Jackson v Chrisp [No 2] - [2013] WADC 164

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JACKSON -v- CHRISP [No 2] [2013] WADC 164

CORAM: STEVENSON DCJ

HEARD: 25 SEPTEMBER 2013

DELIVERED : 25 SEPTEMBER 2013

PUBLISHED : 29 OCTOBER 2013

FILE NO/S: APP 74 of 2010

BETWEEN: GEORGE NEVILLE JACKSON
Appellant
AND
DANIEL LEE CHRISP
Respondent

Catchwords:

Application to set aside certificate of taxation - Inherent jurisdiction - Implied jurisdiction - Order 66 r 53, r 55 Rules of the Supreme Court 1971 - Discretionary considerations - Taxation of costs general principles - No order

Legislation:

District Court of Western Australia Act 1969 s 6
Magistrates Court Act 2004 s 36
Rules of the Supreme Court 1971 O 66 r 53, r 55

Result:

Application to set aside certificate of taxation refused
The appellant pay the respondent's costs, and any reserved costs, to be taxed unless agreed

Representation:

Counsel:

Appellant: Mr D J Garnsworthy
Respondent: Mr B P Wheatley

Solicitors:

Appellant: Garnsworthy
Respondent: Mossensons

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

Jackson v Chrisp [2011] WADC 38
Jackson v Chrisp [2012] WASCA 158
Jackson v Chrisp [2013] WADC 74
Monitronix Ltd v Michael & Anor (1992) 7 WAR 197
Murcia & Associates (a firm) v Grey & Ors (2001) 21 WAR 209
Pelechowski v The Registrar, Court of Appeal [1999] HCA 19
Pryles & Defteros (a firm) v Green [1999] WASC 34; (1999) 20 WAR 541
Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155
Re, Landsal Pty Ltd (in Liq) v Rei Building Society, Now the Co-operative Building Society of South Australia [1993] FCA 121

