Hickey v Deputy Commissioner of Taxation
[1999] FCA 1731
•13 DECEMBER 1999
FEDERAL COURT OF AUSTRALIA
Hickey v Deputy Commissioner of Taxation
[1999] FCA 1731TAXATION OF COSTS – two actions against separate respondents heard together-costs ordered to be paid in each action- applicant in the actions filed a single bill of costs in respect of the two actions- taxing officer issued two estimates in respect of the one bill- applicant (respondent) not told of estimate by former solicitor until 14 days after estimate sent- taxing officer refused applicant (respondent) leave to file objection out of time and issued certificate of taxation- other respondent to original action has lodged notice of objection to the bill- whether certificate of taxation should be set aside- whether applicant (respondent) should be given leave to file a notice of objection to estimate.
Hughes v National Trustee Executors and Agency Co of Australasia Ltd (1978) VR 257
Bishop v R (1982) 40 ALR 40
Sofron v Nominal Defendant (1957) 96 CLR 469JAMES LINDSAY HICKEY v DEPUTY COMMISSIONER OF TAXATION
FOR THE COMMONWEALTH OF AUSTRALIAWAG 165 of 1996
BOON JR
13 DECEMBER 1999
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 165 OF 1996
BETWEEN:
JAMES LINDSAY HICKEY
Applicant (Respondent)AND:
DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA
Respondent (Applicant)BEFORE:
BOON JR
DATE OF ORDER:
13 DECEMBER 1999
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The certificate of taxation issued against the applicant (respondent) dated 6 September 1999 be set aside.
2.The time for the applicant (respondent) to file and serve on the respondent (applicant) a notice of objection to the estimate be extended for 14 days from the date of this order.
3.There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 165 OF 1996
BETWEEN:
JAMES LINDSAY HICKEY
Applicant (Respondent)AND:
DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA
Respondent (Applicant)
BEFORE:
BOON JR
DATE:
13 DECEMBER 1999
PLACE:
PERTH
REASONS FOR DECISION
This matter has been referred to me by his Honour Justice Carr pursuant to Order 79 rule 3 of the Federal Court Rules.
By notice of motion filed 29 September 1999 the applicant (respondent) seeks orders as follows:
1.The costs ordered to be paid by the applicant (respondent) to the respondent (applicant) on 18 March 1999 and the costs ordered to be paid by the applicant (respondent) to the respondent (applicant) in action WAG 166 of 1996 be taxed as one bill of costs.
2.Pursuant to the direction made on 4 June 1999 there be one estimate of costs issued for the respondent’s (applicant’s) bill of costs filed on 3 June 1999 for which, if the bill were to be taxed, the certificate of taxation would be likely to issue.
3.The estimates dated 12 August 1999 by Deputy District Registrar Stanley in the amounts of $15,726 (in action WAG 165 of 1996) and $10,484 (in action WAG 166 of 1996) be set aside and in lieu thereof there be an estimate issued in the sum of $26,210.
4.Further or in the alternative to Order 1, 2 and 3 above, the applicant (respondent) have leave to file a notice of objection to the estimate dated 12 August 1999 in the sum of $15,726.
5.The time for the applicant (respondent) to file and serve on the respondent (applicant) a notice of objection to the estimate be extended for 14 days from the date of this order.
6.The certificate of taxation issued against the applicant (respondent) dated 6 September 1999 be set aside.
7.There be no order as to costs.
The parties have agreed to this matter being heard on the papers. On behalf of the respondent (applicant) it is submitted that the relevant papers include the following:
(a) notice of motion dated 28 September 1999;
(b) applicant’s (respondent’s) affidavit sworn 23 September 1999;(c)paragraphs 1-16 of the affidavit of Timothy John Carey sworn 5 November 1999; and
(d) the outlines of submissions of the parties.
The applicant (respondent) objects to the respondent (applicant) relying upon the affidavit of Mr Carey on the basis that the affidavit contains no material relevant to the notice of motion but is only a justification for the amount of the bill of costs in question. I have had regard to Mr Carey’s affidavit in this matter. In view of the orders I have made, however, I did not consider it appropriate to bring the parties before me to argue that matter.
