| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MELLOS -v- SHEPPAR [2005] WADC 14 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 15 DECEMBER 2004 DELIVERED : 7 FEBRUARY 2005 FILE NO/S : CIV 610 of 2003 BETWEEN : PAUL MELLOS Plaintiff
AND
GAIL PATRICIA SHEPPARD
Defendant
Catchwords: Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Taxation of costs after review before a judge - Provision of reasons O 66 r 54(2) considered
Legislation: Nil
Result: Claims for counsel fee and getting up case taxed
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Representation:
Counsel:
Plaintiff : Mr S Forbes
Defendant : Mr P Momber
Solicitors:
Plaintiff : S C Nigram & Co
Defendant : Peter Momber
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 DEPUTY REGISTRAR HARMAN: The result of review of taxation before a judge is that the determinations made under the claim for counsels fee, "getting the case up for trial" and the parts of the claim for the costs of taxation represented by the claims for counsel fee and getting up case for trial have been remitted for taxation.
2 Under the order for his costs the plaintiff is entitled to recover from the defendant the reasonable cost of services necessarily provided to him for the purposes of the action. The onus of persuasion to the extent of those claims is on the plaintiff. 3 As the defendant accepted that the plaintiff was entitled to recover for services rendered under the item "counsel fee", the only determination to be made was the reasonable cost of the provision of that part of that service which as a matter of convenience I will describe as preparation for trial. Prior to making that determination I was informed by the plaintiff of the extent to which such preparation had been undertaken and heard the submissions of the parties on the considerations that would bear upon the assessment of the amount recoverable under the order. Having considered that information and the submissions I determined that the plaintiff was entitled to recover $1000.00 as being the reasonable cost of the provision of that part of the service. I reached that decision in the knowledge that plaintiff considered that $1960.75 was reasonable and that counsel had claimed the same figure for services that he had rendered. 4 In considering what was reasonable I evaluated the task of preparing for trial the case, that had been 'got up' for trial. In reflecting on that task I considered the matters to be determined at trial, what I was told of about the evidence and the standard by which recovery is assessed; that is by a competent practitioner performing the task in an efficient manner. In making that observation it is not with the intention of doing any more than articulating the standard for the benefit of the parties. 5 Although at taxation I indicated that I would provide reasons for whatever determination was made, having given the matter of the provision of reasons further consideration I have determined that it would be the proper course to follow to await receipt of the terms of any objection. 6 I accept as general proposition that a decision unsupported by reasons may be characterised as not having been reached in an objective manner. In any particular case some development of that proposition may
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account for a decision being set aside. It is a matter of considering whether or to what extent it may be displaced by O 66 r 54(2). 7 Order 66 provides a significant datum for the purpose of analysis as it is properly characterised as a code for the recovery of costs inter partes. Apart from r 54(2) it makes no reference to the provision of reasons for the decision of a taxing officer. Rule 54(2) appears in that part of the order that relates to review of taxation. The taxation that was ordered has not reached that point. It seems to me that those considerations alone tell against any entitlement to reasons. They also speak to the prospect that prior to review it was not intended that the failure to provide reasons would justify any adverse finding. The rule provides: - "If so required by a party, the Taxing Officer shall state in his certificate of taxation or by reference to the objection, the ground and reason of his decision on the objection, and any special facts or circumstances relation to his decision." 8 The context portrayed by the rule suggests that it would apply at the conclusion of the process of taxation before the taxing officer. It is only at that point that the certificate would be signed. However, if by some process of interpretation of the rule were taken to apply outside that context, according to its terms it would apply in two circumstances: one where a party does not object to the execution of the certificate but seeks some reasons and one where it has objected. Presently the parties are not aware of my determination so I have no idea whether they may object. 9 Against those considerations the indication that I would provide reasons could not have amounted to any more than the exercise of discretion in the absence of any entitlement. In my opinion the matter of the provision of reasons for decision was not the subject of contest: it was simply raised and responded to in the manner that I have indicated in the interests not only of being helpful but also of reducing costs. I have now come to a more appropriate conclusion. 10 My concern was that the scope of considerations that bear upon quantum determinations is so broad and their impact so interrelated that there is a real risk that failure to mention or give particular emphasis to a particular consideration that may none the less have been taken into account would give rise to the prospect that error would be found where none existed. Perhaps this case provides an illustration of the sort of difficulty that may arise.
