Practice - Western Australia - Rules of the Supreme Court of Western Australia - Order 66 - Review of taxation of costs for "informal" conference, "non-disbursement" photocopies and for post judgment services

Legislation:

Nil

Result:

Determinations confirmed

Representation:

Counsel:

Plaintiff: Mr C Phillips
Defendant: Ms M Saraceni

Solicitors:

Plaintiff: Chris Phillips
Defendant: Peter Momber

Case(s) referred to in judgment(s):

Clybucca Holdings Pty Ltd v Gray & Ors, unreported; SCt of WA; BC9701576; 30 April 1997
Gardiner v Classic Laboratories Pty Ltd, unreported; DCt of WA; Library No 3541; 12 November 1992
Smith v Buller (1875) LR 19 Eq 473
Tenbohmer v Eden (1992) 6 WAR 366

Case(s) also cited:

DEPUTY REGISTRAR HARMAN: The plaintiff has sought review of the taxation of three items in his bill of costs.
The first item the subject of review is a claim made for a pre-trial or mediation conference held on 11 February 2000. At taxation it transpired that the claim related to a conference convened by the parties themselves. The claim was made under items 24 and 13A; alternatively the plaintiff sought the benefit of an exercise of discretion under O 66 r 18. The item was disallowed.
It is evident from the terms of the objection that the plaintiff no longer relies on item 13A. It is at least implicit that he does not rely on item 24. Item 24 is expressed to relate to a pre-trial, mediation or other conference required by order, rule or practice direction. The conference was not convened in any manner contemplated by the item. Accordingly there was no claim under the item. If the determination had been otherwise it would reveal an error in principle.
The remaining basis for recovery proposed by the plaintiff was the prospect that the taxing officer would exercise discretion under O 66 r 18.
Rule 18 is as follows:
"(1)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 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.
(2)Without limiting the generality of paragraph (1), the Taxing Officer may allow such fees as he considers reasonable –
(a)in connection with the compromise of a claim by or against a person under a disability; or
(b)for a conference or consultation where and to the extent that the conference or consultation was necessary."
The discretion provided by the rule is expressed in broad terms indeed. On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v Kay

Details

AGLC: Smith v Kay [2000] WADC 257
Case: [2000] WADC 257
Decision Date: 13 OCTOBER 2000

CaseChat Overview and Summary

The case of Smith v Kay involved a dispute in the Supreme Court of Western Australia concerning the taxation of legal costs. The plaintiff, Smith, sought to recover costs from the defendant, Kay, following the conclusion of litigation. The costs in question included those related to an "informal" conference between the parties, "non-disbursement" photocopies, and post-judgment services. The primary issue was whether these costs were properly recoverable under the Rules of the Supreme Court of Western Australia, Order 66. This order governs the taxation of costs and sets out the principles for determining which costs are recoverable and at what level.

The court was tasked with determining the appropriateness of taxing costs for the informal conference, the propriety of taxing costs for non-disbursement photocopies, and the recoverability of costs associated with post-judgment services. The plaintiff argued that these costs were necessary and directly related to the litigation process, while the defendant contended that they were either not permitted under the rules or were excessive. The court examined the relevant provisions of Order 66 and considered the nature and necessity of each type of cost.

The court held that the costs for the informal conference were not recoverable as they did not meet the criteria for allowable costs under Order 66. The costs for non-disbursement photocopies were also deemed unrecoverable, as they did not constitute necessary disbursements. Regarding the post-judgment services, the court found that certain costs were recoverable, but only if they were reasonably necessary and proportionate to the services rendered. The court exercised its discretion to reduce the amount of recoverable costs based on the principle of proportionality. The final orders reflected these determinations, with the court disallowing certain costs and allowing others, subject to the adjustments made by the court.

Orders