La Mela v Fogliani - [2022] WADC 12

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   LA MELA -v- FOGLIANI [2022] WADC 12
CORAM:   GETHING DCJ
HEARD:   7 FEBRUARY 2022
DELIVERED          :   11 FEBRUARY 2022
FILE NO/S:   APP 65 of 2016
BETWEEN:   VINCENZO LA MELA
Appellant
AND
FRANK FOGLIANI
FRANKLEXIS PTY LTD
Respondents

FILE NO/S: APP 86 of 2016
BETWEEN: VINCENZO LA MELA
Appellant
AND
FRANK FOGLIANI
FRANKLEXIS PTY LTD
Respondents

FILE NO/S: APP 93 of 2017
BETWEEN: VINCENZO LA MELA
Appellant
AND
FRANK FOGLIANI
FRANKLEXIS PTY LTD
Respondents

FILE NO/S: APP 101 of 2017
BETWEEN: VINCENZO LA MELA
Appellant
AND
FRANK FOGLIANI
FRANKLEXIS PTY LTD
Respondents

ON APPEAL FROM:
For File No:   APP 65 of 2016
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE TEMBY (13 MAY 2016)
File Number            :   PER/GCLM/51084/2012
For File No:   APP 86 of 2016
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE JOHNSTON (21 OCTOBER 2016)
File Number            :   PER/GCLM/51084/2012
For File No:   APP 93 of 2017
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE WALTON (19 SEPTEMBER 2017)
File Number            :   PER/GLCM/51084/2012
For File No:   APP 101 of 2017
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE WALTON (5 OCTOBER 2017)
File Number            :   PER/GCLM/51084/2012

Catchwords:

Magistrates Court appeal - Appeal from an interlocutory decision of a registrar - Suspension order - Whether error of principle made in a taxation - Whether basis to set aside the certificates of taxation

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15
Rules of the Supreme Court 1971 (WA), O 66 r 55

Result:

Suspension orders refused

Representation:

APP 65 of 2016

Counsel:

Appellant	:	In person
Respondents	:	Ms A L Shingler

Solicitors:

Appellant	:	Not applicable
Respondents	:	P A Martino

APP 86 of 2016

Counsel:

Appellant	:	In person
Respondents	:	Ms A L Shingler

Solicitors:

Appellant	:	Not applicable
Respondents	:	P A Martino

APP 93 of 2017

Counsel:

Appellant	:	In person
Respondents	:	Ms A L Shingler

Solicitors:

Appellant	:	Not applicable
Respondents	:	P A Martino

APP 101 of 2017

Counsel:

Appellant	:	In person
Respondents	:	Ms A L Shingler

Solicitors:

Appellant	:	Not applicable
Respondents	:	P A Martino

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

Australia Machinery Engineering (AME) Pty Ltd v Moore Group Holdings Pty Ltd [2017] WADC 124
Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621
Bray v Ryan [1999] WADC 66
Briggs v Glentham Pty Ltd (1992) 8 WAR 339
Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181
Ellis v East Metropolitan Health Service [2018] WADC 36 (S)
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Glew v Shire of Greenough [No 2] [2008] WASCA 75
Griffiths v Delron Cleaning Pty Ltd [2003] WADC 123
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hunt v Knabe [No 2] (1992) 8 WAR 96
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Kezic v St John of God Health Care Inc [2015] WASCA 220
La Mela v Fogliani [2017] WADC 53
La Mela v Franklexis Pty Ltd [2019] WADC 7
La Mela v Franklexis Pty Ltd [2020] WASCA 83
La Mela v Franklexis Pty Ltd [2021] HCASL 10
Liebherr-Australia Pty Ltd v Bloomfield [2006] WASCA 128
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148
Nobarani v Mariconte [2018] HCA 36
Rankilor v Circuit Travel Pty Ltd [No 2] [2012] WASCA 155
Seaton v Enever [2014] WADC 58
Settlers House Pty Ltd v Rocca Enterprises Pty Ltd [2011] WADC 157
Smart v Prisoner Review Board (WA) [2012] WASC 48
Stewart v Hames [2019] WASCA 127
Tobin v Dodd [2004] WASCA 288
Vassilou v Roberman [2007] WADC 145
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Woodley v Woodley [2018] WASCA 149
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
Zurich Bay Holdings Pty Ltd v ATM Enterprises Pty Ltd [No 2] [2011] WADC 48 (S)

