McMahon v Woodward - [2022] WADC 29 (S2)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MCMAHON -v- WOODWARD [2022] WADC 29 (S2)
CORAM:   CURWOOD DCJ
HEARD:   16 APRIL 2024 WITH FURTHER WRITTEN SUBMISSIONS BY THE PARTIES ON 18 & 23 APRIL 2024
DELIVERED          :   17 DECEMBER 2024
FILE NO/S:   CIV 3415 of 2019
BETWEEN:   JOHN DOUGLAS MCMAHON
Plaintiff
AND
GAVIN JOHN WOODWARD
Defendant

Catchwords:

Application for review of taxation of costs - Application to set aside certificates of costs - Proper interpretation of costs orders of trial judge - Whether error of principle in approach to taxation of costs by taxing officer

Legislation:

District Court of Western Australia Act 1969 (WA), s 67, s 67(1)
District Court Rules 2005 (WA), r 6
Rules of the Supreme Court 1971 (WA), O 66 r 53, O 66 r 54, O 66 r 55

Result:

Application for review refused
Application to set aside certificates of costs dismissed

Representation:

Counsel:

Plaintiff	:	Ms B Tariq
Defendant	:	In person (by video link)

Solicitors:

Plaintiff	:	Fletcher Law
Defendant	:	Not applicable

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

AGC (Advances) Ltd v West (1984) 5 NSWLR 301
Allesch v Maunz (2000) 203 CLR 172
Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
Blenkinsop v Herbert [2017] WASCA 87 (S)
Boon v Burt [2020] WASC 64 (S)
Broadway Pty Ltd v Lewis [2012] WASC 373
Calderbank v Calderbank [1975] 3 WLR 586
Cameron v Cole (1944) 68 CLR 571
City of Belmont v Saldanha [No 2] [2018] WASC 278
Cooper Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36 (S)
Dream Money Pty Ltd v Bernhard [2016] WASCA 193
Dusol Pty Ltd t/as BW Duckham & Co (a firm) v Della-Vedova & Sons (a firm) [2023] WADC 41
EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59
Frigger v Mervyn Jonathan Kitay as liquidator of Computer Accounting & Tax Pty Ltd [No 2] [2024] WASC 50
Goo v Kim (No 2) [2023] FCA 1285
Goodwin v Storrar [1947] KB 457
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASCA 108
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2018] WASCA 185
Hanson Construction Materials Pty Ltd v Calabro [2024] WASC 338
Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd [2007] QDC 57; (2007) 69 ATR 374
Ian Torrington Blatchford as administrator of the estate of the late Voitto Tapio Laine v Tapio Harry Laine [2018] WASC 207
Larussa v Anna Carr as administratrix of the estate of Giuseppe Larussa [2024] WASCA 16
Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217
Lim v Comcare [2019] FCAFC 104; (2019) 165 ALD 217
McMahon v Woodward [2022] WADC 29
McMahon v Woodward [2022] WADC 29 (S)
Mossensons (a firm) v Coastline Associates (Unreported, WASCA, Library No 970661B, 2 December 1997)
Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209
Noelle Elizabeth Hillman v Lynda Box, Debrah Box & Skye Box as Executors of the Estate of Graeme William Box (No 5) [2014] ACTSC 150 (26 June 2014)
Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2015] QSC 122
Racing New South Wales v Racing Victoria Ltd [2024] NSWSC 147
Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388
Sullivan v Department of Transport (1978) 20 ALR 323
Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152
WA Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527
Wheatley v Bower [2001] WASCA 293
WJ Green & Co (1984) Pty Ltd v Tace Pty Ltd [No 4] [2010] WASC 363, 22
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [2023] WASC 72
Zaghloul v Woodside Energy Ltd [2019] WASC 187

CURWOOD DCJ:

Introduction and overview

The plaintiff obtained judgment against the defendant for $173,708, $75,000 by summary judgment, (pursuant to an order of Deputy Registrar Hewitt made on 9 April 2020) and the balance of $98,708 after trial: McMahon v Woodward.[1] On 1 July 2022, Russell DCJ, (as her Honour then was), ordered the defendant to pay the plaintiff's costs of the proceedings on a 'solicitor and client' basis to be taxed if not agreed: McMahon v Woodward.[2]
[1] McMahon v Woodward [2022] WADC 29.
[2] McMahon v Woodward [2022] WADC 29 (S).
The plaintiff prepared and filed two bills of costs, the first for the summary judgment application determined in April 2020 and the second for the substantive proceedings.
A taxation of costs was listed for 30 August 2023. The defendant, who resides in Greece, applied to adjourn the taxation from 30 August 2023 to a date in December 2023, when he planned to be in Perth. Deputy Registrar Harman dismissed the defendant's adjournment application. The taxation of costs commenced on 30 August 2023. Notwithstanding his earlier adjournment application, the defendant attended the taxation on that date. The taxation was not completed and was adjourned to 24 October 2023.
The defendant requested the court that he be permitted to attend the taxation on 24 October 2023 by video link. The deputy registrar refused that request.
The defendant did not attend the continuation of the taxation on 24 October 2023, although he filed updated submissions. The taxation was finalised in his absence.
At the completion of the taxation on 24 October 2023, Deputy Registrar Harman, who was acting as the taxing officer for the taxation, signed certificates of taxation on each bill. The plaintiff's costs were allowed in the following amounts:
1.Summary judgment bill $10,193.63
2.Substantive action bill $208,855.59
The defendant, after receiving copies of the signed certificates of taxation, requested the deputy registrar to set aside each certificate. After considering that request, the deputy registrar declined to set aside the certificates.
The defendant subsequently applied for a review of the taxation under O 66 r 53 of the Rules of the Supreme Court 1971 (WA) (RSC) on the basis that the deputy registrar made errors of principle in conducting the taxation. As I explain in further detail, a problem with such an approach was that upon signing the certificate of taxation the deputy registrar was functus officio and could not review the bills which he had taxed. Over several months the defendant made various objections and sent a number of emails to the court. Ultimately the case was referred to me.
For the reasons that follow, I dismiss the defendant's application seeking a review of the taxation of costs and decline to set aside the certificates of taxation with respect to each bill of costs. In summary:
1.On a proper construction of the trial judge's costs orders, the defendant was ordered to pay the plaintiff's costs of the action on an indemnity basis. The justification for that order was a contractual provision which governed the parties' commercial relationship.
2.I am not satisfied that the deputy registrar made any error of principle in the taxation of the plaintiff's costs.
3.In all of the circumstances of the case, there was no denial of procedural fairness to the defendant by the deputy registrar proceeding to tax the plaintiff's costs in the defendant's absence, taxations of costs being summary proceedings with limited appellate review and oversight.