STEVENSON DCJ: [This judgment was delivered extemporaneously on 25 September 2013 and has been edited from the transcript.]
I have had the opportunity to consider the material before the court, including each party's written outline of submissions, before today. I have also been assisted by full oral submissions from counsel today. I reserve the right to edit, vary and, if necessary, amend these reasons for decision at any time in the future should the need arise.
The application before the court is a chamber summons filed by the appellant, Mr Jackson, in District Court APP 74 of 2010 on 8 August 2013. The chamber summons seeks an order setting aside the 'allocatur costs in the signed certificate of taxation dated 5 October 2012' (the certificate of taxation). The appellant also seeks an order that there be no order as to costs in respect of the chamber summons.
I have had the opportunity to read the reasons for decision of her Honour Judge Wager (Jackson v Chrisp [2011] WADC 38), delivered on 4 March 2011 and published on 11 March 2011. The bill of costs, which was taxed and which is the subject of the chamber summons before the court today, arose out of an appeal from the Magistrates Court heard by her Honour Judge Wager. At the same time, Wager DCJ also heard District Court APP 73 of 2010, which arose out of the same matter, a dividing fence dispute between the appellant and the respondent, Mr Chrisp.
District Court APP 74 of 2010 arose out of various orders and decisions made in the Magistrates Court, and in particular for the purpose of the appeal, orders made in the Magistrates Court on 14 October 2009. District Court APP 73 of 2010 related to the order of the Magistrates Court on 3 September 2010.
The appellant appealed against the decision of her Honour Judge Wager in respect of both APP 73 and APP 74. The Court of Appeal delivered its reasons for decision on 20 August 2012: Jackson v Chrisp [2012] WASCA 158. Their Honours Pullin and Buss JA agreed with the reasons for decision given by Murphy JA.
APP 73 of 2010 in the District Court, which was heard at the same time in this court by Wager DCJ and also at the same time by the Court of Appeal, appears to have been a relatively short matter, compared to the issues arising out of APP 74 of 2010. The Court of Appeal in their reasons for decision allowed the appeal in respect to APP 73 of 2010 and dismissed the appeal in respect to APP 74 of 2010.
With respect to APP 74 of 2010, Murphy JA at [130] of his reasons for decision, made some comments obiter dicta to the effect that the orders made in the Magistrates Court on 14 October 2009 may, in fact, be prima facie amenable to judicial review on the basis of error of law on the face of the record, or on the basis of having being made without jurisdiction.
The reason for that observation is because the respondent, Mr Chrisp, at the time those orders were made on 14 October 2009, was not the registered owner of the adjoining property, although I understand he was when the proceedings were commenced in the Magistrates Court.
In the same paragraph, Murphy JA made the observation that, if the respondent attempted to enforce the orders of 14 October 2009, it would prima facie be open to the appellant to apply to set them aside in proceedings for judicial review, pursuant to s 36 of the Magistrates Court Act 2004.
It is plain by reference to s 36 of the Magistrates Court Act that the power vested in the Supreme Court by that provision is to make orders with respect to orders or directions done or made by a court officer in the Magistrates Court on the ground that it was done or made without jurisdiction or power, or is an abuse of process. Section 36 does not confer any express power on the Supreme Court to make orders with respect to proceedings in this jurisdiction, the District Court of Western Australia.
I understand the appellant has now made an application to the Supreme Court pursuant to s 36 of the Magistrates Court Act, which is presently listed to be heard on 14 October 2013. I am also informed that the respondent has, in effect, given an undertaking to the appellant that he will not seek to enforce the Magistrates Court orders of 14 October 2009. This would appear to render any further hearing of this issue otiose.
There is a substantial procedural history to this matter. This can be seen from the judgments which have been published at various stages in various jurisdictions. I have not had the opportunity to see the Magistrates Court file or read the decisions made in that jurisdiction because I understand the Magistrates Court file has been returned to the Magistrates Court following completion of the hearing of the appeal in this jurisdiction.
However, as I said previously I have read the reasons for decision of her Honour Judge Wager. I have also read the reasons for decision of the Court of Appeal delivered 20 August 2012. As well, I have had the opportunity to read the reasons for decision of Principal Registrar Gething in Jackson v Chrisp [2013] WADC 74, delivered on 15 May 2013, which concerns a property seizure and sale order obtained by the respondent against the appellant based on the signed allocatur and the certificate of taxation dated 5 October 2012.
