Shire of Katanning v Bride [No 5] - [2014] WASC 470

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SHIRE OF KATANNING -v- BRIDE [No 5] [2014] WASC 470

CORAM: CHANEY J

HEARD: ON THE PAPERS

DELIVERED : 11 DECEMBER 2014

FILE NO/S: CIV 2994 of 2009

BETWEEN: SHIRE OF KATANNING
Plaintiff
AND
EDWARD JAMES BRIDE
Defendant

Catchwords:

Practice and procedure - Review of taxation - Review of taxation by judge - Whether there was an error in principle - Relating error in principle to item in bill of costs

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Summons dismissed

Category: B

Representation:

Counsel:

Plaintiff: No appearance
Defendant: No appearance

Solicitors:

Plaintiff: McLeods Barristers & Solicitors
Defendant: In person

Cases referred to in judgment:

Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Bride v The Shire of Katanning [2013] WASCA 154
Glew v Shire of Greenough (No 2) [2008] WASCA 75
Shire of Katanning v Bride (No 2) [2011] WASC 248
Shire of Katanning v Bride (No 4) [2014] WASC 343

CHANEY J: Judgment on the plaintiff's claim in this matter was given by Allanson J on 20 September 2011.[1] When the plaintiff's claim was heard, the counterclaim by Mr Bride had been held over at the direction of Martin CJ pending the hearing of the substantive matter. Mr Bride appealed against Allanson J's decision, and the appeal was ultimately dismissed.[2] Mr Bride then sought to amend and to pursue his counterclaim, but the plaintiff applied to strike out the counterclaim or, alternatively, for summary judgment in its favour on the counterclaim. I heard that matter on 4 June 2014, and delivered a decision dismissing the counterclaim on 26 September 2014.[3]
[1] Shire of Katanning v Bride (No 2) [2011] WASC 248.
[2] Bride v The Shire of Katanning [2013] WASCA 154.
[3] Shire of Katanning v Bride (No 4) [2014] WASC 343.
The plaintiff lodged a bill of costs for taxation on 9 June 2014, and the bill came on for taxation on 10 September 2014. A letter from the taxing Registrar's associate dated 7 October 2014 records that the Registrar taxed the bill save for six items which the Registrar reserved for further consideration. The letter of 7 October 2014 contained the Registrar's determination in relation to those six items and specified the total amount of the bill which was allowed having regard to the various allowances made at the taxation and on the reserved items. The letter concluded by indicating that any objections to taxation must be filed within 14 days of the date of that letter.
In the meantime, Mr Bride issued a summons on 23 September 2014 seeking the following orders:
1.that the Defendant be given leave to appeal the orders of Registrar Dixon out of time made by the registrar [sic] on 10 September 2014, in relation to;
2.the Registrar's Error of Principle in refusing to refer the matter to a judge on the basis of New Evidence discovered by the Defendant in the plaintiffs [sic] taxing account; and
3.the New Evidence related to the Plaintiff's Counsel, Mr P Wittkuhn, having interviewed the witness, Charles Fear, having attempted to obtain a witness statement form [sic] Mr Fear that was factually incorrect, and Mr Wittkuhn then knowingly arguing at Trial matters that were knowingly Misleading and Untenable [sic].
That application came before the Master on 9 October 2014. After hearing from Mr Bride, the Master dismissed the application with costs.
On 24 October 2014, Mr Bride lodged a further summons seeking the following orders:
1.The Registrar made an error in principle in refusing to refer the Plaintiffs [sic] "Bill of Costs", filed 9 June 2014 to a Judge when there was evidence that the Plaintiffs [sic] lawyer had misled the Trial Judge as to the situation of Mortgagee in Possession of Lot 29 Creek St, Katanning. [sic]
2.The Registrar made an error in principle in failing to recognise the fact that P Wittkuhn for the Plaintiff had conducted a 3 day trial before Allanson J when he knew after interviewing the witness C Fear before the trial that the argument put by P Wittkuhn to the Trial Judge relating to the Commonwealth Bank of Australia being a Mortgagee in Possession of Lot 29 Creek St, Katanning were both false and untenable.
3.The Registrar made an error in principle in refusing the Defendants [sic] request for P Wittkuhn to hand up and produce all papers in Mr Wittkuhn's possession relating to the interview of the witness C Fear, prior to trial.
4.The Registrar made an error in principle in not using the Shire of Katanning, rate notice NUMBER 25.07.2014 ‑ a184 as the yardstick for taxing of the Plaintiffs [sic] costs.
It is that summons which now falls for determination.
The basis upon which Mr Bride seeks the orders set out in the summons is not revealed on the face of the summons. The reference to 'error in principle' suggests that Mr Bride seeks to invoke the provisions of O 66 r 55 of the Rules of the Supreme Court 1971 (WA) which provides for a review of taxation by a judge. Order 66 r 55 must be read together with O 66 r 53 and r 54 as they contain the preconditions to an application being made under r 55. Rule 53 and r 54 provide:
