TANAustralian Securities and Investments Commission v David Moss Corporation Pty Ltd
[2007] WADC 22
•14 MARCH 2007
TANASIC -v- DAVID MOSS CORPORATION PTY LTD [2007] WADC 22
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 22 | |
| Case No: | CIV:1157/2006 | NOT APPLICABLE | |
| Coram: | DEPUTY REGISTRAR HARMAN | 13/03/07 | |
| PERTH | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Objecting party successful in part | ||
| PDF Version |
| Parties: | VESELIN TANASIC DAVID MOSS CORPORATION PTY LTD |
Catchwords: | Practice Practice under the Rules Supreme Court of Western Australia 1971 Review of taxation Sufficiency of objection Scope of O 66 r 53(1) Scale of items for copying and statement of claim considered |
Legislation: | Nil |
Case References: | Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Cerini v McLeods (a firm) [2004] WASC 45 Hingston v Challiston Pty Ltd & Ors [2006] WADC 132 May v Vincent Smith as Administrator for Cole Engineering Pty Ltd (Under Administration) & Anor [2001] WASC 352 Sharpe v Pascoe, unreported; SCt of WA; Library No 521.1; 12 August 1968 Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
DAVID MOSS CORPORATION PTY LTD
Defendant
Catchwords:
Practice - Practice under the Rules Supreme Court of Western Australia 1971 - Review of taxation - Sufficiency of objection - Scope of O 66 r 53(1) - Scale of items for copying and statement of claim considered
Legislation:
Nil
Result:
Objecting party successful in part
(Page 2)
Representation:
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : S C Nigam & Co
Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Cerini v McLeods (a firm) [2004] WASC 45
Hingston v Challiston Pty Ltd & Ors [2006] WADC 132
May v Vincent Smith as Administrator for Cole Engineering Pty Ltd (Under Administration) & Anor [2001] WASC 352
Sharpe v Pascoe, unreported; SCt of WA; Library No 521.1; 12 August 1968
Case(s) also cited:
Nil
(Page 3)
1 DEPUTY REGISTRAR HARMAN: The plaintiff has filed objections to particular determinations made upon taxation of his bill of costs.
2 The first relates to items 2 and 4 of the bill, by which under item 30 in the scale, he had sought to recover the cost of copying the writ and statement of claim. Item 30 is as follows:
"Photocopies where necessary, including of documents for which allowance is otherwise made in this Determination."
3 Each item was disallowed and accordingly there is jurisdiction under O 66 r 53(1) of the Rules of the Supreme Court 1971 to review those determinations.
4 The error contended for by the plaintiff is that:
"The Taxing Officer erred in principle in making no allowance by finding that making photocopies of the documents in question was not necessary."
5 When what is now item 30 was introduced into the scale it provided scope for recovery of "photocopies where necessary". Submissions were then often made by adverse parties along the lines that photocopying the documents generated by the beneficial party's solicitor ought not to be encouraged as carbons could have been generated at no cost. Because that submission resonated with the limiting effect of the test of recovery that applies at taxation, it may have obscured the more fundamental consideration which was that there was scope to recover copies under the scale items for such documents. That scope is established by rules that relate to the process of which the generation of the document is a part. In the case of a writ, that it would not issue unless it has been copied. In the case of a statement of claim; that a copy of what has been filed be served. It is by the seal on the document returned to the lodging party that a document would be constituted as a writ or statement of claim.
6 The only change to the scale that would have any bearing upon what I have canvassed was the recent introduction of item 32. It provides scope to recover for work not covered by any other item. In my opinion that scope is consistent with the conclusion that the other items provide comprehensively for discrete processes. I would add that if there is no scope to recover for filing under items 1(a) and (b) of the scale, then prior to the introduction of item 32 in 1999 there would have been no recovery by a solicitor from his client either for that step or by extension, for service.