A chronology of relevant events for present purposes follows.
On 14 October 2009, the learned magistrate made orders in the Magistrates Court which subsequently became the subject of APP 74 of 2010 in the District Court. The notice of appeal in the District Court was filed on 24 September 2010. The appeal was clearly out of time.
As mentioned, by reasons published on 11 March 2011, Judge Wager dismissed the appellant's appeal in APP 74 of 2010.
On 25 March 2011, the appellant appealed to the Court of Appeal from the decision of her Honour Judge Wager.
On 25 May 2011, the respondent's costs of the appeal in the District Court APP 74 of 2010, were taxed by a registrar of this court and allowed at $7,731.88. The appellant attended the taxation hearing and was informed by the taxing officer that any objections needed to be provided to him in writing by 2 June 2011, failing which he would sign the allocatur, thereby completing the certificate of taxation.
No objection in writing was either filed at the court or served on the respondent's solicitors by the appellant, as required by O 66 r 53(1), within the specified time, namely, by 2 June 2011.
There is an explanation in the appellant's affidavit in support of the application. According to the appellant, he prepared a draft letter dated 1 June 2011 which he intended to provide to the taxing officer. I doubt the appellant also intended to serve the letter of objection on the respondent's solicitors as well, as required by O 66 r 53(1)(a).
Although the appellant deposed in his affidavit that he attended the District Court for the purpose of providing the letter to the taxing officer, it is accepted and common ground that the taxing officer never received the letter. There is no record of any letter of objection having been filed or delivered to the court. There is no evidence of any follow-up or inquiry by the appellant based on the assumption that the letter had been provided to the taxing officer. The position going forward is, in my view, instructive.
On 3 June 2011, the appellant applied to the Supreme Court for a suspension order to stay the execution of the taxed costs. This is interesting because, according to the appellant he had, on 1 June 2011 or thereabouts, provided a notice of objection to the taxing officer. Therefore, he had no basis to believe that the taxing officer had signed the allocatur, or had made an adverse decision against him. The appellant did not know whether his proposed objections had been upheld or otherwise agreed to by the taxing officer. Obviously, unless the allocatur was signed, the certificate of taxation was not complete and there was nothing to stay. It is accepted his appeal was at the time extant.
On 1 August 2011, Pullin JA made an order staying execution of the costs order pending the outcome of the appellant's appeal. At that point in time the allocatur had not been signed by the taxing officer and there was, in fact, nothing to stay.
On 20 August 2012, the Court of Appeal dismissed the appellant's appeal in APP 74 of 2010. On 13 September 2012, the Court of Appeal made an order that there be no order as to costs in relation to APP 74 of 2010. As to APP 73 of 2010 costs were allowed in that appeal in favour of the appellant against the respondent.
The court record discloses that, on 27 September 2012, the respondent's solicitors wrote to the taxing officer enclosing a copy of the bill of costs, requesting him to sign the certificate of taxation.
On 5 October 2012, the bill of costs was signed by the taxing officer, thereby certifying that he had taxed the bill of costs and allowed it at $7,731.88. At the time, and there is no dispute about this, neither the taxing officer nor the respondent was aware of any formal objection in writing by the appellant to the taxing officer signing the allocatur.
Consequent on the certificate of taxation being completed on 5 October 2012, the respondent made an application on 19 November 2012 for a property seizure and sale order against the appellant (the PSSO). On 23 November 2012 the court administratively, under the Civil Judgments Enforcement Act 2004, issued a property seizure and sale order in respect of the unpaid costs of the appeal as certified in the certificate of taxation signed by the taxing officer on 5 October 2012.
I note, and take into account, that the taxing officer did not give notice of having signed the allocatur to Mr Jackson at the relevant time. I am not aware of any obligation that he do so. Following the disposition of the appeal to the Court of Appeal on 20 August 2012, one would have expected the appellant to have turned his mind back to the taxation of costs and its current status, including in particular whether the certificate of taxation had been signed.
It appears the appellant did not do anything until 2 January 2013, when he made an application in the District Court to suspend the property seizure and sale order. The application was supported by an affidavit sworn by the appellant.
