Helms v Rushton - [2020] WADC 122

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   HELMS -v- RUSHTON [2020] WADC 122
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   31 AUGUST 2020
DELIVERED          :   10 SEPTEMBER 2020
FILE NO/S:   CIV 1446 of 2016
BETWEEN:   NATHAN HELMS
First Plaintiff
HELEN HELMS
Second Plaintiff
AND
TROY ADAM RUSHTON
First Defendant
EMPOWERNET INTERNATIONAL PTY LTD
Third Defendant
SUCCESS RESOURCES AUSTRALIA PTY LTD
Fourth Defendant
RICK THEOBALD
Fifth Defendant

Catchwords:

Practice and procedure - Objection on taxation - Objection based on proposition that taxing party not entitled to rely on extracted court orders - Whether an adjournment should be allowed to apply for variation of orders - Whether affidavit evidence required - Whether costs claimed as thrown away should be allowed - Turns on its own facts

Legislation:

Nil

Result:

Objection not allowed

Representation:

Counsel:

First Plaintiff	:	Mr A J Goldfinch
Second Plaintiff	:	Mr A J Goldfinch
First Defendant	:	Mr A G Rowe
Third Defendant	:	Mr C G Thorpe
Fourth Defendant	:	Mr C G Thorpe
Fifth Defendant	:	Mr C G Thorpe

Solicitors:

First Plaintiff	:	Stables Scott
Second Plaintiff	:	Stables Scott
First Defendant	:	Rowe Bristol Lawyers
Third Defendant	:	MDS Legal
Fourth Defendant	:	MDS Legal
Fifth Defendant	:	MDS Legal

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

Joyce v Palassis [2006] WASC 242

DEPUTY REGISTRAR HEWITT:

