| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ROBLETT -v- PIERONI [2005] WADC 215 CORAM : DEPUTY REGISTRAR HARMAN HEARD : NOT APPLICABLE DELIVERED : 18 NOVEMBER 2005 FILE NO/S : CIV 2011 of 2004 BETWEEN : MARIE JOANNE CHRISTELLE ROBLETT Plaintiff
AND
JUSTIN ANTHONY PIERONI
Defendant
Catchwords: Practice - Practice under the Rules of the Supreme Court of Western Australia - Order 66 r 42, O 53, O 54, O 55 - Scope for review of taxation of quantum before a taxing officer Legislation: Nil Result: Objection not within the scope of O 66 r 53(1)
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Representation: Counsel:
Plaintiff : Mr P Kakulas
Defendant : Mr A Adam
Solicitors:
Plaintiff : Kakulas & Kakulas
Defendant : Dibbs Barker Gosling
Case(s) referred to in judgment(s):
Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Bray v Ryan [1999] WADC 66
Carrazzo v Weyman [1944] VLR 207
Clark, Tait & Company & Anor v Federal Commissioner of Taxation (1931) 47 CLR 142
Dwyer and McCoughtry v Schrick [1947] VLR 342
Dwyer v The National Trustees Executors and Agency Co. of Australasia (No 3) [1940] VLR 366
Foreman v E & L Metcalfe Pty Ltd, unreported; DCt of WA; Library No 3935; 14 February 1994
Griffiths v Delron Cleaning Pty Ltd [2003] WADC 123
Grigoletto v Myer Properties WA Limited, unreported; DCt of WA; Library No 3667; 31 March 1993
House v The Life Insurance Company of Australia Ltd [1930] VLR 165
Jack v Huntingford [2004] WADC 172
Joyce v Hutchison (2000) 23 SR (WA) 248
McCahon v Eltin Limited, unreported; DCt of WA; Library No D 980275; 30 September 1998
Russo v Russo [1953] VLR 57
Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178
Union Bank of Manchester Limited v Grundy [1924] 1KB 833
Western Australian Bank v The Royal Insurance Company [1908] 7 CLR 385
White v Altrincham Urban District Council [1936] 1 All ER 923
Case(s) also cited:
Nil
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1 DEPUTY REGISTRAR HARMAN: Under the terms of judgment, to the extent permitted by the rules the plaintiff was entitled to recover the reasonable cost of the services necessarily provided for the purposes of the action. Those costs were taxed and the defendant has filed a notice whereby he objects to the sum allowed in taxation of item 8 in the plaintiff's bill of costs, being item 16 in the Supreme Court costs scale, getting up case for trial, on the basis that:
2 Each of the parties filed submissions. By reference to a decision to that effect in Jack v Huntingford [2004] WADC 172 the plaintiff contends that the objection does not come within the scope of r 53(1) of the Rules Supreme Court of Western Australia. The defendant submits that the decision in Jack is contrary to authority by which a taxing officer is bound. Rule 54(1) provides jurisdiction for a taxing officer to review determinations made at taxation. It would engage with an objection made within the scope provided by r 53(1). Rule 53(1) is as follows: "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, … deliver … an objection in writing to the allowance or disallowance specifying in the objection … the items or parts of items objected to and the grounds and reasons for the objections … " 3 The parties' submissions set a task no different to that which emerges in any context where a delegate is called upon to exercise jurisdiction. Australian Coal and Shale Employees' Federation & Anor v Commonwealth & Ors (1953) 94 CLR 621 stands for the proposition that the delegate's first task is to satisfy himself that he has the authority to act. Union Bank of Manchester Limited v Grundy [1924] 1KB 833 is to the same effect: absent provision for review of taxation there is no basis upon which to do so. 4 In 1967 r 53 replaced the scope of objection provided by r 34. That rule was as follows: (Page 4)
"The application to review shall be supported by an affidavit stating the facts on which the application is made and also showing that objection was made before the Taxing Officer to the allowance or disallowance of the charges in question." 5 The effect of the introduction of r 53(1) was to specify that the expression "allowance or disallowance of the charges in question" would relate to an error made in determining an "item or part of an item." Rule 53(1) operates after the application of the test of recovery to a claim made in a bill of costs. In accordance with r 42(1), such a claim would have been constituted by reference to a process or service designated as an item in the scale and the fee claimed for that service. In applying the test of recovery the taxing officer would first have determined whether the item would be allowed in whole or in part and then, to the extent that the claim for the item had been allowed, have determined the value of the service. Considered in the context in which it was expressed and takes effect, r 53(1) establishes scope for review of determinations made under the first limb of the test of recovery: the necessity of the provision of a service or its parts. 6 At taxation the only contest raised in relation to the claim was the quantum of the fee recoverable. Accordingly, it was not assessed under the first limb of the test of recovery, only the second. Whatever may be made of the terms of the defendant's objection, the issue to be considered is whether in light of what transpired at the taxation it could express an error reviewable under r 54(1). 7 The defendant's submission draws upon five cited cases each of which was determined under r 55. Unlike r 53(1), which confers limited jurisdiction, r 55 expresses the scope of jurisdiction for a judge to review taxation. It is as follows: (Page 5)
(3) The certificate of the Taxing Officer is final and conclusive as to all matters, which have not been objected to in accordance with these Rules." 8 In the first of those cases, Grigoletto v Myer Properties WA Limited,unreported;DCt of WA; Library No 3667; 31 March 1993, Heenan CJDC canvassed the issue of jurisdiction to review in the following passage: "This is an application to review some items in a bill of costs taxed by a deputy registrar. The costs had been granted to the plaintiff when she was awarded damages of $139,378.66 in an action which I tried almost a year ago, the hearing of which occupied four days. Generally speaking, the decision of the taxing officer is final. It will prevail on review unless, as Order 66 Rule 55 of the Rules of the Supreme Court, 1971 provides, the judge is of opinion that the officer has made an error in principle. A very wide discretion is left to the taxing officer. Further, as a judge is not nearly as competent to say what is the proper amount to be allowed, only in a very exceptional case will the taxing officer's decision as to quantum be open to review by a judge. In or about 1960 the rules in England were amended so as to provide expressly for review by a judge on a question of quantum only. But for many years before then it was accepted that a judge might interfere with the taxing officer's decision as to quantum if an error of principle were involved. As recently as 1955, in Theocharides v Joannou [1955] All ER 61 at p 620 Harman J acknowledged that a decision of a taxing officer on a question of quantum might be overruled, albeit only in exceptional circumstances, and contemplated that 'a decision as to quantum alone might be so outrageous as to speak for itself and show that the taxing officer did not exercise his discretion in a proper manner.' In Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621,after commencing (at p628) that 'the authorities as a whole … do not establish as an absolute proposition that a judge will never review a taxing officer's decision on a question of quantum only' Kitto J referred to the leading English cases and went on to observe 'and so it has been held several times in Victoria, where the view has (Page 6)