The plaintiff's claim and the trial judge's final orders

The plaintiff's claim was to recover advances of money he had made to the defendant by way of loans. The parties entered into a written agreement which regulated the loan advances made by the plaintiff to the defendant.
Deputy Registrar Hewitt entered judgment on the plaintiff's claim for two loan advances of $25,000 and $50,000, after the hearing of a summary judgment application on 9 April 2020.
At the time of entering summary judgment, the deputy registrar ordered the defendant pay one third of the plaintiff's costs of the summary judgment application 'in any event', but that otherwise the costs of the summary judgment application be 'costs in the cause'.
The trial of the balance of the plaintiff's claim proceeded in November and December 2021. On 25 March 2022 judgment was entered for the plaintiff against the defendant for $98,708.
The effect of the summary judgment costs order, combined with the final costs order, meant that the plaintiff, as the successful party in the action, was entitled to recover all of his costs of the summary judgment application from the defendant.

Costs and interest applications

After trial, the plaintiff sought an order that the defendant pay his costs of the proceedings on an indemnity basis. Mr Woodward opposed the application. The trial judge determined the application for costs (and an unrelated application for interest) on the papers and published supplementary reasons for her decision.[3]
[3] McMahon v Woodward [2022] WADC 29 (S).
The plaintiff's claim for indemnity costs was founded on two alternative grounds:
1.First, relying on cl 8 of the Loan Agreement entered into between the plaintiff and the defendant which provided:
8.COSTS AND EXPENSES
8.1The Borrower must on demand by the Lender pay and indemnify the Lender against all costs, losses, charges, expenses, liabilities, damages, fees and disbursements including all reasonable legal costs on a solicitor and own client basis paid or incurred by the Lender of or incidental to:
(a)the exercise or attempted exercise of any right, power, privilege, authority or remedy of the Lender under this Agreement; and
(b) …
2.Secondly, and alternatively, the defendant's failure to accept Calderbank offers of compromise which were on terms more favourable to the defendant than the position he achieved after trial.
Her Honour, as I have noted, made a costs order that the defendant pay the plaintiff's costs of the proceedings on a solicitor and client basis to be taxed if not agreed.[4]
[4] McMahon v Woodward [2022] WADC 29 (S) [45.3].
Ultimately, her Honour did not consider the indemnity costs claim based upon the offers of compromise in any detail because she held that cl 8 of the Loan Agreement informed her discretion to award costs on the basis that it regulated the claim made by the plaintiff against the defendant.
Her Honour noted that cl 8 of the Loan Agreement provided that the defendant would pay and indemnify the plaintiff against all costs, losses, charges, expenses, liability, damages, fees and disbursements including all reasonable legal costs on 'a solicitor and own client basis' paid or incurred by the plaintiff.[5]
[5] McMahon v Woodward [2022] WADC 29 (S) [38] - [43].

Plaintiff files two bills of costs

On 29 June 2023 the plaintiff filed two bills of costs.
The first bill claimed $5,446.10 (excluding drawing costs and disbursements), being one-third of the total costs of the summary judgment application.
The second bill, which claimed all of the other costs incurred in the proceedings, claimed $186,954.90 (excluding drawing costs, printing costs under item 33 of the scale and disbursements). Included in the substantive bill was a claim for the balance of two thirds of the costs of the summary judgment application (presumably on the basis that those costs were the costs in the cause contemplated by Deputy Registrar Hewitt's order). Both bills were drawn on the basis that the costs items were claimed 'on a solicitor‑client basis'. The bill included this note: 'for structure, items have been categorised by reference to' the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (2020 Determination).
The bill claimed allowances for work performed which exceeded the scale limits both as to the hourly rates charged and to the total amounts claimed for each item. For example, the bill of costs claimed work undertaken by a senior practitioner at an hourly rate of $605 whereas the maximum hourly rate for a senior practitioner under the 2020 Determination was $495.

