Gwilliam v Fedec
[2019] WADC 62
•29 APRIL 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: GWILLIAM -v- FEDEC [2019] WADC 62
CORAM: DEPUTY REGISTRAR HEWITT
HEARD: 9 APRIL 2019
DELIVERED : 29 APRIL 2019
FILE NO/S: CIV ALB 6 of 2018
BETWEEN: DAVID EDWARD GWILLIAM
Plaintiff
AND
LOXLEY KERRI FEDEC
First Defendant
NEW IMAGE ENTERPRISES PTY LTD as Trustee for THE R & L FEDEC FAMILY TRUST
Second Defendant
Catchwords:
Taxation of costs - Consideration of objections - Turns on its own facts
Legislation:
Rules of the Supreme Court 1971, O 66 r 53(1)
Result:
Objection allowed to the extent that $222.40 be taxed off
Representation:
Counsel:
| Plaintiff | : | In person |
| First Defendant | : | Mr D Beere |
| Second Defendant | : | Mr D Beere |
Solicitors:
| Plaintiff | : | Not applicable |
| First Defendant | : | Latro Lawyers |
| Second Defendant | : | Latro Lawyers |
Case(s) referred to in decision(s):
Nil
DEPUTY REGISTRAR HEWITT:
This matter was commenced by writ filed 17 May 2018. A conditional appearance was filed to that writ and that appearance raised an issue as to whether a company by the name of New Image Enterprises Pty Ltd as a Trustee for the R & L Fedec Family Trust should properly be a defendant. The plaintiff responded by bringing an application to add that company supported by an affidavit and the plaintiff filed an amended chamber summons which in effect duplicated the orders sought in the original chamber summons. That amended chamber summons was supported by a further affidavit. Thereafter the plaintiff filed a minute of proposed statement of claim some 31 pages long. That prompted an affidavit in opposition which prompted the plaintiff to file a further affidavit comprising some 36 pages including annexures. The matter came before Deputy Registrar Harman on 1 August 2018 and was then adjourned to a special appointment on 3 October 2018.
An outline of submissions was filed by the defendants on 17 September 2018 and the plaintiff responded with his own set of submissions likewise filed on 12 September 2018. On 1 October 2018 the plaintiff filed further submissions comprising some 47 pages including annexures. The matter came before me on 3 October 2018 and I made the following orders:
1.The plaintiff have leave to amend the writ of summons to add New Image Enterprises Pty Ltd as a second defendant and to substitute an indorsement of claim setting out in summary the facts upon which the plaintiff relies and the relief he seeks.
2.Insofar as the plaintiff has purported to file a statement of claim that statement of claim be struck out.
3.The time for compliance with order 1 be 21 days.
4.The plaintiff do pay the defendant the cost of the application to be taxed.
On 12 March 2019 the first defendant filed a bill of costs which embraced a claim for the orders which were made on 3 October 2018 and further costs concerning an appearance on 14 February 2019. Of the relevant cost orders, the first was ordered to be taxed and paid and the other costs were in any event. As a consequence I declined to deal with that part of the bill which was relevant to the matters which were determined on 14 February 2019. I taxed the bill on 23 April 2019 and proposed an allowance of $4,840.40 in lieu of the amount of $15,000 which had been claimed by the defendant.
The plaintiff has now brought in the objections to that allowance which are as follows:
The Plaintiff objects to the orders made on 9th April 2019 on the grounds that the Defendant(s) have misrepresented the facts and as a result, the Registrar has misapprehended them. This is described as follows:
1.Ms Cronin had sought orders within her Submissions filed with the Court 12th September 2018. Sought order 5.3 within those Submissions seeks 'That the Plaintiff pay the Defendants cost of the application to amend fixed at $3,000 …'
a)It is an evidentiary fact that the Defendant(s) have determined that $3,000.00 is sufficient to cover all the Defendant(s) costs pursuant to the application to Amend a Writ filed 3rd July 2018.
b)The word 'fixed' is defined as 'permanent' or 'unchanging'.
c)By the Defendant(s) own definition, the Plaintiff does not expect to pay more than a total of $3,000.00 as 'fixed' by the Defendant(s) for all costs (Schedule 1 and an associated part of Schedule 3) awarded to the Defendant(s) pursuant to the application to amend the Writ.
