Smith by his Next Friend Ronald Kevin Smith v Hanrahan
[2007] WADC 1
•5 JANUARY 2007
SMITH by his Next Friend RONALD KEVIN SMITH -v- HANRAHAN [2007] WADC 1
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 1 | |
| Case No: | CIV:1650/2003 | ||
| Coram: | DEPUTY REGISTRAR HARMAN | 4/01/07 | |
| PERTH | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Each objection unsustained | ||
| PDF Version |
| Parties: | JOHN PETER PAUL SMITH by his Next Friend RONALD KEVIN SMITH MARK ALSTON HANRAHAN |
Catchwords: | Practice Western Australia Practice under the Rules of the Supreme Court of Western Australia O 66, r 11(2), 11(4), 18, 48 Review of taxation of costs Scale items 10 and 23 History of amendment of item 23 Jurisdiction to review alleged error as to quantum Standard for assessment of quantum Entitlement to costs of an application in the absence of an order |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MARK ALSTON HANRAHAN
Defendant
Catchwords:
Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia O 66, r 11(2), 11(4), 18, 48 - Review of taxation of costs - Scale items 10 and 23 - History of amendment of item 23 - Jurisdiction to review alleged error as to quantum - Standard for assessment of quantum - Entitlement to costs of an application in the absence of an order
Legislation:
Nil
(Page 2)
Result:
Each objection unsustained
Representation:
Counsel:
Plaintiff : Mr C Phillips
Defendant : Mr P Sheavyn
Solicitors:
Plaintiff : Chris Phillips
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Roblett v Pieroni [2005] WADC 215
Case(s) also cited:
Nil
(Page 3)
1 DEPUTY REGISTRAR HARMAN: The plaintiff obtained an order against the defendant for his costs of the action and his bill of costs was taxed. He now raises objections to particular determinations made in the context of taxation.
2 The first relates to the determinations made in response to claims expressed at items 13, 14 and 15 of the bill. Each of those claims was made under item 23 of the scale which provides for recovery for the cost of pre-trial and informal conferences. Item 23 specifies that the extent of recovery would be determined by reference to an hourly rate which in the 2004 version of the scale was expressed to be a maximum of $341. Each claim expressed that it was for the input of both solicitor and counsel and for travel to Perth. At taxation the plaintiff extended the scope for recovery to include the costs of his solicitor's preparation and of post-conference conferral. The terms of the 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."
3 My reading of the terms of the objection is that it is implicit that the plaintiff would contend that the taxing officer erred in disallowing those parts of the claim by which he sought recovery for the attendance at the conferences by a second practitioner, for preparation, for post conference conferral and for travel. At taxation each of those parts of the claim were disallowed. Accordingly the objection falls within the scope of r 53 which provides jurisdiction for the taxing officer to review.
4 Under the usual order for costs a beneficial party is entitled to recover the reasonable cost of services necessarily provided to him for the purposes of the action. Rule 11(2) is to the effect that in determining the extent of recovery, the taxing officer's discretion is limited by the scale. Rule 18 provides additional scope for recovery either on the basis of an
(Page 4)
- analogy being drawn between a service for which the scale does not specially provide and a scale item or where there is no analogous scale item simply under the test of recovery.
5 The answer to the first part of the first paragraph of the objection is provided by r 11(4). It is as follows:
"Subject to the provisions of this Order, and to any order made by the Court and the terms of any relevant scale, the fees prescribed by any relevant scale cover all work done, whether by the solicitor or counsel."
6 None of the conditions operate. The entitlement established by an order for costs is for recovery of the cost of a service not the manner in which his solicitor chose to provide it. The extent of recovery sought by the plaintiff would depend upon him having obtained a special order to facilitate that result.
7 To the extent by that the objection the plaintiff seeks to recover travel costs, the scale has never made such provision. The plaintiff's portrayal of travel as being necessary is to no useful end. It is always necessary for the representative of a party to travel to court. The hourly rates upon which the scale is struck would take into account the cost associated with running a professional practice. Those overheads would include the cost of travelling the distance between the location of a practice and any court in which its members appear. The hourly rates would also take into account the fact that not all hours of the day would generate chargeable time. Those observations apply regardless of the detail of the history of the action related by the terms of the second paragraph of the objection. When the plaintiff consented to the transfer of the action to Perth he did so in the knowledge that the cost of travel would not be recoverable from the adverse party.
