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 it was intended that the scope for review was to be limited. The first task in dealing with any application which seeks to engage an exercise of limited jurisdiction is to establish the existence of jurisdiction to deal with the application on its merits.
The Rules distinguish items (or parts of items) and fees for those items. It follows that in the process of taxation of an item the first step is to consider whether the services provided to the party and which relate to that item ought to be allowed.
In this case there was no disallowance of any part of the services for which the plaintiff sought recovery. There were no submissions to the effect that there be any such disallowance. Where an item is allowed in whole or in part the second step to be taken in the taxation is to determine the fee for that item or part item.
It is evident that judges of this Court in finding jurisdiction under r 55 for judicial review would prefer to follow rules which allow for more comprehensive review and case law emanating from those other jurisdictions. That is despite the fact that whereas in other jurisdictions the course of amendment of the relevant rule has been to a more broadly framed rule, in this jurisdiction the only amendment has been to tighten the scope of review by providing that necessity for the error to be one which engages principle. That is their prerogative. It is my determination that r 53 does not provide jurisdiction to review quantum determinations as they do not qualify as determinations as to an item or its constituent parts. That is not to suggest that there is no scope for error.
In the course of dealing with another aspect of this case I was referred to the reasons of Commissioner Reynolds in Bray v Ryan [1999] WADC 66. I note that the issue of jurisdiction was also canvassed in that case. His relevant comments at par 14 are as follows:
"… In my opinion the approach taken on the taxation did not enable the defendant to identify in an objection any particular service provided to the plaintiff which formed part of the item getting up case for trial. This must be so because the services actually provided to the plaintiff were not identified and considered at the taxation."
Evidently the Commissioner did not appreciate that in this jurisdiction, but for one caveat taxation under the "old" and "new" scales is conducted on the basis that broadly speaking the nature of the action and its relative complexity will determine not only the services and the extent to which those services are properly and necessarily provided but also the quantum of the fee which is recoverable for those services on a party and party basis. That caveat is that it is of course open to the taxing party to draw to the attention of the taxing officer some special feature of the case that would not otherwise be apparent. The adverse party would then have the opportunity to contend that such services ought to be disallowed. In such a case the taxing officer would be called upon to determine whether those part items be either allowed or disallowed. In my opinion it is only then that either party would have the prospect of raising any objection. It is not necessary to make discrete findings that by the provision of particular services the taxing party has complied with particular obligations imposed by the Rules or has accumulated or sought to accumulate sufficient evidence to make out the pleaded case or attack that of its opponent.
The defendant's objection raises two grounds of review. The first relates to a determination for which there is no jurisdiction to review. The second relates to the allowance of that part of the claim that relates to obtaining counsel's opinion. As to that ground, there is jurisdiction.
It appears that an opinion was sought from counsel by the plaintiff's solicitor in relation to the evidence and quantum. To reflect upon the evidence and to consider the quantum of the claim are integral parts of the service provided to a party in getting up a case for trial, indeed they lie at the very heart of that service.
Order 66 r 11 (4) provides as follows:
"Subject to the provisions of this Order, and to any order made by the Court and the terms of any relevant scale, the fees prescribed by any relevant scale cover all work done, whether by the solicitor or by counsel."
It follows that the plaintiff is entitled to recover from the defendant for that part of the item "getting up case for trial" which involved a consideration of the evidence and quantum of the claim. It is utterly irrelevant whether that service was provided to the plaintiff either with or without the assistance of counsel.
This is not a case where the plaintiff has made what would be an inappropriate claim for counsel's fee, she simply brought the fact of counsel's involvement to the taxing officer's attention. Strictly speaking it was not necessary to do so in the bill but it was not inappropriate to do so.
The terms of the relevant objection do not specify why it is the case that assessing the evidence and the quantum of the claim should not form part of getting up the case for trial. The onus is on the defendant; it is required by rule to specify the grounds and reasons for the objection. It has not done so. It has failed to articulate any error in principle to the allowance of the relevant part of the item. There is no basis for review.
I appreciate that the defendant may be successful in obtaining review of the quantum determination under r 55. That being so I will outline the considerations which bear upon the quantum determination which would appear to relate to the grounds of the defendant's objection. Broadly speaking the objection goes to the process by which the quantum determination was made. By the terms of the objection the defendant proposes how it is that the taxing officer ought to approach the task of determining quantum.
Taxation proceeded under the Supreme Court Scale of Costs. That scale was published as part of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996.
That scale and the Rules determine the process of taxation. The scale identifies the relevant item as getting up case for trial and provides that the maximum for that item is $27,000.
In the context of taxation there is a distinction properly drawn between the determination of the Costs Committee and the use of the scale contained in its determination. That distinction is founded upon O 66 r 11 of the Rules of the Supreme Court, the relevant parts of which are as follows:
"(1)For the purposes of this Order -
any relevant scale means any scale regulating the remuneration of practitioners admitted to practice under the Legal Practitioners Act 1893 in or for the purposes of proceedings before the Court.
