MARREN v Fletcher - [2013] WADC 194

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MARREN -v- FLETCHER [2013] WADC 194

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: ON THE PAPERS

DELIVERED : 10 DECEMBER 2013

FILE NO/S: CIV 2699 of 2010

BETWEEN: PATRICIA ANN MARREN
Plaintiff
AND
CODY FRANCIS FLETCHER
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Taxation of costs - Review - Sufficiency of objection

Legislation:

Nil

Result:

Objection insufficient

Representation:

Counsel:

Plaintiff: No appearance
Defendant: No appearance

Solicitors:

Plaintiff: O'Halloran Legal
Defendant: SRB Legal

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

DEPUTY REGISTRAR HARMAN: The plaintiff is entitled to recover in accordance with the scale the reasonable cost of services necessarily provided to her over the course of the action. She lodged objections to determinations made upon taxation of three items of her bill in response to which the defendant filed submissions. Unfortunately I was not aware that either document had been filed. Accordingly, the process of review is undertaken considerably later than ought to have been the case.
Order 66 r 53 provides for review in circumstances where the objecting party alleges that the taxing officer made an error in principle in the allowance or disallowance of any item or part of an item in a bill of costs. In this instance there was no relevant determination adverse to the plaintiff. Setting aside for one moment consideration of the question whether absent such a determination there is scope to review, at no part of the notice of objection is there any allegation of error of any character. To the extent that the plaintiff raises issues for consideration, in my opinion they do not suggest any error in principle. In my opinion the notice is not within the scope of the rule because it does not contain a valid objection.
As it may be the case that others would disagree, to the extent that it is open to consider that particular parts call for either comment or a response I will now do so.
The first part of the plaintiff's notice relates to the determination made on the claim made for getting up case for trial. No part of the item the subject of the claim was disallowed, the only determination made was as to quantum. The relevant parts of the notice are as follows:
1.ITEM 7 The fact that items (3), (4) and (6) were reduced because the Registrar took the view that the allowance under the Scale (in the case of Rule 45 particulars) provided only for the preparation of the document itself rather than the intellectual process that lay behind it, and with no allowance for (in the case of Discovery) the continuing obligation to provide Discovery and (in the case of inspection) no allowance for inspecting the documents inspected meant that the Learned Registrar took off a significant sum from the amount claimed under each heading.
2.In each case he expressed the view that any further allowance for giving consideration to the subject matter of the respective documents should be claimed under Getting Up.
3.Having made those observations it is maintained that he then failed to make a sufficient allowance for those matters under that head.
4.He failed to take into account the Submissions about the amount of time actually spent by the Practitioner in preparing the matter for the PTC and in particular, the proofs of evidence, the Submissions themselves (which ran to 31 pages) and the timesheets evidencing the time spent as set out in item 7(v) of the Bill.
5.He paid no regard to the submission that the Plaintiff was essentially a relatively simple soul who had to be guided through the litigation process and who required extra care and time from her Solicitor when providing advice.
6.He failed to take into account the time spent on the legal argument raised by the Defence in CSR v Eddy 2005 HCA 64 dealing with Gratuitous Services.
7.If he had taken all those matters into account he would have awarded considerably more than $14,500.00.
8.No basis was provided for the assessment of the sum of $14,500.00 by way of getting up.
9.The Practitioner provided detailed time-sheets of time spent on the file.
10.The resolution of the claim involved consideration of an enormous amount of documentation which had been subpoenaed by the Defence in order to establish an alternative explanation for the Plaintiff's symptoms in relation to which they had the burden of proof but which all had to be dealt with by the Practitioner and Counsel – Watts v Rake (1960 108 CLR).
11.In our submission it is not an adequate approach for the Defendant to say that the claim 'should not' have absorbed that amount of time when it patently did take that time. Although there has to be an element of 'solicitor and client' costs in the work done (as itemised) which the Defendant should not be required to pay the amount allowed falls significantly short of a reasonable amount and we ask that the allowance be reconsidered.
