Solomon v The Psychologists Registration Board of WA - [2006] WADC 68

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: SOLOMON -v- THE PSYCHOLOGISTS REGISTRATION BOARD OF WA [2006] WADC 68

CORAM: MARTINO DCJ

HEARD: 28 APRIL 2006

DELIVERED : 12 MAY 2006

FILE NO/S: CIV 2215 of 2000

BETWEEN: JULIA SOLOMON
Plaintiff
AND
THE PSYCHOLOGISTS REGISTRATION BOARD OF WA
Defendant

Catchwords:

Costs- Review of taxation - Setting aside certificate of taxation

Legislation:

Nil

Result:

Certificate of taxation set aside

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr D J Garnsworthy

Solicitors:

Plaintiff: Not applicable
Defendant: Phillips Fox

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

Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Hazart Pty Ltd v Rademaker [1993] 11 WAR 26
Pryles & Defteros (a firm) v Green [1999] 20 WAR 541

Case(s) also cited:

AAA v BBB & Anor [2005] WASC 139
Biltoft Holdings Pty Ltd v Clam Chowder Pty Ltd; Casselan Pty Ltd v Biltoft Holdings Pty Ltd, unreported; SCt of WA; Library No 930162; 24 March 1993
Boschetti v Carr [2000] WASC 228
Cooperative Bulk Handling Ltd v Ballato & Ors, unreported; SCt of WA; Library No 9116; 25 October 1991
Helmy & Anor v SBF Engineering Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 980730; 14 December 1998
Degmam Pty Ltd (In liq) v Wright (No 2) [1983] 2 NSWLR 354
Del Borrello v Friedman and Lurie (a firm) [2001] WASCA 348
Eastland Technology Australia Pty Ltd v Whisson & Anor [1999] WASC 29
EMI Records v Ian Cameron Wallace [1982] 2 All ER 980
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397
Hamersley Iron Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Spirits Industries Union of Workers Western Australian Branch [2001] WASC 20
Marshall v Lockyer [2006] WASCA 58
Mossensons (a firm) v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997
Murchison Zinc Company Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167
Re Bond Corporation Holdings Ltd (1990) 1 ACSR 350
Taylor-White (an infant) by her next friend Russell John White & Anor v TaylorBowman [2004] WASC 281
Tector v FAI General Insurance Co Ltd [2000] QCA 426
The Barristers Board v Kwa, unreported; SCt of WA; Library No 940192; 28 March 1994
Theiss Contractors Pty Ltd v Bond Corp Pty Ltd, unreported; Library No 8409; 3 August 1990
Thorne v Thorne [1979] 3 All ER 164
Thorne v Thorne [1979] 1 WLR 659
A C Thorpe v Vlavianos & Anor, unreported; SCt of WA; Library No 980313; 9 June 1998
Tobin v Dodd & Ors [2004] WASCA 288
Webb v Bateman, unreported; FCt SCt of WA; Library No 6305; 27 May 1986

