Mellos v Sheppard - [2005] WADC 77

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MELLOS -v- SHEPPARD [2005] WADC 77

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: NOT APPLICABLE

DELIVERED : 26 APRIL 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 - taxations of costs-objections in relation to getting up case for trial and preparing for and attending taxation.

Legislation:

Nil

Result:

Review not successful

Representation:

Counsel:

Plaintiff: Nil
Defendant: Nil

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: Peter Momber

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

May v Vincent Smith As Administrator for Cole Engineering Pty Ltd (Under Administration) & Anor [2001] WASC 352

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff has an order for his costs of the action. Thereby he is entitled to recover the reasonable cost of services necessarily provided by his solicitor. He objects to determinations made at taxation in relation to the services getting up case for trial and preparing for and attending at the taxation.
As to the first of those items, the first ground of objection is as follows:
"The taxing officer has erred in principle in failing to give any, alternatively, adequate reason for determining the amount allowed."
It is an unusual feature of this case that prior to the objection being filed I had communicated the relevant decision to the parties in writing. That communication is in the form of the decision delivered on 7 February 2005 and the particular observations are at par 15. In articulating the test that had been applied in coming to the determination and the considerations of a general nature that bore upon its application I did not intend to provide reasons for the determination. Accordingly, I would accept that no reason has been provided.
Commencing at par 5 of that decision I had canvassed the significance of O 66 r 54 (2) and had come to the conclusion that it was such that the parties then had no entitlement to reasons. According to the rule, reasons are required to be provided either at the point of signing the certificate or at the conclusion of review. The plaintiff having objected, the certificate will not be signed prior to the conclusion of the process of review. The parties are then entitled to reasons. There being no entitlement at the point that the ground was expressed it follows that the allegation that the failure to provide reasons amounts to an error cannot be sustained.
The second ground of objection is that:
"The taxing officer has erred in principle in not making any or any adequate provision in determining an allowance for getting up for the time spent by Mr Nigam, Ms Laslett and clerks/paralegals (in excess of 100 hours in total)."
(The notice then expresses 11 parts of what the plaintiff would contend constituted the provision of the service "getting up case for trial".)
The first part of the objection is whether the parts of the item expressed in the objection were allowed at all. The second that in making the determination as to quantum, those parts identified by the plaintiff were not accorded the significance that implicitly he would contend they deserved.
As to the first, but for par (vii), all parts of the item expressed in the objection were allowed. Paragraph (vii) refers to preparation for the pre-trial conference. I have previously given reasons in this case for the disallowance of that part of the plaintiff's claim. There is no point in restating those reasons. Despite having had the opportunity to reconsider that disallowance and my reasons neither have changed.
As to the second, in my opinion the list does not exhaustively express the services that the concept of "getting up case for trial" would embrace. By way of illustration, it fails to articulate the fundamental task of assessing the causal linkages expressed in the plaintiff's pleading on the evidence. On its own terms par (ii) countenances that there would be a claim for taking instructions. Beyond that observation, how the plaintiff justifies the conclusion that the 10 surviving parts listed were treated in any manner different to the balance of the service eludes me.
I would add that the terms by which the objection is expressed do not accord with the test of recovery inter partes. The task of the taxing officer is to assess the reasonable cost of the provision of the service not "to make adequate provision for time spent by Mr Nigam, Ms Laslett and clerks/paralegals".
As to the reference to the engagement of unqualified persons in the process, recovery under the order being limited to what is reasonable imports into the process of valuation the proposition that the service had been provided efficiently. At some stage of the assessment the taxing officer will so value the service and consider whether that value reflects the profile of the service provider(s). The objective value of a service could not be exceeded as a consequence of the engagement of unqualified persons in its provision. To the extent that such engagement may account for a significant proportion of the time expressed by the plaintiff, I would observe that it appears to have had anything but a satisfactory costs outcome.
As to the proposition that "in excess of 100 hours" of time devoted to the process is an indicator of value, as Templeman J accepted was the case in May v Vincent Smith As Administrator for Cole Engineering Pty Ltd (Under Administration) & Anor [2001] WASC 352 at par 20, there is a distinction to be drawn between activity undertaken in relation to a case and "getting up the case for trial". Conceivably one explanation for the plaintiff seeking to so justify the claim is that he has failed to appreciate distinction or perhaps its significance.