Background
The applicant (respondent) in this matter, Mr Hickey, was the respondent in matter WAG 165 of 1996, in which the applicant was the Deputy Commissioner of Taxation for the Commonwealth of Australia. Matter WAG 165 of 1996 was heard simultaneously with matter WAG 166 of 1996 in which the applicant was once again the Deputy Commissioner of Taxation for the Commonwealth of Australia and the respondent was Heather Margaret Horne. On 18 March 1999, Carr J made separate orders in WAG 165 of 1996 and WAG 166 of 1996 including orders that in each application the respondent pay the applicant’s costs to be taxed.
Timothy John Carey is a solicitor employed by the Australian Government Solicitor, the solicitor for the Deputy Commissioner of Taxation for the Commonwealth of Australia in both WAG 165 of 1996 and WAG 166 of 1996. On 3 June 1999, at Mr Carey’s request, a joint bill of costs for taxation of the applicant’s costs in actions WAG 165 of 1996 and WAG 166 of 1996 was filed in this Court.
Upon the filing of the bill of costs for taxation, the District Registrar of this Court directed “that this bill be dealt with by way of estimate under Order 62 rule 46(3)”.
On 8 June 1999, Mr Carey received a letter from Deputy District Registrar Stanley which enclosed copies of the direction of the District Registrar in respect of the joint bill and requested that Mr Carey arrange for a copy of the bill and the direction to be provided to the respondent in each of the actions by 21 June 1999.
On 9 June 1999, Mr Carey caused letters to be sent to the solicitors on the record for the respondent in each action in accordance with the Deputy District Registrar’s request. The solicitors on the record for Mr Hickey were Messrs Bayly & O’Brien, and the solicitor on the record for Ms Horne was Ms Karen Vernon of Messrs Arthur Metaxas & Co.
On 4 August 1999, Mr Carey had a telephone conversation with Deputy District Registrar Stanley in which the possible apportionment of the joint bill between the respondents in the two actions was discussed. On 10 August 1999, Mr Carey had a further telephone conversation with Deputy District Registrar Stanley during which it was agreed by them that an apportionment of the joint bill as to 60% against Mr Hickey and as to 40% against Ms Horne was appropriate.
The estimates issued by the Deputy District Registrar are dated 12 August 1999. The estimate in action No. WAG 165 of 1996 states that the Deputy District Registrar estimates that, if the applicant’s bill of costs filed on 3 June 1999 were to be taxed, the approximate total on the certificate of taxation would be likely to be $15,726. The estimate in respect of action No. WAG 166 of 1996 is also dated 12 August 1999 and states that the Deputy District Registrar estimates that, if the applicant’s bill of costs filed on 3 June 1999 were to be taxed, the approximate total on the certificate of taxation would be likely to be $10,484.
Mr Hickey’s affidavit sworn 23 September 1999 states that on or about 11 June 1999 Ms Horne informed him that she had received a letter from her solicitors enclosing a bill of costs for taxation against Ms Horne and himself claiming the sum of $36,324.35. Mr Hickey states that he did not receive any notification of the bill of costs from his solicitors, Messrs Bayly & O’Brien.
Mr Hickey states that during the months of June and July 1999 he negotiated a composition with his creditors and Ms Horne’s creditors which resulted in their respective bankruptcies being discharged in July of 1999.
On 26 August 1999 Mr Hickey spoke by telephone with Ms Vernon who informed him that she had received a facsimile from Messrs Bayly & O’Brien enclosing two separate provisional estimates dated 12 August 1999 directed to Mr Hickey and to Ms Horne. Mr Hickey states that this was the first notification that he had received that an estimate had been made against him in relation to the respondent’s (applicant’s) bill of costs. During that telephone conversation, Ms Vernon informed Mr Hickey that once an estimate had been issued, a party had 14 days from the date of service of the estimate in which to lodge a notice of objection. Mr Hickey states that he instructed Ms Vernon that he wished her to act on his behalf in relation to the bill of costs instead of Messrs Bayly & O’Brien. In his affidavit Mr Hickey states that on 26 August 1999 he spoke by telephone with Mr Bayly of Messrs Bayly & O’Brien who informed him for the first time of the estimate which had been made against him. Messrs Bayly & O’Brien wrote to Mr Hickey by letter dated 31 August 1999 enclosing the estimates and the applicant’s bill of costs for taxation. Mr Hickey states in his affidavit that by the time he received notification of the estimate of costs made against him, the 14 day time period in which to object had either expired on 26 August 1999 or was due to expire on 27 August 1999 and that he had had no opportunity in which to file a notice of objection.
