Summerville v Paul O'Halloran and Associates
[2007] WASC 245
•26 OCTOBER 2007
SUMMERVILLE -v- PAUL O'HALLORAN & ASSOCIATES [2007] WASC 245
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 245 | |
| Case No: | LPA:44/2005 | 27 AUGUST 2007 | |
| Coram: | SIMMONDS J | 26/10/07 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Matter of taxation of costs remitted to a different taxing officer | ||
| B | |||
| PDF Version |
| Parties: | AMBER SUMMERVILLE PAUL O'HALLORAN & ASSOCIATES |
Catchwords: | Taxation of costs Claim part of bill of costs to which Legal Practitioners (Workers' Compensation) (Conciliation Proceedings, Review Proceedings and Compensation Magistrate's Court) Determination 2003 applied Application for order to review certificate of taxing officer Whether error in principle in relation to disallowance of any claim in respect of common law proceedings for compensation |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 53, O 66 r 55 Workers' Compensation and Management of Injury Act 1981 (WA), s 93E |
Case References: | Annetts v McCann (1990) 170 CLR 596 Crisp v Mossensons (Unreported, WASC, Lib No 970302, 18 June 1997, Templeman J) Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 Pegrum v Fatharly (1996) 14 WAR 92 Stead v State Government Insurance Commission (1986) 161 CLR 141 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Client
AND
PAUL O'HALLORAN & ASSOCIATES
Solicitor
Catchwords:
Taxation of costs - Claim part of bill of costs to which Legal Practitioners (Workers' Compensation) (Conciliation Proceedings, Review Proceedings and Compensation Magistrate's Court) Determination 2003 applied - Application for order to review certificate of taxing officer - Whether error in principle in relation to disallowance of any claim in respect of common law proceedings for compensation
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 53, O 66 r 55
Workers' Compensation and Management of Injury Act 1981 (WA), s 93E
(Page 2)
Result:
Matter of taxation of costs remitted to a different taxing officer
Category: B
Representation:
Counsel:
Client : Mr P Sheavyn
Solicitor : Mr M D Cuerden
Solicitors:
Client : Talbot Olivier
Solicitor : Paul O'Halloran
Case(s) referred to in judgment(s):
Annetts v McCann (1990) 170 CLR 596
Crisp v Mossensons (Unreported, WASC, Lib No 970302, 18 June 1997, Templeman J)
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Pegrum v Fatharly (1996) 14 WAR 92
Stead v State Government Insurance Commission (1986) 161 CLR 141
(Page 3)
- SIMMONDS J:
Introduction
1 This is an application for review of a taxation of costs between a client and her solicitors. The review is as to part of an item in respect of which an application for review was made to the taxing officer. In his decision on the review (the taxing officer's decision) the taxing officer dismissed the application and made an adjustment in the terms of the taxation. The present application is for review of the resultant certificate.
Background
2 On 4 March 2004 the party charged instructed the practitioner in relation to injuries she suffered at work on 6 February 2003. The injuries included psychological injuries.
3 On 8 October 2004, at an informal conference, a settlement was arrived at.
4 By Deed of Discharge dated 16 December 2005 a payment was made 'in full and final settlement of Summerville's workers' compensation and common law claims', as well as certain other matters.
5 Subsequently the party charged gave written notice of her intention to have the practitioner's bill of costs taxed.
6 On 23 August 2006 the practitioner filed a bill of costs for taxation (the Bill of Costs).
7 The Bill of Costs included an item 4, in the amount of $13,677.50, as follows:
Description:
Various
Time spent by practitioners and clerks at Paul O'Halloran for work reasonably and properly incurred not otherwise included in any other item under scale (See Schedule 2)
Scale Item No.
6* & 13** & 16***
8 Schedule 2 to the Bill of Costs indicated the nature of the work done, including the following two items:
(Page 4)
- Attendance at the informal conference on 8 October 2004, including all reasonable and necessary preparation;
…
Considering and advising on potential common law claim, including all maters [sic] related thereto.
