Ninkovic v Cohen - [2000] WADC 198

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NINKOVIC -v- COHEN [2000] WADC 198

CORAM: VIOL DCJ

HEARD: 26 JULY 2000

DELIVERED : 10 AUGUST 2000

FILE NO/S: CIV 5026 of 1998

BETWEEN: ZORAN NINKOVIC
Respondent (Plaintiff)
AND
ALIZA COHEN
Applicant (Defendant)

Catchwords:

Practice and Procedure - Review of taxing master's refusal to uphold objections to taxation of costs - Turns on own facts.

Legislation:

Nil

Result:

Chamber Summons dismissed.

Representation:

Counsel:

Respondent (Plaintiff) : Mr S V Forbes
Applicant (Defendant) : Mr John Staude

Solicitors:

Respondent (Plaintiff) : James McManus & Associates
Applicant (Defendant) : John G Staude

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

Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
Bray v Ryan [1999] WADC 66
Grigoletto v Myer Properties WA Ltd, unreported; DCt of WA; Library No 3667; 31 March 1993
Joyce v Hutchinson & Anor [2000] WADC 42

Case(s) also cited:

Lloyd v Faraone [1989] WAR 154

VIOL DCJ: On 25 November 1999 in an action for damages for personal injury judgment was given to the plaintiff in the sum of $34,635 after a trial on the assessment of damages only which trial took two days. The defendant was ordered to pay the plaintiff's costs to be taxed.
On 22 February 2000 Deputy Registrar Hewitt as taxing officer taxed the plaintiff's bill of costs. In relation to Item 5 on the bill of costs relating to getting up for trial, an amount of $17,500 was claimed, and $10,000 was allowed by the taxing officer. Some other matters were claimed on other items which had made the original claim for costs $20,300 and the taxing officer taxed off $10,300. The relevant figure for the appeal was the allowance of the sum of $10,000 for getting up case for trial.
At the request of the defendant the certificate was not signed by the taxing officer and the defendant objected formally to the taxation. The objection was dealt with by the learned Deputy Registrar without hearing the parties and apparently with their consent to that course of action. The relevant written bases for the objection are contained in the reasons for the review of taxation delivered by the learned Deputy Registrar on 23 March 2000. The learned Deputy Registrar said:
"The objection is brought on the basis that the amount allowed was manifestly excessive and grossly disproportionate to the amount of work which would reasonably have been required by way of getting up.
The defendant asserts that:
"(a) The amount allowed was manifestly excessive and grossly disproportionate to the amount of work that would reasonably have been required by way of getting up given that:
(i)the action was for personal injuries arising out of a motor vehicle accident on 20 August 1998 for which liability was admitted.
(ii)the trial took place in November 1999 just 15 months after the accident in question; and
(iii)the assessment of damages was not difficult or complex and was in all respects at the lower end of the range of litigation conducted in the Supreme and District Courts.
(b)The item should have been assessed by:
(i)identifying what services were necessary in the particular case;
(ii)objectively assessing a reasonable allowance for such services by applying the Rules, the Determination and the underlying principles thereof;
(iii)measuring the amount actually claimed in the bill for the services against the object assessment in order to determine whether or not the amount claimed is reasonable;
in which case the sum allowed would have been significantly less. See Bray v Ryan [1999] WADC 66 at p67.'
An objection of this kind provides obvious problems of review by a taxing officer. Not surprisingly I was not of the opinion that my allowance was so excessive as to be demonstrably wrong when I taxed the Bill, nor am I now.
The plaintiff made a very large claim for getting up and presented details so show that a considerable amount of time (in my recollection a total approaching 100 hours) had been spent getting the case up. That time was spent by both a senior practitioner and a para-legal.
I considered that although the time had been spent it had not been reasonably spent and the nature of the case and the tasks within it did not deserve the time the plaintiff's solicitors claimed. I considered that the claim was approximately twice as high as it should have been and reduced the item accordingly.
The various factors upon which the defendant relies do not persuade me an error has been made and the item will be allowed in the sum of $10,000."
After this the defendant filed a chamber summons for the review of the taxation. The grounds of the review were identical to those which had been considered by the taxing officer.
At the hearing of the review before me it was submitted on behalf of the applicant that the allowance being approximately 50 per cent of the maximum allowance under the determination ($20,250) was so excessive as to disclose an error of principle - reliance was placed on Grigoletto v Myer Properties WA Ltd, unreported; DCt of WA; Library No 3667; 31 March 1993, as applied in Joyce v Hutchinson & Anor [2000] WADC 42 (Groves DCJ). It was confirmed that where a taxing officer acts on a wrong principle the taxing officer's discretion has been exercised in a manner which is manifestly wrong, the Court will review such a decision (Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 628 per Kitto J).
It was said by the applicant that the taxing officer had not applied the methodology approved by Commissioner Reynolds in Bray v Ryan [1999] WADC 66. In other words, the taxing officer had not -