On 29 June 2020 I was called upon to tax a bill of costs which was filed in this proceeding by the third, fourth and fifth defendants. At the end of the taxation my certificate was held open and a number of objections have been received.
The first complaint concerns the order by the registrar. There is and has for a long time been conventions as to the meaning of certain words in respect of cost orders. Those propositions are set out in the case of Joyce v Palassis [2006] WASC 242.
The order which was extracted following the registrar's decision is contained in pars 5 and 6 of her order and they provide:
5.The plaintiffs pay the defendants costs of the application to be taxed, if not agreed.
6.The plaintiff's pay the costs thrown away as a result of the amendments and the re‑amendments of the plaintiff's original statement of claim to be taxed, if not agreed.
The effect of such orders are to entitle the parties having the benefit of the costs order to bring in a bill for taxation immediately.
I have examined the transcript and it appears to me that the registrar expressed a view that the costs which she had awarded should not be taxed forthwith. Whether or not the order was extracted incorrectly or whether the registrar reconsidered the matter subsequently and decided to depart from what she had proposed is not known. In any event clearly the order which was extracted differed from that which she mentioned in the course of the hearing.
Subsequently, the first and second defendants brought an unsuccessful appeal against the registrar's decision which, apart from yielding an order for dismissal and payment of the plaintiffs' costs, also introduced a variation for the order which the registrar had made by requiring the costs ordered in pars 5 and 6 to be paid forthwith.
At the taxation counsel for the plaintiffs complained that I did not allow the plaintiffs time to bring an application to the registrar to vary her order. That is perfectly true.
The order was at that stage about three years old and had been extracted for approximately that time. Additionally, the judge had made a decision on appeal which varied the order, which in my view put the prospect of the registrar amending the order out of reach since the order was no longer hers but that of the judge who heard the appeal.
That in its turn raises another difficulty because the appeal which was heard by Judge Herron was brought by the first and second defendant, but the amendments to the order of the registrar impacted not only the parties to the appeal but also the third, fourth and fifth defendants who were not parties to the appeal.
It was therefore my view:
1.Since the plaintiffs had made no move to bring an application for amendment of the order by the registrar for the three years since it had been extracted and on the record, it was too late at the taxation to seek an adjournment on the basis that such an amendment might be sought.
2.In any event I considered that the decision of Judge Herron put the prospect of amendment beyond reach by the registrar such that any application would prove fruitless.
3.On my understanding of the law an order which is extracted is binding on the parties to whom it is addressed and the remedy for a party such the present plaintiffs who wishes to challenge the propriety of the order is to do so by way of appeal.
In arguing the objections counsel for the plaintiffs informed me that letters had been written to the court, the matter had been placed before Judge Herron and his response was that the recourse which was open to the plaintiffs was to appeal and he did not intend to intervene in any way.
Another matter which influenced my decision was the fact that in my view both the orders of the registrar and of the judge were to the same effect, namely that the parties entitled to costs were entitled to tax them forthwith and the words which might had been introduced by his Honour did nothing to change the impact of the orders which had been made. For that reason I chose to proceed with the taxation, which I did.
As to the suggestion by the plaintiffs that the parties proceeded on an assumption that the order meant that costs could not be taxed forthwith, I am unable to see any merit in that proposition.
I am unaware of any authority which says that a party entitled to tax costs forthwith but does not do so immediately loses the right to bring in a bill for taxation prior to the ultimate conclusion of the action. None is cited to me.
When words which have a general and understood meaning in the context of a costs order, I struggle to understand how there can be a misapprehension. Therefore, insofar as the objections complain of my proceeding with the taxation without giving the plaintiffs the opportunity to apply to amend the order, I do not consider that it is a valid reason to adjourn a taxation simply because a paying party has realised that there might be some opportunity to improve its position by a further application.
I have quoted earlier the terms of the order which was extracted by Registrar Kubacz. The words are unequivocal. They are 'to be taxed if not agreed'. They mean what they say and I struggle to see how there can be a misunderstanding about what they mean.
The next point which is raised by the plaintiffs concerns the claim which is brought for costs thrown away. The proposition is, in a nutshell, to demonstrate that the costs which they claim were in fact thrown away by reason of the striking out of the statement of claim.
The actual costs order which is now on the costs court record is that the plaintiffs' pay the costs thrown away as a result of the amendments and re‑amendments of the plaintiffs' original statement of claim.
The statement of claim was clearly inadequate. Attempts to amend it did not bring it into a satisfactory state and it was only when the present solicitor took over the conduct of the matter that an acceptable statement claim was produced.
The third, fourth and fifth defendants put considerable effort into identifying the deficiencies which they alleged were to be found in the statement of claim and a very significant amount of work was invested in that process. Additionally, a significant amount of work was spent reviewing the various versions of the statement of claim which had been produced, various drafts of strike‑out applications which did not proceed because the solicitor for the plaintiffs sought additional time to consider the position, drafting a schedule of the alleged defects in the statement of claim, which I had the opportunity to peruse and was a very substantial document indeed, dealing with the response to the criticisms of the statement of claim, examining like complaints which were brought by the first and second defendants and matching them up against the third, fourth and fifth defendants' complaints, writing to the plaintiffs' solicitor concerning all these matters and some peripheral matters as well.
There is a complaint that there is no affidavit setting out this work but there has been a schedule of the work and the solicitor who did the work came to the taxation and gave explanations as to what work was done, why it was necessary and how long it took.
In this court it is not usual for taxing parties to file affidavits on matters of this kind and in the circumstances I saw no need for that to take place. Being satisfied with the taxation proceeding in the usual way with the solicitors who did the work attending and explaining what was done and why and responding to questions from the other side.
The plaintiffs have gone into a great deal of detail concerning the deficiencies of the order made by Judge Herron which extended to the third, fourth and fifth defendants, even though they were not a party to the appeal brought by the first and second defendants. I would unhesitatingly say that complaint would be an appealable point and one which I think, with all respect to Judge Herron, would stand a good prospect of success in the event that an appeal had been instituted.
No such appeal was forthcoming and in my opinion a party cannot simply ignore an order because it does not like it. If the order purports to be binding on a party it is binding on the party until it is set aside by some process, either an amendment under the slip rule by the judge who made the order or an order of the Court of Appeal.
I consider that it is futile to take the view that an order of this court duly extracted can be ignored because a party considers that in some way it was improperly obtained. That in my view it is not, and never has been, the law.
The way to disturb an order of which there is complaint is to appeal against that order. That was never done despite the fact that there were approximately three years in which it could have been done and in respect of which it must have been perfectly clear, what the orders meant and what effect they would have upon the plaintiffs.
For these reasons I consider that the grounds of objection brought by the plaintiffs have not been made out. Accordingly I do not allow the objection.
I do however recognise that there is some justification for the plaintiffs to be aggrieved by the fact that the order of Registrar Kubacz was not extracted in the form pronounced in court and that the order was further amended in a manner effecting the plaintiffs and arguably improving the position of the third, fourth and fifth defendants, notwithstanding the fact that the orders were made on an appeal to which the third, fourth and fifth defendants were not a party.
The trial of this action is but a short distance away and there are a number other bills of costs for which need to be taxed in the meantime. With that in mind I propose to settle the question of the appropriate costs to be paid for dealing with the objection, add those to the costs which I have previously considered allowable and sign my certificate in that amount.
I then propose to order a stay of execution against the amount so ordered so that other issues can be resolved as this matter proceeds.
The stay will therefore be until further order.
There are further bills to be considered in October and that strikes me as an appropriate time to again give thought to whether or not the stay should be permitted to remain.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CM
Court Officer
7 SEPTEMBER 2020