Mahalo (WA) Pty Ltd v Zoolander Pty Ltd

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MAHALO (WA) PTY LTD -v- ZOOLANDER PTY LTD & ANOR [2004] WADC 19

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 11 SEPTEMBER 2003

DELIVERED : 19 FEBRUARY 2004

FILE NO/S: CIV 688 of 1998

BETWEEN: MAHALO (WA) PTY LTD
Plaintiff
AND
ZOOLANDER PTY LTD
First Defendant
ALAN GREGORY DODSON
Second Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court 1971 - Review of taxation - Order for indemnity costs

Legislation:

Nil

Result:

Objection not sustained

Representation:

Counsel:

Plaintiff:     Mr A W Kaminickas
First Defendant             :     No appearance
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Scott & Kaminickas
First Defendant             :     Not applicable
Second Defendant         :     Not applicable

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff obtained an order for the costs of the action up to and including 3 May 2001 on the usual indemnity basis (the usual order) and thereafter on a solicitor and client indemnity basis (the indemnity costs order).
The plaintiff's bill of costs was taxed and the defendant has now lodged objections to certain determinations made upon the taxation. At the outset I will record that in many instances what is presented is not an objection to the determination made.
The first item to which objection is directed appears on the bill as follows:
" 3. Giving discovery of document (9 (b)) – 6/98 21 documents; 7/ 99 6 bundles; 09/02/00 91 items $900."
At the taxation the claim for that part of the item expressed as 9 February 2000 was disallowed. The balance of service provided by the plaintiff's solicitor was considered and the determination as to quantum was expressed by reducing of the claim by $550.00.
The objection is that the plaintiff could not provide the 91 documents and that the defendant would have liked to have had the opportunity to check how many documents were duplicated between the three bundles over the entire period.
I have already recorded the disallowance of that part of the claim represented by the 91 documents.
The terms by which the second part of the objection is expressed would suggest regret for a lost opportunity rather than any error on my part in taxing the bill. If I am correct in that assessment, conceivably at the time of drawing the objection the defendant would have had access to at least the discovery of the relevant documents. In the absence of any commitment to the fact that he did not, it is appropriate to consider that he had such access and that any duplication would have been evident on the discovery.
If the assertion of duplication has any substance then the extent of the duplication and any error made in the assessment ought to have been recorded in the objection. In the absence of such detail what is put is no more than a prospect. What is conveyed to me is no more than speculation.
Be that as it may, I will provide some reasons for the determination. The scope for recovery under the usual order for costs extends only to services necessarily provided. The datum for the assessment of the service provided was that all of the documents had been discovered on one occasion. There is nothing to indicate that I was persuaded to move from that datum. The defendant in the objection does not contend that I did. It is my appreciation that by following that process any inappropriate recovery on the basis of duplication or simply inefficiency would have been eliminated.
After hearing the submissions of the parties it was then a matter of assessing a reasonable fee for the provision of the service.
I am satisfied that no allegation of error that I have identified is established.
The next objection is directed to Item 4, the claim for "getting up case for trial". At taxation I expressed the view that what had been claimed at Item 9 was properly considered to be part of that service rather than the separate claim expressed as "Preparing Statement of Issues of Fact and Law and Chronology of Events".
The other relevant determinations were that each of the services that together constituted the consolidated claim was allowed and the quantum of that claim was determined at $13,379. Perhaps now might be an appropriate time to record that had the claim not been expressed for that amount I would not have reached that conclusion. The final step in the process of taxing the claim was to record the consequence of the determination made in relation to quantum. Had I determined the claim for a lesser sum I would have expressed that determination by way of reduction of the amount claimed. In this case I saw no reason to interfere with the claim. Implicitly that means that I either determined quantum at or about the level of the claim or considered that the services were worth more but considered that the plaintiff was bound by its claim. In all probability I considered the claim to be "about right".
The terms of the defendant's objection are that he has seen no details of how the quantum was determined and considering the amount of the determination he is entitled to know how that figure is justified. He refers to the fact that there are further claims for what amounts to "getting up case for trial" in that part of the bill by which the plaintiff sought to recover under the indemnity costs order. He questions whether that additional claim is appropriate and the prospect of duplication.
Dealing with the first part of the objection, the assessment of quantum was made in accordance with an assessment of the case revealed by the pleadings, the reasons for the decision and the information otherwise provided during the course of the taxation. That assessment was conducted with the benefit of the submissions made by the parties during the course of the taxation. The defendant describes the claim as a huge amount. In so doing I infer that he intended to refer to my determination (that such an amount was reasonable) was unreasonable.
In my opinion there is no jurisdiction for the taxing officer to review contended errors that only go to the assessment of quantum of the fee recovered. I understand that others consider that there is scope for such review but that scope is limited by satisfaction of the test that no taxing officer acting reasonably could have arrived at the result the subject of the objection.
