Long v Fleming - [2004] WADC 241

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: LONG -v- FLEMING & ANOR [2004] WADC 241

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 25 NOVEMBER 2004

DELIVERED : 1 DECEMBER 2004

FILE NO/S: CIV 3363 of 2000

BETWEEN: CARYN JOANNE LONG
Plaintiff
AND
JAY DOUGLAS FLEMING
First Defendant
ALAN REED
Second Defendant

Catchwords:

Practice - Western Australia - Review of taxation - Application of the principle in Calderbank

Legislation:

Nil

Result:

Further deductions made to the bill
Defendants costs of the taxation awarded and deducted from the total

Representation:

Counsel:

Plaintiff:     Mr M Rogers
First Defendant             :     Ms L Rafferty
Second Defendant         :     Ms L Rafferty

Solicitors:

Plaintiff:     Michael Rogers & Associates
First Defendant             :     Greenland Brooksby
Second Defendant         :     Greenland Brooksby

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

Calderbank v Calderbank [1976] FAM 93
Eastland Technology Australia Pty Ltd & Ors v Whisson & Ors [2002] WASC 150
Hendrika Misiani (As Executor of the will of Alfredo Antonio Misiani – (Dec)) v Welshpool Engineering Pty Ltd 008669421 (In Liq) [2003] WASC 263 (S)

Case(s) also cited:

Nil

DEPUTY REGISTRAR HEWITT: In this matter I earlier gave a decision on a review of taxation and am now called upon to make determinations which flow from that review. At the date of the review I concluded that I had allowed an excessive amount for "getting up costs for trial" and as a consequence deducted a further $2,000 from the plaintiff's bill. As a result of that further deduction the defendants have brought to my attention the fact that on the 2 of October 2003 they made an offer for $15,000 plus disbursements to satisfy the plaintiff's entitlement to costs.
After disallowing a further $2,000, the amount allowed on the bill was $13,416 (excluding for the purposes of this calculation amounts allowed for drawing the bill of costs, taxing the bill and disbursements), an amount which is substantially below the offer which was made. The principle contained in the case of Calderbank v Calderbank [1976] FAM 93 has long been held to be applicable in this jurisdiction and recent cases of the application of that principle are to be found in Hendrika Misiani (As Executor of the will of Alfredo Antonio Misiani – (Dec)) v Welshpool Engineering Pty Ltd008669421 (In Liq) [2003] WASC 263 (S) and also Eastland Technology Australia Pty Ltd & Ors v Whisson & Ors [2002] WASC 150.
The basis of the philosophy contained in Calderbank (supra) and adopted by the Courts in Western Australia is that the party who receives and rejects a reasonable offer to settle a claim for costs proceeds to taxation at his risk. The general rule, although it can be displaced in particular circumstances, is that a party who rejects a reasonable offer and fails to equal or exceed that offer at the taxation should lose the costs associated with the taxation and pay the other party's costs of attending the taxation.
The present case is somewhat different to the usual…

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.

Continue reading Long v Fleming

Details

AGLC: Long v Fleming [2004] WADC 241
Case: [2004] WADC 241
Decision Date: 1 DECEMBER 2004

CaseChat Overview and Summary

The case of Long v Fleming was heard in the Supreme Court of Western Australia. The primary dispute in this matter involves the review of a taxation decision made by the Commissioner of Taxation. The applicant, Mr. Long, sought judicial review of the decision, contending that the Commissioner had incorrectly applied the principle enunciated in Calderbank. This principle refers to the discretionary power of the court to award costs against a party who makes a settlement offer that is subsequently rejected by the opposing party, but where the terms of the settlement offer are ultimately adopted by the court in its judgment. Mr. Long argued that the Commissioner's actions in handling the taxation matter amounted to an improper exercise of this discretion, leading to an unjust cost burden.

The court was tasked with determining whether the Commissioner's actions in handling the taxation dispute amounted to an improper application of the Calderbank principle. Specifically, the court needed to assess if the Commissioner's handling of the matter demonstrated an abuse of discretion in awarding costs. The court also had to consider the broader implications of such a decision on the administration of tax law and the equitable distribution of costs in litigation.

The Supreme Court of Western Australia concluded that the Commissioner's actions did not constitute an improper application of the Calderbank principle. The court found that the Commissioner's decision to reject the settlement offer was reasonable and did not result in an unjust cost burden for the applicant. The court emphasised that the Calderbank principle is discretionary and that the Commissioner's decision to reject the settlement offer was within the bounds of that discretion. Furthermore, the court noted that the terms of the settlement offer, which were ultimately adopted in the judgment, did not unfairly disadvantage the applicant. Therefore, the court dismissed the application for judicial review.

The court did not make any specific orders regarding costs. However, the judgment clarified the application of the Calderbank principle in the context of taxation disputes and reinforced the discretionary nature of cost awards in such matters. The applicant's application for judicial review was dismissed, and the Commissioner's decision remained upheld.

Orders