2.The Registrar stated in Chambers on 9th April 2019 that consideration must be given for work done by the Defendant(s) between the Submissions date of 12th September 2018 and the hearing date of 3rd October 2018 in which costs were awarded (21 days).
a)Ms Cronin's Submissions filed 12th September 2018 sough costs 'fixed at $3,000.00' to be awarded three weeks later, in Chambers on 3rd October 2018.
b)Therefore, consideration must have already been factored in by the Defendant(s) by seeking orders for costs at that value to be made on 3rd October 2018.
3.The Defendant(s) had sought ASIC and Landgate documentation (from 8th June through to 14th June 2018) referred to in the Bills of Costs as Third Party Disbursements (TOD), well prior to the application date to amend the Writ on 3rd July 2018.
a)As these cost were incurred weeks before the application to amend the Writ was even lodged, it is not reasonable to assume that those costs were specifically pursuant to that application and so cannot be claimed by the Defendant(s) under that pretext.
b)Furthermore, being already aware of these costs more than 12 weeks prior to the Defendant(s) filing their Submissions on 12th September 2018 in which Ms Cronin states the 'fixed at $3,000.00' figure, it is reasonable to expect that she must have already included these TPD costs in that figure.
c)If in fact it was the intention of the Defendant(s) to tack these costs onto that $3,000.00 figure, Ms Cronin would surely have stated so in her Submissions dated 12th September 2018 (which she did not). Otherwise, why would she have 'fixed' the price?
4.Mr Beere had a copy of the Transcripts from both Chamber Summons' on 3rd October 2018 and 14th February 2019.
a)Those transcripts, extracted or otherwise, clearly state what orders were made, what they were pursuant to and what the exact parameters were for the Defendant(s) to claim costs in their Bill of Costs.
b)With Transcript in hand and the above knowledge in mind, Mr Beere has deliberately and dishonestly sought costs from the Plaintiff he knew full well he was not entitled to.
5.In chambers on 9th April 2019, as noted on page 23 of the Transcript of that summons, Mr Beere agreed in response to the Registrar's comment to the Defendant(s): '… I think a heck of a lot of what you put into the schedule is not to do with the application …'
a)By agreeing with the Registrar, Mr Beere admits that he has sought costs to which the Defendant(s) are not entitled, and;
b)By extension, Mr Beere admits to acting dishonestly.
6.Was this a deliberate act? Within Mr Beere's same comment above, he adds 'My procedure with these things is to print in the schedule the work in progress sheet simply to give the court an idea of what's been done.'
a)By listing every last Unit and attaching it to his Bills of Costs, Mr Beere either;
i.Intended to frivolously make his efforts look far bigger than they actually were, knowing he cannot claim them all under the parameters of the orders given, or;
ii.He deliberately intended to claim costs to which he was not entitled.
b)In either case, Mr Beere's intention was deliberate and dishonest.
7.In chambers on 9th April and recorded on page 27 of the Transcript of that event, Mr Beere refers to the matters as 'like dealing with an amoeba or an octopus …' attempting to mislead the court that this matter is constantly changing or elusive. Mr Beere attempts to use this misleading analogy to justify the expenditure of his and Ms Cronin's time.
a)The Plaintiff's claims, while not expressed concisely at first due to his lack of legal representation, have however been consistent and well justified all along. They are certainly not constantly changing or elusive.
b)Furthermore, the Defendant(s) relentless frivolous objections without justification or explanation throughout this matter have, and continue to significantly cost all parties in both time and money.
c)The Plaintiff argues that cost blowouts in this matter are far more due to the Defendant(s) actions rather than the Plaintiff's.
8.By having costs awarded against him, the Plaintiff has been held accountable by the court for perceived deficiencies in the Plaintiff's ability to effectively represent himself. The Plaintiff accepts this accountability, however;
a)It is reasonable to expect that the Defendant(s), as Industry Professionals, be held to a much higher standard than the Plaintiff.
b)As mentioned above, Mr Beere has acted dishonestly both prior to and within Chambers on 9th April 2019 to secure additional costs over and above what was entitled by the Registrars orders, and;
c)The Registrar agreed with the Plaintiff that vast claims to costs made by the Defendant(s) in their Bills of Costs were ineligible and/or frivolous, and;
d)Mr Beere's claim additionally exceeds what is allowable by the Court under Item 10 'Proceedings in Chambers' as quoted to Mr Beere by the Registrar in Chambers on 9th April 2019, and;
e)In Chambers on 9th April 2019, the Plaintiff declared without opposition by the Defendant(s), that the Defendant(s) had conducted themselves dishonestly.