8 As to the balance of the matters raised by the first paragraph of the objection, a useful starting point is to consider some of the history associated with the introduction of the pre-trial conference process. At the time of its introduction there was no item in the scale that expressed a basis for recovery of the cost of the service. In order to facilitate recovery by a beneficial party it would have been necessary for the taxing officer utilise the discretion provided by r 18. I recall that an analogy was drawn with the item "application to chambers". It followed that recovery would then have been had for preparation for the conference.
(Page 5)
9 By item 23A of the 1991 scale separate provision was made for recovery of the costs of a conference. It was expressed so as to include the cost of preparation and associated notices. In effect the only change to taxation practice upon the introduction of item 23A was to eliminate the need to have recourse to r 18.
10 Item 24 of the 1996 scale made no reference to preparation and notices associated with a conference. Item 23 in the scale under which the plaintiff's bill was taxed is in the same terms. There have been some intervening scales and in each of them the relevant item was expressed in the same terms. In my opinion the number of scales introduced since 1996 to date, without any change confirms that in 1996 it had been intended that recovery by a party of the costs of preparation would be precluded under that item.
11 The course of amendment to the expression of the relevant scale item reveals that it would not be appropriate to allow recovery for preparation either 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 the cost of preparation for a pre-trial conference.
12 The 1991 scale provided for recovery in line with the preponderance of the items in the scale; within a specified range. In 1996 the method of calculating the extent of recovery changed from an assessment of the value of the service provided to an assessment founded upon the extent to which time had been spent in the provision of the particular service. On each of the limited occasions that the scale so provides the relevant service is one that would be rendered in the presence of the adverse party. At taxation it would 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 had been provided, whether time had been wasted and the like. If it was considered that such a process of assessing value were to extend to part of a service provided in the absence of its opponent, not only would the adverse party be deprived of the opportunity to make any such submission but the taxing officer would have no objective basis upon which to assess whether time for which a claim had been made had been efficiently spent on the task at hand. In each of the limited circumstances where the scale provides that recovery is to be time rated, the extent of recovery is properly limited to the time spent in delivering the particular service it articulates.
13 Accordingly in my opinion it is clear that since 1996 there has been no scope for recovery for preparation under the relevant scale item.
(Page 6)
14 Since the introduction of the pre-trial conference process it has never been the case that such recovery has been available for post conference discussions.
15 The analysis that I have undertaken is not affected by the fact that in recent times the scale item has been amended to provide for recovery for informal conferences between parties. It is to no useful end that the plaintiff contends that the parts of the service for which he seeks to recover were necessarily provided. The significant considerations that the plaintiff has overlooked are the constraints expressed by the historical context from which item 23 has emerged and the manner in which what is recoverable is expressed.
16 The next objection is to the determination made under item 17 of the plaintiff's bill by which he sought to recover the cost of the application for approval of the compromise reached between the parties. At taxation the plaintiff's entitlement to recover for the service provided by his solicitor was not in dispute, the only determination required to be made was of the value of that service.
17 In Roblett v Pieroni [2005] WADC 215I considered the reasons of some judges of this Court in support of the proposition that there was jurisdiction for a judge to review quantum decisions of taxing officers. In that case ultimately the question to be considered was whether I would utilise the results in those cases for the purpose of interpreting r 53(1) to a similar end. I was not persuaded that r 53(1) would admit review by a taxing officer as to quantum. To date there has been no reason for me to change that conclusion. The plaintiff's objection does not come within the scope of r 53(1) accordingly there is no jurisdiction to conduct any review.
18 Be that as it may, in the interests of explaining the determination I will address the terms of the plaintiff's objection. They are 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."
19 The terms of the objection suggest that in such an application, the provision of the evidence that it describes is mandatory. There is no such requirement. The only requirement expressed in the rules is that is that an application for compromise be supported by counsel’s opinion. Otherwise as is the case with applications generally, it is for the applicant to determine how an application for leave will be supported. That said it
(Page 7)
- would be accepted practice that such an application would be supported by evidence of both the next friend and of the solicitor for the next friend by which they would each express their degree of comfort with the proposition put by the application.