The defendant attempts to adjourn the taxation of the plaintiff's costs

As I have noted, the plaintiff's bills of costs were listed by the court for a taxation on 30 August 2023 at 2.15 pm.
The defendant applied for the taxation date to be adjourned from 30 August 2023 to a date in December 2023 when he said he would be in Perth. The plaintiff opposed the defendant's application to adjourn the taxation. The plaintiff filed an affidavit in opposition to the application in which he deposed to potential prejudice in any delay in the taxation of his costs. The plaintiff stated that enforcement steps to recover his costs against assets owned by the plaintiff in Greece may be compromised by any delay. The deputy registrar dismissed the defendant's application on 10 August 2023.
During the hearing on 10 August 2023 (which the defendant participated in by audio link), the defendant raised with the deputy registrar his concerns about not being present at the taxation and that he would be 'disadvantaged by way of the audio-video at the hearing', stating that 'I just think my case would be far better served by me being there in person than, for example, an audio discussion like today'. The deputy registrar responded by saying:[6]
Well, I couldn't agree with you more in relation to the last points that you're making, and that is why when I'm taxing bills, I don't undertake the procedure with audio-link operating, or any form of technology operating at all to facilitate someone's appearance at the taxation. Taxations just don't work that way.
[6] ts 451.
On 15 August 2023 the plaintiff filed an:
1.Amended bill of costs whereby he added a claim to the bill for the costs of the hearing before the deputy registrar on 10 August 2023 pursuant to the deputy registrar's orders of that date. The effect of that amendment is that the professional costs claimed on the amended bill were increased by $6,589, from $186,954.90 to $193,543.90.[7]
2.Affidavit of his solicitor, Paul Francis Fletcher (sworn 15 August 2023) which contained copies of costs agreements between the plaintiff and his solicitors and between his solicitors and counsel.[8]
[7] At the taxation the amount allowed for that claim of $6,589 was reduced by the deputy registrar by $1,589 to $5,000.
[8] The costs agreement between the plaintiff and his solicitors prescribed that the hourly rate for the senior principal of the firm would be $640 excluding GST. Rates for other practitioners were also higher than scale maxima under the 2020 Determination.
On 25 August 2023 the defendant filed an outline of submissions setting out various objections as to the quantification of the plaintiff's costs claimed in the bills of costs which were due to be assessed on 30 August 2023. In summary, the defendant's submissions raised the following issues:
1.The plaintiff was a 'vexatious litigant'.
2.The decision not to allow the taxation to occur with the defendant participating via video link placed him in a considerable disadvantage in that he was not able to present his case and elaborate on the points he had raised in his outline of submissions.
3.The costs claimed of $206,929 (which was the sum claimed inclusive of drawing costs and disbursements) were disproportionate to the amount of the plaintiff's claim.[9]
4.The claim pursued at trial sought various amounts of interest on the loan amount but, in her decision delivered on 25 March 2022, the trial judge ordered that interest was not payable at the claimed rate of 12.64% of the loan amount ($12,473 on the sum of $98,708) and, therefore, the various items in the bill should have been reduced by 12.64%.[10]
5.The plaintiff had not incurred or paid most of the costs being sought and had not actually been invoiced all those costs.[11]
6.Various specific objections were made as to reasonableness of costs claimed in the bill.
[9] Defendant's submissions dated 25 August 2023, pars 12 - 14.
[10] Defendant's submissions dated 25 August 2023, pars 15 - 17. As an aside, the deputy registrar acting as taxing officer, did not hold the power to in effect carry out the taxation on the basis that the plaintiff failed on certain issues. The power to order a reduction of recoverable costs for failed issues only rested with the trial judge. It is difficult to see, as a matter of logic, how the submission as to interest related to the assessment of the plaintiff's reasonable costs.
[11] This was in effect a challenge to the indemnity rule. See [169] below.
I will return to these objections in my discussion in the merits of the application because the objections which were taken before the deputy registrar were again taken in this application. Those objections have remained consistent during the process of taxation of the plaintiff's costs and were repeated in the application before me.
The taxation commenced on 30 August 2023 but was not completed in the time allocated. The defendant attended the taxation hearing in person.
The court relisted the taxation to resume on 24 October 2023.
On 29 September 2023, the defendant emailed the court to request permission to attend the taxation on 24 October 2023 via video link.
On 13 October 2023, the deputy registrar refused the defendant's request to appear by video link at the taxation on 24 October 2023.
On 19 October 2023, the defendant filed a further outline of submissions for the taxation of the plaintiff's costs. In those submissions the defendant repeated the various contentions as to the plaintiff being a vexatious litigant and that the costs claimed by the plaintiff in his bills were unreasonable and grossly inflated. The points raised by the defendant in this document largely repeat those made in the defendant's earlier submissions of 25 August 2023. As I have noted, the defendant has relied upon the same matters in this application to argue that the deputy registrar erred in assessing the plaintiff's costs.
With respect to his contention that the plaintiff was a vexatious litigant, the defendant said:
15.As a Self-Represented Litigant, (if successful) I am unable to claim any legal costs incurred, on my own behalf … which to a layman seems very unfair
16As I explained at the initial Hearing on 30^th August 2023 this litigation should never have occurred! The Plaintiff and myself had been strong personal friends for over 50 years. That friendship has now been destroyed by this 'vexatious' legal action. This dispute should have been resolved by our mutual Accountants … not by aggressive and expensive lawyers.
17.For all of the above mentioned reasons, I believe the Plaintiff has been a 'Vexatious Litigant' for purely personal reasons … and as a result I submit to the Court that the costs now being claimed in the Bill of Costs are 'Unreasonable' and grossly inflated!
On 24 October 2023 the deputy registrar taxed and allowed the plaintiff's costs (inclusive of disbursements) in the following amounts:
1.Summary judgment bill $10,193.63.
2.Substantive action bill $208,855.59.
As may be noted from my descriptions of the bills of costs at [21], [22] and [27] above, the summary judgment bill was taxed and allowed at an amount higher than claimed. The reason for that is that the deputy registrar disallowed any claim for the summary judgment application in the substantive bill (which was claimed in item 3 of that bill), but he added to the totality of the claim for the summary judgment application to the summary judgment bill resulting in an increased claim. On the face of the bill, the deputy registrar:
1.Applied a maximum limit of $12,540 for the summary judgment application, being the maximum recoverable amount prescribed under the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018 (2018 Determination) in item 10(a).
2.Taxed off $4,040 from the scale maxima, thereby allowing the total costs of the summary judgment application at $8,500.[12]
[12] The balance of the sum of $1,693.63 allowed on the summary judgment application was for the costs of drawing the bill, attending the taxation (1 hour of senior practitioner time for each) as well as disbursements being the court filing fees for the application and the bill and the taxing fee of 2.5% of the value of the taxed costs.

What may be discerned from this approach is that the deputy registrar did not tax the costs of the summary judgment application on an indemnity basis, as the total amount which had been claimed by the plaintiff for the summary judgment application was $22,886.60 being $17,440.50 (or two-thirds of those costs on the substantive bill) and $5,446.10 (being one-third under the summary judgment bill). In these circumstances, the only conclusion that can be drawn from the deputy registrar's approach is that he took the view that the maximum limit for the summary judgment application was the scale limit, presumably because the costs order with respect to the summary judgment application predated the trial judge's final costs order. Consequently, the plaintiff was restricted to the scale maxima that applied at the date of the summary judgment order. Putting to one side whether that approach was in error or not, it was an approach that favoured the defendant.
With respect to the substantive bill, all amounts claimed for professional costs in the bill were allowed in the amounts claimed except the item claiming summary judgment costs, which was taxed off in full (being an amount of $17,440.50), and an amount of $1,589 was taxed off item 3A. Item 3A was inserted into an amended bill and claimed for the application heard in August 2023 to adjourn the taxation date. Accordingly, the amount claimed for item 3A was reduced from $6,589 to $5,000.
One explanation which I consider to be probable (rather than possible) for the reduction on item 3A is that the application was made after the final orders made by the trial judge. Namely, it was a subset of the plaintiff's costs which did not form part of the action, but related to a post judgment application for an adjournment, hence, the normal costs considerations applied. I also note that the amount which was claimed for that item, at least for counsel who appeared, was claimed at the scale rate set out in the 2020 Determination rather than a higher hourly rate.
Accordingly, on the substantive bill, the professional costs were allowed at $174,514.40. The balance of the amount of $208,855.59 which was certified, was comprised of costs for drawing and taxing the bill, copying costs (which were claimed and allowed at $0.40 per page) and disbursements. No amount was taxed off the disbursements or copying costs claimed. The costs allowed for drawing the bill was 9 hours at the counsel rate prescribed in the 2020 Determination (and no amount was taxed off). The taxing costs were allowed at 17 ½ hours at counsel rate (including preparation) and 1 ½ hours at the senior practitioner rate of $506 for communications with the defendant. Accordingly, the drawing and taxing costs were sought and allowed at the maximum rates of the 2020 Determination rather than any higher amount which may have been permitted to be charged under a costs agreement.
The allocatur/certificate of taxation for each bill was signed at the conclusion of the taxation and sent by email to the defendant on 24 October 2023. The bills as signed by Deputy Registrar Harman had a number of handwritten annotations recording amounts which had been taxed off the bills. As an aside, no order was sought by the defendant seeking to stay the operation and enforcement of the certificates of taxation. At the hearing before me, I also advised the defendant that the operation of the certificates of costs as judgments of this court were not stayed by his application to review the costs assessments.[13]
[13] ts 483 - ts 484.

