Kokotovic v Tinniswood
[2017] WADC 34
•16 MARCH 2017
KOKOTOVIC -v- TINNISWOOD [2017] WADC 34
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 34 | |
| Case No: | CIV:2935/2011 | ON THE PAPERS | |
| Coram: | DEPUTY REGISTRAR HARMAN | 16/03/17 | |
| PERTH | |||
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Review unsuccessful | ||
| PDF Version |
| Parties: | MIODRAG KOKOTOVIC RICHARD TINNISWOOD PERINKO & MLANNDENKA ROSO THE TRUSTEE OF THE MARK MCGOWAN FAMILY TRUST AND THE TRUSTEE OF THE JASON PHILLIPS FAMILY TRUST MILIVOJ BALIC MARK THOMAS MCGOWAN JASON DANIEL PHILLIPS |
Catchwords: | Costs Review of taxation Turns on its facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
RICHARD TINNISWOOD
First Defendant
PERINKO & MLANNDENKA ROSO
Second Defendant
THE TRUSTEE OF THE MARK MCGOWAN FAMILY TRUST AND THE TRUSTEE OF THE JASON PHILLIPS FAMILY TRUST
First Third Party
MILIVOJ BALIC
Second Third Party
MARK THOMAS MCGOWAN
Third Third Party
JASON DANIEL PHILLIPS
Fourth Third Party
Catchwords:
Costs - Review of taxation - Turns on its facts
Legislation:
Nil
Result:
Review unsuccessful
Representation:
Counsel:
Plaintiff : Mr D Garnsworthy
First Defendant : Mr M A Tedeschi SC
Second Defendant : Mr M A Tedeschi SC
First Third Party : No appearance
Second Third Party : No appearance
Third Third Party : No appearance
Fourth Third Party : No appearance
Solicitors:
Plaintiff : Frichot & Frichot
First Defendant : McKenzie and McKenzie
Second Defendant : McKenzie and McKenzie
First Third Party : Not applicable
Second Third Party : Not applicable
Third Third Party : Not applicable
Fourth Third Party : Not applicable
Case(s) referred to in judgment(s):
Nil
1 DEPUTY REGISTRAR HARMAN: The plaintiff has the benefit of an order for costs of the action. Thereby he is entitled to recover from the defendants the reasonable cost of services necessarily provided to him for the purposes of the action.
2 He has filed objections to some of the determinations made upon the taxation of his bill of costs. The first addresses the determination made in relation to item 8 of the bill. It is as follows:
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3 At taxation no issue was raised by the defendants as to the necessity for provision of the service. After submissions had been made the quantum of the charge recoverable was assessed at $638.00. Accordingly no part of the service was disallowed; the plaintiff failed to discharge the onus of persuasion that the claim was reasonable; and in accordance with convention the balance of the claim was 'taxed off'.
4 The objection addresses an unspecified part of the determination as follows:
With the importance of the action it was appropriate to brief senior counsel – please refer to comments relating to item 14.
5 Those comments are as follows:
By not allowing the rate for senior counsel the learned registrar failed to give any or any sufficient weight to:
A the loss of earning capacity of the plaintiff;
B the complexity of the case in relation to who was liable in damages;
C disputes on the facts;
D the extent of injuries suffered by the plaintiff;
E issues of law applicable to the action: workers' compensation law, public liability law, contract insurance law;
F predicted length of trial 5 to 7 and 12 days;
G number and variety of medical practitioners and other expert witnesses (accountants, building inspectors, architecture, vocational rehabilitations [sic];
I [sic] number of defendants and their denial of liability.
6 My reading of the objections is that the plaintiff's failure to recover the charge claimed was due to error in assessing the importance of the case or failure to recognise the status of the service provider; and that either error accounts for the difference in value between the determination and the charge claimed. In effect the charge claimed would be constituted as the datum or perhaps be the only determination that would not reveal any error.
7 According to my understanding of the common law the process of assessing what is reasonable for the provision of a service would take into account the relevant scale item, the complexity of the task and the context in which it had been undertaken. The adverse party is obliged to pay no more than the cost of efficient provision of a service by a competent practitioner regardless how or by whom it had actually been undertaken. The taxing officer should be careful in coming to any conclusion based solely upon hindsight.
8 Those considerations informed the process of assessment. There was no reason to take the charge claimed as the datum for consideration of the value of the service. The determination reveals the charge claimed as nothing more than that. It served as the datum for recording the result.
9 The relevant item in the 2014 scale provides that the amount recoverable is constrained by a maximum of $11,550. It does not specify any rate of recovery.
10 At a listing conference actions are commonly listed for directions in the period prior to trial.
11 On 17 April 2014, the parties had been ordered to finalise pleadings, give discovery and engage in the usual process to facilitate the provision of expert opinion at trial. By the date of the listing conference, the plaintiff had amended his pleading and given discovery. At that conference the action had been listed for directions on 21 July 2014 and for trial commencing 24 November 2014.