20 At taxation I did not perceive that the plaintiff then went so far as to portray that in providing the service as he did he was responding to any requirement. The plaintiff then supported the quantum of his claim on the fact that in a particular case a judge had called for evidence in order to satisfy himself that what had been proposed in such an application was appropriate. The representatives of the parties (who I should record have more than a few years of experience between them) were able to point to only that single case in support the proposition expressed in the objection. Over the past 15 or so years as a taxing officer, from time to time I have been called upon to tax bills subsequent to actions being compromised. I do not recall circumstances where a plaintiff's solicitor had presented an application in the manner adopted by the plaintiff in this case. It would be a fair assessment of the affidavit that it amounted to a brief to counsel. The plaintiff did not and does not now contend that the circumstances that relate to this case were such that it was appropriate to put before the court the material upon which counsel's opinion was founded. In my opinion it is no more appropriate to consider that the single case cited would set the standard by which the value of the service provided in this case should be judged than it would be to assess the value of any application as being on par with the most complex.
21 Under the order for his costs the plaintiff was entitled to no more than the reasonable cost of the provision of the service. A quantum determination establishes the value of the service provided rather than the manner in which the beneficial party's solicitor chose to undertake the task. In determining quantum it is appropriate for a taxing officer to assess what is reasonable by reference to the datum that the service had been provided by a competent practitioner and had been delivered in an efficient manner. If the approach that I have canvassed somehow offends against the proposition that the touchstone in determining quantum involves an assessment of the time spent by a practitioner devoted to the particular task I would be comfortable with that result.
22 The next objection relates to the determination made in response to the claim at item 18 of the bill. Under that item the plaintiff sought to recover the cost of services provided to him in the context of an application by the defendant to reopen the case in relation to the cost to the trustee of obtaining financial advice. I might adopt the description of
(Page 8)
- the circumstances that relate to the provision of those services from his objection.
"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 of 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 conceded the issue before the matter came on before the Judge for a determination."
24 The terms of the objection are as follows:
"The order made by His Honour Judge McCann on 18 May 2006 required the Defendant to pay the plaintiff's cost 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 O 66 r 48 SCR."
25 The terms of the objection draw upon the submission made by the plaintiff at taxation to which I have already provided a response. I will deal with some prospects that emerge from the terms of the objection.
26 Rule 18 is as follows:
"In any matter not specifically 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 applicable thereto; or if the opinion of the Court or the Taxing Officer, there is no such item, the costs shall be fixed at
(Page 9)
- such sum as in the opinion of the Court or the Taxing Officer is adequate in the circumstances."
27 To the extent that the second limb of the rule may call for attention, I do not recall that it was canvassed by the plaintiff at taxation. The fundamental consideration is that if recourse is had to r 18 for the purpose of considering the plaintiff's claim then the second limb of the discretion would not be available as the first would apply.
28 Perhaps I might add that any need for reliance on r 18 at taxation was marginal. Clearly the relevant services had been provided to the plaintiff in the context of a foreshadowed application and it would have been of little consequence for any purpose had that application been brought in chambers or otherwise.
29 The other prospect raised by the terms of the objection is that the plaintiff would contend that taxing officer should have determined that the cost to the plaintiff of the proposed application were part of his costs of the action. The taxing officer has no such discretion.
30 Rule 48, is as follows:
"(1) Unless the court otherwise orders, the costs of a motion or an application in an action shall be deemed to be part of the costs of the action of the party whose favour the motion or application is determined unless the motion or application is unopposed.
(2) Where the motion or application in unopposed, the costs of both parties shall be deemed to part of their costs of the action, unless the court otherwise orders."
31 In the absence of an order as contemplated by r 48(1) it is only by the mechanisms provided by r 48 that the costs associated with an application would become part of a party's costs of the action.
32 The plaintiff's entitlement to recover costs was to no greater extent than his costs of the action. The conclusion that founded the disallowance at taxation was that the services to which the claim relates were not recoverable as part of the costs of the action is no different than in any other where an application is abandoned without any order being made. Such a result would not necessarily follow in the case of most other services mentioned in the scale as upon their provision they would automatically become part of the costs of the action of the party to whom
(Page 10)
- they are provided. To use an illustration, if an action is discontinued at a point where the defendant is in the process of providing discovery, I would have no difficulty in recognising its entitlement to recover for those parts of the process undertaken to the point of discontinuance.
33 I might mention that the analogy that was drawn prior to 1996 between the pre-trial conference and the same scale item did not present the same impediment to recovery as it was recognised that the conference was a step in proceedings. And in any event, invariably an order was usually made for the cost of the conference.
34 I will record that the plaintiff has consistently failed to specify the determination of the taxing officer to which he has taken objection. If some or conceivably all that I have canvassed is wide of some mark, he should take some responsibility in consistently failing to set it. As I have read them, in my opinion none of the objections can be sustained.