In the relevant period, that is, prior to the impact of the indemnity cost order, the action had passed the point where it had been entered for trial. In these days of case management that fact could not be taken as any indication that the parties were actually ready for trial, simply that the plaintiff may not have wished to endure the prospect of being the subject of the consequences of being found to be in default. That consideration may be given some momentum in that subsequent to the entry for trial the parties had continued to eng age in the interlocutory processes. Be that as it may, if one is to accord any sense to case management, the "milestone" "Entry for Trial" is intended to convey that the court has a preference for considering that the parties ought to be ready to take the step of entering the action for trial by the time prescribed.
Indeed in that period the action had proceeded beyond the pre-trial conference and was listed for trial on two occasions. After the second occasion the subsequent listing appointment had been adjourned on two occasions.
In my opinion on all of the formal indicators it is appropriate to consider that it would have at least been the subject of some considerable attention by the plaintiff's solicitor.
In my experience the recovery of some $13,000 odd for a commercial dispute that proceeds beyond a listing conference is within the range of an appropriate level of recovery for cases that reach that point in the litigation. Otherwise I will leave it for others to make a judgment as to whether no taxing officer acting reasonably could have arrived at that result.
On a different, more tenuous, but none the less appropriate analysis, if I was to add the four components under which the plaintiff effected recovery for what would largely be the process of "getting up the case for trial" and consider that such a combined claim had been taxed under the scale, the result obtained by the plaintiff would be in the order of $22,000 of a possible $27,000 for a matter that proceeded to trial on a estimated length of hearing of four days and which was actually tried over three.
As to the reference to there being another claim under the order for indemnity costs that provides for recovery for "getting up case for trial", that is certainly the case. Obviously the plaintiff would have continued with the process of getting up the case for trial regardless of the prospect that he may have been successful in obtaining recovery for those services after a particular date on a different basis.
As to the prospect of duplication or rather "double recovery", that is not a prospect "internally", that is, within the scope of the services the subject of Items 4 and 9, but only where services may have been duplicated under the regime of the order for indemnity costs.
The reasoning behind the first part of that statement is that the determination made in relation to the assessment of quantum under the scale is not one that engages a process of simply adding together the cost of what may have been innumerable events of activity being undertaken. Getting up case for trial is itself a process. The ongoing analysis of the strengths and weaknesses of a case and the activity represented in communications to the ends of the litigation are properly regarded as incidental parts of the process, not the process itself.
Where costs are assessed under the usual order, the primary focus in determining the quantum of "getting up case for trial" is properly on the issues raised on the close of pleadings, the case constructed in relation to each such issue, and an assessment of the case. I accept that more often than not any such consideration involves a process of deconstruction and that the party with the benefit of the order may consider it to be unfair and the result harsh. I accept that the methodology may be the subject of criticism at the very least because it rests on what some may consider to be an idealised view of the provision of services. It is however consistent with the analysis that I presented in relation to the assessment of the claim for giving discovery. It recognises that "getting up case for trial" is a process or series of processes as distinguished from mere activity. It promotes the important consideration that the usual order for costs provides no more than a limited indemnity. At the very least however it eliminates the prospect that concerns the defendant, that of double recovery.
As to the other prospect, there may be duplication or scope to recognise the prospect of duplication and thereby enhanced recovery for a particular service rendered either both before and after the impact of the indemnity costs order or wholly after that time.
The fundamental consideration that arises upon such impact is that the onus of satisfying first the test of necessity of the provision of services and second of reasonableness of the cost falls upon a party other than that to whom the service was provided. It seems to me to be inevitable that under such a regime the scope for recovery for services that may have been duplicated or perhaps not been provided with a strict eye to efficiency is so enhanced that to even mention the concept of efficiency may seem somewhat strained.
To someone other than a practitioner such a statement may sound alarming, however the fundamental consideration is that indemnity costs orders are imposed in circumstances with the intention that they will penalise the adverse party. For what it is worth, I do not accept that it is either fair or appropriate that such a penalty be imposed without due consideration being had for whether it is justified. Be that as it may, taxation under such an order simply gives effect to the intention expressed in the relevant rule.
Before I leave that ground of objection I wish to make two further comments.
A review of the terms of the notice of objection reveals that the contention that the defendant does not have any detail of how quantum was determined is a recurring theme. I do not intend to canvass that prospect at each point that it is mentioned. Ultimately the process of determining quantum involves receiving sufficient information as would enable the taxing officer to make a determination of the reasonable cost of particular services. For most services in the scale the range within which the discretion of the taxing officer may be exercised is expressed. Any particular determination would be justified as being the assessment of where the cost of the provision of the service is considered to lie within that range.
