Tey v Optima Financial Group Pty Ltd [No 3] - [2012] WADC 3

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 3] [2012] WADC 3

CORAM: COMMISSIONER GETHING

HEARD: 9 DECEMBER 2011

DELIVERED : 19 JANUARY 2012

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 and procedure - Costs - Review of taxation

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)

Result:

Application dismissed

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):

Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Bray v Ryan [1999] WADC 66
Joyce v Hutchinson [2000] WADC 42
Mossensons (a firm) v Coastline Associates (Unreported, FCt SCt of WA, Library No 970661, delivered 2 December 1997
Schweppes Ltd v Archer (1934) 34 SR (NSW) 178
Tey v Optima Financial Group Pty Ltd (No 2) [2011] WADC 129
Tey v Optima Financial Group Pty Ltd [2010] WADC 98
Tey v Optima Financial Group Pty Ltd [2010] WASCA 219
Tey v Optima Financial Group Pty Ltd [2011] HC ASL 42
Warner v Bessant [No 2] [2010] WADC 182

COMMISSIONER GETHING: By chamber summons dated 13 September 2011 the respondent applied to a judge of this court to review a decision of Deputy Registrar Hewitt made on 24 August 2011. That decision was in relation to an objection of taxation of costs lodged by the appellant on 18 August 2011.

Background

This appeal was commenced in July 2009. On 2 June 2010 an application by the respondent to strike out the appeal was heard by her Honour Judge Davis. The application was brought on two grounds:
(a)pursuant to Magistrates Court (Civil Proceedings) Act 2004 (WA) ('MCCP') s 43(3), on the basis that the likely costs of the appeal would be disproportionate to the amount of the claim in issue; and
(b)pursuant to MCCP s 43(4) on the basis that the grounds of appeal had no reasonable basis, nor any reasonable prospect of succeeding.
In a decision delivered on 25 June 2010, her Honour struck out the appeal pursuant to MCCP s 43(3) and in the alternative MCCP s 43(4). This decision is published as: Tey v Optima Financial Group Pty Ltd [2010] WADC 98. The relevant background facts are set out in this decision, and I do not need to repeat them for present purposes. Davis DCJ ordered the appellant to pay the respondent's costs of the appeal.
The appellant appealed this decision to the Court of Appeal. In a decision delivered on 12 November 2010 the Court of Appeal dismissed the appeal: Tey v Optima Financial Group Pty Ltd [2010] WASCA 219. The appellant then sought special leave to appeal to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] WADC 3
Decision Date: 19 JANUARY 2012

CaseChat Overview and Summary

In the matter of Tey v Optima Financial Group Pty Ltd [No 3], the Federal Circuit Court of Australia was called upon to review a bill of costs. The plaintiff, Tey, challenged the entire bill of costs submitted by the defendant, Optima Financial Group, asserting that it was inaccurate. The court was required to determine whether the deputy registrar's decision to tax the costs was correct and whether there was an error in principle in the taxation process.

The primary legal issue was whether the deputy registrar made an error in principle when taxing the costs. The court had to consider if the deputy registrar acted upon a wrong principle, failed to consider relevant factors, or made a factual error. The court also needed to determine if the plaintiff's objections to specific items in the bill of costs were valid. Tey's objections were primarily focused on the costs associated with a strike-out application and the appeal that was never heard on its merits.

The court found that the deputy registrar's decision was not an error in principle. The allowance for the costs was based on evidence that the amount actually paid was $193, which was an increase from the $128 claimed. The court also found that Tey's objections did not establish an error in principle. The orders made by Judge Davis did not refer to the costs of the strike-out application, but the court noted that these orders must be construed on their terms. Additionally, the fact that the appeal was never heard on its merits did not negate the respondent's entitlement to costs in relation to the appeal.

The court concluded that the deputy registrar's taxation of the costs was correct and that there was no error in principle. The plaintiff's objections to specific items in the bill of costs were not substantiated, and the court upheld the deputy registrar's decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The question for me to determine is thus whether the deputy registrar made an 'error in principle'. An error of principle will only occur where the registrar acts upon a wrong principle, gives weight to extraneous or irrelevant matters, fails to give weight or sufficient weight to relevant considerations, or makes a mistake as to facts: Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621, 627; Warner v Bessant [No 2] [2010] WADC 182 [27]. In respect of a taxation 'an error in principle may occur both in determining whether an item should be allowed and in determining how much of the item should be allowed': Warner [32]. Further 'a court will be reluctant to interfere with a taxing officer's decision on quantum and will only do so where the officer's discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong': Warner [32], citing Schweppes Ltd v Archer (1934) 34 SR (NSW) 178, 183 ‑ 184 and Australian Coal (627 ‑ 628). Put slightly differently, but to the same effect, no error in principle on this basis can be established unless it can be shown that no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question: Mossensons (a firm) v Coastline Associates (Unreported, FCt SCt of WA, Library No 970661, delivered 2 December 1997); Joyce v Hutchinson [2000] WADC 42 [18]. The appellant sought to challenge the entirety of the bill of costs. She submitted that the entire bill of costs is inaccurate. This is not permissible. RSCO 66 r 55 makes it clear that the review process is limited to the items the subject of the objection. I turn now to the individual items complained of. The objection in par 3 was to item 10 of the disbursements. The deputy registrar concluded [2]:[A]n 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 am not able to discern an error of principle in this conclusion. The appellant submitted that there were two errors principle in relation to these two items. The first is that the orders made by her Honour Judge Davis did not make reference to the costs of the strike out application, only to the costs of the appeal. It followed that the respondents were not entitled to any costs of the strike out application. The appellant referred to orders made by Judge Wisbey in another appeal which specifically referred to the costs of an application which the appellant informed me was a strike out application. However, those orders do not assist in the present case as the orders made by Davis DCJ are different, and must be construed on their terms. The second error was that as the appeal was never heard on the merits, the respondent is not entitled to any costs in relation to the appeal. The plaintiff submitted that the combination of these two errors meant that the respondent was not entitled to claim any costs pursuant to items 4 and 5.