Summary
Besides the misapprehension of the facts by the Registrar (outlined in Paragraphs 1, 2 and 13 herein), the Plaintiff does not believe that the dishonest conduct by the Defendant(s) (outlined in Paragraphs 4, 5, 6, 7 and 8 herein), and the accountability that this manner of conduct should invite, especially for industry professionals, was considered by the Registrar when making his orders in Chambers on 9th April 2019.
While the Plaintiff accepts that the Registrar in Chambers on 9th April 2019 did not consider overturning orders to costs already made was a suitable consequences of the Defendants dishonesty;
a)The Plaintiff believes that, as the Registrar's decision to award far more ($4,840.40) than the $3,000 declared by Ms Cronin as acceptable, no accountability for the Defendant(s) dishonest conduct has been applied by the Registrar when making his orders on 9th April 2019.
The Plaintiff seeks Orders to the effect:
1.Total awarded costs pursuant to the application to amend the Writ (Including Schedule 1 and the associated portion of Schedule 3), be fixed at $3,000.00 as quoted by Ms Cronin in the Defendant(s) Submissions on 12th September 2018.
2.By way of compensation to the Plaintiff for the dishonest conduct of the Defendant(s) as described above and in the Plaintiffs Submission filed 2nd April 2019, the awarded costs of $3,000.00 in Order 1 herein, be instead reduced to and fixed at $2,000.00.
3.Costs awarded are to be taxed at the Courts Discretion.
4.Due to the Plaintiff's means to pay these costs being withheld by the Defendant(s) this Order to Costs is to be paid upon settlement of this matter.
Throughout this proceeding the plaintiff has been handicapped by the fact that he represents himself in person and has very little understanding of what is required to run a case in the District Court and in particular the manner in which a cause of action should be articulated.
The basis upon which an objection to a taxation may be pursued is set out in O 66 r 53(1) of the Rules of the Supreme Court 1971. The relevant provision is as follows:
53Party dissatisfied with taxation may object and apply for review
(1)A party who contends that the taxing officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, or at such earlier time as may, in any case, be fixed by the taxing officer –
…
In essence the plaintiff contends that by nominating an amount of $3,000 to be paid forthwith. I, as the relevant taxing officer, should have awarded no more than $3,000 in regard to the plaintiff's claim the subject of orders made on 3 October 2018. Such an argument ignores the fact that in order to tax a bill of costs it is necessary to pay fees and prepare a bill of costs and the like. Additionally taxing the bill of costs I had the benefit of a detailed schedule and a thorough understanding of the issues involved in the hearing before me and I reached the view that an allowance of $4,500, including the costs of the appearance before me was an appropriate allowance. Given the advantages which I have brought to the taxation in understanding the work which was required and was undertaken I consider that the estimate of $3,000 prepared in the submissions did not properly make allowance for the work which was required both before and after the submissions had been filed and including the three appearances before the court in regard to the matter.
In par 3 of his submissions the plaintiff objected to the allowance of various search fees claimed by the first defendant on the ground they were incurred prior to the application to which the costs order related. On that score I agree. If the first defendant ultimately succeeds on the action those costs can be claimed but they do not form part of the costs to which the order of 3 October related and shall be deducted from the amount to be allowed.
As to the balance of the objections the objector has not identified any further error of principle which he claims was made. The arguments which are presented in the objections are the same as those which I heard when I did the taxation. Sadly the plaintiff has accused the first defendant of dishonesty and seeks that I punish that dishonesty by way of reduction of the amount awarded from that which I calculated was appropriate to $2,000. Such allegations are in my opinion uncalled for. To the extent the submission has merit it simply relates to costs awarded to the defendant but mistakenly claimed prematurely.
In conclusion save for the issue of disbursement I consider that the objector has done no more than re‑agitate issues which were raised at the taxation and considered by me and rejected. I am unable to perceive any error in principle which arises from that process and as a consequence I shall sign my certificate in the sum of $4,618 upon the issue of these reasons for decision.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer30 APRIL 2019
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