Smith v Walsh [No 2]
[2021] WADC 100
•19 OCTOBER 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: SMITH -v- WALSH [No 2] [2021] WADC 100
CORAM: DEPUTY REGISTRAR HEWITT
HEARD: 11 OCTOBER 2021
DELIVERED : 19 OCTOBER 2021
FILE NO/S: CIV 2475 of 2019
BETWEEN: RICHARD SMITH
Plaintiff
AND
BRENDAN WALSH
Defendant
Catchwords:
Taxation on bill of costs - Basis of allowances - Turns on its own facts
Legislation:
Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018
Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2019
Result:
Adjourned for objections
Representation:
Counsel:
| Plaintiff | : | Mr S Penglis SC |
| Defendant | : | Mr D Coster |
Solicitors:
| Plaintiff | : | Coulson Legal |
| Defendant | : | Moray & Agnew Lawyers |
Case(s) referred to in decision(s):
Nil
DEPUTY REGISTRAR HEWITT:
In this matter the plaintiff's claim was settled and a judgment entered on 29 November 2019. The consent quantified the amount of the claim and made an allowance for the costs of the action. It is apparent that agreement was not reached in respect of one item claimed by the plaintiff by way of costs, that being a claim for $2,800 for a medical report from one Dr Fairhurst. That claim was pursued by the plaintiff by way of a bill of costs for taxation lodged on 18 December 2019. The matter came before Deputy Registrar Harman on 20 January 2020.
At that hearing the deputy registrar disallowed the whole of the claim for items under the bill. That led to an objection to taxation filed on 7 February 2020. That objection was ruled upon by the deputy registrar who found it insufficient to sustain a review effectively confirming his original decision to disallow the whole of the plaintiff's claim. That led to an application for a review of the taxation which came before her Honour Judge Barone on 18 June 2021. Relevant portions of her Honour's decision were as follows:
The taxing officer also had before him an affidavit of Dr Fairhurst dated 29 January 2020, this is had (sic) before him at taxation, addressing the issue of Dr Fairhurst’s qualifications. On its face, the report was written by an independent doctor who was a WorkCover WA approved medical specialist with experience in assessing soft tissue injuries. On the face of the report, it was admissible.
The fact that the author was a GP or general practitioner does not on its face, make him unqualified to proffer a relevant expert opinion. Such a blanket determination is erroneous by the taxing officer. Further, in my opinion, the taxing officer made an error in principle in determining that the report was not necessary for determining any issue in the action at the time it was obtained.
The report was a medico-legal report obtained from someone who was not the treating general practitioner of the plaintiff. The report went to the issue of both causation of the plaintiff’s injuries and the extent of the plaintiff’s loss of function. At the time the report was obtained, the defendant had admitted liability only. An admission of liability did not resolve the plaintiff’s matter.
The issue of causation for the loss suffered by the plaintiff was live up until the defendant admitted causation. This was after the report had been obtained. It was necessary and reasonable for the plaintiff to get an independent medical report in a matter involving the assessment of damages. Although the report was obtained prior to the filing of the statement of claim, I note that the defendant in any event went on to deny causation.
In light of these opinions, I order that (1) the application be allowed, (2) the certificate of taxation signed by Deputy Registrar Harman dated 25 June 2020, be set aside, (3) the plaintiff’s bill of costs dated 18 December 2019, be referred back to a different taxing officer for reconsideration.
In relation to costs, I order that the defendant pay the plaintiff’s costs of this application including any reserved costs relating to the application.
I also order that the costs of the taxation before Deputy Registrar Harman on 29 January 2020, and any reserved costs relevant there to, be in the cause.
I also order that the costs of the review of Deputy Registrar Harman made pursuant to Order 66, rule 54, dated 8 May 2020 in any - including any reserved costs - sorry, including any relevant reserved costs, be in the cause.
As appears from the transcript her Honour ordered that the certificate of taxation be set aside and the plaintiff's bill of costs dated 18 December 2019 be referred back to a different taxing officer for reconsideration. Her Honour also ordered the defendant pay the plaintiff's costs of the application and that the costs of the taxation before Deputy Registrar Harman on 29 January 2020 and any relevant reserved costs be in the cause, and further her Honour ordered that the costs of the review likewise be in the cause. Since the action has been settled in favour of the plaintiff the effect of these orders is to make them taxable.
On 30 September 2021 the plaintiff filed an amended bill of costs. The effect was to substantially increase the amount claimed from $3,787 in the original to $13,889.30 in the amended bill. In part that increase was due to the additional items which her Honour allowed which were included in the amended bill and a reworking of the original claim by increasing it by approximately 100%.