(2)Except for when otherwise ordered, solicitors are, subject to these Rules, entitled to charge and be allowed the fees set forth in any relevant scale in respect of the matters referred to in that scale and higher fees shall not be allowed in any case, except such as are by this Order otherwise provided for.
(3)Subject to the provisions of the Legal Practitioners Act 1893, permitting a solicitor to make a written agreement as to costs with his client, and to the provisions of these Rules, the fees allowed under any relevant scale shall apply …"
In the reasons for decision of Commissioner Reynolds in Bray v Ryan he determined that "any relevant scale" is somehow a reference to not only the scale but also to the determination of which the scale is a part. It would appear that such an interpretation depends upon an assessment that the scale cannot be used properly without due regard to the balance of the determination. Unfortunately the Commissioner does not explain why that should be the case, particularly in light of the fact that the case directly engaged the issue. In my opinion the wording of O 66 r 11(1) could not be clearer. For what it is worth, it is evident that the Committee distinguished the scale from the balance of its determination.
The Commissioner also draws upon s 58W of the Legal Practitioners Act 1893, the relevant parts of which would appear to be as follows:
"(1)The Legal Costs Committee may make determinations regulating the remuneration of practitioners in respect of -
(a)      …
(b)contentious business carried out by practitioners in or for the purposes of proceedings before –
(i)    the Supreme Court;
(ii)   the District Court;
…"
I cannot see anything in that provision which promotes the interpretation advanced.
The furthest point I can reach in following that analysis is that the text that precedes the Committee’s determinations expressed in the form of the Supreme Court Scale of Costs constitutes a determination under the relevant statutory provision. It does not constitute a scale for the purposes of the rule.
The Commissioner then went on to state at par 37 that part of the process of taxation involved an assessment of a reasonable fee founded upon what are said to be the underlying principles of the Committee's determination. I do have some difficulty with the two propositions implicit in par 37 that the process of taxation is the same as the process of "fixing" the scale and that those processes have "principles" in common.
Clause 6(4) of the Committee's determination sets out the process by which it determined the maximum recoverable under the scale as follows:
"The new scale of costs set out in the Schedule reflects the fact that the costs of legal services provided in relation to Supreme Court and District Court actions are in the main calculated by reference to the time reasonably spent in the provision of those services and by applying to that time a reasonable hourly rate, that rate varying according to the seniority and experience of the practitioner and the complexity of the work."
It is evident that the Committee followed the formula in setting the scale maximum for the item. That can be determined as the Committee did as it proposed it would in cl 7 and provided the Court with the basis to determine whether in a particular class of case it would allow for above-scale recovery. As I have already indicated the nature of the particular case and its relative complexity are the important features of the process of taxation. One would hope that there was a prospect which would allow for comparison between the result of taxation in different cases, however that is as close as the process becomes to determining an arbitrary standard which applies to all. In making an assessment of what is a reasonable level of recovery the taxing officer would have no particular interest in considering how that maximum had been calculated.
Perhaps the Commissioner was confused by the evident confusion of the Committee expressed in two of the three examples given at cl 7(3) and cl 7(4) of its determination. It appears to have considered that the first at cl 7(3) and that in cl 7(4) represent illustrations of orders being sought for above-scale recovery. Neither engages that prospect.
The detail contained in the columns headed "Time" and "Fee earner" which are expressed to relate to some items of the scale, as the determination itself indicates, provides some transparency to the Committee's relevant determinations particularly for the benefit of the Court in considering a particular class of application under O 66 r 12.
The terms of the defendant's objection illustrate that to focus upon the process engaged in by the Committee in the context of taxation would lead to an exhaustive analysis of services provided by the taxing party. Such a process would be contrary to the cautionary comments of Ipp J in D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191 and to the Committee’s determination at cl 6(3) both of which the Commissioner referred to at par 41.
The defendant proposes that the scale contemplates that the taxing party must produce evidence as to the work actually undertaken, the time devoted to each element of the process and the designation of the provider.
As to the first point (actually point (c) of the terms of objection), I would not have been able to proceed to assess quantum without a sufficient grasp of the work actually undertaken. On reflection it is a curious point for the adverse party to raise. I have not noted and do not recall that there was any dispute as to the identity of the service provider. I would stand corrected but to the best of my memory a practitioner of some experience provided all the services, as I recall, either Mr O'Halloran or Mr Goldstein.
As to the second point, it is the case that I would have had little or no interest in the time taken by the service provider to deliver the relevant services. There was no order in place that bound the defendant to any assessment made by the plaintiff's solicitors as to the time devoted to such provision. To have received such information would have invited not only a detailed analysis of the time spent but also a detailed analysis of the services provided. Neither would have served any useful purpose but would have extended the time taken to tax the bill many-fold.
At that point it is appropriate to consider that there is distinction properly drawn between an assessment of the value of the services provided in getting up the case for trial and a process of examination of each letter and telephone conversation which may be recorded on a solicitor's file.
