Smith v Kay

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.