On 26 August 1999, Mr Hickey instructed Ms Vernon that he wished her to act on his behalf in relation to the respondent’s (applicant’s) bill of costs. By letter dated 31 August 1999 Ms Vernon wrote to Deputy District Registrar Stanley advising that she had received copies of the provisional estimates in respect of the respondents (applicant’s) bill of costs from Mr Bayly on 26 August 1999. It appears that this Court had sent the estimates only to Mr Bayly and not to Ms Horne’s solicitors. In that letter, Ms Vernon advised the Court that Mr Hickey had instructed her to act on his behalf. The letter concludes as follows:
“On the basis that a party has 14 days from the date of service of an estimate in which to lodge a notice of objection, I would be obliged if you would treat this letter as notification that my clients consider that the time for taking objection to your estimate commenced on 26 August 1999.”
Mr Carey states in his affidavit that on 31 August 1999, having received no notice of any objection to either estimate, he caused certificates of taxation to be filed with the Court for sealing.
On 2 September 1999, Mr Carey received a letter from Messrs Arthur Metaxas & Co dated 31 August 1999 which enclosed without comment a copy of their letter to the Court dated 31 August 1999. On 6 September 1999 Deputy District Registrar Stanley wrote to Messrs Arthur Metaxas & Co. That letter stated that as the estimate in relation to Ms Horne was sent, in error, to Messrs Bayly & O’Brien rather than to Messrs Arthur Metaxas & Co, the Deputy District Registrar confirmed that the time for lodging an objection to the estimate commenced on the day that they received the estimate, which appeared to be 26 August 1999. In relation to Mr Hickey, however, Messrs Bayly & O’Brien were the solicitors on the record at the relevant time and the Deputy District Registrar stated that she considered that the time for objection ran from the time it was received by them. As that period had expired, the Deputy District Registrar signed the certificate of taxation in relation to Mr Hickey.
According to Mr Hickey’s affidavit, on 7 September 1999 he instructed his solicitor to respond to the Federal Court. On the same date, Messrs Arthur Metaxas & Co wrote to the Deputy District Registrar stating amongst other things that in their opinion, since the Deputy Commissioner of Taxation chose to file only one bill of costs (which they stated was incorrect in the absence of an order to that effect), only one estimate should have issued. The letter pointed to further inconsistencies, namely, that only the estimate in relation to the action against Ms Horne was signed by the Deputy District Registrar, whereas the estimate for the action against Mr Hickey was unsigned. Further, the wording on the estimate for Ms Horne indicated that if the applicant’s bill of costs were to be taxed then “the approximate total for which the certificate of taxation would be likely to issue” would be $10,484, meaning the entire bill would be allowed in this sum. The letter goes on to state that the estimates dated 12 August 1999 ought to be disregarded and a new estimate issued for the total amount to be allowed in respect of the applicant’s bill of costs pursuant to Order 62 rule 46(3)(b).
Mr Carey’s affidavit stated that he received the sealed certificate of taxation dated 6 September 1999 on either 13 or 14 September 1999. As Messrs Bayly & O’Brien had by that stage not filed a notice of withdrawal of solicitors which complied with the requirements of Order 45 rule 7 of the Federal Court Rules, Mr Carey caused a letter to be sent to Messrs Bayly & O’Brien serving the certificate of taxation. On 15 September 1999, Mr Carey caused a letter to be sent to Messrs Arthur Metaxas & Co informing them of such service and enclosing a copy of the certificate of taxation.