GETHING DCJ:

Overview

For the past 10 years, the appellant, Mr La Mela, has been involved in litigation with the respondents, Mr Fogliani and Franklexis Pty Ltd (Franklexis).[1] The litigation is over what turned out to be a $480 invoice for work done by the respondents on Mr La Mela's 2002 Alfa Romeo 156 twin spark automobile (the Alfa).
[1] I will refer to Mr Fogliani and Franklexis generally as 'the respondents' unless there is a need to specifically identify an entity.
The most recent instalment of this litigation was before me for determination on 7 February 2022. This was an appeal from a decision of a registrar in March 2021 to refuse an application by Mr La Mela to suspend enforcement of a series of costs judgments. Since then, the costs judgments have been paid and there are no current enforcement proceedings to suspend. For this reason, at the hearing I advised the parties that, considering the suspension applications anew, I would decline to make the orders sought.
In order to bring some finality to the issues in the District Court, I went on to consider whether there would be any basis for the court to extend the time within which Mr La Mela could seek a review of the taxation of the underlying bills of costs, or to set aside the certificates on those bills. Again, at the hearing, I advised the parties that I could discern no basis to do so.
I also fixed the costs payable.
I said I would provide written reasons for coming to these conclusions, which are as follows.

History of proceedings

In February 2012, Mr La Mela arranged for the Alfa to be taken to Auto Car Tech because the gears would not engage. Auto Car Tech was a mechanical repairer and automotive services provider owned by Franklexis. Mr Fogliani was the director and proprietor of Franklexis and at all times acted on their behalf.
Mr Fogliani repaired the car and sought payment of $480.05 being the cost of installing a master cylinder. Mr La Mela refused to pay for reasons which I do not need to set out. As a result, Mr Fogliani refused to release the Alfa to him until payment was made for the work done. In addition to exercising a lien over the Alfa, Mr La Mela was informed that a daily storage fee would be charged until the $480.05 and any accrued storage fees were paid.
Mr La Mela commenced proceedings against the respondents in the small claims division of the Magistrates Court. The respondents counterclaimed for the repair costs and the daily storage fees. Because of the amount of the daily storage fees, the claim was transferred to the general procedure division.
Along the way, Mr La Mela made two interlocutory appeals to this court. The first was APP 65 of 2016. This appeal was determined by Scott DCJ in April 2017, with reasons being published.[2] It was dismissed with an order that Mr La Mela pay the respondents costs to be taxed if not agreed.
[2] La Mela v Fogliani [2017] WADC 53.
The second appeal to this court was APP 86 of 2016. This appeal was discontinued by Mr La Mela by notice filed 20 March 2017. As the respondent did not file an answer which sought to vary the appealable decision or to cross-appeal, by District Court Rules 2005 (WA) (DCR) r 58(5) the respondents became entitled to the taxed costs of this appeal.
Ultimately, the dispute went to a trial in the general procedure division of the Magistrates Court in May 2017. Judgment was delivered on 19 September 2017. The magistrate dismissed Mr La Mela's claims against the respondents. The magistrate allowed the counterclaim for the repair costs in the sum of $480.05, but dismissed the counterclaim for the accrued storage fees. Judgment was entered accordingly.
On 5 October 2017 the magistrate ordered that Mr La Mela pay the costs of the claim and defence from 25 November 2013 to the respondents to be taxed if not agreed. Further, he ordered that Mr La Mela pay the costs of the counterclaim to be taxed if not agreed and to be reduced by 25% off the gross total after being taxed or agreed. An order that the Alfa be available for collection upon payment of the judgment sum and costs was also made.
Both decisions were appealed to the District Court. APP 93 of 2017 concerned the judgment, with APP 101 of 2017 concerning the costs order. Both appeals were determined by Petrusa DCJ in January 2019, and were the subject of published reasons.[3] As to APP 93 of 2017, the judge found that the matters complained of by Mr La Mela did not identify any legal, factual or discretionary error by the magistrate, and so dismissed the appeal. The judge also dismissed a cross-appeal by the respondents as to their claim for storage fees. As to APP 101 of 2017, the judge again could not identify any legal, factual or discretionary error by the magistrate in respect of the decision as to costs, and also dismissed this appeal. The judge further ordered Mr La Mela to pay the respondents' costs on both appeals to be taxed if not agreed.
[3] La Mela v Franklexis Pty Ltd [2019] WADC 7.
The decisions in APP 93 of 2017 and APP 101 of 2017 were the subject of an unsuccessful appeal to the Court of Appeal, determined in May 2020.[4] This decision in turn was the subject of an unsuccessful application for special leave to appeal to the High Court.[5]
[4] La Mela v Franklexis Pty Ltd [2020] WASCA 83.
[5] La Mela v Franklexis Pty Ltd [2021] HCASL 10 (10 February 2021).
The respondents subsequently filed bills of costs for each District Court appeal. Each was listed for taxation on 5 October 2020 before Deputy Registrar Hewitt. The registrar taxed the costs in APP 86 of 2016, APP 93 of 2017 and APP 101 of 2017 on 5 October 2020, signing the costs certificates on that date. The costs assessment for APP 65 of 2016 was adjourned to 7 December 2020 for the purposes of extracting the orders of Scott DCJ, and the certificate was signed on that date. The costs were assessed as follows:
(a)APP 86 of 2016 - $3,382.41
(b)APP 65 of 2016 - $6,480.50
(c)APP 93 of 2017 - $7,309.00
(d)APP 101 of 2017 - $7,309.00
(which I will refer to as the Costs Orders).
On 16 February 2021 the respondents filed applications for a Property Seizure and Sale Order (PSSO) in each appeal to enforce the Costs Orders. The following day, PSSOs were made in each appeal to seize and sell the property of Mr La Mela to satisfy the Costs Orders.
On 2 March 2021 Mr La Mela filed an application to suspend enforcement of the PSSO in each appeal (Suspension Applications).
On 10 March 2021 the Suspension Applications were heard before Deputy Registrar Harman. The registrar dismissed each Suspension Application with costs awarded to the respondents to be taxed if not agreed (Suspension Decision).
On 29 March 2021 Mr La Mela filed an appeal against the Suspension Decision in each appeal. This was in the correct form, being a notice of appeal from the decision of a registrar.
For reasons which are not entirely apparent on the file, but which appear to be in part due to an adjournment requested by Mr La Mela on the ground of his ill health, the hearing of the appeal from the Suspension Decision was deferred.
On 15 September 2021 Mr La Mela's property on Hilda Street, Shenton Park was listed for auction by the Sheriff pursuant to the PSSOs. On 14 September 2021 Mr La Mela paid in full the Costs Orders plus interest and costs, which prevented the auction from proceeding.
On 2 November 2021 Mr La Mela filed an amended appeal notice. This was in the incorrect form as the form used was for an appeal from the decision of an external decision maker.

