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 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.
The determination made reflected my assessment of the scope of the task set by the questions and the work undertaken by the plaintiff's solicitor in responding as he did. I observe that the answers were given on 20 November 2009 and they canvassed history that extended to 10 April 2000.
As to par (b), what is recoverable should reflect the efficient provision of a service by a competent solicitor. Beyond that, what is stated by the defendant in relation to the plaintiff's claim had no particular impact as it had no proper impact. I accept that the particular item in the scale identifies the process by which the Legal Costs Committee arrived at its determination for the maximum amount recoverable for the particular service. It considered that it would discharge its responsibility by multiplying an hourly rate by a given number of hours. It may be that in framing his claim the plaintiff adopted the same approach. Determining what is recoverable under the order for costs for the service provided to the plaintiff involves different considerations than were adopted for the purpose of determining the maximum recoverable for answers to interrogatories absent a special order for costs.
The concession in par (d) that efficient provision of the service could have been provided in a few hours undermines whatever the defendant seeks to advance by the generality of par (c). It is no more than "of interest" that the defendant deduces as she does at par (c). Recovery under the relevant item in the scale is not expressed to be at hourly rates.
As to the determination for getting up a case for trial, the objection is as follows:
"The defendant objects to the allowance of this amount on the grounds that the taxing officer has:
(a)failed to adequately exercise its discretion in determining the amount to be allowed for this item in that:
(i)He ought to have established a mean allowance for this item to be applied to cases of this nature (as reflected in the amounts agreed by the parties to the various actions of this nature that are disposed of daily at pre-trial conferences) and then assessed the value to be allowed for this item by comparison with the mean.
(ii)Further or alternatively if the allowance made for this item represents the mean allowance to be applied to cases of this nature such mean allowance is excessive having regard to the nature and complexity of the actions of this type.
(iii)Further or alternatively the issues involved in this action ought to have attracted an allowance for this item of an amount substantially less than the appropriate mean allowance and/or of the allowance made;
(b)Failed to adequately assess the value of the work done in this action in order to arrive at the appropriate allowance under this item.
(c)Having regard to the nature and complexity of this case failed to arrive at the appropriate allowance under this item.
(d)Failed to adequately reflect that the preparation of schedules and damages:
(i)merely repeated the matters pleaded in the statement of claim;
(ii)related to matters that could not be recovered i.e. past and future gratuitous services and interest;
(iii)were not to the extent claimed and supported by the medical evidence (i.e. future medical treatment)."
As to par (a), under the order for costs the defendant was not obliged to pay more than the reasonable cost of provision of the service. I have already expressed the standard that applies. The application of the standard should focus attention on the service or a part of a service provided rather than the manner in which it was provided. As a broad proposition, in any particular case the identity of the provider and the manner in which a service was provided should not be significant features of the assessment of what is reasonable.
That is not to say that I would dismiss the propositions put by the defendant. Indeed I suspect that we are largely in agreement. What would be recovered for the particular service by the plaintiff in this case should not be significantly different than that recoverable by any other plaintiff bringing a similar claim to the point in the action at which the order for costs was made. I would add that it is fundamental that the beneficial party carries the onus.
On the basis of what was submitted at review I suspect that the scope of real difference between the defendant and myself is established by the results obtained by "plaintiffs' solicitors" in the process of negotiation. I am concerned by the prospect that the difference is significant. Having said that I recognise there is always scope to reflect on the benefits of a negotiated outcome.
As to par (d) whatever the significance of the defendant's points may be, the preparation of the schedules would be a relatively minor consideration in determining the appropriate level of recovery.