been accepted for many years, that a taxing officer's decision on quantum will be corrected if the judge concludes that 'he has clearly made a mistake'. Having cited six Victorian cases in support of that observation, Kitto J adopted the summary of the law on this matter which appears in Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178 at p183 and in the course of which Jordan CJ said that 'an error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed.' The attitude adopted in the above cases is consistent with the manner in which the appellate jurisdiction traditionally is exercised in respect of decisions involving discretionary judgment (e.g. see House v The King (1936) 499 at pp504, 505). Its application to the review of taxation enables the judge to perform the very desirable function of correcting a decision which is manifestly wrong. Until recently it was the attitude adopted in this court (see, for example, the judgment of Healy J in Phillips v Robertson (1989) 6 SR (WA) 125, the unreported judgment of O'Dea J in Thomas v Bazkowski, (sic) Action No 1808 of 1989 and Dean v Welch, District Court Action No 949 of 1989, both delivered on 11 September 1989 and of Hammond J, also in Dean v Welch, delivered on 23 November 1989) and, I believe, in the Supreme Court. In particular, it was accepted that a taxing officer's decision as to quantum was open to review by a judge if the judge was of opinion that an error in principle had occurred in determining how much should be allowed. However, in Cameron v Bennett (Action No 4292 of 1988) an unreported decision delivered on 19 January 1990, his Honour Judge Barlow decided that the role of the judge is restricted to reviewing the allowance or disallowance of an item or part of an item and that the judge is not empowered to determine how much should be allowed in respect of an item or part of an item. In doing so his Honour agreed with the decision of Registrar Watt of the Supreme Court in Brandon Valley Pty Ltd v Brinklow,(Action No 1906 of 1983) an unreported decision delivered on 24 July 1987. Both decisions were based on an interpretation of Order 66 Rules 53, 54 and 55, the rules that provide for review by a taxing officer in the first instance and then by a judge. The rules make it clear that in each case the purpose of the review is to correct any error in principle 'in (Page 7)
allowing or disallowing any item or part of an item' in a bill of costs. In the course of his reasons in Brandon Valley Pty Ltd v Brinklow Registrar Watt said: The words 'allowing' and 'disallowing' suggest to me an air of totality and do not conjure up visions of a mere reduction. One could possibly read into the rule the notion of a reduction when the words are read in conjunction with the words 'or part of any item'. For example if an item in a bill is a claim for $250.00 for giving discovery and the Taxing Officer cuts it to $200.00 this could be construed as allowing or disallowing part of an item, but in my opinion this is a contorted construction for three reasons:
1. As I had already said the words 'allow' and 'disallow' in their natural meaning have an air of totality about them. 2. To 'allow part of an item' in the sense suggested is the mirror image of to 'disallow part of an item' and to put the two concepts together in the one sentence is an unusual way in which to use language. 3. If reduction was intended why was not the word 'reduction' used?
There is an alternative meaning to the words, which to me fits much more naturally. The contents of the Fourth Schedule to the rules are referred to in the rules themselves as items, many of which have parts, and the items and parts of items in a bill of costs relate to items and part items in the Schedule. Indeed rule 42(1)(a) directly links the two. So that the reference to 'part of an item in a bill of costs' can be construed as a reference to, for example, one of the parts of Item 14, or 6 or 20, and '… allowing or disallowing … part of an item in a bill of costs …' is not a reference to reducing '… part of an item …'. In the course of his reasons in Cameron v Bennett Barlow J said: In my opinion the word "item" in O 66 and in particular in rules 53, 54 and 55 refers to a matter or service detailed in the Fourth Schedule as distinct from the fee prescribed for that (Page 8)
matter or service. I agree that rule 42 lends support for this interpretation. In that rule professional charges are provided for separately from the items to which they relate. I agree with the comments of Registrar Watt in the Brandon Valley Pty Ltd case where he noted that the words 'allowing' and 'disallowing' suggested 'an air of totality and do not conjure up visions of a mere reduction'. In each of those two decisions the matter is discussed, if I may so (sic), in a thoughtful and helpful way. The logic of the interpretation which the learned Registrar and his Honour have adopted is clear, but in my opinion their conclusion is wrong. They have given insufficient weight to the fact that, as each acknowledged in his reasons, the rules which we are required to apply are for all intents and purposes identical with those which applied until 1960 in England an until even more recently in Victoria. Bearing in mind the earlier authorities to which I have referred, I have no hesitation in concluding that a taxing officer's decision as to quantum still is open to review if it has resulted from an error in principle." 9 His Honour's rejection of the conclusion that r 55 did not provide jurisdiction to review quantum determinations does not follow upon a process of interpretation of its provisions but rather the suggestion that the scope for review of taxation that it expressed would be opened to the same processes that had generated practice to the contrary in the foreign jurisdictions. Perhaps more to the point, as when r 55 was introduced, rules expressed in similar terms had operated in the foreign jurisdictions for at least 30 years, that r 55 imported practice that had developed in those jurisdictions. At some point in any analysis along those lines a difficulty would emerge in the form of the amendment to the English rule in or about 1960. That amendment expressly introduced scope for review as to quantum. If by the introduction of r 55 in 1967 the court had intended to convey scope for review as to quantum I would suggest that the more direct approach to the task of recording that intention revealed by the English amendment would have had greater appeal. 10 The other fundamental difficulty with such a proposition is that despite the fact that the relevant rules in the foreign jurisdictions were actually identical; practice in each was different, such that the development of Victorian practice actually displaced the operation of English practice in the State of Victoria. Omitting the references to time (Page 9)