Although the defendant may not regard the procedure adopted in the course of the taxation as sufficient to satisfy him that there had been a detailed assessment of each service provided by the plaintiff's solicitor, it is accepted practice that taxations do not involve any such analysis. To so conduct taxation would be an intricate and laborious process that may endure for days. I accept that in expressing the objection the defendant may demonstrate that he was confounded by the process and/or the result however it is significant that he alleges no error in the process.
The second also arises on an overview of the notice at the points where a contest is raised in relation determinations made in relation to claims made under the indemnity costs order. Ultimately I recognise that the defendant may not have appreciated the impact of the indemnity costs order being in place. I was satisfied that I did what I could to convey to him its effect. The significant feature of the order is that it is the adverse party that bears the onus of satisfying the test for recovery, that is, of the necessity of the provision of particular services and the reasonableness of the fee charged. I accept that the defendant did not display much energy in seeking to obtain information from the plaintiff in order to assist him in discharging the onus. I also accept that otherwise the defendant made little headway in discharging the onus. Those observations do not suggest to me that he did not understand his predicament. It is my experience of taxations under that regime that the defendant's performance was in line with that of other adverse parties, including those with representation. The onus confronted by the adverse party is at least amenable to the description of being impossible to discharge. I suspect that I have been correct in my assessment that those that I have observed operating under such disadvantage have recognised their predicament and have simply wished to get through the experience as quickly as possible.
The next objection is taken to the claim for the pre-trial conference. The ground of the objection is simply that the defendant has seen no details as to how the figure was arrived at.
Contrary to my statement that the quantum determination must be capable of justification by reference to the range expressed in the scale, recovery under Item 24 is expressed to be time rated and without limit. I have no doubt that at the taxation I enquired of the parties how much time had been devoted to the conference. In the absence of a response to that enquiry I could not have made the assessment. There is no objection along lines that would suggest that I did not. If there is more to the objection then the defendant has failed to communicate any error.
The next item the subject of objection is identified as the claim for the further and better particulars of claim determined at $150.00. The objection is that the defendant does not know how the result was achieved.
The assessment of quantum was made on the content of the document. The maximum available under the scale was $900. I will leave it for others to judge whether no taxing officer acting reasonably could have arrived at that result.
The next item the subject of objection is the claim for drawing the bill of costs, copy and service. The objection is expressed as simply a failure to see how the figure was arrived at.
The service was provided under the regime of the order for indemnity costs. There is no evidence of any charge having been made by the solicitor against the plaintiff however the only objection is as to quantum. In the circumstances I was left with only the scale in order to ascertain an appropriate level of recovery. As was the case with Item 24 and Item 16 of the scale provides an unusual basis for determining quantum. The scope for the exercise of discretion is expressed as "such amount as is reasonable in the circumstances". Within reason and implicitly, without limit. Thereby the Legal Costs Committee simply provided the taxing officer with largely unfettered discretion.
As the service would not have been provided in the presence of the adverse party and as it is the case that no item in the scale that relates to a service by which a document would be generated provides for time costing, in my opinion it would not be appropriate to adopt time costing as the mechanism of assessment.
In determining quantum it was appropriate to consider the complexity of the task presented to the solicitor drafting the bill and the extent to which the bill indicates that services were required to be rendered. In this case there was some complexity in determining the quantum of the claim in relation to the "getting up case for trial" and considering the extent to which recovery was available for the services rendered during the period the subject of the order for indemnity costs and their justification. In addition to drafting and settling the bill, it was required to be copied, filed, a fee paid and the bill served.
There was nothing to suggest to me that there was any reason to consider that the case had any special feature such as would justify interfering with or otherwise moderating those considerations. Taking into account the relative seniority of the solicitor who undertook the task, it was my opinion that $550 represented level of recovery commensurate with the provision of a service that would have required some attention in the process of its generation but no real complexity.
Under the regime of the order for indemnity costs the onus to demonstrate that he quantum was unreasonable was on the defendant. There is no useful information provided in the objection that would allow for any more detailed analysis on review.
The next item the subject of objection is the first part of the claim under the order for indemnity costs. The claim is justified by a modified account addressed by the plaintiff’s solicitor to his client dated 16 August 2001. The objection refers to six components of that account as follows:
i.A component identified as $1269 being for 89 items of correspondence.
While I have no difficulty in understanding the reference, closer examination of the account shows that the claim actually put by the plaintiff was for 45 items of correspondence for a total of $687.00.
Be that as it may, I accept that according to the terms of the objection the defendant would like to see copies of the correspondence. He did not seek to do so at the taxation. He does not now suggest that he was then precluded from doing so. The jurisdiction provided by r 53 does not extend to me now facilitating a viewing of the documents held by the plaintiff by the defendant.
He makes a similar case in relation to the component for facsimiles. They are claimed as disbursements in the relevant account and as I read the figures, including GST the claim was for $477.40.