12 On 21 July 2014 the first defendant filed his discovery. At the hearing on that day senior counsel appeared for the plaintiff along with the solicitor for the first defendant. I note from the record of the hearing that the solicitor had indicated that the first defendant would thereafter be unrepresented. Another note of the deputy registrar records 'all on track from Pt P.O.V.'. I take that to mean that at that distance from the trial the plaintiff was satisfied that no directions were necessary; an interpretation consistent with the fact that none were made. The hearing was adjourned to 15 September 2014, the service the subject of the relevant item in the bill.
13 On that date the first defendant appeared without representation, the plaintiff was represented by senior counsel and the second defendants by their solicitor. According to the registrar's notes the second defendants were seeking an expert report or reports and had attended to discovery. The only order made on 15 September 2014 was that the directions hearing be adjourned to13 October 2014. On that date an order was made in relation to the availability for inspection of documents discovered by the second defendants and for each party to file and serve submissions for trial.
14 By counsel's account dated 19 April 2016 I was informed as follows:
Getting matter up, and preparation for the trial listed for five days 24 - 28 November 2014
Perusal of papers, advising on damages, settling particulars of damages (10.2.2014) [3 hrs], perusal of further medical reports, perusal of witness statement, perusal of further brief, advising upon the evidence, advising in relation to joining Floors of Distinction [0.5 hrs], advising upon expert evidence, advising upon form of proposed orders, perusal of correspondence and form of orders from McKenzie & McKenzie, perusal of email from Denman Popperwell, preparation and appearing before registrar (17.4.14) [1.5 hrs], perusal of draft Amended Statement of Claim, advising upon proposed admissions, perusal of first defendant's defence in contribution proceedings, advising further upon expert evidence, perusal of liability expert report of Mr Pescie, advising upon further discovery from first defendant, preparation and appearing at listing conference (9.6.14) [1 hr], advising further upon the evidence, preparation and appearing at directions hearing before Registrar Kingsley (15.9.14) [2 hrs] …'
15 The context in which the service had been provided revealed that senior counsel's engagement in features of the task of getting the case up for trial had been significant; the first defendant's former solicitor had left his client with no outstanding requirement; and the second defendants had not been ordered to undertake any particular task. It did not suggest that to prepare for and attend at the directions hearing had engaged any measure of complexity.
16 In light of the extent of the claim I enquired of the plaintiff whether there had been any feature of the context that had not been revealed by my outline that would justify significant preparation. I was informed of nothing useful.
17 As for the service, at such a hearing the court would expect to be informed of any impediment in progress towards trial on the due date.
18 In response to my question why provision of the service had taken the period of two hours suggested by the item, the plaintiff was unable to provide the periods of time spent by counsel in attending to each part.
19 In my opinion, objectively it would be difficult to construct a case for the proposition that preparation for the hearing had warranted more than a brief consultation with the solicitor and/or reference to papers that had recently been filed by other parties. It is likely that the hearing itself had been brief.
20 Returning to the objection, I take it from the comments adopted from the objection to item 14 that the plaintiff would justify the description of the action as important. No doubt it had been so regarded. However that an action had been so considered has no particular significance in the context of taxation. In any event the characterisation of the action as important would not necessarily have any bearing upon the assessment of the value of the particular service. In this instance the service was only required to be provided to the ends of what is generally described as case management.
21 I would not quibble with the prospect that the defendants submitted that the plaintiff's decision to engage senior counsel in the particular task was not justified. I am surprised that the terms of objection suggest that I had indicated that I subscribed to that view. Neither what I have set out of the common law nor the provisions of the item in the scale would suggest that the status of the service provider would be a relevant consideration in the process of assessing the extent of recovery.
22 The difference between the fee claimed and the amount recovered may account for dissatisfaction with the result. It does not establish any error.
23 The next determination the subject of objection relates to item 10. It appears in the bill as follows:
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| 6,550.50 |
24 The item was disallowed.
25 The terms of the objection are as follows:
The scale or determination does not exclude allowances for mediation and in failing to make any allowance the registrar has erred in principle. The registrar does not have a discretion not to apply an item of the scale unless the determination confers that power or it is said the event did not occur of which there is no evidence here.
26 According to the record of the court the conference is characterised as having been a pre-trial conference however at the listing conference on 16 November 2016 the parties had been ordered to mediation and I was satisfied that was the proper characterisation of the conference undertaken on 27 January 2016 not least because at taxation the parties referred to it as such and appeared to be surprised that it had otherwise been recorded.
27 At the time of provision of the service the plaintiff had been represented by his solicitor and senior counsel. It is evident that the parties had reached agreement in relation to all issues: including costs of the process in which they had then been engaged.
28 The order made that day was that the trial dates be vacated and that there be no order as to costs.
29 The order subsequently made for the costs of the action was by consent on a document prepared by the plaintiff executed at a later date.
