Landtec Projects Corporation Pty Ltd v Spiers Earthworks Pty Ltd
[2008] WADC 102
•11 JULY 2008
LANDTEC PROJECTS CORPORATION PTY LTD -v- SPIERS EARTHWORKS PTY LTD [2008] WADC 102
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 102 | |
| Case No: | CIV:495/2007 | ||
| Coram: | DEPUTY REGISTRAR HARMAN | 11/07/08 | |
| PERTH | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Objections not sustained | ||
| PDF Version |
| Parties: | LANDTEC PROJECTS CORPORATION PTY LTD (ACN 110 704 875) SPIERS EARTHWORKS PTY LTD (ACN 112 057 977) |
Catchwords: | Taxation of costs Jurisdiction to review of quantum denominations Scale item for appeals from a Registrar |
Legislation: | Nil |
Case References: | Abbotts Pty Ltd v Gel Group Pty Ltd [2007] WADC 151 Grigoletto v Myer Properties (WA) Ltd, unreported; DCt of WA, Library No 3667; 31 March 1993 Harris v Caladine (1991) 172 CLR 84 Joyce v Hutchinson (2000) 23 SR (WA) 248 Roblett v Pieroni [2005] WADC 215 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SPIERS EARTHWORKS PTY LTD (ACN 112 057 977)
Defendant
Catchwords:
Taxation of costs - Jurisdiction to review of quantum denominations - Scale item for appeals from a Registrar
Legislation:
Nil
Result:
Objections not sustained
(Page 2)
Representation:
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : Metaxas & Co
Defendant : Nicholson Clement
Case(s) referred to in judgment(s):
Abbotts Pty Ltd v Gel Group Pty Ltd [2007] WADC 151
Grigoletto v Myer Properties (WA) Ltd, unreported; DCt of WA, Library No 3667; 31 March 1993
Harris v Caladine (1991) 172 CLR 84
Joyce v Hutchinson (2000) 23 SR (WA) 248
Roblett v Pieroni [2005] WADC 215
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1 DEPUTY REGISTRAR HARMAN: On 22 November 2007 the plaintiff was awarded the costs of an appeal and of the application upon which it had been brought. The plaintiff's bill was taxed and the defendant has now lodged notice of objections to particular determinations made in the course of the taxation.
2 The first allegation of error is as follows:
"1. Item 1 claimed pursuant to Item 32(a) of the Legal Practitioners (Supreme Court) (Contentious Business) Report and Determination 2006 ('the Supreme Court Scale') should have been disallowed as this item does not apply to party and party taxations."
3 The relevant claim had been expressed as follows:
"1. Appearance Chamber Summons 11.05.07 32(a) $ 363.00"
4 During the course of taxation it became apparent that the service the subject of Item 1 was part of the process of responding to the application the subject of Item 2 of the bill. It was claimed as follows:
"2. Chamber Summons for Stay of Proceedings
(see attached Schedule A) 10(a) $7223.70."
5 There is only one claim properly made for the parts of a service the subject of an item in the scale. All services that relate to an application are part of the costs of that application. It follows that the error made by the plaintiff in the process of drafting the bill extended beyond the nomination of the incorrect scale item under which the claim was made, to making a discrete claim for what was no more than part of the relevant service.
6 By its objection the defendant presents the proposition that the allowance of that part of the service allocated by the plaintiff to Item 1 amounted to an error in principle. The proposition only needs to be expressed to reveal that it could not be sustained. The plaintiff has the costs of the application. The taxing officer would err in depriving the beneficial party of the benefit of an order for costs simply as it had erred in drawing its claim. I acknowledge that different considerations may be applied and may properly bring the result for which the defendant now contends where taxation proceeds other than under an order.
7 It was my opinion that regardless of how the bill had been framed it was appropriate for me to deal with the claim expressed in Item 1 on the
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- basis that it was part of a reconstituted Item 2 and it was dealt with accordingly. I do not accept the defendant's contention of error.
