Kingston v Insurance Commission of Western Australia
[2008] WADC 124
•5 SEPTEMBER 2008 (Publication date: 5 September 2008; Judgment Delivered Extemporaneously on 15 August 2008 )
KINGSTON -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2008] WADC 124
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 124 | |
| 05/09/2008 | |||
| Case No: | CIV:384/2003 | 15 AUGUST 2008 | |
| Coram: | YEATS DCJ | 15/08/08 | |
| PERTH | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Objections upheld in respect of items 25, 27, 29 and 34 | ||
| PDF Version |
| Parties: | TREVOR WAYNE KINGSTON INSURANCE COMMISSION OF WESTERN AUSTRALIA |
Catchwords: | Review of taxation costs Senior practitioner attendance at trial Reduction of senior practitioner rate based on taxing officer's assessment of the complexity of the trial An error of principle. |
Legislation: | Rules of the Supreme Court 1971 |
Case References: | Abbotts Pty Ltd v Gel Group Pty Ltd [2007] WADC 151 Gloux v WMC Resources Ltd, unreported and unpublished; DCt of WA; (Blaxell DCJ) CIV 2645/1998; 23 April 2001 Grigoletto v Myer Properties WA Ltd; unreported; DCt of WA; Library No 3667; 31 March 1993 Joyce v Hutchinson & Anor [2000] WADC 42 Kingston v Insurance Commission of Western Australia [2008] WADC 53 Kingston v Insurance Commission of Western Australia [2007] WADC 216 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
PUBLISHED : 5 SEPTEMBER 2008 FILE NO/S : CIV 384 of 2003 BETWEEN : TREVOR WAYNE KINGSTON
- Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant
Catchwords:
Review of taxation costs - Senior practitioner attendance at trial - Reduction of senior practitioner rate based on taxing officer's assessment of the complexity of the trial - An error of principle.
Legislation:
Rules of the Supreme Court 1971
(Page 2)
Result:
Objections upheld in respect of items 25, 27, 29 and 34
Representation:
Counsel:
Plaintiff : Mr S V Forbes
Defendant : Mr P Sheavyn
Solicitors:
Plaintiff : S C Nigam & Co
Defendant : Talbot Olivier
Case(s) referred to in judgment(s):
Abbotts Pty Ltd v Gel Group Pty Ltd [2007] WADC 151
Gloux v WMC Resources Ltd, unreported and unpublished; DCt of WA; (Blaxell DCJ) CIV 2645/1998; 23 April 2001
Grigoletto v Myer Properties WA Ltd; unreported; DCt of WA; Library No 3667; 31 March 1993
Joyce v Hutchinson & Anor [2000] WADC 42
Kingston v Insurance Commission of Western Australia [2008] WADC 53
Kingston v Insurance Commission of Western Australia [2007] WADC 216
(Page 3)
1 YEATS DCJ: This is a review of taxation costs pursuant to O 66 r 55 RSC. The taxing officer has previously considered objections and has disallowed those objections (Kingston v Insurance Commission of Western Australia [2008] WADC 53). Those objections are the subject of this review.
2 In considering the review I may not allow an item disallowed by the taxation officer unless I am satisfied there has been an error of principle by the taxing officer. That rule is consistent with O 66 r 55(2) RSC.
3 The plaintiff seeks review of the taxation of items 25, 27, 29, 31 and 34 of his party/party bill of costs. It was taxed before Deputy Registrar Hewitt on 31 March 2008. All of the items the subject of this review relate to the attendance at trial of the plaintiff's solicitor. The facts in this case are not in dispute. The plaintiff's solicitor, a Mr N Lindsay, was in attendance at the trial for the amount of time claimed on the plaintiff's bill. Mr Lindsay is a senior practitioner within the definition of that term in the Legal Practitioners (Supreme Court) Contentious Business Determination 2006 ("the 2006 Determination"). Mr Lindsay was also the solicitor who had the conduct of this matter on behalf of the plaintiff. The plaintiff's solicitors are a small law practice and do not employ any junior solicitors in the personal injury area. It would not have been possible for the plaintiff's solicitors to substitute a junior practitioner to attend trial.