(Page 4)
7 Recovery for a service under any scale item depends upon satisfaction of the first limb of the test of recovery: the necessity for its provision. Whether a claim for copies had been made under either item 1(b) or 30 it would be open to the adverse party to contest that it had been necessary that the document be copied. In the event of there being a challenge, the datum would be the rules. Where a claim is made under item 30 the additional issue to be considered is whether it had been necessary to generate the copy by the use of a photocopier. The words "including of documents for which allowance is otherwise made in this Determination" introduced into item 30 in 2004 do not diminish the scope for recovery provided by item 1 for recovery of a copy of a writ or pleading generated for the purpose of filing. It is relatively easy to appreciate that where copies are generated for other purposes those words may enhance the scope for recovery under item 30.
8 At taxation the plaintiff maintained that each document had been photocopied for the purpose of filing. The defendant's response to the objection distinguishes the processes of printing and photocopying. It then draws on the proposition that had the documents been generated in the usual manner, the copies would have been printed. At taxation the plaintiff did not contest the proposition that each copy could have been printed. I did not consider that the onus of persuasion had been satisfied simply by the fact that the documents had been photocopied.
9 In accordance with what I have already outlined, the fact that the claims were disallowed did not mean that the plaintiff did not recover costs for copies of the relevant documents, only that he did not do so under item 30. The defendant had not contested the provision of any part of the services that related to the claims for the writ and statement of claim but contested the fee claimed for those services. In the process of determining quantum there had been no reason for me to consider that the plaintiff ought not to recover to the extent provided by the relevant scale items for those services.
10 At that point I suspect that I ought to provide some further detail of what transpired at the hearing. On being told that there was an issue as to the quantum of the fee claimed for the writ I turned to the writ and whilst receiving submissions from the parties considered its content. On turning back to the bill there had been no reason to consider any other item would have any impact on the claim. Surprising as it may seem, despite the submissions of the parties made in relation to the intervening item, (for photocopying the writ) and the determination made in relation it, in dealing with the claim for the pleading I followed the same process. I did
(Page 5)
- not consider the prospect that there may have been another item under which the plaintiff had sought to recover the cost of photocopying the pleading.
11 Whether in such a case a taxing officer would err in failing to disengage part of a process from an item which provides for comprehensive recovery and allocating it to another possibly raises as nice a point as those that I have canvassed to this point in my reasons; but struggle as I may, I have not managed to isolate it. The significant consideration for present purposes is that the prospect of such error in this case was foreclosed upon by the fact that the defendant had not put in issue the scope of recovery for the relevant services and the plaintiff had not alerted me to the fact that discrete alternative claims had been made.
12 Ultimately it is fundamental that under the usual order for costs a plaintiff has always been entitled to the cost of his solicitor's provision of an effective writ and statement of claim. I suspect that from the viewpoint of either party to a taxation there would be no proper ground for objection if recovery for part of a service is had under one item rather than another. In the event that the plaintiff succeeds in any objection taken as a result of review of the determinations, it would follow that the result of taxing the claims for the writ and statement of claim ought to be set aside so that adjustment can be made to the quantum determined for those services.
13 The next determination to which objection is taken was that made in relation to the amount claimed for the statement of claim. The plaintiff had claimed $1,850 and recovered $800. That result was not founded upon the disallowance of any part or parts of the service but simply on an assessment of its value. I considered that the fee claimed was excessive.
14 The issue that emerges from that context is whether the objection comes within the scope of the taxing officer's jurisdiction to review provided by O 66 r 53(1). I accept that judges of this court have contemplated that a taxing officer may find jurisdiction under that rule to review quantum determinations. I have delivered reasons in relation to that proposition in Roblett v Pieroni [2005] WADC 215 and see no reason to depart from the conclusion that I reached in that case; that it would not be appropriate for a taxing officer to do so.
15 Be that as it may I will address the objection raised by the defendant in order to provide reasons for the determination made. The objection is as follows:
(Page 6)
- "The Taxing Officer erred in principle by not taking into account the time spent by a Senior Practitioner and a paralegal in preparing the statement of claim."