MARTINO DCJ: The plaintiff ("Dr Solomon") is a litigant in person. In this action she claims against the defendant ("the Board") damages for alleged misfeasance in public office and defamation.
By a chamber summons filed on 15 July 2004 Dr Solomon applied to strike out paragraphs of the Board's defence. On 15 October 2004 Deputy Registrar Hewitt dismissed that application.
On 19 October 2004 Dr Solomon appealed against Deputy Registrar Hewitt's decision. That appeal was heard by her Honour Judge Crisford on 4 February 2005. On 1 March 2005 Crisford DCJ delivered reasons for decision dismissing the appeal. As her Honour noted in her reasons that appeal was a new hearing of the chambers summons filed on 15 July 2004: Hazart Pty Ltd v Rademaker [1993] 11 WAR 26. On 10 March 2005 her Honour made the following orders:
"1.The appellant's (plaintiff's) application dated 15 July 2004 be dismissed.
2.The appellant (plaintiff) have leave to file and serve a reply within 14 days.
3.The appellant (plaintiff) do pay the respondent's (defendant's) costs of the application forthwith to be taxed on a solicitor/client basis including reserved costs on 27 July 2004.
4.The Notice of Appeal dated 19 October 2004 filed by the appellant (plaintiff) be dismissed.
5.The appellant (plaintiff) do pay the respondent's (defendant's) costs of the appeal forthwith to be taxed on a solicitor/client basis including reserved costs on 3 November 2004."
On 31 August 2005 the Board filed a bill of cost for taxation pursuant to her Honour's orders. The total amount of costs and disbursements claimed in that bill was $31,685.42. The taxation of the bill of costs was listed for 17 October 2005. On 12 October 2005 that appointment was vacated at the request of the Board and with the consent of Dr Solomon.
On 27 October 2005 the Board's solicitors wrote to the Listing Officer of the District Court requesting another appointment for the taxation of the costs. Enclosed with that letter was copy correspondence between Dr Solomon and the Board's solicitors in which Dr Solomon had failed to provide any unavailable dates for the appointment for the taxation, despite the Board's solicitors' request for unavailable dates. The Board's solicitors sent to Dr Solomon a copy of their letter of 27 October 2005.
On 1 November 2005 Dr Solomon wrote to the Principal Registrar of the District Court objecting to an appointment being listed for the taxation. In that letter Dr Solomon claimed that the bill of costs was defective. The defects complained of were that the bill did not provide:
1.The initials of the person who performed the service.
2.The professional category of the person who performed the service.
3.The billing code of the service.
4.The date of the service.
5.The units of time allocated to the service performed.
6.The description of the service.
7.Evidence of how disbursements were made nor of any costs agreement.
Dr Solomon also wrote in that letter that she was dependent on pro bono advice and that any advice would not be available to her in the 2005 calendar year.
The Court fixed an appointment for the taxation of the costs on 24 November 2005.
On 18 November 2005 the Board's solicitors wrote to the Associate to the Deputy Registrar enclosing a document described as the Board's supplementary schedule of bill of costs for taxation of costs. The total professional costs and disbursements claimed in that document was $27,636.83. A copy of that letter and schedule was sent to Dr Solomon.
On 23 November 2005 Dr Solomon sent a facsimile to the Registrar in which she wrote that she was unable to attend the appointment for the taxation of costs on 24 November and attached a copy of a letter to her of the same date from the Training Accreditation Council confirming her registration for a course on 24 November. Dr Solomon sent a copy of that facsimile to the Board's solicitors. On the same day the Board's solicitors sent a facsimile to Dr Solomon informing her that they would be asking the Court to proceed with the taxation on 24 November 2005.
Dr Solomon did not attend the appointment. Deputy Registrar Hewitt, as taxing officer, taxed the bill of costs at $25,461.54. On the same day he signed the certificate of taxation. By an affidavit sworn on 24 February 2006 Monique Brostek, a solicitor employed by the Board's solicitors, has deposed that the following occurred at the taxation of costs:
"4On 24 November 2005, I attended a taxation hearing before Deputy Registrar Hewitt with David Garnsworthy as counsel for the respondent.
5The applicant did not attend the hearing.
6During the taxation hearing, I recall the following to the best of my recollection:
7The Deputy Registrar noted that the applicant was absent from the hearing.
8The Deputy Registrar said he remembered seeing a letter on the court file that the applicant was not going to attend the taxation hearing.
9Mr Garnsworthy submitted that the applicant had had notice of the taxation hearing and that she refused to provide the respondent with unavailable dates for the rest of the year.