The first issue to be determined is that which is raised by the defendant, namely that no allowance should be made for the account which is pursued by the plaintiff in this taxation. The arguments advanced by the defendant deal with the qualifications of the doctor and the usefulness of his report in the context of the litigation. It is easy having received a report to opine that it offered nothing useful in the conduct of the action and that the party who prepared it was not properly qualified to give a useful opinion on the matters placed before him. The bottom line is that Dr Fairhurst is a qualified general practitioner and has been such for approximately 14 years. He is currently an approved medical specialist under the regime of WorkCover WA. His evidence is clearly admissible and in my view a debate as to the weight which should be attached to that evidence is of little relevance in the present circumstances. It is not the case that a plaintiff seeking an updated medical report is required to go to a practitioner of whom the defendant approves. The choice is that of the plaintiff. He has chosen Dr Fairhurst as the practitioner from whom he wishes to receive an opinion, in my view he is qualified to give that opinion although others may perhaps be better qualified, and it is appropriate for a recovery to be made for the report which was produced. I have little doubt that if the report which was generated by the doctor was thought to be favourable to the position of the defendant it would be wholeheartedly endorsed, and the issues of his expertise would disappear. On this point, therefore, I conclude that it was appropriate to obtain a report by some practitioner and the choice by the plaintiff as to the practitioner to provide the report is a matter for the plaintiff. The report which was produced is admissible and Dr Fairhurst could have been called as a witness to support his views had the matter gone to trial. Whether or not a judge hearing the trial would have regarded other medical evidence as carrying greater weight than that of Dr Fairhurst is not, in my view, a matter which should weigh upon me in this taxation and accordingly I am of the view that it was appropriate to obtain Dr Fairhurst's report and I so rule.
Additionally I consider that the decision of Judge Barone that 'It was necessary and reasonable for the plaintiff to get an independent medical report in a matter involving the assessment of damages' (ts 70) is binding on me, and if not, a conclusion which I independently support. The claim falls squarely within item 34(b) of the Costs Determination which is:
As between party and party, a party may be allowed disbursements incurred by that party except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions, that party is fully reimbursed for its disbursements;
and should be allowed.
My task now is to tax the plaintiff's claim for costs as it appears in the amended bill which is before me. A number of matters require my consideration in this process. Firstly, I must consider whether I should allow amendments to the amounts which were originally claimed in the bill filed in December 2019 to amplify the claim in the manner I have outlined and in conjunction with that consideration what would be an appropriate amount for the work undertaken for and at the first taxation hearing. Secondly, I must next consider whether the amount claimed for filing the objections and arguing the issue is appropriate and finally whether a fee included in the claim for the disbursement from an entity called InstaMed whom it is said booked the appointment for the plaintiff to be reviewed by the doctor concerned has been included with the claim is appropriately claimed and should be allowed.
I shall first deal with the first item I have identified. Namely, whether the amendments or items which were originally contained in the bill should be allowed. On that score, it was established that the contentious nature of the plaintiff's claim for the disbursement in question was always apparent and it was for that very reason that a separate taxation for that proportion of the claim was necessary. Accordingly, the plaintiff's solicitors prepared and filed two lengthy affidavits. One, by a Mr Nathan John Lord who describes himself as the legal practice director and principal of Accident Claims Lawyers which set out the basic background to the plaintiff's claim and the basis upon which the plaintiff's solicitors concluded that it was appropriate to commission a medical report dealing with a number of aspects of his injuries and claims. Mr Lord also spent a considerable proportion of his affidavit discussing the attitude which the defendant's insurer adopted towards engaging medical experts to assist it in its own case. I regard that testimony as completely irrelevant to any issue which I am required to determine or which any taxing officer would be required to determine and given the detail in that part of the affidavit, I am of the view that were any amount to be allowed would need to include a significant recognition of the fact that much of what was included and much of the work which was undertaken to produce that affidavit was unhelpful.
Rather different considerations apply to the affidavit sworn by Dr Fairhurst and his affidavit was clearly intended to respond to the contentions advanced by the defendant and it was inappropriate for him to have been engaged to produce the opinion which he in fact produced due to his lack of relevant expertise. That in my opinion is an issue which was and still is of relevance to the case and the taxation before me.
