McKay v Lyford - [2012] WADC 95

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: McKAY -v- LYFORD [2012] WADC 95

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: ON THE PAPERS

DELIVERED : 22 JUNE 2012

FILE NO/S: CIV 2399 of 2011

BETWEEN: MADILYNE PAIGE McKAY
Plaintiff
AND
MAURICE HODGSON LYFORD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court 1971- Review of Taxation

Legislation:

Nil

Result:

Applicant unsuccessful

Representation:

Counsel:

Plaintiff: No appearance
Defendant: No appearance

Solicitors:

Plaintiff: O'Halloran Legal
Defendant: K N Allan

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

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff has lodged objections to determinations made at taxation in relation to five items in her bill of costs.
The first relates to the taxation of her claim for the statement of claim. As the defendant took no issue with the necessity for the provision of either the service as a whole or any of its constituent parts, the question of its allowance did not present itself for determination. The only determination made at the taxation was of the amount recoverable for the service. As the amount considered to be reasonable was less than the fee specified in the claim, in accordance with practice, the result was recorded by taxing off the balance.
The terms of objection are as follows:
The amount allowed is inadequate. The document ran to eleven (11) pages in all and it was not suggested at the taxation that any of the material supplied was unnecessary. The information I [sic] the document is not merely a 're‑hash' of the medical reports. It is clear there are a number of sources all of which have been studied, considered, summarised and then transposed into a coherent form. Whilst the document could easily have been – almost any statement of claim could be – the draftsman is entitled to include relevant material, he did so and no objection was taken.
A minimum of 4 hours should have been allowed.
The second relates to the taxation of her claim for discovery. As the defendant took no issue with the necessity for the provision of either the service as a whole or any of its constituent parts, the question of its allowance did not present itself for determination. The only determination made at the taxation was of the amount recoverable for the service. As the amount considered to be reasonable was less than the fee specified in the claim, in accordance with practice, the result was recorded by taxing off the balance.
The terms of the objection are as follows:
Allowed at $300.00.
This was claimed at $1,500.00. The plaintiff argues that the provision of discovery encompasses more than simply listing documents by rote. There is an intellectual process involved in determining which documents to discover which to withhold and (in any event) whether, for example, a claim to privilege is justified. In this case there was a significant number of heads of damage, there were photos, pay scales etc all of which had to be considered. Discovery is a discrete process; the contents of a document and whether it is discoverable involve two distinct sets of considerations. One is, or should be allowable under the Discovery item, the other under 'getting up'.
The third relates to the taxation of her claim for inspection of documents. As the defendant took no issue with the necessity for the provision of either the service as a whole or any of its constituent parts, the question of its allowance did not present itself for determination. The only determination made at the taxation was of the amount recoverable for the service. As the amount considered to be reasonable was less than the fee specified in the claim, in accordance with practice, the result was recorded by taxing off the balance.
The terms of objection are as follows:
It is contended this involves more than the process of simply comparing lists. The process of inspection involves checking the list, determining what documents are needed and what are not, whether there are any entries in the various schedules where for example privilege may have been wrongly claimed, checking the documents when received are correct against the list provided. The time taken should at least have been allowed at two hours.
The fourth relates to the taxation of her claim for getting the case up for trial. As the defendant took no issue with the necessity for the provision of either the service as a whole or any of its constituent parts, the question of its allowance did not present itself for determination. The only determination made at the taxation was of the amount recoverable for the service. As the amount considered to be reasonable was less than the fee specified in the claim, in accordance with practice, the result was recorded by taxing off the balance.
The terms of the objection are as follows:
Schedules were provided which showed that well in excess of $48,000 work had been done. Whilst there is obviously a significant solicitor/client element, even allowing for 50% the claim should still have been allowed at a far greater sum than $13,000. The claim settled for $175,000. Although liability was admitted, the heads of Damage included cosmetic loss, psychiatric injury, gratuitous services, paid services, economic loss, delayed qualification, travelling expenses (schedules were provided), medical expenses, all of which had to be assessed and quantified. It is not possible to say what it should have cost; it was not suggested that the hours invested in the preparation were not in fact done. The plaintiff suggests a figure representing 60% of the amount claimed or $21,000. This figure includes the involvement of Council negotiating final settlement (an item which was disallowed under item 18 in the Bill) and allows for a 40% solicitor/client component in the amount sought at the component of nearly 60% against the actual time spent.
The last relates to the taxation of her claim made for the bill of costs. As the defendant took no issue with the necessity for the provision of either the service as a whole or any of its constituent parts, the question of its allowance did not present itself for determination. The only determination made at the taxation was of the amount recoverable for the service. As the amount considered to be reasonable was less than the fee specified in the claim, in accordance with practice, the result was recorded by taxing off the balance.
The objection is as follows:
This was claimed at $1200 and should have been allowed at that sum. I believe that the learned registrar underestimated the intellectual process, as well as the logistical exercise of going through the entire file after the event to determine what work was done and what might be a reasonable charge for any particular item. Drawing the bill on a file comprising many hundreds of documents is a lengthy process; it took at least three hours and should have been allowed at the sum claimed.
The scope for review is limited by the terms of O 66 r 53(1). There having been no determination made in relation to the services the subject of the relevant items in the bill, it is difficult to conceive that there would be scope to object. Having been the beneficial party it is hardly surprising that the plaintiff would not be contending that any item or part of an item had been wrongly allowed. None of the objections suggest that any item or its constituent parts had been wrongly disallowed. It follows that none of the objections is within the scope of the rule. If for the purposes of establishing the scope for review provided by r 53(1), I am wrong to utilise the distinction between items and fees that is established by O 66 r 42, then in my opinion each objection is beyond the scope of that rule as it does not specify anything that qualifies as an error in principle.
As for the second objection, I note that the claim was pitched at $1,500.00 of which $1,000.00 was taxed off. Unless there is an error on the record, the plaintiff is incorrect when she contends that she recovered $300.00 for the service.
The plaintiff is unsuccessful in her objections. The defendant is entitled to the costs of his response.