10Mr Garnsworthy said that because this was not acceptable to the respondent, Phillips Fox was instructed to ask the court to list the taxation hearing, which it did.
11The Deputy Registrar asked whether the respondent served the bill of costs on the applicant.
12I said the respondent had but I needed to find the service letter on our files.
13While I was looking through the respondent's files, Mr Garnsworthy said that through her correspondence, the applicant acknowledged that the bill of costs had been served and was aware of the listing of the taxation hearing.
14Mr Garnsworthy also submitted that the Supreme Court Rules allowed a taxing officer to proceed with a taxation if he was satisfied that service of the bill of costs had been effected.
15The Deputy Registrar agreed with this submission and proceeded to review the bill of costs.
16Upon a review of the bill of costs, the Deputy Registrar said that costs expended to prepare for and appear at the strike out application were too high.
17Mr Garnsworthy said that the action with the applicant was an unusual case and that the applicant had caused the respondent to expend far more costs than in a normal application.
18The Deputy Registrar asked Mr Garnsworthy whether the costs of the respondent's counsel and solicitors were within the scale of costs.
19Mr Garnsworthy confirmed that the respondent's costs were within the scale.
20Mr Garnsworthy then said that if there was doubt regarding the quantum of the bill of costs, the respondent was afforded the benefit of the doubt.
21The Deputy Registrar said the fee should be reduced. He said that he did not want the entire bill to be in excess of $30,000.
22The Deputy Registrar deducted $7,000 from the total bill, leaving $24,685.42 plus filing fee $776.12.
23The Deputy Registrar subsequently signed the allocutor, certifying the sum of $25,461.54."
On 28 November 2005 Dr Solomon filed objections to that taxation. The taxation referred to the fact that it occurred in her absence. On 8 December 2005 Dr Solomon filed a chamber summons for review of the taxation. On 11 January 2006 Deputy Registrar Hewitt adjourned the summons of 8 December 2005 to be heard by a Judge.
On 20 February 2006 Dr Solomon filed an amended application for review of the taxation. That amended application came before Crisford DCJ on 27 February 2006. Her Honour adjourned the application to a date to be fixed and allowed Dr Solomon to file a further amended application.
On 27 March 2006 Dr Solomon filed an application to set aside the taxation of cost. That summons was heard by me at a special appointment on 28 April 2006.
It contains one ground for the application, that the "taxation proceeded on a bill of costs which arose from a misapprehension of fact and law not attributable to the neglect of the [Dr Solomon]. The action is therefore open to review in accordance with Seaman in Civil Procedure (63.0.9A)."
The summons contains the following particulars of the ground and orders sought:
"1.1The Taxation Officer was unaware that the costs order the subject of the taxation was made against the applicant on the basis of the defendant's submissions filed in the court on 1 February 2005 and 4 March 2005.
1.2In the defendant's submission filed on 1 February 2005, on page 2 in par 5, and again in par 8, the defendant refers to an 'order' made for the Appellant to pay the respondent's costs forthwith on a solicitor‑client basis.
1.3On page 6 of the defendant's submission dated 1 February 2005 the defendant states in par 30 'Accordingly the cost order made by Deputy Registrar Hewitt on 15 October 2004 was appropriate in the circumstances'.
1.4No such order has been extracted nor appears on the court file.
1.5In the defendant's bundle of documents entitled INDEX filed by the defendant's solicitor on 1 February 2005, there appears, on pages 10 and 11, an unsigned copy of a document described as "order before Deputy Registrar Hewitt in chambers made 15 October 2004'.
1.6Reference to the 'orders' in the submission of 1 February are references to an unauthenticated purported 'order' since no such order has been extracted nor appears on the court file.
1.7On page 3, par 7, of the defendant's submission filed 4 March 2005, the court is asked to consider the views of Deputy Registrar Hewitt.
1.8The orders by Deputy Registrar Hewitt are in the final paragraphs of the judgement settled and signed on 19 October 2004 which states:
'The orders that I therefore intend to make are that the application is dismissed. The second order will be plaintiff have leave to file and serve a reply within 14 days.'
The applicant seeks the following orders:
1.the decision on taxation made on 24 November 2005 be set aside in view of the failure inter alia to comply with RSC Order 43, Rule 1(1).
2.the decision on taxation made on 24 November 2005 be reviewed in accordance with Supreme Court Rules O 66 r 5(1).
