Kingston v Insurance Commission of Western Australia - [2008] WADC 53

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KINGSTON -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2008] WADC 53

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 9 APRIL 2008

DELIVERED : 17 APRIL 2008

FILE NO/S: CIV 384 of 2003

BETWEEN: TREVOR WAYNE KINGSTON
Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant

Catchwords:

Practice and procedure - Western Australia - Review of taxation of costs - Costs of solicitor attending trial

Legislation:

Nil

Result:

Objection not allowed

Representation:

Counsel:

Plaintiff: No appearance
Defendant: No appearance

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
Abbotts Pty Ltd v Gel Group Pty Ltd [2007] WADC 92
Marcel Jean Marie Gloux v WMC Resources Ltd, unreported; DCt of WA; Library No 2645 of 1998; 23 April 2001

DEPUTY REGISTRAR HEWITT: On 17 December 2007 this Court delivered a judgment in favour of the plaintiff in these proceedings and ordered the defendant to pay his costs in relation to the action. Pursuant to that judgment the plaintiff lodged a bill of costs for taxation which came before me on 31 March 2008.
Within the bill was a succession of claims for solicitor attending trial. I made a significant reduction from each of the claims under that heading for each of the days of the trial and against that ruling the plaintiff now objects.
The grounds of objection are as follows:
"5.The Registrar allowed the items for the solicitor's attendance at the trial at the rate applicable to a junior practitioner, that is, $250 per hour.
6.It was not in dispute that the practitioner who attended the trial on behalf of the plaintiff was a senior practitioner, Mr N Lindsay. The amount of time spent attending trial was, likewise, not in dispute.
7.The taxing officer, in making the allowance, did so on the basis that he regarded the demands on the practitioner as not being particularly high and that the rate applicable to a junior practitioner was therefore enough.
8.In making the allowance the taxing officer must necessarily have come to the view that it was appropriate for the plaintiff's solicitor to be in attendance at the trail to brief counsel.
9.It was in dispute that Mr Lindsay was, at the time, the person who was fully seized of the matter and was the person had the handling of the matter.
10.It is therefore submitted that the taxing officer erred in:
a.not having regard for the fact that it would not have been possible for the plaintiff's solicitors to substitute a junior practitioner at short notice;
b.not having regard for the fact that the plaintiff's solicitors are a small practice and do not employ any junior solicitor's;
c.not having regard for the provisions of item 19(e) of the Legal Practitioners (Supreme Court) (Contentious Business) Report and Determination 2006 which shows "SP" as the appropriate fee earner;
d.failing to have regard for the decision of Judge Blaxell in Marcell Jean Marie Gloux v. WMC Resources Ltd, District Court of Western Australia, mater no. 2645 of 1998, unreported, delivered on 23 April 2001;
e.carrying out an analysis of the part played by the solicitor at trial in considering the appropriate allowance, contrary to the decisions in Abbott's Pty Ltd v. Gel Group Pty Ltd [2007] WADC 92 at para 20 and Abbott's Pty Ltd v. Gel Group Pty Ltd [2007] WADC 151 at para 28."
The gist of the objection appears to be that if a senior practitioner attends a trial to support counsel he must therefore be entitled to the maximum rate which is payable to a senior practitioner irrespective of the nature of the tasks with which he is charged or their difficulty. It is said on behalf of the objector that I should have regard to the structure of the office in which the senior practitioner was employed and that should propel me to the conclusion that it is appropriate to allow the maximum.
I propose to first answer the objection in a general way. The current maximum rate for a senior practitioner is $362 and that rate is set by the Determination contained in the scale gazetted on 27 June 2006. That scale operated as an amendment to the previous Determination, namely that brought in in 2004. In par 5 of the 2004 Determination, the Costs Committee had this to say:
"Maximum hourly and daily rates
1.The hourly and daily rate set out unto the table to this clause are the maximum hourly and daily rates inclusive of GST which the Legal Costs Committee determines shall be used to calculate the dollar amounts in the scale of costs set out in the table to clause 6. Each item in the scale of cost specifies a dollar amount with reference to the fee earner."
This Court has in earlier decisions confirmed the view that independent counsel should be supported by either a solicitor or a clerk/paralegal attending trial. For that reason, I took the view that the claim was properly made. If the objections are to be upheld, it must be on the basis that if a senior practitioner attends a trial to support independent counsel, that solicitor should be paid at the maximum rate for a senior practitioner irrespective of the task which was undertaken by him and whether that task demanded the skills of such an individual.
