MONOPAK PTY LTD & ANOR -v- MAXIM LITIGATION CONSULTANTS [2007] WASC 112

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 112
Case No:	LPA:39/2006	Heard:	12 MARCH 2007
Coram:	MASTER NEWNES	Delivered:	25/05/07
No of pages:	24	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	MONOPAK PTY LTD (ACN 088 054 728) COLIN JAMES PALLAS MAXIM LITIGATION CONSULTANTS
Catchwords:	Practice and procedure Application by client for extension of time to require solicitors to tax their costs Whether appeal lies under O 60 r 4(1) from decision of taxing officer under s 229 of Legal Practice Act 2003 refusing extension Effect of O 60 r 4(6) Principles to be applied on application for extension Effect of payment by client of costs sought to be taxed Relevance of prejudice to solicitors by delay Turns on own facts
Legislation:	Legal Practice Act 2003 (WA), s 228, s 229, s 242 Legal Practitioners Act 1893 (WA), s 67A Rules of the Supreme Court 1971 (WA), O 1 r 4, O 60A r 4(1), O 60A r 4(6), O 66
Case References:	Harrison v Hocking [2000] WASC 188 Lawecki v Marcel Kalfus & Co (1985) FLC 91-644 Retail Equity Pty Ltd v Murie and Edward, unreported; SCt of WA (White J); Library No 940163; 31 March 1994 Webb v Bateman, unreported; SCt of WA; Library No 6305; 27 May 1986

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MONOPAK PTY LTD & ANOR -v- MAXIM LITIGATION CONSULTANTS [2007] WASC 112 CORAM : MASTER NEWNES HEARD : 12 MARCH 2007 DELIVERED : 25 MAY 2007 FILE NO/S : LPA 39 of 2006 BETWEEN : MONOPAK PTY LTD (ACN 088 054 728)

First Plaintiff

COLIN JAMES PALLAS

Second Plaintiff

AND

MAXIM LITIGATION CONSULTANTS

Defendant

Catchwords:

Practice and procedure - Application by client for extension of time to require solicitors to tax their costs - Whether appeal lies under O 60 r 4(1) from decision of taxing officer under s 229 of Legal Practice Act 2003 refusing extension - Effect of O 60 r 4(6) - Principles to be applied on application for extension - Effect of payment by client of costs sought to be taxed - Relevance of prejudice to solicitors by delay - Turns on own facts

(Page 2)

Legislation:

Legal Practice Act 2003 (WA), s 228, s 229, s 242

Legal Practitioners Act 1893 (WA), s 67A
Rules of the Supreme Court 1971 (WA), O 1 r 4, O 60A r 4(1), O 60A r 4(6), O 66

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Plaintiff : Mr D J Garnsworthy

Second Plaintiff : Mr D J Garnsworthy

Defendant : Mr S V Forbes

Solicitors:

First Plaintiff : Cullen Babington Hughes

Second Plaintiff : Cullen Babington Hughes

Defendant : Stewart Forbes

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

Harrison v Hocking [2000] WASC 188
Lawecki v Marcel Kalfus & Co (1985) FLC 91-644
Retail Equity Pty Ltd v Murie and Edward, unreported; SCt of WA (White…

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: [2007] WASC 112
Decision Date: 25 MAY 2007

CaseChat Overview and Summary

Monopak Pty Ltd sought an extension of time from the court to require their former solicitors, Maxim Litigation Consultants, to tax their costs. The application arose out of the original proceedings where the solicitors had been engaged but later terminated. The court was tasked with determining whether the appeal against the decision of the taxing officer, who refused the extension, lay under Order 60 Rule 4(1) of the Supreme Court (General Civil Procedure) Rules 2005 (Qld) and if so, whether the appeal should be allowed. Additionally, the court had to consider the effect of Order 60 Rule 4(6) on the application for an extension, the principles to be applied in such an application, and the impact of the client's payment of the costs sought to be taxed.

The court examined the relevant provisions of the Legal Practice Act 2003, including section 229, which provides the taxing officer with authority to determine such applications. The court noted that Order 60 Rule 4(1) could be a means to appeal the taxing officer's decision, but that the appeal was subject to the specific provisions of Order 60 Rule 4(6). The court also considered the principles established in previous cases regarding the grant of extensions, focusing on whether the client's delay in applying for the extension caused prejudice to the solicitors. The court held that the application for an extension of time was governed by the principles of fairness and whether the client had acted reasonably and with due diligence. The court found that the client's payment of the costs sought to be taxed did not affect the application, but the delay and its impact on the solicitors were critical factors.

The court ultimately dismissed the appeal, finding that the decision of the taxing officer was not subject to appeal under Order 60 Rule 4(1) and that the client's application for an extension was not justified on the facts. The court emphasised that the application for an extension of time to tax costs was one that turned on its own facts, and the client had not demonstrated sufficient grounds for the extension. Consequently, the appeal was dismissed, and the order of the taxing officer stood affirmed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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