4 The allowances made by the taxing officer were less than the rate for a senior practitioner attending trial. He allowed $253 an hour, which is the junior practitioner rate. In his reasons the taxing officer accepted that the claim for attendance by the plaintiff's solicitor was properly made. However, in arriving at the allowance of $253 an hour, the taxing officer took into account his opinion concerning the trial; he did not believe it imposed any particular demands on the skills and expertise of the solicitor in attendance.
5 The plaintiff submits that the approach taken by the taxing officer of analysing the demands on or part played by the plaintiff's solicitor at trial and then reducing the amount payable to the solicitor in the particular circumstances, is an error in principle that I can deal with during this review. In support of those contentions, the plaintiff relies on a number of authorities. It is clear from those authorities that in the District Court there are two taxing officers and each take opposing views about the costs incurred when an instructing senior practitioner attends for trial.
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6 The taxing officer whose decision was reviewed in this case takes the view that he has a discretion because the amount allowed - $363 per hour for a senior practitioner in par 8.2 of the 2006 Determination – is a maximum amount. He believes he is required to look to see whether the particular case and the circumstances of the case justified the actual attendance of a senior practitioner and whether the skills of a senior practitioner were actually needed. All of that is set out quite clearly in the reasons of the taxing officer [2008] WADC 53 at [9]:
"In the present case I did not perceive any part of this trial as imposing any particular demands on the skill and expertise of the solicitor in attendance."
- On that basis he believed he was not bound to allow the rate for a senior practitioner but could reduce that rate.
7 The plaintiff relies on an early judgment of Judge Blaxell (as he then was) in an unreported decision in Gloux v WMC Resources Ltd, unreported and unpublished; DCt of WA; (Blaxell DCJ) CIV 2645/1998; 23 April 2001 In that case Judge Blaxell reviewed a decision in which the taxing officer had allowed the full rate for a senior practitioner on the first day of the trial and then reduced that rate on the second and subsequent days. The amount was reduced from $270, which was the rate at the time, to $180 per hour for subsequent days on the basis that the demands upon the solicitor were highest on the first day and thereafter diminished considerably. Judge Blaxell said at p 5.
"… once there is a determination that it was necessary for the solicitor to be present at the subsequent days of the trial, given that he was the person who was fully seized of the matter, was the person who had the handling of the matter, then the fact that he is a senior practitioner is something which cannot be avoided. It is not the situation where it is possible to substitute a junior solicitor at short notice."
8 Judge Blaxell went on to say at p 6:
"In my view, in those circumstances from the plaintiff's point of view, there was no other option but to have that particular solicitor present, who was a senior solicitor, and, as I have indicated, I think I can take notice of the fact that it is a senior solicitor from a small practice, and, in my view, it is appropriate in those circumstances that there should be an allowance of $270 per hour. In my view, the failure to give the allowance at
(Page 5)
- that rate was an error of principle, so I intend to uphold the objections in the respective items 28 to 36."
9 This issue has not been determined in a published judgment by any other Judge of this Court. But in the decision of her Honour Judge Wager in Abbotts Pty Ltd v Gel Group Pty Ltd [2007] WADC 151 her Honour reviewed a decision by another taxing officer who had upheld the full fee for a senior practitioner attending trial. It was contended in that case that the issues were not complex, there were few documents and the full fee was not necessary. The taxing officer had held that it would be inappropriate for the taxing officer to have looked behind the attendance at trial and inappropriate to have looked at the level of work that was done. Her Honour Judge Wager at [28] did not discuss the issue but found that the taxing officer had made no error in principle in relation to the allowance for that item because his conclusion that it is appropriate for a solicitor familiar with the matter to be present at trial is, in the circumstances, not unreasonable.
