| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HAYMAN -v- FAIRBAIRN [2003] WADC 187 CORAM : DEPUTY REGISTRAR HARMAN DELIVERED : 28 AUGUST 2003 FILE NO/S : CIV 9 of 2002 BETWEEN : NOLA CHRISTINE HAYMAN Plaintiff
AND
GEOFFREY FAIRBAIRN
Defendant
Catchwords: Practice - Practice under the Rules of the Supreme Court - Review of taxation - Impact of submission by adverse party as to quantum
Legislation: Nil
Result: Review unsuccessful
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Representation:
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : Dwyer Durack
Defendant : K N Allan
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 DEPUTY REGISTRAR HARMAN: The defendant has filed an objection to determinations made in relation to the quantum of the fee recoverable for some items in the plaintiff's bill of costs.
2 It is my recollection that from time to time during the course of the taxation the defendant volunteered what I understood to be his view of what would be an appropriate determination in relation to quantum. Adverse parties offering such a view run the risk that they will be taken to have thereby made a submission as to quantum which may influence the taxing officer to reflect upon whether a lower figure would fail to take into proper account to that point had been elusive. 3 I recognise that it is conceivable that in allowing oneself to be so influenced would demonstrate that any subsequent determination may not have been justified on the taxing officer's assessment absent the presentation of that view. Nonetheless it is a proposition with which I am not uncomfortable. I accept that others may see that prospect as demonstrating an abdication of responsibility such as to constitute an error in principle. In response I would simply state that the process of taxation is one of those rare instances that the Court may properly take it that acceptable practice has been determined by efficiency and in that context what may be construed as an offer made by an adverse party may be accepted by the taxing officer as much as by a beneficial party. 4 The first determination the subject of the defendant's objection is that for the fee claimed for the item statement of claim. There was no issue taken by the defendant with the allowance of the item or its parts and no issue is raised by the objection as to that allowance. 5 In my opinion there is no jurisdiction to review quantum determinations. The jurisdiction provided by r 53 is in respect of errors in the allowance or disallowance of items or their parts. The reference to the term "item" is a reference to the service constituted by the item in the scale or in the bill and the term "part item" has the same meaning. By way of illustration, a part item in the context of the provision of the service "statement of claim" in any particular case may be for the generation of a draft in circumstances where the pleading was never filed. Alternatively it may relate to an engrossed pleading or one which was filed but not served. The only issue raised by the objection goes to the quantum of the fee. In my opinion there is no jurisdiction under r 53 which provides for review of such a determination.
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6 I am familiar with recent determinations made in the Supreme Court whereby jurisdiction has been found to allow for review of quantum determinations by a judge under r 55 in circumstances where the objecting party maintains that no taxing officer acting reasonably could have come to a particular conclusion. It does not appear to me that any feature of the relevant objection raises that prospect.
7 Be that as it may it is my recollection that the determination made in relation to the fee was one which I came to after having been influenced by the defendant's submission as to quantum. It did strike me that the defendant's assessment was in excess of the value of the pleading. I would stand corrected but it is my recollection that the defendant proposed $1800. As to the particular determination I recall that despite what I have already recorded I still could not bring myself to the defendant's view. Absent the defendant's view in all probability the determination would have been for a significantly lesser sum. 8 The next item the subject of objection is that for inspection and giving inspection. The more fundamental difficulty that I have with that objection is that I have recorded that it was agreed between the parties that the quantum of recovery under the plaintiff's claim would be reduced by $75. As taxing officer I had no hand in the determination of the fee under that item. 9 The next item the subject of objection is that under which the plaintiff claimed for giving further and better particulars of the statement of claim. Again it appears to me to be a complaint as to quantum and not as to the allowance of the item. 10 The only ground of objection that calls for any comment is that by which the defendant contends that there was some overlap between the relevant services rendered by the plaintiff's solicitor in responding to the request and the services "…necessary to prepare the matter for pre-trial conference and allowed for in Item 13…" 11 Perhaps I should start by stating that so far as I am concerned preparation for pre-trial conference is not part of getting up case for trial. I certainly did not consider it as such. 12 Although the objection is not expressed as such, for the purpose of completeness I will deal with the prospect that there was scope for overlap with either the claim for the conference or for getting up case.