constraints specified in the Victorian version, r 27(41), which prior to 1960 applied in each foreign jurisdiction, was as follows: "Any party who may be dissatisfied with the certificate or allocatur of the taxing officer, as to any item or part of item which may have been objected to as aforesaid, may apply to the judge at chambers for an order to review the taxation as to the same item or part of an item, and the Judge may thereupon make such order as the Judge may think just; but the certificate or allocatur of the taxing officer shall be final and conclusive as to all matters which shall not have been objected to in the manner aforesaid." 11 Prior to the advent of Victorian practice, in each jurisdiction it was accepted that r 27(41) did not provide for review as to quantum. That result reflected the limit expressed in the rule. Despite the terms of the rule, practice operated so as to provide review of a very exceptional quantum determination. Arguably such practice was a facet of practice of broader application, along the lines that despite any procedural impediment, in an exceptional case, a determination that is judicial in nature will be open to the process of appeal. Upon the emergence of the Victorian practice for review as to quantum, in Australia that practice was characterised as English practice. Victorian practice portrayed the rule as expressing scope for review of quantum upon a finding of mistake. Although in some cases in which Victorian practice was canvassed reference is made to r 27(41), I am not aware of any attempt to reconcile it with the terms of the rule. I note that in Dwyer v The National Trustees Executors and Agency Co. of Australasia (No 3) [1940] VLR 366 Lowe J may have expressed his opinion of the significance of the limitation "item or part of an item" by omitting it without comment from his recitation of the rule. 12 The difference between the practices in their operation was that English practice operated as an exception to the rule, whereas Victorian practice ignored the limitation expressed in the rule. In contrast with Victorian practice, which would provide scope for review on what may be characterised as no more than a difference of opinion, English practice was more difficult to engage. Heenan CJDC does not identify which practice he considered that it had been intended that r 55 would adopt. With the greatest respect, in my opinion the basis of his Honour's rejection of the conclusion that r 55 did not provide jurisdiction to review quantum determinations is revealed to be not only tenuous but also clouded by uncertainty. (Page 10)
13 Furthermore, although his Honour does no more than suggest that r 55 is identical to the foreign rules it is appropriate to record that there is a difference. Unlike the foreign rule, r 55 expresses the test of objection at r 55(2). The structure of r 55 reveals that the test would have application in the context expressed by r 55(1). There could be no doubt that his Honour's rejection of the conclusion was founded upon practice. The fact that the test is expressed reveals the intention to engage the realm of interpretation, not that of practice. 14 When it was introduced in 1967, r 55 maintained the expression of the test of error introduced in the 1953 version of the Order as follows: "32 The court may, where it appears that the Taxing Officer has made an error in principle, refer the matter back with such directions as the Court thinks fit, or may deal with the matter itself. 33 A party who contends that the Taxing Officer has made an error in principle may within 7 days of the signing of the allocatur request the Taxing Officer to furnish his reasons for the fixation of the costs and may bring such reasons before a Judge on motion to review the decision of the Taxing Officer. 34 The application to review shall be supported by an affidavit stating the facts on which the application is made and also showing that objection was made before the Taxing Officer to the allowance or disallowance of the charges in question." 15 The change imposed upon the process of review by the introduction of r 55 was that the subject of an application to review be a determination made in relation to an item or part of an item. As a matter of interpretation, because that term was introduced into the rule by way of qualification it should be taken to represent the expression of intention that it would have some meaning. That intention could only have been to limit the scope within which the rule would have effect. The fact that Victorian practice ignored that limitation would not speak to its adoption. To adopt his Honour's proposition, it would be open to conclude that it had been intended that r 55(1) would not admit review as to quantum, the result that stood in each foreign jurisdiction prior to the emergence of Victorian practice. In my opinion it is regard for the context in which r 55(1) takes effect that would determine whether the term "item or part of (Page 11)
an item objected to under Rule 53" reveals an intention to confine the scope for review. It is difficult to discern how the introduction of what objectively must have been intended to be a constraint on review could suggest the intention to either provide or maintain scope for review as to quantum. 16 A further consideration that would weigh against his Honour's proposition is that a feature of the context into which r 55 was introduced distinguished it from the context in which the foreign rules applied. Fourteen years prior to the introduction of r 55, r 35(39) had been repealed. In the foreign jurisdictions over the period canvassed by the passage that I have cited from Grigoletto, r 27(41) and that rule (in those jurisdictions r 27(38)) had co-existed. It was as follows: "As to all fees or allowances which are discretionary, the same are, unless otherwise provided, to be allowed at the discretion of the taxing officer, who, in the exercise of such discretion, is to take into consideration the other fees and allowances to the solicitor and counsel, if any, in respect of the work to which any such allowance applies … " 17 At taxation that rule was as significant as the terms of any test of recovery; it was the touchstone for the process of taxation. The effect of its repeal was that a taxing officer was given scope to treat each part of each claim made in a bill independently of determinations made in relation to similar parts of others. At the point of review that rule had an impact at two points. Firstly it provided fertile ground for disputation as to whether or not a particular determination of the taxing officer fell within its scope (thereby importing differing degrees of immunity from review) and whether it revealed that appropriate or sufficient consideration had been given to common features of different services under each limb of a test of recovery. The second was that it provided for the prospect that the taxing officer would disallow an item or part of an item expressed in one claim but compensate for such disallowance in whole or in part by a quantum determination made under another. Thereby scope was generated within which the distinction between the results of the application of the different limbs of the test of recovery would be obscured. Perhaps I will use the case to which his Honour referred in order to introduce English practice, at the point at which it had been before the taxing officer, as an illustration. In Theocharides v Joannou [1955] All ER 615, the disallowance of items that related to the instructions to counsel had either wholly or in part been compensated for by adjustments made to quantum elsewhere. In exercising jurisdiction to (Page 12)
