| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : JACK -v- HUNTINGFORD [2004] WADC 172 CORAM : DEPUTY REGISTRAR HARMAN HEARD : NOT APPLICABLE DELIVERED : 18 AUGUST 2004 FILE NO/S : CIV 3045 of 2002 BETWEEN : NGAIRE ALANA JACK Plaintiff
AND
MICHELLE HUNTINGFORD
Defendant
Catchwords: Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation of costs - Getting up case for trial and a disbursement - Sufficiency of notice
Legislation: Nil
Result: Review unsuccessful
(Page 2)
Representation:
Counsel:
Plaintiff : Mr P Kakulas
Defendant : Mr P Momber
Solicitors:
Plaintiff : Kakulas & Kakulas
Defendant : Peter Momber
Case(s) referred to in judgment(s):
Robinson v Corse, unreported; SCt of WA; Library No 980429; 3 August 1998
Case(s) also cited:
Clybucca Holdings Pty Ltd v Richard Ferier Gray and Others & Ors, unreported; SCt of WA; Library No 970191; 30 April 1997
(Page 3)
1 DEPUTY REGISTRAR HARMAN: The plaintiff obtained an order for her costs of the action. The parties have each filed what I take to be notices of objection to determinations made in the course of taxing claims made by the plaintiff in her bill of costs.
2 Before I deal the substance of either of the notices I will note that it is some time since each of the notices were lodged and that the plaintiff indicated that further grounds of objections would be presented at review. Whether a party is entitled to found review by grounds provided at review is a matter that I do not presently need to reflect upon. The important consideration is that the reviews have been languishing as I imagined that the plaintiff would seek to have the process listed for hearing. As she has not done so and as some considerable time has elapsed I see no reason not to proceed to conduct the review. Perhaps it is appropriate that I would add that upon receipt of an objection it is my practice to consider whether I would require the parties to attend on review or whether I will leave it for the parties to arrange such a listing if they consider it is appropriate. If after a reasonable period of time no such listing has been attended to, I then deal with the matter. 3 In my opinion by the terms of the defendant's notice it simply calls for me to refect upon a determination made rather than to conduct a review. At the very least, all but par 2 of the notice amounts to submissions. 4 I would add, before leaving the other paragraphs altogether that the figure expressed by the defendant in par 1 is not correct. The plaintiff recovered under a combination of items 7, 8 and 9 of the bill an amount $6,750. That is presumably the determination in issue under the notice. 5 As to par 2 that is as follows: "The defendant says that the above figure is excessive in the circumstances, taking into consideration the following: - The plaintiff's alleged injuries were minor and of a soft tissue nature only. - There was no question as to liability and an assessment of quantum of damages only. - There were no legal difficulties involved.
(Page 4)
- The claim was presented at a pre-trail conference that did not last for more then two (2) hours." 6 In my opinion, the first and third paragraphs simply go to an assessment of features of the case. The second also brings into consideration an assessment of the impact of the scale. The last, in my opinion does not speak to any feature of the process of the "getting up case for trial" and amounts to little more than a submission along the lines of the balance of the notice. 7 The starting point is to reflect upon whether the notice is a sufficient notice for the purposes of r 53. It provides for a notice of establishing jurisdiction to conduct a review in circumstances where the objecting party articulates an error in principle made by the taxing officer in allowing or disallowing a claim made in the bill. Review is available for determinations made in relation to the necessity of the provision of a service. It is not available for alleged errors in relation to the process of assessing quantum. I accept that Judges have expressed the view that jurisdiction exists to conduct review of such determinations however, I do not believe that it is open to the taxing officer to find jurisdiction under r 53 where patiently it does not exist. 8 As to the categories of complaint that the defendant raises, in addition to the considerations that the injuries were minor and of a soft tissue nature only I recorded at taxation that the process of "getting up the case for trial" involved consideration of the impact of the consequences of another accident sustained injury, the aggravation of an asymptomatic neck injury and issues relating to the plaintiff's capacity for employment. 9 The defendant cites authority in the form of a determination in Robinson v Corse, unreported; SCt of WA; Library No 980429; 3 August 1998 which provides as follows: "…Whilst it is true that the scale limits were lifted for the purpose of taxation of the costs of getting up, this did not mean that the value of the subject matter had to be entirely disregarded in evaluating the reasonableness of the work done and the costs incurred in doing that work. I would have thought myself that it remained a matter of prime importance. Reasonableness must mean that which is reasonable and proper in the circumstances and I think it would be quiet wrong to exclude from the relevant circumstances that total value of the amount at issue…"
(Page 5)
10 I have no difficulty with the proposition that in a particular case regard may be had for the value of the claim. In my opinion that consideration is only likely to be significant in a case that has no complexity. Without putting to fine a point, I imagine that may be an appropriate consideration to take into account in evaluating the extent of recovery in a simple case of debt recovery. In cases where other features of the process of preparation speak to the generation of matters of some complexity, in my view it would be inappropriate to impose any form of limit on recovery that would have the tendency to reduce the significance of considerations that draw upon that complexity. Equally where there is a measure of complexity the focus should remain on the work undertaken not what may be drawn from the fact that the parties chose to compromise or the quantum at which the compromise was reached. 11 In my opinion the issues raised by the defendant are proper considerations however the defendant itself does not elevate them beyond considerations or submissions. She does not even contend that there was any error made in the process of taxation. 12 As to the notice of the plaintiff, it to fails to articulate any error in principle as required by r 53. Unlike the defendant's notice it does fall within r 53 in that it takes issue with the disallowance of a claim. 13 The grounds of objection are expressed as follows: 14 As I stated at the commencement, the plaintiff obtained an order for her costs of the action. Her entitlement under that order is limited to the reasonable cost of services necessarily provided to her by her solicitor. 15 The issue raised at par 1 does not engage with the necessity for the provision of the services for the purposes of the action but only the necessity of providing a response to the defendant's insurer. I do not pretend to otherwise deal with the merits of the plaintiff's case at taxation, I simply articulate a fundamental difficulty with the terms of that (Page 6) paragraph of the objection. The same may be said for the second paragraph. The relevant feature of the plaintiff's entitlement is to services necessarily provided or, in the case of disbursements, payments necessarily incurred. The test of recovery is not reasonableness, that it the test of recovery for quantum. The determination made in relation to the particular claim of the plaintiff did not get to the point of assessing quantum; it had failed the test of necessity.
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