Smith by his next friend Ronald Kevin Smith v Hanrahan
[2007] WADC 129
•30 JULY 2007
SMITH by his next friend RONALD KEVIN SMITH -v- HANRAHAN [2007] WADC 129
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 129 | |
| Case No: | CIV:1650/2003 | 23 FEBRUARY 2007 | |
| Coram: | MCCANN DCJ | 30/07/07 | |
| PERTH | |||
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Taxing officer's rulings upheld | ||
| PDF Version |
| Parties: | JOHN PETER PAUL SMITH by his next friend RONALD KEVIN SMITH MARK ALSTON HANRAHAN |
Catchwords: | Practice and procedure Costs Review of taxation of costs Pre-trial conferences Whether conferences before and afterwards fall within scale item 23 Whether item 23 scale allowance is a maximum hourly rate Whether travel costs are recoverable Application for leave to compromise Whether costs of affidavit in support were justifiable |
Legislation: | Guardianship and Administration Act, s 64(1) Legal Practitioners (Supreme Court) Contentious Business Determination 2004 Rules of the Supreme Court, O 66 r 11(2) and (4), r 18, r 43, r 48, r 53(1), r 54(1), r 55 |
Case References: | Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271 Roblett v Pieroni [2005] WADC 215 Smith by his next friend Ronald Kevin Smith v Hanrahan [2006] WADC 20 Sosa v Carter [1978] WAR 123 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MARK ALSTON HANRAHAN
Defendant
Catchwords:
Practice and procedure - Costs - Review of taxation of costs - Pre-trial conferences - Whether conferences before and afterwards fall within scale item 23 - Whether item 23 scale allowance is a maximum hourly rate - Whether travel costs are recoverable - Application for leave to compromise - Whether costs of affidavit in support were justifiable
Legislation:
Guardianship and Administration Act, s 64(1)
Legal Practitioners (Supreme Court) Contentious Business Determination 2004
(Page 2)
Rules of the Supreme Court, O 66 r 11(2) and (4), r 18, r 43, r 48, r 53(1), r 54(1), r 55
Result:
Application dismissed
Taxing officer's rulings upheld
Representation:
Counsel:
Plaintiff : Mr C L Phillips
Defendant : Mr P Sheavyn
Solicitors:
Plaintiff : Chris Phillips
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271
Roblett v Pieroni [2005] WADC 215
Smith by his next friend Ronald Kevin Smith v Hanrahan [2006] WADC 20
Sosa v Carter [1978] WAR 123
(Page 3)
1 MCCANN DCJ: I have before me an application by the plaintiff pursuant to O 66, r 55(1) of the Rules of the Supreme Court 1971 for an order to review the taxation of a Deputy Registrar in respect of certain items in the plaintiff's bill of costs. A brief history of this matter follows:
(i) The plaintiff's action arose from a traffic accident on the Old Coast Road at Eaton near Bunbury on 21 January 1998. The plaintiff suffered severe and irreversible brain injuries. On 16 June 2000 his next friend in this action was appointed his administrator pursuant to an Administration order made under s 64(1) of the Guardianship and Administration Act 1990.
(ii) Settlement in relation to the issue of liability (including contributory negligence) was achieved after an informal conference between the parties in April 2005. A settlement in relation to quantum was achieved after another informal conference on 19 May 2005. The settlement was subject to the approval of the Court and the resolution of an issue (which was not settled) concerning the damages that should be awarded to the plaintiff for administration, management and investment fees and charges incurred or charged by the Public Trustee in respect of the plaintiff's protective trust. The plaintiff's application for leave to compromise his claim was filed on 27 June 2005 and was supported by an affidavit which annexed numerous documents obtained from the WA Police Service's file, medical reports, witness statements, correspondence between the parties and three opinions of independent counsel.
(iii) On 1 July 2005 her Honour Judge French approved the settlement of the plaintiff's claim and gave liberty to apply for a determination of the damages payable in respect of the Public Trustee's fees and charges. That matter was heard by myself and judgment was delivered on 24 February 2006 whereby the plaintiff was awarded damages in the sum of $48,533 (Smith by his next friend Ronald Kevin Smith v Hanrahan [2006] WADC 20).
(iv) The plaintiff's application for orders in relation to the costs of the proceedings was heard by myself on 12 April 2006 and judgment was delivered on 18 May 2006 ([2006] WADC 74]). Inter alia, orders were made that the defendant pay the plaintiff's costs of the action including independent counsel's fees to be taxed and certain special costs orders were made.