On 1 October 1999, Mr Carey caused a letter to be sent to the Registrar of the Court requesting that an order be drawn up, signed and sealed in favour of the respondent (applicant), consequent upon the failure of the applicant (respondent) to pay the amount of taxed costs within 14 days of service of the certificate of taxation on him. In the meantime, on 29 September 1999, Messrs Arthur Metaxas & Co had filed the notice of motion the subject of these proceedings.
Submissions made on behalf of Mr Hickey
The submissions filed on behalf of the applicant (respondent), Mr Hickey, state that there are two aspects to the applicant’s (respondent’s) motion.
1.The correctness of the procedure adopted in relation to the bill of costs and the estimates pursuant to Order 62 rule 46; and
2.Whether Mr Hickey is entitled to an extension of time within which to file a notice of objection to the estimate.
The submission points out that when his Honour Justice Carr made his orders on 18 March 1999, there was no order made that the costs be taxed together as one bill of costs. Despite this, the respondent (applicant) filed a single bill of costs for both actions which merged the legal costs sought to be recovered by the Deputy Commissioner of Taxation into a single claim. On 4 June 1999 pursuant to Order 62 rule 46, the District Registrar directed that there be an estimate taken of the bill of costs instead of a formal taxation. The words used in the direction refer to one bill of costs and an estimate.
It is submitted that in the absence of an order that the costs of both actions be taxed by one bill, the filing of one bill by the respondent (applicant) was incorrect. The submission states however that given the way that both actions were interrelated, from a practical point of view the applicant (respondent) does not take issue with the filing of one bill of costs on 3 June 1999 against both Mr Hickey and Ms Horne.
It is submitted that the provisions of Order 62 rule 46 required the Registrar to issue a single estimate of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue. It is further submitted that the issuing of two estimates on 12 August 1999 against each respondent for separate sums was therefore incorrect. It is said that had the Deputy Commissioner of Taxation’s bill of costs been taxed in the normal way, a certificate of taxation would have issued in respect of the bill of costs and the matter of apportionment of the costs as between Mr Hickey and Ms Horne would not have been in issue. Further, the estimates dated 12 August 1999 should therefore be set aside and there should be a single estimate issued jointly to both Mr Hickey and Ms Horne in the sum of $26,210. There are further submissions in relation to the setting aside of the estimates. However, for reasons which I will set out further on in these reasons for decision, I shall not deal with those submissions here.
The submission goes on to state that pursuant to Order 3 rule 3(2) of the Rules of the Federal Court, the Court may grant an extension of time when it can be done without causing prejudice to the other party or where any injury can be compensated by the payment of costs (Hughes v National Trustee Executors and Agency Co of Australasia Ltd (1978) VR 257 at 263).
It is submitted that where a party who had neglected to observe the requirements of the rules seeks the indulgence of the Court, that party must satisfy the Court that justice requires that the default shall be overlooked and must satisfy the Court that there is some reasonable kind of explanation or excuse for the neglect of the rules (Bishop v R (1982) 40 ALR 40).
Further, the fact that a delay is caused by a solicitor and not the client is a material consideration, however the fault of the solicitor will not necessarily be a sufficient reason to extend time (Sofron v Nominal Defendant (1957) 96 CLR 469 at 470 to 471).
It is stated that Mr Hickey lost his opportunity to file a notice of objection for the following reasons:
1.His former solicitors failed to provide him with a copy of either the bill of costs dated 3 June 1999 or the direction dated 4 June 1999.
2.The Federal Court mistakenly forwarded the estimates in respect of each respondent to Mr Hickey’s former solicitors on or about 12 August 1999 yet those solicitors did not notify Mr Hickey or the solicitors for Ms Horne until 26 August 1999 when the time for lodging an objection had expired or was about to expire.
3.The Federal Court accepted the delay in notification of the estimate to Ms Horne and therefore granted her an extension of time but declined to grant an extension of time to Mr Hickey on the basis that his then solicitors had been properly notified.