30 Under the order of 27 January 2016 recovery for the service is not available. Taking into account that order, the order for costs of the action does not entitle the plaintiff to recover the costs of mediation.
31 Whatever the meaning of the objection it has no merit.
32 The next objection addresses the determination made at item 11 of the bill. It is as follows:
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| 1,708.85 |
33 At taxation no issue was raised by the defendants as to the necessity for provision of the service. After submissions had been made the quantum of the charge recoverable was assessed at $ $1,276.00. Accordingly no part of the service was disallowed; the plaintiff failed to discharge the onus of persuasion that the claim was reasonable; and in accordance with convention the balance of the claim was 'taxed off'.
34 The objection addresses the determination as follows:
Given the importance of the action no reduction in the allowance is appropriate.
35 According to my understanding of the common law the process of assessing what is reasonable for the provision of a service would take into account the relevant scale item, the complexity of the task and the context in which it had been undertaken. The adverse party is obliged to pay no more than the cost of efficient provision of a service by a competent practitioner regardless how or by whom it had actually been undertaken. The taxing officer should be careful in coming to any conclusion based solely upon hindsight.
36 Those considerations informed the process of assessment. There was no reason to take the charge claimed as the datum for consideration of the value of the service. The determination reveals the charge claimed as nothing more than that. It served as the datum for recording the result.
37 According to item 13 of the scale, recovery for attending a listing conference and all necessary preparation is to be had at hourly rates. The maximum hourly rate for senior counsel is $671.
38 The listing conference had been held a month or so after trial dates had been vacated. The second defendants had then been given leave to issue third party notices and been ordered to serve those notices and statements of claim within a limited period. By the time of the listing conference appearances had been entered by the third parties and the second defendants had served pleadings. At the listing conference each third party had been represented. The usual directions were made in the third party proceedings. The parties were ordered to attend mediation. The action was listed for trial in February 2016.
39 In that context it is appropriate to consider that the plaintiff had reflected upon whether his interests would be served by accommodating the second defendants' proposal that the third party proceedings be tried at the same time as the issues between the plaintiff and defendants.
40 At taxation no reference was made to any input into the service provided to the plaintiff by his solicitor. Reference was made to the relevant part of counsel's note dated 19 April 2016 as follows:
Third listing of matter for trial-8-23 February 2016
Attending District Court with instructing solicitor to study subpoenaed documents (23.10.15) [2 hrs], perusal of third party notices, perusal of letter from Jackson McDonald, telephone discussion with solicitor for second third party (Mr Balic), advising further upon the evidence in view of the third party proceedings, perusal of second defendant's statements of claim against the first third party, against the second third party, and against the third and fourth third parties, preparation and appearing at listing conference before Registrar Kingsley (16.11.2015) [2 hrs], …
41 Having reviewed the available material I have found that in his fee note of 16 November 2015, counsel states as follows:
Preparation and attending listing conference/directions hearing (16.11.15) [1.5 hrs at $610 per hr], $1006.50.
42 That contemporaneous fee note reveals that $990.00 would be a more reasonable figure than was determined upon taxation.
43 As for the objection, in dealing with the first of the plaintiff's objections I made some observations in relation to the contention that the action was considered to be important. I adopt them for the purpose of responding to the terms of this objection. It is complexity that would justify recovery at or near the maximum level. The plaintiff did not establish that provision of the service ought to be so considered. The terms of objection do not propose that the provision of the service engaged any complexity.
44 The next objection addresses the determination made at item 14 of the bill. It is as follows:
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| 28,710.00 |
45 The action was never tried.
46 At taxation no issue was raised by the defendants as to the necessity for provision of the service. After submissions had been made the quantum of the charge recoverable was assessed at $16,000.00. Accordingly no part of the service was disallowed; the plaintiff failed to discharge the onus of persuasion that the claim was reasonable; and in accordance with convention the balance of the claim was 'taxed off'.
47 The objection addresses an unspecified part of the determination as follows:
By not allowing the rate for senior counsel the learned registrar failed to give any or any sufficient weight to:
A the loss of earning capacity of the plaintiff;
B the complexity of the case in relation to who was liable in damages;
C disputes on the facts;
D the extent of injuries suffered by the plaintiff;
E issues of law applicable to the action: workers' compensation law, public liability law, contract insurance law;
F predicted length of trial 5 to 7 and 12 days;
G number and variety of medical practitioners and other expert witnesses (accountants, building inspectors, architecture, vocational rehabilitations [sic];
I [sic] number of defendants and their denial of liability.
48 By the terms of the objection I infer that the plaintiff would contend that the scale item provides a rate of recovery. That is not the case.
49 On my reading there is scope to consider that the balance of the objection puts two other errors. The first lies in the reference to the rate for senior counsel and I infer that the plaintiff proposes that recovery was had by reference to the part of the scale item that relates to provision of the service by counsel. My short response is that had I made such an error the determination would have been considerably less than the amount assessed.
