Macdonald Rudder v Whitbread - [2021] WASC 395

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MACDONALD RUDDER -v- WHITBREAD [2021] WASC 395
CORAM:   TOTTLE J
HEARD:   7 OCTOBER 2021
DELIVERED          :   11 NOVEMBER 2021
FILE NO/S:   CIV 1461 of 2021
BETWEEN:   MACDONALD RUDDER
Applicant
AND
JANET DENISE WHITBREAD
Respondent
ROXBURY TRADING PTY LTD
First Other Party
PAUL JAMES KENNEDY
Second Other Party
ROSLYN MAY KENNEDY
Third Other Party

Catchwords:

Judicial review - Taxing officer's assessment of invoices rendered by a law practice - Taxing officer determined costs assessment on a basis that differed from the way assessment conducted - Denial of procedural fairness - Jurisdictional error established

Judicial review - Taxing officer's assessment of invoices rendered by a law practice - Construction of s 260(1)(c) and s 267 of the Legal Profession Act 2008 (WA) - Taxing officer erred in construction of s 260(1) and s 267 of the Legal Profession Act 2008 (WA) - Jurisdictional error established

Judicial review - Taxing officer's assessment of invoices rendered by a law practice - Construction of s 268(4) of the Legal Profession Act 2008 (WA) - Taxing officer erred in the exercise of discretion under s 268(4) of the Legal Profession Act 2008 (WA)

Judicial review - Discretionary considerations - Taxing officer's decision has immediate impact on applicant's legal rights - Prerogative relief granted

Legislation:

Legal Profession Act 2008 (WA), s 251, s 260, s 262, s 265, s 266, s 267, s 268, s 269, s 271, s 282, s 286, s 288, s 297, s 301, s 302, s 304, s 305, s 308
Rules of the Supreme Court 1971 (WA), O 66 r 53, O 66 r 55

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant	:	M D Cuerden SC
Respondent	:	No Appearance
First Other Party	:	M Mckenna
Second Other Party	:	M Mckenna
Third Other Party	:	M Mckenna

Solicitors:

Applicant	:	MACDONALD RUDDER
Respondent	:	No Appearance
First Other Party	:	Gilbert + Tobin
Second Other Party	:	Gilbert + Tobin
Third Other Party	:	Gilbert + Tobin

Cases referred to in decision:

A Law Firm v RT [2021] WASC 149
Apache Northwest Pty Ltd v Agostini (No 2) [2009] WASCA 231
BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers [2006] WASCA 49; (2006) 151 IR 361
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
D G Ogle Pty Ltd v Bowdens [1979] Qd R 507
Lalios v O'Brien [2021] VSC 105
Lawrie v Lawler [2016] NTCA 3; (2016) 39 NTLR 1
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1
Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005)…

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 Macdonald Rudder v Whitbread

Details

AGLC: Macdonald Rudder v Whitbread [2021] WASC 395
Case: [2021] WASC 395
Decision Date

CaseChat Overview and Summary

This application for judicial review concerns the assessment of two invoices rendered by the applicant law practice to Roxbury and Mr and Mrs Kennedy. The application was heard by the respondent, a registrar of the Supreme Court, in her capacity as a taxing officer. The applicant contends that the registrar made a number of jurisdictional errors and errors of law which entitle it to prerogative relief in the form of an order for certiorari. The applicant's contentions include that the registrar failed to put it on notice that she might tax the applicant's costs by reference to the Supreme Court scale and not by reference to the Costs Agreement; that the registrar misconstrued the Act by imposing disclosure obligations not found in the Act; that the registrar misconstrued s 268(4) of the Act; and that the registrar erred in making findings for which there was no evidence and/or were legally unreasonable. The applicant contends that the registrar's decision has an immediate impact on the applicant's legal rights. I am satisfied that the applicant has made out three of the five grounds upon which it seeks relief. I will grant the application and quash the registrar's decision.

Orders