The affidavit did not depose to any ground based on a failure by the taxing officer to have regard to the written objection in the appellant's purported letter of 1 June 2011. Instead, the application was based on considerations arising under the relevant Act itself. That application was ultimately the subject of a decision of Principal Registrar Gething on 15 May 2013 to which I have referred: Jackson v Chrisp [2013] WADC 74.
In general terms, I understand the learned principal registrar stayed the enforcement of the PSSO to enable the appellant to tax his costs in APP 73 of 2010 in the Supreme Court, so that those costs could be set off against the costs which are payable by him to the respondent in respect of APP 74 of 2010.
On 3 April 2013, an order was made by the principal registrar suspending the PSSO until the application could be heard at a special appointment on 24 April 2013.
Submissions were filed in support of that application. It is plain from those submissions and also the affidavit filed in support of this application that the starting point for the appellant is that the effect of the proposed order sought from the Supreme Court pursuant to s 36 of the Magistrates Court Act will not only quash as a matter of record the orders made on 14 October 2009 in the Magistrates Court, but will have an ongoing effect to quash everything that occurred thereafter. According to the appellant, this would include in particular the appeal in the District Court and also the bill of costs, and ultimately the certificate of costs resulting from the appeal.
It must, of course, be observed that the point taken by the s 36 application was not taken by the appellant at any earlier time, inasmuch as it only came to light as a result of the reasons for decision of Murphy JA in the Court of Appeal. At all material times the appellant maintained his position without notice of the new issue identified by Murphy JA and, as a result, the respondent responded accordingly to the issues on the appeal in this jurisdiction.
Importantly, it was not a live issue in the appeal in the District Court, and therefore the issues argued on the appeal which grounded the taxation of costs order, and ultimately the certificate of taxation, were agitated without reference to it. In my opinion, on any view, the respondent should not be penalised by having his costs taken away in the manner proposed by the appellant (if this is possible) by reason of the circumstances of the matter and, the 'standing by' of the appellant by seeking to raise a new point at a later time in the litigation.
In any event, as canvassed in the course of submissions, the respondent has given an undertaking to the appellant not to seek to enforce the Magistrates Court orders of 14 October 2009. Therefore, it may be that on the hearing of the s 36 application in the Supreme Court, the court is moved not to deal with the matter because there is no live issue between the parties.
As mentioned, Principal Registrar Gething delivered his reasons for decision on 15 May 2013 with respect to the appellant's application seeking a suspension of the PSSO, pending resolution of taxation of the appellant's costs in APP 73.
On 28 May 2013, there was an application for liberty to apply by the appellant.
On 26 June 2013, the principal registrar wrote to the appellant to inform him of the procedural options open to him. I understand and infer this was the catalyst for, and basis upon which, the appellant filed the chamber summons before the court today.
The principal registrar in providing assistance to the appellant cannot, of course, give legal advice to the appellant. I note that the appellant appears at all material times to have been aided by retired legal counsel, and is today represented by Mr Garnsworthy, a senior and very experienced legal practitioner, on a pro bono basis. The court is grateful to Mr Garnsworthy for his assistance and for being prepared to act on this basis.
The parties in support of the chamber summons filed various documents. They include the affidavit in support of the appellant sworn on 8 August 2013, an affidavit in opposition sworn by the respondent on 10 September 2013, and an affidavit in reply sworn by the appellant on 17 September 2013. The respondent filed an outline of submissions dated 23 September 2013, and today the appellant filed a response to those submissions in writing dated 25 September 2013.
At the commencement of the hearing today, counsel for the appellant sought an adjournment in order to agitate the issue of jurisdiction on a further date. That application was not pressed, there having been a full discussion with counsel and between counsel on the issue of jurisdiction. In any event, if the matter had been delayed again, the costs of today would have been awarded against the appellant, incurring further costs between the parties. Having heard submissions, it seems to me that the issues can be dealt with today.
It is common ground between the parties, and I agree, that the District Court does not have inherent jurisdiction to set aside the allocatur signed by the taxing officer on 5 October 2012, thereby leaving open the taxation of costs arising out of the appeal.