The present appeal

The appeals before me for determination on 7 February 2022 in each of APP 65 of 2016, APP 86 of 2016, APP 93 of 2017 and APP 101 of 2017 were from the Suspension Decision.
The appeals were commenced just outside the 10 days required by DCR r 15(2), so leave is required. Mr La Mela is a litigant in person. He appears to have some significant health issues. The appeals were filed within 19 days of the Suspension Decision. In all the circumstances, I will grant leave to appeal out of time.
The appeal is by way of a new hearing of the matter that came before the registrar.[6] It involves a complete de novo review.[7] The judge hearing the appeal is to treat the application as if it was before the court for the first time, save that the party appealing has the right as well as the obligation to open the appeal.[8] There is no requirement on the party appealing to show that the registrar made an error of law or principle in the decision under appeal.[9]
[6] DCR r 15(6).
[7] Briggs v Glentham Pty Ltd (1992) 8 WAR 339, 349 - 350 (Malcolm CJ, with whom Pidgeon & Rowland JJ agreed); Hunt v Knabe [No 2] (1992) 8 WAR 96, 109 - 110 (judgment of the court); Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcom CJ) (Hazart); Liebherr-Australia Pty Ltd v Bloomfield [2006] WASCA 128 [8]; Kezic v St John of God Health Care Inc[2015] WASCA 220 [42] (reasons of the court).
[8] Hazart (28); Settlers House Pty Ltd v Rocca Enterprises Pty Ltd [2011] WADC 157 [4].
[9] Stewart v Hames [2019] WASCA 127 [8] (judgment of the court); Hazart (28).
As the appeal is by way of a new hearing of the matter that came before the registrar, the parties are not confined to the evidence presented to the registrar, and the court should ordinarily allow the parties to rely on additional evidence, subject to a discretion to exclude.[10] On this basis, I received the affidavit filed by Mr La Mela on 2 November 2021 in each appeal. However, this affidavit contains much material which goes to the merits of Mr La Mela's claim against the respondents. As the merits of his claim, insofar as they are before the District Court, have been determined, and not disturbed on subsequent appeal, this material is not relevant to the determination of the matters before me.
[10] Hazart (28) - (30), (37); Australia Machinery Engineering (AME) Pty Ltd v Moore Group Holdings Pty Ltd [2017] WADC 124 [7] (Parry DCJ); Seaton v Enever [2014] WADC 58 [4] (Davis DCJ); Vassilou v Roberman[2007] WADC 145 [12] - [15] (Keen DCJ).
Mr La Mela then sought to amend each appeal notice by amended notice filed 2 November 2021. The decision under review is identified as Mr La Mela's application for 'stay of allocator & costs'. The provision relied on is Rules of the Supreme Court 1971 (WA) O 66 r 5 (RSC). The ground of appeal is:
1.The Deputy Registrar erred in not taking into consideration, material for his decision, (1) that the Application was also based on the fact that the J Creditors had submitted for taxation of bills of costs for an amount greater than they were entitled to and therefore the allocator was for an amount greater than they were entitled to (2) that the respondent did not file a response and their submission from the bar did not disclose to the court that they irregularly claimed all the costs by describing themselves and Defendants they were claimants in appeal 65 and 86 and claimants in the cross-appeal, which was dismissed by the DCJ, in appeal 923 and 101 of 2017.
The reference to RSC O 66 r 5 arises because Mr La Mela asserts that the solicitor acting for the respondents, Ms P A Martino, should be the subject of an order pursuant to that rule that she personally pay the costs of the appeals.
At the hearing on 7 February 2022 before me, it became apparent that another concern of Mr La Mela was that each taxation which underpinned the Costs Orders was irregular. This was because he asserted that the respondents claimed and were allowed costs in excess of what they were in fact charged.
As I have mentioned ([21]), each Costs Order has been paid. This had the effect of discharging the PSSO relating to that costs order. There is currently no enforcement order made pursuant to the Civil Judgments Enforcement Act 2004 (WA) which is capable of being suspended. For that reason alone, hearing the Suspension Applications anew, they must be dismissed, as should the appeal.