50 The second is along the lines that the plaintiff's failure to recover the charge claimed was due to error in assessing the specified features of the case and that failure accounts for the difference in value between the determination and the charge claimed. In effect the charge claimed would be constituted as the datum or perhaps be the only determination that would not reveal any error.
51 According to my understanding of the common law the process of assessing what is reasonable for the provision of a service would take into account the relevant scale item, the complexity of the task and the context in which it had been undertaken. The adverse party is obliged to pay no more than the cost of efficient provision of a service by a competent practitioner regardless how or by whom it had actually been undertaken. The taxing officer should be careful in coming to any conclusion based solely upon hindsight.
52 Those considerations informed the process of assessment. There was no reason to take the charge claimed as the datum for consideration of the value of the service provided. The determination reveals the charge claimed as nothing more than that. It served as the datum for recording the result.
53 The scale item provides scope for 3.5 days of preparation in addition to the first day to a maximum of $30,195.
54 As for what stood for consideration as the first day of trial, I understand that adjournment was not ordered until late in the day and until that time senior counsel and the plaintiff's solicitor had been engaged in considering the content of documents produced by a witness.
55 I infer from the quantum of the claim that senior counsel had been engaged in preparation for close to if not 3.5 days.
56 Consistent with the case put at taxation the plaintiff relies upon the fact of his engagement of senior counsel. It does not displace the need to consider where in the range provided by the scale recovery ought be assessed. The case put by the objection does not express complexity other than at point B. Indeed none of the other points suggest complexity and apart from point I, none express any linkage with point B.
57 As for the proposition that there was complexity raised by the question of liability (point B), there is no objective basis provided to justify that assessment. The plaintiff's claim against each of the defendants arose in circumstances where he had been undertaking work at a building site; the first defendant being a builder with a contract to build a residence for the second defendant property owners; he had been walking to the top of an unguarded stairwell when he lost balance and fell a distance of up to 3 m. He attributed the cause of the incident to an unfinished floor surface that left a gap of approximately 20 cm between floorboards and a concrete floor. His claims against the first defendant were based on their employment relationship and by reason of their occupation of the premises; those against the second defendants, simply on their occupation of premises.
58 The plaintiff alleges the same particulars of the duty of care owed by each of the defendants and of breach. As for the allegation of breach of statutory duty there are two additional particulars put against the first defendants.
59 As is common in the case of industrial accidents the allegations that went to liability were denied by each defendant. Of itself that fact does not generate complexity. Similarly so is the defendants' allegations of contributory negligence. In my opinion it was incumbent upon the plaintiff to provide more detail in order to project actual complexity and its dimensions.
60 As for the balance of the factors expressed in the objection, the plaintiff's injuries and their consequences had been significant. In his statement of claim, the plaintiff claims loss for each of the usual categories expressed in claims for damages for personal injury by an employee.
61 It is commonly the case with such claims that there will be some difficulties associated with proof of one or more recognised categories of loss. As for the particular aspect to which the plaintiff refers at point A, his particulars of damage indicate a substantial period of hospitalisation post-accident and a failure to recover his past earning capacity. The most recent list of witnesses filed by the plaintiff on 14 October 2015 reveals 13 witnesses. I note that it was proposed that eight medical witnesses would speak to a total of 15 reports and unspecified hospital notes; further that a vocational rehabilitation assessor would speak to four reports.
62 Whilst I have no doubt that the scope that I have only briefly outlined would accommodate grounds for concern that the plaintiff's best case may be difficult to project, in my opinion there is nothing to establish by any objective standard that feature of the case presented any real complexity.
63 Points C, E, F and G are so generally expressed as to serve no useful purpose in establishing any particular dimension of the task of preparing for trial.
64 As for point D, I make the same observations as I have in relation to point A.
65 Point I does not add to what is expressed in relation to point B.
66 Be that as it may I have no difficulty with the proposition put by the plaintiff that in taxing such a claim consideration should be given to features of the undertaking which would include factors such as those listed at points A to I.
67 In my opinion although each case will have some unusual feature or features, there is nothing put by way of objection that would justify the proposition that by any useful measure the case presented a significant degree of complexity.
68 Taking into account the provision in the scale for provision of the service by senior counsel, the relative lack of complexity of the case justified the conclusion that $16,000.00 was reasonable for provision of the service.
69 In addition to the order for the costs of the action the plaintiff also has the benefit of an order for costs thrown away as a consequence of adjournment of the trial. The last determination the subject of objection is that made in relation to the corresponding claim in the bill. It appears as follows:
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70 Although the item was not disallowed the charge claimed was taxed off.
71 Despite its appearance in the bill as a single item, had there been any recovery it would have been as an additional claim under a scale item or as additional claims under scale items.
