Lashansky v Bruvecchis Pty Ltd - [2006] FCA 793

FEDERAL COURT OF AUSTRALIA
Lashansky v Bruvecchis Pty Ltd [2006] FCA 793
COSTS – review of taxation by judge – whether counsel’s fees properly incurred – whether an amount allowable for care and attention
Trade Practices Act 1974 (Cth) ss 52, 82, 87
Federal Court Rules O 20 r 2, O 62 rr 19, 19(a), 36, 36(2), 43(1), 44
Cachia v Westpac Financial Services Limited [2003] FCA 817 cited
Schweppes’ Ltd v Archer (1934) 34 SR (NSW) 178 cited
ROBERT JAMES LASHANSKY v BRUVECCHIS PTY LTD (ACN 054 177 427) and JOSEPH BRUNI
WAD 79 OF 2004
SIOPIS J
26 JUNE 2006
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 79 OF 2004

BETWEEN:

ROBERT JAMES LASHANSKY
Applicant

AND:

BRUVECCHIS PTY LTD (ACN 054 177 427)
First Respondent

JOSEPH BRUNI
Second Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

26 JUNE 2006

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1The motion dated 18 January 2006 for review of the taxing officer’s decision on reconsideration is dismissed.
2The applicant is to pay the respondents’ costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 79 OF 2004

BETWEEN:

ROBERT JAMES LASHANSKY
Applicant

AND:

BRUVECCHIS PTY LTD (ACN 054 177 427)
First Respondent

JOSEPH BRUNI
Second Respondent

JUDGE:

SIOPIS J

DATE:

26 JUNE 2006

PLACE:

PERTH

REASONS FOR JUDGMENT

This is an application for the review of a decision of a taxing officer under O 62 r 44 of the Federal Court Rules (‘the Rules’).
The procedural background
On 21 April 2004 the applicant, a legal practitioner, commenced an application against the respondents. The application was founded on an alleged contravention of s 52 of the Trade Practices Act 1974 (Cth) (‘the Act’) and the applicant claimed damages against the respondents under s 82 of the Act and other orders under s 87 of the Act.
In general terms, the applicant alleged that the first respondent was one of a number of tenants at The Colonnade Shopping Centre in Subiaco who had retained him as their solicitor to conduct an action in the Supreme Court of Western Australia against their common landlord. It was alleged that the second respondent, a director of the first respondent, had represented that the respondents would provide financial assistance to the other tenants in the group who may face financial difficulty in supporting the conduct of the action. The applicant alleged further that the respondents, far from supporting the conduct of the action, privately negotiated a settlement of their claim against the landlord, and that this led to the other tenants also settling their claims against the landlord. The result was that the action did not go to trial. The applicant pleaded that he thereby suffered a loss because he had given up opportunities to take on other work. The applicant’s pleaded claim is more fully described in the reasons of French J…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FCA 793
Decision Date: 26 JUNE 2006

CaseChat Overview and Summary

The applicant, a legal practitioner, applied for a review of a decision made by a taxing officer under O 62 r 44 of the Federal Court Rules. The application was in relation to the taxation of a bill of costs filed by the respondents in a case where the applicant alleged a contravention of s 52 of the Trade Practices Act 1974 and sought damages and other orders. The respondents had previously filed a notice of motion to strike out the applicant’s statement of claim, which was successful. The respondents subsequently filed a bill of costs for taxation which was taxed by the taxing officer. The applicant made a motion for the taxing officer to reconsider certain items of the bill of costs, which was subsequently dismissed by the taxing officer. The applicant then applied for a review of the taxing officer’s decision on reconsideration.

The court was required to determine whether the taxing officer erred in law in dismissing the applicant’s motion for reconsideration and whether the costs awarded were reasonable and properly taxed. The court considered the principles of taxation of costs and whether the taxing officer had exercised their discretion properly. The court also considered whether the costs claimed by the respondents were reasonable and necessary.

The court held that the taxing officer had not erred in law in dismissing the applicant’s motion for reconsideration. The court found that the taxing officer had exercised their discretion properly and had considered all relevant factors in making their decision. The court also found that the costs awarded were reasonable and properly taxed. The court held that the amount of the costs allowed by the taxing officer was not excessive and that the costs claimed by the respondents were reasonable and necessary.

The court dismissed the applicant’s motion for review of the taxing officer’s decision on reconsideration and ordered that the applicant pay the respondents’ costs.

Orders

Orders of the court

1 The motion dated 18 January 2006 for review of the taxing officer’s decision on reconsideration is dismissed.

2 The applicant is to pay the respondents’ costs.

Background

Background to the litigation

This is an application for the review of a decision of a taxing officer under O 62 r 44 of the Federal Court Rules (‘the Rules’).The procedural background On 21 April 2004 the applicant, a legal practitioner, commenced an application against the respondents. The application was founded on an alleged contravention of s 52 of the Trade Practices Act 1974 (Cth) (‘the Act’) and the applicant claimed damages against the respondents under s 82 of the Act and other orders under s 87 of the Act. In general terms, the applicant alleged that the first respondent was one of a number of tenants at The Colonnade Shopping Centre in Subiaco who had retained him as their solicitor to conduct an action in the Supreme Court of Western Australia against their common landlord. It was alleged that the second respondent, a director of the first respondent, had represented that the respondents would provide financial assistance to the other tenants in the group who may face financial difficulty in supporting the conduct of the action. The applicant alleged further that the respondents, far from supporting the conduct of the action, privately negotiated a settlement of their claim against the landlord, and that this led to the other tenants also settling their claims against the landlord. The result was that the action did not go to trial. The applicant pleaded that he thereby suffered a loss because he had given up opportunities to take on other work. The applicant’s pleaded claim is more fully described in the reasons of French J in Lashansky v Bruvecchis Pty Ltd [2004] FCA 837. On 26 May 2004, the respondents filed a notice of motion under O 20 r 2 of the Rules to strike out the applicant’s statement of claim as disclosing no reasonable cause of action and to dismiss the application. At the hearing of the motion before French J the respondents were represented by senior counsel. The applicant appeared on his own behalf. On 11 June 2004, French J struck out the statement of claim and dismissed the applicant’s application with costs. On 20 August 2004, the respondents filed a bill of costs for taxation. It consisted of 68 items. The amount claimed in the bill of costs, including disbursements, was $7753.70. On 27 July 2005, Deputy District Registrar Stanley (‘the taxing officer’) taxed the bill of costs. The taxing officer disallowed a number of items of costs claimed by the respondents’ instructing solicitor including items relating to the preparation for the first directions hearing, conferring with the respondents and attending Court for the hearing of the strike out application as instructing solicitor. The taxing officer allowed the sum of $5254.60 including disbursements. The major component of the amount allowed was the sum of $2600 for counsel’s fees. On 10 August 2005, the applicant filed a motion for the taxing officer to reconsider four items of the bill of costs which had been accepted by the taxing officer. On 20 December 2005, the taxing officer issued a Certificate of Taxation on reconsideration pursuant to O 62 r 43(1) of the Rules in the amount allowed at the original taxation. The taxing officer delivered written reasons on 20 December 2005.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SIOPIS J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SIOPIS J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 79 OF 2004

BETWEEN:	ROBERT JAMES LASHANSKY Applicant
AND:	BRUVECCHIS PTY LTD (ACN 054 177 427) First Respondent JOSEPH BRUNI Second Respondent
JUDGE:	SIOPIS J
DATE OF ORDER:	26 JUNE 2006
WHERE MADE:	PERTH

JUDGE:	SIOPIS J
DATE:	26 JUNE 2006
PLACE:	PERTH