Long v Fleming
[2004] WADC 213
•5 NOVEMBER 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: LONG -v- FLEMING & ANOR [2004] WADC 213
CORAM: DEPUTY REGISTRAR HEWITT
HEARD: 25 OCTOBER 2004
DELIVERED : 5 NOVEMBER 2004
FILE NO/S: CIV 3363 of 2000
BETWEEN: CARYN JOANNE LONG
Plaintiff
AND
JAY DOUGLAS FLEMING
First DefendantALAN REED
Second Defendant
Catchwords:
Practice - Western Australia - Review of taxation - Power to reconsider prior to signing certificate
Legislation:
Nil
Result:
A further deduction of $2,000 from getting up case was called for
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):
Hill v Town of Albany, unreported; DCt of WA; Library No 970261; 15 August 1997
Case(s) also cited:
Nil
DEPUTY REGISTRAR HEWITT: In this matter the plaintiff's bill of costs for taxation came before me on 21 September 2004 and the defendants has brought in objections in relation to the allowance for "getting up case for trial" filed 5 October 2004. The objections are quite detailed and in essence amount to a series of assertions concerning the nature of the case which it is said by the defendants indicative to be a relatively straight forward matter and my allowance excessive. Getting up case was not specifically claimed as such but items 1, 6, 7 and 8 in my view clearly amounted to claims for work which would form part of "getting up case for trial" and I treated them as such. The individual claims were $3,105, $7,803, $9,108.30 and $1,925 a total of some $21,941. The work which was undertaken spanned a very considerable period of time from 1997 to the conclusion of the case in September 2003.
The factual background of the case was rather interesting. The plaintiff was a passenger in a motor vehicle which was driven by the second defendant. The second defendant lost control of that vehicle allegedly due to the presence of oil on the road which had leaked from the first defendant's vehicle with the consequence that the second defendant's car collided with the first defendant's truck injuring the plaintiff. In addition to the action which was being run by this plaintiff there was also a separate action being run by the second defendant against the first defendant. In regard to issues of liability it would appear that the parties agreed that the latter action would be accepted as determinative of the issue of liability and thus when the plaintiff in that action succeeded in his eventual appeal ICWA accepted liability to the plaintiff and the matter proceed as an assessment from that point onwards. The work undertaken by the plaintiff in this action in regard to the issue of liability appears to me to have been a monitoring task reviewing from time to time the evidence in and progress in the alternative action. Although the plaintiff claimed $21,000 for "getting up case" at the taxation I deducted $10,000 from that amount. The defendant suggests that to be insufficient deduction and that the nature of the case makes the allowance of some $11,000 excessive. The criteria required to be satisfied in order for the review by way of these objections to succeed is set out in O 66 r 53 which requires the objecting party to identify an error in principle in allowing or disallowing any item or part of an item in a bill of costs. The authorities have established that by and large terminations of quantum are not reviewable save where it can be demonstrated that no reasonable Registrar acting on proper principles could have reached the determination complained of.
In addition to the question of an objection on the basis of an error of principle there is additionally a power for me to reconsider my decisions on various matters in the course of the taxation since I have not signed my certificate and I am not functus officio: Hill v Town of Albany, unreported; DCt of WA; Library No 970261; 15 August 1997. Effectively the defendant invites me to reconsider the evidence which was presented at the taxation and to conclude that the amount allowed was overly generous and should be reduced.
The plaintiff first took instructions in this matter in December 1997 and maintained its file until September 2003, a period of some six years. There were additional complications in the case caused by the fact that the plaintiff was resident of and had returned to Great Britain and that added somewhat to the task which was facing the plaintiff in the preparation of the case. By and large the difficult issues of liability were undertaken by other solicitors representing the second defendant and I am unable to perceive any steps which were or could usefully have been undertaken by the plaintiff in the present proceedings in that regard.
On reconsidering the matter I must say I think there is substance in the propositions which are put to the defendant. The issue of liability was effectively passed over to other solicitors who did all the work in that regard. Some liaison existed with those solicitors but that was simply to ascertain the progress of the action which they were pursuing. Although the plaintiff was proofed it was effectively a proof she produced for herself covering the areas on which the plaintiff's solicitors indicated they required comment. During the course of the action the plaintiff obtained about six medical reports and perused those and eight other reports, four of which were obtained by the Insurance Commission and the rest comprised of correspondence between the doctors which were made available to the solicitors for the parties. There were difficulties in regard to the issue of economic loss, the plaintiff espousing the proposition that but for the injury she sustained in the accident she would have been able to obtain positions as a sports instructor. Effort was put in by the plaintiff to obtain documentary evidence of her accreditations in that regard and also obtaining financial information concerning her continuing employment with the Ministry of Defence in Great Britain. Counsel was briefed at one stage primarily in regard to a pre-trial conference which was held in this matter but counsel, as I understand it, did provide some advice on quantum as well. Counsel charges totalled some $3,500, part of which has been absorbed into a pre-trial conference item and the balance should properly be "getting up case". There remains approximately $1,500 in counsel's fees to appropriate towards "getting up case". A schedule was provided with the bill which indicated that a large number of letters were written in regard to the matter but the level of detail provided in the schedule is not particularly helpful to ascertain whether the time spent should be properly part of the plaintiff's bill of "getting up case" or a solicitor client cost, or perhaps not allowed at all. The impression I am left is that notwithstanding the fact that was on the books for a substantial amount of time this was not a complicated case, ultimately liability was resolved by efforts other than those of the plaintiff's solicitor and in my view there should no allowance for any work on the issue of liability.
The issue of quantum had one or two curly points as such issues always do but the case was nothing out of the ordinary. Given the fact that the case spans some three scales the amount I have allowed is probably approaching 50 per cent of the maximum. It is a case which does not in my view deserve that level of remuneration and I propose to deduct a further $2,000 for the amount awarded. I do so not because the defendant has in my view established an error in principle but because I may on a review reconsider my decision in the totality of the evidence as it appears on the review which I have done in this case. Therefore in lieu of deducting $10,000 from "getting up" I shall deduct $12,000.
I shall sign my certificate upon the issue of these reasons.
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