Tey v City of Gosnells

[2012] WADC 68

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   TEY -v- CITY OF GOSNELLS [2012] WADC 68

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   ON THE PAPERS

DELIVERED          :   9 MAY 2012

FILE NO/S:   APP 54 of 2011

BETWEEN:   KOK YONG TEY

Appellant

AND

CITY OF GOSNELLS
Respondent

Catchwords:

Taxation of costs - Review of taxation - Turns on its own facts

Legislation:

Nil

Result:

Objections not allowed

Representation:

Counsel:

Appellant:     In Person

Respondent:     Steven Blyth

Solicitors:

Appellant:     Not applicable

Respondent:     Lewis Blyth & Hooper

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

Nil

1. DEPUTY REGISTRAR HEWITT:  In this matter the appellant's appeal was dismissed by his Honour Judge Goetze by order dated the 15 February 2012.  His Honour also ordered that the appellant pay the costs of the appeal to be taxed if not agreed.

2. The respondents in due course lodged a bill of costs which came before me for taxation on the 10 April 2012.  The appellant has now lodged objections to that taxation which are as follows:

   (1)The appellant objects to the bill taxed on 10 April 2012 totalling $6,461.72 before Deputy Registrar Hewitt (refer to contents of transcript of proceedings on 10 April 2012), and the appellant relied on her argument that day.

   (2)The appellant brought to the registrar's attention that the order dated 24 February 2012 prepared and extracted by the respondent's lawyers and stamped by the District Court was to that was intended so relating to order 2, by the his Honour Judge Goetze.  Therefore, the appellant said that bill of costs dated 1 March 2012 present to the court of taxation was grossly inaccurate, and that she was prejudiced.

   (3)The taxation of the bill of costs lodged by the respondent's lawyers on 1 March 2012 should not have been listed for taxation on 10 April 2012 as such date was not consented to by both parties, and taxation of the bill of costs should not have gone ahead until the judge's order is in order.

   (4)The appellant objects that the registrar interprets the appeal costs include striking out costs.  His Honour Judge Goetze agreed that the respondent's rate notices issued to the appellant were invalid.  His Honour also agreed that the respondent had breached the Local Government Act 1995, the Local Government (Financial Management) Regulations 1996, and the Valuation of Land Act 1978.

3. To deal with those objections I first deal with items 1, 2 and 3.  The objection seems to be that the order upon which the taxation was based was wrongly extracted.  As far as I can see the basis of the objection is found in the words 'to be taxed if not agreed' which are included in par 2 of the order.  The associates note simply records an order 'the applicant to pay the respondents costs'.

4. This issue has been raised by the appellant on a previous occasion and acting Principal Registrar Kingsley indicated in a reply to that objection that he considered that the order had been correctly extracted.  I agree with that conclusion.  There is nothing in these objections that requires further attention.

5. As to item 4 my task is to give effect to the judge's order, not speculate as to the basis on which he reached the conclusion.

6. I now turn to the individual objections to the items in the bill.  The first objection is to item 1 and the basis of the objection is the amount claimed should not be allowed.  Absent any logical explanation as to the error upon which the objection relies it seems to me that the objection cannot be properly allowed.

7. The next objection is to item 2.  Item 2 relates to proceedings in chambers.  As well as the appeal there was an application brought by the respondent to strike out the appeal.  By order of Deputy Registrar Harman that application was to be heard in conjunction with the appeal.  By an earlier order also made by Deputy Registrar Harman on the 11 October the costs of appearance on that day were in the application and in the appeal.

8. In my opinion the strike out application was subsumed into the appeal by my interpretation the order which was made encompasses the proceedings which were before the judge on the day and the objection is not sustainable.  Even were the objection to be sustainable it could not lead to the deduction of the whole of the amounts claimed because some were ordered by Deputy Registrar Harman to be in the cause.

9. The next item under attack is item 3 of the bill.  That item is for getting up appeal for hearing.  It is said by the objector that the whole of that amount should be struck out.  I am unable to comprehend the relationship between that submission and the submissions relied upon which were set out in the objection to item two.  As a consequence I am of the view that the objection should fail.

10. The next objection is to item 7.  That item relates to drawing the bill of costs.  The objection is that the whole of the amount should be disallowed.

11. In my view that can not possibly be a proper objection since obviously a bill was drawn, filed, served etc.  On consideration of the tasks which were involved in drawing the bill up I considered that the amount claimed was appropriate and consequently allowed it.

12. For these reasons I am of the view that none of the objections raised by this appellant should succeed and her objections are not allowed.  I shall issue a final certificate upon the publication of these reasons.