicitors or those within the employ of the plaintiff's solicitors was approximately 110 hours. Of that approximately 60 hours was spent by senior practitioners working on matters relevant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] WADC 231
Decision Date: 19 NOVEMBER 2004

CaseChat Overview and Summary

The parties involved in this case are Guest, the appellant, and Wooller, the respondent. The dispute revolves around the costs of an appeal to the Supreme Court of Western Australia. Specifically, the appellant, Guest, objected to the taxation of costs submitted by Wooller. The matter was heard by the Full Court of the Supreme Court of Western Australia.

The central legal issues the court had to address were whether Guest's objections to the taxation of costs were valid and whether Wooller was entitled to the costs as claimed. The court had to consider the principles of taxation of costs and the circumstances of this particular case to determine the appropriate costs to be awarded.

The court, in its judgment, examined the particulars of the case to determine whether Wooller's costs were reasonably incurred and necessary. The Full Court held that Wooller was entitled to the costs as taxed, finding that the objections raised by Guest were not well-founded. The court held that the case turned on its own facts and that the objections to the taxation did not have merit. Consequently, the Full Court dismissed Guest's appeal and ordered that Wooller recover the taxed costs from Guest.

Orders