Nelson v Moorcraft - [2014] WADC 102

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: ALBANY
PERTH

CITATION: NELSON -v- MOORCRAFT [2014] WADC 102

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 25 JULY 2014

DELIVERED : 12 AUGUST 2014

FILE NO/S: ALB CIV 3 of 2011

BETWEEN: PETER STANLEY NELSON
Plaintiff
AND
PETER MOORCRAFT
Defendant

Catchwords:

Practice and procedure - Objection to taxation - No error of principle identified

Legislation:

Rules of the Supreme Court 1971 O 66 r 53 and 54

Result:

Objection disallowed

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr H Sklarz

Solicitors:

Plaintiff: Not applicable
Defendant: H Sklarz

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

Nil

DEPUTY REGISTRAR HEWITT: This action proceeded to judgment on 19 December 2012 in which costs were reserved for consideration at a later date. That process took place on 2 May 2013 and the trial judge ordered that the plaintiff pay the defendant's costs of the trial of the action.
Pursuant to that order the defendant filed a bill of costs which was listed before me on 20 August 2013 and subsequently adjourned and ultimately heard on 29 July 2014. Subsequent to the taxation I kept the allocator open to enable the paying party, the plaintiff, Mr Peter Stanley Nelson, to bring in objections. Those objections have now been received and are before me. They relate to two items on the bill, namely an amended defence which is item 1 on the bill and item 6 of the bill, namely getting up case for trial and counterclaim.
The full text of the objection is as follows:
No 1.
From the issue of the Writ of Summons by the plaintiff 31 March 2011, to 2 days before the initial Trial date set to be conducted by Commissioner Getting, all documentation had been completed, the Defendant conveniently placed himself in hospital with stress 2 days before this trial. Commissioner Getting filed further continuation up to the time Mr Sklarz was employed just weeks before the final trial, a lot of extra documentation including Chamber summons, many hearings, pre‑trail conferences by D/Registrar Hewitt, and final conference. All had value, had to be perused, and were part of the 4^th re-writing of the Defence.
No 6.
The defendant engaged Mr. Sklarz only 8 weeks before the second date set for trial, which was some 18 months after the service of the Writ of Summons.
The first Trial date set by Commissioner, when all documentation was complete and ready for trail. This was long before the appointment of Mr. Sklarz.
The Defendant conveniently placed himself in hospital with stress just days before the initial trial date set by Commissioner Getting.
Come in at the end and using up the maximum entitlement to prepare the final part for trial surely cannot be correct.
Only preparing for the final trial with all of the previous work completed for the first trial date, surely does not entitle Mr Sklarz to the maximum allowance.
Had the Lawyer been involved from the Start, documentation would have been written correctly, perusal of ongoing documentation including discover, also attendance of the many hearings, his hourly charges would have been larger, but with the same maximum allowance as set down by the Court.
There is evidence of Non-Compliance by the Defence all of the way through the 18 months including avoiding a Trial date set by Commissioner Getting by placing himself in Hospital.
There were additional matters which appear to be a complaint as to the manner in which the defendant conducted the proceeding but I am unable to discern anything within those complaints which could possibly amount to an objection against the items referred to.
The basis of an objection is defined by Rules of the Supreme Court 1971 O 66 r 53 which is in the following terms:
53.Party dissatisfied with taxation may object and apply for review.
(1)A party who contends that the taxing officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, or at such earlier time as may, in any case, be fixed by the taxing officer –
(a)deliver to the other party interested in the allowance or disallowance and carry in before the taxing officer, an objection in writing to the allowance or disallowance specifying in the objection by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objection; and
(b)thereupon apply to the taxing officer to review the taxation in respect of those items or parts.
(2)Pending the consideration and determination of the objection, the taxing officer may if he thinks fit issue a certificate of taxation for or on account of the remainder or of part of the bill of costs. Any further certificate which may be necessary shall be issued by the taxing officer after his decision upon the objections.
54.Review of taxation by the taxing officer.
(1)Upon an application under rule 53 to review the taxation, the taxing officer shall reconsider and review his taxation in relation to the objections, and he may, if he thinks fit, receive further evidence in respect of the objections.
(2)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 relating to his decision.
(3)The taxing officer may tax the costs of the objections and add them to or deduct them from, any sum payable by or to a party to the taxation.
(4)Except as provided by this rule, the taxing officer shall not, after a certificate is signed, review his taxation or amend his certificate except to correct a clerical or manifest error before payment or process issued for recovery of the costs.
(5)If a party fails to appear on the taxation the taxing officer may, upon an application in that behalf made in writing within 7 days, set aside or vary his certificate of taxation on such terms as he thinks just.
It follows from the relevant order and rule that in order for an objection to be successful the objecting party must identify an error in principle. It is difficult to discern in the objection number 1 any complaint which identifies an error of principle however the paying party is not legally represented and I shall briefly explain the matters which led me to conclude that the claim for item 1 was appropriate.
The plaintiff conducted this action in person together with, from time to time, the assistance of a solicitor. The defendant represented himself throughout except shortly before the trial was to take place when Mr Sklarz took over. It was Mr Sklarz who drafted the amended defence and the counterclaim although it is only the amended defence for respect of which a challenge is made. Mr Sklarz's task involved perusing a very large number of documents and piecing together the matters which could be properly raised by way of defence. There were masses of documents in this action and the court file comprises three archive boxes.
The claim for preparing the document is 10 hours. I form the view, that because of the manner in which the action had been conducted to the date of Mr Sklarz's involvement, that the task which he faced in hammering the defence into proper shape was a difficult one. Mr Sklarz claimed some 10 hours in accomplishing that task and in my view that was a reasonable allowance when one considers the material with which he had to work. I will therefore disallow the objection to item 1 of the bill.
As to item 6 of the bill the plaintiff complaints that Mr Sklarz was only engaged six weeks before the second date set for trial. In my view the assessment should be based on what was a reasonable time for Mr Sklarz, taking over from an unrepresented litigant, to grasp the task and prepare the case and present it at trial. What had happened before strikes me as irrelevant. The defendant engaged Mr Sklarz, who undertook the work on his behalf. The work, in my view, had not been properly done at any previous stage and the trial was competently prepared by Mr Sklarz. Up until that stage, in my view, the materials were a mess, such that work undertaken by the defendant prior to Mr Sklarz's involvement would have been, at the best, distracting and, at the worst, a positive obstacle to the proper preparation of the case.
There is no basis for complaint that the lawyer was engaged late. What is relevant is the reasonable amount to be paid for the efforts of that lawyer to put the defendant's case in order and be ready to present it at trial. It is suggested that the allowance which I have given is the maximum. That is not the case. The maximum in fact was $54,120 at the relevant time and the amount which was allowed of $36,982 is substantially less than such a maximum and in my view, given the great volume of documents to be examined, the need to proof witnesses, and the unsatisfactory state of the case at the time the solicitor took over, the amount allowed is a reasonable allowance.
It is therefore my conclusion that:
1.No error of principle has been identified.
2.The amounts which have been assessed are a reasonable allowance for the task which was undertaken by the solicitor for the defendant.
The objection will therefore be disallowed.