(v) The plaintiff's bill of costs was taxed by a Deputy Registrar on 8 November 2006. The plaintiff lodged written objections to the
- learned Taxing Officer's determinations in respect of items 13, 14, 15, 17 and 18 of the bill of costs. The Taxing Officer reviewed his decision in relation to those items and on 5 January 2007 delivered written reasons ([2007] WADC 1) whereby each objection was dismissed.
- (vi) By chamber summons issued on 2 February 2007 the plaintiff applied for orders that the Taxing Officer's certificate of taxation in respect of items 14, 15, 17 and 18 be set aside and in lieu thereof a certificate of taxation be issued for certain amounts claimed in the chamber summons which reflected the amounts originally claimed by the plaintiff in his bill of costs.
Principles in relation to review of taxation by a Judge
2 Pursuant to O 66, r 53(1) of the Rules of the Supreme Court 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" object in writing to the decision whereupon the Taxing Officer is required to review the taxation in respect of those items or parts. Pursuant to O 66 r 54(1), the Taxing Officer is required to "reconsider and review his taxation in relation to the objections".
3 Order 66, r 55 provides as follows:
"Taxation may be reviewed by a Judge
55(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, 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 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."
4 I note that the plaintiff's application for judicial review pursuant to r 55 was not filed within 14 days of the Taxing Officer's decision.
(Page 5)
- However, no objection was taken by the defendant and I have power to extend the time if required. I shall return to this aspect in due course.
5 It is clear from r 53 and r 55 that a Taxing Officer's certificate can only be subject to review to the extent that the Taxing Officer made an error of principle in arriving at his decision. A very wide discretion is conferred on the Taxing Officer and his decision as to quantum is final. (See: Seaman: "Civil Procedure in Western Australia" at par 66.55.1 and O 66, r 43).
6 Against this background I turn to consider each of the contentious items in the plaintiff's bill of costs.
Items 13, 14 and 15 – Pre-trial conferences
7 Items 13, 14 and 15 of the plaintiff's bill of costs claimed the sums of $2,166.56, $1,408 and $2,150.50 respectively for "pre-trial conference including solicitor and counsel and travel to Perth by solicitor" on 4 September 2003, 13 April 2005 and 19 May 2005. These items were claimed pursuant to item 23 of the applicable costs scale which is set out in the Legal Practitioners (Supreme Court) Contentious Business Determination 2004 which provides as follows:
"Pretrial, mediation, conferrals, or other conferences
(a) Where required by order of the Court, by the Rules of the Supreme Court or by practice direction; and
(b) Including informal conferences where reasonably held after commencement of proceedings
- per hour … $341."
9 The Taxing Officer approached the taxation of each of items 13, 14 and 15 on the basis that the hourly allowance in item 23 related only to the duration of the pre-trial conference, irrespective of the number of practitioners who attended, and did not allow for time spent travelling to or from the pre-trial conference, or time spent in conference with counsel or client before or after the conference. Accordingly, he taxed off the sums of $1,786.50, $1,078 and $1,525.50 respectively.
(Page 6)
10 The terms of the plaintiff's objection are as follows:
"The item 23 in the Supreme Court scale of costs contemplates reasonable costs for time necessarily spent by both solicitor and counsel (especially in S.C.R. O 70 r 10 cases) and contemplates time necessarily spent prior to and following the party/party conference, with Solicitor and client and necessary travel to the conference in this case by the Solicitor.
The action was begun in Bunbury on the instructions of the Next Friend of the Plaintiff who resides in Bunbury, but had to be transferred to Perth by consent of the parties when it became apparent that a preponderance of expert witnesses to be called in the Trial of the matter were in Perth. Most of the witnesses on liability remained in the South West."
11 Three issues were raised by this objection. First, if two practitioners attended a pre-trial conference whether item 23 contemplated that the stipulated hourly rate applied to each (ie, a maximum of $682 per hour). Second, whether a country practitioner's time spent travelling to a pre-trial conference in Perth was recoverable. Third, whether preparation for the pre-trial conferences and conferences with counsel before and afterwards were allowable under item 23.
12 The learned Taxing Officer dealt with these matters in pars [4] to [15] of his reasons for decision and dismissed the objections for the following reasons:
(i) Pursuant to O 66 r 11(2) a Taxing Officer's discretion is limited by any relevant scale item. Rule 18 provides additional scope for recovery where an item of work is not provided for in a scale but where an analogous item can be identified (par [4]).
