Todd v LARKRAY Holdings Pty Ltd - [2001] WADC 239

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: TODD -v- LARKRAY HOLDINGS PTY LTD & ANOR [2001] WADC 239

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 9 OCTOBER 2001

DELIVERED : 15 OCTOBER 2001

FILE NO/S: CIV 1010 of 1999

BETWEEN: DAVID JOHN TODD
Plaintiff
AND
LARKRAY HOLDINGS PTY LTD (ACN 060 566 994)
First Defendant
LUCON (AUSTRALIA) PTY LTD (ACN 006 228 100)
Second Defendant

Catchwords:

Practice - Western Australia - Objections to taxation - Turns on its own facts

Legislation:

Nil

Result:

Objections not allowed

Representation:

Counsel:

Plaintiff:     no appearance
First Defendant             :     Mr E McLennan
Second Defendant         :     Mr W Spyker

Solicitors:

Plaintiff:     No appearance
First Defendant             :     Jackson McDonald
Second Defendant         :     Blake Dawson Waldron

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HEWITT: In this matter the plaintiff sued the first and second defendants and the first defendant issued contribution proceedings against the second defendant. The matter was concluded by consent orders under the terms of which the plaintiff obtained a judgment against both defendants for $340,000 together with costs of $40,000. Of those damages the first defendant was required to contribute $68,000 and the second defendant the sum of $272,000 and as to the costs the contribution was respectively $8,000 and $32,000. A further order required the second defendant to pay the first defendant's costs of the notice of contribution from 29 May 2000 to be taxed. The significance of the date mentioned in the final order is that it was on that day the second defendant made an offer to settle the contribution proceedings on terms at least as favourable as the ultimate settlement.
On 27 June 2001 the first defendant filed a bill of costs for taxation in the contribution proceedings pursuant to the orders to which I have referred and that bill came before me for taxation. The allocatur was not signed to allow the second defendant to bring in objections and those objections have been placed before me in the form of a letter dated 23 August 2001 from the second defendant's solicitors to the court.
The first objection relates to item 6 of the bill, which was an allowance for attendance at pre-trial conference for which $287.50 was claimed and allowed in full.
The objection raised by the defendant is in the following terms:
"Item 6
The Taxing Officer allowed $287.50, being 50% of the claimed time spent at the pre-trial conference (2.3 hours claimed).
In our submission this demonstrates the following errors of principle:
1.The Taxing Officer failed to have due regard to the second defendant's submission that the pre-trial conference took only 1.5 hours (2 hours less travelling time to and from the conference of approximately 30 minutes).
2.The Taxing Officer failed to assess the length of time during which contribution issues were discussed at the conference. The second defendant's submission is that these formed only a minor part of the conference time, with the majority of time spent waiting for the availability of a Registrar so that the plaintiff could obtain orders programming the matter through to a listing conference, and also in discussing the quantum of the plaintiff's claim.
3.It was therefore wrong in principle for the Taxing Officer to allow 50%."
The first defendant was the employer of the plaintiff and the second defendant a party to whom the plaintiff's labour was hired by the first defendant. The plaintiff was injured whilst working under the direction of the second defendant.
An allowance of $287.50 is only marginally more than an allowance of 1 hour at a senior practitioner's rate. The taxing party contended that the conference took 2.3 hours and that the main thrust of the conference was to attempt to persuade the second defendant that it was likely to be found liable to the plaintiff and that it should be prepared to contribute to a negotiated settlement with the plaintiff. The second defendant made no offer whatever and indicated it was not prepared to make any offer whatever in an attempt to settle the action. Ultimately it was only on the day or so before the trial was due to commence that the second defendant initiated negotiations which led to the ultimate settlement of this action.