Potential challenges to the Costs Orders

In the interests of finality, I allowed Mr La Mela to aerate the outstanding avenues with which he could raise the many concerns (not going to the merits of the dispute) set out in his affidavit of 2 November 2021 and reiterated in oral submissions. This approach is appropriate given that Mr La Mela is a litigant in person. As such, he is entitled to some leniency in relation to compliance with the court rules.[11] I approach the documents in which he articulates his concerns with some flexibility.[12] I need to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[13] I recognise that a 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[14] At the same time, I also need to ensure that any latitude given to Mr La Mela as a litigant in person does not deprive the respondents of their rights to procedural fairness and a fair hearing.[15] The balance is struck by limiting the assistance given to a litigant in person to that necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[16]
[11] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court) (Glew).
[12] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P), 543 (Hope JA, with whom Samuels JA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[13] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J) (Ibrahim); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed) (Tobin).
[14] Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (Brennan, Deane, Toohey, Gaudron & McHugh JJ); Ibrahim [21]; Glew [10]; Tobin [14].
[15] Nobarani v Mariconte [2018] HCA 36[47] (Kiefel CJ, Gageler, Nettle, Gordon & Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
[16] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] (judgment of the court).
Specifically, I considered whether there was any basis on which the court should extend the time within which Mr La Mela could apply to have the court review each of the taxations by Deputy Registrar Hewitt pursuant to RSC O 66 r 55. That rule is in the following terms:
55.Review of taxation by judge
(1)If a party is dissatisfied with the certificate of the taxing officer as to any item or part of an item objected to under rule 53 of this Order, he may, within 14 days from the date of the certificate, or such other time as the Court, or the taxing officer at the time he signs his certificate, allows, apply to a judge in chambers for an order to review the taxation as to that item or part of an item.
(2)The judge, if of opinion that the taxing officer has made an error in principle, may thereupon make such order to rectify the error as the judge thinks just.
(3)The certificate of the taxing officer is final and conclusive as to all matters which have not been objected to in accordance with these rules.
The power of judge in chambers to review a taxation is thus conditional upon the party objecting to an item or part of an item pursuant to RSC O 53.
The bills of costs were filed on 7 or 12 August 2020. On 31 August 2020 the court received a letter from Mr La Mela objecting to each taxation. This was on three bases, in effect:
(a)the then pending application for special leave to the High Court;
(b)that he had an outstanding claim for compensation for the damage done to the Alfa; and
(c)that the cross-appeal as regards the counterclaim for the storage fees was dismissed.

