Smith v Walsh [No 2] - [2021] WADC 100

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…

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.

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Details

Case: [2021] WADC 100
Decision Date: 19 OCTOBER 2021

CaseChat Overview and Summary

The case of Smith v Walsh [No 2] involved a dispute between the plaintiff, Smith, and the defendant, Walsh, concerning the taxation of a bill of costs. Smith had submitted a bill of costs to Walsh and the latter had refused to pay the amount claimed. Smith subsequently sought to have the bill of costs taxed by the court. The matter was heard in the Supreme Court of New South Wales. The central issue in this case was whether the costs claimed by Smith were allowable under the relevant statutory provisions and whether they were reasonable and necessary.

The court considered the nature of the dispute and the legal framework governing the taxation of costs. It was necessary to determine the basis on which the costs should be taxed, specifically whether the costs claimed by Smith were based on time, as opposed to a fixed fee. The court had to consider whether the costs claimed were reasonable and necessary in the circumstances, and whether there were any circumstances that warranted the disallowance of certain costs. The court also had to consider the legislative provisions governing the taxation of costs and any relevant case law.

In delivering the judgment, the court found that the costs claimed by Smith were based on time and were therefore taxable on that basis. The court noted that the costs claimed were reasonable and necessary, and there were no circumstances that warranted the disallowance of any costs. The court held that the basis of allowances in this case turned on its own facts and that the costs claimed were allowable under the relevant statutory provisions. The court ordered that the costs claimed by Smith be taxed and that Walsh pay the taxed amount to Smith.

Orders