Pezzano v Hoffmans (A Firm)
[1999] WASC 154
PEZZANO -v- HOFFMANS (A FIRM) [1999] WASC 154
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 154 | |
| Case No: | LPA:139/1996 | 19 AUGUST 1999 | |
| Coram: | MASTER BREDMEYER | 19/08/99 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | ROCCO DOMENICO PEZZANO HOFFMANS (A FIRM) |
Catchwords: | Costs Taxation of costs adjourned sine die by Taxing Officer Master has no express or inherent power to order Taxing Officer to proceed with taxation |
Legislation: | Supreme Court Act 1935 (WA) Supreme Court Rules, O 60, O 66 and O 67 |
Case References: | Pelechowski v Registrar, Court of Appeal [1999] HCA 19 Clay & Anor v Karlson & Anor, unreported; SCt of WA; Library No 970424; 21 August 1997 Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 Grassby v R (1989) 168 CLR 1 Reed v Howard (1995) 184 CLR 1 Schweppes Ltd v Archer (1934) 34 SR (NSW) 178 Thompson v Thompson (1942) 59 WN (NSW) 219 TK v Australian Red Cross Society (1989) 1 WAR 335 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
A Bill of Costs
BETWEEN : ROCCO DOMENICO PEZZANO
- Client
AND
HOFFMANS (A FIRM)
Practitioners
Catchwords:
Costs - Taxation of costs adjourned sine die by Taxing Officer - Master has no express or inherent power to order Taxing Officer to proceed with taxation
Legislation:
Supreme Court Act 1935(WA)
Supreme Court Rules,O 60, O 66 and O 67
(Page 2)
Result:
Application dismissed
Representation:
Counsel:
Client : Mr D J Garnsworthy
Practitioners : Mr G R Dean
Solicitors:
Client : Hoffmans
Practitioners : G D Crocket & Co
Case(s) referred to in judgment(s):
Pelechowski v Registrar, Court of Appeal [1999] HCA 19
Case(s) also cited:
Clay & Anor v Karlson & Anor, unreported; SCt of WA; Library No 970424; 21 August 1997
Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129
Grassby v R (1989) 168 CLR 1
Reed v Howard (1995) 184 CLR 1
Schweppes Ltd v Archer (1934) 34 SR (NSW) 178
Thompson v Thompson (1942) 59 WN (NSW) 219
TK v Australian Red Cross Society (1989) 1 WAR 335
(Page 3)
1 MASTER BREDMEYER : On 16 June 1999 Registrar Powell had before him a solicitor/client bill for taxation. On the previous day, 15 June 1999, Mr Pezzano commenced a Supreme Court action CIV 1647 of 1999 alleging negligence and breach of the retainer by the practitioners. Registrar Powell adjourned the taxation sine die and gave oral reasons which were later typed and which I now quote:
"The taxation of the bill filed 18 December 1996 was adjourned sine die by me on 16 June 1999 because a key factor in the client's opposition of the bill was a claim by the client that the practitioner was negligent in failing to act as instructed by the client (bringing bankruptcy proceedings against the plaintiff in Ballato v. Pezzano and others CIV/1810/87) which if carried out would have rendered the fees claimed by the practitioner in acting for the client in CIV/1810/97 as unnecessary.
Whether the practitioner breached his retainer or acted negligently is the question to be determined in Pezzano v Hoffman and another CIV/1647/1999.
In D'Alessandro & Associates V Hamilton WA SCt, unreported judgment delivered 17 July 1992 White J at page 6 said 'In relation to the taxation of costs such negligence would have to be demonstrated in relation to the individual items in the Bill of Costs'.
In this action the claim is not so much a claim of negligence in relation to certain individual items but that the negligence rendered unnecessary all the items after a certain date.
The question of negligence of and breach of retainer is more appropriately determined at trial rather than at a de facto trial before a taxing officer where witnesses would need to be examined and cross examined even if the taxing officer had power to so act.
The taxation of the bill should follow determination of the question of breach of retainer and negligence of the practitioner in CIV 1647/1999."
2 In this chamber's summons the practitioners have asked me to order the taxing officer to proceed expeditiously with the taxation. I heard preliminary argument on whether I had power to do so. The practitioners' argument is that the Supreme Court has inherent power to make such an
(Page 4)
- order. It is conceded that in adjourning the taxation sine die Registrar Powell was acting as a Taxing Officer. I agree with that. It is also conceded that the practitioners have no right of appeal against that decision. Appeal rights are given by statute. The practitioners' counsel has scoured all possible sections and there is no appeal provision against this kind of order. I agree with that.
3 It is said that, where there is no appeal, the Supreme Court has inherent power to review a decision of a Registrar acting as a Taxing Officer. That may be so. I have no doubt that the Supreme Court of Western Australia has all the inherent powers of the Supreme Court of New South Wales as mentioned by the High Court in Pelechowski v Registrar,Court of Appeal [1999] HCA 19. Whatever the exact scope of the inherent powers of the Supreme Court to control its own processes, I consider those powers primarily vest in the Judges and not in a Master. I only have powers given to me by the Rules or by a statute. Order 60 does not clearly give me any power to order the Registrar to proceed with the taxation.
4 The decision I am asked to make is not a review of Registrar Powell's decision on costs. That kind of review is defined in O 66 r 55. It is by a judge.
5 Under O 60 r 1(1)(a) a Master can "transact such business and exercise such authority and jurisdiction as a Judge sitting in Chambers may do … under the Supreme Court Act 1935 (WA) or under any custom or rule or practice of the Court, except in relation to …". There is no rule giving me the power to make the order sought. Neither is there any custom or practice. If there was, a precedent would be cited, either a reported or unreported case. I have not seen this kind of application in eight and a half years as Master. There is nothing supporting it in Seaman's text on Civil Procedure in this State. Mr Garnsworthy, who has long experience in costs matters, has not been able to cite me an example of where this power has been exercised. I conclude that there is no custom or practice allowing me to order the Registrar to proceed with the taxation.
6 Also there is no general power in the Supreme Court Act or Rules enabling me as a higher judicial officer to give directions to the Registrar being a more junior judicial officer. I looked for such a power. Order 67 r 1 enables me to give directions to the central office on questions of practice and procedure. I can prescribe new forms to be used, for example, but there is no general power given to me to give orders to
(Page 5)
- Registrars. I conclude that I have no inherent power to decide this application and the application will be dismissed.
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