9 Below this passage were two tables of amounts for fee earners. Neither table related the amounts claimed to any particular passage in the preceding description of the nature of the work done.
10 The first table was under the heading 'a. Costs claimed under Worker's Compensation Determination', and showed a total of $5,802.50.
11 The second table was under the heading 'b. Costs claimed under Supreme Court Scale Determination', and showed a total of $7,875.00.
12 The total of those two amounts was the $13,677.50 amount earlier referred to.
13 The single asterisk at '6' under 'Scale Item No.' was a reference to 'Legal Practitioners (Workers' Compensation) (Conciliation Proceedings, Review Proceedings and Compensation Magistrate's Court) Determination 2003' (the Workers Compensation Determination).
14 The two asterisks at '13' under that heading was a reference to 'Legal Practitioners (Supreme Court) Contention Business) Determination 2002', while the three asterisks at '16' under that heading was a reference to 'Legal Practitioners (Supreme Court) (Contentions Business) Determination 2004' (together, the Supreme Court Determinations).
15 On 12 September 2006 Registrar Johnston taxed the Bill of Costs (the 12 September 2006 taxation). In the 12 September 2006 taxation he disallowed any claim in respect of common law proceedings. However, he allowed $1,250 for work done in investigating the possibility of such a claim and for attending the informal conference for which he determined there was no allowance under the Workers Compensation Determination.
16 By document filed 25 September 2006 pursuant to Rules of the Supreme Court 1971 (WA) O 66 r 53, the practitioner objected to the taxation in respect of 'the allowance given by the learned Registrar to item 4 of the Bill of Costs'. That allowance was shown in the document as $1250 which it was common ground was that amount above.
17 Order 66 r 53 reads as follows:
(Page 5)
- (1) A party who contends that the Taxing Officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, or at such earlier time as may, in any case, be fixed by the Taxing Officer -
(a) deliver to the other party interested in the allowance or disallowance and carry in before the Taxing Officer, an objection in writing to the allowance or disallowance specifying in the objection by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objections; and
(b) thereupon apply to the Taxing Officer to review the taxation in respect of those items or parts.
(2) Pending the consideration and determination of the objection, the Taxing Officer may if he thinks fit issue a certificate of taxation for or on account of the remainder or of part of the bill of costs. Any further certificate which may be necessary shall be issued by the Taxing Officer after his decision upon the objections.
18 Although the objections related to item 4 as a whole as I have indicated, the stated grounds of objection were expressed as follows:
The Registrar failed to properly exercise his discretion by disallowing entirely any claim for the pursuit of a common law claim. The learned Registrar erred, inter alia, for the following reasons
19 The reasons set out related to specified aspects of the Registrar's provision for and dealings with evidence as matters concerning a possible common law claim. In particular, the reasons refer to the Registrar's allowance for the preparation for and attendance at the informal conference referred to.
20 For the reasons delivered on 8 November 2006, Summerville v Paul O'Halloran & Associates (the reasons), Registrar Johnston dismissed the objections. However, he noted he had in his taxation on 12 September 2006 'allowed $1250 for work done in investigation of the possibility of such a claim [any claim in respect of common law proceedings]'.
21 He stated that that allowance was an 'inconsistency' with his 'ruling' in his taxation of 12 September 2006 that 'Any work done was necessary to be done in the workers compensation proceedings and is not shown not to be covered by the Workers Compensation Costs Determination 2003'.
(Page 6)
22 He stated that, 'to correct the inconsistency' he would 'tax a further $1250.00 from the bill'.
23 At the time of the delivery of the reasons, Registrar Johnston signed the allocatur. This shows that he did not allow any amount for item 4, where at the 12 September 2006 taxation he had allowed $1250.
