| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HAYMAN -v- KKUT PTY LTD & ANOR [2003] WADC 65 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 20 FEBRUARY 2003 DELIVERED : 14 MARCH 2003 FILE NO/S : CIV 961 of 2001 BETWEEN : MARK NORMAN HAYMAN Plaintiff
AND
KKUT PTY LTD (ACN 076 288 518)
First Defendant
RESOLUTE LIMITED (ACN 009 069 014)
Second Defendant
Catchwords: Practice and procedure - Western Australia - Taxation of costs - Calderbank offer
Legislation: Nil
(Page 2)
Result:
Objections substantially disallowed save for $100 filing fee
Plaintiff ordered to pay the costs of the objections Representation:
Counsel:
Plaintiff : Mr S V Forbes
First Defendant : No Appearance
Second Defendant : Mr R C Carey
Solicitors:
Plaintiff : Bradford & Co
First Defendant : Jackson McDonald
Second Defendant : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Chrulew v Borm-Reid Co [1992] 1 All ER 953
Case(s) also cited:
Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673
Commonwealth of Australia v Magriplis (1962) 3 FLR 47
(Page 3)
1 DEPUTY REGISTRAR HEWITT: On 5 December 2002 the plaintiff's party/party bill of costs for taxation came before me for taxation and subsequent to the taxation an objection to a number of items has been filed.
2 The first objection is as follows: "Objections A. 1. Items objected: Items 2 and 3 – Counsel fee on brief and Counsel fee on second day trial 2. Amounts claimed: $4,600.00 and $2,300.00 3. Amounts allowed: $3,500.00 for both items combined. 4. Grounds of objection: (a) The Taxing Officer erred in principle in failing to have any, alternatively, sufficient regard to the amounts allowable under items 14(a) and 14(c). Even though the items were taxed together under item 19, the amounts allowable under items 14(a) and 14(c) should have been taken into account by the Taxing Officer in order to determine a reasonable amount in the circumstances (b) The Taxing Officer erred in principle by making at most a nominal allowance for counsel's preparation on the basis that counsel was also the plaintiff's solicitor. In doing so the Taxing Officer failed to apply the principles in Commonwealth v Magriplis (1962) 3 FLR 47 and Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA673. (c) The items should have been assessed by: (i) taking into account that the plaintiff's counsel spend three days preparing for the hearing;
(Page 4)
3 This was a case in which a preliminary issue was referred to the Judge for determination. The issue was never properly formulated but I adopt for the purposes of this taxation the words of his Honour Judge Wisbey who described the issue in the following terms: "… the issue before me simply put, is, does the document described as deed of indemnity executed by the plaintiff on 5 June 1998, by its terms preclude the plaintiff from obtaining a judgment against the second defendant?" 4 The deed purported to grant an indemnity to the second defendant and was relied upon by that defendant in its defence to the action. 5 The issues were, whether the deed was a properly executed deed, there being some irregularities concerning witnessing the document and secondly whether the deed was obtained in circumstances which invalidated its effect and operation. 6 Although claimed as separate items for counsel fee for a first day of trial and second day of trial under items 14(a) and 14(c) of the scale respectively the applicable item is item 19 of the scale which deals with the trial of an issue. 7 In my view it is not of consequence whether the claim was made under item 14 or item 19 since the assessment of either in my view will come back to the same general principles. 8 The trial itself occupied some 4½ hours and from a total claim of $6,900 I deducted $3,400 leaving a balance of $3,500 which I considered to be an adequate allowance for the work involved.
9 Submissions were made to me in the course of the hearing that counsel preparing the matter spent three days preparing it in addition to the time which was taken in the trial.
(Page 5)
10 In my view the issues involved in this preliminary matter were very limited and in my view three days of preparation was not and could not possibly be justified. I accept that there were some legal issues involved in the matter but I do not accept that they were particularly complex or difficult or that the time to research and prepare those issues would be especially time consuming.