8 The second allegation of error is as follows:
"The amount of $5,437.00 allowed for Item 2 was excessive and without regard to Item 10(a) of the Supreme Court Scale, which allowed a maximum fee of $9,306.00 for Counsel based on two (2) days preparation; one (1) day hearing, when the solicitor on the record for the Plaintiff performed the work which was not complex, and the hearing lasted for 1.5 hours so that an allowance exceeding 58 % of the maximum fee was manifestly in error."
9 The scope of recovery under the relevant order for costs is to the extent of the reasonable cost of services necessarily provided to the beneficial party. Although I recognise that some pronouncements over the last 10 years or so would allow for the perception that there is a broader scope for recovery, for present purposes it is only significant that there is a distinction properly drawn between services for which allowance may be made and the cost of those services. By the terms of the objection, other than to the extent that I have canvassed in response to par 1 of the objection, the defendant does not take issue with the allowance of Item 2 or any part of the services by which it is constituted.
10 In Roblett v Pieroni [2005] WADC 215 I gave reasons for concluding that the jurisdiction provided by O 66 r 54 does not extend to reviewing quantum determinations objected to by a party under r 53. In Abbotts Pty Ltd v Gel Group Pty Ltd [2007] WADC 151, Wager DCJ referred at par 21 to Joyce v Hutchinson (2000) 23 SR (WA) 248 in which his Honour Groves DCJ said at p 250 par 7:
"The first matter for consideration is whether or not the Deputy Registrar erred in principle by finding that he did not have jurisdiction to review his decision on quantum before signing the allocatur, and limiting his jurisdiction to review of the allowance or disallowance items or their component parts, but not otherwise.
In Grigoletto v Myer Properties (WA) Ltd (unreported; District Court, WA, No 3667; 31 March 1993), Heenan CJDC, addressed this issue. In particular reference was made to Cameron v Bennett (unreported; District Court, WA, Barlow DCJ, No 2678; 19 January 1990) and Brandon Valley
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- Pty Ltd v Brinklow (unreported; Supreme Court, WA; Registrar Watt, Action No 1906 of 1983, 24 July 1987). Both of those decisions would support the Deputy Registrar's finding that he was restricted to reviewing the allowance or disallowance of an item or part of an item and not empowered to review simply quantum of an item. In Grigoletto Heenan CJDC concluded that although the logic of the interpretation adopted in those cases was clear, it was his opinion that their conclusion was wrong. His Honour had no hesitation in concluding that a taxing officer's decision as to quantum was still open to review if it had resulted from an error in principle. Subsequently in Foreman v E & L Metcalfe Pty Ltd (unreported; District Court, WA; Barlow DCJ; No 3935; 14 February 1994 his Honour after considering Grigoletto and the authorities referred to therein concluded that his earlier decision in Cameron v Bennett could not be supported. He accepted (at p 17):
'… that a taxing officer's decision on quantum is subject to review if it can be demonstrated the taxing officer has made an error in principle in determining how much should be allowed'.
Having regard to the authorities the Deputy Registrar was clearly in error in finding that his jurisdiction to review did not extend to quantum alone."
11 Her Honour Judge Wager concluded at par 9 that:
"The weight of authority supports that the Deputy Registrar should have reviewed the quantum set for getting up for trial and for each specified item of objection raised at the hearing on 5 June 2007."
12 I would simply observe that in Roblett v Pieroni (supra), I had referred to the reasons for decision of Judge Groves in Joyce v Hutchinson (supra) and concluded that they added nothing to the exercise of determining the impact of r 53(1). That was the case as they simply drew on the authority of Grigolettov Myer Properties (WA) Ltd, unreported; DCt of WA, Library No 3667; 31 March 1993 which I observed, was wide of the mark.