A useful starting point and background to the general rules of costs can be found in the judgment of Murphy JA in Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155 at [62] ‑ [70]. Relevantly his Honour said:
62.The general rules as to costs are set out in div 1 of O 66 of the Rules of the Supreme Court. Order 66 r 4 sets out the taxing officer's powers. Division 2 of O 66 deals with the taxation of costs, commencing with O 66 r 32. By O 66 r 32(1), unless the court otherwise directs, bills of costs and fees shall be taxed, allowed and certified by the taxing officer who shall appoint a time for taxation on the application of the party claiming taxation. By O 66 r 42, a bill of costs is to be prepared so as to clearly show the particulars of the items being claimed with reference to the item in the scale to which it relates, as well as the dates of the items, particulars of the services charged for, disbursements and professional charges. By O 66 r 42(2), professional charges and disbursements are to be entered in separate columns and each column should be added before the bill is filed. By O 66 r 43, the decision of the taxing officer on all questions of fact is final. Division 3 of O 66 deals with the review of a taxation.
Objections to and review by taxing officer: O 66 rr 53, 54
63.By O 66 r 53, a party who contends that the taxing officer has 'made an error in principle' in allowing or disallowing an item (or part of an item) may, prior to the certificate of taxation dealing finally with that item being signed, deliver an objection in writing to the allowance or disallowance in question, and apply to the taxing officer to review the taxation in respect of the identified items or parts. An 'error of principle' may be raised under O 66 r 53 even if the issue the subject of the objection had not been raised and considered by the taxing officer at taxation: Altorfer & Stow (a firm) v Lindsay [2005] WASCA 73 [56].
64.By O 66 r 54, upon an application under O 66 r 53, the taxing officer shall consider and review the taxation in relation to the objections and may receive further evidence; if so required, he shall state the ground and reason for his decision on the objection. By O 66 r 54(3), the taxing officer may tax the costs of the objections and add them to or deduct them from any sum payable by or to a party to the taxation. By O 66 r 54(4), except as provided by r 54, the taxing officer shall not, after a certificate of taxation is signed, review his taxation or amend the certificate, except to correct a clerical or manifest error. By O 66 r 54(5), if a party fails to appear on the taxation, the taxing officer may, upon an application made in writing within seven days, set aside or vary his certificate of taxation on such terms as he thinks just.
Certificate and its effect
65.By O 66 r 57, the costs allowed by the taxing officer on an interim or final certificate of taxation is deemed to be a judgment of the court and recoverable accordingly. The certificate, sometimes referred to as the allocatur, signed by the registrar at the foot of the bill which has been taxed, is the certificate referred to in the rules, although the court can and will, if asked, sign and seal under O 43 a separate document as a certificate: Civil Procedure Western Australia [66.57.2].
66.The taxing officer is functus officio once he or she has signed the certificate of taxation: Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621, 624. See also O 66 r 54(4) and O 66 r 55(3).
Setting aside or revocation of the certificate
67.A certificate may be set aside in the court's inherent jurisdiction if it is proper to do so: Pryles & Defteros (a firm) v Green [1999] WASC 34; (1999) 20 WAR 541 [38]; Mossensons (a firm) v Coastline Associates (Unreported, WASC, Library No 970661, 2 December 1997) 9, (Ipp J with Pidgeon J agreeing). A relevant consideration will be the applicant's prospects of a successful review of taxation: Mossensons (a firm) v Coastline Associates (9).
68.The signing of a certificate or allocatur so soon after the completion of taxation so as to deprive a party of the opportunity to deliver objections in accordance with the rules of court (relevantly, O 66 r 53), is irregular and may be set aside: Australian Coal & Shale Employees' Federation v The Commonwealth (624); Pryles & Defteros (a firm) v Green [37].
69.Where the parties have proceeded with an objection under the rules despite the issue of a certificate or allocatur, the court may infer that the parties have consented to a revocation of the taxing officer's certificate: Australian Coal & Shale Employees' Federation v The Commonwealth (625).
Taxing officer's power to reopen
70.Apart altogether from O 66 r 55 (referred to in [71] - [74] below), the taxing officer has power to reopen his taxation, at any time prior to him signing the certificate, although in so doing the registrar should ensure that procedural fairness is afforded to the parties. Until the certificate is issued, the registrar has not completed the taxation of the bill: Australian Coal & Shale Employees' Federation v The Commonwealth (625).