These proceedings
24 By chamber summons dated 22 November 2006 and filed the next day, the practitioner applied pursuant to O 66 r 55 for orders that:
1. The certificate of taxation signed by Registrar Johnson [sic] on 8 November 2006 be set aside as regards item 4 of the Practitioner's Bill of Costs dated 22 August 2006; and
2. The Judge make such order to rectify the error as the Judge thinks fit.
3. Such further or other orders as this Honourable Court may deem fit.
25 Order 66 r 55 reads as follows:
(1) If a party is dissatisfied with the certificate of the Taxing Officer as to any item or part of an item objected to under Rule 53 of this Order, he may, within 14 days from the date of the certificate, or such other time as the Court, or the Taxing Officer at the time he signs his certificate, allows, apply to a Judge in chambers for an order to review the taxation as to that item or part of an item.
(2) The Judge, if of opinion that the Taxing Officer has made an error in principle, may thereupon make such order to rectify the error as the Judge thinks just.
(3) The certificate of the Taxing Officer is final and conclusive as to all matters which have not been objected to in accordance with these Rules.
26 On 22 January 2007 the practitioner filed an outline of submissions. From that outline, it appears that objection is taken to the disallowance of that part of item 4 of the Bill of Costs which is a claim for $7,875. In those submissions that amount is characterised as 'sought under [the Supreme Court Determinations] for considering and advising on potential common law claim, including all maters (sic) related thereto'.
27 At the hearing before me counsel for the practitioner confirmed that it was only the disallowance of that part of item 4, put forward as work properly done in relation to instructions to consider and advise on a
(Page 7)
- potential common law claim, for which it was contended that the taxing officer had made an error in principle for the purposes of O 66 r 55 and to which objection was made under that rule.
28 Four grounds for the objection are set out in the practitioner's outline. They are:
1. The taxing officer, having found that the practitioner had instructions to investigate the possibility of a common law claim, erred in principle in failing to allow any costs for considering and advising on a potential common law claim.
2. Insofar as there was an issue as to the scope of the practitioner's retainer, the taxing officer erred in principle as to the requirements for a retainer.
3. Insofar as there was an issue as to the scope of the practitioner's retainer, the taxing officer denied the practitioner procedural fairness in determining the issue.
4. The taxing officer failed to give any or any adequate reasons for his finding that any work done towards a common law claim was necessary to be done in the workers' compensation claim.
29 I deal with those grounds in that order.
Ground 1: failing to allow any costs for considering and advising on a potential common law claim
30 In the reasons (3) the Taxing Officer noted
[t]he lengthy letter from the Practitioner confirming the Party Charged's instructions stated specifically that 'We now confirm instructions to investigate whether or not your [sic] have a common law claim against your employer'.
31 I quote in full below the paragraph of which this was the opening sentence.
32 It is common ground that the letter referred to was a letter dated 18 March 2004 (the letter of 18 March 2004). A copy accepted to be a true copy of that letter before the taxing officer was put before me. I will consider other terms of that letter below. However, it is reasonably clear from the passage quoted, and confirmed by a finding, in the form of a 'ruling', in the reasons that is quoted from below, that the taxing officer
(Page 8)
- accepted that the instructions to the practitioner included that the practitioner 'investigate the possibility of a common law claim' (4). While the matter undoubtedly could have been more clearly expressed, I consider that finding included that the practitioner was retained to report on the result of this investigation, advise on the implementation of his recommendations were they to be accepted, and act in relation to that implementation were that advice to be accepted, as part of which the practitioner was instructed so to act.
33 That is, the taxing officer's finding was that there was a retainer in terms of the language from the Bill of Costs, sch 2, previously quoted, 'Considering and advising on potential common law claim, including all maters [sic] related thereto'.
34 Further, there was material before the taxing officer, which he appeared to acknowledge, that indicated that work pursuant to those aspects of the retainer had been done.
