Mellos v SHEPPAR - [2005] WADC 14

MELLOS -v- SHEPPAR [2005] WADC 14

Last Update: 11/03/2005

MELLOS -v- SHEPPAR [2005] WADC 14
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WADC 14
Case No:	CIV:610/2003	Heard:	15 DECEMBER 2004
Coram:	DEPUTY REGISTRAR HARMAN	Delivered:	07/02/2005
Location:	PERTH	Supplementary Decision:
No of Pages:	6	Judgment Part:	1 of 1
Result:	Claims for counsel fee and getting up case taxed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	PAUL MELLOS GAIL PATRICIA SHEPPARD
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
Case References:	Nil Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

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

(Page 2)

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

(Page 3)

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] WADC 14
Decision Date: 7 FEBRUARY 2005

CaseChat Overview and Summary

The matter between Mellos and SHEPPAR involved a dispute over the taxation of costs after a review before a judge. The case was heard in the Supreme Court of Western Australia. The primary focus of the case was the application of the relevant rules concerning the provision of reasons for the taxation of costs. Specifically, the court had to consider the application of Order 66 Rule 54(2) of the Rules of the Supreme Court of Western Australia.

The legal issues that the court was required to decide centred around the procedural fairness in the taxation of costs, particularly the necessity and sufficiency of reasons provided for the taxation of counsel fees and the costs associated with getting up the case. The applicants argued that the reasons provided for the taxation of these costs were insufficient and did not meet the procedural fairness requirements. The court was tasked with determining whether the provisions of Order 66 Rule 54(2) were appropriately applied in the taxation of these costs.

In its reasoning, the court considered the principle of procedural fairness and the requirement for adequate reasons in the taxation of costs. The court found that the reasons provided for the taxation of counsel fees and the costs of getting up the case did not adequately address the specific concerns raised by the applicants. The court held that the provision of reasons must be sufficient to allow the parties to understand the basis upon which the costs were taxed. The court also noted that the taxation of costs is a critical aspect of procedural fairness, and the reasons must be clear and comprehensive. Based on this reasoning, the court concluded that the taxation of these costs was not appropriately justified and ordered a re-examination of the claims for counsel fees and getting up the case.

As a result of the court's decision, the claims for the counsel fee and the costs associated with getting up the case were to be re-taxed. This decision underscored the importance of providing adequate reasons in the taxation of costs and ensuring procedural fairness in the legal process.

Orders

Orders of the court

Claims for counsel fee and getting up case taxed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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