This application is not concerned with review of a certificate of taxation by a judge pursuant to O 66 r 55 and what is meant by 'error in principle' for that purpose.
A number of authorities have been referred to with respect to the inherent jurisdiction of the court, including Pryles & Defteros (a firm) v Green [1999] WASC 34; (1999) 20 WAR 541 [38]. To the extent that some of these authorities refer to inherent jurisdiction and to the extent there is a discussion in Civil Procedure of Western Australia (vol 1) under O 66 r 55(5) that the court has inherent jurisdiction to set aside a taxation certificate, this must be understood on the basis that the authors are there concerned with the position of the Supreme Court of Western Australia.
Therefore, the inherent jurisdiction which appears to have been relied upon by the appellant in the materials filed in support of the application is not now relied upon. Instead, the appellant relies on the implied jurisdiction of the court as a basis upon which the orders sought in the summons can be made. The court has been taken again to a number of other jurisdictions with respect to implied jurisdiction of the court: see Pelechowski v The Registrar, Court of Appeal [1999] HCA 19 [47], [135]; Re, Landsal Pty Ltd (in Liq) & Ors v Rei Building Society, Now the Co-operative Building Society of South Australia [1993] FCA 121.
As to the implied jurisdiction of the District Court, Steytler J in Murcia & Associates (a firm) v Grey & Ors (2001) 21 WAR 209 said [16]:
However the supervisory or disciplinary jurisdiction referred to in these cases is that which is part of the inherent jurisdiction of the Supreme Court and it is to that court that solicitors are appointed as officers upon their admission to practice. The District Court does not have a like jurisdiction, although it does have incidental powers which are necessary for the exercise of such jurisdiction as is conferred upon it (see the definition of 'jurisdiction' in s 6 of the District Court of Western Australia Act 1969 and Grassby v The Queen (1989) 168 CLR 1 at 16), and those powers are sufficient, at least, to enable it to correct irregularities in, and frauds upon, its own procedure and rules and to prevent abuses of its process: see Mason v Ryan (at 340); Duncan v Lowenthal [1969] VR 180 at 182. It is unnecessary, for present purposes, to explore the full limits of those powers.
In my view the court has an implied jurisdiction which would give judges of the court and officers of the court power in certain circumstances to ensure that the mandate of the court set out in the District Court of Western Australia Act 1969 is adhered to. That Act sets out in s 6 a definition of the court's 'jurisdiction' to mean:
Includes all powers and authorities incidental to the exercise of jurisdiction.
It must be understood that there is a distinction between the court having jurisdiction vested in it to deal with a civil or a criminal matter. However, that is not the point in issue here. The point in issue is whether or not the court has an implied jurisdiction to set aside an allocatur signed on a bill of costs following a regular taxation of that bill of costs by a taxing officer of the court.
However, even accepting for the purpose of the argument that the court has an implied power to set aside a certificate of taxation, this is not a case where I am persuaded that the power should be exercised in favour of the appellant. There is not, in my view, a proper foundation or basis that would permit the court to exercise any implied jurisdiction (as opposed to inherent jurisdiction) that may exist in favour of the appellant (for example, as a result of some demonstrable fraud, mistake or a breach of natural justice).
It is common ground that the rules of court proscribe a procedure for a party dissatisfied with a taxation of costs whereby they can object, and have their objection considered and determined, before the allocatur is signed by the taxing officer. The procedure for objecting to the decision of a taxing officer, before the certificate is signed, is set out in O 66 r 53 of the Rules of the Supreme Court 1971. This rule, and therefore the procedure associated with it, applies in this jurisdiction.
In summary, O 66 r 53(1) provides that a party who contends that the taxing officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs may, at any time before a certificate of taxation dealing finally with that item is signed, or at such earlier time as may, in any case, be fixed by the taxing officer, deliver to the other party interested in the allowance or disallowance an objection. Thereupon the taxing officer is obliged to consider and determine the objection before signing the certificate of taxation. The primary obligation is to serve the notice of objection on the other party affected by the issue sought to be raised.
The written notice of objection which is required to be served on the affected party (and filed at the court) must specify 'by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objections': O66 r 53(1)(a). The application before the court did not condescend into particulars as to the basis upon which the purported objection was based. In broad terms, it seems the appellant objected to the quantum of the items proposed to be allowed and no precise error in principle was sought to be indentified.
These rules provide the starting point and, in particular, a specific rule which applies in the District Court to govern the procedure for a dissatisfied party who wishes to object and seek a review of the taxation of a bill of costs. In this case, as mentioned, the appellant attended on the taxation of the bill of costs and was informed and accepts he was told that he needed to provide an objection in writing by 2 June 2011 if he wished to exercise his right of review. No objection was served on the respondent within the time limited and none filed at the court or provided to the taxing officer.