review, Harman J found that it had been wrong to lump items together that ought to have been distinguished. Upon rectifying the disallowances he then went to some trouble to disentangle the taxing officer's compensating quantum determinations. It is evident from judicial comment in each of the foreign jurisdictions that challenges to the prescription of review as to quantum expressed in r 27(41) engaged r 27(38). 18 Until the provision of jurisdiction to review quantum in 1960, in England the terms of r 27(41) demanded that consideration be given to whether the determination the subject of objection was either as to the item or quantum. I have previously contemplated that English practice was a facet of practice of broader application. I would simply record at this point that r 27(38) would have provided a structure by which the same result would emerge. Because the Victorian practice did not distinguish reviewable errors according to whether a mistake had been made under the first or second limb of the test of recovery, its emergence might be portrayed as being at least attributable to the impact of r 27(38). 19 By the time of the introduction of r 55 any impact of r 35(39) would have evaporated long ago. A taxing officer would not then have been making the sort of determinations that would have mingled considerations that related to the necessity of the provision of services with those that bore upon their value. There would have then been no reason to consider that the term "item or part of an item objected to under r 53" should not be accorded its obvious meaning. Accordingly in addition to the reservations that I have already expressed, the context into which r 55 was introduced had long been freed of the complications engendered by r 35(39). 20 As to the bearing that the passage that I have quoted from Grigoletto had on the determinations actually made in that case, the only conclusion that his Honour reached is expressed at the end of the last paragraph of the passage. It is that a taxing officer's decision as to quantum was open to review if it had resulted from an error in principle. That expression of scope to review is silent as to the need for satisfaction of the test "an item or part of an item objected to under r 53". At the commencement of the passage his Honour describes the matters before him as no more than "items in a bill of costs". On his Honour's characterisation of three of those matters, the issue that they brought before him could only have been as to quantum. 21 I accept that because his Honour did not consider whether the subject of each of those objections was as to an item or part of an item, his (Page 13)
dealings with those objections would suggest adoption of Victorian practice. That result would also be consistent with the fact that he had not articulated any process of interpretation of r 55(1). Although a logical application of r 55 would first involve consideration of r 55(1), it might be considered that the results of his Honour's application of the test of error to items 2, 15 and 23 were such that he would not have been required to make such an assessment. I might add that not being a delegate and not having been called upon to consider whether any of the objections fell within the scope of r 55(1), his Honour may not have considered that he was obliged to do so. Ultimately it is not possible to reach a conclusion as to whether in applying the test expressed at r 55(2) to those items, his Honour's silence as to the impact of r 55(1) has anything to say as to its significance. It appears to me that his Honour's dealing with each of those items was inconclusive. 22 His Honour's dealings with items 16 and 17 reveal that the issue brought before him by the relevant objections was the disallowance of parts of those items. Each such objection would have been squarely within the scope of r 55(1). Upon finding that the disallowance of part of item 16 satisfied the test expressed in r 55(2), his Honour engaged in the process of rectification expressed at r 55(2). But for the fact that his Honour did not mention that the objections fell within the scope of r 55(1), he dealt with those items in accordance with r 55. It only remains to be considered whether the course of his dealing with those items revealed practice. I perceive that scope for recognition of practice would only emerge if it were considered that the scope of the rectification provided under r 55(2) was limited so as to exclude the provision of a remedy: that is, that an error may be rectified but not its immediate consequence. If as a taxing officer I were confronted by similar circumstances, I would have no difficulty in recognising that it was intended that r 54(1) would provide a remedy. In reaching that conclusion I would not need to have recourse to practice, simply to a process of interpretation. However, to borrow a phrase from a passage that I will later quote, I would probably not be zealous to enquire as to whether such a result would be better attributed to either practice or interpretation. The important consideration for present purposes is that it would not extend the scope of the rule. 23 If his Honour's dealings with items 16 and 17 reveals the meaning of the conclusion expressed at the end of the passage then, but for the fact that it omits any reference to the error being within the scope provided by r 55(1), I would have no difficulty with its terms. I might add that I suspect that Registrar Watt and Barlow DCJ would have adopted a similar (Page 14)
position. According to what his Honour had cited from their reasons it appears to me that they had each been considering the validity of an objection as to quantum, not the provision of a remedy in the event that r 55 had been satisfied. 24 In my opinion to the extent that the conclusion expressed at the end of the passage stands for any more than is represented by his Honour's determinations in relation to items 16 and 17, it is either inconclusive or obiter but remains worthy of consideration for the purposes of evaluating the scope of r 53(1). 25 In Theocharides the determination to which the English practice was applied related to the instructions on the main brief. The applicant's contention was that the amount determined was less than that claimed. Harman J stated: "What are exceptional circumstances is a matter on which it is very difficult to decide, but I do not think that the mere fact that, in the present case, a fee of six hundred guineas was asked and a fee of only two hundred guineas was allowed can possibly be an exceptional circumstance. The difference is merely one of quantum and is not so outrageous as to speak for itself and show that the taxing officer did not exercise his discretion in a proper manner." 26 The context in which his Honour considered the practice would hardly establish the case as being significant. Apart from the taxing officer's inappropriate recourse to r 27(38), reference is made to the impact of practice in White v Altrincham Urban District Council [1936] 1 All ER 923. In that case consideration was given to the scope of review provided by s 118 of the County Courts Act 1888 (UK) which was as follows: "All costs and charges between party and party shall be taxed by the registrar of the court in which such costs and charges were incurred, but his taxation may be reviewed by a judge on the application of either party … " 27 The Court of Appeal found that because the subject under consideration was review of taxation, it was appropriate to consider that r 27(41) would limit the scope of review. (Page 15)
