Klarich v California Film Finance (Gold) Pty Ltd - [2001] WADC 235

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: KLARICH -v- CALIFORNIA FILM FINANCE (GOLD) PTY LTD [2001] WADC 235

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 24 SEPTEMBER 2001

DELIVERED : 8 OCTOBER 2001

FILE NO/S: CIV 2651 of 1999

BETWEEN: GRAEME RODNEY KLARICH
Plaintiff
AND
CALIFORNIA FILM FINANCE (GOLD) PTY LTD (ACN 053 969 887)
Defendant

Catchwords:

Practice - Western Australia - Objection to taxation of costs - Turns on its own facts

Legislation:

Nil

Result:

Objections not allowed

Representation:

Counsel:

Plaintiff: Mr M A Detata
Defendant: Ms N Epis

Solicitors:

Plaintiff: Ian Tait & Co
Defendant: Phillips Fox

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HEWITT: His Honour Judge Macknay ordered that the trial listed for hearing on 23 February 2000 be adjourned and that the plaintiff pay the defendant's costs thrown away by reason of the adjournment, and the costs of the application to adjourn, on an indemnity basis, such costs to be taxed and paid immediately. Pursuant to that order the defendant filed a bill of costs on 14 June 2000 which came before me for taxation on 24 September 2001.
The plaintiff now objects to my allowance of certain of the items on the defendant's bill.
As a preliminary to this review I should mention that the plaintiff has entered a cost agreement with its client in relation to this action under the terms of which it is entitled to charge on an hourly basis. That agreement was before me at the taxation together with a schedule exhibited to the bill of costs, a copy of the solicitor client account which was forwarded to the client, and a copy of a schedule setting out the time charges rendered by the defendant's solicitors to their client identifying in each instance the employee who rendered the service, the nature of the service and the time taken to perform it.
I now turn to the objections themselves. The first item claimed under the bill was getting up case for trial for which an amount of $3,465 was claimed which after deduction of $1,215 I allowed at $2,250.
The objection is as follows:
"17.The plaintiff objects to the sum of $2,500 allowed for getting up thrown away as a result of the vacation of the trial on they following basis:
(a)By the admission of the Defendant's solicitors, the getting up thrown away by the Defendant was restricted to liaising with 4 witnesses and issuing 4 subpoenae and various interoffice discussions between the solicitor for the Defendant preparing the trial (Mr Palmer) and the solicitor for the Defendant appearing at the trial (Mr McCann).
(b)Despite request by the Plaintiff's solicitors no documentary proof was supplied at the taxation that this or any other work was in fact undertaken by the Defendant, and if undertaken was wasted.
(c)Given the onerous nature of the costs order made, the onus is on the Defendant to clearly establish that the work claimed was in fact done, and if done was wasted, before the onus falls upon the Plaintiff to establish the unreasonability of that work.
(d)In any event, the sum of $2,250 is plainly excessive given the minimal nature of the work claimed as falling under this item."
The first point to note is that the schedules and materials to which I have earlier referred indicate that the work undertaken was not in fact minimal. The schedule to the bill indicates 22.9 hours has been claimed as being effort which was undertaken in preparation to the trial which has been wasted by its adjournment.
In the course of the taxation I examined in some detail the activity schedule which was before me and I concluded that some of the time for which a claim was made was not in truth time wasted, but the product of the expenditure of that time would remain useful, and that the time taken or allegedly taken for certain of the tasks was unreasonable and should be significantly reduced.
In part the plaintiff's objections are that documentation should have been produced by the defendant in relation to the work which was done and that absent such proof I should not have been satisfied that the work was in fact undertaken and if undertaken wasted.
I think the touchstone for examining the materials produced by the defendant to support the taxation are:
(a)I should assume that the defendant's solicitors are honest and have properly recorded, within the requirements of their costs agreement, the time which they spent working on this file; and
(b)That the description of the tasks undertaken on the schedule are likewise honestly prepared and placed before me.
On the taxation of a bill of costs on an indemnity basis the onus is on the plaintiff to demonstrate that items should not be allowed on the basis that:
(a)They were not wasted by reason of the adjournment;
(b)That the time taken was excessive; or
(c)The task was unreasonably undertaken.
The intention of an indemnity costs order is to allow costs to be taxed on a more generous basis, in this case recognising the existence of a costs agreement. It is not the case in my view that the bona fides of the taxing solicitors should be suspect and that they should have to undertake a more onerous and more rigorous examination than would ordinarily be the case.
In taxing this bill I took the view that certain of the items for which a claim was made were not wasted, that the time taken for performing certain other tasks was unreasonable and should not be allowed, and that overall a general reduction, even after making those allowances, was called for to bring the amount allowed in line with what I thought was a reasonable allowance under the terms of the costs agreement. I am unable to see how in that process I was wrong in principle and as a consequence the allowance of $2,250 will not be disturbed.
The next item claimed is counsel mastering the brief for trial for which an amount of $1,508 was claimed which after deduction was allowed at $1,308. The objection to this items is as follows:
"18.The Plaintiff objects to the sum of $1,308 allowed for counsel's mastery of brief thrown away as a result of the vacation of the trial on the following basis:
(a)Despite request by the Plaintiff's Solicitors no documentary proof was supplied at the taxation that this or any other work was in fact undertaken by the Defendant, and if undertaken was wasted.
(b)Given the onerous nature of the costs order made, the onus is on the Defendant to clearly establish that the work claimed was in fact done, and if done was wasted, before the onus falls upon the Plaintiff to establish the unreasonability of that work.
(c)Furthermore this item is properly getting up for which ample allowance has already been made."
