Rankilor v Circuit Travel Pty Ltd [No 5]
[2012] WADC 138
•17 SEPTEMBER 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RANKILOR -v- CIRCUIT TRAVEL PTY LTD [No 5] [2012] WADC 138
CORAM: PRINCIPAL REGISTRAR GETHING
HEARD: 11 SEPTEMBER 2012
DELIVERED : 17 SEPTEMBER 2012
FILE NO/S: APP 58 of 2010
BETWEEN: WENDY RANKILOR
Appellant
AND
CIRCUIT TRAVEL PTY LTD
Respondent
Catchwords:
Practice and procedure - Taxation of costs - Review
Legislation:
Legal Profession Act 2008
Rules of the Supreme Court 1971 (WA) O 66
Legal Practitioners (District Court Appeals) (Contentious Business) Determination 2010 (WA)
Result:
Objection not sustained
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: Not applicable
Respondent: D G Price & Co
Case(s) referred to in judgment(s):
Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271
Cachia v Hayes [1994] HCA 14; (1994) 179 CLR 403
Rankilor v Circuit Travel Pty Ltd [2010] WADC 170
Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155
Rankilor v Circuit Travel Pty Ltd [No 2] [2011] WADC 37
Rankilor v Circuit Travel Pty Ltd [No 3] [2011] WADC 55
Smith v Buller (1875) LR19Eq 473
PRINCIPAL REGISTRAR GETHING: In October 2008 Ms Rankilor and a friend took a 27 day European tour booked through Circuit Travel. The tour fell well short of Ms Rankilor's expectations and she sued Circuit Travel for breach of contract claiming $10,000.
Her claim was initially heard by Magistrate Boothman in July 2010 who dismissed the claim. An appeal from this decision to the District Court was successful (Rankilor v Circuit Travel Pty Ltd [2010] WADC 170). Judge Birmingham QC ordered Circuit Travel to pay Ms Rankilor's disbursement costs of the appeal to be taxed if not agreed. His Honour ordered a retrial.
Ms Rankilor presented three versions of a bill of costs, the one ultimately being taxed being dated 22 December 2010. The taxation took place before Deputy Registrar Harman on 3 February 2011. The deputy registrar directed that any objection be filed by 4.00 pm on 11 February 2011. Ms Rankilor filed objections, which I will identify below, which were ultimately not allowed by the deputy registrar: Rankilor v Circuit Travel Pty Ltd[No 2] [2011] WADC 37 (Rankilor [2]).
The decision of the deputy registrar was reviewed by Judge Scott, who adjusted the orders made: Rankilor v Circuit Travel Pty Ltd [No 3] [2011] WADC 55 (Rankilor [3]). Ms Rankilor appealed to the Court of Appeal who set aside the decision of Judge Scott: Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155 (Rankilor CA).
The history of the taxation process is set out in detail in the decision of Murphy JA, with whom McClure P and Newnes JA agreed. Justice Murphy also stated (Rankilor (CA) [88] ‑ [89]):
As no final orders were extracted in relation to Deputy Registrar Harman's decision to order costs, there is no occasion to set aside any orders purportedly made on that occasion in relation to costs. Further, as no certificate has ever been issued, the taxation has not been completed, and the objection process remains to be properly completed.
By way of general observation, it would seem appropriate, in all the circumstances, for there to be a review, under O 66 r 54, of items 6 and 11 of the Notice of Appeal in relation to Deputy Registrar Harman's taxation of the appellant's revised bill of costs dated 22 December 2010. The review should be undertaken by a registrar other than Deputy Registrar Harman or Deputy Registrar Hewitt. If, in relation to that review, the appellant made any proper objections, within the meaning of, and in accordance with, O 66 r 53, to the taxation beyond the objections to items 6 and 11 in the Notice of Appeal, those additional objections could be dealt with at the same time as the objections to items 6 and 11. That observation is not to be read as an encouragement to make additional objections, but is merely intended to recognise that objections within the meaning of O 66 r 53(1) may be made at any time before a certificate of taxation dealing with an item is signed, or at any earlier time as may be fixed by the relevant Taxing Officer.
This matter thus comes before me for a review of a taxation made by Deputy Registrar Harman on 3 February 2011 pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 66 r 54.
