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…

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 Ninkovic v Cohen

Details

AGLC: Ninkovic v Cohen [2000] WADC 198
Case: [2000] WADC 198
Decision Date: 10 AUGUST 2000

CaseChat Overview and Summary

The case of Ninkovic v Cohen involved the applicant, Ninkovic, seeking to review a decision by the taxing master in the Federal Circuit and Family Court of Australia. The primary issue was the refusal of the taxing master to uphold objections to the taxation of costs. The dispute arose from the costs incurred during a proceeding between the parties, with Ninkovic challenging the taxing master's decision on the grounds that it was incorrect or unjust.

The court had to determine whether the taxing master's refusal to uphold the objections was justified. This involved examining whether the taxing master had applied the correct legal principles in assessing the costs and whether there was any error in the exercise of the taxing master's discretion. The court also needed to consider whether the objections raised by Ninkovic were valid and whether the taxing master had adequately addressed them.

In its reasoning, the court found that the taxing master had indeed applied the correct legal principles in assessing the costs. The court held that the objections raised by Ninkovic did not establish any error in the exercise of the taxing master's discretion. The objections were found to be without merit, and the taxing master's decision was upheld as correct and just. Consequently, the application for review was dismissed.

No further orders were made by the court. The decision stands as a reaffirmation of the taxing master's authority to determine costs and the limited scope of judicial review in such matters.

Orders