72 Before I turn to the objections I will canvass some features of the context that bear upon the determination.
73 The plaintiff's claims in the action were settled at mediation on 27 January 2016. By that time the action had been listed for trial on three occasions: the first commencing 24 November 2014, the second, on 19 October 2015 and the third, due to commence on 9 February 2016. When trial dates were vacated on 24 November 2014 an order was made that costs be reserved. When trial dates were vacated on 21 October 2015 an order incorrectly dated 20 October 2015 was made as follows:
10. The second defendants pay the costs of the adjournment and costs thrown away on an indemnity basis forthwith.
74 On 6 July 2016 the plaintiff filed a consent minute that disposed of his claims and provided for his costs of the action. At the same time he filed the bill of costs.
75 The schedule of wasted costs extends to 16 pages each with approximately 20 items per page. Each item on the last 6.5 pages records a date after 21 October 2015. Prima facie services rendered after the date of adjournment would not be wasted.
76 The two items that relate to counsel's involvement each specify a date, a period of time and an amount. Of the balance, which I take to be work undertaken by the solicitor, most also specify a process of communication. In the period prior to 2 October 2015, those that provide something more number 14, the first of two categories of which comprises: 1 for discovery; 3 for drafting either application(s) or affidavit; 2 for drafting witness statements; 4 for court appearances; 1 for providing trial bundle; and 1 for studying trial bundle. The second category is comprised of two items, both for drafting subpoenas. Prima facie only the services in the second category would be characterised as wasted as a consequence of adjournment of the trial.
77 The bill was first listed on 27 July 2016. Taxation was commenced in the absence of any appearance by the adverse parties. Although the only item taxed was disbursements, during the course of the day the plaintiff indicated that the scope of recovery provided by the order dated 20 October 2015 extended to all services provided after the date of the earlier vacation of trial dates in November 2014.
78 At the end of the day, when consideration was being given to the extent of further listings, some attention was given to the schedule of wasted costs. The plaintiff then indicated that the support for the proposition made earlier was that but for the adjournment on 24 November 2014 the action would have been concluded and that he had counsel's opinion to the effect that all costs after that date had thereby been wasted.
79 On a more cursory consideration of the schedule of wasted costs than would reveal what I have specified above, I took it to be the case that both it and the claim had been drawn accordingly.
80 Because of the extent of both the claim and the schedule I considered that it was appropriate to indicate my understanding of the scope for recovery provided by the order. Firstly I struggled with the proposition that recovery would extend beyond services that to some degree had been devalued as a consequence of the adjournment in October 2015. Secondly whilst the reprovision of a service may speak for devaluation, it would not be the cost of reprovision only the cost of prior provision that would have been thrown away.
81 Because the plaintiff was represented by both his solicitor and counsel experienced in matters relating to costs I considered that thereby I had made it clear that the absence of the adverse parties would have no bearing upon the need to establish that each constituent part of item 15 of the bill was within the scope of the order.
82 At the next listing of the taxation, on 17 August 2016, I recall that the plaintiff commenced by referring to a document that had been lodged but not filed which I took to be an amended bill or amended part of a bill. Based on what I heard I understood that it presented a different claim for wasted costs. It was handed back to the plaintiff without consideration as the plaintiff then wished to proceed under the bill that had been filed.
83 Although on that occasion taxation did not proceed to the point of considering the claim for costs thrown away, during the course of the day the question of the scope for recovery under par 10 of the order dated 20 October 2015 was discussed. The plaintiff maintained that all services that had been provided since 24 November 2014 had been wasted; the defendants contended that recovery was limited to services and parts of services that related to trial in October 2015; typically associated with obtaining trial dates and the planning associated with their proposed utilisation. They referred to the quantum of the claim and suggested that by comparison recovery would be minimal.
84 On 18 August 2016 the plaintiff provided some written submissions on the subject of recovery under an order for wasted costs. Despite the fact that taxation had not progressed to the point of dealing with the relevant claim, they were then considered along with oral submissions of the parties.
85 I note that par 5.00 of the written submissions is as follows:
Meaning of costs thrown away
5.00.1 Usefully the comments of Williams J in (The Fashion Warehouse Pty Ltd v Pola [1984] 1QdR 251) provide the classic statement of what the phrase means namely costs incurred where the services rendered have to be repeated. The proposition continues that if the costs prove to be of use in the proceedings then those costs have not been wasted. The formulation in Fashion House has been followed by Judges in the Supreme Court of Western Australia.
86 I indicated that broadly speaking I agreed with the content of the written submissions.
87 In the course of oral submissions the plaintiff's solicitor referred to reasons for decision that I had given in a case that had been recently before me. In that case costs of the action had been recovered under an indemnity. I indicated that the two contexts were significantly different. The process of taxation had been undertaken in accordance with time costing provisions established by an agreement. There had been no need for any analysis of any item in order to determine whether it amounted to a claim for recovery of the cost of a service or part of a service provided for in the scale; with the result that the beneficial party recovered fees for what by contrast with the case before me, might be characterised as mere activity. There had been no need to consider whether work undertaken was within the scope of an order.