35 In relation to considering and advising on a potential common law claim, I note the following, from the letter of 18 March 2004, 2:
If by reason of a combination of physical and psychological problems you are over 16% permanently disabled, then you may well be able to sue your employer. If you are less than 16% permanently disabled, you will not be able to sue your employer. If you are between 16% and 29% permanently disabled, your claim will be capped at $285,000.00 to include any workers' compensation payment and medical expenses received to date. If you are adjudged over 30% permanently disabled, then there is no limit to your claim as advised.
36 It is common ground that this a reference to the allowance under the Workers' Compensation and Management of Injury Act 1981 (WA) (WCMI Act), as that Act stood at the relevant time, for damages to be awarded on common law claims only where the conditions as to the relevant degree of disability referred to in s 93E(3) are met.
37 For convenience, I set out WCMI Act s 93E(3) and s 93E(4):
(3) Damages can only be awarded if -
(a) it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or
(b) the worker has a significant injury and elects, in the prescribed manner, to retain the right to seek damages and
- the election is registered in accordance with the regulations.
- (4) For the purposes of subsection (3)(b) the worker has a significant injury if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations.
38 In the letter of 18 March 2004 there is then a reference to advice the practitioner provided to the party to be charged as to 'a potential criminal injuries compensation claim'. The letter confirmed that the party to be charged would attend to that herself, and the practitioner would 'take no action' in relation to that claim.
39 The letter continued by referring to appointments made with certain doctors '[i]n order to prove that you are not less than 16% permanently disabled', and to a prior report by a psychiatrist as to a 15% permanent disability 'from a psychiatric point of view' (2).
40 Later in the letter of 18 March 2004, the view is expressed that, from the circumstances of the 'assault as relayed to us by you', there is a 'potential common law claim against your employer' (3), and those circumstances are entered into. At the conclusion of that paragraph the following appears:
All these matters will have to be thoroughly investigated at a later stage with the assistance of an independent Barrister, as the issue of reasonably [sic] foreseeability is very much a live issue in this case.
41 I also note the request in the letter of 18 March 2004 for the client to keep her own notes as to the effect of the accident on her, with a list of specific subject areas for such notes, including items (4) which, on the submission of counsel for the practitioner, not contested by counsel for the party to be charged, go to matters of relevance more to a possible common law claim than to a workers compensation claim (see '(f)' and '(h)').
42 In relation to advice following on from action taken, I note the following from the paragraph in the reasons the opening sentence of which I have previously quoted from, and which in full is as follows (at 3, emphasis added):
The lengthy letter from the Practitioner confirming the Party Charged's instructions stated specifically that 'We now confirm instructions to investigate whether or not your [sic] have a common law claim against your employer …'. No common law claim was ever commenced or
(Page 10)
- carried on and the Practitioner was not able to produce any letter of advice that the Party Charged could get over the 16% disability threshold needed to launch a common law claim. In fact the Practitioner advised the Party Charged that in light of the unfavourable nature of medical evidence she should call off the Workers Compensation Preliminary Review where the medical reports would have to be produced and instead proceed to an informal conference. That advice was accepted, an informal conference took place and the claim was settled.
43 It appears to have been put to me for the party to be charged that the emphasised passage was not a reference to advice on the results of an investigation of a potential common law claim.
44 I agree that it is not clear the taxing officer is referring here to any such advice. It is clear he has found there was never any advice the potential common law claim should be pursued, and that there was never any such advice is not in contest before me.
45 However, it seems to me that the passage, in its context, both of the letter of 18 March 2004, and the paragraph itself, is some indication that the investigation referred to in the quoted passages from the letter of 18 March 2004 produced results which were relevant to advice on the workers compensation claim. That relevance would also appear to be in relation to the potential common law claim. Below I will note that the taxing officer did have other evidence before him than the 18 March 2004 letter of work done in relation to the potential common law claim, and it is not apparent why the results would not have been the subject of advice not to pursue the common law claim to the party to be charged. The matter is not considered further in the reasons. I explore the apparent reasons for that lack of further consideration of the matter below.