These submissions were on each (electronic) court file so were before the registrar at the taxation.
As I have mentioned, each certificate of taxation has been signed. The registrar is functus officio once he or she has signed the certificate of taxation.[17]
[17] Rankilor v Circuit Travel Pty Ltd [No 2] [2012] WASCA 155 (judgment of the court) (Rankilor); Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621, 624 (Kitto J) (Australian Coal).
Mr La Mela did not file any objection as to the taxation pursuant to RSC O 66 r 53 before each certificate was signed. On an application under O 66 r 55, only items covered by the objections carried in before the taxing officer may be considered.[18] For that reason alone, any application for review brought pursuant to RSC O 66 r 55 would have been dismissed.[19] It follows that it would not have been appropriate to extend the time within which any such application could have been brought.
[18] Australian Coal (626); Rankilor [74]; Glew v Shire of Greenough [No 2] [2008] WASCA 75 [18] (Beech J) (Glew [No 2]).
[19] Glew [No 2] [18].
There remains an inherent jurisdiction to set aside a certificate of taxation.[20] In determining whether to set aside a certificate of taxation, a relevant consideration is the applicant's prospects of a successful review of the taxation.[21]
[20] Rankilor [67] - [68]; Glew [No 2] [18].
[21] Rankilor [67].
There are, so far as I can discern, five bases on which Mr La Mela seeks to assert that the registrar made an error of principle in taxing the bills of costs, being that:
(a)the taxation in the appeals should have been undertaken on the basis that the claim, as ultimately assessed by the magistrate and affirmed on appeal, ought to have been determined using the minor cases procedure, and should never have been allowed to be determined as a general procedure claim;
(b)the respondents' claimed, and were allowed, costs in excess of what they were in fact charged by their lawyers;
(c)the costs should be paid by Ms Martino personally, pursuant to RSC O 66 r 5, and not by him;
(d)he had an outstanding claim for compensation for the damage done to the Alfa; and
(e)the cross-appeal in regards to the counterclaim for the storage fees was dismissed.
As to the first basis, one significance of the minor cases procedure is that there are strict limits on the costs which are able to be ordered. In particular, an unsuccessful party may only be ordered to pay the legal costs of the successful party in exceptional circumstances or where the unsuccessful party's claim or defence was wholly without merit.[22]
[22] Magistrates Court (Civil Proceedings) Act 2004 (WA) s 31 (MCCPA).
However, decisions in both the minor case and general procedure divisions of the Magistrates Court may each be the subject of an appeal to the District Court.[23] It is the case that if an action (not an appeal) is commenced in the District Court, and the plaintiff does not recover more than he or she could have recovered in the Magistrates Court, that unless the court orders to the contrary, the plaintiff's costs are limited to what could have been recovered had the action been commenced in the Magistrates Court.[24] However, there is no equivalent provision for an appeal of a decision in the Magistrates Court based on whether the amount ultimately recovered was within the minor cases threshold. There is a remedy where 'the likely costs of the appeal to the parties would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal'. This is to summarily strike out the appeal.[25]
[23] MCCPA s 32 (minor cases), s 40 (general procedure).
[24] Rules of the Supreme Court 1971 (WA) O 66 r 17; Zurich Bay Holdings Pty Ltd v ATM Enterprises Pty Ltd[No 2] [2011] WADC 48 (S) [25] - [38] (Scott DCJ).
[25] MCCPA s 43(3).
More specifically, there is no provision in any of the MCCPA, the District Court of Western Australia Act 1969 (WA) (DCA) or the DCR which imposes any limits on the discretion of the court to order costs, or as to the taxation of those costs, where the appeal is from a minor case. Rather, costs for both types of appeal are to be assessed in accordance with the relevant costs determination,[26] being the Legal Profession (District Court Appeals) (Contentious Business) Determination 2018 (WA) (Appeal Determination) and its predecessors. The Appeal Determination again makes no distinction between the taxation of costs for an appeal from a minor case and an appeal from a general procedure claim. In the present case, each bill of costs was itemised and taxed in accordance with the applicable Appeal Determination or predecessor. Accordingly, I do not discern any error of principle by the registrar or other reason to set aside the certificate of taxation in any of the appeals based on the concern that the claim could, or should, have been determined in the Magistrates Court as a minor case.
