| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SMARGIASSI & ANOR -v- NOUVELLE HOMES PTY LTD [2004] WADC 192 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 16 AUGUST 2004 DELIVERED : 24 SEPTEMBER 2004 FILE NO/S : CIV 2613 of 2003 BETWEEN : GEORGE SMARGIASSI MALGORZATA SMARGIASSI
Plaintiffs
AND
NOUVELLE HOMES PTY LTD (ABN 39 009 370 889)
Defendant
Catchwords: Practice - Western Australia - Review of taxation - turns on its own facts
Legislation: Nil
Result: Objection not allowed
(Page 2)
Representation:
Counsel:
Plaintiffs : Mr M Paterson
Defendant : Ms D Stable
Solicitors:
Plaintiffs : Michael Paterson & Associates
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 DEPUTY REGISTRAR HEWITT: On 16 August 2004 the defendant's bill of costs for taxation pursuant to an order dated 16 June 2004 was listed before me for taxation. The certificate was kept open to allow the defendant the opportunity to lodge objections and they were brought in by letter dated 25 August 2004. This is my decision on those objections.
2 The first objection is to the allowance for item 2 of the bill. That item concerned an application in chambers for a stay of proceedings and the sum of $4800 was claimed which was reduced to $1800. The objection is as follows: "Number 2 (item 23): Proceedings in chambers 1. I understand that the basis upon which this item was reduced at taxation that you did not consider that preparation for the hearing should have taken any more than five hours. The allowance was based upon allowing five hours at a senior practitioner's rate for preparation and one hour for hearing. 2. Such an allowance is not adequate and does not recognise that the following necessary work was performed in preparing for the hearing:
2.1 Preparation of Geoffrey William Hart's affidavit, including attendances on Mr Hart; 2.2 Research carried out in order to draft the Defendant's list of authorities. 2.3 Drafting the Defendant's list of authorities; 2.4 Drafting the Defendant's outline of submissions; and 2.5 Solicitor's necessary preparation for the hearing.
3. A reasonable allowance is around eight hours. 4. The Defendant's bill of costs sought $4,800 for this item, however in light of your comments at taxation and the above arguments, the Defendant now seeks an allowance for this item in the sum of $2,500."
(Page 4)
3 The right to object is contained in o 66 r 53 of the Rules of the Supreme Court which refer to objections on the grounds of an error in principle in allowing and disallowing any item or part of an item.
4 In fact this objection is as to quantum rather than any identified error of principle, however the authorities have established that where an allowance is so low that no taxing officer acting on proper principles could have reached such a figure then an error of principle is established. 5 The chamber summons concerned an application by the defendant for a stay of proceedings on the basis that an arbitration proceeding had been commenced pursuant to an arbitration clause contained within the contract. The defendant relied on the terms on of the contract, the document said to have commenced the arbitration proceeding and the Commercial Arbitration Act. A summary of argument was prepared and a list of authorities was prepared and the matter was argued before the court. The objection seems to concede that the amount of $4800 originally claimed was excessive and seeks in lieu of that the original amount the sum of $2500. 6 The right of parties to a contract containing arbitration clauses to stay proceedings to ensure those clauses are given effect is what I regard as a reasonably mainstream aspect of law, certainly nothing that I would regard as out of the ordinary or difficult or unusual. As a consequence I take the view that only a relatively small amount of research in respect in the preparation of the case would be allowable since the basic propositions of law should be well known and well understood by a competent practitioner practicing in the District Court. It is suggested within the objection that I made an allowance based on five hours preparation by senior practitioner and one hour for the hearing. Given my observations of the nature of the relevant law I unpersuaded that such an allowance was wrong. Furthermore, I am unpersuaded that such an allowance represents an error in principle which should enliven the jurisdiction to review. As a consequence the first of the objections falls away. The next objection relates to the notice of appeal and is as follows:
(Page 5)
6. The allowance under the Scale for drafting of the Notice of Appeal reflects the time necessarily spent on such considerations, however your allowance of only $100 (which under the Scale is less than half an hour of a senior practitioner's time) could only reflect time spent drafting the document itself. 7. There should be at least one hour allowed for consideration of whether to appeal and on what grounds, plus the allowance for drafting the Notice. 8. The Defendant's bill of costs sought $580 for this item, however in light of your comments at taxation and the above arguments, the Defendant now seeks an allowance for this item in the sum of $441." 7 The Notice of Appeal merely identified the order complained of and sought that it be set-aside and the orders originally sought in the summons made to replace it. The document was entirely uncomplex and straightforward. The time taken to prepare the notices has not been recorded but I am invited by the objection to consider the amount time which would have been taken to consider whether or not to appeal and to take instructions on that point. The allowance I have made roughly equates to half an hour of a senior practitioner's time and given the simple nature of the notice itself containing as it does no hint of the grounds of appeal and in the absence of any information to establish whether and if so how much time was spent considering whether or not to appeal and taking instructions on the point I consider that an allowance of approximately half an hour is reasonable. Presumably council who prepared and argued the original chamber summons had a view of the merits of the application which would have translated into a view on the merits of the proposed appeal. Further research or work would not have been required save to obtain the clients instructions. That would have been a process that could have accomplished in a relatively short telephone call. Therefore I am persuaded that the amount allowed is wrong and I am equally unpersuaded that the amount allowed demonstrates and error of principle. The next item of objection is as follows:
