Tey v Optima Financial Group Pty Ltd [No 2]
[2011] WADC 129
•24 AUGUST 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 2] [2011] WADC 129
CORAM: DEPUTY REGISTRAR HEWITT
HEARD: 19 AUGUST 2011
DELIVERED : 24 AUGUST 2011
FILE NO/S: APP 44 of 2009
BETWEEN: KOK YONG TEY
Appellant (Defendant)
AND
OPTIMA FINANCIAL GROUP PTY LTD
Respondent (Plaintiff)
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE COCKRAM
File No :CIV 8354 of 2008
Catchwords:
Practice - Procedure - Objection to taxation - Turns on its own facts
Legislation:
Nil
Result:
Objections not allowed
Representation:
Counsel:
Appellant (Defendant) : In person
Respondent (Plaintiff) : Mr S V Forbes
Solicitors:
Appellant (Defendant) : Not applicable
Respondent (Plaintiff) : De Vita & Dixon Lawyers
Case(s) referred to in judgment(s):
Nil
DEPUTY REGISTRAR HEWITT: This matter proceeded to a taxation on 5 August 2011 at the same time as an application to vacate that hearing date. That application was dismissed on the grounds which appear on the transcript of the day. To the extent that objection might be made to the decision to refuse the application for an adjournment that should be by way of appeal not by way of objection to the taxation. For the sake of completeness, however, I mention that my reasons for dismissing the application were:
1.The bill of costs was served in accordance with the rules and the taxing party had enquired of the respondent if she had unavailable dates and she had declined to respond to that overture.
2.It is not a requirement that a taxing party enquire whether or not the date fixed for taxation is convenient but in this case the taxing party did so as a matter of courtesy, which courtesy was not availed of by the paying party.
3.It is not the case that a taxing party must obtain the consent of the paying party before a taxation can proceed.
4.The appellant by her attendance and spirited argument demonstrated she was available to attend the taxation, and notwithstanding her argument to the contrary not impaired by illness or disability which affected her capacity to deal with the issues as required.
As to item 4 of the objection, an allowance of $193 was allowed, that being an increase of $65 from the $128 claimed on the bill. That amendment was permitted because evidence was produced to me that the amount actually paid was $193.
I now turn to deal with the substance of the remaining objections. In the event that my response to these objections is reviewed I refer the judge dealing with that matter to the transcript of the proceedings in the taxation so that he or she may better understand the way in which the matter proceeded. The central objection which is brought by the plaintiff is that the appeal was struck out on the basis that the amount in issue did not justify the costs which were likely to be incurred. At first blush the appellant has a point when complaining that the amount allowed seems to run counter to that principle. The difficulty faced by the taxing party in this case was that at the first appearances on the directions hearing the respondent company was not represented by a lawyer. By the time a lawyer did appear the appeal had already been set down for hearing. That generated an appeal by the appellant complaining that a certain portion of the transcript was not available and it was therefore not appropriate to set down the appeal. The matter was therefore adjourned for further directions and the respondent was given leave to file an application pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 which was the basis upon which the judge dismissed the appeal. Unfortunately from that point on the appeal and the application to strike out under the provisions of the Magistrates Court (Civil Proceedings) Act ran in tandem and as a consequence the appellants had no choice but to prepare not only for the argument as to the application to strike out but also as to the substance of the appeal. In the event although her Honour dismissed the appeal on the grounds of the Magistrates Court (Civil Proceedings) Act application, she also considered the merits of the appeal and of proposed amendments to the grounds of the appeal and as a consequence determined that none of the grounds nor the amended grounds had any prospect of success.
No doubt as a result of that process her Honour ordered the appellant to pay the costs of the appeal. In my view the time to have put forward an argument that the costs recoverable by the respondent should be restricted to those relating to the s 43(3) point was at the delivery of the decision. Once her Honour had made the order she did, encompassing all the costs of the appeal, it is beyond the jurisdiction of a taxing officer to vary that order, which is what, in effect, the objection invites me to do.
In assessing the amount to be paid to the respondent on its bill of costs I had regard for the manner in which the case had proceeded through the court and had regard to the fact that in effect the application to strike out had been subsumed into the appeal itself such that the respondent was required to attend and not only argue that application but also argue the merits of the appeal itself. Certainly the appellant devoted time at the hearing of the matter to arguing the merits and, as I have commented, the judge dealt with the merits. In the circumstances I formed the view that the respondent was entitled to the work preparing and dealing with the merits of the appeal at the hearing of the appeal and as a consequence made the allowance on the taxation which is recorded. As a consequence the objections which are contained in pars 4 and 5 of the objections dated 18 August 2011 are not allowed.
I now turn to the next item, which is settling and extracting the order dismissing the appeal. That approximates half an hour of a senior practitioner's time and involves drawing and engrossing the bill. Although expressed as a maximum within the scale, the practice has always been to regard that as a fixed item, it being the view of taxing officers that the process involved is deserving of that allowance. Accordingly, I do not allow the objections to item 7 of the bill.
Objection 8 refers to item 8 of the bill which is drawing the bill of costs, copies and service. The objection being that the amount is excessive and the bill was inaccurate. Certain items of the bill were taxed off, but that is a normal part of the process of taxation. Other amounts were reduced and again that is part of the normal process of taxation. The allowance claimed is something over an hour of a senior practitioner's time and also includes the tasks of filing the bill in the court, attending the court and paying the assessed fees and serving the bill on the paying party. In the circumstances I consider the allowance of $440 which I made to be appropriate in this case.
The final objection relates to item 9 of the bill which was preparing for and attending at taxation. An amount of $594 was allowed. Given that the taxation itself went from 9.33 to 11.06, approximately 1 1/2 hours, and the solicitor attending the taxation was a senior practitioner, although arguably appearing as counsel, commanding a fee of either $429 per hour or $321 per hour depending on how one might categorise the capacity in which Mr Forbes appeared I am unable to see how there can be any proper objection to the amount allowed which appears to me makes little allowance for preparation prior to the taxation and merely reflects the time taken at the taxation. It is my conclusion therefore that the objections are without substance and they will not be allowed.
The time for a review of this decision shall be extended to 21 days from the date of these reasons.
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