The appellant says in the circumstances of this case where the right of review was not invoked in accordance with the requirements of the rules that, the court has implied jurisdiction, and therefore power, to set aside the signed allocatur by the taxing officer on 5 October 2012. The context in which the appellant says the jurisdiction should be exercised is the uncertainty as to what happened to his purported letter of 1 June 2011 and, in particular, it not being received by the taxing officer at any time, or in any event within the time limited under the rule, which was 2 June 2011.
The respondent says that the implied jurisdiction of the court to the extent that jurisdiction exists, does not permit the court to, in effect, override or rewrite the rules of the court with respect to its own procedure unilaterally because 'that is what is being sought in this particular case'.
I am not persuaded that the court has implied jurisdiction (assuming the court has power) in the circumstances of this matter to set aside the certificate of taxation, even accepting that the appellant's letter of 1 June 2011 was received by the court in the circumstances described by him (which I do not).
There is a clear requirement in O 66 r 53(1) that the objection in writing be delivered to the other interested party. It is beyond doubt that the appellant did not comply with that obligation at the relevant time. By this time, given the long procedural history of the matter in various jurisdictions, it is difficult to comprehend that the appellant would not have appreciated that procedural fairness would require him to give notice of his objection to his opponent, even if he was not aware of the express provisions of the rules. For the avoidance of doubt I also find that he did not deliver the proposed letter of objection to the court or the taxing officer before 2 June 2011 or at any relevant time before the application was filed on 8 August 2013 (over two years later).
In my view the rules in O 66 are proscribed as rules of the court to provide a clear process for the resolution of issues arising out of costs in legal proceedings. They clearly provide a process for review of any taxation and an opportunity for a dissatisfied party to be heard before the allocatur is signed closing out the process. I put it that way because O 66 r 55(3) provides that:
'The certificate of the Taxing Officer is final and conclusive as to all matters which have not been objected to in accordance with these rules.
In addition, O 66 r 54(4) provides that the taxing officer 'shall not, after a certificate of taxation is signed, review his taxation or amend his certificate, except to correct a clerical or manifest error before payment or process issued for recovery of the costs'.
As mentioned, a number of authorities have been referred to in relation to the issue of jurisdiction and I do not propose, in view of the time now, to go to those authorities except, in summary, to accept that as a judge of this court I do not have jurisdiction or power to simply override clear, plain and unambiguous rules of the court with respect to procedure which govern the relations between the parties to litigation.
If the court had the jurisdiction or power to make the orders sought, it is, in my view, quite properly accepted by counsel for the appellant that the usual considerations which apply to the exercise of a discretion where a party has not complied with the rules of court should apply. These include the need for an explanation for the delay on the part of the party in seeking the relief. They also, in my view, in this case, would involve a cursory consideration of the prospects of any review of the taxing officer's decision being in some way successful in a material sense, in other words, a consideration of the merits of the objection.
I expressed it that way because it seems to me, having regard to the bill of costs it is a very short and a simple bill of costs. Apparently the only issue the appellant seeks to raise is a review of items 3 and 4 on the bill of costs.
Item 3 is getting up the appeal for hearing which was allowed at $3,000. The maximum amount prescribed by the scale was $3,410 at the relevant time. Item 4 is the counsel fee on hearing, including preparation, which was allowed at $2,200. At the relevant time, I understand the maximum amount that could have been allowed was $6,820, and therefore for one day the maximum amount was $3,410.
It is not necessary to refer to the nature of the exercise of discretion by a taxing officer except to note that it obviously involves the exercise of a discretion having regard to all the relevant circumstances. It is a discretion which, on any view, would admit to in most taxations, a variance of opinion as to what is reasonable having regard to the work involved, the complexity of the work, and the scale amount. There is inbuilt in the exercise of the discretion a number of relevant considerations which would need to be borne in mind, making the exercise of discretion one which reasonable taxing officers will likely come to different views. Taxing a bill of costs is not a matter which is an exercise of mathematical precision, but rather, will result in a range of acceptable outcomes none of which can on their own be regarded as incorrect or wrong.
It is important that the procedural rules in this regard do provide for, and underline, the need for finality in litigation. By this stage of any curial proceedings, there is always a winner and a loser. Emotions are still, no doubt, present but the proceedings must come to a conclusion and all parties permitted to put the dispute behind them.