Communications from defendant after conclusion of taxation

On 26 October 2023 the defendant wrote to the court seeking clarification of handwritten annotations on the bills of costs which the deputy registrar had signed at the conclusion of the taxation and the court had emailed to him. Deputy Registrar Harman responded to that request by letter dated 30 October 2023. That letter said as follows:
I refer to your communication of 26 October 2023.
The components of the larger bill that together amount to $24,202.72 and are recorded as 'taxed off' at its conclusion are in relation to each of the claims made at item 3; by way of reduction of the claim at item 3A; and the claim made at item 9 of the disbursements (although it is not marked as taxed off on the bill).
Turning to the other bill, the claim expressed at item 1 had been amended on the first day of taxation[14] to read $12,540 as recorded in handwriting on the bill. From that claim $4,040 was taxed off and the plaintiff recovered $473 for the taxation.
There is an error in the addition of the charge for the professional services claimed and the disbursements at the foot of the page. It should read $13,985. Nonetheless, the correct figure less the amount taxed off produces $9,945 as shown on the bill to which a taxing fee of $248.63 was added.
On 24 October 2023 the hearing time for the larger bill was 1 hour and for the smaller, no more than 10 minutes.
[14] When defendant was in attendance personally at court on the first day of the taxation.
On 30 October 2023 the defendant wrote to the court:[15]
I write further to the attached (below) correspondence from the Court in accordance with 'Division 3 - Appeals from Registrars' (of District Court Rules 2005) ... is there a standard Court form that should be used when filing and serving an appeal?
[15] Am not able to find that communication on ICMS.
By letter dated 1 November 2023, Deputy Registrar Harman responded as follows:
I refer to your communication of 31 October 2023. There is no form of appeal that relates to the determination made at taxation. According to Order 66 rule 54(5) of the Rules of the Supreme Court 1971 (WA) that also apply in the District Court of Western Australia:
If a party fails to appear on the taxation the taxing officer may, upon an application in that behalf made in writing within 7 days, set aside or vary his certificate of taxation on such terms as he thinks just.
…
The defendant then wrote a further letter on 1 November 2023 which provided as follows:
I write further to the Court's correspondence received today in the attached email (below) and the information contained therein ... concerning the above matter.
In accordance with the 'Rules of the Supreme Court 1971 - Order 66 rule 54 (5)' ... I wish to formally make an 'Application' that DR Harman set aside and vary his decision handed down on the 24th October 2023, concerning the two Bill of Costs.
Because I was unable to attend the Hearing on 24th October 2023 (for reasons already explained in correspondence to the Court) ... and not allowed to attend the Hearing via Video link ... I was unable to fully state and elaborate on my 'pleadings'. These were included in my two 'Outline of Submissions', lodged with the Court on 25th August 2023 and 19^th October 2023. IE ... that the Legal Costs claimed by the Plaintiff in the two Bill of Costs were unreasonable and grossly overstated.
Additionally, in accordance with 'Order 66 - General rules as to costs - 1 (2) & 3' ... I wish to elaborate on the Plaintiff's unreasonably excessive actions resulting in unnecessary costs being incurred (as mentioned briefly in the Outline of Submissions dated 19th October 2023)
I therefore respectfully request the Court grant me leave to appear before the Court in early December when I return to Perth ... or by a further Outline of Submissions. This would enable me to fully state my case against these two Bill of Costs
I did make the trip to Perth to attend the initial Hearing on this matter (on 30th August 2023), however insufficient time was allowed on that day to cover / discuss the bulk of items in the Bill of Costs.
On 9 November 2023 Deputy Registrar Harman wrote to the defendant as follows:
I acknowledge receipt of your communication of 1 November 2023. I was away from my office between 2 November and 9 November 2023 and it only came to my attention upon my return.
Order 66 rule 54(5) provides a limited time for a party to set aside or vary a certificate. Your application was received outside that time.
Whilst any period of time specified in the rules may be extended by the Court, there is no such provision that relates to the process of taxation.
In any event, in the process of taxing the plaintiff's bills the onus of establishing that services had not necessarily been provided or that fees claimed for services provided were unreasonable was on you. There is nothing in your recent communications or indeed any of your prior communications that suggest you would put such a contention against any particular part of either of the bills.
The allocatur for each bill has been signed and there is no reason to disturb those results.

The defendant's application to review the costs assessment

I turn now to the present application, the origin of which can be traced to 13 November 2023 when the defendant wrote to the principal registrar of the court advising that he wished to make a 'formal complaint' about the manner in which the taxation had been conducted. In that email the defendant set out various background facts to his complaint. The principal registrar responded to that letter on 15 December 2023.
By email dated 22 December 2023 the defendant wrote to the principal registrar advising that he would like his previous correspondence to be dealt with as an application to review the taxation of costs.
I convened a directions hearing on 1 February 2024, at which the defendant appeared in person. Prior to the hearing on 1 February 2024 the court sent a letter to the parties advising that the purpose of the directions hearing was to clarify the nature and extent of the defendant's application and to make all necessary directions to program his objections/application to a final hearing as soon as possible. On 1 February 2024 I made orders that by 29 February 2024 the defendant file and serve:
(a)any application with respect to the certificates of taxation that were entered by Deputy Registrar Harman on 24 October 2023; and
(b)any affidavit in support of such application.