Basis for the present review
By letter dated 28 August 2012, I wrote to the parties informing them that I proposed to give effect to the direction of the Court of Appeal as follows:
(a)I would carry out a review of the taxation of Deputy Registrar Harman on 3 February 2011 pursuant to RSC O 66 r 54;
(b)I would abide by the direction made by the deputy registrar that any objection be filed by 4.00 pm on 11 February 2011, observing that I did not understand the comments of Murphy JA at Rankilor (CA) [89] to set aside this direction, merely to restate the effect of RSC O 66 r 53(1);
(c)there were two documents filed by Ms Rankilor prior to 4 pm on 11 February 2011 which formed the basis of the objections for the purposes of RSC O 66 r 53;
(d)the first document was a letter dated 5 February 2011 from Ms Rankilor to the court;
(e)the second was the notice of appeal dated 7 February 2011, which the Court of Appeal construed as containing grounds of objection (see [89] quoted above), so it appropriate that I do likewise; and
(f)the issue for me to determine is whether the deputy registrar made 'an error of principle in allowing or disallowing an item or any part of an item': RSC O 66 r 53.
I informed the parties that I had listed the review for hearing on 11 September 2012, a date which registry staff had confirmed was convenient to the parties.
I advised the parties that if either of them took issue with the basis on which I proposed to carry out the review, I would hear submissions at the commencement of the hearing on 11 September 2012. At this hearing, Ms Rankilor did not raise any objection to the process set out in my letter of 28 August 2012. Circuit Travel did not appear at the hearing, their counsel having advised the court that they would abide by the decision of the court.
On a review pursuant to RSC O 66 r 54, the taxing officer has the power to receive additional evidence: RSC O 66 r 54(1). In my letter dated 28 August 2012 I notified Ms Rankilor that if she wished to provide any further vouchers, she had to file and serve an indexed bundle of the vouchers by 4 September 2012. She filed such a bundle on 31 August 2012.
In my letter of 28 August 2012, I also informed the parties that I had listed a second hearing on 16 October 2012 to deal with the issue of costs. I said that I would publish my reasons from the hearing on 11 September 2012 prior to the hearing on 16 October 2012. In this way, the issue of costs will be determined in light of the certified sum (Rankilor (CA) [83]).
Outcome of the taxation before Deputy Registrar Harman
The following table sets out the items claimed in the amended bill, together with the amounts taxed off. For ease of reference I have added in some item numbers to identify the disbursements.
Item
Description
Amount claimed
Amount taxed off
1
Notice of Appeal - 19 August 2010
$131.86
$131.86
2
Proceedings in court - 10, 12 November 2010
$873,80
$873,80
3
Preparation time – Sept to Nov 2012
$426.25
$426.25
9
Drawing bill of costs – 21, 22 December 2010
$66.00
$66.00
10
Attending taxation
$38.50
$38.50
11
Disbursements
(a)
Transcripts
$59.50
$0
(b)
Petrol parking
$70.00
$70.00
(c)
Ink cartridges
$30.00
$30.00
(d)
Envelopes, stamps, A4 paper (2 reams)
$120.00
$120.00
(e)
Photocopying (600 copies, 20 cents per page)
$120.00
$120.00
(f)
Phone calls (925 calls at 40 cents per call)
$20.00
$20.00
(g)
Legal advice – costs (3 calls at $25)
$75.00
$75.00
(h)
Hearing cost
$450.00
$225.00
(i)
Filing fee bill of costs
$206.00
$206.00
The Deputy Registrar taxed the disbursements at $284.50.
Items the subject of the review
As set out above, there are two documents which I propose to consider as containing items which Ms Rankilor says ought to be reviewed, being:
(a)the letter dated 5 February 2011 from Ms Rankilor to the court; and
(b)the notice of appeal dated 7 February 2011.
From these documents, the issue that arises in the present review is whether Ms Rankilor is entitled to the following disbursements:
(a)transport costs;
(b)stationery costs;
(c)photocopying costs;
(d)costs of phone calls;
(e)legal advice costs;
(f)hearing fees; and
(g)the filing fee for the bill of costs.
Each is dealt with in turn below.
Is Ms Rankilor entitled to her transport costs?
In the amended bill, Ms Rankilor claimed $70 for petrol and parking. (item 11(b)). She changed this to a claim for public transport costs of $30 in the objections. Ms Rankilor produced vouchers for the hearing before me which she says verified a claim for $46.65 for public transport costs.
Deputy Registrar Harman did not allow the claim for parking costs on the basis that it was not supported by any voucher: Rankilor [2] [18]. However, Ms Rankilor has now produced vouchers.