[26] DCA s 67.
As to the second basis, on a party and party taxation, the role of the registrar is to assess the costs claimed by a party against the relevant cost determination. The key question of a party and party taxation is whether the sum claimed for a particular item is a reasonable amount for necessary work.[27] The process of taxation on a party and party basis was conveniently summarised by Commissioner Reynolds in Bray v Ryan:[28]
Time is a relevant factor in this way. The starting point of the taxation in any particular case is to determine what services needed to be done. It is only after the necessary services have been identified that a judgment can be made on the complexity or varying complexities of the services, the appropriate level or levels of seniority of the person or persons required to deliver the services and the reasonable hourly rate or rates for such services. The party whose bill is being taxed would most likely have calculated the sum claimed on taxation for getting up case for trial by reference to the time taken by a particular person or persons to provide the services at an hourly rate or rates for such person or persons.
The issue of what is a reasonable allowance is not determined by the mere fact that a practitioner claims that a particular number of hours were taken up in delivering the services.
In the final analysis it is necessary to first, identify what services were necessary in the particular case and secondly, objectively assess a reasonable allowance for such services by applying the Rules, the Determination and the underlying principles thereof and thirdly, measure the amount actually claimed in the bill for the services against the objective assessment in order to determine whether or not the amount claimed is reasonable and what adjustment, if any, should be made.
[27] Ellis v East Metropolitan Health Service [2018] WADC 36 (S) [25] (Gething DCJ) (Ellis).
[28] Bray v Ryan [1999] WADC 66 [35] - [37] (Commissioner Reynolds); Ellis [25]; Griffiths v Delron Cleaning Pty Ltd [2003] WADC 123 [13] (Martino DCJ).
So described, the actual costs charged by the claiming party are not relevant. There was no obligation or requirement on the respondents' lawyers to disclose the invoices which they rendered to their client. Indeed, any invoice rendered by a legal practitioner to its client may be the subject of a claim for legal professional privilege.[29] Whether or not the respondents' claimed, and were allowed, costs in excess of what they were in fact charged by their lawyers is not a relevant consideration on a party and party taxation. Again, I do not discern any error of principle by the registrar or other reason to set aside the certificates of taxation in any of the appeals based on this concern.
[29] Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181 [63] - [64] (Murphy JA, with whom Martin CJ & Newnes JA agreed).
As to the third basis, RSC O 66 r 5 does give the District Court power in any proceedings in which costs are incurred by a party to order any practitioner whom it considers to be responsible to pay those costs. However, no such order was made in the three appeals in which the court made costs orders, being APP 65 of 2016, APP 93 of 2017 and APP 101 of 2017 (the costs in APP 86 of 2016 being set by the DCR). The registrar's task was to tax the costs payable pursuant to the actual costs orders made. The submission that the costs should be paid by Ms Martino personally, pursuant to RSC O 66 r 5, and not by Mr La Mela, is not one which the registrar was able to entertain. Rather, if Mr La Mela wished to seek that order, he should have sought it from the relevant judge at the time the costs order in the appeal was made. Again, I do not discern any error of principle by the registrar or other reason to set aside the certificate of taxation in any of the appeals based on this concern.
