Kearns by his next friend John Kearns v Donaldson - [1999] WADC 95

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: KEARNS by his next friend JOHN KEARNS -v- DONALDSON [1999] WADC 95

CORAM: KENNEDY DCJ

HEARD: 17 SEPTEMBER 1999

DELIVERED : Delivered Extemporaneously on 17 SEPTEMBER 1999 typed from tape and edited by Trial Judge.

FILE NO/S: CIV 3337 of 1993

BETWEEN: SAMUEL FRANCIS KEARNS by his next friend JOHN KEARNS
Plaintiff
AND
BARRY KEITH DONALDSON
Defendant

Catchwords:

Costs - Review of taxation - Decided on its own facts.

Legislation:

Supreme Court Act and Rules

Result:

Notice of motion for review of taxation dismissed.

Representation:

Counsel:

Plaintiff: Mr C H Edwards
Defendant: Mr P Sheavyn

Solicitors:

Plaintiff: A C Thorpe
Defendant: Talbot & Olivier

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

Nil

Case(s) also cited:

Calderbank v Calderbank [1973] 2 All ER 333
Coyne v Citizen Finance Limited, unreported; SCt of WA; Library No 8496; 20 September 1990
State Planning Commission v Another v Della Vedora & Others (1992) 7 WAR 81

KENNEDY DCJ : I have before me a notice of motion for review of taxation. The action itself commenced in June 1993 and settled subject to the approval of compromise on behalf of the plaintiff on 26 July 1994 in the sum of $55,000.
Thereafter the plaintiff applied to the Court for approval of the proposed compromise and the approval was granted by order of 20 January 1995. Amongst the orders made on that day was an order that the defendant do pay the plaintiff's costs including counsel's fees for the opinion to be taxed if not agreed.
Pursuant to that order the plaintiff filed a bill of costs for taxation on 11 February 1999 and that bill came before Registrar Hewitt for taxation on 13 April 1999. Certain amounts were deducted by the taxing officer and an objection was brought and that was dealt with by Mr Hewitt.
There are a number of matters he dealt with that have not come before me but on the notice of motion for review of taxation, what has been said is that the taxing officer erred in principle in disallowing any amount for preparing the bill, attending and taxation and the fee payable on filing the bill. This really relates to a series of letters between the parties.
On 2 August 1996 the State Government Insurance Commission sent to the plaintiff's solicitors a cheque for the sum of $5,517.20 and said that it was, "being agreed costs in this matter." On 12 August 1996 Thorpes wrote back and said:
"We have no record of 'agreeing' in the sum of $5,517.20. Our file reveals that we sought $7,000 inclusive of disbursements and that you requested particulars of those disbursements and subsequently the amount of our disbursements was reduced by approximately $300.00. That would bring the amount of our claim down to $6,700. If we are wrong in that regard we would be grateful if you would advise of the particulars of the agreement you say was reached."
The State Government Insurance Commission responded on 23 August 1996 saying:
"There appears to have been a misunderstanding here as the writer was under the impression that costs were agreed at $4,500 plus disbursements.
We suggest you prepare a bill of costs and lodge it with the District Court for taxation purposes."
I am told from the bar table that $4,500 plus disbursements is in fact the $5,517.20 that was indeed sent and that when the $5,517.20 was sent, the Insurance Commission believed that what it was sending was $4,500 plus disbursements. When it appeared that was not acceptable, they have said:
"We suggest you prepare a bill of costs and lodge it with the District Court for taxation purposes."
Nothing then happened for nearly 12 months and the money was not returned. There was other correspondence but not in relation to this. There was no demand for the return of the money but then a draft bill of costs was sent along. At that stage the matter was referred back to Talbot and Olivier who said that they would attend the taxation and could they please have the $5,517.20 back. On 26 August they again asked for the money back.
What happened next was that they received from Thorpes a photocopy of their letter of 26 August 1997 in which they had asked for the money back. On the foot of that was written one word, "Why?" with what appears to be Mr Thorpe's initial.
When the bill came to be taxed, it taxed at $4,734.20 and that was after the amount for preparing the bill, attending taxation and the fee payable on the bill was deducted. The Registrar then said, "You have recovered less on the taxation than was offered and therefore you cannot have those fees."
Before me what is argued is, firstly, there was no offer to settle on this basis and, secondly, if you add the interest in, then in fact it would be more. I am not altogether confident, even if their figures are correct, that you can add the money in. I would not be as critical of the plaintiff's solicitor as it might be thought the Registrar was. I do not believe it is as clear as the Registrar thought it was but I certainly do think there is sufficient basis for the Registrar to exercise his discretion in the way in which he did.
I say that because of the state of this correspondence, and it is that the sum of $5,517.20 is sent to them so that Thorpes actually have the money in their trust account.
They then write back and say, "No. That is not the agreement," which is a very reasonable letter if they considered that they were entitled to more money, but what then happened on 23 August 1996, is that the State Government Insurance solicitors write back and say in effect, "There must have been a misunderstanding then. We thought that money we sent you was what was agreed and we suggest you do a bill of costs", but then Thorpes did nothing further.
I accept what has been said to me from the bar table by the defendant, that it was a reasonable assessment that because nothing further was heard, that the exchange of correspondence had disposed of this issue and the money was going to be accepted.
These are matters that are better settled. It could reasonably have been settled on that basis. It is implicit there that there is an offer, implicit that money is left on the table and it is left on the table until the defendant gets the bill of costs. As soon as the bill of costs comes in, they realise that it is not going to be accepted and they ask for the money back and they do not get it. The response then is less than satisfactory but I take Mr Edward's point, that that is really not relevant to these proceedings generally.
In the circumstances, given the discretion the Registrar had and given the way in which this matter went, the three things that are of significance are that the cheque was sent; that when the defendants wrote back on 23 August 1996 they do not ask for the money back. They reiterate that they thought the agreement was for that amount of money and they did not ask for the money back until they received the draft bill of costs.
In the circumstances I uphold the Registrar's decision and the notice of motion for review of taxation is dismissed.