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11 In accordance with r 54 (2) the reasons that I previously provided in relation to the assessment of the quantum for the item "getting the case up for trial" responded to the terms of the plaintiff's notice of objection. A ground for a finding of error that the plaintiff put before the judge and upon which she found for error, namely the prospect of there having been a lack of objectivity in making that determination, had not been addressed by me as it was not part of the notice to which I responded. Predictably the judge found my reasons to be wanting. Significantly she made no finding or comment along the lines that my reasons had provided some insight into the process of assessment that had revealed any want of objectivity.
12 Whilst there is scope for an interesting debate about the points raised by that illustration, the significant consideration for present purposes is that there is a real prospect that the defendant would struggle to understand why the unfortunate manner in which the plaintiff has chosen to approach the process of review has put her at risk as to costs. Because I apprehend that the defendant may be well able to protect her interests does not justify me going further than is necessary simply because I can, where to do so may have the consequence of further jeopardising her position. The easy response to that prospect is that the provision of reasons should not prejudice either party. And I would agree. Be that as it may, it is appropriate to adopt a conservative view and I intend to let matters take what I consider to be their proper course. 13 I might conclude with two points that would remain open for consideration regardless of the impact of the rule. The first is that ultimately the test of recovery as to quantum is simply that the award be for a reasonable amount. If there is any difficulty in comprehending the impact of that test, it is my understanding that the test of reviewable error in the making of such a determination is that it could not have been made by a taxing officer acting reasonably. Neither the test of recovery nor that of reviewable error would respond to a failure to provide reasons. The second is that my present disinclination to provide reasons is not intended to convey a refusal to provide reasons at an appropriate time. 14 The next task is to tax the claim for getting the case up for trial. As I have previously recorded, the plaintiff had contended before me that no allowance had been made for a number of considerations that he alleged would bear upon the process of "getting the case up for trial". In responding to that allegation I isolated one part of the allegation, agreed with the plaintiff that it had been disallowed and gave reasons for so doing. The result of considering afresh the issue of allowance for
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preparation for the pre-trial conference is that the plaintiff is unsuccessful. Otherwise the service the subject of the claim was allowed in all of its parts. 15 As to quantum I received information from the plaintiff as to the extent to which the task of "getting the case up for trial" had been undertaken. Having given the parties the opportunity to make submissions as to the value of the service in the context in which it was undertaken I assessed that the reasonable cost of its provision was $5800.00. The determination reflects my assessment of the extent to which the case called for the provision of relevant services by a competent practitioner undertaking the task in an efficient manner. The expression of that fundamental consideration is not intended to convey any criticism of the manner in which the plaintiff's solicitor undertook the task, simply to articulate the relevant standard. Ultimately for any particular case the result of taxation should be the same result regardless of the identity of the service provider and how that person chose to address the task. Although the determination is not presently the subject of review, I have reflected upon the test of reviewable error in relation to quantum: that is that no taxing officer acting reasonably could have made the determination. I am satisfied that my assessment would survive the application of that test. In my opinion the result of the taxation simply demonstrates that the plaintiff and I have come to different conclusions as to the value of the service provided to the plaintiff. 16 As to the item "taxation of costs", despite the terms of the order I understand that the item was remitted for no reason other than that the defendant had offered a global amount to satisfy the plaintiff's entitlement at some time prior to the taxation and that to this point the plaintiff has not achieved a better result. Until I am in a position to assess the consequence of my determinations against that offer I can proceed no further in taxing that claim. 17 At the conclusion of taxing a bill it is the usual practice to either sign the allocatur or allow a limited time for objection. In the circumstances I nominate the date 10 clear days from the date of the letter by which these reasons are forwarded to the parties as the last date for filing any notice of objection in relation to the claims for "getting up case for trial" and counsel fees. In the event that neither party objects on request I will sign an allocatur to that extent.
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