It is submitted on behalf of Mr Hickey that these matters were outside his control and that the actions of other parties deprived him of his opportunity to file a notice of objection within 14 days of the date of the estimate being issued and thereby comply with the rules. It is further submitted that this is not a case where there has been any significant delay on the part of Mr Hickey in complying with the requirements fixed under the rules. It is stated that immediately upon being notified of the existence of the estimate on 26 August 1999, Mr Hickey took steps to instruct a new solicitor to act on his behalf, and to contact this Court to seek an extension of the time within which to file a notice of objection.
It is further submitted that an extension of time can be granted to Mr Hickey without causing any prejudice to the Deputy Commissioner of Taxation.
The submission states that it is not appropriate for Mr Hickey to bear the costs of this motion because:
1.The failure of the Federal Court to forward Ms Horne’s estimate to her solicitors on the record on 12 August 1999 (which would have resulted in Mr Hickey being made aware of the estimate since Ms Horne’s solicitors were then acting for Mr Hickey in a related matter; contributed to Mr Hickey’s position.
2.The failure of his former solicitors to notify him immediately upon receipt of the estimate on or about 12 August 1999 was outside his control.
3.There are no reasonable grounds upon which the Deputy Commissioner of Taxation could or should oppose the grant of an extension of time to Mr Hickey as there is no prejudice to the Deputy Commissioner except a delay in recovering the costs.
4.This motion should have been the subject of consent between the parties.
Submissions made on behalf of the Deputy Commissioner of Taxation
On behalf of the Deputy Commissioner of Taxation, it is submitted that Mr Hickey’s motion in all its parts is incompetent because it pays no regard to the issue of the certificate of taxation on 6 September 1999 (which occurred before the notice of motion was filed). It is stated that paragraphs 1 to 5 inclusive of the orders sought by Mr Hickey in his notice of motion cannot be made because the taxation in this action has already occurred. Further, to the extent that any of the orders seek relief on behalf of Ms Horne, they are not properly raised by motion in this action.
It is submitted that where, as here, the Court’s assessment procedures under Order 62 rule 46 have been utilised, the entitlement of a party to a certificate of taxation arises upon the expiry of 14 days of receipt of the Registrar’s estimate, provided an interested party does not file and serve a notice of objection to the estimate. It is submitted that there is a significant difference, in terms of any review rights of the parties, between a case where the assessment procedures under Order 62 rule 46 have been utilised and a case where the traditional taxation procedure has been adopted. In the latter case, subsequent to the filing of a bill of costs and attendance at the taxation, it is stated that the following steps might occur:
1.A party objecting to the taxing officer’s decision may apply to the taxing officer for reconsideration under Order 62 rule 42(1A) and the following sub-rules;
2.The taxing officer will undertake his reconsideration in accordance with Order 62 rule 43, which might entail giving a certificate setting out reasons for his decision on reconsideration;
3.A party might apply, by motion, to the Court for review of the decision of the taxing officer on reconsideration under Order 62 rule 44(1);
4.The Court, on its review of the taxing officer’s decision on reconsideration, has the wide powers provided for in rule 44(5), which clearly extend to merits review.
It is submitted that in light of the extensive scheme of reconsideration and review, it is difficult to perceive any competent challenge to the issue of a certificate of taxation, provided this was done regularly.
It is submitted that in the cases of both the traditional taxation process and the new assessment procedures, a party is not entitled as of right to any review once a certificate of taxation has issued upon the completion of the taxation. Parties have no entitlement to what Mr Hickey seeks in his submissions, namely, to look behind a certificate of taxation regularly issued as a means of attacking the certificate of taxation itself. It is therefore stated that the motion is incompetent and should be dismissed.
As to Mr Hickey’s submissions in relation to the procedure adopted for the taxation of costs, it is stated that although it is true that the Deputy Commissioner of Taxation filed a single bill of costs, the bill was headed up in both actions. The bill was silent as to whether its intention was to merge the legal costs into a single claim. Further, it states that although the District Registrar’s direction was in terms of a single estimate being made, the direction was headed in the two actions. It is submitted that on the basis of Mr Hickey’s concession that it was appropriate for one bill of costs to be filed against both Mr Hickey and Ms Horne, the only issue is whether the Registrar was, by reason of the single bill, precluded from issuing an estimate in both the relevant actions. The Registrar could not so be precluded, because the contrary view would offend against the continuing requirement for separation of the two different actions. The orders for costs of 18 March 1999 were made, one in each action, against each respective respondent. It submitted that on completion of taxation in each action, two certificates of taxation pursuant to Order 62 rule 45, one in each action, should result.