(ii) Pursuant to r 11(4) the fees prescribed by any relevant item in a scale cover all work done, whether by solicitor or counsel, in the absence of a special order from the court. Since an order of that kind was not obtained in this case the relevant scale allowance of $341 per hour covered all work performed in relation to the pre-trial conferences irrespective of whether it was performed by counsel, the solicitor, or both (pars [5] and [6]).
(iii) The scale has never made provision for recovery of travel costs. Travel to and from court is a necessity for all practitioners and is, in effect, a practice overhead (par [7]).
(Page 7)
- (iv) Item 23 did not contemplate recovery (under that item) for preparatory work or conferences in relation to the pre-trial conference. The Taxing Officer referred to 'the history associated with the introduction of the pre-trial process' and traced the statutory basis for recovery of the costs of the same. Originally, recovery was permissible under the discretion provided for in r 18 on the basis of an analogy being drawn with the item 'application to chambers', from which it followed that recovery for pre-trial conferences could include preparation. This was given statutory force in item 23A of the 1991 scale in which separate provision was made for recovery of costs of a conference. However, in all successive scales, commencing with the 1996 scale, the reference to preparation associated with a conference was deleted (see pars [8] to [11]).
13 The Taxing Officer concluded:
"The course of amendment to the expression of the relevant scale items reveals that it would not be appropriate to allow recovery for preparation other than under the scale or conceivably by analogy. In the absence of a special order there is no basis upon which a Taxing Officer could allow for recovery by a party of costs of preparation for a pre-trial conference."
- Counsel for the plaintiff did not contend that this historical overview was incorrect in any way.
(v) The Taxing Officer continued to point out (par 12]) that item 23 was one of a number of scale items which contemplated that the relevant service "would be rendered in the presence of the adverse party" who would at "taxation … have the opportunity to make submissions not only as to the time actually spent in the delivery of the service but also the efficiency with which it was provided, whether time had been wasted and the like." He pointed out at ([14]) that recovery had never been allowed for post-conference discussion under item 23 since the introduction of the pre-trial conference process and further expressed the view (par [15]) that the introduction of a scale item (23(b)) for informal conferences made no practical difference.
14 In my opinion no error of principle is disclosed in the abovementioned reasons. The historical review carried out by the learned Taxing Officer discloses that each scale promulgated from 1996 onwards took a consistent approach in respect of the allowance for attending
(Page 8)
- pre-trial conferences which excludes preparation and ancillary conferences with counsel and the client. In my opinion such work is analogous to preparation or a conference with counsel and/or client at any other stage of the proceedings and is properly recoverable under item 16 (getting up case for trial) unless the scale item includes an allowance for preparation (eg, items 10(a) and 19(a)). Advice on evidence and in relation to the conduct of a matter is typically regarded as included in getting up, as is attending conferences with counsel and may also cover work done by counsel in relation to those matters. (See: Seaman at par 66.11.6 citing Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271 at 280 per Malcolm CJ). Rule 18(2)(b) confers a discretion on a Taxing Officer to allow additional sums for necessary consultations and conferences which are not covered by any specific item in the scale. Seaman suggests at par 66.18.2 that special allowances for conferences or consultations with counsel pursuant to O 66 r 18(2)(b) will be "out of the ordinary".
15 I also agree with the learned Taxing Officer's opinion that items such as attending a pre-trial conference contemplate that the taxable work will be done in the presence of the "adverse party". There are a number of similar items in the scale, such as item 10(b) (attending on a reserved judgment in chambers), item 13 (attending at a callover), items 19(e), (f), and (h) and item 22(h) (solicitor and/or clerk attending trial and/or reserved judgment). All of these items contemplate that the work will be performed by a practitioner at a specified rate per hour which is also the case with item 23(a).
16 Furthermore, I agree with the learned Taxing Officer's view that item 23(a) of the scale contemplates that the taxable work will be performed by one practitioner, which is the case with numerous similar items, some of which I mentioned in the previous paragraph. In those instances where the scale contemplates that more than one practitioner may attend to work, such as item 19, separate allowances are made by means of sub-items to cover work performed by different categories of practitioners, such as counsel, solicitor and clerk. In my opinion, it is clear from the scale that where hourly rates are stipulated for particular categories of work that such rate is a maximum in each case and covers the duration of the attendance only. The scale does not dictate to a party who may or must attend on such occasions and the party may be represented and/or assisted by more than one legal practitioner if he or she wishes if appropriate arrangements are made between that party and his or her legal representatives in relation to remuneration. But, the scale itself contemplates that it is appropriate for a party to recover only such amount
(Page 9)
- for a pre-trial conference as is sufficient to remunerate a single senior practitioner, on the basis that a senior practitioner will be suitably qualified to both advise and represent that party.