The same consideration applies. There is no objection.
ii.The component identified as $350 for perusal of incoming letters.
The objection simply states that consideration must have been given to the content of the correspondence in the course the provision of services claimed otherwise in relation to "getting up case for trial".
I have no doubt that with respect to the whole or parts of the claim that would have been the case. It is conceivable that some items of correspondence were considered twice. The significant consideration is that any such second perusal would have been under the regime of the order for indemnity costs. That prospect is not of any concern.
The only issue raised at taxation was whether the defendant had discharged the onus. He had not done so. Accordingly I had no alternative than to allow the claim as it was expressed.
iii.The component expressed as $180 for "re-preparing the plaintiff's proofs of evidence".
The objection is made that it was the plaintiff's decision to change the proof.
I accept that if that part of a claim for getting up the case for trial had been conducted under the usual costs order then there would have been some detailed consideration as to why the plaintiff considered that recovery may be available for that service. In this case the plaintiff had the benefit of the indemnity costs order. The onus on the defendant was not discharged.
Perhaps I might record that if there was or is scope to consider that the defendant may have been disadvantaged in the taxation as a result of his inexperience, I have no doubt that by the time it came to taxing the claim for the service the defendant had not only been informed of the fact that he bore the onus but also that he had had the opportunity to understand what was required of him in attending to its discharge. The claim was one that signalled "double recovery" and it is my recollection that he recognised that prospect and made appropriate submissions.
The onus was not discharged.
iv.The component identified as $150 being for attending the Court on a chamber summons to amend the statement of claim.
At taxation that claim was disallowed presumably on the basis that costs were awarded against the plaintiff. Despite the order for indemnity costs the Court had considered the issue of where the costs should properly lie and on that occasion had awarded them against the plaintiff.
In light of the disallowance there is no proper objection.
v.The component expressed as $2,240 being for "numerous" telephone and personal attendances, conferences with Mr Rabe and Mr Bordi (2.9 hours).
The objection taken is described as being to the claim for $2,240 although the claim was actually put at $729 for which the plaintiff obtained full recovery.
The defendant again submits that the services must have been incorporated within the claim for "getting up case for trial". However they were not so claimed. No issue was raised as to whether the services had been provided after the impact of the order for indemnity costs. The onus was on the defendant, it was not discharged.
vi.The claim for the facsimile transmissions to which I have already referred.
In addition at that point the defendant refers to facsimiles claimed in the next item the subject of objection and points out that there is total claim of $780 based on $1 per copy of facsimile transmissions.
Absent the order for indemnity costs, in all probability there would have been little or no recovery for that disbursement by the plaintiff. However the onus was on the defendant. It was not discharged.
The next bundle of objections relates the second of the accounts for which recovery was sought under the indemnity costs order. Those objections relate to the following services:
i.The claim for $1,920 (exclusive of GST) that is simply expressed in the bill as being for time spent. At taxation I recorded that the time was devoted to personal attendances upon the client and telephone attendances.
The defendant objects on the basis of claim duplication with the claim under the scale for "getting up case for trial" and that no details were provided. I have already canvassed the relevant considerations. There is no proper objection.
ii.The claim of $66 (exclusive of GST) expressed as being perusal of papers on file regarding change of name of companies, etc. 20 minutes.
The objection is along the same lines and has no substance for the same reason.
iii.The determination made in relation to 84 letters for which the plaintiff makes a claim $1,350 (exclusive of GST).
In addition to the earlier stated objection, (which had no substance) the defendant objects that the cost of each letter is $15 as opposed to $12 in the earlier account and that represents a 24 per cent increase in cost.
It is conceivable that by any measure the cost claimed was reasonable. Further that any increase was also reasonable. I know nothing of when it was that the rate that may be evident on the first account was set. Ultimately the appropriate consideration is the same, the onus was on the defendant.
iv.The facsimiles, as to which the defendant takes similar objection to that already taken in relation to the same claim in the earlier account.