(i)     identified what services were necessary in the particular case;
(ii)     objectively assessed the reasonable allowance for such services by applying the Rules, the Determination, and the underlying principles thereof; or
(iii)    measured the amount actually claimed in the bill for the services against the objective assessment in order to determine whether or not the amount claimed was reasonable.
As a result, it was said, the taxing officer had been led into error by an exaggerated and wholly disproportionate bill of costs. In other words, there was an arbitrary assessment of party and party costs and not an objective assessment of the time it would take a reasonably competent solicitor to perform the services required in the case in hand. It was said therefore, that no more than 10 to 20 hours' work would be involved in preparation of this case for trial and that a proper assessment would fall in the range of $2,500 to $5,000.
For the respondent it appears that the methodology suggested as being appropriate in Bray v Ryan (supra) was accepted but it was said that although the taxing officer did not spell out precisely the basis upon which the costs were assessed, the reasons of the taxing officer suggest that he must have borne in mind those matters referred to by Commissioner Reynolds in Bray's Case (supra). Thus it was said that the amount allowed by the taxing officer was not so great as to be excessive or to disclose an error of principle.
The applicant's counsel had identified a number of matters involved in the getting up case for trial (these are set out below) and it was said by counsel for the respondent that there were other matters which should be added, namely, initial conference with the plaintiff, proofing lay witnesses, scheduling witnesses, conferences with the plaintiff and counsel prior to trial, preparation for the pre-trial conference, consideration and discussion with the plaintiff of defendant's discovered documents.
Further, it was submitted on behalf of the respondent, the matter was much more complex than a routine matter as submitted by the applicant, as demonstrated by the fact that the matter was taken to the Full Court on appeal by the defendant, and finally that the matter was taken fully to trial with six witnesses being called on behalf of the plaintiff and one for the defendant.
Having considered the bill of costs and the items taxed off by the taxing officer and his reasons for decision, it seems clear to me that the taxing officer did give consideration (even though he did not specifically spell these out) to the matters set out in Bray's Case (supra) - he had in fact considered the details lodged on behalf of the plaintiff's solicitors for getting up and to the details showing the amount of time claimed for such work - he mentioned a total approaching 100 hours. Having considered those matters he concluded that "although the time had been spent it had not been reasonably spent and the nature of the case and the tasks within it did not deserve the time the plaintiff's solicitors claimed". Accordingly, he considered that the claim was approximately twice as high as it should have been and reduced the item accordingly.
In the end, it is a matter of consideration of the work done, the hours claimed and a determination as to whether the work done was appropriate and whether the hours claimed could be said to be reasonably spent for doing such work. Also, of course, the amount claimed per hour is a matter to be considered, including the question of whether or not the work needed to be done by a senior legal practitioner or a para-legal.
Ultimately, so long as the taxing officer bears in mind those matters set out in Bray's Case (supra) he must rely on his experience and expertise and in my view he appears to have done this. It follows that so long as the general and accepted principles are followed, there may be differences in the exact costs allowed.
In order to test this I carried out the same exercise and relied upon the experience and expertise of a similar nature gained in the course of my own experience. The allowances made by me are:
Preparation of proof of evidence of plaintiff                  4 hours
Obtaining and considering medical reports (4)               2 hours
Obtaining and considering documentary evidence of
history of earnings  2 hours
Advice on quantum  4 hours
Preparation of schedules of loss  4 hours
Entry for trial  2 hours
Preparation of chronology, index reports and
statements of issues  2 hours
Issue of subpoenas  2 hours
Briefing of counsel  4 hours
Plus:
Initial conference with plaintiff  3 hours
Proofing lay witnesses   3 hours
Scheduling witnesses   2 hours
Conferences with plaintiff and counsel  6 hours
Preparation for pre-trial conferences  5 hours
Consideration discussion with plaintiff
of defendant's discovered documents   4 hours
Total:  49 hours
Allowing this at the rate of 30 hours for a senior solicitor at $250 per hour = $7,500, 20 hours for para-legal at $150 per hour = $3,000. Total $10,500.
Having done this exercise, it confirms in my view, that not only did the taxing officer not fail to apply the proper principles but also the conclusion that he drew, namely that an allowance should be made in the region of $10,000, was correct bearing in mind the particular matters involved in this case.
Therefore, in my view, there has been no basis shown upon which the taxing officer's decision could be interfered with and the application must fail.