16 Quantum was determined in accordance with the relevant part of the test that applies under the order for costs; the plaintiff was entitled to recover the reasonable cost of the service provided. Insofar as the amount recovered relates to drafting the pleading, the standard to which that test was applied was that of a competent practitioner pleading the claim for damages in an efficient manner. I recognised that it had been appropriate for the plaintiff to allege the identity of the parties, the relationships between them, the circumstances in which the plaintiff sustained injury, the defendant's breach, the plaintiff's injuries and the impact of those injuries. I accepted that to have ensured that the document accurately and comprehensively expressed the plaintiff's cases would have taken some time, care and attention to detail. The document extends over 13 pages although each page bears only 22 lines of type. At 3 points it specifies that further particulars would be provided. The plaintiff's submissions did not suggest that the task had presented any particular difficulty. My assessment was that the task would not have been complex. I take it from the terms of the objection that the plaintiff would contend that in determining quantum a taxing officer must take into account the time that had been devoted to the provision of a service and that in determining the quantum of the claim, had failed to do so. As I have indicated, I did take time into account in determining quantum. The extent to which the plaintiff would contend that a focus on time would either exclude or be accorded priority over other considerations is not clear. The objection is at least unhelpful and would be amenable to being characterised as insufficient.
17 Rule 11(2) is as follows:
"Except when otherwise ordered, solicitors are, subject to these Rules entitled to charge and be allowed the fees set forth in any relevant scale in respect of the matters referred to in that scale and higher fees shall not be allowed in any case except such as are by this order otherwise provided for."
18 It follows that where the scale expresses a fee it establishes the upper limit of the discretion of the taxing officer. Within the range established by that limit a taxing officer would make a determination of what was reasonable for the service provided.
(Page 7)
19 Item 1(b) of the scale does not specify that such a determination would be made on the basis of the amount of time that had been devoted to the provision of a statement of claim. To suggest that time spent in the provision of a service would either be the exclusive or significant determinant of value would overlook the fact that in the absence of any special feature, the value of a service is found on an assessment of the context in which it provided, of how it would be efficiently provided within that context, and of its relative significance as a service of the kind provided. To seek to mediate those considerations through a comparatively meaningless construct in order to assess value would be to introduce the prospect that an appropriate result would be distorted. The time taken by the time taken by a practitioner to deliver a service in the manner in which he chose to do so is one further step removed from the essential considerations. In the case of the particular claim, once those considerations had been reflected upon I did not consider that it was appropriate to increase the fee simply because a process of valuing time would have generated scope for the perception that an increase was warranted.
20 It is noteworthy that an alternative method for determining quantum is provided for a relatively small number of scale items, one of which is for engaging in a pre-trial conference. Those items prescribe that recovery will be had at hourly rates. Each relates to a service that would have been provided to the beneficial party in the presence of its opponent. At taxation it would have the opportunity to make observations in relation to the efficiency with which the service had been provided.
21 The only support for the proposition that in determining a reasonable level of recovery for a statement of claim a taxing officer would exclusively focus upon time devoted to the provision of a service is founded upon the determination of the Legal Costs Committee made in 1996.
22 At Part 4 of that determination the Committee offered courts considering applications under O 66 r 12 some insight into the process by which the scale had been set. At cl 7(1) reference was made to the difficulty in determining whether to increase the scope for recovery would be appropriate. At cl 7(2) it expressed that each item revealed the hourly rates and the mechanism by which the maximum fee recoverable under the scale had been set. The illustrations provided at cl 7(3) and (4) may be taken to suggest that in taxing a claim a taxing officer would utilise the same methodology in determining the value of a particular service.
(Page 8)
23 It is worth emphasising that cl 7 is expressed under the headings:
PART 4-O.66, R.12 RULES OF THE SUPREME COURT
Order under O.66, r.12 of the Rules of the Supreme Court
24 The illustrations provided in cl 7(3) and (4) do not amount to a direction to taxing officers any more than cl 7 is a direction to a judge determining an application under r 12.
25 What is expressed at cl 7 is consistent with what the Committee had expressed at cl 6(4): that the scale reflected the fact that within the profession, the cost of legal services was calculated by reference to time reasonably spent in their delivery. It is worth recording that the datum to which the Committee referred was a process of charging under cost agreements that permitted recovery of the cost of time devoted to undifferentiated activity. In valuing a service for the purpose of determining the extent of recovery under the usual order for costs the taxing officer is not simply calculating the cost of undifferentiated activity but valuing a discrete service according to the terms of the test of recovery that applies under such an order. The first limb of that test restricts recovery to those parts of a service necessarily provided, the second to the reasonable value of those parts.