28 After citing that rule Scott LJ continued: "It might be thought that this language gave the judge an unfettered discretion to reconsider anything whatever decided by the taxing master, but this would be a wholly wrong interpretation … " 29 Greene LJ stated that: "The rule that the decision of a taxing officer on questions of quantum ought not to be overruled by a judge on a review of taxation has long been established. This rule, in my opinion, applies generally to taxation in the county court as it applies to taxation in the High Court, and it is only in exceptional circumstances (which do not exist in the present case) that a decision of the taxing officer on a question of quantum should be overruled." 30 The case is a striking illustration of the operation of practice. It accounted for the importation of the English rule and practice into a context in which there was no limit on review as to quantum whatsoever with the result that, but for a very exceptional case, review of quantum would be excluded. That result may be recognised as according with practice adopted generally by courts of appeal: as much as the scope of review or appeal may properly be limited, a court may choose to entertain what is considered to be an exceptional case. It is not difficult to appreciate that there would be good reason to justify each part of that result. The case for a delegate engaging practice in order to enhance the limited scope for review is a little more difficult to discern. 31 Heenan CJDC next referred to the Victorian practice. It emerged in the State of Victoria simultaneously with rejection of the English practice. It was introduced by his Honour by reference to Australian Coal and Shale Employees' Federation. The relevant remarks in that case were so far removed from the issue then before the court that perhaps the only observation that I will make is that Kitto J himself recognised that they were obiter. As I have already indicated, the significance of that case is that the taxing officer had failed to appreciate the limitations on jurisdiction expressed in a rule. 32 The first of the six Victorian cases referred to by Heenan CJDC as having been cited by Kitto J was In re Melbourne Parking Station Ltd [1929] VLR 5. In my opinion there are two significant yet largely (Page 16)
unrecognised features of that case. The first is his Honour's finding of mistake expressed at p 6 of the report as follows: " … the taxation in such a case as the present is certainly not more strict than in the case of a party and party taxation, but that, on the contrary, the discretion of the Taxing Officer is to be exercised more favourably to the solicitor than in a party and party taxation." 33 It is evident that Mann J considered that the taxing officer had followed: " … a long-standing practice to deal with solicitor and client costs in a case of this kind on a stricter basis than is the case when dealing with the taxation of a bill of costs when client and solicitor are the only interested parties." 34 The justification for that more favourable treatment that his Honour considered to be appropriate being that: " … it was a taxation of a kind in which the burden upon the solicitor is greater than in ordinary cases between solicitor and client, because the liquidator is under a duty to the creditors to protect their interests." 35 The mistake identified at the point of the taxing officer's choice of test of recovery was fundamental to his Honour's assessment of the case. It had resulted in a harsher regime of recovery than should have been applied. 36 The second significant yet largely unrecognised feature of the case is that in determining the quantum of counsel fee, recourse had been had by the taxing officer to r 27(38). That fact emerges from what Mann J described as the third matter relied upon by the taxing officer; that sufficient had been recovered already by way of counsel fees for settling affidavits. The context provided by such recourse gives meaning to parts of the often-cited passage from the report: "It has been urged upon me by Mr Hamer that this item raises merely a question of quantum, and it is said that in such a case that the discretion of the taxing master is conclusive. The Court has always been, and I think always will be, desirous of giving the greatest weight in such cases to the opinion of the Taxing Master; but an appeal is given from that opinion, and it is the (Page 17)
duty of the Court imposed on it by the Act and the rules to review such opinion and to give such decision as it seems just. But it is said that duty is now, by judicial decision, limited to cases in which the Taxing Master has proceeded upon a wrong principle, and his discretion is conclusive in a case of this kind, unless such a wrong principle is disclosed. There is no doubt that some of the Judges have used language in the past which is very absolute, but it seems to me that the Court has to be on its guard the tyranny of phrases of this kind. I am not very zealous to enquire as to whether a wrong principle has been followed by the Taxing Master or not, but if I think he has clearly made a mistake it is my duty to rectify the mistake and to express my own opinion on it." 37 At that time in the State of Victoria either r 27(38) or r 27(41) would have rendered a quantum determination beyond review in other than an exceptional case. To the extent that the passage responds to Mr Hamer's proposition that r 27(38) would confer immunity, Mann J determined that r 27(38) had limited operation: it would not confer immunity upon a taxing officer's error in the choice of a test of recovery. My reading of the passage is that apart from the reference to an appeal being provided by the rules and the last phrase it speaks to r 27(38). Consistent with his Honour's finding of fundamental error and that reading of the passage, it is not surprising that his Honour did not consider that he needed to trouble himself with the term "item or part of an item" expressed in r 27(41). By any measure the mistaken choice of a test of recovery would provide a basis for review. 38 I might add that had he not ruled out the necessity for consideration of whether a wrong principle had been followed, Mann J's analysis might have proceeded along similar lines to that subsequently expressed in Russo v Russo [1953] VLR 57. In that case Sholl J analysed the distinctions open under r 27(38), the significance of In re Melbourne Parking Station Ltd and the cases that followed it and the then current state of the practice. I will avoid the trouble of undertaking a review of that analysis and draw upon LL Oliver "Law of Costs" at p 191 as follows: "In this case (Russo) a distinction was drawn between cases where the Taxing Master has a discretion and those where he has not, and it was held that in the former the Judge on review should proceed according to the principles laid down in House v The King in respect of an appeal from the exercise of (Page 18)
the discretion of a Judge of first instance, while in the latter he should give effect to his own opinion, bearing in mind the opinion of the Taxing Master based on his special experience." 39 The promotion of In re Melbourne Parking Station as being the founding case for Victorian practice is evident in each of the balance of the Victorian cases referred to by Kitto J in Australian Coal and Shale Employees' Federation. They illustrate the point that once the finding of mistake became the focus of the exercise of recognising jurisdiction to review, the terms of r 27(41) were ignored. That effect was such that in three of those cases, House v The Life Insurance Company of Australia Ltd [1930] VLR 165, Carrazzo v Weyman [1944] VLR 207 and Russo v Russo, the court purported to consider the objection under Victorian practice yet in the first two, objection had been taken to disallowance and in Russo to allowance where the objector sought disallowance. In each of those three cases the objections would have fallen squarely within the scope of review provided by the rule without the need for recourse to practice. 40 In the other two cases cited by Kitto J, Dwyer and McCoughtry v Schrick [1947] VLR 342 the test of mistake was actually applied to quantum determinations. In Dwyer,in a context where the taxing officer had awarded 35 guineas, Lowe J stated that "I think that fifty guineas was a proper fee." In McCoughtry,in a context in where the taxing officer had awarded 20 guineas Herring J stated that "I think I should hold that in this case thirty guineas is not unreasonable and should not have been disallowed." As a matter of interest, the mistakes revealed upon those results might be contrasted with the determination made by the judge in the case before the Court of Appeal in White. I suspect that judged by English practice in neither case would the taxing officer's decision have qualified as being very exceptional. I have already canvassed Dwyer as being the case in which Lowe J went to some trouble to quote the rule but omitted the limitation "item or part of an item". 41 Before leaving those Victorian cases I will quote the passage from Oliver that precedes my prior quotation from that text. "In Russo v Russo, Sholl J., in discussing the abovementioned Victorian cases, said that, in the more recent of the decisions which purported to follow the principle laid down by Mann, J in the Melbourne Parking Station case, there was a tendency 'to emphasise those of Mann, J's words which referred to the duty of the Court to make up its own mind on the review rather than (Page 19)
