Lawford Robinson Pty Ltd v Boston Hill Limited [No 5] - [2011] WADC 86

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: LAWFORD ROBINSON PTY LTD -v- BOSTON HILL LIMITED [No 5] [2011] WADC 86

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 31 MAY 2011

DELIVERED : 2 JUNE 2011

FILE NO/S: CIV 2835 of 2004

BETWEEN: LAWFORD ROBINSON PTY LTD
Plaintiff
AND
BOSTON HILL LIMITED
First Defendant
ANTHONY WILLIAM ROBINSON
Second Defendant

Catchwords:

Taxation of costs - Review of taxation - Turns on its own facts

Legislation:

Suitors' Fund Act 1964

Result:

Objection allowed in part

Representation:

Counsel:

Plaintiff:     Not applicable
First Defendant             :     Not applicable
Second Defendant         :     Not applicable

Solicitors:

Plaintiff:     Mossensons
First Defendant             :     Kott Gunning
Second Defendant         :     Mossensons

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

Girgoletto v Myer Properties WA Ltd (Unreported, WADC, Library No 3667, 31 March 1993)

DEPUTY REGISTRAR HEWITT: In this matter the successful first defendant bought in a bill of costs for taxation pursuant to orders made after trial. That bill proceeded before me on a number of taxations, the last of which was on 27 April 2011.
At the conclusion of the taxation I allowed the parties the opportunity to bring in objections and the plaintiff has brought in objections by way of a letter dated 4 May 2011.
I shall deal with those objections in the order in which they have been raised. The first objection relates to items 1 to 8, alleging that account was not taken of the fact that an earlier bill had been presented by another party also represented by the first defendant's solicitor contained allowances for these items. Dealing with the items of the bill sequentially, insofar as the objection concerns item 1 of the bill, it is disallowed. I have reviewed the bill to which the objection refers and no allowance was made for this item on it. Insofar as the objection relates to item 2, the objection is allowed. An allowance of $150 for the item was made on the earlier bill and that shall be detracted from the present bill. In relation to item 3, the objection is disallowed. No allowance was made on the earlier bill and likewise in respect of item 4 on the bill, no allowance was made on the earlier bill. In relation to item 5, an allowance of $400 was made on the earlier bill and that will be deducted from the amount allowed on the present bill. In respect of items 6, 7 and 8 allowances of $40, $150 and $30 were made on the earlier bill and each of those will be deducted from the allowances on the present bill.
Objection 2 relates to item 21. That objection was allowed by the taxing party unwilling to incur the cost of a more thorough investigation of the item.
Objection 3 relates to item 27 on the bill and is a claim for an amended defence. It is contended that no order was made permitting the first defendant to make such a claim. In my view, no such order is required. The plaintiff applied to and was granted leave to amend the statement of claim. The defendant is entitled to amend its defence in response to the amended statement of claim and the costs of so doing are to be borne by the plaintiff. No order is required to bring about that outcome.
Objection 5 relates to item 35 which contends that in allowing the item I failed to take account of the fact that the first defendant had received a certificate and payment under the Suitors' Fund. Those costs arose because of the need to adjourn a trial because of a conflict of interest which arose because the judge assigned to hear the trial had some role in the proceedings as a barrister. On my understanding of the Suitors' Fund Act 1964 and the relevant certificate, the plaintiff was entitled to recover from the fund additional costs incurred by reason of the fact that a new trial was required.
I consider that I am entitled to accept that those administering the Suitors' Fund do so in accordance with the Act and that the monies which they have paid are those which have been adjudged to be the extra costs which were incurred by reason of the adjournment of the trial. Relying on that inference, I disallow the objection.
Objection 6 relates to item 36 of the bill in which an allowance was made for solicitor attending trial. It is said that no consideration was given to the nature and circumstances of the case or whether a solicitor's attention was required. In my view, the case was such that independent counsel needed to be supported by a solicitor having knowledge of the case. Additionally, the judges of this court have indicated that independent counsel should be so supported, (Girgoletto v Myer Properties WA Ltd (Unreported, WADC, Library No 3667, 31 March 1993)), and on those two bases, I disallow the objection.
The next objection relates to item 37 on the bill. That item is an appearance at a reserved decision. There is no requirement for an order awarding costs for an attendance on a reserved decision. They are simply part of the trial process and embraced by the order awarding the successful first defendant the costs of the action.
The next objection is objection 8. By virtue of the orders which were made at the conclusion of the case, a certain proportion of the costs were to be payable by the plaintiff solely and the balance by the plaintiff and second defendant jointly. An apportionment was made identifying some $16,596.09 as that proportion of the bill which was payable solely by the plaintiff. In summary therefore, the whole of the amount of the taxed bill was to be payable by the plaintiff but only a proportion of the taxed bill was to be payable by the second defendant. The solicitor attending the taxation represented the plaintiff. All the arguments which were advanced and objections taken were taken on behalf of the plaintiff. I am completely unable to understand why on the basis of such an apportionment which was effectively against the plaintiff, he should be entitled to some diminution in the taxing fee since the conclusion was that the plaintiff was to be liable for the full amount of the bill with some proportion of it to be a shared responsibility with the second defendant.
Objection 10 relates to item 43 of the bill which is a challenge to the allowance for photocopying. A vast number of documents were photocopied in this case. No tabulated evidence as to the number of photocopies was presented to me but I was able to inspect a large number of files containing such documents. In the circumstances, I adopted a conservative approach and estimated that although the true figure was rather larger, in the absence of evidence from the taxing party to establish exactly what the figure should be, a conservative figure should be adopted as the appropriate one and I made an allowance. In the circumstances I am satisfied that the process is a fair one and that the allowance which has been made for the taxing party is less than the amount which would have been allowed had a thorough tabulation of the photocopies been maintained.
Objection 11 concerns the lodgement fee which was allocated to the plaintiff and the second defendant jointly and severally, even though the plaintiff was held to be solely liable for a proportion of the bill. I am completely unable to understand how such an objection can lie in the mouth of the plaintiff. He is responsible for the payment of the full amount of the bill. The objection appears to be one which might possibly have been raised by the second defendant and is certainly not a valid objection by the plaintiff. In any event, it was necessary to go to the entire bill and I am unable to see that any apportionment is required even though a small proportion of the bill was held to be the sole responsibility of the plaintiff.
I have already signed the allocatur. The time for appeal shall be 14 days from the date of these reasons.