Moon v Woodward - [1991] TASSC 35

Serial No 3/1991
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: Moon v Woodward [1991] TASSC 35; A3/1991

PARTIES:  MOON
  v
  WOODWARD

FILE NO/S:  2778/1985
DELIVERED ON:  8 February 1991
JUDGMENT OF:  Wright J

Judgment Number: A3/1991
Number of paragraphs: 12

Serial No 3/1991
List "A"
File No 2778/1985

MOON v WOODWARD

REASONS FOR JUDGMENT WRIGHT J

8 February 1991

In an action for damages for personal injuries the plaintiff recovered consent judgment against the defendant for $60,000.00 and interest thereon "together with costs to be taxed". The plaintiff's bill of costs was taxed before the Assistant Deputy Registrar as taxing officer on 13 September 1990. As drawn, the plaintiff's bill claimed $8,697.92 for professional services and $2,617.90 for disbursements. On taxation the Assistant Deputy Registrar taxed $1,492.80 off the claim for professional services, leaving a balance of $7,205.12. The sum of $1,492.80 is greater than one sixth of the sum of $8,697.20. Included in the bill as lodged for taxation were items 376 and 377 which read as follows:

"19/7/1990 376 Attending pre–taxation conference $0.00.
19/7/1990 377 Attending taxation $0.00."

At the conclusion of the taxation the plaintiff's solicitor sought to amend the bill of costs by quantifying the claim made in respect of these two items. It was common ground that the parties had held a pre–taxation conference and that the conference took a period of two hours. The taxation of the bill before the Assistant Deputy Registrar took 3½ hours. It was apparently not disputed that in principle each of these attendances was recoverable as an item of party and party costs. The Assistant Deputy Registrar indicated that for the total period of 5½ hours expended in this way he would be disposed to allow $84.00 per hour or a total of $462.00 to the plaintiff's solicitor. The consequence of including this additional sum within the bill would be to increase the claim for professional services to $9,159.92. By calculating the one sixth rule against this figure, rather than the original figure of $8,697.20, the plaintiff could avoid the penalty provisions to be found in Rules of the Supreme Court, O.80, r.78 which is in the following terms:

"If on the taxation of a bill of costs the amount of the professional charges contained in the bill is reduced by a sixth part then, unless the taxing officer determines otherwise, no costs shall be allowed to the solicitor leaving the bill for taxation, for drawing and copying it, nor for attending the taxation."

The solicitor for the defendant, seeking to obtain the advantage of r78, opposed the plaintiff's application to amend items 376 and 377. After hearing argument, the Assistant Deputy Registrar allowed the amendment and, taking the view that the one sixth rule should then be applied in respect of the sum of $9,159.92, rather than $8,697.20, refused to disallow the plaintiff's solicitors' costs for drawing and copying the bill for taxation and for attending the taxation. The defendant sought to review the Assistant Deputy…

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.

Continue reading Moon v Woodward

Details

AGLC: Moon v Woodward [1991] TASSC 35
Case: [1991] TASSC 35
Decision Date: 8 February 1991

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Moon, the plaintiff, brought an action against Woodward, the defendant, seeking damages for personal injuries. The plaintiff was awarded consent judgment against the defendant for $60,000.00 plus interest and costs. The plaintiff's bill of costs was taxed by the Assistant Deputy Registrar, who reduced the amount claimed for professional services and disallowed certain costs. The plaintiff then sought to amend the bill of costs to include additional charges for attendance at a pre-taxation conference and the taxation hearing itself. The Assistant Deputy Registrar allowed the amendment and refused to disallow the plaintiff's costs for drawing and copying the bill and attending the taxation. The defendant sought to review the Assistant Deputy Registrar's decision, arguing that once a bill of costs has been delivered, the taxation must be on that bill and the taxing officer has no power to amend it. The court found that the Assistant Deputy Registrar had the power to amend a party and party bill of costs and that the calculation for the one sixth rule should include all professional charges, including the costs for drawing and copying the bill and attending the taxation. The court dismissed the defendant's application for review with costs.

The legal issues before the court were whether the Assistant Deputy Registrar had the power to amend a party and party bill of costs and whether the calculation for the one sixth rule should include all professional charges, including the costs for drawing and copying the bill and attending the taxation. The court found that the Assistant Deputy Registrar had the power to amend the bill of costs and that the calculation for the one sixth rule should include all professional charges. The court rejected the defendant's arguments that the rules of court in other states and the previous version of the rule in Tasmania did not support the Assistant Deputy Registrar's decision. The court found that the Assistant Deputy Registrar had exercised his discretion correctly and that there was nothing in the language of the rule or any binding or persuasive authority to the contrary that would support excluding the attendance upon taxation from the calculation. The court also found that it would be illogical and unwarranted to distinguish between the costs of drawing and copying the bill and the attendance upon taxation. The court concluded that the Assistant Deputy Registrar's decisions were correct and the defendant's application for review should be refused with costs.

Orders