13 Be that as it may, I accept that from the terms in which the defendant's objection is expressed it may be that the defendant will bring what has been regarded as a permissible ground of objection to found
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- jurisdiction to review under r 55. In any event the defendant is entitled to the grounds and reasons for my determination.
14 The datum for the quantum determination was as I have indicated in response to the first ground of objection; not as the second paragraph of the objection expresses. The determination made was for the totality of the service comprehended by Item 10(a) of the scale. As Item 2 of the bill indicates the plaintiff had attached a schedule of work done. (Before I go any further I would indicate that taxing officers of the District Court of Western Australia do not encourage parties to file such schedules). The schedule indicates that the plaintiff's solicitor allocated 19.9 hours of time to the provision of the service. The detail expressed in it includes the solicitor's consideration of the defendant's application and the affidavits upon which it relied, preparing evidence in response, observing the requirements relating to hearings by way of special appointment and the hearing itself. I note that a particular feature of the schedule is that 6 hours was said to have been devoted to the task of drawing objections to evidentiary material on which the defendant relied. In addition to that detail it was appropriate to consider the parts of the service that related to the attendance upon the return of the summons.
15 By its claim in the action the plaintiff had sought damages for breach of contract. Having entered a conditional appearance, the defendant made the application to stay the action. The plaintiff had not then pleaded its case and accordingly all of the material upon which the application was determined was presented by way of evidence. The scope of the procedural and substantive issues addressed by the plaintiff was presented in four pages of submissions.
16 In considering the appropriate extent of recovery under the order for costs I was required to determine the reasonable cost of the service provided to the plaintiff by its solicitor. Such an assessment is made not on the manner and extent to which services were actually provided but on the basis that the service had been provided by a competent practitioner acting efficiently. In making the assessment I considered the significance of the application for the purposes of the action, the extent and content of the documentation generated by it, the issues raised upon it and the fact that it had warranted listing as a special appointment.
17 The relief sought under the application justified the conclusion that the application would have been considered by the parties as significant. Whilst I was not particularly interested in the number of hours attributed by the plaintiff to the provision of the particular features of the service
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- expressed in the schedule I considered that the balance of the content of the schedule and the quantum of the claim were both broadly speaking consistent with my opinion of the extent to which issues had been raised for consideration and the content of the paperwork by which they were put before the court. The determination made at taxation was my opinion of what was reasonable for the provision of the relevant service.
18 The third allegation of error is expressed as follows:
"Items 3 to 6, relating to the appeal before Judge O'Sullivan, were taxed, without application by the Plaintiff, applying Item 10(a) of the Supreme Court Scale, which related to proceedings in chambers concerning an original application not an appeal, when the bill was actually based on Item 22 of the Supreme Court Scale relating to appeals to the Court of Appeal and the Legal Practitioners (District Court Appeals)(Contentious Business) Report and Determination 2006 applied to the proceedings which were expressly stated to be an appeal."
19 The relevant items in the bill were expressed as follows:
"3. Notice of Appeal 27.09.07 22(a) $ 363.00
4. Getting up appeal for hearing
(see attached Schedule B) 22(f) $3,448.50
5. Counsel fees for hearing 22(h) $3,000.00"
20 They were taxed as a single claim under Item 10(a) of the scale.
21 The terms of the objection suggest that some significance may attach to the fact that no application to recast the bill had been made by the plaintiff. In my opinion that is of no consequence. Once it becomes the task of the taxing officer to tax a claim it is that officer's responsibility to identify the appropriate scale and item under which it will be taxed. Subject to what I have previously recorded, how the beneficial party has chosen to express any particular claim is of no particular consequence. Each of the claims made at Items 3, 4 and 5 in the bill related to parts of the service comprehended by Item 10(a) of the Supreme Court Scale. The scale item nominated by the plaintiff is designated "Appeals to the Court of Appeal and Single Judge Appeals … ". Although the terminology "Single Judge Appeals" may have suggested to the plaintiff that it was appropriate to claim as it did, it was my opinion that those words are properly read in their context. Furthermore the processes envisaged under
(Page 8)
- parts of Item 22 include at (d), the settling of appeal book indices, which is not part of the process of bringing on any appeal before a Judge of the District Court. Item 10 of the scale relates to proceedings in chambers.
