Hartwick v Costa
[2012] WADC 94
•22 JUNE 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HARTWICK -v- COSTA [2012] WADC 94
CORAM: DEPUTY REGISTRAR HARMAN
HEARD: 18 APRIL 2012
DELIVERED : 22 JUNE 2012
FILE NO/S: CIV 4036 of 2010
BETWEEN: THOMAS HARTWICK
Plaintiff
AND
PETER RAYMOND COSTA
Defendant
Catchwords:
Practice - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation of costs
Legislation:
Nil
Result:
Review unsuccessful
Representation:
Counsel:
Plaintiff: Mr P Hanich
Defendant: In person
Solicitors:
Plaintiff: Solomon Brothers
Defendant: Not applicable
Case(s) referred to in judgment(s):
Nil
DEPUTY REGISTRAR HARMAN: On 13 January 2012 an order was made in the following terms:
5.The defendant pay the plaintiff's costs of:
5.1the defendant's application for leave to amend from 7 October 2011 onwards; and
5.2the plaintiff's application to strike out the amended defence and counterclaim dated 5 December 2012 [sic],
forthwith.
The plaintiff's bill of costs was taxed and the defendant has filed notice of objection in the following terms:
1.The taxation amount of $3,095.40 shown on schedule A of the plaintiff's bill be reduced to $1,441.
2.The taxation bill be reduced accordingly to the amount of $2,322.50.
An affidavit in the following terms was filed along with the notice:
1....
2.I have experienced bias against me by the taxing master.
3.The taxing master took an overly simplistic view of the plaintiff's bill of costs.
4.The actual time in court as taken from the transcript was 1 hour and twenty minutes, not 1/2 day.
5.The corresponding scale allowing for that time in court for preparation is 2 hours and forty minutes.
6.Based on the plaintiff's ratio of JP to SP and court time and preparation time in the scale fees the correct amount is $1,441 not $3,095.40.
7.I seek the taxation amount be corrected as described in 6 above to correct the bias against me.
At the hearing the defendant was given the opportunity to expand on the reference to bias. I am satisfied that the force of that complaint is no more than what is expressed in par 3 of the affidavit in the context projected by pars 4, 5, 6 and 7.
By the relevant item in the bill the plaintiff had sought to recover under item 10(a) of the Supreme Court Scale of Costs 2010, the costs of two interlocutory applications that were heard together. As the defendant took no issue with the necessity for provision of the relevant services either in whole or in part, the question of allowance did not present itself for determination. The only determination made at the taxation was of the quantum of the fee for the service provided.
There having been no determination made in relation to the item, it is difficult to conceive that O 66 r 53(1) of the Rules of the Supreme Court1971 could provide any scope to object. The terms of the objection do not suggest that the item or any constituent part had been wrongly allowed. It follows that the objection is not within the scope of the rule.
If for the purposes of establishing the scope for review provided by r 53(1), I am wrong to utilise the distinction between items and fees established by O 66 r 42, then in my opinion the objection is beyond the scope of r 53 as it does not specify anything in the determination of quantum that qualifies as an error in principle.
If I am wrong in that assessment, the objection draws on the proposition that recovery under item 10(a) ought only be had under a regime of time costing. Further that the assessment of the length of the hearing was incorrect and that hearing time should limit the extent of recovery for preparation.
The scale is the product of a determination made by the Legal Costs Committee under the Legal Profession Act 2008. From time to time it is required to make a determination for purposes including regulating recovery by parties under orders for costs. According to cl 11(a) of its 2010 determination the Committee determined that the fees recoverable under item 10(a) would not exceed $10,230.00. Item 10(a) refers to data that the Committee utilised for the purpose of setting that maximum. It is patent that the Committee multiplied a daily rate for counsel by three to provide scope to recover at that rate for one for hearing and two days of preparation. It is also obvious that the data founds the defendant's objection.
The simple response to the fundamental point raised by the objection is that recovery under item 10(a) is limited by the terms of cl 11; not by features of the process by which the Committee made its determination as to the maximum.
By way of enlargement on that response I would add that the test of necessity would be applied prior to assessing what is a reasonable fee for the service or parts of a service that has been allowed. All that is required to be done in making a determination as to quantum is to assess what is reasonable for the service found to have been necessarily provided. In this case as there was no contest relating to the service, the assessment of what was reasonable took into account the extent to which it had been provided and a single determination was made. There was no separate assessment of the value of the part of the service relating to the hearing and the part relating to preparation.
To that I would add that despite the evident focus of the Committee in reaching its conclusion, in my opinion in valuing the service described in item 10(a) a taxing officer would be wrong to overlook the fact that preparation would extend beyond what might be characterised as preparation by counsel to include work that in the usual circumstances would be undertaken by a solicitor: taking instructions, engagement in conferral and drafting documents other than submissions.
In my opinion there is no support the proposition that what is reasonable ought to be determined by the manner in which the Costs Committee undertook the task of performing its statutory duty. The defendant is unsuccessful in his objection.
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