46 However, counsel for the party to be charged also directed me to the reasons, 4, where the taxing officer indicated he had asked at the taxation hearing, in relation to the practitioner's instructions to investigate any common law claim, three questions, the answers to the second and third of which, at least, indicated the taxing officer had found there was no proof of any work having been done under the retainer in respect of a potential common law claim.
47 I begin by noting that any such conclusion is in my view difficult to square with the terms of the letter of 18 March 2004 and with the passage from the reasons just quoted.
48 In my view the matter to which counsel for the party to be charged drew my attention, far from indicating a finding that no work had been
(Page 11)
- done under the retainer in respect of the common law claim, is consistent with or point to work having been done of that sort.
49 The questions in relation to the common law claim the practitioner was asked to investigate and their answers (reasons, 4) were as follow:
1. Whether there was any letter saying that the Practitioner had investigated any proposed common law claim and that such a claim should be made?
2. What work was done towards such a claim?
3. What work was done over and above what was necessary to prosecute the Workers Compensation Claim?
I was told that the answer to 1. was that there was no such letter of advise [sic].
In respect of 2. I was told that the only work done was the perusal of documents and review of medical evidence – all of which was clearly necessary in the workers compensation claim.
The only response to the third question was that it was a difficult claim and necessitated a great volume of work.
50 I consider that the first answer described does not indicate the taxing officer made a finding no work was done in relation to that aspect of the retainer. Rather, the paragraph indicates no work was done culminating in any such letter of advice.
51 I agree that the second answer described does not refer to any advice having been given to the party to be charged not to pursue a common law claim. However, it seems to me the question as described would likely have been understood at the hearing as directed to work done towards the 'investigation' of the claim, rather than action on the results of that investigation.
52 In any event, the answer indicates that the taxing officer had before him evidence of work done in relation to the investigation of the common law claim.
53 The words appearing immediately after the answer to the second question as described, together with the answer to the third question as described, in my view indicate the approach the taxing officer took to the evidence he had before him as to the work done in relation to the investigation of a potential common law claim. That approach was to determine whether or not the work done was 'clearly necessary in the
(Page 12)
- workers compensation claim'. If it was, under that approach it was taxable under the Determination applicable to such claims, the Workers Compensation Determination, and not under the Supreme Court Determinations.
54 This conclusion is confirmed by the 'rulings' which the taxing officer sets out immediately following the description of the answer to the third question. That part of the reasons (4 - 5) is as follows:
In the circumstances I made the following rulings:
1. I decline a further adjournment to bring oral evidence because I am satisfied that the instructions were to bring a workers compensation claim and to investigate the possibility of a common law claim.
2. That there were no instructions to prosecute a common law claim.
3. Any work done was necessary to be done in the workers compensation proceedings and is not shown not to be covered by the Workers Compensation Costs Determination 2003.
4. The allowances applicable are those on the scale pursuant to that determination.
55 Further, the rulings also confirm what the passage from the reasons first quoted above would tend to indicate, that because no instructions were given to 'prosecute', in the sense of 'launch', a common law claim, and the work done on the investigation of a potential common law claim was also necessary to evaluating any workers compensation claim, it was not appropriate to allow any claim for common law proceedings.
56 It did not appear to be in contest before me that the Workers Compensation Determination could not apply to work done in relation to a common law claim, whether or not a common law claim was evaluated for pursuit with (WCMI Act s 91E(3)(a)) or instead of (s 91E(3)(b)) a claim under the WCMI Act. Nor was it in contest that the Supreme Court Determinations could apply to such work.
57 However, it appeared to be the submission of counsel for the party to be charged that there was a qualification to that position. It was for cases where any work done in relation to a common law claim was also work that would in any event have to be done in relation to a claim under the WCMI Act, where in addition the common law claim was not pursued while a claim under the WCMI Act was continued with. This was whether or not such continuation was to settlement. In such cases, costs
(Page 13)
- for the work were properly allowable, if at all, under the Workers Compensation Determination.