It is stated that the reason for the joinder of both actions in the one bill, and for the apportionment which occurred, were practical ones. The alternative would have been for separate bills to be issued which, in the case of each individual item, an apportionment between the two actions would have been necessary. This would have greatly added to the cost of preparation of the bills.
It is further submitted that the important point is that, whatever means was taken to arrive at the Registrar’s estimates, an estimate in each case was essential. The practicalities adopted for assessing both sets of costs cannot affect the Deputy Commissioner’s entitlement to an order in each case, with its attendant execution remedies against each respondent should they become necessary.
As to Mr Hickey’s application for an extension of time, it is conceded on behalf of the Deputy Commissioner that if Mr Hickey is entitled to seek an extension of the time allowed to file a notice of objection, the granting of the extension would not cause prejudice to the respondent (applicant) in the relevant sense.
It is stated that despite Mr Hickey’s new solicitors becoming apprised on 26 August 1999 of the estimate affecting Mr Hickey dated 12 August 1999, no objection to the estimate was lodged despite Mr Hickey still being within time. Further, no substantive action was taken until 28 September 1999 (the date of filing of the notice of motion), some 22 days after the issue of the certificate of taxation. It is submitted that Mr Hickey cannot rely, in mitigation, upon the letter from his new solicitors to the Federal Court dated 31 August 1999 as it was based upon an entirely erroneous interpretation of the law, and no other reasonable excuse for the delay has emerged.
It is submitted that the time limitation as applying to Order 62 rule 46 procedures should be applied strictly, in light of the underlying policy of those procedures. It is submitted that in the circumstances, the Court might consider this case as properly to be regarded as an example of an exception to the general rule that where a delay is caused solely by a solicitor without the knowledge of the client, the fault of the solicitor will not be visited upon the client (Sofron v Nominal Defendant (1957) 96 CLR 469 at 470-471 and 476).
It is stated that in the event that the motion is successful, there should be no order as to costs.
The Rules
Order 62 of the Federal Court Rules deals with costs. Order 62 rule 46 relates to assessment procedures. In this case, his Honour Justice Carr made orders in actions WAG 165 of 1996 and WAG 166 of 1996 that the respondent in each action pay the applicant’s costs. Technically, therefore, two separate bills of costs should have been filed. However, for practical reasons, a single bill of costs was filed in respect of both actions. The District Registrar exercised his discretion under Order 62 rule 46(2) to direct that an estimate of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue. In making his direction, the Registrar stated that an estimate be made. If a single estimate had been made of the total bill of costs, both Mr Hickey and Ms Horne would have been, without any further order, jointly and severally liable for the whole of the amount of the taxed bill. No doubt for this reason, the Deputy District Registrar took a practical approach and apportioned the bill between Mr Hickey and Ms Horne.
Apart from the difficulty just referred to, there have been a number of other difficulties with the process of taxation of the costs in matters WAG 165 of 1996 and WAG 166 of 1996, and with the application by way of notice of motion before me.
As to the application by way of notice of motion, the first three orders sought, in effect, would result in the two estimates dated 12 August 1999 by Deputy District Registrar Stanley in actions WAG 165 and WAG 166 of 1996 being set aside. In lieu thereof, one estimate of costs would be issued for the respondent’s (applicant’s) bill of costs filed 3 June 1999. Any such order made would affect Ms Horne as well as Mr Hickey. An obvious difficulty with that is that Ms Horne has not been joined as a party to the application. The application is made in respect of No. WAG 165 of 1996 only. In these circumstances, it is not appropriate to make the orders sought in paragraphs 1, 2 and 3 of the notice of motion.