those which specified the condition upon which it should do so, and that consequentially there was a tendency so to condense or re-phrase the statement of that condition as to render the Taxing Master's decisions more easily open to examination and reversal than those of other tribunals exercising a discretion'." 42 Both Kitto J and Heenan CJDC in Grigoletto refer to Schweppes' Ltd v Archer [1934] 34 SR (NSW) 178 in support of the operation of practice. In that case the issue raised upon review was that the travel component of a witness fee had been disallowed. Jordan CJ referred to Western Australian Bank v The Royal Insurance Company [1908] 7 CLR 385 and Clark, Tait & Company & Anor v The Federal Commissioner of Taxation [1931] 47 CLR 142. As was the case in Schweppes' Ltd, each of those cases dealt with objections as to the allowance or disallowance of items or their parts and would have been squarely within the scope of review provided by the rule. 43 In summary, of the cases canvassed by Heenan CJDC in Grigoletto, only Dwyer and McCoughtry reveal conclusively any departure from the terms of the rule. Each does so in the absence of any analysis of either In re Melbourne Parking Station or the rule. 44 If I were to conduct what I consider would only be an exercise in a process of interpretation of r 53(1) by testing the result of the adoption of the English practice I would integrate the term "very exceptional decision as to quantum" into the expression "error in principle in the allowance or disallowance of an item or part of an item". Bearing in mind the reason for the emergence of the practice it is not surprising that the only sensible reading would emerge would be upon a complete substitution or if at least the words "in the allowance or disallowance of an item or part of an item" were ignored. If I were to consider the same exercise in order to consider the impact of the Victorian practice, because the focus is on mistake, the process of integration would be more straightforward; it would simply be a matter of ignoring the expression "in the allowance or disallowance of an item or part of an item". 45 Although r 53 and r 55 arguably contain equivalent provisions, in my opinion the contextual differences in which they are both expressed and take effect could not be ignored. In considering the limitation expressed in r 53(1) the task before me is more straightforward than seeking to discern the effect of the reference to r 53 in r 55(1). None of the cases cited by Heenan CJDC in Grigoletto as supporting either English or Victorian practice lend support for the proposition that the practice ought (Page 20)
to apply so as to extend the scope for review before a taxing officer. They have nothing at all to say either about the jurisdiction of a taxing officer to review or the process of interpretation of a rule under which such jurisdiction is conferred upon a delegate. I would suggest that upon any part of the above analysis there is good reason to deny the proposition that a taxing officer should unquestioningly draw equivalence between a former foreign rule that expresses scope for judicial review and r 53(1). 46 It is perhaps implicit in the defendant's submission that the equivalence expressed in r 53 and r 55 would somehow justify the same recourse to practice by a taxing officer as may be considered to be open to a judge. In my opinion, at that point, the more fundamental consideration is whether it would be appropriate for a taxing officer to contemplate having recourse to an interpretation of r 55 in circumstances where r 53(1) may be characterised as wanting. Although Australian Coal and Shale Employees' Federation is not exactly on point, the ratio of the case suggests to me that a taxing officer does not have the luxury of casting around for jurisdiction. In considering the scope of limited delegated power the only inference open for a delegate is that it was intended that the instrument of delegation would have effect according to its terms. To the extent that practice is beyond the scope of a power conferred by a rule it is properly identified as being no more than that. 47 The second case to which the defendant refers is McCahon v Eltin Limited,unreported; DCt of WA; Library No D980275; 30 September 1998. In that case LA Jackson DCJ stated that in considering the issue of jurisdiction the taxing officer was bound to follow Grigoletto and had erred in departing from it. His Honour contemplated that Grigoletto had determined that in an appropriate case a quantum determination would be open to review in accordance with the rules. It is a matter of what to make of the qualification "appropriate case". It is interesting that his Honour concluded that the rules would provide for such review, it is my impression of the passage that I have quoted from Grigoletto that Heenan CJDC contemplated that practice that would provide jurisdiction. Otherwise I do not understand that Grigoletto determined any more than that the error in principle made by the taxing officer in disallowing parts of item 16 had opened quantum to review. In following the same path a taxing officer would not be following Grigoletto, a case determined under r 55 but rather, acting in accordance with r 53. Before moving on, with the greatest respect to his Honour, I do not understand either all of his criticism of the taxing officer or all of his analysis of the rules. I have no difficulty with his conclusion that the term "item" used in r 53(1) refers to an item in a bill, the rule says as much. (Page 21)