In my opinion at this point the defendant does not make out any better case for precluding or limiting recovery.
The next objections relate to the determinations made in relation to disbursements claimed in the bill.
The first relates to the claim for counsel's fee on the application for security costs. At taxation I recorded that the service was provided in November 2000. Under O 66 r 11(4) it is irrelevant whether the solicitor or counsel provided relevant services. The claim should have been included in that part of the bill where the recovery was sought for the provision of services.
The objection is simply that the defendant would like to know how the determination was justified.
The services comprehended by the claim included reviewing the application and the supporting affidavit of the defendant's solicitor. The affidavit extended to some 62 pages of which the first four were comprised of original text. On the return date of the application directions were made that the hearing be adjourned to a special appointment. The costs of that date were reserved and were ultimately awarded to the plaintiff. The plaintiff filed submissions in opposition to the application. They indicate that consideration had been given the defendant's submissions. On the hearing of the special appointment the application was dismissed and the plaintiff was awarded the costs. In my opinion the claim made for the cost of services rendered relevant to that application was modest.
The next disbursement the subject of objection is also for counsel's fee. There are a series of objections that are made in relation to particular components of invoices rendered by counsel that are attached to the plaintiff's bill. The plaintiff is entitled to recover the cost of the relevant services under the indemnity costs order. The onus was on the defendant. In each case it was not discharged. I will provide some short reasons.
The first relates to a claim made for the cost of revision of the plaintiff's proof of evidence. I have previously dealt with a similar claim under an earlier part of the objection. It is clear that both the solicitor and counsel were engaged in the provision of relevant services.
In the ordinary course if there were to be any recovery at all an assessment would be made for the cost of the services no matter how they were provided. However, under the regime of the indemnity costs order as a matter of principle there is no reason why the plaintiff should not recover for the costs for service however it was provided.
The second relates to services described as "drafting notice to admit facts and covering letter - 2½ hours".
The terms of the objection seeks justification for the provision of the service and the time devoted to its provision.
I recall that the document was created as a result of an analysis of information presented as a result of the review of financial documents. There was a considerable amount of detail presented to counsel in a form that suggested to him that it would be appropriate to put some fundamental facts to the defendant and seek admissions in order to obviate the need to call a significant amount of evidence.
Ultimately because the onus on the defendant was not discharged there was no alternative other than to accept counsel's account and the commitment made by him in that account to the description of the service provided, the date of provision, the justification for the particular claim and the quantum. I might say the process of drafting a significant document could easily justify the claim for 2½ hours. The claim made for those 2½ hours in my opinion is modest.
The third is for telephone discussions of 29 November 2001 relating to the notice to admit facts and expert evidence to which counsel refers to the allocation of ½ an hour and claims $100. The terms of the objection draw on the fact that reference had previously been made to the drafting of the notice and the meeting with the plaintiff which gave rise to the decision to proceed along the lines of drafting a notice to admit facts. There is nothing significant in the fact that the telephone conversation approximately one month later raised considerations as to what would be required to be done in light of the fact that the facts put had not been admitted.
The fourth is the claim for preparing for and attending at the listing conference for a period of 1½ hours for which counsel claims $300. It appears to me that the claim is modest. The further objection made at the same point in relation the notice to admit facts in my opinion appears to be a duplication of the last preceding objection. There is nothing other than the defendant's objection that would connect the listing conference with the notice to admit facts.
The fifth relates to part of a component of counsels bill for which counsel describes the relevant services as follows "perusing minute of proposed amended defence and pleadings generally, advising in relation to the need for amendment to statement to claim and liasing with Mr Kaminickas for time to time regarding generally – 2 hours". The component of that claim to which the defendant expresses objection commences with the words "advising in relation to the need". The defendant objects that the service relates to the plaintiff's decision. In my opinion even had that been the case it would be irrelevant.
