Tey v Optima Financial Group Pty Ltd [No 2] - [2012] WASCA 68

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 2] [2012] WASCA 68

CORAM: EM HEENAN J

HEARD: 23 FEBRUARY 2012

DELIVERED : 23 FEBRUARY 2012

PUBLISHED : 23 MARCH 2012

FILE NO/S: CACV 78 of 2010

BETWEEN: KOK YONG TEY
Appellant
AND
OPTIMA FINANCIAL GROUP PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DAVIS DCJ
Citation  :TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2010] WADC 98
File No  :APP 44 of 2009

Catchwords:

Taxation of costs - Application to set aside certificate of taxation - Application already made to registrar and refused - Application to adjourn hearing - No merit or prospects of success - Adjournment refused - Application dismissed

Legislation:

Rules of the Supreme Court (WA), O 66 r 54

Result:

Application for adjournment refused
Application for extension of time refused

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr S V Forbes

Solicitors:

Appellant: In person
Respondent: De Vita & Dixon

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

Tey v Optima Financial Group Pty Ltd [2011] HCASL 41

EM HEENAN J: In these proceedings on 12 November 2010, the Court of Appeal, constituted by Newnes and Murphy JJA, made an order that an appeal instituted by Mrs Tey against a decision of the District Court of Western Australia, dismissing an appeal to that court from the Magistrates Court should be struck out. The decision in the Magistrates Court had been that Mrs Tey should pay an amount of $550 or thereabouts to the respondent, Optima Financial Group Pty Ltd, for accounting or audit fees rendered for services provided by the respondent at the appellant's request.
The appeal in the District Court was dismissed, pursuant to statutory powers which allow a court to dismiss such an appeal where the amount or question at issue is not reasonably proportionate to the costs likely to be occurred in the proceedings. Her Honour Judge Davis in the District Court was satisfied that this was such a case and struck out that appeal. Dissatisfied with that decision Mrs Tey appealed further.
Mrs Tey applied for leave to appeal to the Court of Appeal and, as I have already said, that appeal was struck out by the order of the Court of Appeal on 12 November 2010, again because the costs of the appeal were considered to be disproportionate to any matter in issue. When dismissing that appeal the Court of Appeal ordered that Mrs Tey should pay the respondent's costs of the appeal to be taxed. I should observe that Mrs Tey then instituted an application for special leave to appeal to the High Court of Australia from the decision of the Court of Appeal. That application was dated 10 December 2010. Further details, of course, of that application are not available to the Court but Mrs Tey has informed the Court today that in effect that application was refused - see now: Tey v Optima Financial Group Pty Ltd [2011] HCASL 41
In due course, Optima Financial Group Pty Ltd prepared a bill of costs for taxation for the proceedings in the Court of Appeal and obtained an appointment for the taxation of that bill before a registrar of this court on 8 August 2011. By written correspondence, not by any formal application to the court, Mrs Tey approached the associate of the registrar appointed to conduct the taxation requesting an adjournment of the taxation listed for 8 August, asserting that she was ill or had a medical condition which meant that she was unable to attend that day. A series of correspondence followed and, by a letter dated 3 August 2011, the associate to Registrar Whitby acknowledged a letter requesting the adjournment on the grounds of Mrs Tey's medical conditions and notified that 'the taxation will be adjourned provided a medical certificate is provided to the Court'.
Following that advice, Mrs Tey attended at the court on 5 August 2011 to provide the medical evidence. There is a letter which she wrote that day to the associate of Registrar Whitby setting out what she did. The letter says that she confirms that:
I have today provided to your Court evidence of (a) my medical certificate as you have requested covering the period 26 July 2011 to 31 December 2011 inclusive signed by my medical practitioner, Dr Balint, and (b) evidence of MRI scan documents issued by Fremantle Hospital on my right knee on 15 June 2011 and on my right shoulder on 4 July 2011. Your Court officer known to me as Valerie at the reception sighted the originals of these documents and I believed that she had taken a photocopy for your records.
What then followed is that by a letter of 5 August 2011 from the solicitors for the respondent, Optima Financial Group Pty Ltd, those solicitors brought to the attention of the registrar certain matters, including Mrs Tey's appearance at a hearing in the District Court on the morning of 5 August 2011, as grounds to support their submission that the taxation should not be adjourned.
Then, the evidence establishes that on the morning of 8 December 2011, the registrar's associate telephoned Mrs Tey to inform her that the taxation would not be adjourned and would proceed that afternoon. One can infer that she was informed of this to reject any implication which might have arisen by the foregoing communications that an adjournment would be granted.
The taxation did go ahead on 8 August 2011, but Mrs Tey did not attend. In her absence, proof of service having been established, the registrar proceeded to tax an amount of $423.50 off the bill, added the taxing fee and signed the certificate of taxation in a total amount of $7,012.02 that afternoon. Upon the taxation certificate being signed, the result became a judgment of the court and enforceable as such and carried interest. Upon learning of these developments, Mrs Tey then wrote to the registrar, protesting about what had happened and asking for the taxation to be set aside. In doing so, she invoked the powers of the court under Rules of the Supreme Court (WA) O 66 r 54(3) which deals with the taxing officer's power to review a taxation. The particular subrule says:
