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

1. 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

1. 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.

2. 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.

3. 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 the High Court, which was refused: Tey v Optima Financial Group Pty Ltd [2011] HC ASL 42.

4. The respondent filed a bill of costs in relation to the District Court appeal on 11 July 2011.  The bill of costs was for $10,422.50. 

5. On 4 August 2011 the appellant lodged an application to adjourn the taxation.  This application was returned before Deputy Registrar Hewitt on 5 August 2011.  The deputy registrar dismissed the application with no order as to costs. 

6. The deputy registrar then proceeded with the taxation.  He taxed the bill down to $8,023.19, including the taxing fee.  A transcript was made of the taxation.

7. The deputy registrar held off signing the certificate until 19 August 2011 to allow the appellant to file objections.

8. The objections were filed on 18 August 2011, in the following terms:

   OBJECTION TO TAXATION OF COSTS HELD ON 5 AUGUST 2011

   (1)The Appellant objects to the Bill taxed on 5 August 2011 before Deputy Registrar Hewitt (refer to contents of transcript of proceedings on 5 August 2011).  The Registrar allowed the Respondent to take advantage of the Appellant's situations.  The Appellant was not prepared for taxation of Bill of Costs that day.  And therefore, it could be said that the Appellant was prejudiced.

   (2)The taxation of the bill of costs lodged by the Respondent's Lawyers De Vita + Dixon Lawyers on 11 July 2011 should not have been listed for taxation on 5 August 2011 as such date was not consented by both parties, and taxation of the Bill of Costs should not have gone ahead.

   (3)An application fee $193.00 paid by the Respondent to strike out the appeal on the issue of a Chamber Summons (see page 44 of transcript of proceedings) was not included and reflected in the Respondent's Bill of Costs, therefore the Respondent's Bill of Costs did not show the true story of this case matter.

   OBJECTIONS OF ITEMISED BILL OF COSTS:

Item of Bill	Objection: Whole or Part	Reasons: Error in Principle because:
4.	Whole	Little if any allowance should be made for getting up the appeal because no getting up should have been undertaken until after the strikeout application.
5.	Whole	The strike out application was not complex and need have proceeded only on the proportionality argument i.e. that only $500 was in issue + interest.
7.	Whole	Excessive. 2 short sentences only for an order – Not capital extracted.
8.	Whole	Excessive.  Bill of Costs inaccurate.
9.	Whole	Preparation time would have been much less had the instructing lawyer appeared at the taxation.

1. Deputy Registrar Hewitt considered the objections and in a decision delivered on 24 August 2011 declined to vary the taxed amount.  His decision is reported as Tey v Optima Financial Group Pty Ltd (No 2) [2011] WADC 129.

Power to review a taxation

1. The power of a judge to review a taxation following the lodgement of objections is contained in Rules of the Supreme Court 1971 (WA) (RSC) O 66 r 55.

   55.     Review of taxation by judge

   (1)If a party is dissatisfied with the certificate of the taxing officer as to any item or part of an item objected to under rule 53 of this Order, he may, within 14 days from the date of the certificate, or such other time as the Court, or the taxing officer at the time he signs his certificate, allows, apply to a judge in chambers for an order to review the taxation as to that item or part of an item.

   (2)The judge, if of opinion that the taxing officer has made an error in principle, may thereupon make such order to rectify the error as the judge thinks just.

   (3)The certificate of the taxing officer is final and conclusive as to all matters which have not been objected to in accordance with these rules.

2. 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].

Scope of the review

1. 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.

2. I turn now to the individual items complained of.

Paragraph (3) 

1. 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.

2. I am not able to discern an error of principle in this conclusion.

Items 4 and 5

1. 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.

2. 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. 

3. 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. 

4. The deputy registrar took as his starting point the costs order made by her Honour Judge Davis [4]. That order was that 'the Appellant do pay the Respondent's costs of the appeal, including any reserved costs, to be taxed'. He observed that the way in which the appeal had progressed meant that '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' [3].  He further observed the Davis DCJ considered the merits of the appeal and the proposed amendments to the grounds of the appeal and determined that none of the grounds nor the amended grounds had any prospect of success.

5. Against this background, the deputy registrar concluded ([5]):

   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.

6. Item 4, 'Getting up appeal for hearing' was allowed at $2,871.  Item 5, 'proceedings in chambers (application to strike out appeal and notice of appeal …)', was allowed at $3,190.

7. In my view, the deputy registrar correctly interpreted the order of Judge Davis to include the costs of the strike out application and the appeal generally.  The effect of the order was that the appellant was required to pay all the respondent's costs of the appeal.

8. As to the costs of the appeal, counsel for the respondent submitted that a review of the transcript of the taxation demonstrated that the deputy registrar correctly followed the process set out in Bray v Ryan [1999] WADC 66. That process is [37]:

   In the final analysis it is necessary to first, identify what services were necessary in the particular case and secondly, objectively assess a reasonable allowance for such services by applying the Rules, the Determination and the underlying principles thereof and thirdly, measure the amount actually claimed in the bill for the services against the objective assessment in order to determine whether or not the amount claimed is reasonable and what adjustment, if any, should be made.

9. I agree with the conclusion reached by the deputy registrar that, given the particular way in which the appeal and the strike out application progressed, the respondent was entitled to the work preparing and dealing with the merits of the appeal.  The merits of the appeal were canvassed in argument and her Honour considered them in detail in her reasons.

10. I am not able to discern any errors of principle in the way in which the deputy registrar dealt with items 4 and 5 of the bill.

Item 7

1. In relation to item 7, the appellant reiterated the point set out in the notice of objection. 

2. On item 7, the deputy registrar stated [6]:

   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.

3. I am not able to discern an error of principle in this conclusion.

Item 8

1. In relation to item 8, the appellant again reiterated the point set out in the notice of objection.  She again described the bill as being grossly inaccurate. 

2. The deputy registrar's determination in relation to item 8 was [7]:

   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.

3. I am not able to discern an error of principle in this conclusion.  The deputy registrar was able to conduct the taxation on the basis of the bill filed.

Item 9

1. In relation to item 9, the appellant again reiterated the point set out in the notice of objection.  She again described the bill as being grossly inaccurate. 

2. As to item 9, the deputy registrar determined [8]:

   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.

3. I am not able to discern an error of principle in this conclusion.

Conclusion

1. For the reasons I have set out, I do not consider that the deputy registrar has made any error of principle in dealing with the appellant's objections.  The appellant's application dated 13 September 2011 should be dismissed.

2. I will hear from the parties as to costs.  It is my intention to fix the costs of the application to minimise the need for future hearings.  I will also convene a direction hearing in the appeal to deal with all outstanding issues.