Having regard to the time when the letter of 1 June 2011 emerged in the context of this application, and it not having been said at any time before by the appellant, particularly in relation to the PSSO proceedings that there was an error of principle on the part of the taxing officer, and having regard to the circumstances set out in the affidavits, I am not persuaded that the delay has been adequately explained. I accept that there has been an appeal process to the Court of Appeal. But there has been a considerable period of time which has elapsed since those proceedings before the commencement of this application on 8 August 2013 which, with respect, given its genesis arising out of the s 36 application to the Supreme Court seems to be a last attempt by the appellant to avoid liability for the taxed costs set out in the certificate of taxation.
The application was filed on 8 August 2013 which is over 10 months after the allocatur was signed by the taxing officer, and clearly many months after the appellant commenced proceedings in January 2013 seeking to stay the execution of the PSS order.
I have given careful attention to the content of the appellant's letter dated 1 June 2011. It is not known from his affidavit whether or not this is the final version of the letter that he says he came to the court with the intention of filing. I say that because he has provided to the court email correspondence with his legal advisor at the time, asking him whether he had anything to add to it. That communication was sent on 1 June 2011 at 11.45 am. There is no response in the material before the court as to whether or not any changes should be made. It is therefore not known whether this is the final version, or whether there were any suggested changes to the letter.
In any event, in my view, the letter itself does not sufficiently comply with the requirement set out in O 66 r 53(1). As I read the content of the letter, there is an expressed dissatisfaction with the quantum of the taxed amount. It does not condescend by reference to the items expressly, or provide any details of particulars, as to why it is said there has been an error in principle by the taxing officer.
Mr Garnsworthy made oral submissions in this regard. But in my view, there was no attempt in the letter itself sufficient for the purpose of this application to identify a reasonable and meaningful basis upon which any review of the taxing officer's decision might result in a diminished amount.
In the letter, the appellant said:
I would respectfully ask that you review your decision or seek a second opinion to establish the fairness of these fees particularly as I'm hoping to have the District Court appeal judgments set aside.
As time has proved, the appellant was unsuccessful with respect to APP 74 of 2010 with which this matter is concerned.
It is, of course, moot at this point in time at least to the extent to which any review might result in a reduction of the sum of $5,200 which was allowed in respect of the two items sought to be challenged. I am not going to express any view about the reasonableness of the amount allowed because I am not in a position to do so, and nor is it appropriate for me to do so. However, even if the bill was reviewed by the taxing officer any reduction is likely to be a modest amount, if at all. Generally, a reviewing authority will not interfere with a taxing officer's assessment if the assessment is merely as to quantum, except in exceptional circumstances: Monitronix Ltd v Michael & Anor (1992) 7 WAR 197, 198.
I have taken into account the submissions of counsel today. I have had read the reasons for decision of her Honour Judge Wager, and can discern the issues that were the subject of APP 74 from that material. The only decision I am concerned with is whether or not there is sufficient material before the court to persuade the court that there is some prospect of the appellant being successful if a review is allowed. That threshold has not been reached, and I am far from being satisfied that there is any merit or real prospect of any review resulting in a material reduction of the bill of costs as taxed.
Moving to another consideration, if the court had jurisdiction and was persuaded in the exercise of its discretion to in some way set aside the allocatur and the bill of costs, it would have been a requirement in the usual way for the appellant to be held accountable for the costs thrown away by reason of his delay in bringing this application.
The period of delay with respect to the application is itself substantial given the other proceedings with respect to the property seizure and sale order which have and still continue to run along on the basis that the bill of costs is a lawful order of this court and can be enforced to that extent.
The respondent would, in my view, be required to recommence those proceedings if the bill of costs was reviewed irrespective of whether there was a reduction of the taxed amount, because the court would be required to act on the final bill of costs representing the order of this court.
In view of the decision I have come to, it is not necessary to make any such order that the appellant pay all the costs thrown away and incurred by the respondent (including the costs of the PSSO proceedings) as a result of the exercise of a discretion in his favour in this application.
I am not persuaded that there are any exceptional circumstances with respect to the taxation itself or to the matter generally that would warrant the allocatur being set aside, assuming the court has implied jurisdiction to do so in an appropriate case. This is not such a case.
For these reasons, I would dismiss the appellant's chamber summons of 8 August 2013. The appellant is to pay the respondents costs of the application, and any reserved costs, to be taxed unless agreed.