O'Donohoe v Puca

[2004] WADC 70

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   O'DONOHOE -v- PUCA [2004] WADC 70

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   4 MARCH 2004

DELIVERED          :   13 APRIL 2004

FILE NO/S:   CIV 145 of 2002

BETWEEN:   PETER ANTHONY O'DONOHOE

Plaintiff

AND

MARCELLO PUCA
Defendant

Catchwords:

Practice - Western Australia  - Objection to taxation - Turns on its own facts

Legislation:

Nil

Result:

Objection disallowed

Representation:

Counsel:

Plaintiff:     Mr P Jones

Defendant:     Mr P Brand

Solicitors:

Plaintiff:     Bradley & Bayly

Defendant:     State Solicitor's Office

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

Nil

Case(s) also cited:

Nil

1. DEPUTY REGISTRAR HEWITT:  On 4 March 2004 I dealt with the defendant's bill of costs for taxation and following that hearing the defendant's solicitors filed objections.  The item to which the objections relate is item 11 "Counsel fee on brief" which I reduced from $7,500 to $4,000.  The basis of the objection is that the amount of work which was performed in relation to that item justifies the original claim and my deduction of $3,500 was excessive. 

2. A schedule was filed to support the claim and that indicates something in the vicinity of 62 hours of work has been claimed by counsel for preparation of the case. 

3. The case was a trial for liability only and it therefore seems to me that the hourly rate which should be allowed for counsel should be somewhat lower than a maximum.  The plaintiff's claim was for personal injuries sustained in an accident between a motorcycle which he was driving and a motor vehicle driven by the defendant.  The plaintiff alleged that the defendant backed his car into his path from a driveway whereas the defendant said that the plaintiff simply drove into the back of his car when he was travelling slowly down the road. 

4. Counsel fee involves an allowance for mastering of brief and the presentation of the case at trial.  In this case the defendant relied on the evidence of the defendant and a police officer who attended the scene of the accident.  Additionally, the defendant relied on a plan of the relevant area drawn up by a surveyor, and also some photographs taken by an investigator who attended the area and photographed it.  Neither the surveyor nor the investigator were called as witnesses although the latter did attend Court and was available to be called if required. 

5. Counsel was therefore presented with what I regard as an extremely simple factual situation.  In order to master the brief it was necessary to understand the topography of the relevant area by studying the photographs and plan, to absorb and understand the evidence of the witnesses intended to be called by the defence and to prepare for cross‑examination of the witnesses to be called by the plaintiff who were the plaintiff himself and a witness who lived in the vicinity of the accident who, although he did not observe the collision, was nonetheless able to testify as to its aftermath.  There were no issues of any complexity of law that I am able to discern nor was it suggested that such complexities existed.  There were no issues of quantum to be concerned with since the trial was to be purely on the issue of liability. 

6. The trial itself occupied one day. 

7. I take the view that it would be hard to imagine a simpler trial than this one.  The maximum which can be allowed, short of a special order for costs, for a fee on brief including the first day of presentation of a case is $10,672.  The claim which was made by the defendant in this case was approximately three quarters of that sum.  It was, as I have indicated, a case which I think placed very little burden on counsel in the way of mastering of a brief.  My allowance of $4,000 reflects an hourly rate of approximately $250 an hour which I think appropriate, given the uncomplex nature of the case and the fact that quantum was not in issue and in rough figures I have allowed for a total of approximately 16 hours of work being 10 hours of preparation and 6 hours attending Court on the day of the trial. 

8. Notwithstanding the fact that the schedule prepared by the defendant's solicitors shows a great deal more time than that was spent, in my view that effort was not justified given the nature of the case, and I am unpersuaded that a greater allowance than $4,000 would be appropriate in this case.  I shall therefore maintain the allowance of $4,000 and sign the bill accordingly on the date of issue of these reasons.