There is a popular perception that the services associated with getting up the case for trial are all those services that are not covered by the other items in the scale. It appears to follow from that perception that recovery is available for each item of correspondence, telephone call, perusal and the like. Thus, in the comprehension of those who make that submission there would be recovery for each such item or alternatively, their totality. An assessment of getting up for trial has not followed that course for quite some time.
The fact that evidence of a communication exists does not mean that it should be accorded the status of a service properly considered to be part of getting up the case for trial. Getting up a case for trial is a process, the features of which are identified by the need to comply with the Court's requirements and the need to address the allegations of material fact. The fact that myriad incidental or administrative communications may have occurred is of little or no significance and is properly rewarded accordingly. In considering such communications a useful datum is to consider the process to which the communication was directed and how that process was advanced by that communication.
It is appropriate to refer to the comments of Ipp J in D'Alessandro & D'Angelo v Bouloudas at 223, which despite the change in the maxima in the scale are still relevant. He considered that it was unnecessary and undesirable to present a bill containing references to each item of work. He recognised that would lead to a time consuming and expensive taxation. He stated that it was sufficient for the bill to reflect the costs calculated and identified in terms of the scale and that at taxation the parties could make submissions as to quantum.
Although consideration may be given to the amount of time devoted to the provision of relevant services in my opinion that feature of the process is of little consequence. That is the case as there is no objective measure of the time actually spent by a practitioner in the delivery of relevant services. The fact that time so spent has been recorded by the service provider would hardly satisfy the reasonable expectation of the paying party that the amount of time actually spent be capable of objective verification.
There are items in the scale, the fees for which are expressed to be time rated. But for one exception those items relate to services provided in the presence of the adverse party. Accordingly at taxation that party would have the opportunity to make submissions as to any perceived lack of efficiency and wasted time. The exception is in the form of a more recent amendment to the scale that allows for the costs of preparing for taxation. I may be wrong but I suspect that the Committee did not understand what it was doing in making that determination. In contrast when a solicitor is proofing a witness neither the paying party nor the taxing officer has any idea how much time was actually devoted to the provision of the service.
Ultimately regardless of methodology the process of taxation must involve a consideration of what services and to what extent those services are reasonably provided. If the time spent in the delivery of services is to be the important consideration in the process of taxation, the taxing officer would need to either reconstruct and enter into myriad factual contexts, one for each part of the process of getting up the case or simply take a somewhat more artificial overview based upon general submissions. In either event the taxing officer would have little interest in the amount of time the practitioner considered to have been devoted to the process.

It follows that it is my opinion that the columns dealing with time and practitioner, despite being part of the scale, have no part to play in the process of taxation. Rather, as expressed in subclauses 7(1) and (2), they too relate to the basis upon which the Committee "fixed the scale" and provide data by which a judge may make an assessment for the purpose of considering the exercise of discretion under O 66 r 12. Such a determination is akin to the process of "fixing the scale" in that it would set an above-scale maximum. Such a determination is utterly different to the process of taxation which involves a consideration of what portion of that maximum is recoverable alternatively where the case lies in the range $1 to the maximum scale fee.
Clause 6(3) of the Committee's determination concludes with the words:
" … the Committee considers that there should not be a return to a scale which produces a bill containing numerous small items."
Those words illustrate that the Committee considered an alternative to the all-embracing item "getting up case for trial" and rejected it. I would understand that the Committee's comment could be expected to influence the drawing of the bill and thereby the process of taxation. The determinations made by taxing officers under scales that do not contain numerous small items have ultimately been made after submissions of a relatively general nature and on the basis of what is considered to be reasonable in accordance with the scale. I do not detect that there is anything in either the determination or the relevant parts of the scale that would suggest a departure from that methodology.
There is absolutely nothing to be gained from paying any attention to the amount of time actually devoted to face-to-face contact between the solicitor and the client. That analysis was not relevant for the purposes of the old scale and neither is it appropriate for the purposes for the new scale.
In my opinion there is nothing inappropriate in allowing for the taxing party to make submissions of a general nature in relation to the complexity of the case, any particular difficulties relating to aspects of the case, the extent to which services were provided and the extent to which the action proceeded. Once that information has been provided subject to any contest in relation to the features of the case, as provided by the adverse party, the taxing officer is in a position to consider where the case properly lies within the range established by the scale. It is by that process that a determination is made as to what is a reasonable fee for the component services which make up the claim for getting up the case for trial. Even if the appropriate course to follow was as the Committee suggests in its determination and which the defendant evidently urges upon me, at the end of the analysis after an exhaustive examination of time actually devoted to each item of correspondence I would be left with a figure which represents time spent translated into dollars. The next step in the process would be to determine whether there should be some adjustment to reflect what the complexity of the case would warrant. At that point the exhaustive analysis of the services actually provided would effectively become irrelevant, the taxing officer during the course of that exhaustive analysis would have had the opportunity to formulate his own view as to the complexity of the case and the need for particular services and any evaluation of what was a reasonable fee for the services of getting up the case for trial would be determined upon that overview.
The overview is exactly the same as the overview that was a feature of taxation under the old scale. In effect nothing has changed.