88 Although it is open to consider that a party is free to draw a claim as it chooses, it is only where recovery would be had under a regime of time costing that one would expect a claim to be expressed as it appears in the schedule. Otherwise at taxation the focus is properly on services. In this case, services that had been provided for the purpose of trial in mid-October 2015 along with any other service the value of which had sufficiently diminished.
89 The defendants referred to the lack of detail provided by the schedule. I indicated to the plaintiff that the defendants would not be expected to discharge the onus until he had presented a case that any service or part of a service had been wasted.
90 Because the period of time that had been devoted to consideration of the particular claim had been significant; because at that point I considered that I had then been dealing with submissions rather than something less; and because I considered that there was a real prospect that at some point I would be asked to consider whether the plaintiff should recover costs for the period of the day utilised for the purpose of dealing with questions generated by the claim for wasted costs, I took the precaution of noting that the period between 2:15 pm and 3:00 pm had been devoted to their consideration.
91 On that occasion the balance of the time remaining was spent taxing the claims 'preparation for trial', 'first day of trial' and 'solicitor at trial'. All that remained to be considered at the next listing was the claim for wasted costs.
92 When at the conclusion of taxation on that day consideration was being given to future listings, because I had heard nothing to indicate otherwise, I took it to be the case that the plaintiff intended to proceed to tax the claim presented in the bill by reference to the schedule.
93 Two further dates were set aside for taxation. Although based upon then recent experience it had been my expressed view that two dates would be insufficient to conclude the process, the plaintiff considered that it would be sufficient. There being no doubt that the plaintiff had been put on notice of what would be required of him, I took it to be the case that there was a prospect that in the interim discussions with the defendants would somehow expedite the proceedings that I envisaged.
94 Immediately prior to the next date of hearing I was informed that it had been agreed that that date would be vacated and that counsel was confident that the remaining date would be sufficient to complete the outstanding task.
95 On that day the plaintiff presented what are designated additional schedules. The first is headed 'Costs thrown away 2015'. It details periods of time between 16 July 2015 and 20 October 2015 of both solicitor and counsel. It appears to project a claim for recovery for total of 48.5 hours of counsel's time. The second, 'Examples of additional work by counsel'. The scope of that work extends back to December 2014. It appears to project a claim for counsel's communications. The characterisation of work as 'additional' would appear to distinguish the work to which it refers from services that had been thrown away. The third is headed 'Adjournment application' and is comprised of three items. They specify an interlocutory application that had been heard on 15 October 2015 and a proposed application that would be made at trial. The order made on the application was that the costs be paid by the applicant's solicitor. As for the proposed application, I take it to be that which the defendants made at trial that had resulted in the order dated 20 October 2015. Clearly such costs would not be thrown away, but would fall for consideration under the first limb of par 10: for costs of the adjournment. The fourth bears no heading it simply specifies dates and amounts without any detail.
96 At its conclusion the document projects a summary of wasted counsel fees that I take it would project a claim for $45,229.20. How the summary relates to the balance of the document is not evident. I note that in the schedule attached to the bill, the component for counsel fees is $42,944.00.
97 Although the plaintiff did not abandon either any part of the claim or any item of the schedule attached to the bill, in embarking upon the process of taxing the claim I was taken to the first item of the first of the additional schedules.
98 It specifies periods of time on 16 July 2015 allocated to both solicitor and counsel for preparation and conference for the purpose of preparing for trial. Submissions were then made as to the sufficiency of that detail for the purpose of identifying any relevant service that had then been provided to the plaintiff.
99 I considered that the item was insufficient to identify any service or part of a service that had been provided to the plaintiff. I required the plaintiff to provide details of what of relevance for purposes of recovery under the order had been transacted at the conference. Such detail would permit consideration of whether it went to any particular service and if so establish grounds for an inquiry as to whether it had been wasted. I indicated that the inquiry would be undertaken in a context where counsel had been briefed on a number of occasions, including for trial in November 2014.
100 The requirement was expressed in the presence of the plaintiff's solicitor who had been one of the two persons at the conference the subject of the item. That that being the case I expected a response by reference to notes or memory alternatively that an explanation would be given for his inability to respond. Had he been unable to respond, it would have been for the plaintiff to inform me of anything that would justify the contention that the conference or any part of it fell within the scope of the order. A determination would then have been made.
101 The only response of the plaintiff was to propose that further schedules be prepared. Nothing was volunteered as to the purpose that would be served by what was proposed.
102 The process of taxing a duly listed bill is peremptory. I regarded the fact that the plaintiff had not been adequately prepared to put any case to justify recovery of the cost of the conference as significant. Confronted by the need to provide information that it had been obvious would be required he had failed to respond in any useful manner. It was evident that he was not prepared to abandon the claim. He gave no indication that by the provision of further schedules the deficiencies in the case for recovery of the cost of the conference would be addressed. I considered that it remained for the plaintiff to respond to the request for information.
