Heinz v Nelson - [2010] WADC 112

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: HEINZ -v- NELSON [2010] WADC 112

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 5 JULY 2010

DELIVERED : 30 JULY 2010

FILE NO/S: CIV 508 of 2009

BETWEEN: BENJAMIN WILLIAM HEINZ
Plaintiff
AND
CARIS MAREE NELSON
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia 1971 - Review of taxation of costs - Order 66 r 53 - Objection relates to quantum

Legislation:

Nil

Result:

No jurisdiction to review

Representation:

Counsel:

Plaintiff: Mr P Kakulas
Defendant: Mr K Allan

Solicitors:

Plaintiff: Kakulas Legal
Defendant: K N Allan

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

Joyce v Hutchinson (2000) 23 SR (WA) 248
Landtec Projects Corporation Pty Ltd v Spiers Earthworks Pty Ltd [2008] WADC 102
Roblett v Pieroni [2005] WADC 215

DEPUTY REGISTRAR HARMAN: The defendant is obliged to pay the plaintiff's costs of the action. Thereby the plaintiff is entitled to recover the reasonable cost of services necessarily provided to him for the purposes of the action. His bill was taxed and the defendant has now objected to two determinations made in the course of the taxation. The allegations of error go to the quantum of the fee for the plaintiff's answers to interrogatories and for getting up a case for trial.
Order 66 provides scope for review of determinations made at taxation. According to r 53 that scope is limited to the necessity for the provision of a service or its parts. In Landtec Projects Corporation Pty LtdvSpiers Earthworks Pty Ltd [2008] WADC 102 I revisited the question whether taxing officers have jurisdiction to review quantum determinations. I had previously considered that matter in my reasons for decision in Roblett v Pieroni [2005] WADC 215. In the reasons provided in Landtec Projects Corporation Pty LtdvSpiers Earthworks Pty Ltd I highlighted the fact that in Roblett v Pieroni (supra) I had canvassed the reasons of Judge Groves in Joyce v Hutchinson (2000) 23 SR (WA) 248. I see no reason why the result in this case should be any different to that reached in both Roblett v Pieroni and Landtec v Spiers (supra): r 53 does not provide jurisdiction for a taxing officer to review quantum determinations.
I appreciate that a judge considering an exercise of jurisdiction as to quantum would not be so constrained. As the defendant may seek to take the matter further I will respond to the terms of the objections. Before I do I will record that I recognise that it is inevitable that my responses will be in general terms.
The objection to the determination made in relation to the answers to interrogatories is as follows:
"The defendant objects to the allowance for this item on the ground that the taxing officer has failed to adequately exercise his discretion in determining the amount to be allowed for this item in that the amount allowed is excessive:
(a)as the answers to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Heinz v Nelson

Details

AGLC: Heinz v Nelson [2010] WADC 112
Case: [2010] WADC 112
Decision Date: 30 JULY 2010

CaseChat Overview and Summary

Heinz v Nelson is a case that arose in the Supreme Court of Western Australia, dealing with a review of the taxation of costs under the Rules of the Supreme Court of Western Australia 1971. Specifically, the case involved an objection by the defendant, Nelson, regarding the quantum of costs allowed for the preparation of answers to interrogatories. The plaintiff, Heinz, had sought costs for the time spent by junior and senior solicitors in preparing the answers, and Nelson objected to the amount allowed, arguing it was excessive.

The central legal issue before the court was whether the taxing officer had the jurisdiction to review the quantum of costs, particularly in relation to the preparation of answers to interrogatories. This issue had been previously addressed by the court in cases such as Roblett v Pieroni and Landtec Projects Corporation Pty Ltd v Spiers Earthworks Pty Ltd, where it was concluded that Rule 53 of Order 66 does not provide jurisdiction for a taxing officer to review quantum determinations. The court was required to determine whether this precedent applied in the present case and whether the taxing officer's decision should be upheld or if the objection raised valid grounds for review.

The court, in its reasoning, reaffirmed the principles established in previous cases. It noted that while a judge might have broader jurisdiction to review quantum, the taxing officer's discretion under Rule 53 is limited to the necessity for the provision of a service or its parts. The court recognised the defendant's objection but found that the taxing officer's determination should stand. The court held that the objections raised by Nelson did not provide sufficient grounds for the taxing officer to review the quantum of costs allowed. Consequently, the court dismissed the objection and upheld the taxing officer's determination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Order 66 provides scope for review of determinations made at taxation. According to r 53 that scope is limited to the necessity for the provision of a service or its parts. In Landtec Projects Corporation Pty LtdvSpiers Earthworks Pty Ltd [2008] WADC 102 I revisited the question whether taxing officers have jurisdiction to review quantum determinations. I had previously considered that matter in my reasons for decision in Roblett v Pieroni [2005] WADC 215. In the reasons provided in Landtec Projects Corporation Pty LtdvSpiers Earthworks Pty Ltd I highlighted the fact that in Roblett v Pieroni (supra) I had canvassed the reasons of Judge Groves in Joyce v Hutchinson (2000) 23 SR (WA) 248. I see no reason why the result in this case should be any different to that reached in both Roblett v Pieroni and Landtec v Spiers (supra): r 53 does not provide jurisdiction for a taxing officer to review quantum determinations. I appreciate that a judge considering an exercise of jurisdiction as to quantum would not be so constrained. As the defendant may seek to take the matter further I will respond to the terms of the objections. Before I do I will record that I recognise that it is inevitable that my responses will be in general terms. The objection to the determination made in relation to the answers to interrogatories is as follows:"The defendant objects to the allowance for this item on the ground that the taxing officer has failed to adequately exercise his discretion in determining the amount to be allowed for this item in that the amount allowed is excessive:(a)as the answers to interrogatories were simple; and(i)related only to the plaintiff's work history; (ii)in the main could be prepared from information obtained in the course of getting up case or that was within the plaintiff's knowledge. Several answers were provided on the basis that the plaintiff did not remember or by reference to material that the plaintiff's material were obtaining.(b)The time that the plaintiff's solicitors claim was spent on the preparation of the answers to interrogatories (9.13 hours by a junior solicitor and 0.25 hours by a senior solicitor) when considered in conjunction with the time provided for in 9(b) suggest that the answers were not prepared efficiently. (c)The answers to interrogatories were prepared in the main by a junior solicitor and the amount allowed reflects time spent of approximately 6.5 hours which is excessive for preparation of these answers. (d)The answers to interrogatories could have been efficiently prepared in a maximum of a few hours. (e)The issues involved in preparation of the answers to interrogatories ought to have attracted an allowance of an amount substantially less than the allowance made." As to par (a), to suggest that the process of responding to the interrogatories would be a simple matter would promote consideration of the form of their expression over more fundamental matters that bear upon the extent of recovery. The first is the number of questions and their range, the second that by the process the defendant seeks evidence rather than admissions. The significance of the second point is that where evidence is given care is required.