Kidner v Advantage Supermarkets Pty Ltd - [2001] WADC 30

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: KIDNER -v- ADVANTAGE SUPERMARKETS PTY LTD [2001] WADC 30

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 22 NOVEMBER 2000

DELIVERED : 22 FEBRUARY 2001

FILE NO/S: CIV 2055 of 1999

BETWEEN: DEBBIE ANNE KIDNER
Plaintiff
AND
ADVANTAGE SUPERMARKETS PTY LTD
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia - Review of Taxation of Costs

Legislation:

Legal Practitioners Act 1893

Rules of the Supreme Court of Western Australia

Result:

Review denied

Representation:

Counsel:

Plaintiff: Mr R D Curry
Defendant: Mr A Basile

Solicitors:

Plaintiff: Paul O'Halloran
Defendant: Pullinger Readhead Stewart

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

Bray v Ryan [1999] WADC 66
D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191

Case(s) also cited:

Joyce v Hutchinson & Anor [2000] WADC 42
Mossensons (A Firm) v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997

DEPUTY REGISTRAR HARMAN: In this action the plaintiff obtained judgement for costs and her bill of costs was taxed. The defendant has sought a review of the taxation of item 7 of the bill. It was presented as follows:

Description	Item No	Amount
Getting up, including opinion from counsel, Mr D Clyne	13	$10,500

The item was allowed and the quantum of fee for the item was determined at $10,500.
The defendant's objection is as follows:
"The Defendant submits that the scale of costs set out in the Fourth Schedule to the Supreme Court Rules contemplates that the Plaintiff must produce evidence as to:
(a)the time taken to complete each element of work comprising the getting up component;
(b)the person who completed that work (ie whether he was a senior or junior practitioner or a clerk);
(c)the actual work undertaken in getting up.
It is the Defendant’s submission that the Plaintiff did not produce any evidence on any of the above items, simply making submissions of a general nature.
In the circumstances, it is the Defendant's submission that there was insufficient evidence before the learned Registrar to enable him to make any reasonable determination of a getting up component and certainly, that he should not have allowed $10,500.00 towards getting up. At a rate of $270.00 an hour, $10,500.00 equates to in excess of 38 hours work from a senior practitioner.
In addition, the Defendant submits that obtaining an opinion from Counsel Mr D Clyne should not form part of the getting up component."
The jurisdiction provided to the taxing officer for the review of a determination made at taxation is provided by O 66 r 53, the relevant parts of which are as follows:
"(1)A party who contends 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 taxed by him may, at any time before a certificate of taxation finally dealing with that item is signed …"
It is evident from a plain reading of the rule that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kidner v Advantage Supermarkets Pty Ltd

Details

AGLC: Kidner v Advantage Supermarkets Pty Ltd [2001] WADC 30
Case: [2001] WADC 30
Decision Date

CaseChat Overview and Summary

The District Court of Western Australia in Perth heard an application by Debbie Anne Kidner against Advantage Supermarkets Pty Ltd concerning the taxation of costs. The plaintiff, Kidner, sought a review of the taxation of a particular item in her bill of costs. Specifically, the defendant, Advantage Supermarkets, objected to the allowance of $10,500 for "getting up, including opinion from counsel, Mr D Clyne," arguing that there was insufficient evidence to justify this amount. The defendant contended that the plaintiff did not provide details on the time taken, the person who completed the work, or the actual work undertaken. Additionally, the defendant argued that obtaining counsel's opinion should not form part of the "getting up" component.

The court had to determine whether the Deputy Registrar had jurisdiction to review the quantum of the fee allowed for "getting up" the case for trial and whether there was sufficient evidence to support the amount claimed. The court considered the Rules of the Supreme Court of Western Australia, which provide limited grounds for reviewing the taxation of costs. The court noted that the Rules distinguish between items and fees for those items, and that where an item is allowed in whole or in part, the next step is to determine the fee for that item.

In this case, the court found that there was no disallowance of any part of the services for which the plaintiff sought recovery, and therefore the objection did not relate to an item or part of an item. The court concluded that the Rules do not provide jurisdiction to review quantum determinations as they do not qualify as determinations as to an item or its constituent parts. The court also found that the plaintiff was entitled to recover for the part of the item "getting up case for trial" which involved a consideration of the evidence and quantum, including obtaining counsel's opinion, as these services are integral to getting up a case for trial.

The court denied the defendant's application for a review of the taxation of costs, holding that there was no error in principle in the Deputy Registrar's determination. The court emphasised that the process of taxation involves a consideration of what services and to what extent those services are reasonably provided, and that the taxing officer is entitled to make a determination based on general submissions regarding the complexity of the case and the extent of services provided. The court concluded that the defendant had failed to articulate any error in principle to the allowance of the relevant part of the item, and therefore there was no basis for review.

Orders