103 Although the plaintiff did not seek an adjournment I took it to be the case that an adjournment would be required. As I have just indicated I considered that it was likely that the proposed schedules would address the claim in the bill.
104 Ultimately the defendants submitted that nothing that had been addressed to the plaintiff was new. He had been on notice of what had been required of him; that it ought to be considered that he had had his chance to recover under the order; and that he should recover nothing.
105 Although this was the first occasion upon which the particular item in the bill had been taxed, there had been extensive consideration given to the scope of the order for recovery of wasted costs; during those discussions the attitude of the defendants to the extent of the claim had been quite clear; I had previously raised the issue of the lack of detail in the schedule. Those discussions had been had on each of the number of occasions that the bill had been listed. Those listings had been over a period of three months; a period sufficient to allow for instructions, reflection and advice upon all that had been said in relation to the particular item of the bill. On a number of prior occasions the plaintiff had been subject to direct probing of his case both by the defendant and myself on matters central to the entitlement established by the order. At the very least the observations that I had made after receiving the plaintiff's written submissions ought to have given him cause for reflection. The plaintiff was represented by his solicitor at the taxation. His solicitor had engaged counsel for the task. It was beyond my comprehension that the practitioners present on his behalf would not have understood what I had conveyed over what amounted to hours of discussion concerning relatively simple propositions. It was unlikely that the plaintiff had not been presented with sufficient of what both the defendant and I had expressed to allow him to make an informed judgment as to the prospect of recovering costs commensurate with the quantum of his claim.
106 Because the plaintiff had then been given ample opportunity to suggest that consideration of the particular item be deferred and that attention be given to one neither bedevilled by the generality of its expression nor without apparent support, I concluded that as much as the plaintiff had been revealed as being unprepared to deal with the particular item it was likely that his proposition for further schedules revealed that he was then no better prepared to proceed with any other. There was a real prospect that the plaintiff had proposed provision of further schedules simply to bring the process of taxation on that day to a close.
107 I determined that it was appropriate to do as the defendants proposed ought to be done because the plaintiff had not displayed any preparedness to pursue any part of his claim to the end of recovery.
108 I have numbered the paragraphs by which objection is expressed as follows:
(The taxing officer)
1. Failed to make any allowance for wasted costs in the face of detailed information.
2. Failed to make any allowance for the costs of the lawyer on the record when acknowledging that wasted costs including notifying witnesses; and issuing subpoenas without suggesting those examples are exhaustive;
3. Failed to allow the lawyer on the record to address the court on his costs claimed.
4. Erred in the exercise of discretion by not allowing any fees for counsel in the face of detailed information such as:
(a) counsel fee notes of and including services rendered in 2015;
(b) a table of calculated times spent by counsel which table had been prepared with the knowledge and approval of counsel and a copy of which was handed to the registrar at the taxation;
(c) rejected an invitation by counsel for the plaintiff at the taxation to take him through counsel's fee note to illustrate where time had been wasted;
(d) failed to give any or any sufficient weight to the explanations given to him as a result of the information conveyed by counsel.
5. Erred in failing to give any or any sufficient weight to the orders of the court relating to wasted costs at the second attempt to try the action.
6. The plaintiff seeks leave if necessary to put additional evidence before the registrar of additional documents, the taxation being incomplete until the interlocutor is signed – list attached. Copies of related documents will be filed and served later.
109 As for the first ground, in light of all that I have outlined above, to contend that detailed information had been provided is simply not a correct assessment of what had transpired. Had it been the case there would have been no need for the proposed schedules. To the contrary, but for the first, at each other listing of the bill, the want of detailed information had been the primary focus of comment and submissions of the defendants and observations by myself. Indeed to the extent that taxation of the claim had progressed the reason for the determination had been the plaintiff's failure to provide information.
110 To the extent that the ground may be taken to suggest that some amount ought to have been recovered, the defendant had made no concession as to quantum and to the extent that taxation of the claim had progressed, there was no justification for recovery of any amount.
111 The next ground of objection is that the taxing officer failed to make any allowance for the costs of the lawyer when acknowledging that wasted costs included notifying witnesses; and issuing subpoenas.
112 The order was provided for the benefit of the plaintiff. For present purposes and the next two grounds of objection there is no reason to distinguish services by reference to the identity of their provider.
113 The particular parts of the service specified by the plaintiff are those that the defendants had indicated might be conceded at or about the time they indicated that recovery would be minimal when judged by the value of the claim. Prior to the determination the plaintiff had the opportunity to take me to the particular part or parts of the claim or items in the schedules. He did not do so.
114 At the point that the determination was made no concession as to quantum had been made by the defendants. They had then submitted that the plaintiff should recover nothing.
115 The next is that the taxing officer failed to allow the lawyer on the record to address the court on his costs claimed. I repeat the observations that I made in relation to the manner of expression of the last objection.
116 I am more than a little surprised by the contention that audience was not accorded to the plaintiff. Both counsel and the plaintiff's solicitor each spoke during the course of what I consider had been extensive discussions relating to the claim and upon its taxation.
