JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PRYLES & DEFTEROS (A FIRM) -v- GREEN [1999] WASC 34
CORAM: PARKER J
HEARD: 22 APRIL 1999
DELIVERED : 21 MAY 1999
FILE NO/S: LPA 9 of 1999
MATTER :Legal Practitioners' Act 1893; Review of taxation
BETWEEN: PRYLES & DEFTEROS (A FIRM)
Practitioners
AND
GRAEME WILLIAM GREEN
Party Charged
Catchwords:
Procedure - Costs - Review of taxation - Inherent jurisdiction
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621, applied.
Thorne v Thorne [1979] 1 WLR 659, applied.
Procedure - Costs - Taxation - Practitioner and client bill - Principles where there is no statutory determination or prescribed scale or written agreement.
Harrison v Tew [1989] 1 QB 307, considered.
Clare v Joseph [1907] 2 KB 369, considered.
Procedure - Costs - Appeal to Court of Criminal Appeal (WA) - Taxation of practitioner and client bill - Jurisdiction exists even though practitioner instructed in another State.
Legislation:
Legal Practitioners' Act 1893 (WA) s 58ZB
Legal Practitioners' Act 1893 (WA) s 59
Legal Practitioners' Act 1893 (WA) s 71
Result:
Certificate of Taxation set aside
Taxation remitted to Taxing Officer
Representation:
Counsel:
Practitioners : Mr D J Garnsworthy
Party Charged : Mr M L Bennett
Solicitors:
Practitioners : Pryles & Defteros
Party Charged : Bennett & Co
Case(s) referred to in judgment(s):
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Biltoft Holdings Pty Ltd and Anor v Casselan Pty Ltd and Anor, unreported; SCt of WA (Seaman J); Library No 930162; 24 March 1993
Clare v Joseph [1907] 2 KB 369
Electrical Trades Union v Tarlo [1964] Ch 720
Harrison v Tew [1989] 1QB 307
Harrison v Tew [1990] 2 AC 523
In Re Furber [1898] 2 Ch 538
Mossensons (a firm) v Coastline Associates, unreported; FCt SCt of WA; Library No 970661A; 2 December 1997
Rapoff v Daropoulos, unreported; SCt of WA (Nicholson J); Library No 7187; 8 July 1988
Storer & Co v Johnson (1890) 15 App Cas 203
Case(s) also cited:
Barfield v Friedman & Lurie, unreported; SCt of WA (Registrar Powell); LPA 63 of 1996; 27 March 1998
Bateman v Cookeson, unreported; SCt of WA (Parker J); Library No 980663; 13 November 1998
Blair v Curran (1934) 62 CLR 464
D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
EMI Records Limited v Ian Cameron Wallace Limited [1982] 2 All ER 980
NSW Crime Commission v Fleming (1991) 24 NSWLR 116
Re Cooke [1997] 1 Qd R 15
Re P's Bill of Costs (1982) 45 ALR 513
Winspear v Galdarm Pty Ltd (1997) 18 SR (WA) 115
PARKER J: This matter comes before me on a review of the taxation of a bill of costs of the practitioners. The taxation of the practitioners' costs had been required by the practitioners'…
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- Case
- [1999] WASC 34
- Decision Date
CaseChat Overview and Summary
The court examined the inherent jurisdiction of the Court in reviewing taxation of costs where there is no statutory determination, prescribed scale, or written agreement between the practitioner and the client. The court referred to several authorities, including Australian Coal and Shale Employees' Federation v The Commonwealth and Thorne v Thorne, to support its power to set aside a taxation certificate. The court found that the unusual circumstances in which the Taxing Officer proceeded warranted setting aside the certificate, emphasizing that such action was justified under the Court's inherent jurisdiction. The court also considered principles from Harrison v Tew and Clare v Joseph to understand the appropriate approach to taxation in the absence of a statutory or contractual framework.
In its reasoning, the court acknowledged the practitioner's argument that the certificate should not be set aside because they did not object to the Taxing Officer signing it immediately. However, the court found that the Taxing Officer's conduct, which was known to both parties, provided a compelling reason to exercise its inherent jurisdiction to correct the procedural irregularity. The court concluded that it was proper to set aside the certificate under the circumstances, thereby granting the client's application.
The final orders of the court directed that the taxation certificate be set aside and that the matter be referred back to the Taxing Officer for reconsideration in accordance with the proper procedural requirements.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Authorities in this jurisdiction and in other jurisdictions where the Rules are in essential similar form, indicate that there are difficulties in the way of the submissions for the client. First, a certificate of a Taxing Officer may be set aside by a Judge where the certificate has been signed before the parties have time to bring in objections to the Taxing Officer under O 66 r 53(1); Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621, Rapoff v Daropoulos, unreported; SCt of WA (Nicholson J); Library No 7187; 8 July 1988, In Re Furber [1898] 2 Ch 538 at 539 – 540. While that occurred in this case, it is submitted for the client that this is not a case where the power should be exercised on this basis as the practitioner did not object to the certificate being signed forthwith or seek to have the Taxing Officer defer signing the certificate to allow objections to be brought in. While that might well be a telling submission in other circumstances, it is obvious from the express observations of the Taxing Officer at the time, and repeated in his written reasons for decision, why it was that in this case counsel for the practitioner was deflected from the usual course. In my view it would be unjust not to set aside the certificate in the present case given the unusual course followed by the Taxing Officer with knowledge of both parties. As has been made clear in the authorities, the Court's power in this respect is part of its inherent power with respect to the charges of practitioners. Further, the exercise of the Court's inherent jurisdiction to set aside the certificate of taxation in this case is also justified on an application of the reasoning of Comyn J in Thorne v Thorne [1979] 1 WLR 659 at 664 that:"… It is open to the Court to set aside a taxation certificate if it is proper to do so."Indeed the decisions in Australian Coal and Shale Employees' Federation v The Commonwealth, Rapoff v Daropoulos, and In Re Furber may each well be applications of the one underlying general principle, reflected in the passage just quoted from Thorne v Thorne. In this respect Thorne v Thorne was referred to by Ipp J, Pidgeon J concurring, in Mossensons (a firm) v Coastline Associates, unreported; FCt SCt of WA; Library No 970661A; 2 December 1997 at pp 7 – 9 and acted upon. It appears that Seaman J proceeded on a similar view in Biltoft Holdings Pty Ltd and Anor v Casselan Pty Ltd and Anor, unreported; SCt of WA (Seaman J); Library No 930162 at pp 5 – 7; 24 March 1993, although as his Honour there cautioned (p 6):"… It is unnecessary in the present case to categorise all the circumstances in which in its inherent jurisdiction a Court might think it proper to set aside the certificate and I, for my part, would not confine them to the categories that are mentioned by Comyn J." (In Thorne v Thorne at 169),a reservation with which I respectively agree. Indeed Comyn J himself seems to have seen the categories which he identified as examples of situations where the inherent power might be exercised rather than an exhaustive statement of those situations. The categories mentioned by Comyn J were fraud, mistake or breach of natural justice.