11 My allowance of $3,500 amounts to approximately 16.6 hours at the maximum rate for a junior counsel at the relevant time. If one deducts from that the time taken in the trial I have made an allowance of 12 hours for the necessary preparation of the trial. Twelve hours of preparation amounts to somewhere between one and two days (depending upon how many hours one considers as normally occupied in a working day) and I think that is an ample allowance to make for what appears to me to be an issue with some legal complexities but of a narrow compass. Therefore insofar as the objection relies on the time which counsel allegedly spent preparing for the hearing and so forth I do not consider it to be well made. 12 As to the other grounds of objection I take the view that there is no difference in principle from an assessment under 14(a) and 14(c) of the scale and item 19 of the scale, save that in the first two items there is an upper maximum for the amount which may be allowed whereas there is not as far as item 19 is concerned. I think the appropriate approach no matter what item is concerned is to assess the work which was reasonably required to be undertaken to perform the job required. On that score I find that the amount claimed by the plaintiff is excessive. Assuming that the bill was drawn on the basis that the maximum allowable amount for a junior practitioner should apply to this issue the plaintiff is claiming that something in the vicinity of 32 hours was spent in regard to this preliminary issue of which about 28 hours would be preparation and the remainder the appearance in court. I do not accept that level of preparation to be reasonable given the narrow point which was raised by the preliminary issue. The remaining ground of objection is that I failed to make more than a nominal allowance for counsel's preparation on the basis that counsel was also the plaintiff's solicitor. Cases are quoted in support of that authority. 13 On that score I do not accept that I failed to make anything other than an nominal allowance for counsel's preparation. I do not accept that for a hearing, which lasted some 4½ hours in total, counsel should be entitled to $6,900. I do not accept that the amount $3,500 contains at most a nominal allowance for counsel's preparation. In my view there is a significant allowance for preparation but there is also factored into that allowance a
(Page 6)
recognition of the fact that the solicitor concerned prepared the brief, which he as counsel was required to master, and must be taken to approach the task of mastery of the brief with a considerable advantage which should have been reflected in a saving of time and effort. In the present circumstances I have the situation where the solicitor prepared himself a brief for his appearance at the trial of this matter and I am told it took him a further three days to master the contents of the brief. In my view that is not a sound proposition. I am also of the view that the cases upon which the plaintiff relied are no more than examples of the manner of which courts have dealt with individual cases before them. They do not contain any general propositions save that it must be recognised that a solicitor who prepares his own brief brings to the mastery of that brief a certain understanding which must be reflected in an economy. 14 For these reasons I am of the view that the objections to items 2 and 3 of the bill should not succeed. 15 The next objection is as follows: 16 The items in question are the preparation for an attendance of taxation, the fee filed on filing the bill and a taxation fee itself. 17 My reason for disallowance of those matters is due to the fact that the second defendant made an offer to settle the plaintiff's bill by letter dated 28 October 2002 in the sum of $5,000 plus disbursements. At that
(Page 7)
stage the second defendant had in its hands a copy of the draft bill. Since the taxation was allowed at significantly less than the amount of the second defendant's offer I took the view that there should not be an allowance for the process of filing and taxing the bill but there should be an allowance for the process of drawing the bill since it was the presentation of a draft which prompted the defendant's letter.
18 In support of its proposition the plaintiff has referred me to the case of Chrulew v Borm-Reid Co [1992] 1 All ER 953. The relevant passage as far as I am concerned appears on p 961 at g which Waller J firstly approves of the principle of the relevance of a Calderbank offer and it goes to say: "It would thus seem to me that if the Calderbank offer is not to be taken into account there must be some circumstances relating to that offer or the taxation which will make it one which should be ignored. It may for example have been made too late. Alternatively, they may have been a failure by the paying party to give some notice of some special objection with which would enable the receiving party to be aware of a reason which he would not otherwise appreciate why his bill might be taxed down."
19 In this case there was no special objection which led to the bill being taxed down. The bill was taxed down because in my view it was excessive, precisely the situation in which a paying party can protect itself by a Calderbank offer. Nothing was put before me at taxation or raised in the hearing or the objection which I consider would justify a reasonable plaintiff refusing the second defendant's offer. The bill of costs was forwarded to this Court on 17 October 2002 together with a cheque in payment of the filing fee. The bill of costs was assigned a date for taxation and noted as filed on 30 October 2002. The letter containing the Calderbank offer was dated 28 October 2002 and I am told, and the Court record supports the proposition, that it was not considered by the solicitor's for the plaintiff until after the bill had been filed and their remittance to this Court accepted.
20 In my opinion had the plaintiff then written to the Court explaining the position and the fact that the offer in settlement of the costs have crossed with its letter to the Court, the taxing fee would have been remitted but the filing fee would have been in probability forfeit.
(Page 8)
21 In my view a plaintiff acting reasonably in this case would have accepted the second defendant's offer after receiving it, would have sought a refund of the Court fees and would have received a refund less the amount of $100 filing fee. In that factual situation I do not think that I should have disallowed the whole of the fees paid and I should have allowed the $100 filing fee together with a taxing fee on that amount at the rate of 2.5 per cent per annum, a total of $102.50. Therefore I shall add to the amount allowed on the taxation an amount of $102.50 to reflect this conclusion.
22 I next consider the question of the costs of the reviews. 23 In my opinion those costs should be the second defendant's since on almost every point the second defendant has succeeded and the successes of the plaintiff were minimal. I therefore award the second defendant the costs of the review and fix the same at $250, which shall be deducted from the amount allowed on the taxation. The amount for which I shall certify is $4,503.76 and I shall sign my certificate in that amount on the date of issue of these reasons and shall allow a further 28 days within which the plaintiff may appeal this decision.
|