58 The principal class of case would be work done to establish the degree of disability by reference to the range in WCMI Act s 91E(3) and s 91E(4), where it was established the disability was not within or above the range described in those provisions. The work done establishing the disability would of course be necessary to the workers compensation claim continued with. The present case appears to fall into that class, in whole or in part.
59 If this position were correct, then it seems to me there would be no error in principle in the approach taken by the taxing officer. However, I consider that position is not correct.
60 In my view if the work was shown to have been done pursuant to that part of the retainer which was to do with considering and advising on a common law claim then, whether or not that work could also be, and indeed was, turned to account in relation to that part of the retainer which was to do with bringing a workers compensation claim, that work should be taxed under the Supreme Court Determinations. It seems to me that the utility of the work for other purposes pursued subsequently does not change the character of the work when it was done.
61 It is true that the utility of the work for other purposes for which it was subsequently used is evidence that it was rather done for those purposes. It is also true that the work done may be shown to have been done both for the purposes of potential common law claims and for the other purposes. The practitioner's costs for the work should in my view be taxed by reference to that determination which is shown to be appropriate to its character. Where there is a choice of determinations for that purpose, it may be that the purposes for which the work was ultimately used may help to show that the character of the work is to be taken from those purposes, and not from the purpose for which it was not employed. However, in my view that conclusion is not entailed by that subsequent use. Much will depend on the terms of the retainer, the nature of the work done, and the advice given in relation to the work done. Where the retainer gives significance to the purpose for which ultimately the work was not employed, the work was of a nature showing it was done to determine whether or not to pursue that purpose, and advice was given to that effect, the character of the work should in my view be taken from that purpose.
(Page 14)
62 In this case, there is evidence, in the 18 March 2004 letter, to the first and second effects.
63 As to the matter of advice and action on it, there is the evidence, referred to by the taxing officer in the reasons, of the terms of the Deed of Discharge. Those terms so referred to included that (6)
at clause 2.5.3 that the payment is made "in full and final settlement of Summerville's workers' compensation and common law claims".
64 The Taxing Officer concluded that the quoted language should be seen with other language in the Deed that also treated the payment as full and final discharge of 'causes of action arising out of the Equal Opportunity Act and Industrial Relations Act', as (7)
simply an all embracing discharge of any claims she might have had and is not evidence of any common law claim or claim under the Equal Opportunity Act or the Industrial Relations Act having been brought.
65 It is not evident from the reasons that the taxing officer considered the matter further, in particular in light of the letter of 18 March 2004, and the 'unfavourable nature of the medical evidence' to which the reasons earlier referred as I have indicated. The reasons why he did not consider the matter further appear to have been two.
66 One such reason, as the passage last quoted indicates, was that the taxing officer could not find in the material referred to or otherwise evidence a common law claim was pursued. I have already indicated why I consider the absence of such evidence should not prevent the work being considered in relation to the Supreme Court Determinations.
67 The other such reason was that there was no evidence the work done was not necessary for the workers compensation claim. Again, I have indicated why I consider the absence of such evidence should not prevent the work being considered in relation to the Supreme Court Deliberations.
68 I should note at this point that it is not clear to me the taxing officer did not make allowance for at least some of the work in relation to other items in the Bill of Costs. Counsel for the practitioner put to me that the structure of the Bill of Costs made it plain that the items in it were mutually exclusive. However, it is not clear to me that the approach adopted by the Taxing Officer did not entail him considering whether or not work described in item 4, read with sch 2, might be considered to lie within other items, as work necessary to be done for the workers compensation claim to which the Workers Compensation Determination
(Page 15)
- applied, through an item or items employed elsewhere. However, it follows from his approach, and the disallowance of any amount for Bill of Costs, item 4, that he did not consider any of the work done fell within the item or items in the Workers Compensation Determination to which sch 2, table a, related.
