Robinson v The Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 [No 2]
[2016] WADC 95
•30 JUNE 2016
ROBINSON -v- THE OWNERS OF REFLECTIONS WATERFRONT APARTMENTS WEST TOWER STRATA PLAN 58085 [No 2] [2016] WADC 95
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 95 | |
| Case No: | CIV:3438/2014 | 24 JUNE 2016 | |
| Coram: | DEPUTY REGISTRAR HEWITT | 30/06/16 | |
| PERTH | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Objections not allowed | ||
| PDF Version |
| Parties: | ELAINE CHRISTINA ROBINSON THE OWNERS OF REFLECTIONS WATERFRONT APARTMENTS WEST TOWER STRATA PLAN 58085 |
Catchwords: | Practice and procedure Objections to taxation Turns on its own facts |
Legislation: | District Court (Fees) Regulations 2002 Item 10 Note 2 |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
THE OWNERS OF REFLECTIONS WATERFRONT APARTMENTS WEST TOWER STRATA PLAN 58085
Defendant
Catchwords:
Practice and procedure - Objections to taxation - Turns on its own facts
Legislation:
District Court (Fees) Regulations 2002 Item 10 Note 2
Result:
Objections not allowed
Representation:
Counsel:
Plaintiff : Mr B F Stokes
Defendant : Ms E L Thuijs
Solicitors:
Plaintiff : Brians Solicitors
Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
1 DEPUTY REGISTRAR HEWITT: This matter proceeded to trial on 30 November – 4 December 2015 and judgment was delivered on 18 March 2016 dismissing the plaintiff's claim and awarding the costs of the action to the defendant. Pursuant to that order the defendant brought in a bill of costs for taxation which came before me on 9 June 2016. The certificate was held open to allow the defendant to bring in objections and those are now before me by way of an objection dated 22 June 2016 and supplementary objection dated 23 June 2016.
2 The first objection relates to me disallowing in total amounts which were claimed as an expert report fee and an expert witness fee for one Peter Munday.
3 The plaintiff's claim related to injuries which she sustained when she fell in an area of common property under the control of the defendant. The allegation to which Mr Munday's proposed evidence was relevant was whether or not it was reasonable for the defendant to have undertaken a more rigorous inspection and cleaning regime in respect of the premises and the common property which forms part of it.
4 The relevant building which was the subject of the strata title was a residential complex and the plaintiff was a unit-holder within the complex. Mr Munday's evidence was intended to establish the normal practice for inspection or cleaning in regard to such a complex and to establish that the steps undertaken by the defendant were appropriate and satisfied the industry norm in regard to buildings of the same type.
5 At the taxation I disallowed Mr Munday's report fee and I disallowed his witness fee in total. My reason for doing so was that the expert opinion given by Mr Munday could not have been accepted in evidence. The reason for reaching that conclusion was the fact that although the witness had some experience in regard to the cleaning and inspection regimes for buildings of a similar kind to that in which the plaintiff was injured he had nonetheless supplemented his opinion by making enquiry of a number of individuals who were not named and whose status was obscure as to the regimes in place in other buildings of a similar kind. The result of that effort by the witness was to make it completely unclear exactly what his opinion was based on and the extent that that it relied on his personal experience and the extent to which he relied on the opinions of others. The basis upon which his opinion was formed would be impossible to test since, as I have mentioned, it was based in large measure on hearsay material from unidentified persons in regard to unidentified buildings which may or may not have borne similarity to that in which the plaintiff was a resident. I took the view that the evidence which Mr Munday proposed to give was objectionable and could not have been properly admitted into evidence and that it would not be fair to impose upon the unsuccessful plaintiff the burden of paying, his report fee and also a witness fee for standby time.
6 In the latter regard Mr Munday was not called as a witness but I do not regard that as being determinative of the defendant's entitlement to the costs. Had I have been of the view that the witness was capable of giving admissible expert evidence the fact that he was not called as a witness would have been determined by whether or not it was reasonable to engage him, not whether he gave evidence. In light of the above reasons I am of the view that the objection for the disallowance of Mr Munday's witness fee and expert report fee was correct and I disallow the objection. The supplementary objection which was brought concerns my allowance of $2,083.01 in relation to the taxing fee on the bill whereas the amount paid by the defendant who filed the bill was $3,496.90. The objection arises from the complete misunderstanding of the basis upon which taxing fees are paid and taxing fees are allowed. Taxing fees are charged according to the total of the bill. The proportion of that payment which is recoverable depends upon the amount at which the bill is taxed. Save for very rare occasions, when a bill is allowed in full, there is always a difference between the amount paid by a taxing party and the amount recovered on the taxing of the bill: District Court (Fees) Regulations 2002 Item 10, Note 2). There is no proper basis for the objection and I disallow it.
7 In light of this decision I propose to sign the allocator in the sum of $78,206.87 that being the total of the bill as taxed. The bill will be signed upon the delivery of this decision.
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