In my view when the scale refers to an hourly rate as a maximum, that must carry with it the proposition that in certain circumstances some lesser rate than the maximum is appropriate. It appears to me that in circumstances where in truth the task to be performed did not require the skills and expertise of the senior practitioner, then that is an occasion when a lesser rate, not only may be applied, but should be applied. That is what has happened in the present case and in my view it is a proper exercise of the discretion vested in a taxing officer.
As to the individual cases upon which the objector relies, in my view the case of Marcel Jean Marie Gloux v WMC Resources Ltd, unreported; DCt of WA; Library No 2645 of 1998; 23 April 2001 offers some support for the proposition which is advanced. It can however be distinguished on the grounds that the taxing officer in that case considered that for part of the time at least when a solicitor was in attendance, a maximum rate was appropriate. His Honour held that the maximum rate should apply for the whole of the trial, not just the part which had been identified as particularly difficult and deserving of the skill of the senior practitioner.
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. In my view the case can be distinguished on that basis.
As to the next of the case cited, namely Abbotts Pty Ltd v Gel Group Pty Ltd [2007] WADC 92 at par 20 and Abbotts Pty Ltd v Gel Group Pty Ltd [2007] WADC 151 at par 28. The first of those citations was a decision of Deputy Registrar Harman who said:
"As I have indicated, the test of recovery by the beneficial party under an order for costs is to the extent of the reasonable cost of services necessarily provided. I accept that there is authority the name of which I do not recall which is along the lines that it is appropriate for a taxing officer to undertake the sort of analysis suggested in par 18.1. In my opinion the flaw in the proposition that there ought to be an analysis of the part played by the solicitor at trial is that whilst it may reveal that the solicitor had absolutely nothing to do, the justification for allowance is that the solicitor would be available to take and give instructions should the need arise. There is no proper basis to consider that the defendant should accept a 'standard' set by practitioners who chose not to attend trial. In Grigoletto v Myer Properties WA Ltd; unreported; DCt of WA; Library No 3667; 31 March 1993 Heenan CJ was considering a case in which the taxing officer had limited the scope of recovery for a solicitor attending trial by reducing the fee by a proportion of the length of the trial. His Honour considered passages that he cited from what I take to have been the objecting party's grounds of objection and stated:
'Those passages point up 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.' "
Upon review by Judge Wager, her Honour said:
"The Deputy Registrar has made no error in principle in relation to the allowance for item 11 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."
I cannot see how these cases assist the plaintiff in the present circumstances. It was not my decision that it was inappropriate for the solicitor who did attend trial to do so. I accepted that it was appropriate for that person to be there for the duration of the hearing. What is in contention is at what rate should the plaintiff be entitled to claim for providing the services of that solicitor.
I see no reason why a senior practitioner should be able to charge the maximum rate for every piece of work which he does on a file. The fact that the Costs Committee have described the amount as a maximum, to me makes it clear that the Committee recognises many instances in which some lesser amount should be allowed. Were it to be otherwise there would be no point in describing the figure as a maximum but it should simply be a standard rate payable for all work done by a practitioner of the appropriate level of qualification. Having reached that conclusion it seems to me appropriate to investigate the nature of the work which was undertaken by the senior practitioner for which the claim was made to determine how difficult and onerous it was and whether it is a task which in truth deserves remuneration at the maximum possible rate. That is what I undertook at the taxation of this matter. The conclusion that I reached was that the demands on the practitioner attending the trial were low and did not require him to exhibit the expertise which one would normally expect to be possessed of a senior practitioner. In those circumstances, it appeared to me, and still does appear to me to be appropriate to allow for the attendance but to recognise these factors by allowing for the attendance at a lesser hourly rate.
In the circumstances of this case I considered that a junior practitioner's rate would be appropriate and that was the basis of the calculation of the allowance which I made and the consequent deductions which were made from the various items. In other circumstances it may be that a clerk/paralegal rate would be appropriate or in other cases the full amount for a senior practitioner.
In fact the hourly rate allowed for the solicitor attending trial was only marginally less ($36 per hour) than the hourly rate which could be claimed by counsel.
For these reasons the objection is disallowed and the Bill will be signed in the amount of $75,892.76 on the issuing of these reasons.
The time for appeal against this decision is extended to 28 days.