(Page 6)
"Number 9 (item 4): Counsel fee on hearing 9. The appeal before the District Court was by way of hearing de novo. It required the Defendant to present its case again in its entirety. 10. The allowance under this item should therefore at least be the same as the allowance under item 23 (number 2 on the Defendant's bill). 11. The fact that the Defendant was unsuccessful at first instance meant that the Defendant could not simply present an identical case on appeal, necessitating further preparation by the Defendant and reconsideration of its arguments. 12. The allowance for this item should at least equal the allowance under item 2 ($1,800) on the basis that the appeal was a hearing de novo and required the Defendant to present its case again in its entirety. 13. The Defendant's bill of costs sought $2,000 for this item and the Defendant maintains that this is an appropriate allowance, comprised as follows:
13.1 To reflect that at least the same amount of work was required to present the appeal as was required at first instance an allowance of $1,800 to accord with the previous allowance under item 23; 13.2 A further allowance of $200 (representing less than one hour of a senior practitioner's time) for time spent giving further consideration to the Defendant's arguments on the basis that the Defendant could not simply restate the same case as presented at first instance.
8 The amount claimed for counsel fee on hearing was $2000. From that I deducted a $1000 and it is against that allowance that complaint is made. The first point made is that the hearing was by way of hearing de novo and the defendant was required to present its case again in its entirety. In my view it is necessary to assess what work was reasonable for counsel to undertake in order to present the appeal. Since the hearing was a hearing de novo precisely the same arguments as were prepared for
(Page 7)
and presented at the original hearing would equally have been useful in the appeal. The fact that the hearing was a hearing de novo in my view means that the case was simpler not harder since it was not necessary to establish an error on the part of the registrar hearing the matter but to simply to persuade the judge hearing the appeal to a different view from that reached by the registrar. It is said that the allowance should be the same as was allowed for the original hearing but I am unable to agree with that proposition. The allowance for the original hearing required the preparation of the application, preparation of the supporting affidavits and such research as was necessary into the relevant law. That work did not need to be duplicated and the savings should in my view be reflected in the allowance made. 9 The next point made is the fact that the defendant was unsuccessful at first instance necessitated further preparation by the defendant in reconsideration of its arguments. In my view there is no validity in any of those propositions. From what I can see of the case the defendant did present the same case before the judge as was presented to the registrar. As to the other grounds of objections they appear to me to duplicate matters with which I have dealt previously namely that the hearing at first instance should bear little resemblance to the allowance made at the hearing of the appeal. The appeal took 45 minutes to argue and I have allowed something in the order of two hours preparations by a senior practitioner. To the extent that the initial arguments presented at the hearing needed to be refined and to the extent that counsel needed to prepare further I think that an adequate basis for the allowance. The allowance for counsel fee will therefore remain unchanged. 10 The final item concerned attending taxation which was disallowed on the first bill because of the failure by the defendant to achieve an amount which was offered by the plaintiff way of cost in a Calderbank offer. It is not contended that disallowance was an error in principle and it therefore flows that the objection is included to permit me to reconsider the disallowance of the costs of the taxation in the event that any of the earlier grounds raised in these objections find favour. Since they have not, it is not necessary for me to further deal with the last of the items of the objection. 11 The whole of the objections having been disallowed I now turn to the costs of the objections. The objections were argued before me and occupied approximately one hour. The plaintiff's solicitor nominated a figure of $341 as being his cost on attending and arguing the objections that representing the actual time which was taken by him in the course of
(Page 8)
the hearing. I think that a proper basis to allow the costs and the formal orders which I shall make will be that the objections will be disallowed and the defendant pay the plaintiff's costs of the objections fixed in the sum of $341 which shall be deducted from the amount of the taxed bill. I shall sign my certificate upon the issue of these reasons.
|