Defendant's application

On 8 March 2024 the defendant filed a chamber summons which sought the following orders:
1.In accordance with O 66 r 53, O 66 r 54 and O 66 r 55 the judge make an order to review the taxation of a bill of costs.
2.In accordance with r 55(2) … the taxing officer has made an error in principle by not allowing him to attend the hearing on 24 October 2023 by video link … to elaborate and expand on … outlines of submissions dated and filed 25 August 2023 and 19 October 2023 [which placed him] at a significant disadvantage as he had not received a fair hearing on the matter of costs.
3.In accordance with r 55 (1) the judge make [sic] an order to review items 1, 3, 7, 8, 11 and 16 of the certified bill of costs totalling $208,865 and additionally items 1, 2 and 3 of the bill of costs dated 24 October 2023 totalling $10,193.
As I refer to in greater detail below, I also treated the defendant's chamber summons as an application by him to set aside the certificates of taxation.
The application was supported by an affidavit which the defendant swore on 29 February 2024 at Fremantle.
In his affidavit the defendant raises the following issues:
1.He resides in Greece.[16]
[16] Affidavit of Gavin John Woodward sworn 29 February 2024, par 3.
2.He was not consulted as to his availability to attend a taxation on 30 August 2023 or 25 October 2023.[17]
[17] Affidavit of Gavin John Woodward sworn 29 February 2024, par 6.
3.By chamber summons an affidavit filed on 24 July 2023 he requested the hearings to be relisted in December 2023.[18]
[18] Affidavit of Gavin John Woodward sworn 29 February 2024, par 7.
4.At the hearing of that application which was before Deputy Registrar Harman, he participated via audio link from Greece.[19]
[19] Affidavit of Gavin John Woodward sworn 29 February 2024, par 8.
5.Deputy Registrar Harman refused both requests, ie, to adjourn hearing dates and that he be allowed to appear at the hearings by video link.[20] Further that the deputy registrar stated that he 'must attend the hearing in person or engage a lawyer to act on my behalf'.[21]
[20] Affidavit of Gavin John Woodward sworn 29 February 2024, par 9.
[21] Affidavit of Gavin John Woodward sworn 29 February 2024, par 10. No appeal was made of that decision. Further, no application to adjourn was made with respect to the second hearing.
6.He lodged an outline of submissions which is attached to his affidavit.[22]
[22] Affidavit of Gavin John Woodward sworn 29 February 2024, par 12.
7.He travelled to Perth to attend the hearing on 30 August 2023.[23]
[23] Affidavit of Gavin John Woodward sworn 29 February 2024, par 13.
8.At the hearing on 30 August 2023 the deputy registrar asked him to state his case and he then said that he believed that the plaintiff, through his lawyers, had become a vexatious litigant. Further, that he had been 'firm friends' with the plaintiff for 55 years but because of purely personal reasons the plaintiff had become a vexatious litigant and therefore incurred unnecessary and unjustifiable legal costs and he further advised the deputy registrar that our problems over monies could and should have been resolved by working with our mutual accountants (Utopia CA).[24]
[24] Affidavit of Gavin John Woodward sworn 29 February 2024, par 14.
9.The hearing on 30 August 2023 which lasted 2.5 hours only covered the first five items of the total 31 items in the first bill of costs (namely amounts claiming $33,346 out of the total cost claimed and $218,292, that is just 15%) and of these amounts the deputy registrar ruled on reductions totalling approximately $24,000.[25]
[25] Affidavit of Gavin John Woodward sworn 29 February 2024, par 15. See [36] - [41] above as to the reason for the reductions on the bills.
10.On 29 September 2023 he emailed the deputy registrar requesting that he be allowed to attend the hearing by video link,[26] and, on 13 October 2023 the court wrote to advise that the request to attend by video link was refused.[27]
[26] Affidavit of Gavin John Woodward sworn 29 February 2024, par 18.
[27] Affidavit of Gavin John Woodward sworn 29 February 2024, par 20.
11.The decision not to be allowed to attend the hearing by video link placed him at a considerable disadvantage in that he was not able to fully plead his case and elaborate on the points raised in his written outline of submissions dated 25 August 2023.[28]
[28] Affidavit of Gavin John Woodward sworn 29 February 2024, par 21.
12.He lodged a second outline of submissions on 19 October 2023 (which he attached that to the affidavit).[29]
[29] Affidavit of Gavin John Woodward sworn 29 February 2024, par 22.
13.On 24 October 2023 he received an email from the court that the two signed bills of costs had been made (received at 11.15 am Perth time and that there had been no further reductions of changes to the remaining 26 items. The defendant deposed:[30]
[30] Affidavit of Gavin John Woodward sworn 29 February 2024, par 23.
It was therefore obvious that because I was not able to attend the hearing via Video link, the objections/arguments that I had raised in my two Outlines of Submissions had been summarily dismissed … I believe without due consideration.
I had not been allowed to elaborate and expand on the points raised in my Outline of Submissions … and provide additional information.
14.The hearing on 24 October 2023 lasted one hour despite taking 2.5 hours to address and decide on the first five items of the first bill on 30 August 2023. The defendant deposed that:[31]
[The deputy registrar took] just 1 hour to agree in total to the remaining 26 items in the BOC … totalling $185,576. No doubt this was done with the persistent encouragement of the Plaintiff's lawyers.
I believe it was grossly unfair that I was not allowed to debate these 26 cost items and elaborate on my objections … because I was not allowed to attend the hearing via Video link. I question whether this is 'fair and reasonable'.
15.On 26 October 2023 he emailed the court requesting clarification of the final signed bills and that handwritten figures on the bills did not add up.[32]
16.On 1 November 2023 he emailed the deputy registrar requesting he set aside or vary his taxation decision.[33]
[31] Affidavit of Gavin John Woodward sworn 29 February 2024, par 24.
[32] Affidavit of Gavin John Woodward sworn 29 February 2024, par 25.
[33] Affidavit of Gavin John Woodward sworn 29 February 2024, par 29.
A few matters may be observed about the background. When filing his (second) outline of submissions in advance of the resumed taxation hearing listed for 24 October 2023, the defendant knew that the taxation hearing was going ahead on the date allocated and seemingly he relied upon that outline in conjunction with what he had said on the earlier occasion.
The defendant did not appeal the deputy registrar's ruling that the defendant not be permitted to participate in the taxation hearing by video link or by telephone.
Further he did not apply to adjourn the taxation hearing listed for 24 October 2023.

