| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : RIEDT -v- LAM [No 2] [2013] WADC 56 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 26 FEBRUARY 2013 DELIVERED : 23 APRIL 2013 FILE NO/S : CIV 2670 of 2011 BETWEEN : PETER GOTZ RIEDT HUONG KIM RIEDT
Plaintiffs
AND
CHAN THAI LAM
THI THU DANG
Defendants
Catchwords: Practice and procedure - Objection to taxation - Turns on its own facts Legislation: Rules of the Supreme Court 1971 Result: Objection disallowed
(Page 2)
Representation: Counsel:
Plaintiffs : In Person
Defendants : Mr HM Reynoldson
Solicitors:
Plaintiffs : Not applicable
Defendants : Corser & Corser
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 DEPUTY REGISTRAR HEWITT: On 3 February 2012 the court made the following:
1. The plaintiff's chamber summons dated 6 October 2011 be dismissed. 2. The appeal dated 24/10/2011 be dismissed. 3. The plaintiff's have leave to discontinue the action with costs and the action is herby discontinued. 4. The plaintiffs pay the defendants costs of: (a) the direction hearing on the 21/10/2011, previously reserved pursuant to order 3 made by Registrar Kingsley on 21/10/2011 (b) the plaintiff's notice of appeal dated 24/11/2011, including the costs reserved pursuant to order 5 made by Acting Principle Registrar Kingsley on 25/11/2011 (c) the defendants chamber summons dated 17/11/2011, including the costs reserved pursuant to order 4 made by Acting Principle Registrar Kingsley on 25/11/2011. To be taxed. 5. There be no order as to the costs of the plaintiff's chamber summons dated 6/10/2011. 6. The plaintiff's pay the balance of the defendant's costs of the action to be taxed. 2 Pursuant to those order the defendant filed a bill of costs for taxation which came before me on 26 February 2013. At the conclusion of the taxation I held open my certificate for objection. Those objections have now been received and they are as follows: (Page 4)
Part II. According to the reserved judgment of Commissioner Gething, the plaintiffs were entitled to a default judgment. Procedures of case management were used by the court to deny such default judgment. The first application for a default judgment was returned to the plaintiffs with a note to apply for a chamber summons. The hearing for this default judgment application was converted into a direction hearing on 21/10/11 in which the plaintiffs were refused to be heard and when they insisted on their right to be heard were evicted from the court room. The plaintiffs then filed an appeal against the decision of the registrar and requested a de novo hearing. Another direction hearing was held on 25/11/11 in which the registrar ordered that the de novo hearing be heard together with an application of the defendants to have the case transferred to the Supreme Court. This last hearing was converted into a special appointment before Commissioner Gething on 17/1/12. Part III. In the special appointment hearing on 17/1/12 the court found that the statement of claim in the Plaintiffs' Writ: AND THE PLAINTIFF CLAIMS: (a) That the Court discharges the Plaintiffs from the guarantee described above was inconsistent with the wording of DCA s 50(1)(bb). DCA s 50(1): Subject to section 51 the Court has the same jurisdiction to hear and determine and may exercise all the powers and authority that the Supreme Court has and may exercise from time to time, in relation to – (bb) an action for specific performance of or for the rectifying, delivering up, or cancelling of any agreement whatever, where the amount in dispute or the value of the property affected is not more than the jurisdictional limit; According to the Australian Oxford Dictionary the verb discharge is equivalent to cancel but according to Commissioner Gething in his reserved judgment, s 50 of the DCA had to be read in a language other than English. He therefore decided that the District Court had no jurisdiction. Part IV. When the court found in favour of the defendant that it did not have jurisdiction it should have applied DCA s 65: DCA s 65: Costs where the Court has no jurisdiction (Page 5)
DCA s 77: District Court may remit to Supreme Court Where it appears to a District Court judge that any action or matter brought before the Court ought from its nature, or magnitude, or by reason of the question of law involved to be heard and determined by the Supreme Court, he may make an order, remitting the action or matter to the Supreme Court. 2.The plaintiffs submit 2a. That a double jurisdiction or parallel jurisdiction/non-jurisdiction or a split jurisdiction in the same case violates the principle of equality of litigants before the law. 2b. That there was nothing before the court that satisfied s 77 of the District Court Act in terms of its requirements as to the special nature or magnitude of the case. 3. The plaintiffs ask registrar again to disallow cost items 1 to 16 as they were denied natural justice and were subject to an abuse of process. The plaintiffs were entitled to a default enquiry but the court ignored the absence of conditionality in two appearances, accepted a defective defence, converted the application for a legitimate (in accordance with established rules, principles and standards) default judgment and an appeal for a de novo default judgment to two direction hearings and a special appointment, gave judgment for the plaintiffs after finding it had no jurisdiction and ignored the requirements of DCA s 77. 4. The plaintiffs rely on RSC O 66 r 1(2); r 3(1); r 5(1)(a); r 211; r 37 and r 40 seeking relief from costs. (Page 6)
3 The basis upon which an objection may be raised against allowances made in taxation is contained in O 66 r 53 of the Rules of the Supreme Court 1971 which is in the following terms: 53. Party dissatisfied with taxation may object and apply for review (1) A party who contends that the taxing officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, or at such earlier time as may, in any case, be fixed by the taxing officer –
(a) deliver to the other party interested in the allowance or disallowance and carry in before the taxing officer, an objection in writing to the allowance or disallowance specifying in the objection by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objections; and (b) thereupon apply to the taxing officer to review the taxation in respect of those items or parts.
(2) Pending the consideration and determination of the objection, the taxing officer may if he thinks fit issue a certificate of taxation for or on account of the remainder or of part of the bill of costs. Any further certificate which ay be necessary shall be issued by the taxing officer after his decision upon the objection. 4 Having read the objections I am unable to discern any part of them which relates to any error said to have been made in the course of the taxation, rather the objections focus on the orders which gave rise to the taxation and the dissatisfaction of the defendant regarding the outcome of the proceeding in which he was involved. 5 To deal specifically with the order and rules of the Supreme Court which have been referred to in support of the objection O 66 r 1(2) refers to the power of the court to deprive a party of unnecessarily or unreasonably incurred costs and has no relevance to this case O 66 r 3(1) refers to the costs of amendments and is irrelevant to the taxation, O 66 r 5(1)(a) refers to the power of the court to order costs against a solicitor for improper and unreasonable or negligent actions or omission and has no bearing on the taxation O 66 r 211 does not exist within the Supreme Court Rules, if the reference was intended to be to r 21(1) it likewise does not exist and if the reference was intended to be to r 2(11) that likewise does not exist. In the event that the reference was intended to be to r 21 that relates to the power of a judge or a taxing officer to make allowance in lieu of the fees of the relevant scale as considered merited in the circumstances and is not relevant to the matters before me (Page 7)
on this objection. Order 66 r 37 relates to a solicitor delaying taxation for impeding the taxation and there is not any suggestion that is applicable to the relevant bill which came before me and O 66 r 40 refers to a party failing to bring in a bill which is likewise is not relevant to the matters before me. 6 In short therefore the objections are a complaint against the orders which were made in the course of the conduct of this case and reflect a dissatisfaction with that course and the outcome. Nothing which is contained in the objections is a proper objection to the taxation as a consequence of which the objection shall be disallowed and I shall sign the certificate in the sum of $7,517.38 that being my calculation of the amount due to the defendant on the taxation.
|