Maketic v OSMANBAustralian Securities and Investments Commission - [2001] WADC 199

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MAKETIC -v- OSMANBASIC & ANOR [2001] WADC 199

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 9 MAY 2001 & 5 JUNE 2001

DELIVERED : 21 AUGUST 2001

FILE NO/S: CIV 2296 of 1999

BETWEEN: SENAD MAKETIC
Plaintiff
AND
ZIJAD OSMANBASIC
First Defendant
UNITED CONSTRUCTIONS PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation of costs - Getting up, counsel fee, solicitor attending trial

Legislation:

Nil

Result:

Review unsuccessful

Representation:

Counsel:

Plaintiff:     Mr S V Forbes
First Defendant             :     Mr K N Allan
Second Defendant         :     No Appearance

Solicitors:

Plaintiff:     Leonard Cohen & Co
First Defendant             :     K N Allan
Second Defendant         :     McAuliffe Williams & Partners

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

Nil

Case(s) also cited:

Commonwealth v Magripilis (1962) 3 FLR 47
Tenbohmer v Eden (1992) 6 WAR 366

DEPUTY REGISTRAR HARMAN: The plaintiff has raised objection to certain determinations made in the course of taxation of the first defendant's bill of costs.
The first objection relates to the determination of claims under items 9(c) and 13 of the scale which appear in the bill as follows:
3Inspection and giving inspection      (9c)    $     250
6Getting up case for trial  $ 1,200
11Getting up case for trial                   (13)   $12,000
At taxation I determined that there was no proper claim under item 9c of the scale as the services for which recovery was sought in item 3 were part of the process of getting up the case for trial. Accordingly the claim at item 3 was disallowed; the relevant services were dealt with as part of the claim for getting up case for trial and the fee sought transferred to that claim.
Although there were two claims made for getting up case for trial under different versions of the scale, I considered that there was only one claim under the item "getting up case for trial". Accordingly, the three items were consolidated. There is no objection raised to any relevant determination to that point.
The total amount claimed for services that related to getting up case for trial was $13,450. Quantum was determined at $10,000.
The plaintiff raises what he considers to be three errors each that are described as errors of principle in law or in the exercise of discretion. The first allegation of error is that no regard or insufficient regard was had for the fact that the first defendant was only entitled to costs from 7 September 1999. The second that as the defendant did not proof any witness and only called one witness, the amount determined was grossly disproportionate to the amount that should have been allowed. The third that the amount allowed was neither just nor reasonable in the circumstances, particularly as there was no significant development of any of the issues between the parties after 7 September 1999.
As to the first and third grounds, the scope for recovery of costs by the first defendant is limited by the terms of the judgment to the services rendered after 7 September 1999. The determination made in relation to quantum does not reflect recovery for any services rendered by the first defendant's solicitor prior to 8 September 1999. It is significant and in my opinion more to the point that the plaintiff does not allege that allowance was made for any service provided prior to that date.
As to whether the amount determined was reasonable, in my opinion that is for others to judge. Ultimately, the test is whether no taxing officer, acting reasonably, could have arrived at the particular determination. The defendant was entitled to recover for services provided to him over virtually the whole of the period from the date he filed an appearance to the date of judgment. As liability was not in issue, the maximum recoverable by the first defendant under the scale was $20,250.
As to the second ground, I accept that as a general proposition the extent to which a practitioner engages in the process of proofing witnesses is a relevant consideration in the determination of quantum. In this case, the first defendant proofed no witness, and I understand, called only one medical witness. Presumably there was an exchange of his evidence prior to trial.
In March 1993 Master Staples, in his paper Taxation of Costs, provides the following explanation for the term "getting up case for trial":
"The item 'getting up case for trial' corresponds very broadly to instructions for brief in other jurisdictions but it covers much more. Oliver at pp 205, 206, citing various authorities including Slingsby's case (supra), Commissioner of Land Tax v Jowett (1930) 45 CLR 115 and London etc Railway Co v S E Railway Co (1889) 60 LT (N.S.) 753, says this about instructions for brief:
' "Instructions for brief" consists in getting together all of the facts and information which would enable counsel holding the brief to understand and conduct the case at the trial, collating the facts and extracting the relevant from the irrelevant, and presenting the whole of the evidence to counsel so as to get the case in a concise, logical, and intelligible form.
The allowance for "Instructions for brief" is intended to cover work done in ascertaining the material facts of the case, sifting evidence and reducing the case to the essential matters which have to be brought before counsel conducting the case.