17 In my opinion the learned Taxing Officer's reasoning in relation to the plaintiff's solicitors travelling costs is also correct. Travelling to and from court is a fact of life for all practitioners and there is no provision for it in any item in the scale. The Taxing Officer correctly pointed out that the cost of such time is a practice overhead. Now, it is true that this is a particularly onerous overhead in the case of practitioners who are not based in the metropolitan area. But, in the absence of a special order the scale contemplates that the cost will not be borne by the unsuccessful party.
Item 17 – Costs of the application for approval of the compromise
18 This item relates to the plaintiff's claim for the costs of the application for the court's approval of the compromise of the action, and also the costs of the assessment of damages. The scale item relied upon by the plaintiff is as follows:
"10. Chambers:
(a) Proceedings in Chambers other than proceedings to which item 11 applies —
two days preparation; one day hearing … $8,679"
- The scale signifies that this work will ordinarily be performed by counsel. The plaintiff claimed an amount in excess of $8,679 on the basis of an agreement between the parties that the limit be disregarded. The plaintiff claimed the sum of $13,334.30, which included preparation for the hearing before myself on 8 September 2005 by the plaintiff's solicitor ($3,120.80) and counsel's fee for the preparation and attendance at the same hearing ($4,400). The Taxing Officer taxed off the sum of $7,034.30 (allowing $6,300) principally on the basis that much of the work performed by the plaintiff's solicitor in relation to the application was unnecessary.
19 The plaintiff's objection to the Taxing Officer's decision is phrased as follows:
"The Affidavit must enclose copies of all the primary documents pertinent to the issue of liability which were or ought to have been taken into account by Counsel."
(Page 10)
- This objection arose from the plaintiff's perception that the Taxing Officer's assessment of this item was based upon a finding that the affidavit in support of the application for leave to compromise annexed unnecessary materials (basically the entire brief to counsel).
20 The Taxing Officer dealt with this objection in pars [16] – [21] of his reasons for decision. Put shortly, the learned Taxing Officer took the view that the objection was incompetent because it sought to review a decision which went purely to the quantum of his assessment, rather than a matter of principle. He referred to his decision in Roblett v Pieroni [2005] WADC 215 in which, after reviewing various authorities, he reached the view that r 53(1) does not permit a review by a Taxing Officer which is limited a decision on a matter of quantum.
21 The plaintiff did not argue that the Taxing Officer's decision in Roblett was not correct or at least that as a matter of principle the Taxing Officer had erred in concluding that he had no jurisdiction. The Taxing Officer's opinion on this question, as expressed in Roblett, was arrived at after an extremely detailed analysis of a number of authorities in this state and in other jurisdictions and after careful consideration of the historical development of the relevant rules in this state and elsewhere. In the absence of an explicit and detailed submission to the effect that Roblett was wrongly decided, it is not appropriate for me to embark upon a review as to its correctness. But, putting the position at its most favourable from the plaintiff's point of view, as I understand it the authorities establish no more than that a Taxing Officer's decision on an issue of quantum is not open to review pursuant to r 53(1), and hence cannot find its way to further review by a judge pursuant to r 55, unless the finding was arrived at by means of a misapplication of appropriate principles, and that a determination as to quantum which is manifestly unreasonable and/or outside a reasonable range might bespeak a misdirection on a point of principle. The plaintiff's objection did not contend that the Taxing Officer had assessed the appropriate allowance on a basis not provided for in the rules or the scale, nor did it contend that the amount that was allowed was manifestly unreasonable. The objection simply contended that the Taxing Officer had erred in his assessment as to what was reasonable and necessary for the purposes of performing the relevant work, which is entirely a matter of fact or quantum. Accordingly, in my view the Taxing Officer correctly concluded that he lacked jurisdiction to review his assessment of item 17 of the bill of costs.
