Tasi Pty Ltd v Southern Ocean Maritime (Aust) Pty Ltd

[2002] WASC 104

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   TASI PTY LTD & ANOR -v- SOUTHERN OCEAN MARITIME (AUST) PTY LTD & ANOR [2002] WASC 104

CORAM:   WHITE AUJ

HEARD:   15 APRIL 2002

DELIVERED          :   7 MAY 2002

FILE NO/S:   CIV 2342 of 1999

BETWEEN:   TASI PTY LTD (ACN 008 717 253)

Plaintiff

TENIX DEFENCE SYSTEMS PTY LTD (ACN 006 870 846)
Second Plaintiff

AND

SOUTHERN OCEAN MARITIME (AUST) PTY LTD (ACN 073 338 744)
First Defendant

GRANT McKENZIE
Second Defendant

Catchwords:

Review of Taxing Officer's decision upon the taxation of costs - Whether error in principle disclosed - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr L S Panotidis

Second Plaintiff            :     Mr L S Panotidis

First Defendant             :     In person (Mr G McKenzie)

Second Defendant         :     In person

Solicitors:

Plaintiff:     Cocks Macnish

Second Plaintiff            :     Cocks Macnish

First Defendant             :     In person (Mr G McKenzie)

Second Defendant         :     In person

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

Grigoletto v Myer Properties WA Limited, unreported; DCt of WA; Library No 3667, 31 March 1993

Case(s) also cited:

Nil

1. WHITE AUJ:  This is an application by the first defendant for a review of the taxation of the plaintiffs' costs.   The first defendant's objection was expressed as follows:

   "Objection is taken to the amounts allowed in items 3 and 5 of the Plaintiff's bill of costs in that the allowance is, in the circumstances, outside that properly allowable by a reasonable taxing officer.  Such is the case because:

   (a)the action did not proceed to trial;

   (b)the chronology of the action was limited;

   (c)the resolution of the action only required limited preparation for items 3 and 5 of the bill.

   The amended bill of costs amounts to $11,467.00, the amount taxed off is $1700.00 and the net result equals $9,767.00.  The Registrar has made this allowance which is not supported by the facts of the case itself and the duration of the proceedings.

   Objection is taken on the basis that the Registrar made an error in principle in that the allowance made was too high:  Grigoletto v Myer Properties WA Ltd (unreported, DCt, Perth, Heenan DCJ, 31.3.93)."

2. In the Bill of Costs presented by the plaintiffs to the Taxing Officer for taxation, there was claimed an amount of $4,860.00 for "getting up", under item 13.

3. That figure included an amount of $1,350.00 for taking statements from witnesses, $2,160.00 for the preparation of certain affidavits, $540.00 for an attendance at Clough Engineering to inspect a file and $810.00 for enquiries through the Department of Transport in respect of the ownership of a Buoy.

4. The learned Taxing Officer was of the view that the cost of the preparation of the affidavits should not have been claimed as part of the "getting up" but should properly have been included in the costs of the motion for an injunction.  Accordingly, he reduced the figure of $4,860.00 for "getting up" by $2,160.00 and increased the figure claimed in relation to the motion for an injunction by the like amount.  That exercise did not, of course, affect the total of the Bill presented for taxation.

5. The first defendant's main complaints seemed to relate to the items of $540.00 and $810.00, mentioned above, and also to the fact that the plaintiffs were represented by a senior solicitor whereas, in the first defendant's submission, the work involved could have been dealt with adequately by a less senior practitioner and, therefore, at less cost.

6. I am not persuaded that this latter point is one of substance.  The issues raised were of importance and covered considerable ground in respect of which evidence had to be prepared.

7. Turning, however, to the complaints in respect of the amounts of $540.00 and $810.00 respectively, the fact is that those sums formed part of the amended total claimed for "getting up" of $2,700.00 (being the figure of $4,860.00 less $2,160.00 transferred to the motion for injunction).  From that figure of $2,700.00, the Taxing Officer disallowed $1,000.00.  In effect, therefore, of the two amounts of $540.00 and $810.00 referred to above, only $310.00 was allowed on taxation – there being no attack on the claim for $1,350.00 for taking statements from witnesses.

8. I was referred to the decision of Heenan CJDC in Grigoletto v Myer Properties WA Limited, unreported; DCt of WA; Library No 3667, 31 March 1993 in which his Honour held that review does extend to quantum if error in principle is involved.  In my opinion, the first defendant has not established any error of principle on the part of the learned Taxing Officer which would warrant the review of his decisions on taxation of the Bill of Costs.

9. In the circumstances, the application by the first defendant is dismissed.