Rankilor v Circuit Travel Pty Ltd [No 3] - [2011] WADC 55

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RANKILOR -v- CIRCUIT TRAVEL PTY LTD [No 3] [2011] WADC 55

CORAM: SCOTT DCJ

HEARD: 4 APRIL 2011

DELIVERED : 6 APRIL 2011

FILE NO/S: APP 58 of 2010

BETWEEN: WENDY RANKILOR
Appellant
AND
CIRCUIT TRAVEL PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE BOOTHMAN
File No  :CASE NO 2978 of 2009

Catchwords:

Practice - Review of taxation by a registrar

Legislation:

District Court Act 1969

Result:

Review allowed in part

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: Not applicable
Respondent: D G Price & Co

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

Nil

SCOTT DCJ: On 12 November 2010 on an appeal by the appellant, his Honour Birmingham DCJ ordered that the appeal be allowed and that the respondent pay the appellant's disbursement costs of the appeal to be taxed if not agreed.
The appellant's bill of costs was taxed by Deputy Registrar Harman on 3 February 2011. The deputy registrar allowed disbursements in the total sum of $284.50 being:
Transcript$ 59.50
Hearing fee $225.00
Total$284.50
The deputy registrar also allowed the respondent's costs for attending the taxation (including time spent in preparing for the taxation) in the total sum of $700 taking into account an adjournment on 24 January 2011 and the taxation on 2 February 2011.
The net result was that the appellant was liable to pay the respondent the sum of $415.50.
The appellant has sought a review of that taxation.
The solicitors for the respondent have informed the court that the respondent would not appear at the hearing of the appeal and would simply abide by the result.
From the papers made available to me, the relevant history is as follows:
(a)the appellant filed a bill of costs for taxation and subsequently a revised bill;
(b)in the revised bill the appellant claimed $1,536.41 for five profit cost items to which she was not entitled. In addition, she claimed a number of disbursements which the deputy registrar disallowed as being either not proved or not reasonable;
(c)by letter to the appellant dated 16 December 2010, the solicitor for the respondent offered $127.50 in satisfaction of the appellant's claim for disbursement costs and advised her that the offer remained open until one hour before the time allocated by this court for the taxation. The solicitor also pointed out that should the offer be not accepted, the respondent reserved the right to rely on the letter in support of an application for an order that the appellant pay the respondent's costs of attending the taxation. That offer was not accepted;
(d)by letter to the appellant dated 21 January 2011, the solicitor for the respondent increased that offer to the sum of $127.50 plus the daily hearing fee and stated that the offer remained open until 1.15 pm on 24 January 2011, being the date upon which the taxation was set down for hearing. Again, the solicitor for the respondent informed the appellant by that letter that should the offer be not accepted, the respondent reserved the right to rely on that letter in support of an application for an order that the appellant pay the respondent's costs of attending the taxation. That offer was not accepted;
(e)on 24 January 2011, Registrar Hewitt was to preside over the taxation. Mr Price, the solicitor who attended on behalf of the respondent, informed the appellant that he was a friend of Registrar Hewitt's and as a consequence it might be that the taxation may need to be adjourned. The appellant said that she wished, nonetheless, to proceed with the taxation;
(f)It is not clear to me why it was that the taxation did not proceed. However it appears not to have been the fault of either party. Registrar Hewitt reserved costs and the taxation was adjourned to 3 February 2011.
(g)By letter to the appellant dated 28 January 2011 the solicitor for the respondent made a further offer to reimburse her for the sum of any daily hearing fee which she paid to the court and the sum of $334.10 with respect to the disbursement costs. The letter stated that the offer remained open until 1.15 pm on 3 February 2011 being one hour before the time that the adjourned taxation hearing was scheduled to commence and informed the appellant that if it was not accepted, the respondent reserved the right to rely on the letter in support of an application for costs for attending the taxation. That offer was not accepted.
(h)On 3 February 2011, the deputy registrar presided over the taxation. The allowances he made were those to which I have referred above.
Enquiries of the registry reveal that the time recorded for the attendances on 24 January 2011 and 3 February 2011 totalled 30 minutes and 1 hour 30 minutes respectively, i.e. 2 hours in total.
The issue for determination by me, as articulated by the appellant at the hearing is whether the costs order in favour of the respondent for and in relation to the appearances on 24 January 2011 and 3 February 2011 ought to be reviewed.
The allowance in the District Court Appeals Scale of Costs 2010 for taxation is $297 per hour. As a consequence, the maximum allowance for two hours is $594.
Prior to 24 January 2011 and 3 February 2011, the solicitors for the respondent made what could commonly be called a Calderbank offer. Each offer exceeded the disbursement costs which were allowed by the deputy registrar on taxation.
The consequences of the appellant failing to accept the offers made in each case were clearly specified. It was open to the appellant to accept any of these offers which would have avoided the need for the respondent to engage its solicitors to attend the two appointments.
In addition, the appellant was decidedly unsuccessful in the taxation given the disparity between the total amount which she sought and the amount for which disbursement costs were proved and allowed.
The adjournment on 24 January 2011 was however not occasioned by the fault of either party. The appellant wanted to proceed to have the costs taxed.
In those circumstances it was appropriate in my view for there to be no allowance in favour of the respondent for the solicitor's costs incurred by it for the attendance on that date.
In all of the circumstances, I consider it appropriate that the sum awarded to the respondent of $700 be reduced to $445. The allowances made by the deputy registrar on the bill and his decision disallowing the balance of the items claimed by the appellant were correct.
The result is that the sum due by the respondent to the appellant which includes the hearing fee of $225 totals $284.50. The sum due by the appellant to the respondent is $445, leaving the appellant liable to pay the net sum of $160.50 to the respondent.
Given that the respondent did not appear on the hearing of this review, there will be no order as to costs.