What issues arise on the defendant's application?

The issues to be resolved on the defendant's application are:
1.As the certificate of taxation was signed without objection by the defendant, given his absence at the taxation hearing, can the defendant engage in a review process as contemplated by O 66 r 54 - O 66 r 56 of the RSC?
2.If the defendant cannot engage in a review process as contemplated by the RSC, should the certificate of taxation be set aside?
To answer this issue requires a consideration of whether the deputy registrar made an error of principle in undertaking the taxation of the plaintiff's costs.
Accordingly, the following issues arise:
(a)Did the taxing officer tax the plaintiff's costs by applying the correct basis of assessment at the taxation?
To answer this issue, it is necessary to determine whether the final costs order was an indemnity costs order whereby the plaintiff was entitled to recover costs beyond the limits of the scale determination.
(b)If the final costs order permitted the plaintiff to recover his costs on an indemnity basis, did the taxing officer make any error of principle in taxing the plaintiff's costs?
3.If the taxing officer made an error of principle, should the certificate of taxation be set aside?
4.If there was no error of principle, should the entire taxation hearing be conducted again before a different taxing officer because the defendant was not accorded procedural fairness in the taxation of costs?

Procedure for taxation (or cost quantification) under the Rules of the Supreme Court 1971 (WA) and general principles

Turning to the issue of the defendant's ability to engage in a review of the taxation, given the certificate of taxation was signed without objection, I will first turn to the general principles which apply to taxations of costs and the review process available under the court rules to parties dissatisfied with a taxing officer's decision on a taxation.
The RSC prescribe the procedure to be followed for the conduct of costs assessments. The process of cost quantification is traditionally known as 'taxation'. This is the descriptor used in the RSC, which applies to costs assessments in the District Court of Western Australia.
When an order is made in any proceeding directing the taxation of any costs, the taxing officer[34] must appoint a time for taxation on the application of the party entitled to costs in the matter.[35] The RSC requires a party whose costs are to be taxed to give to the other party two days' notice of the time appointed for the taxation of costs, together with a copy of the bill of costs.[36] The appointment for taxation may proceed ex parte on proof that 'due notice' was given to the opposing party, unless sufficient cause appears for a postponement.[37]
[34] In the case of a taxation of costs in the District Court, being a registrar of the District Court - see [67] below.
[35] Order 66 r 32(1) of the RSC.
[36] Order 66 r 34, r 35(1) of the RSC.
[37] Order 66 r 38 of the RSC.

Upon completion of the taxation of a bill of costs, a taxing officer certifies the amount payable after taking account of any disallowances from the bill. Disallowances from the bill are commonly referred to as amounts which have been 'taxed off'. In Western Australia, the common form of a bill of costs which is filed contains a certificate on the bill itself which is signed by the taxing officer at the conclusion of the taxation. The costs allowed by a taxing officer, as set out in a certificate of taxation, are deemed to be a judgment of the court and recoverable accordingly.[38]
[38] Order 66 r 57 of the RSC.
The RSC also provide that if a party fails to appear at the taxation, the taxing officer may, upon a written application being made within seven days, set aside or vary the certificate of taxation on such terms as the taxing officer thinks fit.[39]
[39] Order 66 r 54(5) of the RSC.
The RSC provides that a party who contends that the taxing officer has made an error of principle in allowing or disallowing any item, or part of an item, on a bill of costs to make a written objection at any time before the certificate of taxation is signed.[40] The written objection lists, briefly and concisely, the items objected to, and the grounds and reasons for the objections. By the objections, the party applies to the taxing officer to review the taxation in respect of those items.[41] This objection process takes place in a context where a taxing officer's decision on all questions of fact is final.[42]
[40] Order 66 r 53(1) of the RSC.
[41] Order 66 r 53 of the RSC.
[42] Order 66 r 43 of the RSC.

What a taxing officer must do on a review of taxation

Upon an application to review the taxation, the taxing officer must reconsider and review the taxation in relation to the objections, and may receive further evidence in respect of the objections.[43] If required by a party to do so, the taxing officer must state in the certificate of taxation, or by reference to the objection, the grounds and reasons for the decision on the objection, and any special facts or circumstances relating to it.[44]
[43] Order 66 r 54(1) of the RSC.
[44] Order 66 r 54(2) of the RSC.
Importantly, the taxing officer cannot, after a certificate is signed, review the taxation except to correct a clerical or manifest error.[45] Namely, a taxing officer is functus officio[46] once he or she has signed the certificate of taxation. As I have already noted, the deputy registrar signed the certificate of taxation at the conclusion of the taxation on 24 October 2023.
[45] Order 66 r 54(4) of the RSC.
[46] The well-known Latin phrase is still used in modern contexts. It means that the person has fulfilled their function and no longer holds any authority or role to make any further decision and they cannot alter the decision that has been made.

Review by a judge of objections determined by a taxing officer

In the District Court of Western Australia, taxations are conducted in accordance with O 66 of the RSC.[47] Registrars of the District Court of Western Australia act as 'taxing officers' for the purposes of taxations of costs.[48] A taxation by a registrar may be reviewed by a District Court judge on the application of either party.[49]
[47] By r 6 of the District Court Rules 2005 (WA) (DCR), the RSC apply in respect of any case in the District Court except to the extent of any conflict or inconsistency between the DCR and the RSC in which case the DCR prevail.
[48] District Court of Western Australia Act 1969 (WA), s 67 (DCA).
[49] DCA s 67(1). The DCR do not provide for the review process, so the procedure set out in O 66 r 54 of the RSC applies.
By O 66 r 55 of the RSC, where a party is dissatisfied with the taxing officer's review of that party's objections, that party may, within 14 days from the date of the certificate, apply to a judge in chambers for an order to review the item on the bill of costs that was objected to. To enliven the jurisdiction of a judge under r 55, the party must have followed the objection procedure under r 53 and made a written objection to the allowance or disallowance of an item in the bill before the taxing officer signed the certificate of taxation.
Taxing officers are conferred with a wide discretion in allowing or disallowing costs in the taxation process. The window of opportunity for review which is allowed under O 66 r 55 is extremely limited. The rationale for the limited review is that taxing officers have expertise through their direct experience in conducting taxations through which they acquire a level of knowledge and detail beyond that of judges of the court.[50]
[50] Frigger v Mervyn Jonathan Kitay as liquidator of Computer Accounting & Tax Pty Ltd [No 2] [2024] WASC 50 [47] [Lundberg J]; City of Belmont v Saldanha [No 2] [40] (Vaughan J); WJ Green & Co (1984) Pty Ltd v Tace Pty Ltd [No 4] [2010] WASC 363 [23] (Kenneth Martin J); Zaghloul v Woodside Energy Ltd [2019] WASC 187 [36] - [46] (Kenneth Martin J).
The defendant did not file any objection or raise any objection with the taxing officer before the certificate of taxation was signed. Accordingly, the ability to engage in the review procedure under O 66 r 55 was not enlivened. The defendant was not entitled to seek a review of the taxation by a judge because no specific objection had been taken to any item of the bill in accordance with the procedure set out in O 66 r 53 - O 66 r 55 of the RSC.
I now turn to the next issue, which is whether the certificates of taxation should be set aside for any other reason.