48 At the same part of the report his Honour canvassed the impact that reading Grigoletto had upon Barlow DCJ as Barlow DCJ recorded in Foreman v E & L Metcalfe Pty Ltd, unreported; DCt of WA; Library No 3935; 14 February 1994 as follows: "The question as to whether the power to review is restricted to the allowance or disallowance of an item or part of an item, as distinct from the quantum allowed for an item or part of item, was again considered by Heenan CJDC in Grigoletto v Myer Properties WA Ltd (Action No 5132/1989) unreported, delivered on 31 March 1993.His Honour after reviewing the authorities concluded that the taxing officer's decision as to quantum was open to review, if the decision resulted from an error in principle. After considering this decision and the authorities referred to by Heenan CJDC, (Theocharides v Joannou (1955) 1 All ER 615; Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621; Schweppes' Ltd v Archer (1934) SR (NSW) 179) I have concluded that my decision in Cameron v Bennett cannot be supported. In light of those authorities I accept, that a taxing officer's decision on quantum is subject to review, if it can be demonstrated the taxing officer has made an error in principle in determining how much should be allowed." 49 Foreman was a case that related to the recovery of costs generated by the engagement of unqualified staff of a practitioner in the process of the provision of services to a party. The issue the subject of objection was expressed by his Honour as being the disallowance of the cost of services rendered by unqualified persons in the employ of the plaintiff's solicitors. Like so many of the cases that I have canvassed on that assessment it would have fallen squarely within the scope of r 55. Having made that observation even as obiter comment the change in position recorded by his Honour is significant. His Honour's decision in Cameron had been founded upon a process of interpretation of r 55(1). In Foreman he does not specify the fault in that process. Although it is obvious that practice canvassed in Grigoletto somehow accounted for change, his Honour does not explain how that result was reached. 50 A feature of the passage that I have quoted is that after identifying the conclusion expressed by Heenan CJDC in Grigoletto that "a taxing officer's decision as to quantum is still open to review if it has resulted from an error in principle", without explanation for doing so Barlow DCJ went some distance further and specified the application of Victorian (Page 22)
practice substituting for "mistake" the test "error in principle". My fundamental difficulty with the adoption of the Victorian practice is that it would ignore r 55(1), the very provision that Barlow DCJ analysed in Cameron. In Foreman Barlow DCJ does not identify the mechanism of interpretation by which that result would be achieved. 51 I have already canvassed the significant difficulties that I have with the prospect that Grigoletto binds a taxing officer assessing the scope of jurisdiction provided by r 53. There is nothing in McCahon to support the proposition that Grigoletto binds a taxing officer. 52 The defendant also refers to Bray v Ryan [1999] WADC 66. In that case consideration is given to the relationship between r 53 and r 55 at least to the extent that a submission made by one of the parties was outlined in the reasons for the judgment. However any connection between the rules was not canvassed, the Commissioner simply referred to passages from Schweppes' Ltd and Grigoletto and adopted the conclusion expressed in Grigoletto. 53 The next case referred to by the defendant is Joyce v Hutchison (2000) 23 SR (WA) 248. In that case Groves DCJ purported to deal with the issue of the jurisdiction of the taxing officer to review quantum determinations but in arriving at the conclusion that such jurisdiction exists, simply referred to Grigoletto and the impact that it had upon Barlow DCJ in Foreman. No indication is provided as to how those cases would have any impact upon r 53(1) and the process of interpretation to be conducted by the delegate. 54 The last is Griffiths v Delron Cleaning Pty Ltd [2003] WADC 123. In that case reference was made to r 55 and the remedial power of a judge as had been expressed in Joyce. 55 Of the last three cases relied upon by the defendant, only Bray and Joyce mention the issue of the jurisdiction of a taxing officer. The first provides no useful comment and the second in the absence of any analysis, no more than that the result is as expressed in Grigoletto. 56 In order to deal with the submissions made by the parties I have been required to be zealous to find some basis to establish a wider scope of jurisdiction to review than Heenan CJDC described as a logical reading of the rules. It is relatively easy to come to the conclusion that it would not be found other than by reference to practice. For a delegate evaluating the scope of a power conferred by a rule it is also relatively easy to conclude that regardless of the justification for practice, it is not open for him to (Page 23)
find that practice would extend jurisdiction provided by the rule. It is undeniable that judges have considered that the scope for judicial review is broader than that expressed on a literal, contextual or logical interpretation of r 55. I infer that some judges have considered that accordingly consideration is properly given to whether a taxing officer's authority is similarly enhanced. I have no difficulty with that proposition and note the comment of LA Jackson DCJ in McCahon that the remedy may lie in amendment of the rule. In my opinion there being no authority by which I am bound and the rule being found to be wanting, for me to take a similar approach to that adopted by the taxing officer in Australian Coal and Shale Employees' Federation would be as wrong as Kitto J found to be the case. Simply put, unlike the position in which a judge may find himself my first task is to consider whether I have any role to play. 57 The second submission made by the defendant in answer to the issue of jurisdiction raised by the plaintiff is that: "A request for a review under Order 66 rule 53 of the Rules of the Supreme Court 1971 is the gateway to a review by a judge under Order 66 rule 55. Therefore, if a judge may review quantum allowed on taxation, a fortiori, a taxing officer may review a quantum assessment on an application for review under Order 66 rule 53." 58 I accept no more than that a judge may make a determination contrary to that of a taxing officer. It seems to me that the defendant otherwise contends that the gateway has no gate. There is a gate and it is closed. It is the task of the objecting party to satisfy the condition that it be opened. I would add that I recognise that the contextual differences in which the rules are expressed and take effect could give rise to some tension in determining how different results ought to be accommodated. Whether to either countenance or reach different conclusions as to the scope for review before a taxing officer and a judge would be desirable is a consideration that could not be taken into account by a delegate undertaking the task of determining the proper scope of his jurisdiction. It follows that the fact that a finding of want of jurisdiction by a taxing officer may somehow preclude review under r 55 could not be of any significance for the taxing officer. 59 It is then a matter of determining whether the terms of the defendant's objection articulate an error in principle in the allowance of the item or its component parts. The easy answer is to look to what (Page 24)
transpired at the taxation. As I have recorded, the only determination made by the taxing officer was as to the reasonable cost of the service getting up case for trial. There was neither allowance nor disallowance of that service or any of its component parts. In my opinion the context provided by the taxation of the claim could not provide any basis for a valid objection under r 53(1). 60 Going beyond the terms of objection the defendant has also lodged submissions that relate to the objection in the following terms: " … 2. In assessing an allowance for getting up, the taxing officer must consider the nature of the matter, its complexity, the amount in issue and the amount and nature of the work performed. (Craig & Ors -v- Troy & Ors [2000] WASC 74 at [37]) 3. In doing so, the taxing officer may have regard to schedules provided. (Craig & Ors -v- Troy & Ors [2000] WASC 74 at [38]) 4. In the Defendant's submission, there was insufficient evidence before the learned Deputy Registrar to enable him properly to assess the amount and nature of the work performed. 5. The Plaintiff was entitled to elect, and elected, not to submit schedules in support of her claim for getting up.
