Kennedy v Sims Group Australia Holdings Ltd

[2014] WADC 142

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   KENNEDY -v- SIMS GROUP AUSTRALIA HOLDINGS LTD [2014] WADC 142

CORAM:   DEPUTY REGISTRAR KUBACZ

HEARD:   ON THE PAPERS

DELIVERED          :   17 OCTOBER 2014

FILE NO/S:   CIV 1245 of 2013

BETWEEN:   SEAN KENNEDY

Plaintiff

AND

SIMS GROUP AUSTRALIA HOLDINGS LTD
Defendant

Catchwords:

Review of taxation

Legislation:

Nil

Result:

Defendant's objections dismissed

Representation:

Counsel:

Plaintiff:     No appearance

Defendant:     No appearance

Solicitors:

Plaintiff:     Separovic Injury Lawyers

Defendant:     Gilchrist Connell

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

1. DEPUTY REGISTRAR KUBACZ:  The plaintiff applied for a taxation of the plaintiff's Bill of Costs for Taxation dated 22 July 2014 (Bill of Costs) pursuant to consent orders dated 29 August 2014.

2. On 16 September 2014 I taxed the Bill of Costs and allowed the sum of $37,523.08.  At the conclusion of the taxation, the defendant's solicitors objected to the signing of the allocator.  I allowed the defendant seven days to file and serve any objections in writing.

3. On 23 September 2014, the defendant filed written objections to the amount allowed for Item 17 'Getting up case for trial' on the grounds that:

   1.The plaintiff's solicitors conceded that most work in this item was performed by a paralegal;

   2.My initial comments were that about 45 hours of work at a paralegal rate would be an acceptable allowance;

   3.However, $18,040 was ultimately allowed for the item, representing 40 hours at a senior practitioner rate;

   4.The plaintiff's action is not attended with any complex legal or factual issues.  Substantial work was allowed for the in specific items of the Bill, leaving the general items to be covered in getting up case for trial as only liaising with two witnesses of fact, perusing two files of documents, liaising to obtain the plaintiff's Centrelink file, and taking instructions on the various evidentiary aspects of the claim;

   5.that a split of 35 hours paralegal hours and 10 hours senior practitioner hours is a more reasonable allowance for the work that would have been performed in relation to this item.

4. Given the submissions above, I allowed the plaintiff's solicitors an opportunity to provide submissions in response which I received on 1 October 2014.

5. In opposition to the defendant's application the plaintiff submitted that:

   1.the defendant's objections provide only subjective commentary;

   2.the objections lack any proper or specific grounds which point to an error in making the appropriate assessment; and

   3.no proper basis has been made out to justify any change in my ruling with respect to getting up case for trial.

6. In accordance with O 66 r 54 of the Rules of the Supreme Court 1971, I have reconsidered and reviewed my assessment.

7. Order 66 r 53 states that the only basis upon which a party can object and apply for a review of a taxation is if the 'party 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'.

8. In my opinion, the defendant's objections do not identify any error in principle in allowing the amount I did for 'getting the case up for trial'.  The defendant is objecting to my discretion in allowing $18,040 for the getting up item.

9. I do not recall the particulars of my comments throughout the taxation.  However, I did say that I was of the opinion that 40 hours for getting up was appropriate and I then applied the rate allowed in the relevant scale.  This was a discretionary decision after hearing the submissions of the parties.  My decision to allow 40 hours for 'getting up' does not constitute an error in principle on my part. 

10. I am of the opinion that the amount of $18,040, being an amount of 40 hours at the rate allowed by the scale is appropriate for getting up in this matter and is a substantial reduction in the amount claimed by the plaintiff.

11. I therefore dismiss the defendant's objections.

12. I affirm the amount taxed.

13. I sign the allocator in the amount of $37,523.08.