Power of a judge to set aside a certificate of taxation in the inherent or implied jurisdiction of the court

The court retains an inherent, or implied, power to set aside a certificate of taxation in proper circumstances. Various cases have recognised the power of a judge in the review jurisdiction to set aside costs certificates within the inherent or implied jurisdiction of the court where, for example, there has been a lack of procedural fairness. For example, where a certificate of taxation is signed so quickly after the taxation as to deprive a party the objection procedure, it may be set aside: Rankilor v Circuit Travel Pty Ltd.[51]
[51] Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155 [68].
In determining whether to set aside a certificate of taxation, a relevant consideration is the applicant's prospects of a successful review of the taxation.
In Mossensons (a firm) v Coastline Associates, Ipp J said:[52]
The court will not exercise its inherent jurisdiction to set aside a taxation certificate unless it is satisfied that such an order would not be futile.
[52] Mossensons (a firm) v Coastline Associates (Unreported, WASCA, Library No 970661B, 2 December 1997), 9.
The decision of the Full Court in Mossensons (a firm) v Coastline Associates was recently considered by Levy DCJ in Dusol Pty Ltd t/as BW Duckham & Co (a firm) v Della-Vedova & Sons (a firm).[53] I will not repeat the analysis set out by his Honour other than to note his observations that:
(a)the test of whether it is proper to set aside a taxation certificate requires the court to have regard to the applicant's prospects of success on a review under O 66 r 55 (and this is tied to a consideration that the court would not exercise its jurisdiction unless it is satisfied that such an order would not be futile);
(b)the prospects of success on any review of taxation is a factor to be taken into account in considering whether to set aside the certificates; and
(c)it is necessary to consider the various items and issues raised by the objector in respect of the bill of costs to determine the objector's prospects of success.
[53] Dusol Pty Ltd t/as BW Duckham & Co (a firm) v Della-Vedova & Sons (a firm) [2023] WADC 41 [42] ‑ [48].
The defendant raises two broad complaints in his application. The first is that the deputy registrar should have adjourned the taxation to a date when he had returned from Greece to Perth, alternatively, the deputy registrar should have allowed the defendant to participate in the taxation by vide link. This ground of the defendant's complaint is one relating to procedural fairness or denial of natural justice. Namely, he was not given an opportunity to be heard on the application. I deal with this aspect of the defendant's complaint in the final part of my reasons.
The second complaint is that the deputy registrar made errors of principle in his assessment of the plaintiff's costs in the taxation.
In my opinion, it is essential to assess the defendant's prospects of success on a review of the taxation before determining whether the certificate of taxation should be set aside due to any alleged lack of procedural fairness.
The question in substance is whether the deputy registrar, whenacting as taxing officer, made an error of principle in his approach to the assessment of the plaintiff's costs. If there is no error of principle identified or apparent from the outcome of the taxation of the bills of costs, there would seem to be no utility in setting aside the taxation certificate. As may be noted from the general principles I have outlined, appellate review of a taxation of costs is more limited than other appeals or review proceedings.
Accordingly, in the next paragraphs I will consider the substantive merits of the defendant's contention that the deputy registrar made an error of principle in his approach to the taxation of the plaintiff's costs.

What is an error of principle in the context of a taxation of costs?

As I have already noted, the review of a taxing officer's decision by a judge is restricted in scope by the terms of O 66 r 55 of the RSC. The review process contemplated by the rules is not a rehearing, or fresh review of the bill of costs. Rather, the purpose of the review is to ascertain, whether the taxing officer's already reconsidered decision contains an error of principle.[54]
[54] See generally WJ Green & Co (1984) Pty Ltd v Tace Pty Ltd [No 4] [23] (Kenneth Martin J).
In City of Belmont v Saldanha [No 2],[55] Vaughan J made the following observations about a review of a taxation of costs and what constitutes an error of principle:
[55] City of Belmont v Saldanha [No 2] [2018] WASC 278.
37The applicant for review … bears the onus of satisfying the court that the decision reached by the taxing officer is wrong. For a decision to be 'wrong' it must be shown that there is an error in principle.
…
39Errors in principle may be made both in determining whether an item should be allowed and in determining the amount that should be allowed for an item. However, it is unusual for an error in principle to be made as to quantum. An 'error in principle' on such a basis can only be established if it is shown that no taxing officer, acting reasonably, could ever have taxed the item at that amount. The amount allowed must be so extraordinary as to be demonstrable of an error in principle. Thus, a decision of a taxing officer as to quantum is generally final except in an exceptional case.
…
41There is an error in principle where a taxing officer acts on a wrong principle. The court will review the decision for the purpose of determining the principle that should be applied.
42An error in principle may be inferred from a decision of the taxing officer if it appears that the taxing officer's discretion has not been exercised at all or has been exercised in a manner that is manifestly wrong. It may be that the exact nature of the error is not discoverable; if so, it is sufficient that the result is so unreasonable or plainly unjust that the court may infer that there has been a failure to properly exercise the taxing officer's discretion.
43There may also be an error in principle in giving weight to extraneous or irrelevant matters or in failing to give weight or sufficient weight to relevant considerations. …
(footnotes omitted)
Taxing officers exercise a broad discretion, and, as I have already noted, the opportunity for review of their decisions on taxations of costs under O 66, r 55 of the RSC is very limited. The review process is undertaken in a context where it is accepted that taxing officers hold expertise in assessing costs in litigation at a level that judges do not and that is a reason why the review opportunity is extremely limited.[56]
[56] WJ Green & Co (1984) Pty Ltd v Tace Pty Ltd [No 4] [23] (Kenneth Martin J); Frigger v Mervyn Johnathan Kitay as liquidator of Computer Accounting & Tax Pty Ltd [No 2] [46] - [47] (Lundberg J).
The taxation in this case was a taxation between parties after trial as a consequence of final costs orders made by the trial judge. Taxations (or assessments) of costs can take place in two broad contexts:
(a)between a law practice (or legal practitioner) and a client; and
(b)between parties to litigation.
To place any error of principle in context requires an assessment of:
(a)the proper interpretation of the trial judge's costs order; and
(b)what costs the plaintiff was able to recover on taxation in accordance with the trial judge's costs orders.
Terminology in the law of costs of the phrases 'solicitor and client' and 'solicitor and own client' can lead to confusion, such confusion being derived from the use of those terms in case law which is then often compared to the wording of court rules in other jurisdictions. The terms 'solicitor and client', 'solicitor and own client', 'law practice and client' and 'indemnity costs' are not defined in statute or court rules in Western Australia.
Accordingly, in the next paragraphs I will attempt to define the types of costs assessments by reference to some of the terminology used in the case law and set out my opinion of what each approach requires.