26 In May v Vincent Smith as Administrator for Cole Engineering Pty Ltd (Under Administration) & Anor [2001] WASC 352, a case cited by the defendant in support of a proposition made in relation to the next objection, I note that a passage at par 20 reinforces my observations in relation to cl 6(4). It is as follows:
"Item 13 relates not to the general preparation of a case, but to getting up case for trial."
27 In Cerini v McLeods (a firm) [2004] WASC 45Pullin J canvassed the 1996 determination and offered some insight into the thinking of the Committee of which he had then been the Deputy Chairman. At par 25 he states in part:
"Over the years, this Scale was adjusted from time to time. How the allowances for items in the Fourth Schedule … were arrived at, no-one knew."
28 Be that as it may, there is no reason to consider that in valuing services within the limits that had been provided by that scale taxing officers had not appreciated what had been required of them. The
(Page 9)
- authorities are replete with determinations and a full measure of other indications that put beyond doubt that recovery would be had by reference to the value of a discrete service that had been provided.
29 Rule 11(2) does not establish a basis for a taxing officer to fetter his discretion in valuing a service by reference to the illustrations provided by cl 7(3) and (4) of the 1996 determination of the Committee. Part VI of the Legal Practitioners Act 1893 under which the determination was made provides the Committee with the power to regulate the remuneration of practitioners. The scale specifies that recovery for some services would be determined by reference to time; it does not so provide for the purpose of determining what is recoverable for a statement of claim. At that point it simply expresses the data upon which the Committee drew in determining the maximum fee recoverable. There is no presumption or other mechanism that would operate to the effect that what is revealed by cl 7 ought to have any impact at taxation under an order for costs. There is no reason for me to determine whether the purpose of the Committee in expressing Part 4 of its determination was within the scope of its authority but it I will record that its stated purpose had nothing to do with any part of the process of taxation.
30 The next determination to which the plaintiff takes objection is the disallowance of the claim for getting up case for trial. It was made on the basis that the pleadings had not closed. I considered that it followed that the issues required to be got up for trial had not been isolated. Thereby the plaintiff was not able to satisfy the first limb of the test of recovery namely that the services for which the claim had been made had necessarily been provided. That determination is within the scope of O 66 r 53(1).
31 The objection taken is as follows:
"4.1 The Taxing Officer erred in principle in finding that no allowance for getting up should be made (or an allowance in lieu of getting up pursuant to Order 66 Rule 21) on the basis that:
4.1.1 the pleadings had not closed at the time when the matter was settled and consequently the issues had not been defined;
4.1.2 the reasons for decision in Sharpe v Pascoe (unreported, WASC, Hale J, 12.08.68, Lib No 521.1) allowing pre-writ costs as part of getting up were irrelevant.
- 4.2 the item should have been assessed by (sic) in the normal way by hearing and considering submissions from both parties regarding the nature and complexity of the matter, the time reasonably and/or reasonably spent by the plaintiff's solicitors in gathering and considering evidence, briefing counsel and obtaining counsel advice and any other matters relevant to a claim for getting up"
32 I do not recall that at taxation the issue of recovery under r 21 was canvassed. Be that as it may, the rule is expressed to apply to items for which a fee is prescribed. There being no prescribed fee for any scale item it currently stands as an anachronism with no practical effect. That is the effect of reasons that I provided in Hingston v Challiston Pty Ltd & Ors [2006] WADC 132 at pars 18-21 and I see no reason to change the view that I expressed in that case.
33 I note that the defendant cited May v Vincent Smith as Administrator for Cole Engineering Pty Ltd (Under Administration) & Anor (supra)for the proposition that there can be no recovery for getting up case where there has been no substantial trial. In my opinion that case does not stand for that proposition.