As to the fourth basis, there is no outstanding claim in the District Court for compensation for the damage done to the Alfa. The decision in APP 93 of 2017 resolved all the issues going to the merits of Mr La Mela's claim insofar as they were before the District Court. As I have said, the registrar's task was to tax the costs payable pursuant to the actual costs order made. Whether or not Mr La Mela has any outstanding claim for compensation was of no relevance to taxation carried out by the registrar. Again, I do not discern any error of principle by the registrar or other reason to set aside the certificate of taxation in any of the appeals based on this concern.
As to the fifth basis, it is the case that Petrusa DCJ dismissed the cross‑appeal which related to the claim for storage costs. This issue was canvassed at the hearing before her Honour on 25 January 2019. Her Honour's decision was as follows:[30]
Thank you. Insofar as the issue of costs is concerned the starting proposition is that costs follow the event. There is nothing about the matter, the way it was conducted or from the submissions made to me that would persuade me from this usual course. Whilst there were two appeals, the issues were the same in each appeal. In my reasons at paragraph 17 I set out in broad terms the nature of the issues. Further, almost all of the court time in this matter was devoted to hearing the appellant's case which was ultimately unsuccessful. For this reason I see no good reason to depart from the usual course so far as costs of those appeals are concerned. The cross-appeal was confined to a very limited point with counsel relying significantly on their written submissions. The cross-appeal was also unsuccessful. Given all of these matters, I make the following orders as to costs: the appellant is to pay the respondents' costs on appeal numbers 93 and 101 of 2017 to be taxed, if not agreed. I make no order as to costs in respect of the respondents' cross-appeal.
[30] Transcript, 25 January 2019, pages 127 - 128.
The formal orders made reflected this decision, with an order being made for the costs of the appeal but no order being made as to the costs of the cross-appeal (though the extracted order does not expressly state this as is sometimes the case).
The position of there being 'no orders as to the cross-appeal' is reflected in the bill of costs filed for APP 93 of 2017. There was no claim for the respondents' application dated 19 February 2018 to amend the notice of respondents' intention, nor for Ms Martino's affidavit in support filed the same day. The submissions (claimed in item 3) canvass both the appeal and cross-appeal, though there is nothing before me to suggest that the registrar was not alive to this issue in setting the amount claimed. The description for getting up does not refer to the cross‑appeal:
Preparation of appeal hearing (including preparation of appeal documents, review Appellant's appeal notice, review of Appellant's affidavit material, review Appellant's submissions filed on 20 March 2018, 1 May 2018 and 9 August 2018).
I do not discern any error of principle by the registrar or other reason to set aside the certificate of taxation in APP 93 of 2017 based on the concern that the registrar allowed the respondents any costs of the cross-appeal.
In summary, had Mr La Mela properly raised the five issues which I have identified as an objection to the taxation, and had the registrar come to the same decisions, none would have given rise to an error of principle by the registrar. Nor would any have given rise to a basis to set aside any of the certificates of taxation.
There is a final, more general, basis on which an error in principle may arise, being that it may be inferred from a decision of the taxing officer if the result is such that the discretion appears not to have been exercised at all, or where it has been exercised in a manner that is manifestly wrong, or where it is shown that no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question.[31] I cannot infer any such error. Rather, in my view, having regard to the Appeal Determination and its predecessor, the amounts allowed for each item are well within an acceptable range for appeals of this kind.
[31] Rankilor [77] - [78].
For these reasons, at the hearing on 7 February 2022, I advised the parties that I could discern no basis for the court to extend the time within which Mr La Mela could seek review of the taxation of the underlying bills of costs, or to set aside the certificates on those bills.