In order for me to set aside an amount taxed off the bill of costs by Deputy Registrar Harman, I would need to be satisfied that Ms Rankilor had raised an error of principle: RSC O 66 r 53(1). In Rankilor (CA) Murphy JA summarised what constitutes an 'error in principle' as follows ([75] – [78]).
Order 66 r 53 and O 66 r 55 refer to an 'error in principle'. In this context, errors in principle have been contrasted with questions of mere quantum. In Re Catlin [1854] 18 Beav 508 [52 ER 200], Sir John Romilly said:
The petition is to review the taxation made by the Taxing Master of a bill of costs delivered by Mr Catlin, and complaining of the disallowance of various items. It is admitted, on both sides, that this Court can only be called upon to determine on the propriety of allowing or disallowing items which involve some principle, and not where a question only of quantum arises. (Alsop v Lord Oxford 1 Myl & K 564.)
Nevertheless, errors in principle may be made both in determining whether an item should be allowed and in determining how much should be allowed: Schweppes Ltd v Archer (1934) 34 SR (NSW) 178, 183; Australian Coal & Shale Employees' Federation v Commonwealth (628).
An error in principle may be inferred from a decision of the taxing officer if the result is such that the discretion appears not to have been exercised at all, or where it has been exercised in a manner that is manifestly wrong: Australian Coal & Shale Employees' Federation v Commonwealth (628 ‑ 629).
In Mossensons (a firm) v Coastline Associates, Ipp J (Pidgeon J agreeing) observed (9 - 10):
The point is that there must be an error in principle before a judge will carry out a review under O 66 r 55. Although it is possible for an error in principle to be made in regard to the quantum allowed in respect of a particular item, that is generally regarded as unusual. In my opinion, an error in principle on this basis could only be established if it is shown that no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question.
The question of whether an error in principle arises must also take its context from the fact that the registrar may admit further evidence in undertaking the review process: RSC O 66 r 54(1). This evidence must be evidence 'in respect of the objections', which in turn are limited to errors of principle: RSC O 66 r 54(1). Thus, in reconsidering and reviewing the taxation pursuant to RSC O 66 r 54(1), the registrar may consider whether an error of principle is established by the additional evidence.
In relation to the claim for public transport costs, the general rule is that travel costs for a litigant in person (who was not otherwise entitled to a witness fee) are not disbursements that are able to be recovered on a taxation: Cachia v Hayes [1994] HCA 14; (1994) 179 CLR 403, 417; Rankilor (CA) [86]. Thus, whether or not vouchers were provided, the deputy registrar did not make an error in principle in denying the claim for public transport costs.
Accordingly, Ms Rankilor is not entitled to her public transport costs.
Is Ms Rankilor entitled to her stationery costs?
In the amended bill, Ms Rankilor claimed for ink cartridges at $30 (item 11(c)) and envelopes, stamps and paper at $120 (item 11(d)). She amended this to a claim for paper at $30 in the objections. Ms Rankilor did not produce any voucher or other receipt for this amount in the hearing before me.
RSC O 66 r 36 obliges a party lodging a bill of costs to verify the disbursements claimed by lodging copies of vouchers with the bill. Specifically, it provides:
36. Vouchers as to disbursements to be lodged
A party leaving a bill of costs for taxation must lodge with the bill vouchers for the payment of all disbursements (other than court fees) included in the bill; and where the vouchers are numerous they must be marked with the corresponding number in the bill.
This provision is in mandatory terms, and has the effect that a claim for disbursements cannot be maintained unless supported by a voucher of some description.
Deputy Registrar Harman did not allow the claim for stationery costs on the basis that it was not supported by any voucher: Rankilor [2] [18]. In my view, he did not make any error in principle in coming to this conclusion.
Accordingly, Ms Rankilor is not entitled to her stationery costs.
Is Ms Rankilor entitled to her photocopying costs?
In the amended bill, Ms Rankilor claimed $120 for her photocopying costs (item 11(e)). She reduced the amount claimed in the objections $12, which she says was an amount agreed with Circuit Travel. In the materials submitted to me, she claimed $20.
As with the stationery costs, Ms Rankilor was not able to produce any receipt or other voucher to substantiate her expense. Deputy Registrar Harman did not allow the claim for photocopying on the basis that it was not supported by any voucher: Rankilor [2] [18]. For the same reasons I have set out in relation to stationery costs, in my view, the deputy registrar did not make an error in principle in coming to this conclusion.
Accordingly, Ms Rankilor is not entitled to her photocopying costs.
