Hawkins v Morison

[2010] WADC 141

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   HAWKINS -v- MORISON [2010] WADC 141

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   13 SEPTEMBER 2010

DELIVERED          :   16 SEPTEMBER 2010

FILE NO/S:   CIV 2017 of 2008

BETWEEN:   MITCHELL IAN HAWKINS

Plaintiff

AND

TRACY MORISON
Defendant

Catchwords:

Practice and procedure - Review of taxation of costs - Turns on its own facts

Legislation:

Nil

Result:

Objection disallowed

Representation:

Counsel:

Plaintiff:     Ms J McKenzie

Defendant:     Mr P Sheavyn

Solicitors:

Plaintiff:     McCallum Donovan Sweeney

Defendant:     Talbot Olivier

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

Nil

1. DEPUTY REGISTRAR HEWITT:  In this matter plaintiff's action against the defendant settled very shortly before trial for the sum of $547,000 with costs to be taxed. 

2. Pursuant to that order a bill of costs was brought in or came before me on 9 August 2010.

3. At the conclusion of the taxation the allocator was held open to allow the defendant to bring in objections.  Those objections are now before me and are as follows:

   The defendant objects to the allowance made for item 5 of the plaintiff's bill of costs, taxed by Deputy Registrar Hewitt on 30 August 2010.  The amount claimed by the plaintiff for item 5, which is getting up case for trial, scale item 16, was $39,650.  The whole of this amount was allowed by the taxing officer.  The defendant objects to the allowance and submits that the learned taxing officer made an error in principle in that he allowed the maximum amount allowable, under the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 which refers to work performed on and after 1 July 2008.  Under the schedule to the determination paragraph 3(3) it provides that the determination does not apply to the remuneration of practitioners based on costs incurred before 1 July 2008.

   In this matter the plaintiff filed a schedule of costs in support of item 16, which is getting up case, and it is noted from the schedule that work commenced on the getting up on 20 February 1995.  Although not admitting that not all items listed in the schedule relate to getting up the defendant says that the schedule shows that under the Legal Practitioners (Supreme Court) (Contentious Business) and Determination 1991 the amount of getting up was 3%, under the determination of 1996 4.5%, under the determination of 1999 9.5%, under the determination of 2002 6%, under the determination of 2004 10.5%, under the determination of 2006 8% and under the determination of 2008 8.5%.

   Section 27A of the Motor Vehicle (Third Party Insurance) Act 1943 provides that 'an agreement is not to be made for a legal practitioner to received, for appearing for or acting on behalf of a person in an action to which this section applies, any greater reward that is provided for by an legal cost determination (as defined in the Legal Practice Act 2003) that is in force.'  In view of the fact that the plaintiff, prior to instructing her present solicitors, had instructed 2 other firms of solicitors which had provided accounts for payment which included getting up those accounts related to work performed prior to 30 June 2008 would result in the plaintiff receiving a sum greater than is provided for by the legal cost determination.

   The defendant submits that if the maximum amount is to be allowed in this matter then it should be allowed on the basis of the percentages detailed above for work performed under the various determinations for 1991 to 2008.

4. Filed with the bill was a schedule indicating a total sum of $74,449.79 was attributed by the plaintiff's solicitor to the task of getting up case.  The maximum allowable under the scale at the date of taxation in the absence of a special order raising the limits was $39,650 and that is the figure at which I allowed getting up case for trial.  It is correct to say that there is some $35,000 of other tasks which are described in the schedule which took place prior to the present scale coming into operation. 

5. The defendant in its objections suggests that I should reduce the amount allowed to reflect the fact that at earlier stages when certain of the work in the schedule was undertaken a lower maximum prevailed. 

6. I do not agree.  In my view all that is necessary to justify the maximum allowance provided by the current scale is to identify sufficient work which has been done since the 1 July 2008, when the current scale came into effect, to justify a maximum allowance.  The fact that work was done at an earlier stage at which time a lower maximum prevailed is not to my view to the point.  In the present circumstances the schedule filed by the plaintiff discloses a shortfall of something in the order of $30,000 between the maximum which I allowed and the plaintiff's calculation of the value of the work undertaken.  If sufficient work was undertaken after the present scale came into operation to justify a maximum allowance under that scale I consider that I need look no further.  On my assessment of the matter which were put before me that is the conclusion I reached.  Namely, that since the 1 July 2008 the plaintiff's solicitors in this case did sufficient work to justify a maximum allowance under the scale which was introduced on that date.  

7. I am unable to understand how it can be said that the plaintiff by my ruling has received a greater amount that is provided by the legal costs determination and I am not inclined to reduce the amount allowed.