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 may be necessary shall be issued by the taxing officer after his decision upon the objections.
54.Review of taxation by taxing officer
(1)Upon an application under rule 53 to review the taxation, the taxing officer shall reconsider and review his taxation in relation to the objections, and he may, if he thinks fit, receive further evidence in respect of the objections.
(2)If so required by a party, the taxing officer shall state in his certificate of taxation or by reference to the objection, the ground and reason of his decision on the objection, and any special facts or circumstances relating to his decision.
(3)The taxing officer may tax the costs of the objections and add them to or deduct them from, any sum payable by or to a party to the taxation.
(4)Except as provided by this rule, the taxing officer shall not, after a certificate of taxation is signed, review his taxation or amend his certificate, except to correct a clerical or manifest error before payment or process issued for recovery of the costs.
(5)If a party fails to appear on the taxation the taxing officer may, upon an application in that behalf made in writing within 7 days, set aside or vary his certificate of taxation on such terms as he thinks just.
Order 66 r 55 provides:
55.Review of taxation by judge
(1)If a party is dissatisfied with the certificate of the taxing officer as to any item or part of an item objected to under rule 53 of this Order, he may, within 14 days from the date of the certificate, or such other time as the Court, or the taxing officer at the time he signs his certificate, allows, apply to a judge in chambers for an order to review the taxation as to that item or part of an item.
(2)The judge, if of opinion that the taxing officer has made an error in principle, may thereupon make such order to rectify the error as the judge thinks just.
(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.
Given that the Master had dismissed Mr Bride's earlier summons which, in substance, sought orders to the same effect as those the subject of the summons now under consideration, the parties were invited to make submissions as to why the summons should not be dismissed. Both Mr Bride and the plaintiff responded to the request.
There are several reasons why Mr Bride's summons should be dismissed. The first is that it amounts to an abuse of process, a summons in substantially the same terms having been dismissed shortly before the present summons was issued. Mr Bride contended that his earlier summons was dismissed on the basis that it was premature because the taxation was not then complete. Having listened to the recording of the hearing before the Master, I do not agree that that was the basis upon which the summons was dismissed. It is true that the plaintiff contended, in a letter to the Court of 26 September 2014, that Mr Bride's application was premature, and the Master referred to that contention at the commencement of the hearing. However, he then heard from Mr Bride as to the substance of his application and concluded that it had no substance and should be dismissed. It was the Master's conclusion that the application lacked any merit that was the basis upon which he dismissed the application, not because it was premature.
The second reason that the summons should be dismissed is that the matters described as 'errors of principle' are not matters capable of affecting the Registrar's assessment of costs. Precisely what consequences Mr Bride considers flow from the matters referred to in the orders is not clear. The matters would appear to go to either an argument as to the merits of the case or possibly to matters of professional conduct. The proceedings are now complete and the decision of Allanson J affirmed on appeal is not susceptible to further challenge. Questions of professional conduct are not relevant to the assessment of costs payable under the costs order. The matters raised are not capable of amounting to errors of principle in relation to the taxation of costs.
A third reason is that the procedures contemplated in r 53 to r 55 of O 66 are concerned with dealing with 'an error in principle in allowing or disallowing any item or part of an item in a bill of costs'. Mr Bride has not sought to relate what are said to be errors of principle to any items within the bill of costs. Furthermore, the review of taxation by a judge under O 66 r 55 is engaged only in relation to items objected to under O 66 r 53. In the absence of any objection under O 66 r 53 having been made to the Registrar, no power arises under O 66 r 55 for a review by a judge.[4]
[4] Glew v Shire of Greenough (No 2) [2008] WASCA 75 [17] ‑ [18] (Beech J); Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621, 626 (Kitto J).
For those reasons, the summons filed by Mr Bride on 24 October 2014 should be dismissed.