Is Ms Rankilor entitled to her costs of phone calls
In the amended bill, Ms Rankilor claims an amount of $20 for telephone calls. This was increased to $30 in the objections.
Deputy Registrar Harman did not allow the claim for telephone expenses on the basis that it was not supported by any voucher: Rankilor [2] [18]. However, for the hearing before me, Ms Rankilor provided receipts to substantiate a claim for $5.60 for telephone calls. I may consider this further evidence in determining whether the deputy registrar made an error of principle.
The general test for whether a disbursement (other than those specified) may be allowed is that of necessity: RSC O 66 r 19.
An issue arises as to whether the Legal Practitioners (District Court Appeals) (Contentious Business) Determination 2010 (WA) (DC Scale) provides for a different, and potentially more liberal, basis on which to allow a disbursement than that under the RSC. The relevant item in the DC Scale relating to disbursements is item 11(b), which provides:
As between party and party, a party may be allowed disbursements incurred by that party except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions, that party is fully reimbursed for its disbursements.
The costs of a District Court appeal are to be taxed in 'in accordance with determinations made by the Legal Costs Committee under the Legal Practice Act 2003 and section 215 of that Act': DCR r 59(2). The Legal Practice Act was repealed, and replaced, by the Legal Profession Act 2008 (WA) (LPA) s 598. The power of the Legal Costs Committee to issue determinations is found in LPA s 275. This section relevantly provides that the committee 'may make legal costs determinations regulating the costs that may be charged by law practices in respect of … contentious business before ... the District Court': LPA s 275(1)(b)(ii).
However, determinations issued by the Legal Costs Committee do not purport to apply to litigants in person. Rather, as set out in LPA s 275, they regulate 'the costs that may be charged by law practices'. This is confirmed by the definition of 'contentious business' in LPA s 274:
contentious business means legal services by an Australian legal practitioner in or for the purposes of any action, suit or proceedings before a court, but does not include the administration of estates and trusts;
The DC Scale therefore has no application to a claim for disbursements by Ms Rankilor, as she is not a law practice. The DC Scale does apply to any costs orders sought by Circuit Travel, who is represented by a law practice. I therefore come to the same conclusion on this point as Deputy Registrar Harman in Rankilor [2] [16] albeit for different reasons. The framework for the taxation remains the general principles of necessity in RSC O 66 r 19.
Under the RSC, the disbursement or expense must be 'necessary ... in the conduct of the litigation': RSC O 66 r 19(g), (h). This reflects the common law position that 'the costs chargeable under a taxation as between party and party are all that are necessary to enable the adverse party to conduct the litigation, and no more': Smith v Buller (1875) LR19Eq 473 475; Anfrank Nominees Pty Ltd v Connell(1991) 6 WAR 271, 283.
In determining what expenses are necessary, a litigant in person is at least entitled to recover those out of pocket expenses which would have been recoverable by her, or her solicitor, had she been legally represented: Cachia, 417. However, a litigant in person is not entitled to be put in a better position as to disbursements than a litigant who is represented: Cachia, 414 ‑ 415. The costs must have actually been incurred: Cachia, 414.
All the telephone calls identified by Ms Rankilor were local calls. The practice of this court is not to allow a claim by a law practice for local telephone calls on the basis that this is part of the general overhead of the law practice which is provided for in the per hour fees scales. A claim may be allowed for, say, an international call for which there is an appropriate voucher. To allow a claim for local telephone calls would place Ms Rankilor in a better position than had she been represented. For these reasons, whether or not vouchers were provided, I do not consider that the deputy registrar made an error in principle in denying the claim for telephone costs. In coming to this conclusion, I have 'borne in mind that party and party costs have never been regarded as a total indemnity to a successful litigant for costs incurred': Cachia, 414.
Accordingly, Ms Rankilor is not entitled to her claim for the cost of local telephone calls.
Is Ms Rankilor entitled to her legal advice costs?
In the amended bill, Ms Rankilor claimed an amount of $75 for legal advice (item 11(g)). The deputy registrar found that this was outside the scope of the order for payment of disbursements made by Judge Birmingham QC: Rankilor [2] [19]. I agree, and so find that the deputy registrar did not make an error in principle.
Accordingly, Ms Rankilor is not entitled to the cost of obtaining legal advice.
Is Ms Rankilor entitled to the hearing fees?
The court charged Ms Rankilor a fee of $225 when the appeal ultimately heard by Judge Birmingham QC was initially listed. This fee was set on the basis that the appeal would take half a day. By letter dated 13 September 2010, this hearing fee was deferred.