Final orders

Given the tortious history of this litigation, I took the view that it was appropriate for me to fix the costs of the hearing before me. Counsel for the respondent is a senior practitioner within the relevant cost determinations. The cost determination applicable as at 7 February 2022 was Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (WA). This sets an hourly rate of $495 for a senior practitioner. The relevant item is item 26(c), an interlocutory hearing in the appeal, for which there is no scale maximum. The hearing on 7 February 2022 took just under an hour. Counsel for the respondent filed written submissions. I considered that a reasonable amount for necessary work for preparing for and attending the hearing on 7 February 2022 was three hours. Accordingly, I fixed the costs of the hearing on 7 February 2022 at $1,485, and made it payable by Mr La Mela within 14 days.
Again, in the interests of finality, I considered it appropriate to vary the order made by Deputy Registrar Harman on 10 March 2021 so that the costs of this hearing are fixed, not taxed. The same determination framework applies. I considered that a reasonable amount for necessary work for preparing for and attending the hearing on 10 March 2021 was an hour of the time of a senior practitioner. So I fixed the costs at $495, and again made it payable by Mr La Mela within 14 days.
For these reasons, the orders made on APP 93 of 2017 were:
1.The time within which the appellant may commence an appeal from the decision of Deputy Registrar Harman on 10 March 2021 be extended to 29 March 2021.
2.The appellant's application for a suspension order filed 2 March 2021 is dismissed.
3.The appellant pay the respondents' costs of the hearing before Deputy Registrar Harman on 10 March 2021 fixed in the amount of $495 and payable within 14 days of the date of the extracted order.
4.The appellant pay the respondents' costs of the appeal initiated by the notice of appeal filed 29 March 2021 fixed in the amount of $1,485 and payable within 14 days of the date of the extracted order.
On the other appeals (APP 65 of 2016, APP 86 of 2016 and APP 101 of 2017), the orders made were:
1.The time within which the appellant may commence an appeal from the decision of Deputy Registrar Harman on 10 March 2021 be extended to 29 March 2021.
2.The appellant's application for a suspension order filed 2 March 2021 is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SVH
Associate
11 FEBRUARY 2022