69 It would follow, it seems to me, that any allowance for work done by reference to table b up to the amount there claimed would have to take account of any allowance for that work under another item in the Bill of Costs.
70 It was put to me that one matter in sch 2 could not have been the subject of any allowance under the Workers Compensation Determination. That matter was the 'informal conference'. It appears to have been common ground there was no specific item in the Workers Compensation Determination for such activity, unlike the position under the Supreme Court Determinations. However, it also appears to have been the position of counsel for the party to be charged that such matter might be capable of being subsumed under another item or items in the Workers Compensation Determination.
71 I do not have to reach a final position on this account. It seems to me that on a reconsideration of the matter such as that which it seems should be ordered in this case the taxing officer would ensure that, if an allowance for that part of item 4 in table b should properly be made, that taxing officer would ensure there was no doubling up.
72 It is important I confirm that I have not reached any conclusion on whether any such allowance should properly be made, applying what I have said is the correct approach to the matter. That is a matter for the taxing officer on the new taxation. In undertaking that task, the taxing officer should note that the task is limited by the effect of O 66 r 55(3), above.
73 It follows I would uphold the present ground.
74 Although it is not strictly necessary I do so, I should consider the remaining grounds, as they were fully argued before me.
Ground 2: the taxing officer erred as to the requirements for a retainer
75 This ground centred on the first question the taxing officer indicates he asked in relation to the investigation of the proposed common law
(Page 16)
- claim. I have previously set out that question, and the answer the taxing officer indicates he received.
76 Counsel for the practitioner put to me that there was no requirement for a retainer to be in writing.
77 It is undoubtedly the case that a retainer may be oral or indeed implied from conduct: see Pegrum v Fatharly (1996) 14 WAR 92, 94, 95 (Kennedy J), 102 (Anderson J). However, it seems to me the taxing officer was asking a question directed to evidence which the practitioner could provide. It is also undoubtedly the case that written evidence is likely to be particularly weighty. Indeed in this case the taxing officer noted the weighty effect of the 18 March 2004 letter, in relation to the question of the scope of the practitioner's retainer at the outset of the work done.
78 That is, it is not clear to me that the taxing officer made the error in principle attributed to him by this ground. I would not uphold the ground.
Ground 3: denial of procedural fairness
79 Although the matter is not altogether clear from the reasons, it appears, from the ruling '1' quoted above, that the taxing officer understood he had been asked to grant a 'further adjournment to bring oral evidence' (reasons, 4). Again, although the matter is not altogether clear, it seems the taxing officer understood the request to relate to the scope of the instructions or the retainer.
80 He had earlier, on completion of 'initial submissions' concerning 'whether the work done was in respect of a workers compensation claim or a common law claim', made initial rulings including that 'the Practitioner would need to satisfy me that he was entitled to charge on the common law basis, ie under the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004' (reasons, 3). It was common ground that the latter reference was to both of the Supreme Court Determinations. The taxing officer, on making those initial rulings, adjourned the taxation 'for the Practitioner to consider his course of action', after which the taxing officer 'was asked to resume the taxation and did so' (4).
81 Following that resumption, the taxing officer ruled that 'the instructions above referred to were clear that in respect of any common law claim the Practitioner was to investigate whether there was such a claim' (reasons, 4). He appears to indicate he then asked the three
(Page 17)
- questions as quoted above, and, after receiving the answers also as quoted above, made the 'rulings' previously set out, one of which included the reference to the 'further adjournment'.
82 It is not suggested that the practitioner was not properly represented at the hearing.
83 It seems to me in all of the circumstances I have described that the taxing officer had not, in denying the further adjournment, denied the practitioner procedural fairness.