The next ground of objection is as follows:
"The taxing officer further erred in principle by having undue regard to the quantum of the settlement rather than the time necessarily spent by the plaintiff's solicitors in getting up the plaintiffs case for trial."
The quantum at which the parties agree to compromise the positions they have taken in the litigation brought on the plaintiff's cause of action for damages for personal injury could not possibly inform a proper assessment of what is the reasonable cost for the provision of services in presenting the case. That being a fairly definitive statement on my part I find it inconceivable that I would have given any indication to the contrary at the taxation. How the plaintiff can justify what amounts to unsupported accusation is no more than troublesome.
As was the case with the last ground of objection, otherwise the expression of the test of recovery expressed in this ground is wide of the mark.
The next ground of objection is as follows:
"Further, or alternatively, the taxing officer erred in allowing the item in the amount of $5800, the error being manifest from the allowance itself and being an allowance that no taxing officer, acting reasonably, would allow in that amount."
I understand that this last ground of objection expresses the only valid basis for review as to quantum. In order to discern whether there was an error involves no more than the application of the test to the determination. It either survives the process or it does not.
I recently responded to a similar objection in another case along the lines that I would leave it for others to judge whether against that test my determination reveals an error. Having noted a response to that statement, in this instance I will add to my response what I consider might have been taken to be part of its import. That is, in making the determination I discharged my responsibilities in an appropriate manner. In particular, that I determined the reasonable cost of the provision of the service in all of its parts.
That concludes my response to the grounds of the notice in relation to the item "getting up case for trial". Before I move on I will canvass some recent history. The taxation the subject of the objection had been re-listed before me as a prior determination made in relation to the item had been set aside. Evidently that was because I had failed to articulate the fact that it had been made in an objective manner. As I indicated at par 11 of my reasons for decision of 7 February 2005, that was because I had not been asked to address any objection made along those lines. In the light of r 54 (2) and the fact that presently there is no such objection, in my opinion that should be the end of the matter. However, there is the prospect that history will be repeated and conceivably at the cost of the defendant. Accordingly, I will add some information.
The plaintiff had the opportunity to inform me of the extent to which relevant services had been provided and to make submissions in relation to quantum. As I recall, they were provided in some detail and were reasonably lengthy. As I stated at par 15 of the decision of 7 February 2005, in making the determination I applied the test of recovery and the considerations that it imports. The result was informed by my assessment of the complexity of the case, the extent to which services were required to be provided to the plaintiff, the extent to which they had been provided and their provision by a competent practitioner discharging his responsibilities in an efficient manner. In my opinion the only noteworthy features of the case lay in the complexity of the task of communicating with the client at a distance in circumstances where that task was already complicated by his mental condition. Otherwise the case was unremarkable. That is not to suggest that it was simple. Due consideration of issues that bear upon causation inevitably provide a degree of complexity in every case for damages for personal injury. In this case I was informed of events of prior injury and that the plaintiff's physical condition had thereby been compromised such that he was incapacitated for work. I was told that the differences in the medical opinion available had been identified and considered. I was not alerted to any particular difficulties with the evidence or in obtaining evidence. I was satisfied that the process of getting up the case had been largely completed. Going beyond the case to the provision of the service, it is fair to say that it was my appreciation that the engagement of unqualified staff was at the perimeter of tasks undertaken on the plaintiff’s behalf.
The sole objection to the next determination the subject of the plaintiff's notice relates to the determination for the costs associated with the taxation. It is expressed as follows:
"The taxing officer's error flows from the errors in relation to item 12. If the taxing officer's decision in relation to item 12 is upheld then there is no error in relation to item 16. If not, then the amount claimed should be allowed for the preparation for an attendance at the taxation by the plaintiff's counsel."
Accepting that the statement at the second sentence is correct there can be no scope for a finding of error. For what it is worth I observe that the last sentence makes no reference to the test of recovery.