| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SLAMAR -v- GERRARD & ANOR [2003] WADC 105 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 13 MARCH 2003 DELIVERED : 16 MAY 2003 FILE NO/S : CIV 1709 of 1995 BETWEEN : TROY RUDOLPH HERBERT SLAMAR Plaintiff
AND
JOHN WILLIAM GERRARD
LINDA ROSE GERRARD
Defendants
Catchwords: Practice and procedure - Taxation of costs - Objections on taxation - Getting up case - Counsel fee - Turns on its own facts
Legislation: Nil
Result: Objection not allowed
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Representation:
Counsel:
Plaintiff : Mr N J Timoney
Defendants : Mr M T S Rennie
Solicitors:
Plaintiff : Stables Scott
Defendants : Michael Rennie
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 DEPUTY REGISTRAR HEWITT: This matter came before me on 13 March 2003 for taxation of the plaintiff's bill of costs pursuant to the judgment dated and entered 18 July 2002. Subsequent to the taxation the defendants have lodged objections to Items 7 and 10 of the Bill in the following terms.
2 Item 7 of the Bill was getting up for trial including defending a counterclaim and was claimed at $15,000 and allowed at $12,500. The grounds of the objection are as follows: "3. Getting Up (a) the taxing officer erred in principle in allowing $12,500 in that: (i) the plaintiff was unable to provide sufficient detail concerning the nature, type and duration of the work involved in getting up to allow any determination of this item. The plaintiff was only able to characterise the work as initial proofing, obtaining a valuation (which in the end wasn't relied on), obtaining an expert's report etc; ((ii) at the taxation, the plaintiff was unable to identify the number of hours involved in total in getting up let alone the amounts attributable to each item of getting up. The plaintiff was simply only able to refer to the amount of several bills to the plaintiff which, although they may not have comprised all of the bills, did not amount to anywhere near the amount claimed or allowed." 3 Although it is elsewhere stated in the objections that the action was a relatively straightforward one in my view it was factually of some complexity. The plaintiff was an owner of a truck which he used in the conduct of his business. That truck had suffered mechanical failure and had been referred to repairers for the necessary work to be done. Those repairers advised the plaintiff that they were unable to complete the work and therefore the partly disassembled engine and truck were transported to the defendants for the work to be carried out. The work was carried out
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and subsequently when the vehicle was being tested by the first-named of the defendants a steering coupling came loose and the first-named defendant lost control of the truck which entered a culvert and which was damaged beyond economic repair. The counterclaim concerned the defendants' claim for the value of the work which they had carried out on the truck. There therefore were raised a number of issues about whether the defendants should reasonably have supposed the steering to have been disconnected since it appears to be the evidence they did not disconnect it themselves. There was varying evidence concerning whether it was or was not necessary to disconnect the steering in order to remove the engine from the truck for the purpose of working on it. The plaintiff has indicated to me that it spent approximately 40 hours in telephone attendances and attendances on witnesses and investigations into the case. Additionally an articled clerk spent approximately 8.9 hours examining various information held by the Police Department and in particular photographs which were taken by an investigator of the Police Department subsequent to the accident. The case was made somewhat more difficult by the fact that the plaintiff only maintained a rudimentary set of records yet clearly the loss of the vehicle had an impact on the plaintiff's earnings. Various potential witnesses including people who contracted most of the plaintiff's work and his de facto who maintained his books, such as they were, were interviewed. Additionally a mechanic who commenced the job prior to its transfer to the defendants was interviewed. Issues as to the value of the vehicle were investigated and ultimately agreed for the purposes of the trial. In addition it was necessary to consider the reasonableness of the defendants' charges and the proposed counterclaim. Additionally counsel was briefed and there were a number of conferences with counsel. 4 Most but not all of the work was done when the current scales were in operation. In the light of that level of effort I am unable to see that the defendants has by its objection established an error of principle within the meaning of O 66 r 53 of the Rules of the Supreme Court. On reconsidering the matter I am of the view that an allowance of $12,500 is a reasonable allowance for the preparation in this case given the issues involved and the time taken. 5 The next challenge is to my allowance for counsel's fee on brief. That item was claimed at $9,200 from which $2,500 was deducted leaving a balance of $6,700. The terms of the objection are as follows:
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6 I have counsel's account before me in which he indicates something in the vicinity of 20 hours spent mastering the brief and a charge of $2,700 raised for the attendance at the trial on the first day. 7 Although I agreed with the defendants that an allowance of $9,200 was excessive I nonetheless accept that counsel did spend the time he claims to have spent in his account on the work of preparation for the first day of trial. I do not accept that the issues were completely straightforward and consider that the case presented some difficulties from the perspective of counsel owing to the unsatisfactory manner in which the economic loss claim had to be formulated. (I do not intend by that remark to imply that there was anything inadequate in the preparation by the solicitors for the plaintiff but merely that the manner of record keeping of the plaintiff left much to be desired and made that part of the task more difficult and liable to defeat.) 8 Whilst therefore I accept that 20 hours of preparation was probably excessive and a deduction was called for I cannot see that an allowance of $6,700 for mastery of the brief and the first day of trial of a matter on which I consider there was some level of factual complexity and which occupied approximately three and a half days of court time is such to indicate an error of principle. On the information before me the figure
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which I have allowed is a proper reflection of the work reasonably undertaken to prepare the case and I am not inclined to disturb it. 9 For these reasons the defendants' objection to the taxation shall fail and I shall sign the allocator in the sum of $33,909.08 upon the date of issue of these reasons. The time within which the defendant may apply to have this decision reviewed by a judge shall be extended to 28 days from the date of issue of the reasons.
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