Solicitors are responsible for giving proper and adequate instructions to counsel: It is not sufficient to collect a mass of documents and pass them over to counsel to do their best or their worst with.
The matters to be taken into consideration in arriving at an allowance for instructions for brief are the pleadings and the evidence, both of witnesses and documentary, the amount claimed to be due, the importance of the case, the responsibility of the solicitor in conducting the case, and the labour and anxiety involved in getting up the evidence.'
Our item 13 includes all work done in preparing for trial not covered by any other item. In addition to the work in included in instructions for brief, it covers the preparation of the brief itself, perusal and copying of relevant documents, advice on evidence, notices to produce or to admit, preparation and issue of subpoenas, preparation of the books of pleadings, entry for trial, attending counsel with brief and conferences with counsel."
In due course I will deal with the objection that relates to the determination of counsel's fee. For present purposes it is appropriate to note that the "solicitor on the record" was Counsel who attended trial. Whilst there may have been no formal briefing of Counsel, that does not mean that the solicitor did not go through the process of reflecting upon the evidence which the defendant had obtained or which was proposed by the other parties, consider the first defendant's case and give proper regard to the interlocutory processes and their utility regardless of the extent to which resort was had to those processes. It is during the process of getting up the case for trial that the solicitor properly considers the issues on the pleadings and the available evidence in relation to those issues. Again, that is regardless of whether the party ultimately calls evidence in relation to those issues.
In my opinion the case was significant for the defendant. He is entitled to recover the costs of services rendered from a date prior to the filing of his defence. I am satisfied that the defendant's solicitor devoted significant consideration and resources to the process of getting up the case for trial.
In my opinion the plaintiff has not demonstrated that there was any error in principle in relation to the determination made for the claim for getting up the case for trial.
The second objection relates to determination of the claim under item 14(a) of the scale that was presented in the bill as follows: -
12Counsel fee including preparation
5 February 2001 (14a) $7,000
At taxation, the item was allowed and quantum for that item was determined at $5,800.
The first ground of objection is that the determination of the fee was not reasonable taking into account the fact that the only issue to be tried was the assessment of damages and that the defendant's Counsel was also the defendant's solicitor.
The claim made by the defendant exceeded the scale taking into account the reduction required to be made under item 14(h) of the scale. That point was canvassed at the taxation. Under the first part of the ground the plaintiff does not assert that the taxing officer failed to recognise that the only issue tried related to the assessment of damages. As to the second part of that ground, the determination did reflect the fact that Counsel was the instructing solicitor. Accordingly, I reject the result contended for by the plaintiff which was that the first solicitor was rewarded twice for the same work.
There are two components of the claim for Counsel fee for the first day, the first being familiarisation with the brief and the second, for the day spent in Court. Obviously there should be a reduction for the first component as the self-briefed solicitor is familiar with the case. That does not mean that Counsel would not prepare for the case and its presentation at trial.
It is alleged in the second ground that the taxing officer failed to have regard to the maximum for the item, $6,900 and that the amount determined was neither just nor reasonable. As to the first point the plaintiff presents no support for his contention. As to the second, again that is for others to judge.
The third objection relates to determinations made in relation to claims under 14(c) of the scale. In each instance but the last, the defendant claimed $1,775 and on the last, $2,000. At taxation, the quantum determined for each item but the last was $1,700 and for the last, $1,725.
The first ground of the objection is that the quantum assessed in all but the last item was for $425 less than the maximum when the first defendant's Counsel was little more than a spectator for most of the trial.
In my opinion, properly considered, that objection is no more than an argumentative submission. Ultimately the quantum determined for the second and subsequent days of trial reflects the time spent at Court, the significance of the case and the seniority of Counsel appropriate for the case.
The second ground of objection relates to the determination made for the last day. The plaintiff alleges an error in principle in that the determination reflects an additional allowance for the preparation of submissions.