Before dealing with this item it is necessary to make a remark about the manner in which the defendant prepared to take this matter to trial. Rather than brief an outside barrister the defendant's solicitors preferred to brief one of the more senior lawyers operating within their firm. A formal brief was prepared and forwarded to that solicitor and a number of conferences took place between the proposed counsel and the solicitor with the day to day conduct of the file. Under the terms of the costs agreement that time can be properly charged to the client and I see no basis upon which I should disallow it on a taxation of this kind.
Given that the application to adjourn the trial was made two days before the trial was scheduled to commence it comes as no surprise whatever to discover that the lawyer who was to conduct the case of the defendant at trial had spent time preparing to undertake that task. In fact the amount allowed reflects approximately four and a half hours of work and I have great difficulty in seeing how such an allowance could be regarded as unreasonable. As to the suggestion that the item was properly getting up if that objection were a sound one then it would be counted by simply reducing this item to zero and increasing getting up by a like amount. At the end of the day it is not the heading in the bill which determines the allowance but whether or not the work was undertaken and whether or not the defendant would be properly called upon to pay its solicitors for that work.
As far as I can see the work undertaken in regard to the preparation for a trial which did not proceed by way of mastering the brief is totally wasted and counsel will have to recommence and reprepare for any fresh trial. The objection to this item will therefore be disallowed.
The next item to which objection is taken is item three, proceedings in chambers, which was claimed at $3,407 and allowed at $2,275. The objection is:
"19.The Plaintiff objects to the sum of $2,275 allowed for counsel's fee for proceedings in chambers on the following bases:
(a)By the admission of the Defendant's solicitors, the work claimed by the Defendant was restricted to reading one very short and uncomplicated affidavit and preparing one relatively short and uncomplicated affidavit and the appearance at court by Mr McCann for at most 2 hours. Mr McCann was also the counsel who would be appearing at the trial.
(b)The sum of $2,275 is plainly excessive given the minimal nature of the work involved in the application."
I have earlier indicated that the application was brought late. The defendant's solicitors were required to respond rapidly and obviously under some time pressure to that application. Two affidavits were prepared and filed in response to the application and each was a significant affidavit. A very significant volume of documents were placed before the court and the argument took in the vicinity of one and a half hours when finally heard after an earlier, and adjourned, appearance of about a quarter of an hour.
It was necessary to understand the nature of the proposed amended statement of claim in addition to dealing with the question of costs in the event that an adjournment was granted. It is claimed that counsel spent approximately 4.3 hours and solicitors spent 14.4 hours responding to the application and arguing it. On examination of the activity schedule I had significant reservations about some of the time spent and for that reason made the deduction to which I have referred earlier.
I am unable to see any error in principle in dealing with this item. I have examined the time claimed in respect of the work undertaken, have found some of it to be of unreasonable amount and deducted that time.
I would have thought it only to be expected that an application of this kind, resisted as it was, would generate a lot of urgent activity by the defendant's solicitors and that the costs of that activity would necessarily be high. The objection in relation to that item is disallowed.
The next item complained of is the sum of $270 for preparation of the bill. The objection to that item is as follows:
"20.The Plaintiff objects to the sum of $270 allowed for preparation of the bill of costs on the basis the sum of $270 is plainly excessive given the minimal nature of the work done in such preparation."
I find it difficult to understand how the claim of $270, being one hour of a senior practitioner's time on scale fees, can be said to be plainly excessive. I would have thought that a time costed bill such as this one would necessarily have taken some time to prepare and I disallow the objection.
The next item complained of is an allowance of $210 for the appearance at the taxation. The objection to that item is as follows:
"21.The plaintiff objects to the sum of $210 allowed for the appearance at the taxation given that the Original Taxation was adjourned at the instance of the Defendant. No allowance should have been made for this item as the costs which flowed from the adjournment of the Original Taxation offset the costs of the Reslisted Taxation."
In fact the allowance resulted from the deduction from the total amount taken, the time wasted by earlier, unfruitful, attendances. That said I am unable to perceive a basis upon which the allowance should be disturbed and the objection is not allowed.
The final matter the subject of objection is an allowance of $86 for service fees.
The objection is as follows:
"22.The Plaintiff objects to the sum of $86 allowed for Service Fees in relation to 1 subpoena on the basis that Defendant has not provided proof of payment. Furthermore they are unreasonable for the service of one subpoena."
An account was produced at the taxation indicating that the plaintiff's solicitors had incurred a liability for $86 for the service provided by the process server. The account itself indicated that $50 was the service fee, $30 was conduct money and the remainder was kilometerage.
In the light of those observations I am unable to see that there is any valid objection and it will be disallowed.
The final matter to consider is the question of the costs of the attendance to argue these objections. Approximately one hour was taken during the course of the arguing and it was attended on behalf of the defendants by a solicitor admitted in December 1997. According to the costs agreement between the defendant's solicitors and the defendant the rate payable for a solicitor of that experience varies between $120 and $200 per hour. I will take a midpoint and allow $160 for the hour. That allowance will be added to the amount payable by the plaintiff on the taxed bill which will now total $6,979.85 and will be signed in that amount on the issue of these reasons for decision.