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

1. 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.

2. 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).

3. 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. 

4. 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 to "getting up" the case and the balance was performed by para-legals within the employ of the plaintiff firm.  At the taxation I determined that an allowance of approximately 60 per cent of a maximum would be appropriate in the circumstances of this case, notwithstanding the fact that the records maintained by the plaintiff's solicitors indicated considerably more work than that had been performed.  In reaching that determination I had regard to some of the matters which have been repeated in the submissions which have been filed by the defendant. 

5. There were a number of tasks which faced the plaintiff's solicitors which in my view have not been sufficiently recognised in the submissions which are before me.  This action was on foot for something in the vicinity of 3 years and whilst the face to face contact between the plaintiff and his solicitors was not extensive, as is reflected on my determination that his proof took approximately 6.5 hours to prepare, there was none-the-less a very significant and on going level of contact by both telephone and letter which the plaintiff found a more convenient manner of operation in the circumstances. 

6. In the course of the case there were issues concerning the connection between the disabilities complained of by the plaintiff and the injuries he sustained in the accident and in particular there were disputes as to whether or not his shoulder and head injuries were in fact that consequences of the accident or caused by extraneous matters.  The plaintiff's solicitors made an application for and received from the Fremantle Hospital a very extensive set of notes which were approximately 2.5 centimetres thick and perused those documents.  There were a significant number of medical reports and those appear in a book of medical reports which has been tendered to me indicating that there were approximately 94 medical reports in the possession of the plaintiff's solicitor relevant to this action which is a significantly different figure to the figure of 43 medical reports which is referred to in the defendant's submissions.  

7. In addition the documents to which I have referred the plaintiff supplied his solicitors with extensive information concerning his medical treatment and in particular the travel which he undertook to and from the various places of treatment and that information was collated.  It is not possible on the information presented to me to determine whether the collation took place before or after the cut off date but it is clear that the information which was received by the solicitors which was used to generate the final documentation was in their hands well before the relevant date and in my view an allowance for the examination of those documents should be included in the "getting up case" figure.  There were two pre-trial conferences in this matter and to the extent that the plaintiff prepared for those pre-trial conferences that allowance forms part of "getting up case".  Extensive information was obtained by the plaintiff's solicitors from the employer of the plaintiff in order to support the proposition that the effects of the accident had a significant impact on the plaintiff's prospect advancement in his employment and also information concerning sick leave and so forth were obtained.  There were records obtained from the ambulance service which attended the plaintiff which were perused by the plaintiff's solicitors.  There were additionally the ordinary tasks which a plaintiff's solicitors faces, such as preparing schedules of damages, entering the matter for trial and so forth which traditionally form part of the general administration of a case in the course of its passage through the court and which are allowable as "getting up case". 

8. In conclusion therefore I am of the view that although the plaintiff's claim was somewhat higher than it should  have been the reduction which was made at the taxation is a sufficient adjustment to reflect the work which was and reasonably should have been undertaken by the plaintiff's solicitors in the preparation of his case for trial.  Having reached that conclusion I am of the view that the objections which have been brought by the defendant should not succeed and I shall sign my certificate in the amount determined at the taxation subject however to the following allowances.

9. The defendant's objections came before the Court on an earlier occasions when due to the illness of the plaintiff's solicitor it could not proceed.  Costs were reserved on that occasion and they should be the defendants in my view and I allow those costs at $100 and they shall be a deduction from the bill.  As to the plaintiff's costs of the objections those comprise the preparation of summary in opposition to the objections and an attendance before me.  The plaintiff's solicitor claims $750 for that task.  Approximately 30-40 minutes were taken up when the matter came before me for argument and I accept a need to prepare and file a summary of argument to respond to that which was put before me by the defendant.  A sum of $750 has been claimed by the plaintiff's solicitor however I consider that figure to be a little higher than it should have been and I make an allowance of $600 to the plaintiff for dealing with the objection brought by the defendant.  The next net effect of my two rulings is that there will be added to the amount allowed in the bill a further sum of $500 to reflect the net outcome of the orders for and against the taxing party.  The bill will therefore be signed in the sum of $21,613.57 upon the issue of these reasons.  The time for appealing my decision will be extended to 28 days from the date of the delivery of reasons.