22 Having disposed of the objection on a jurisdictional basis, the learned Taxing Officer proceeded to explain the basis of his determination
(Page 11)
- in any event. Put shortly, he formed the view that it was his task to value the quantum of the service provided, not simply to assess the amount of work which the plaintiff's advisers chose to perform to complete that task. In that respect, the Taxing Officer took the view that it was not necessary for the entire brief to counsel to be placed before the Court. I agree with that proposition. In Sosa v Carter [1978] WAR 123 Burt CJ (with whom the other members of the Full Court agreed) said at 124:
"Expressed in general terms this court ought not and indeed cannot approve the proposed settlement unless it be of the opinion that it will be for the benefit of the infant plaintiff. But that cannot, I think, mean that the court is in effect to hear the application as if it were itself the appeal and then to give or to withhold its approval by comparing the offer with the judgment which it would have given on appeal. In my view what the court is called upon to do is to satisfy itself that all the facts relevant to the plaintiff's claim have been brought together and considered by her legal advisers and, unless the requirement be dispensed with, that the settlement is supported by the opinion of independent counsel. It should itself consider the opinion given and the reasons for it. If having done that it appears that all aspects of the case have received proper consideration it should be slow to disagree with the opinion particularly upon such a matter as the assessment of damages for personal injuries. … It should, too, satisfy itself that the opinion of counsel has been considered and understood by the infant's guardian …"
24 Accordingly, in my opinion the Taxing Officer correctly overruled the plaintiff's objection in item 17.
Item 18
25 Pursuant to item 18 of the bill of costs the plaintiff claimed the sum of $3,981.41 under scale item 10(a) for what was described as: "Informal
(Page 12)
- application of defendant (like a chamber summons)." This item related to work performed by the plaintiff's solicitor in relation to a proposed application by the defendant to re-open the assessment of damages so as to argue an aspect which had been overlooked by the parties. The defendant's solicitors informed the plaintiff's solicitors that they intended to orally apply to re-open the matter. To that end the defendant filed an affidavit and the plaintiff's solicitor did work in response. However, in the result the defendant did not make the application and the plaintiff's solicitor's work was wasted. The Taxing Officer rejected the claim in its entirety and taxed off the sum of $3,981.41.
26 The plaintiff's objection is framed as follows:
"The order made by his Honour Judge McCann on 19 May 2006 required the Defendant to pay the Plaintiff's costs of the action and O 66 r 18 contemplates that where no specific scale item applies the Taxing Officer can award costs on an analogous basis, without any further special court order, for reasonable costs incurred by the Plaintiff on work necessarily done to achieve justice. Also the costs are payable pursuant to Order 66 rule 48 S.C.R.
In this case the Defendant not only indicated its resolve to pursue an application to the Judge to reduce the amount of damages the Judge might otherwise have awarded pursuant to his written Reasons for Decision but filed an affidavit in support thereof causing the Plaintiff to counter the proposal and to prepare an affidavit and outline of submissions in response but the Defendant considered the issue before the matter came on before the Judge for determination."
27 The learned Taxing Officer dealt with this objection in paragraphs [22] to [33]. He pointed out that the plaintiff sought to recover the costs in respect of this matter pursuant to O 66 r 18 and item 10(a) of the scale (relating to costs of an application in Chambers) by analogy. The Taxing Officer stated that he had no difficulty with that approach in principle but proceeded to deal with the matter on the basis that the item was tantamount to a claim for the costs of a chambers application that was discontinued. He referred to O 66 r 18 which provides:
"In any matter not specially provided for in any relevant scale, the Court or the Taxing Officer may allow costs by way of analogy according to the item in the scale which is most nearly
(Page 13)
- applicable thereto; or if in the opinion of the Court or the Taxing Officer, there is no such item, the costs shall be fixed at such sum as in the opinion of the Court or the Taxing Officer is adequate in the circumstances."
28 The Taxing Officer noted that the plaintiff relied only on the first limb of this provision and not the second.
29 The Taxing Officer resolved this issue by reference to O 66 r 48, which provides as follows:
"48. Costs of motion, etc. following event
(1) Unless the Court otherwise orders, the costs of a motion or application in an action shall be deemed to be part of the costs of the action of the party in whose favour the motion or application is determined unless the motion or application is unopposed.
(2) When the motion or application is unopposed, the costs of both parties shall be deemed to be part of their costs of the action, unless the Court otherwise orders."
31 Accordingly, in my view the Taxing Officer correctly overruled the objection to the disallowance of item 18.
Conclusion
32 For these reasons I am of the opinion that the Taxing Officer correctly overruled each of the plaintiff's objections. In the circumstances I would allow the plaintiff an extension of time to apply for this review, but dismiss the application.
0
5
3