3.this application be considered in accordance with Supreme Court Rules O 66 r 10(2) so that the orders giving rise to the costs bill the subject of the review be dealt with by the Court.
4.the costs bill the subject of the review be deemed a nullity by the Court.
5.in the alternative the decisions and proceedings on costs in this action be held over pending the resumption of related matters in the Supreme Court, Court of Appeal."
The ground of the application and the particulars of that ground raise matters that are irrelevant to the taxation of costs. Whether the order of Deputy Registrar Hewitt made on 15 October 2004 was extracted and whether he made an order for costs on that day is irrelevant. The hearing before Crisford DCJ on 4 February 2005 was a new hearing of Dr Solomon's application to strike out paragraphs of the defence. The taxation of costs was pursuant to the orders made by her Honour on 10 March 2005.
However that is not the end of the matter. The taxation of costs took place in the absence of Dr Solomon. It is my view that the decision of Deputy Registrar Hewitt to proceed with the taxation in Dr Solomon's absence was the correct decision. Dr Solomon had more than adequate notice of the appointment, which was fixed following her failure to provide unavailable dates to the Board's solicitors.
However the facts that the taxation took place in her absence and that the certificate of taxation was signed on the same day means that Dr Solomon is not precluded under O 66 r 53 by the certificate of taxation from objecting to the taxation. That is because a certificate of a taxing officer may be set aside by a Judge where the certificate has been signed before the parties have time to bring in objections under O 66 r 3: Pryles & Defteros (a firm) v Green [1999] 20 WAR 541 at 552, Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621. It also follows from O 66 r 54(5) which enables the taxing officer, upon application made in writing within seven days, to set aside or vary the certificate of taxation. In my view Dr Solomon's objections of 28 November 2005 constitute such an application. As a result of Deputy Registrar Hewitt's directions of 11 January 2006 that application is now before me.
"Quite apart from its statutory powers, the court has jurisdiction, both inherent and general, to secure that a legal practitioner (being an officer of the court) is remunerated properly, and no more, for work undertaken as a legal practitioner: see Harrison v Tew [1989] QB 307 at 320; Electrical Trades Union v Tarlo [1964] Ch 720 at 724; Sutton v Sears [1960] 2 QB 97. I note that in the House of Lords in Harrison v Tew [1990] 2 AC 523 at 532 Lord Lowry also referred with apparent approval to 'the general principle and policy that a solicitor's remuneration should be fair and reasonable and no more".
Pryles v Defteros at 547
The costs allowed on the taxation seem to me to be very high for an application to a Registrar to strike out a pleading and an appeal against the Registrar's decision. At the hearing before me I pointed out to Mr Garnsworthy that the maximum allowance for a chamber summons (item 10(a) under the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004) was $8,679. I enquired of him how the allowance on taxation of the application before the Deputy Registrar to strike out the paragraphs of the defence apparently exceeded the item in the scale. Mr Garnsworthy informed me from the Bar table that the taxing officer had been informed that there was a costs agreement.
There are a number of difficulties with what Mr Garnsworthy told me. As I pointed out to him it does not appear from the affidavit sworn on 24 February 2006 by Monique Brostek. On the contrary, she has deposed that Mr Garnsworthy told Deputy Registrar Hewitt that the items were within the scale of costs. I am not ruling on whether they do or do not, as I have not had sufficient argument. I can say however that the items claimed might not be within the scale of costs.
Further Mr Garnsworthy told me that Deputy Registrar was not shown the costs agreement. I have difficulty seeing how a taxing officer could allow an item under a costs agreement without having seen the agreement.
Even if there was a costs agreement between the Board and the Board's solicitors that applied to the items claimed it would still be necessary for the taxing officer to be satisfied that the claim for costs was for a reasonable amount and had been reasonably incurred.
I have therefore decided that I should set aside the certificate of taxation and order that the taxing officer further consider the bill of costs in accordance with these reasons. That is to say the taxing officer should determine:
1.Whether the items claimed are within the appropriate scale of costs.
2.Whether any costs agreement applied.
3.Whether the claims for costs are for reasonable amounts and have been reasonably incurred.
This third enquiry is to be made whether the costs are to be taxed under the scale or a costs agreement.