In arriving at the determination made at taxation I reflected upon the fact that closing submissions were prepared by the defendant and made available to the Court. Those submissions appeared to be comprehensive. It was my opinion that they added significantly to the value of services provided by the defendant’s solicitor to the defendant on the last day of the trial. I accept that no special order was made in relation to those submissions and accordingly if there was to be any recovery it could only be within the context of a determination made in relation to that day of the trial. In effect, the maximum recoverable under the scale item limited the recovery that may otherwise have been claimed by the defendant.
The next determinations put in issue by the plaintiff relate to claims under item 14(e) of the scale. They appeared in the bill as follows: -
22solicitor attending trial 6 February 2001     (14e) $175
23solicitor attending trial 8 February 2001     (14e) $800
24solicitor attending trial 9 February 2001     (14e) $1,000
The fee for those claims was determined at $126, $798 and $892.50.
The ground of the plaintiff's objection is a little difficult to discern. It is expressed as follows:
"The taxing officer erred in principle in finding that, although the first defendant's solicitor, a senior practitioner, acted as Counsel for the first defendant on trial it was reasonable for a solicitor in his employ to assist him at trial from time to time in regard to rescheduling evidence to be given by the first defendant's only witness at an hourly rate of $210 per hour."
The plaintiff contends that the item should have been assessed as follows:
"(i)Identifying what services were reasonable with due regard to the nature and lack of complexity of the issues in dispute during the trial as well as the fact that only one witness was called by the first defendant;
(ii)Objectively assessing a reasonable allowance (if any) for such services by applying the rules, the Determination and the underlying principles thereof;
(iii)Measuring the amount actually claimed in the bill for the services against the objective assessment in order to determine whether or not the amount claimed was reasonable;"
And the plaintiff concludes: -
"(v)In which case the sum allowed would have been nominal at best."
Under the scale, allowance may properly be made for a solicitor attending trial at an hourly rate to a maximum of $270. In my opinion, recovery under that item is available where the solicitor on the record appropriately attends trial in order to instruct counsel during the course of the trial. Recovery is available regardless of whether any instructions were actually provided during the course of the trial. In my opinion it is utterly irrelevant that the solicitor may have been otherwise involved in essentially clerical tasks such as organising the appearance of witnesses. Similarly so the seniority of counsel.
That does not mean that recovery may not be made for the attendance of a solicitor other than the solicitor with the conduct of the file. In such case however, it is appropriate to consider that the services rendered by the solicitor would be less than those that would have been available had the solicitor with the conduct of the file attended for the purpose of instructing counsel. I was satisfied that the solicitor for whom the claim was made had some reasonable degree of involvement in the process of getting up the case and would have been in a position to take instructions from the defendant and communicate those instructions to counsel. That said, but for the fact that at the relevant time he was acting as counsel, counsel otherwise had a relationship with the defendant as solicitor and client. There are any number of issues which may arise at trial for which it may be appropriate to seek or provide instructions. I am satisfied that for the majority of such issues would have been within the capacity of the solicitor to obtain and provide instruction to counsel. It was my view that the extent of recovery ought to reflect that consideration.
I was satisfied that the defendant was entitled to recover costs at an hourly rate which would be reasonably close to the hourly rate for the solicitor with the conduct of the file. The rate claimed was, I recall, $210 per hour as the plaintiff has indicated, and I do not recall that at taxation there was any contest in relation to that rate.
Returning to the allegation of error, it seems to suggest that the allowance of the item depended upon an assessment of the assistance rendered by the solicitor at trial. As I have indicated, relatively menial tasks may be performed at trial by the instructing solicitor. It is not difficult to understand why that would be so. However, that is not the basis for allowance. The sole basis for allowance is to instruct counsel. It follows that if counsel is properly briefed and nothing unexpected eventuates at trial, the solicitor would have nothing to do in his or her capacity as solicitor. In my opinion that prospect or that fact would have no bearing on whether allowance ought to be made.
Turning to the plaintiff's assessment of how the determination ought to have been made, as to (i) the important consideration was that the issue of quantum was to be determined at trial. As to (ii), as I have indicated, there appeared to be no dispute as to the hourly rate and I did not consider it to be unreasonable.
My only observation in relation to the plaintiff's conclusion is that I cannot see that any proper determination could have resulted in a nominal sum.
As I have determined each of the objections raised by the plaintiff against the defendant, it is appropriate I will now sign the allocatur.