| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : KOWALSKI -v- MINISTER FOR HEALTH IN THE STATE OF WESTERN AUSTRALIA [2002] WADC 262 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 3 DECEMBER 2002 DELIVERED : 17 DECEMBER 2002 FILE NO/S : CIV 2913 of 2001 BETWEEN : IRENE KOWALSKI Plaintiff
AND
MINISTER FOR HEALTH IN THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords: Practice and procedure - Western Australia - Objections to taxation - Turns on its own facts
Legislation: Nil
Result: Objections not allowed
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Representation:
Counsel:
Plaintiff : Mr S V Forbes
Defendant : Mr P Sheavyn
Solicitors:
Plaintiff : Ilberys
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 DEPUTY REGISTRAR HEWITT: This matter was listed before me for taxation on 15 October 2002 and the plaintiff has subsequently brought in objections to that taxation filed on 22 October 2002.
2 The first objection concerns item 4 of the bill which was getting up case for trial in which $6,000 was claimed and $4,500 deducted leaving a balance of $1,500. The basis of the objection is that the amount allowed approximates 5.5 hours of a senior practitioner's time at a maximum rate and is for that reason manifestly inadequate. That proposition is supported by the following matters: (a) instructions were taken from the client which occupied approximately two hours; (b) approximately 11 medical reports were in the plaintiff's possession; (c) a number of documents and reports were obtained through the discovery process which were relevant to the issues and they required perusal. 3 The information with which I was provided at the taxation differs somewhat from that which is relied upon to support the objection however although the work now claimed to have been undertaken in the objections is marginally greater than that of which I was informed at the taxation, there is not a significant difference between the two.
4 The plaintiff requisitioned reports from three doctors obtaining a total of five reports of which three reports were of substance and required detailed perusal. The remaining documents perused by the plaintiff's solicitors were obtained through the discovery process and were produced to me and are not of great extent or complexity.
5 The taxing plaintiff is unable to say how long was spent reading these documents since no record of it was kept. In my view my allowance for getting up case is on the side of generosity. The work which was undertaken by the plaintiff was not arduous or likely to be time consuming. Since the plaintiff was unable to present actual details of time spent doing the work he must be content to accept my estimate of the time a competent solicitor would take to undertake the work involved. In my view an allowance of three hours for perusals is ample and as a consequence the objection to item 4 will be disallowed.
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6 The next item objected to is item 7 on the bill which was the allowance for drawing the bill of costs. The plaintiff in arguing the objection relied upon the argument expressed within the objections and did not add anything to that argument.
7 On my assessment the drawing of the bill did not deserve a significant allowance. The bill was drawn at figures which I considered to be grossly excessive (in one case 10 times as much as I thought was a reasonable allowance) and included items which were totally disallowed. 8 Given the poor quality of the drafting of the bill I determined a significant allowance was not called for and as a consequence from the claim of $390 I deducted $270 leaving a balance of $120. I am not persuaded that I was in error in so doing. 9 The final matter of the subject of objection is item 8 on the bill. Interestingly the bill which was before me for taxation contained no such item but in the course of hearing the objections I was reminded by the representative of the defendant that I was invited to amend the bill to include the item but declined to allow that amendment. The amendment proposed was to include an item of $40 for a disbursement for serving the writ. 10 The representative of the defendant reminded me, and I accept, that I did not allow the amendment on the basis that I would not be inclined to allow the claim in any event. 11 The basis of that decision rests in the nature of the affidavit of service which was filed in the action. 12 It is said by the process server that on 12 November 2001 he went to the King Edward Memorial Hospital and there produced and showed a sealed copy of the writ and gave a true copy to a person identified as Julie Corry, a person apparently over the age of 16 years who admitted to the process server she was authorised to accept documents on behalf of the Minister for Health in the State of Western Australia. 13 In the absence of any explanation as to who Julie Corry was, in the sense of the position she occupied within the hospital, or the basis of her authorisation to accept documents on behalf of the Minister for Health in the State of Western Australia, I formed the view that the affidavit of service and the process of service was suspect and an allowance should not be made.
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14 I am not persuaded otherwise by the objections which are before me and that objection shall also be disallowed.
15 In summary therefore I disallow all the objections. The costs of the objections shall be fixed at $100 and shall be payable by the plaintiff to the defendant. The sum of $100 shall be deducted from the taxed sum and the bill shall be allowed in the sum of $3,941.71 upon the date of issue of these reasons.
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