At the taxation the point was made by counsel for the taxing party that it was open to the plaintiff to move for an amendment to increase the amount claimed for the taxation by including an allowance for the preparation of these affidavits. The present solicitors for the taxing party came on the record on 17 December 2019 and the bill was lodged on 18 December 2019. Each of the affidavits was filed by Accident Claims Lawyers, that of Mr Lord being lodged on 23 January, and that of Dr Fairhurst on the same date. There is no evidence whatsoever before me that the plaintiff was obliged to or did pay the solicitors who filed the affidavits namely, Accident Claims Lawyers, for the affidavits which were filed. Accordingly, since taxation of costs are intended to provide at least a partial indemnity to a client for the costs which have been incurred, I see no evidence or basis upon which an allowance can be made. A schedule has been prepared setting out work which was undertaken to prepare for and attend the hearing and within the schedule a claim was made for settling the various affidavits to which I have referred. It is difficult for me to understand how the present solicitors settled these affidavits and the evidence before me shows that they were filed by the previous solicitors who represented the plaintiff. It may have been however convenient for a lawyer who no longer represented the plaintiff to file the affidavits to which I have referred.
Notwithstanding those observations, I am prepared to accept that the principal of the plaintiff's present solicitors expended considerable effort in preparing the relevant affidavits but in my view, some of that effort was misplaced, particularly that of Mr Lord. It is also very difficult for me to understand how it would take seven hours of clerical assistance to put these affidavits together. I am also mindful of the fact that the amount in contention of this matter was relatively small and the claims for taxation vastly outweigh the amount which is being pursued. For these reasons, I am of the view that although there should be an increase in the amount claimed for drawing and taxing the bill of costs, that should be considerably less than the $8,095 which is claimed and I think an allowance of four hours by a senior practitioner would be quite adequate for the task undertaken and its importance. Accordingly, the amount which I think is appropriately claimable will be reduced to allow for four hours at a senior practitioner's time, namely $1,800.
I next turn to the amount claimed for the objections which were taken to the original taxation of $2,720 are claimed of which 2.1 hours are for a senior practitioner, 1.1 hours for a junior practitioner and 5.6 hours by a clerk. In drafting objections, the heavy lifting should be done by the senior practitioner. It is she who has to frame the arguments following the basis of the objection. I see very little scope for a clerk making any useful contribution to that process and for that reason, I think that a substantial reduction is called for which I consider should be $1,200, reducing the total amount claimed for the item to $1,520.
The next item requiring consideration is the claim for drawing the bill in its form presented to me. A sum of $1,000 is claimed. The bill as it came before me bears very little resemblance to that originally presented and it is supported by schedules explaining how various items of work were aggregated to achieve the figures claimed. In my view, the sum claimed of $1,000 is a reasonable amount in the circumstances.
The final claim with which I must deal is the claim for the cost of the medical report which is claimed at item 5 for the sum of $2,800. That sum is comprised of two components. The first of $1,980, being the fees charged by the doctor briefed for the report which he produced and the balance being for a fee charged by an agency to arrange an appointment for the examination which led to the report. The agency chosen was InstaMed. That business operates from Collins Street in Melbourne and, as I have pointed out, charged $820 for its efforts in arranging for the examination of the plaintiff by Dr Fairhurst. It is to be noted that Dr Fairhurst is a doctor based in Western Australia and the letter by the plaintiff's lawyers to InstaMed is, in my view, fairly instructive. The letter of instruction to InstaMed was dated 28 March 2019 and it specifically referred to a request for the client to be reviewed by Dr Andrew Fairhurst. It also referred to the examination being preferably held on 3 February 2019. From that I draw two conclusions. Firstly, that Dr Fairhurst was a practitioner known to the plaintiff's lawyers and secondly, the letter of instruction to InstaMed appears to be a cut and paste job from some other letter which had been written such that a completely inappropriate examination date was suggested. I also note that the letter of instruction contained a series of issues to which the solicitors directed the doctor's attention and once again, it is clear to me that this is a proforma document and not one which is specifically adapted to the requirements of the client. I draw that conclusion by reference to the client in the plural, namely their and they rather he and him in various places in the document. Such mistakes are difficult to understand if in fact the document was bespoke specifically for the purpose of the examination of the plaintiff by Dr Fairhurst.
It is obvious that the solicitors for the plaintiff were aware of Dr Fairhurst and specifically chose him to be the examining doctor and additionally, it is clear that the examination required followed a well‑worn path and it requested routine issues to be addressed. I am unable to see any basis upon which InstaMed contributed anything to this process nor any justification for its fee of $820. Accordingly, in my view, the proper allowance for the account is $1,980.
In summary therefore I allow the following amounts in respect of the following items:
Item Amount 1 $1,520 2 $1,000 3 $1,800 4 $274 5 $1,980 Total $6,657 Taxing fee $164.35 Total $6,738.35
I allow the parties 14 days to bring in objections.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer
20 OCTOBER 2021
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