If a party fails to appear on the taxation, the taxing officer may, upon an application in that behalf made in writing within seven days, set aside or vary the certificate of taxation on such terms as he thinks fit.
Another letter to similar effect was written by Mrs Tey shortly afterwards. A letter was then written by Registrar Whitby to Mrs Tey, dated 7 December 2011. This followed some correspondence which Mrs Tey had with the Chief Justice in which the Chief Justice addressed a letter of concern written by Mrs Tey about the failure to adjourn the taxation. That correspondence can be put aside because it did not deal with any formal application or determination before the court.
The letter from Registrar Whitby of 7 December 2011 continues:
Your letter of 9 August did not make objections to the items allowed on taxation on the basis that the taxing officer had made an error in principle, as required by O 66 r 53 of the Supreme Court Rules. Nonetheless, the taxing officer has reviewed the taxation and has found that there is no error in principle and that the allocatur should not be set aside.
There is only one reasonable conclusion that can be drawn from that correspondence and it is that, notwithstanding that all this was done by written correspondence rather than by a formal application to the court, Mrs Tey's letter requesting that the taxation be set aside was treated as an application under O 66 r 54(5), was considered by the taxing officer and was refused, that being an end to any possible reconsideration of the matter under O 66 r 54 or otherwise.
Since then, however, and notwithstanding the decision of Registrar Whitby, Mrs Tey has issued an application by chamber summons on 12 December 2011 which is now before the court. This chamber summons seeks the following orders:
(a)an extension of the time limits to apply to set aside the allocatur be granted;
(b) the allocatur be set aside;
(c) all interest accrued to date relating to the taxation allocatur signed by Registrar Whitby on 8 August 2011 in favour of the respondent be quashed and set aside; and
(d)the respondent pay the appellant's costs and expenses to be agreed or in default taxed.
This application has been set down for hearing today and notice of the application has been given to Mrs Tey quite some time ago. She has appeared on the application in person and has asked that the application be adjourned. Her grounds for seeking an adjournment are that she is unable to obtain legal representation by a counsel of her choice, a specialist in court taxations who has another court commitment today. She has asked that the application should be adjourned in order to allow it to be pursued and developed on her behalf by counsel. The application is opposed by counsel for the respondent on the grounds that this is a long-running course of litigation without merit which needs to be ended, that there is no prospect of success in the particular application and that the matter has been resolved by the course of proceedings before the registrar which I have been describing at length.
So far as is possible, in order to do justice and to keep the balance of the interest between litigants in proper equilibrium the court will, as far as possible, allow parties to obtain legal representation and give them an opportunity to do so on important matters before the court. On this occasion, Mrs Tey has had ample notice of the application which is before the court and hence ample opportunity to obtain legal representation, if not by the particular counsel mentioned then by other counsel who would be well able to deal with a routine matter of practice and procedure such as this application. Therefore, the absence of the particular counsel is not a matter which, in all the circumstances, should prevent the application being heard and determined today.
Secondly, there is nothing to suggest that the application has any merit or any prospects of success even if counsel, the most experienced counsel that one can imagine, were to be present. As I have already said, the taxation was conducted regularly. Mrs Tey had been notified beforehand that her request for an adjournment would not be granted. An application was made informally under O 55 r 54 for the taxation to be set aside. It was considered by the registrar and refused.
If this present chamber summons is to be treated as an application to extend time to allow a more formal application to set aside the taxation to be granted, it should not be allowed. The reason for that is that the time has long expired, there is no evidence explaining the delay except Mrs Tey's unverified assertions that she has been ill in the interim but, more importantly, the matter has already been decided and treated on the merits in accordance with the request which Mrs Tey herself instituted informally and which was dealt with by the registrar.
There is a further reason why there is no prospect of success. This is because the power to extend time and to set aside a taxation certificate in circumstances like this rests in a taxing officer and not in a Judge. There are policy reasons apparent from the reading of O 66 as a whole why judicial review of taxation should be limited in the fashion contemplated by O 66 r 55, so that otherwise taxations are to be dealt with by registrars. It is unnecessary to attempt to identify the reasons for this, they are quite obvious. Accordingly, if time were extended, the application to set aside the taxation certificate would need to be made to the registrar but it has already been considered and refused.
Finally, I observe that nowhere in the materials which have been filed or in Mrs Tey's affidavits or in her submissions today has there been any reference to any error of principle, any demonstrated duplication of work charged for or allowed on the bill of costs for taxation, or any other errors or omissions which would give rise to any doubt at all about the propriety of the taxation or the amount certified.
The result is that Mrs Tey's application for an adjournment of today's hearing is refused. Having heard all the matters dealing with the application, the application itself will be dismissed.