Ninkovic v Cohen
[2000] WADC 76
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: NINKOVIC -v- COHEN [2000] WADC 76
CORAM: DEPUTY REGISTRAR HEWITT
HEARD: 22 FEBRUARY 2000
DELIVERED : 23 MARCH 2000
FILE NO/S: CIV 5026 of 1998
BETWEEN: ZORAN NINKOVIC
Plaintiff
AND
ALIZA COHEN
Defendant
Catchwords:
Review of taxation
Legislation:
Nil
Result:
Objections disallowed
Representation:
Counsel:
Plaintiff: Mr Jenshel
Defendant: Mr John G Staude
Solicitors:
Plaintiff: Messrs James McManus & Associates
Defendant: John G Staude
Case(s) referred to in judgment(s):
Bray v Ryan [1999] WADC 66
Case(s) also cited:
Nil
DEPUTY REGISTRAR HEWITT: On 22 February 2000, I taxed the plaintiff's Bill of Costs. At the request of the defendant the certificate was not signed and the defendant has brought in objections to the taxation.
The first objection concerns item 5, getting up case for trial, for which $17,500 was claimed and $10,000 was allowed. In addition there were separate claims within items 9, 10, 11, 12 and 13 of the Bill which were in my opinion part of getting up and which were also taxed off completely. The final position was, therefore, that the total claim for getting up was $20,300 of which $10,300 was taxed off and $10,000 allowed.
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 20th 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 objective 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 to 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.
The next objection refers to item 18 of the Bill, a disbursement claimed of $200 for a witness fee for Mrs A Biskupic.
The claim was reduced to $100 as I considered that the witness was required to attend at a time when it was clear her evidence would not be required.
The objection is based on the following:
"(a)The party leaving [sic] leaving a Bill of Costs for Taxation must lodge with the Bill vouchers for the payment of all disbursements: RSC O 66 r36.
(b)No voucher or other evidence of the witness' loss was produced.
(c)No allowance should have been made at all."
There was lodged with the Bill a handwritten note by the witness claiming $200 for her time in Court and the evidence (of which I had a transcript) established that Mrs Biskupic was a principal in a painting partnership which had employed the plaintiff in earlier times.
I take the view that it is onerous and unnecessary for such a witness to prove loss. Indeed the proof of loss would require an analysis of the financial records of the partnership of which the witness was a member, would be time consuming and would, inevitably be inconclusive. Problems of that kind would plague any witness who is not an employee. The witness made a claim for $200 for her two days of attendance. She is a person who earns income through personal exertion and attended Court to give evidence in normal business hours so that she was not available to attend to that business during those hours.
In my opinion a witness in the position of Mrs Biskupic has sustained a loss through her attendance at Court and should be entitled to some allowance for it. The fact that the allowance is not capable of precise calculation should not be a bar to some allowance being made. In my view the claim made by the witness was modest and bore a reasonable relationship to the time involved. I therefore, consider that the allowance should not be disturbed.
The defendant has pointed out that the plaintiff's Bill contains a serious arithmetic error and should have totalled $37,712.80 (rather than $45,263) before deduction. I have checked the Bill and agree with the defendant. After making allowance for this error the Bill will be signed in the sum of $21,785.35 on the issue of these reasons.
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