10 It is important to remember, of course, in taxation matters, the question is whether the costs taxed are necessary and reasonable. That term "reasonableness" was used again by his Honour Judge Groves in a decision that the defendant has referred me to Joyce v Hutchinson & Anor [2000] WADC 42 at [25] and [26]. Judge Groves said in the end result he was not persuaded that the taxing officer was acting unreasonably. He went on to say that accordingly, in his view, no error of principle was revealed which justified interference. But the appropriate costs allowed for an attending senior practitioner were not considered in Joyce's case.
11 The defendant contends in this case that the position taken by the plaintiff would remove any discretion from the taxing officer. The defendant relies on the 2006 Determination as clearly fixing what it says is the "maximum amount". The maximum allowable hourly and daily rates are set out (see cl 8 of the 2006 Determination). The defendant submits that to follow the line that once a solicitor is required the taxing officer has no discretion other than to award the maximum would be an error. The defendant submits that the approach taken by the taxing officer in this case when he looked at what was actually required in the case, what the complexities were in the case, and reduced the maximum amount to what was considered a reasonable amount, was the proper exercise of the taxing officer's discretion.
(Page 6)
12 The defendant suggested that not every case requires a senior practitioner. He noted that, in his submission, the rate for a senior solicitor should not be greater than that of counsel. It is true that in the 2006 Determination the hourly rate for counsel is $286 whereas the senior practitioner rate for attendance at trial is $363 per hour. But as counsel for the plaintiff has properly informed me, counsel's rate does not include the allowance for the number of hours of getting up the case for trial. The daily rate for counsel would extend over a 10 hour period and not merely the few hours that are spent in court.
13 I believe that the method by which a taxing officer determines the amount to allow for the attendance of an instructing solicitor is a matter of principle. If the taxing officer has taken into account matters that were irrelevant or matters that should not have been considered, then there would be an error of principle which would entitle me to intervene on review. In this case I uphold this review. I do not do so on the basis of my opinion that this was a very complex case. I was the trial Judge and I know that a large number of issues arose and a large number of witnesses were called in relation to the damages that could be paid to the plaintiffs. The complexity is apparent and the issues are set out in my judgment (Kingston v Insurance Commission of Western Australia [2007] WADC 216).
14 I uphold this review on the basis that the senior practitioner was the person who was knowledgeable about the plaintiff's claim and needed to be present to provide instructions to counsel when and if those instructions were needed. It is not to the point to say because of preparation and because of what was done or what had gone on before trial that little instruction was needed. When a senior practitioner who is apprised of the case, who understands the case and is required in court to instruct counsel the senior practitioner rate should not be reduced based on the taxing officer's assessment of the difficulty of the work.
15 In Grigoletto v Myer Properties WA Ltd; unreported; DCt of WA; Library No 3667; 31 March 1993 Heenan CJ considered a case where the solicitor's fee for trial attendance had been reduced by a proportion of the length of the trial and commented on, "the desirability of ensuring, if it can reasonably be achieved, that the solicitor who has had the conduct of the matter prior to trial will be present at trial". I agree with Heenan CJ's comment. It is very import to ensure the court's time is not wasted. Instructing solicitors need to be present and able to provide instructions so that there are no delays or adjournments in the course of trial. An
(Page 7)
- instructing solicitor's role at trial of a complex personal injuries action for damages is an important role. That assistance to counsel is vital.
16 It would not be reasonable for a plaintiff to be denied the benefit of the person who could best instruct counsel. Nor should payment be reduced simply because a senior practitioner is the appropriate person and no other is available. I adopt with respect the reasoning of his Honour Judge Blaxell (as he then was) in the Gloux case in 1998. In my view the failure to give the full senior practitioner allowance to the senior practitioner required in this case was an error of principle.
17 Therefore the taxation of items 25, 27, 29, 31 and 34 in the plaintiff's party/party bill of costs is reviewed and set aside. The amounts claimed in the plaintiff's bill are allowed as claimed.
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