Costs charged by legal practitioners to clients

To place the different types of costs orders and taxation categories in context, I will set out in the next paragraphs some general principles of how lawyers charge for legal services. The provision of legal services to consumers in Western Australia is, understandably, tightly regulated. Legal services may only be provided by Australian legal practitioners (ie practitioners who have been admitted to a roll of legal practitioners in a State or Territory of Australia) and who hold an annual practising certificate issued by a regulatory authority of a State or Territory in Australia in which they solely or principally practice. In Western Australia, annual practising certificates are issued to legal practitioners by the Legal Practice Board of Western Australia.
Legal practitioners can either practice on their own account, for example, as a sole practitioner (or a barrister practising on his or her own account), a partner of a law firm or practice director of an incorporated legal practice, or as an employee of a 'law practice'. A sole practitioner, a barrister, a law firm comprising a partnership or an incorporated legal practice are all defined under the Legal Profession Uniform Law Application Act 2022 (WA) (Uniform Law Application Act) as a 'law practice'.[57]
[57] See the definition of 'Law Practice' in the Legal Profession Uniform Law Application Act 2014 (Vic) Sch 1 commonly referred to as Uniform Law (Uniform Law), s 6(1).
Ordinarily, in a relationship for the provision of legal services in litigation, a 'law practice' enters into a retainer agreement with a client. The retainer agreement ordinarily defines the scope of legal services to be performed under the retainer. The retainer agreement may also include terms and conditions which regulate how the law practice will charge the client for the provision of legal services and such agreement is defined under the regulatory legislation as a 'costs agreement'.[58]
[58] See s 180 of the Uniform Law.
If a retainer is not reduced to writing, it may be implied or inferred from the facts and circumstances of the relationship between the client and the law practice. However, any agreement between a law practice and a client as to how legal services will be charged by the law practice to the client must be reduced to writing or be evidenced in writing.[59]
[59] Reference to be made to uniform rules.
If a law practice does not enter into a written agreement as to costs with a client, the remuneration of the law practice for the legal services provided to the client by the law practice must be calculated by reference to an applicable costs determination made by the Legal Costs Committee, a statutory body established under Uniform Law Application Act.[60]
[60] The Legal Costs Committee also existed under predecessors of the Uniform Law Application Act including the Legal Profession Act 2008 (WA) and the Legal Practice Act 2003 (WA).
Costs agreements between law practices and clients commonly contain provisions to the effect that the client will pay the law practice fees calculated by hourly rates for lawyers within the law practice who perform the legal services for the client. The hourly rates for legal services prescribed in costs agreements between a law practice and a client are commonly, but not inevitably, higher than the hourly rates prescribed by the Legal Costs Committee under Scale determinations.
In this case, the plaintiff agreed in a costs agreement to pay his solicitors' fees calculated by hourly rates which exceeded the rates under the 2018 Determination (and 2020 Determination).[61]
[61] See [22] - [23] above.

Costs in litigation generally awarded to the successful party

At the conclusion of litigation, the court holds a discretion as to the award of legal costs. That discretion must be exercised judicially. The usual rule is that costs follow the event. Namely, the successful party will recover from the unsuccessful party, the costs incurred by the successful party, to be taxed.[62] The amount of the costs payable by the unsuccessful party is determined at a taxation of costs by reference to any applicable scale determination made by the Legal Costs Committee which applies to the litigation.
[62] Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [49].
The costs that the plaintiff incurred to his legal advisors in pursuing his claim against the defendant were calculated by reference to costs agreements he made with his lawyers under the Legal Profession Act. Those costs agreements were attached to the affidavit of Mr Fletcher filed on 15 August 2023 and, necessarily, considered by the taxing officer.[63] As I have already noted, those costs agreements permitted hourly rates to be charged which exceeded the scale determination.
[63] See [22] - [23], [27] above.
The costs which the plaintiff paid to his legal advisors, both the law practice acting for him, Fletcher Law, and independent counsel (whether counsel fees were charged as a disbursement or directly) would historically be termed 'solicitor and own client costs' or sometimes, confusingly, 'solicitor-client costs', being costs incurred between a solicitor and client. In a contemporary context that exists under the Uniform Law such costs may also be referred to as costs between a law practice and a client. Sometimes such costs may even be referred to as 'indemnity costs'.
Whatever the description that is used, the plaintiff's costs are the costs the legal practitioners engaged by the plaintiff charged him for the delivery of legal services and the costs that he paid (or became liable to pay) for the delivery of the legal services. Those costs have been incurred in litigation. The costs relate to legal work performed by certificated legal practitioners in conformity with all regulatory rules as to the delivery of legal services.
Accordingly, a starting proposition for considering costs in this context is that the term 'solicitor and own client costs' represents the entire sum of money which the client has paid to the law practice (or law practices) who have provided legal services to the client in the litigation to which the costs order relates.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LP
Associate to His Honour Judge Curwood
17 DECEMBER 2024