The hearing before Judge Birmingham QC took two days. Pursuant to District Court (Fees) Regulations 2002 (WA) (DCFR) sch 1 item 3(b) an additional fee of $225 per half day applied, making the total fee payable $900.
The court advised Ms Rankilor that the deferred hearing fee of $225 was then due and payable by letter dated 31 January 2011. This letter ought to have been accompanied by an invoice for the additional $675. However, given the course which I have taken, this is now of no consequence.
Ms Rankilor subsequently provided a DCFR form 2 application to waive the daily hearing fees dated 11 April 2011. On 11 April 2011 I declined to waive the fees on the basis that they had been dealt with in the decision of Judge Scott. However, as the Court of Appeal has set aside the decision of Judge Scott, the basis for my initial decision fall away. I considered it appropriate that I reconsider Ms Rankilor's request for a fee waiver, which I did. Having done so, I formed the view that it was appropriate to waive the outstanding daily hearing fees pursuant to DCFR reg 7. I advised the parties of this in my letter dated 28 August 2012.
There is thus now no basis for Ms Rankilor to be awarded disbursements for this amount, and I tax off the entire amount claimed.
Is Ms Rankilor entitled to the filing fee for the of bill of costs?
In the bill of costs Ms Rankilor claimed the filing fee she paid to the court when she filed the bill of costs in the amount of $206.60 (item 11(i)). Of the amount of $206.60, $128 was for a lodgement fees pursuant to DCFR sch 1 item 10(a) and $78.60 was a taxing fee of 2.5% of the amount of the bill, then being $3,145.20.
As at 3 February 2011, DCFR sch 1 item 10 relevantly provided:
10.
On an appointment to tax a bill of costs in a cause or matter or under the Commercial Arbitration Act 1985 —
(a) lodgement fee
128
250
(b) in addition to the lodgement fee, a taxing fee at the rate of
2.5%
2.5%
NOTE 1:
The % rate is to be applied to the amount at which the bill is drawn.
NOTE 2:
The taxing officer must allow, against the person chargeable with the costs as taxed, taxing fees at the rate indicated in item 10(b) of the amount found to be due on taxation.
The deputy registrar did not allow any amount for the filing fee on the taxation, nor did he undertake the adjustment in DCFR sch 1 item 10 note 2. In my view, this constitutes an error in principle.
The deputy registrar allowed the claim for transcripts. I have not allowed any of the other disbursements the subject of this review. The taxed disbursements allowed so far thus total $59.50. I allow a further $1.50, being 2.5% of this amount pursuant to DCFR sch 1 item 10 note 2. That is, I tax off the amount of $76.50 from the amount claimed of $206 and allow the filing fee on the bill of costs at $129.50, being $128 plus $1.50.
In summary, the final position in relation to disbursements is:
Item
Description
Amount claimed in amended bill
Amount taxed off on review
11
Disbursements
(a)
Transcripts
$59.50
$0
(b)
Petrol parking
$70.00
$70.00
(c)
Ink cartridges
$30.00
$30.00
(d)
Envelopes, stamps, A4 paper (2 reams)
$120.00
$120.00
(e)
Photocopying (600 copies, 20c per page)
$120.00
$120.00
(f)
Phone calls (925 calls at 40 cents per call)
$20.00
$20.00
(g)
Legal advice – costs (3 calls at $25)
$75.00
$75.00
(h)
Hearing cost
$450.00
$450.00
(i)
Filing fee bill of costs
$206.00
$76.50
Totals
$1,150.50
$961.50
Amount of taxed disbursements allowed
$189.00
Final orders
I have thus signed the certificate of taxation in the amount of $189. I have made my annotations in green pen so that they are distinct from the notes made by the deputy registrar. I will send a colour copy to each party with these reasons.
I will hear from the parties as to any other orders that ought to be made arising out of this review at the hearing in relation to costs on 16 October 2012.
At the hearing on 11 September 2012 I told Ms Rankilor that I was considering making order suspending execution of the bill of costs pending the hearing on 16 October 2012. This was on the basis of the potential for orders to be made pursuant to RSC O 66 r 7 setting off the taxed disbursements against any costs which I might order Ms Rankilor to pay Circuit Travel. Ms Rankilor did not say anything which persuaded me that it was not appropriate to make an order of this kind. I will make an order in these terms.
I have sent the parties the extracted orders relevant to this decision with their copy of the decision. The extracted orders also contain directions for the filing of submissions for the hearing on 16 October 2012.
0
6
3