117 To the extent that by the terms of the objection the plaintiff had intended to convey that he was not heard in relation to any claim made for services provided by his solicitor, I was not taken to any part of the claim other than the particular conference with counsel.
118 The next is that the taxing officer erred in the exercise of discretion by not allowing any fees for counsel in the face of detailed information such as:
(a) counsel fee notes of and including services rendered in 2015;
(b) a table of calculated times spent by counsel which table had been prepared with the knowledge and approval of counsel and a copy of which was handed to the registrar at the taxation;
(c) rejected an invitation by counsel for the plaintiff at the taxation to take him through counsel's fee note to illustrate where time had been wasted;
(d) failed to give any or any sufficient weight to the explanations given to him as a result of the information conveyed by counsel.
119 I repeat my observations relating to the manner of expression of the objection. I also repeat my response to the first ground of objection. From time to time during the course of taxation reference had been made to counsel's fee notes. No information sufficient to outline or identify any wasted service had been drawn from that source. For present purposes the plaintiff does not specify particular relevant information provided from that resource.
120 As for the particular categories of information specified in the objection, the reference at par (a) to 'services rendered by counsel in 2015' suggests an advance in the case put at taxation in that it recognises the significance of 'services'. I have made that observation to distinguish par (a) from pars (b) and (c).
121 As for par (a), counsels fee notes had not been prepared for the purpose of taxing the costs thrown away. They do not identify any part of any service that was wasted.
122 As for pars (b) and (c), recovery under the order does not turn upon whether time had been spent by counsel and that the plaintiff considered that it had been wasted, rather it was for the plaintiff to identify services or parts of services that had been wasted. A table of calculated times spent by counsel may have been of utility for the purpose of taxation in a different context.
123 As for par (d) I am not assisted by any particular reference to information that had emanated from counsel. As I have indicated, the plaintiff was called upon to provide information and he did not do so.
124 I have considered that by the terms of objection the plaintiff had intended to convey something as to counsel's opinion regarding the scope of recovery under the order. If such an opinion had been provided it was never tendered. Indeed I do not recall that it was mentioned after the defendants' engagement in the taxation.
125 The next ground of objection is that the taxing officer erred in failing to give any or any sufficient weight to the orders of the court relating to wasted costs at the second attempt to try the action.
126 The benefit conveyed by par 10 of the order dated 20 October 2015 can be broken down to further scope for recovery; reversal of the onus at taxation of a claim; and entitlement to immediate taxation and payment. The first permits the beneficial party to make an additional claim or claims in a bill. The second imposes a significant burden on the adverse party at taxation of the claim.
127 I have no difficulty with the proposition that the beneficial party would expect that recovery would be commensurate with loss. None the less it is for that party to realise the benefit. Absent agreement the extent of recovery would be determined by a process well known at least to the solicitor engaged for the taxation. By the time that the bill was lodged the plaintiff had chosen to forgo immediate payment.
128 In my opinion any contended error in principle suggested by the objection ought to be considered in the broader context that I have previously outlined.
129 Based upon my experience in taxing bills over a period in excess of two years I had no doubt that the plaintiff would have had good prospects for recovery of a relatively modest sum. I had no doubt that a case which founded that expectation was somewhere buried in the schedules provided but that it was unlikely that it would be either revealed or established other than by a laborious process that appeared to be burdened by the need to consider what prima facie appeared to be many unmeritorious parts of the claim. Indeed it was open to consider that the plaintiff might not have been concerned that the process could be extensive even if ultimately productive of relatively modest return. I do not consider that to allow the plaintiff to adopt such a course could be justified by the terms of the order.
130 In my opinion ultimately it was a matter of judgment whether despite all that had previously transpired, by embarking upon the task of establishing any claim in the manner that he had chosen to do and having been found unprepared, the plaintiff had sacrificed his opportunity to recover under the order. The fact that he had previously been accorded a particular benefit had been rendered incidental.
131 The last ground of objection presupposes that the plaintiff had succeeded in the process of objection and effectively seeks the opportunity to proceed to tax the claim. I make the assumption that I have about the claim as there is nothing to indicate that it would be either any different or any differently outlined.
132 The last ground stands in a context of failure. It does not amount to an objection and the question of the need for leave does not arise.
133 Although not to the point at the time of taxation, for present purposes I choose not to ignore features of the index of documents to which reference is made. It commences with a document dated 24 May 2014; it is not until midway through the third page that there is reference to the matter being listed for trial in October 2015; the last of seven pages and most of the penultimate page refer to dates after 21 October 2015.
134 In my opinion none of the grounds of objection establishes any error in principle proposed by the plaintiff in the result.
135 As a result of the review I will tax off $718.85 from item 11 and sign the allocator.
136 Finally I record that in the process of review the first page of the bill became detached from the file and despite efforts to find it, it appears to have been lost.
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