22 According to r 15 of the District Court Rules 2005 the appeal from the decision of a Registrar is by way of a new hearing of the matter that had been before the Registrar. In Harris v Caladine (1991) 172 CLR 84 the High Court had before it an issue which touched upon the process by which the Family Court of Australia had delegated its power to Registrars and in particular, the constitutional validity of a determination made under delegated power. The context in which the issue had emerged was one where a determination made within the scope of delegated power had been the subject of appeal de novo to the Family Court of Australia. In that case the Court considered different forms of appeal and found that such a de novo hearing amounted to an original hearing of the particular application. It seems to me that it was intended that r 15 of the District Court Rules 2005 would have the same result. What was listed before the Judge in chambers on the appeal brought under r 15 was the application itself.
23 Although in the particular objection the defendant refers to the Legal Practitioners (District Court Appeals) (Contentious Business) Report and Determination 2006 it does not expressly to contend that it ought to have been applied. Be that as it may, as I did at the taxation I would observe that cl 3 of the Determination expresses that it would apply to appeals "to the District Court". As for the purposes of the hearing of the application at first instance a Registrar is the District Court, an appeal from the decision of the Registrar is not an appeal to the District Court.
24 It follows that I do not accept the defendant’s contention of error.
25 The last allegation of error is as follows:
"In any event, the amount of $6,300 allowed for Items 3 to 5 was excessive and exceeded the amount of $5,437 allowed for the original hearing before Deputy Registrar Hewitt, without regard to Item 10(a) of the Supreme Court Scale which allowed a maximum fee of $9,306.00 for Counsel, based on two days preparation, one-day hearing, when the solicitor on the record for the plaintiff performed the work which was not complex, did not involve a greater amount of work than the hearing before Deputy Registrar Hewitt and in fact involved far less work as all instructions had been obtained, issues identified, affidavits and
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- submissions prepared, and the hearing of the appeal before Judge O'Sullivan lasted for 1.5 hours, so that an allowance exceeding 67 per cent of the maximum fee was manifestly in error. The increase in the award was not, as stated by the taxing officer, justified merely because it was a hearing before a Judge."
26 The contention of the defendant goes only to quantum. Be that as it may I will provide reasons. I make the same observations that I made in relation to the second paragraph of the objection.
27 To commence with the defendant's last point, the extent to which the amount determined exceeded that for the hearing before the registrar was not justified merely because the hearing had been before a Judge. I do not doubt that the defendant has accurately expressed its understanding of the reason for the determination, however as a determination made in respect of one item in a bill at most only has a bearing upon another I very much doubt that I expressed that the only justification for the difference was as it has asserted. Even if what the defendant has portrayed is accurate, for present and any future purposes the reasons for decision that I now provide are the reasons for my decision.
28 The assessment was founded on the service provided regardless of the identity and status of the service provider. A particular feature of its provision was that the solicitor who had appeared before the Deputy Registrar had briefed a partner of the firm to represent the plaintiff. Whilst in every case that fact would not justify any particular consideration, in this case I considered that it ought to be taken into account. In coming to that conclusion I took into account that the measure of what was reasonable would be determined by an assessment of the value of the service provided to the plaintiff by a competent practitioner acting efficiently and that the period of time between the hearings had been relatively short.
29 The appellant had provided instructions to its solicitor, the solicitor had prepared the notice of appeal and appeared on a directions hearing, prepared its own and considered the defendant's submissions and was familiar with the detail of the case that had been presented before the registrar. The Determination made recognised the significance of the appeal, the briefing process, the fact that the plaintiff was the appellant and that the hearing was before a Judge. It was what was reasonable for the provision of the relevant service.
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