Larussa v Anna Carr as administratrix of the estate of Giuseppe Larussa [No 2]
[2018] WASC 76
•21 FEBRUARY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: LARUSSA -v- ANNA CARR as administratrix of the estate of GIUSEPPE LARUSSA [No 2] [2018] WASC 76
CORAM: TOTTLE J
HEARD: 21 FEBRUARY 2018
DELIVERED : 21 FEBRUARY 2018
FILE NO/S: CIV 1702 of 2015
BETWEEN: TONY LARUSSA
Plaintiff
AND
ANNA CARR as administratrix of the estate of GIUSEPPE LARUSSA
Defendant
Catchwords:
Practice and procedure - Costs - Taxation of costs - Review of taxation
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 55
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr D J Garnsworthy
Defendant: Mr D Singh
Solicitors:
Plaintiff: Corporate Counsel Lawyers
Defendant: Friedman Lurie Singh & D'Angelo
Case(s) referred to in judgment(s):
Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155
TOTTLE J:
(This judgment was delivered extemporaneously on 21 February 2018 and has been edited from the transcript.)
The plaintiff is dissatisfied with a certificate of taxation signed by a Registrar of this court on 10 January 2018. The taxation was held on 6 November 2017 and the Registrar taxed the bill of costs and allowed the bill in the sum of $152,545.20. Before signing the allocatur the plaintiff's counsel was afforded the opportunity to consider whether he wished to make objections. A direction was made by the Registrar that objections be filed and served by 14 November 2017. Objections were subsequently filed and served and objections were taken to the allowances made by the Registrar to four items in the bill of costs. The Registrar considered those objections and signed the allocatur on 10 January 2018 and gave written reasons for dismissing the objections. At [5] - [6] of those reasons, the Registrar said as follows:
On 14 November 2017, the plaintiff filed written objections to the amount allowed at taxation for each of items 3, 5, 13, and 14 in the bill of costs. Grounds of objection for each item are on the basis that there was insufficient information and lack of detail provided by the first defendant in support of each item, such that I was not able to appropriately make an assessment based on the information put before the court.
I have therefore, in accordance with O 66 r 54 of the Rules of the Supreme Court, reconsidered and reviewed my assessment in relation to the bill of costs.
The Registrar continued at [8]:
In any event, the proposition put by the plaintiff that there was insufficient information before me to appropriately make an assessment in the amount that I did for each item is rejected. I received submissions from both parties in relation to each item in the bill of costs at the hearing of the taxation. Where I was of the view that there was insufficient information to support the amount claimed, I taxed off an amount at that item to reflect that.
The first defendant had applied for the taxation of costs pursuant to an order for costs made by Chaney J on 13 January 2017. The order followed the dismissal of the plaintiff's action in respect of which his Honour had published reasons for the substantive judgment on 14 October 2016.
The bill of costs that was filed was dated 30 May 2017. On 19 September 2017, the first defendant was ordered to file schedules in relation to the claims for the four items that are the subject of the plaintiff's objections. Schedules were filed on 11 October 2017 and the taxation took place on 6 November 2017.
Order 66 r 55 of the Rules of the Supreme Court 1971 (WA) provides that a dissatisfied party may object only to an error of principle made by a taxing officer in the course of the taxation.
In Rankilor v Circuit Travel Pty Ltd the authorities concerning what constitutes an error of principle were reviewed by Murphy JA (with whose reasons McLure P and Newnes JA agreed).[1] His Honour noted:[2]
[1] Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155
[2] Rankilor v Circuit Travel Pty Ltd [75] - [78]
Order 66 r 53 and O 66 r 55 refer to an 'error in principle'. In this context, errors in principle have been contrasted with questions of mere quantum. In Re Catlin, Sir John Romily said:
'The petition is to review the taxation made by the Taxing Master of a bill of costs delivered by Mr Catlin, and complaining of the disallowance of various items. It is admitted, on both sides, that this Court can only be called upon to determine on the propriety of allowing or disallowing items which invoice some principle, and not where a question only of quantum arises.
Nevertheless, errors in principle may be made both in determining whether an item should be allowed and in determining how much should be allowed.
An error in principle 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.
In Mossensons (a firm) v Coastline Associates, Ipp J (Pidgeon J agreeing) observed:
'The point is that there must be an error in principle before a judge will carry out a review under O 66 r 55. Although it is possible for an error in principle to be made in regard to the quantum allowed in respect of a particular item, that is generally regarded as unusual. In my opinion, an error in principle on this basis could only be established if it is shown that no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question.' (citations omitted)
The plaintiff's submissions raise two arguments. First, it is argued that the Registrar made what is described as a patent error of law in [7] of her reasons of 10 January 2018. In that paragraph, the Registrar said:
In my view, the objections raised by the plaintiff go to the quantum allowed at taxation rather than to errors of principle and ought be dismissed on this basis.
The second argument proceeds as follows: the bill contained inadequate material upon which an assessment of the claim for costs might be made, the particulars provided by the schedule did not address that defect, and thus the Registrar had an inadequate basis upon which to make a proper determination. It is submitted that, in those circumstances, proceeding with the taxation involved an error of principle.
As to the first argument, in my view, [7] of the Registrar's reasons is not to be understood as a statement that a contention about quantum can never amount to an error of principle but rather that, in this case, it did not do so. For that reason, I do not accept the plaintiff's first argument that there is a patent error of law in the Registrar's reasons.
I turn now to the second argument. In my respectful view, the argument does not take adequate account of three factors.
First, the Registrar had the court file in front of her in the course of the taxation and was able to make an assessment of the amount of work involved in each step of the litigation process. The Registrar was capable of making that assessment by reference to the documents on the court file itself.
Second, the Registrar had the benefit of the parties' submissions at the taxation.
Third, and equally importantly, the Registrar brought her own experience to the taxing of costs. When those factors are taken into account together with the contents of the bill and the supporting schedules, they form a sufficient basis upon which the Registrar in this case was capable of exercising her discretion as to what should be allowed, what reductions in items should be made and whether any items should be disallowed.
For those reasons I am satisfied that in this case the Registrar did not make an error of principle and accordingly I dismiss the plaintiff's application.