6. Instead, at the taxation of costs, the counsel gave a short oral summary of the work done in getting up. 7. In the Defendant's submission, this did not: (a) form a proper basis on which the learned Deputy Registrar could have assessed the reasonableness of the amount claimed; or (b) provide a basis on which to conclude that this matter was other than the ordinary run of motor vehicle personal injury actions in which liability is admitted. 8. The Plaintiff bore the onus of showing the reasonableness of her claim. The fact that the costs had been incurred, or that (Page 25)
the Defendant led no evidence of unreasonableness, does not alter this onus. (Slingsby -v- Attorney-General (1918) P 236, at 243, followed in Wentworth -v- Wentworth, unreported; NSW Ct of App; No CA 40374/95; 12 February 1996 at [63])
9. In the Defendant's submission, the Plaintiff failed to satisfy this onus." 61 But for pars 2, 4 and the first sentence in 8, I have no difficulty with each of those submissions. 62 As to par 2, I would make two observations in relation to the term "allow". The first is that I did not allow the quantum for the service getting up case for trial; rather I assessed a reasonable amount for the provision of that service. The second is that the relevant passage cited by the defendant makes no mention of that term. But for those observations I have no difficulty with the thrust of the defendant's submission. 63 As to par 4, to the extent that there was insufficient information before me to enable me to assess what was reasonable for the service, the plaintiff failed to recover to the extent that recovery may otherwise have been available. 64 As to par 8, whilst it may be considered that the taxing party carries the onus of showing the reasonableness of the claim, perhaps the more important consideration is that the taxing party carries the onus of persuasion. I suspect that from the perspective of the taxing officer undertaking the task of assessing what is reasonable there is nothing special about the value that a taxing party ascribes to the service provided. Ultimately regardless of the quantum of the fee claimed the determination is that of the taxing officer. The fact that that determination was recorded on the bill by reference to the claim is itself of no consequence. That is simply the practice in recording the result of taxation. 65 As it may be the case that the defendant will seek review before a judge I will record what transpired at the taxation. From the viewpoint of a taxing officer the procedure that applied at taxation was unremarkable. The parties had the opportunity to present their cases as they saw fit. As the defendant has mentioned the onus I will comment that it is for the party who carries the onus of persuasion to go about the task of its discharge as it sees fit. If it chooses to do so without schedules that is a matter of its choosing. I would not like that comment to be interpreted to suggest that a taxing party might be well advised to follow the course of (Page 26)
filing schedules. But for the fact that the terms of the objection refer to the prospect that the beneficial party file schedules, the fact that the plaintiff did not provide schedules would have been unremarkable. Schedules are not necessarily either filed or provided. That said, I note that it has been a practice of long standing in the Supreme Court and one at least commended to practitioners in this Court that schedules be filed for an action that has proceeded by way of originating summons. I understand that in recent times that in the Supreme Court that practice has been extended to cover the range of proceedings. Taxing officers in this court have not encouraged that extension of practice. If anything can be drawn from taxations conducted in this Court it is that in actions commenced by writ parties are discouraged from filing schedules. 66 As much as I have indicated that the failure to provide schedules on the part of the plaintiff is unremarkable, so too was the manner in which the plaintiff sought to discharge the onus at the taxation. As I recall, the plaintiff's solicitor provided a fairly detailed oral explanation of the issues that the plaintiff confronted in prosecuting her claim. Judging from my experience, the notes that I have made on the bill are at roughly the usual length or slightly more than the usual length that I would generate in the process of taxing such a claim. Of course the fact that I make notes is neither here nor there. To me they indicate that there was nothing remarkable about the manner in which the taxation of claim proceeded. 67 Frankly, I do not recall whether the defendant provided any information or made submissions. I did not jot down any note. My assessment of my practice is that it would not be surprising that I did not make any record in the event that any such information would simply have duplicated the jotting process in which I had already engaged. I suspect that I probably never jot down what amounts to a submission. 68 I would not pretend to have a detailed recollection of the time devoted to the delivery of submissions but my memory is that the plaintiff's submissions endured over a period of 10-12 minutes. That may be an understatement. Again I have not detailed recollection but I suspect it was the case that I was sufficiently satisfied in relation to the information provided that I did not put any particular questions to the plaintiff in order to enhance my understanding of the submissions that had been provided. I would add that in my experience the performance of the plaintiff's solicitor in the context of the taxation proceeds along a fairly standard line. It follows a chronology, canvasses the detail of the differences in medical opinion, refers to the breadth of medical opinion, canvasses the mechanical steps taken in pursuing evidence and refers to (Page 27)
the terms of a schedule of heads of damages that has been filed. It is my recollection that in this case the plaintiff's solicitor followed his usual practice. Accordingly, while I accept that the defendant is entitled to describe the plaintiff's solicitor address as a "short oral summary of the work done in getting up" ultimately it is a matter of reflecting upon whether and to what extent there may be scope for a perception that anything more was required of a beneficial party. 69 I do not have any recollection of the period of time devoted to the taxation of the whole of the bill but I note that the parties agreed that $500 would constitute reasonable remuneration. I suspect that the total amount of time devoted to the taxation of the particular claim including any observations that I made and the submissions of the defendant would have been at least 20 minutes, perhaps 30 minutes. I suspect that I would not necessarily agree with the defendant's assertion as to the plaintiff's submissions being short. I imagine that it was the case that by the time the plaintiff's submissions were concluded I had heard enough from the plaintiff in order to make an assessment of what was reasonable for the provision of the service. 70 It is my overview of the submissions that the defendant's case appears to be along the lines that the determination was made in the absence of a sufficient case being put by the plaintiff. The determination made was on the basis of the extent to which I had been satisfied that the service had been provided. To the extent that I may not have been so satisfied then conceivably by some measure the plaintiff failed. |