When considering the matter on the papers, I considered calling the parties before me to raise this difficulty. However, both Mr Hickey and the Deputy Commissioner of Taxation agree that for all practical purposes the matter should be dealt with on the basis of the one bill of costs filed on 3 June 1999. That is how the matter currently stands in respect of Ms Horne, and the same solicitors currently act for both Mr Hickey and Ms Horne.
On behalf of the Deputy Commissioner of Taxation it is stated that the (applicant’s) respondent’s motion in all its parts is incompetent because it pays no regard to the issue of the certificate of taxation on 6 September 1999. This is not correct because by paragraph 6 the notice of motion seeks an order that the certificate of taxation issued against the applicant (respondent) dated 6 September 1999 be set aside. It is argued on behalf of the respondent (applicant) that in light of the extensive scheme of seeking reviews under Order 62, it is difficult to perceive any competent challenge to the issue of a certificate of taxation. However, Order 62 rule 11 states that every taxation of costs and every decision of a taxing officer shall be subject to review by a judge. His Honour Justice Carr has delegated that function to me pursuant to Order 79 rule 3.
The question therefore is whether the certificate of taxation issued against Mr Hickey dated 6 September 1999 should be set aside, and whether the time limited for Mr Hickey to file and serve on the Deputy Commissioner of Taxation a notice of objection to the estimate be extended for 14 days.
This Court will be reluctant to interfere with a taxing officer’s decision and will only do so in a proper case. In this case, there is one bill of costs, in respect of which two estimates have issued from this Court. Only one of the respondents to the bill of costs has been able to file a notice of objection to the estimate within the required 14 days. The effect of the filing of a notice of objection, under Order 62 rule 46, is that the Registrar may direct either that the bill be provisionally taxed or that taxation of the bill proceed. Therefore, if the current situation is allowed to continue, taxation of the one bill will proceed even though a certificate of taxation in respect of that bill has already issued against Mr Hickey. If the bill is taxed with respect to one party only, it appears to me that there is scope for inconsistency and confusion.
Moreover, Mr Hickey’s current situation has been caused or contributed to by a number of different factors, including the fact that only one bill of costs was filed in respect of two matters; the Court made an error in forwarding the estimates in respect of both Mr Hickey and Ms Horne to Mr Hickey’s former solicitors and not to Ms Horne’s solicitors; and Mr Hickey’s former solicitors failed to provide him with either a copy of the bill of costs dated 3 June 1999 or the estimates dated 12 August 1999 until 26 August 1999. Although the respondent (applicant) now argues that Mr Hickey could have acted more expeditiously, his current solicitors wrote to the Federal Court on 31 August 1999 on behalf of both Mr Hickey and Ms Horne, and their representations in respect of Ms Horne were accepted by the Federal Court. I accept that the delay in Mr Hickey seeking to file a notice of objection to the estimate was caused by a combination of circumstances which were beyond his control.
In view of the following factors:
·the difficulties already outlined;
·the fact that Ms Horne has not been joined as a party to this application;
·the fact that both the applicant and the respondent in this application agree that there should be only one bill of costs; and
·the Deputy Commissioner of Taxation has conceded that he will not be prejudiced by the making of such an order,
I consider that the most practical and appropriate way of overcoming the difficulties surrounding the taxation of the Deputy Commissioner of Taxation’s bill of costs is that the certificate of taxation issued against Mr Hickey be set aside and that the time limited for Mr Hickey to file and serve a notice of objection be extended.
The Court makes the following orders:
1.The certificate of taxation issued against the applicant (respondent) dated 6 September 1999 be set aside.
2.The time for the applicant (respondent) to file and serve on the respondent (applicant) a notice of objection to the estimate be extended for 14 days from the date of this order.
3.There be no order as to costs.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar Boon. Associate:
Dated: 13 December 1999
Counsel for the Applicant (Respondent): Ms K Vernon Solicitor for the Applicant (Respondent): Arthur Metaxas & Co Counsel for the Respondent (Applicant): Mr Tim Carey Solicitor for the Respondent (Applicant): Australian Government Solicitor Date of Hearing: The matter was heard on the papers Date of Judgment: 13 December 1999
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