84 It is of course fundamental to a fair hearing that that a party must be given a reasonable opportunity to appear and present their case: see Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ). A failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, [40] (Gaudron and Gummow JJ). Further, where there has been a denial of natural justice, the party affected does not have to show that the denial probably affected the result: it is only necessary that party show 'that the denial of natural justice deprived him of the possibility of a successful outcome': Stead v State Government Insurance Commission (1986) 161 CLR 141, 147 (Mason, Wilson, Brennan, Deane and Dawson JJ).
85 However, in view of the adjournment previously granted in the case, and the position on resumption, I am not satisfied there was a failure to accede to a reasonable request establishing a denial of natural justice. Had such a denial been shown, however, it follows from my earlier analysis in relation to ground 1 that the denial would have met the standard for relief in Stead.
86 It follows I would not uphold ground 3.
Ground 4: inadequate reasons for finding any work done was necessary in the workers compensation proceedings
87 I first indicate what the taxing officer said with respect to the finding referred to.
88 I repeat here the taxing officer's description, in connection with the answer he indicates he received to his question '2' in relation to the practitioner's instructions to investigate whether there was a common law claim, of the answer he indicates he received, and his observation immediately following it (reasons, 4):
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- In respect of 2. I was told that the only work done was the perusal of documents and review of medical evidence - all of which was clearly necessary in the workers compensation claim.
89 I have also quoted the 'ruling' numbered '3.' (reasons, 4) to the effect of that observation. Later in the reasons, the taxing officer, in dealing with one of the 'reasons for error' put to him by the practitioner, being whether 'some allowance ought to be given to the time taken to investigate 'a possible common law claim' and to advise on and take instructions with regard to those investigations', refers to 'the questions I asked and the answers I was given on that matter' (6 - 7). He goes on to say (7):
The Practitioner was not able to point to any work that was not done, and necessarily done, in the Workers Compensation proceedings, or advice given on or taking instructions with regard to those investigations.
90 I do not consider that the last quoted passage is other than a recapitulation of the matter appearing earlier in the part of the reasons to which I have just referred.
91 It is established in the context of proceedings of the present kind that a taxing officer is required to provide adequate reasons for the decision that officer provides: Crisp v Mossensons (Unreported, WASC, Lib No 970302, 18 June 1997, Templeman J) 15. However, as that portion of the judgment indicates, what is required are (15, quoting from Paul Seaman, Civil Procedure in Western Australia)
the ground and reasons of his decision on each objection and equally important that the taxing officer should give clear but concise reasons.
92 It seems to me that the reasons here given in relation to the objection that 'some allowance' should be given for the time taken to investigate a possible common law claim were sufficient. Unlike the decision of the taxing officer in Crisp, the reasons here set out the reasoning of the taxing officer in sufficient detail to permit the evaluation of those reasons on a further review, that is, in the present proceedings, as the present decision indicates.
93 True it is that further detail might have been provided as to the respects in which the work was 'necessary to be done in the workers compensation proceedings'. I have already indicated that it was not as clear from the reasons as it might have been what the work being referred to was.
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94 However, I take from Mossenson that the standard for the reasons takes account of the context in which the reasons are given and the purposes for which the reasons are required. It seems to me that the reasons here met that standard. I do not consider that Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, [26] (Steytler, Templeman and Simmonds JJ) requires any different conclusion.
95 It follows I would not uphold the present ground.
Conclusion and orders
96 It follows I have found an error in principle. I consider that an order should be made to rectify the error within O 66 r 55(2).
97 The order it was put to me by the practitioner that I should make was that the matter of the taxation of the Bill of Costs in the respect the subject of the objection should be remitted to a different taxing officer for taxation according to law. As I have indicated, any such taxation should be limited, in the ways I have described.
98 I am of the preliminary view that such an order would be appropriate. It does not seem to me I am in as good a position as a taxing officer would occupy to undertake the task of taxation I have described. However, I will hear from the parties as to the order I should make to rectify the error.
99 I will also hear from the parties as to the order I should make as to costs.
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