Solomon v The Psychologists Board of Western Australia
[2001] WASCA 230
•31 JULY 2001
SOLOMON -v- THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA [2001] WASCA 230
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 230 | |
| 31/07/2001 | |||
| Case No: | SJA:1145/1994 | 9 JULY 2001 | |
| Coram: | WHITE AUJ | 30/07/01 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | JULIA SOLOMON THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA |
Catchwords: | Application for an extension of time in which to appeal against the decision of a Registrar in relation to the review of taxation of a bill of costs Turns on own facts |
Legislation: | Rules of the Supreme Court, O 66 r 55(1) |
Case References: | Mossensons v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997 Thorne v Thorne (1979) 3 All ER 164 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Application for an extension of time in which to appeal against the decision of a Registrar in relation to the review of taxation of a bill of costs - Turns on own facts
Legislation:
Rules of the Supreme Court, O 66 r 55(1)
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Applicant : In person
Respondent : Mr M J Flint
Solicitors:
Applicant : In person
Respondent : Phillips Fox
Case(s) referred to in judgment(s):
Mossensons v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997
Thorne v Thorne (1979) 3 All ER 164
Case(s) also cited:
Nil
(Page 3)
1 WHITE AUJ: The applicant applies, pursuant to O 66 r 55(1) of the Rules of the Supreme Court for an extension of time in which to review the decision of the Taxing Officer delivered on 14 March 1997 in relation to the taxation of a bill of costs following an unsuccessful appeal by the applicant in respect of the findings of the respondent that she was guilty of improper conduct.
2 The application is founded upon the grounds that the applicant discovered on 22 June 2001, for the first time, that the Taxing Officer had proceeded with the taxation of the costs in the absence of the applicant and that "there was no evidence for the presumption that the" applicant had been advised of the date of taxation.
3 The applicant contends that the bill failed to comply with the requirements of O 65 rr 33, 35, 36, 38 and 42 of the Rules.
4 The bill of costs in question was filed with the court on 19 February 1997 and an appointment for taxation fixed for 14 March 1997. At the relevant time, the applicant was represented by her solicitors, Jon Davies & Co. There is evidence that a copy of the bill of costs was sent to Jon Davies & Co. on 7 March 1997.
5 On 14 March 1997, solicitors Patrick Gethin & Co served a notice of change of solicitors dated 10 March 1997 on the respondent's solicitors by facsimile, advising that that firm was appointed to act for the applicant.
6 There was no appearance on behalf of the applicant before the Taxing Officer at the taxation on 14 March 1997, and the bill of costs was taxed and allowed at $7,013.50. A copy of the taxed bill of costs was sent to Patrick Gethin & Co on the same day.
7 On 18 March 1997, Patrick Gethin & Co wrote to the respondent's solicitors enclosing a copy of a notice requesting review of taxation.
8 An appointment was then made for the review of the taxation of the bill of costs on 20 August 1998. On that date, a solicitor representing the respondent attended, but there was no representation of the applicant. The Taxing Officer telephoned Patrick Gethin & Co and proceeded with the taxation. Orders were then made that any written objections which the applicant wished to make should be filed and served by 4 pm on 27 August 1998. No such objections were filed and on 9 September 1998, the Registrar wrote to the parties advising that the taxation process was at an end and, on 1 May 1998, Registrar Boyle signed a certificate of taxation in respect of the bill of costs.
(Page 4)
9 In deciding whether to make an order setting aside a certificate of taxation, the court will take into consideration, inter alia, the length of the delay in making the application and the reasons for that delay: see Thorne v Thorne (1979) 3 All ER 164; and the applicant's prospects of success were there to be a review under O 66 r 55: Mossensons v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997. The delay has continued for nearly three years and the applicant's explanation for that delay, that she was unaware of the taxation of the bill of costs, is to be understood in the light of the fact that she was represented by solicitors at the material times, that notice was served upon her solicitor, that her subsequently appointed solicitors sought a review of the taxation of the costs and were apprised at the time of the review of the position and afforded an opportunity to make written objections if so wished.
10 In my opinion, the delay in this case was manifestly excessive and the explanation for it unavailing.
11 So far as the prospects of success are concerned, there is nothing before me to suggest that the applicant would probably succeed in having the amount allowed reduced on further review.
12 The applicant alleged in par 15 of her affidavit in support that:
"15. In my examination of available records I found that the sum paid by the Board to the solicitor for costs of appeal was less than the sum now being claimed by the Board as costs that I am liable to pay."
13 It is not apparent what records are there referred to and there is nothing to substantiate the allegation made. In the affidavit of David William Thompson, the respondent's solicitor herein, the deponent says that the total of the amounts charged by Messrs Phillips Fox in respect of work performed on behalf of the respondent was greater than the amount at which the bill of costs was allowed.
14 The applicant's reference to O 65 rr 38, 5, 33, 35, 36 and 42 in her affidavit really carry the matter no further.
15 Rule 38 gives the Taxing Officer the right to proceed ex parte if satisfied that there has been sufficient notice of taxation. The evidence shows that prior notice was given to the applicant's solicitors and it is to be presumed that the Taxing Officer was so satisfied.
(Page 5)
16 Rule 5 has no apparent relevance as it empowers the court to render a solicitor personally liable for costs in certain circumstances which do not obtain in the present case.
17 Rule 33, so far as relevant, requires the bill of costs to have indorsed upon it a notice of appointment and the name and address of the solicitor by whom the bill of costs is left. The bill of costs in the present case complied with those requirements.
18 Rule 35 stipulates the giving of two clear days' notice of taxation, with a copy of the bill of costs and this rule was complied with.
19 Rule 36 refers to the lodging of vouchers supporting a claim for disbursements and in the present case, the only disbursement claimed was the court fee for the lodgement of the bill of costs.
20 Rule 42 prescribes requirements as to the contents of the bill of costs and was complied with.
21 The application should be dismissed.
0
0
1