The sixth relates to the component of counsel's account for general trial preparation. The terms of the objection being that there is no information as to how the figure is arrived at.
The seventh relates to those components of counsel's account for the second and third day of trial which the defendant records are sought to be claimed at a rate in excess of what appears to be the hourly rate charged by counsel for work done prior to trial. In addition to what I have just recorded, in relation to counsel's fee for the preparation for trial, for the benefit of the defendant I would add that in all likelihood counsel would charge at a greater rate for time spent at trial than would be the case for time devoted to preparation.
The eighth relates to the whole of counsel's invoice for $433.75. The objection taken to the allowance of that claim is expressed along the lines that the defendant does not have a copy of the invoice.
A copy was attached to the bill filed at the Court and had the defendant raised the failure to be provided with a copy at the taxation I would have provided him with a copy. Regardless of whether the defendant had a copy at that time, the issue raised by the objection is whether there was any error made in allowing that claim. The perception for any such error would only arise had I made the determination in the knowledge that the defendant did not then have a copy of the invoice or did not know of its content. That is not the objection put.
The next disbursement the subject of objection is described as $925.10 to Poli and Associates Pty Ltd for its "assistance with preparation for financial matters including notice to admit facts". The objection is as follows:
"The Travel Compensation Fund requires audited accounts to be lodged each year. I object to this amount, as Mahalo must have had audited accounts, which must have been the basis of their claims. There would have had to be no need for assistance with preparation of financial matters unless there was 'sinister' reason why the audited accounts were not accurate!"
I do not have a copy of the account of Poli and Associates Pty Ltd to which I can refer. I note from the accounts of counsel that after the date upon which defendant is obliged to pay costs on an indemnity basis, counsel recorded entries that relate to the services of a representative of Poli and Associates Pty Ltd as follows:
"Preparing for consultation with Mr Kaminickas and Mr Bordi and thereafter consulting with them – 2 ½ hours.
Consulting Mr Bordi's spreadsheet discussing the same with him and advising in the matter as per my fax of even date – 30 minutes.
…
Consulting with Mr Kaminickas, Mr Atcheson and Mr Bordi – 1 ½ hours."
There are what may be further incidental references to the scope of the services rendered by Poli and Associates Pty Ltd in the form of counsel's references to the time devoted to drafting notice to admit the facts and covering letter. From those indications and my memory of the taxation I am satisfied that the account fell to be recovered under the order for indemnity costs.
In my opinion even if there had been audited accounts of the plaintiff for the relevant financial year, of itself that would not preclude the plaintiff from considering whether it was appropriate to engage someone with some familiarity with financial matters to assist with the proof of any particular issue, bearing in mind the prospect that the defendant would raise issues such as that now implicitly raised by the objection.
I note that a reference to some form of reconciliation was made by the Judge at par 79 and par 80 of the reasons for decision. Paragraph 81 indicates that some issue had been raised by the defendant at trial in relation to the evidence although it is probably not that which is now raised.
At taxation the defendant raised the same issue and it was considered. My determination was that the cost of the services would be allowed and despite the defendant now maintaining his position I am not persuaded that there was any error in principle in that determination.
It is significant that the relevant disbursement was taxed under the regime of the indemnity costs order. In all probability it was the sort of expense that would present a difficulty for whichever party carried the onus as the considerations were finely balanced. Ultimately despite the valid submissions of the defendant I was not persuaded that he had discharged the onus.
The last item the subject of objection was to the witness fee claimed by "Atcheson", an officer of the plaintiff. At taxation that item was disallowed. Unfortunately the disallowance of the claim was not reflected in the quantum for which the whole bill was assessed. It follows that the quantum claimed for that item should be reduced to reflect the disallowance, that is, reduced to zero.
Accordingly the figure arrived at as a result of taxation needs to be adjusted. According, to my calculations an additional $600 off the bill reduces the net amount to $55,886.30 which together with a taxing fee $1,547.15 produces a taxed bill of $57,433.45.
I have this day signed the certificate for that amount.

[2004] WADC 19

19 February 2004