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13 As to the first prospect the two pre-trial conferences occurred after October 2002 and accordingly under the scale which then applied, there was no scope party and party for recovery associated with the exercise of preparing for the pre-trial conference.
14 There is scope for the perception that there is an overlap between providing answers to a request for particulars and getting up the case for trial. Apart from stating that such a prospect arises in every case in which there is a claim for each service and therefore I am appropriately considered to be alive to it, there is an obvious difference between the services the subject of an answer to a request and the process of getting up the case for trial. 15 In my opinion it was appropriate to allow for the cost objectively warranted by the content of the answer to the request. 16 The next determination the subject of objection is in relation to the quantum determination for the O 24A offer. As was the case with the claim for inspection, the parties agreed the fee. There was nothing for me to determine. 17 The next item the subject of objection is the claim for getting up the case for trial. 18 There are a number of points in the grounds of objection that really only go to the issue of quantum. There having been no dispute as to the recovery for any of the services provided and there being no jurisdictional issue raised by the objection there is no reason to deal with them. 19 As to the balance of the grounds, the first is that the accident having occurred on 20 November 1996 the allowance made should have reflected the scale applicable at the time that the work was done. For what it is worth, I have not recorded the date upon which the plaintiff's solicitors took instructions or the dates upon which any relevant services were provided. The writ was filed on 3 January 2002. 20 In the period prior to the issue of the writ it is conceivable that services were provided by the plaintiff's solicitors to the plaintiff. According to the documents attached to the bill it would appear that the plaintiff was represented at least in the period leading up to July 2001 as that is the date when Mr Harper forwarded an account to the plaintiff's solicitors for services presumably rendered to them at their request.
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21 Even if it was the case that the engagement was prior to the 20 December 1996, the date of the change of the scale, I am satisfied such a small proportion of the services rendered would be likely to fall within that scope that the prospect is unlikely to have had any significant impact on the proper determination of the plaintiff's entitlement. I have gone to some trouble to make that analysis because although I confess that it may be the case that I erred, I doubt whether the error would assume any real significance in the result.
22 The next goes to the prospect of an overlap in relation to the services rendered for the purposes of the pre-trial conference. As the context in which that prospect is raised relates to mathematical calculation of the plaintiff's economic loss and future needs I suspect that the reference to the pre-trial conference is rather for the preparation for the conference. I am fortified in that suspicion by the fact that recovery for the conference is time rated and there would be recovery for the conference time regardless of the prospect of overlap. I have already indicated, under the scale as it stood at the time of the conferences there was no scope for recovery for preparation. 23 The same submission that was made in relation to the determination of the claim for the fee under the provision of particulars of claim is made at this point. The only useful comment is that possibly little in the way of further calculations was necessary. The calculations made for the purpose of answering the requests would have had to be supported by some case whether by evidence of inference. It was appropriate for me to recognise that fact. That ground of objection does not assist me in identifying the error contended for. 24 If broadly speaking it was considered that the defendant had put a case such that the determination made in relation to quantum was so high that no taxing officer acting reasonably could conceivably have arrived at the same result, I have to leave that prospect for someone else to determine. However in my opinion an award of something in the order of $8,000 for a matter which goes to a pre-trial conference would not demonstrate such an error. 25 The next item the subject of objection relates to a disbursement in the form of a payment to Dr Ecker for $748. 26 The ground of the objection is that the taxing officer allowed Dr Ecker's account in full when the amount is excessive given the nature and complexity of the plaintiff's condition.
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27 As I understand the objection it appears to be more as to the necessity for a report given the defendants view of the plaintiff's condition. In determining the claim at the taxation no doubt the same submission was made. Nonetheless I was satisfied that the plaintiff was entitled to recover the cost of expert opinion. There was no proper basis for a determination to limit recovery to part only of the cost of the exercise.
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