| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : PEBSA PTY LTD -v- McNAUGHTON GARDINER INSURANCE BROKERS PTY LTD & ANOR [2002] WADC 244 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 19 NOVEMBER 2002 DELIVERED : 22 NOVEMBER 2002 FILE NO/S : CIV 3337 of 2000 BETWEEN : PEBSA PTY LTD (ACN 079 208 138) Plaintiff
AND
McNAUGHTON GARDINER INSURANCE BROKERS PTY LTD (ACN 070 159 492)
First Defendant
AND
ZURICH AUSTRALIAN INSURANCE LIMITED (ACN 000 296 640)
Second Defendant
Catchwords: Western Australia - Practice and procedure - Objection on taxation of costs - turns on its own facts
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Legislation:
Nil
Result: Objection allowed Representation:
Counsel:
Plaintiff : Mr J V O'Dea
First Defendant : No appearance
Second Defendant : Mr H M O'Sullivan
Solicitors:
Plaintiff : Mallesons Stephen Jaques
First Defendant : No appearance
Second Defendant : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 DEPUTY REGISTRAR HEWITT: Before me is the second defendant's objection to taxation contained in a letter dated 23 October 2002. The objection relates to my disallowance of portion of an airfare expended by the second defendant in order to travel to Adelaide and there view a bottling machine in operation which was relevant to the issues to be determined in the case.
2 The objections have been supported by the affidavit by Hugh Mark O'Sullivan sworn and filed 14 November 2002. 3 I accept that affidavit sets out an accurate record of the various events which are relevant to the determination of the issue in question save that what is referred to in par 4 of the affidavit as a pre trial conference on 5 April 2002 was, on my understanding, in fact a listing conference. 4 When this matter came before me I determined to make a deduction from the amount of the airfare which the second defendant claimed on the basis that had the second defendant made its travel arrangements at a much earlier stage in the proceedings, it would not have been necessary to have paid a full economy airfare and a significantly reduced airfare would have been able to be obtained. 5 In that context it is instructive to look at the chronology from the Court file in conjunction with Mr O'Sullivan's affidavit. The action was commenced by a writ which was filed on 15 December 2000. The second defendants were joined to the action by an order which was made on 25 September 2001. Pleadings closed insofar as the second defendant was concerned at about the beginning of January 2002. The plaintiff entered the action for trial on 21 January 2002 and it came before the Court in a pre trial conference on 28 February 2002. At that pre trial conference the matter was adjourned to a listing conference on 5 April at which it was ordered that the trial proceed purely on the question of liability. On that day the second defendant sought the permission of the solicitors for the defendant to inspect the relevant or similar mobile bottling plant could be inspected and by a letter dated 26 April 2002 the plaintiff indicated that a plant was available to be inspected in the Clare Valley between 9 and 13 May 2002. 6 The solicitors for the second defendant then obtained their client's instructions to travel to South Australia to inspect the plant and ultimately they made arrangements to and did travel to South Australia for that inspection to take place.
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7 In my original decision I took the view that there was ample time for the second defendant, if it wished to inspect the bottling machine, to have made earlier arrangements and obtain a discounted airfare.
8 On reviewing the information on the file, particularly the relatively late joinder of the second defendant, almost a year after the action commenced, I am now of the view that I was in error in making the deduction which I made. 9 Given the fact that the matter was entered for trial only a very short time after the second defendant was added as a party and some 30 days or thereabouts after the pleading between it and the plaintiff closed, I think there was not in truth a proper basis for me to decide that the second defendant had ample opportunity to make earlier arrangements and thereby obtain the benefit of a cheaper fare. 10 It is therefore my conclusion that the deduction of $600 for Item 14a of the bill should be reversed. The total of the bill should therefore be adjusted to $11,058.12 which with the addition of the taxation fee of $426.47 makes a total of $11,484.59. 11 I further determine that the costs of the objection should be the second defendant's fixed in the sum of $200 to be added to the taxed figure making a total of $11,684.59 and I shall sign my certificate in that sum. 12 The time for appeal against this decision will be extended to 14 days from the date of this delivery.
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