My interpretation of the notice is that the want of sufficiency expressed at par 3 draws on the content of pars 1 and 2 and the failure to take matters into account expressed at par 7 draws on the content of pars 4 to 6.
I have considered and rejected the prospect that there is any reason to consider that what is put by the plaintiff at pars 1 and 2 in relation to each of items 3, 4 and 6 amounts to an objection in relation to the determination made on each of those claims. It is unnecessary to address the plaintiff’s characterisation of each determination. I will record that at some point in the taxation of item 4 prior to undertaking the administrative process of recording the result, the plaintiff amended the bill to decrease the amount claimed to $500 and increase the claim made under item 7 by $1,500. Thereby I understood that some features of activity that had been characterised differently by the plaintiff would upon taxation of item 7 be considered part of getting up case.
As for what is expressed at par 3, I struggle with the proposition that the plaintiff would be in a position to contend that she had not been recompensed in accordance with her entitlement for all parts of the service that had been provided to her.
Contrary to what is expressed at par 4, at no point in item 7 is there any reference to time. Regardless that observation, it may be that the plaintiff would have me infer that by par 4 she objects along the lines that she did not recover under item 7 for preparation for the pre-trial conference. I could devote some time and energy to addressing that prospect; and if it was established, my response. In my opinion it is more appropriate to observe that it is for the objecting party to establish ground for review: is for the plaintiff to express an objection.
As for pars 5 and 6, submissions along the same lines were made at taxation. It is difficult to conceive that there is any basis upon which the plaintiff could contend that the matters specified were not taken into account in making the determination of the amount recoverable for the service.
As for par 7, I have no difficulty with the proposition put but it is flawed by its reliance upon the propositions in pars 4 to 6 inclusive.
Beyond par 7, I cannot discern that there is any contention put that calls for any response other than that what precedes the concluding sentence of par 11 appears to be to the end of a request for reconsideration. I have no difficulty with the proposition that it is open to reconsider matters determined at taxation. At this point I am engaged in a process commenced by the plaintiff's notice.
The next part of the notice relates the determination of the amount recoverable for the statement of claim. It is as follows:
12.ITEM 2 The amount allowed for Item 2 should have been allowed at least 4 hours for a senior Practitioner. It is conceded that full particulars were not supplied in the Statement of Claim but any Statement involves a complete review of the file, the preparation of a Draft by reference to all the source material, consideration of the Heads of Damage (even if not fully particularised at that stage) and the final settling. The sum chosen by the Taxing Officer seems arbitrary and reasons are requested together with a review of the quantum.
There is no reason to consider that in any particular case recovery would be had at the level utilised by the committee in its determination of the maximum recoverable for a service.
The last part of the notice relates to the drawing of the bill as to which the objection is no more than that the amount 'allowed' is 'claimed to be inadequate'.
The essence of the objection is that the practitioner took four hours to prepare the bill and that that might not include checking by counsel. The plaintiff goes on to specify at par 14:
A Bill has to be prepared by reference to all source documents and by reference to the appropriate Scale for each individual item; this involves a great deal more than a purely administrative task. It requires that the whole file (in this case some 8 full folders), consideration of the time reasonably spent under each item number in the scale, the collation of all the supporting document, checking the photocopying, all the timesheets, the applicable rates for each fee earner involved on the file over the previous years and the Cost Scale applicable at the relevant time.
The standard that applies in determining quantum is that a service had been provided in an efficient manner by a competent practitioner. As for the particular service, according to that standard the exposure of the defendant under the order is to the cost of drawing the bill by a practitioner with the conduct of the file. At the time when it was reasonable to expect the bill to be drawn that practitioner would have been relatively familiar with sufficient detail on the question of the cost of services rendered in order to resolve issues relating to recovery at the pre‑trial conference.