34 Sharpe v Pascoe, unreported; SCt of WA; Library No 521.1; 12 August 1968 does not stand for the proposition that a party is entitled to recover pre-writ costs as part of getting up the case. Although the related issue of the timing of the provision of services had been raised before Hale J by the objecting party, his Honour expressly found that he was unable to review the taxing officer's decision on that basis.
35 In that case the taxing officer had actually made distinct determinations, one for getting up the case on the question of the quantum of damages and the other on liability. The objection taken had been that the taxing officer had provided recovery to a greater extent than was permitted by what is now item 19(g) of the scale. It states that where the quantum of damages was the only issue tried then the limit on the maximum recoverable be reduced to a proportion of the amount otherwise available. The objection had only been concerned with the validity of particular quantum determinations, not whether the services upon which they were founded were within the scope of getting up the case for trial. Although his Honour canvassed practice and the intention that had found expression at item 19(g), he recorded that in order to determine the issue before him did not call for its interpretation. On its terms item 19(g) only applied in the event that there had been a trial. As there had been no trial
(Page 11)
- the taxing officer had not erred in exceeding the limit on recovery that it imposed. The decision has no application to the context presented by the plaintiff's objection.
36 I have no difficulty with his Honour's reading of item 19(g) although its application would reveal some scope for tension. In real terms, what had expressly been allowed for getting up on the issue of liability would not have been recoverable had there been a trial. For what it is worth my observation in relation to the operation of item 19(g) is that if some allowance would be considered appropriate for getting up the case on the question of liability, the rule would not operate in such a manner that those parts of the service would be disallowed; its only impact would be that the maximum fee recoverable for getting up would be less than would have been the case had the issue of liability been tried. Although some appear to be readily distracted by the results obtained from the exercise of contrasting the extent of recovery available under different scale items, ultimately the exercise is fruitless. The scale is the scale. It is of no consequence that its provisions or application may throw up some interesting results and scope for comparison.
37 I have no difficulty with the proposition that under the usual order for costs, services provided prior to the issue of a writ may be constituted as services provided within the scope of the action. That facet of the scope for recovery is revealed upon the application of the test of recovery that applies under such an order. In circumstances where a service or part of a service is provided at an early stage, the only modification required to be made in its application is that the condition that the service had been necessarily provided would only be satisfied by what had later transpired in the action.
38 Although the plaintiff has not raised the particular point in his objection it occurs to me that the determination made was made in error. That is because the case to be got up on the question of quantum does not depend upon its exposure by operation of the close of pleadings.
39 According to r 53 (1) (b), where a party contends for an error in principle the relevant objection should specify the grounds and reasons for the objection. According to r 54 (1), upon review the taxing officer shall reconsider and review his taxation in relation to the objections. In Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at p 625 Kitto J is recorded as follows:
(Page 12)
- "What, then, is the power of a taxing officer who, not yet having given his certificate of taxation, is considering objections to his disallowance of portions of particular items? Clearly the rules governing objections do not provide for his considering of anything but the objections. The words "upon such objections" in r54 are not surplusage; they plainly limit the scope of the duty which the rule creates. Indeed it has been pointed out that objections ought to be carefully framed, for it is to those and those alone that the taxing officer's answers are directed. … But apart altogether from the duty to reconsider the allowance or disallowance objected to, the taxing officer has the power, in my opinion, to re-open his taxation in respect of any item in the bill at any time before he signs his certificate or allocatur. Until then he has not completed the taxation of the bill … and he is therefore at liberty to change his decision upon any item as to which he thinks that he has made an error."
40 It follows that it is appropriate that the taxation of the plaintiff's claim under item 6 of the bill ought to be reconvened.
41 The last determination the subject of the plaintiff's notice of objection relates to item 9 of the bill which was for preparing for and attending at taxation and for the filing fee on the bill and a taxing fee. The determinations made in relation to those claims simply followed upon the defendant's submission that the plaintiff had been provided with an offer of costs in excess of the level of his recovery. As the plaintiff states in his objection, the error contended for flows from the disallowance of the claim for getting up case for trial. I agree that the determinations made in relation to those items fall to be considered along with the claim for getting up case for trial.
0
5
1