In my view the first defendant, a party who had already paid out a substantial sum by way of worker's compensation for which it had a potential for recovery, would necessarily and properly focus its attention at a pre-trial conference on the second defendant because that party (in the circumstances I have previously explained) would be likely to bear the whole or at least the greater part of the burden of any judgment the plaintiff might receive. Therefore when the first defendant says that it attempted to engage the second defendant in negotiations to agree some compromise between them and that was the thrust of the efforts of counsel at the pre-trial conference, I accept that to be the case. It is consonant with common sense that the first defendant would not be able to negotiate a satisfactory settlement with the plaintiff if the second defendant was not prepared to contribute. With those factors in mind irrespective of the time taken by the pre-trial conference (be it 1.5 or 2.3 hours) I am unable to see that there is any error in principle which has been made in allowing $287.50. Ultimately the allowance must represent some process of apportionment of the time taken and I am unable to see that an allowance of approximately 1 hour of a senior practitioner's time would be inappropriate in the circumstances prevailing here. Therefore the objection to item 6 is disallowed.
The next objection relates to item 7 if the bill which was getting up case for trial for which a claim of $15,000 was made of which $10,000 was allowed.
The assessment of getting up case in the contribution proceedings presented special problems because there was a necessary overlap, in my view, between the preparation of the defence against the plaintiff's claim and matters pertaining to the contribution proceedings. The mastery of the issues relating to the quantum of the plaintiff's claim were to some extent necessary to deal with the issues between the defendants on the contribution proceedings.
The objection seems to advance the proposition that it was necessary for me to tax the whole of the first defendant's costs in regard to the whole of the action between 29 May 2001 and 1 May 2001 as a basis for justifying some proportion of that sum as an allowance payable to the first defendant by the second defendant. My usual practice and the practice which I believe I followed on this taxation is to assess the work which was properly and necessarily done in relation to the contribution proceedings and to make an allowance which I think properly reflects that work. As I have mentioned before I think that because of some overlap between the issues in the plaintiff's action and the contribution proceedings there must be some notional apportionment of some of that work. The taxing party has, in a letter in response to the objections identified some 86 hours of solicitor's work expended on the case during the relevant period. The issue then is to what extent was that time devoted to issues relevant to the contribution proceedings. It has been submitted, and I accept, that the first defendant's principle concern in this action was not the successful defence of the plaintiff's claim, although liability was denied, but the successful prosecution of the contribution proceedings which provided a means by which any liability which might be found to exist by the first defendant to the plaintiff could be passed on to the second defendant. That the first defendant properly assessed the situation can be seen by the terms of the consent judgment which was entered into under the terms of which the second defendant bore far and away the greater burden of the plaintiff's judgment. In those circumstances I am unable to see that an allowance of $10,000 is so out of kilter as to demonstrate an error in principle. The allowance is for some 30 to 40 hours of work out of a total in excess of 80 hours. The amount allowed recognises a very significant overlap between the work done in the contribution proceedings and the principle action. In my view the allowance properly reflects the work which was directly performed to pursue the contribution action with an allowance for a proportion of other work carried out within the action which was of use to both the action itself and the contribution proceedings.
As to the allegation that I failed to take into account the fact that only one witness was going to be called by the defendant directly relevant to the contribution proceedings that was not a matter which was overlooked. It was a matter of which I was well aware. Matters of this kind always call for a judgment and I have heard nothing in the objection which persuades me that an allowance of $10,000 in respect of the contribution proceedings discloses an error in principle.
The next items concerns attendance at trial for which $1,000 was claimed and $1,000 was allowed.
The matter was listed for trial on 1 May 2001 and until the morning of the trial the second defendant had made no offer whatever to the first defendant in an attempt to negotiate a settlement. It is true that the second defendant through its solicitors had attempted to initiate negotiations at an informal conference on the day prior to the trial commencing but the timing of those conferences was not convenient to the solicitors representing the first defendant. As a result of that the first defendant's solicitors attended the trial prepared and ready for the trial to proceed. That a settlement was negotiated is a matter of record.
The second defendant left any overtures towards settlement to the absolute death knell. Whether by design or not is impossible for me to say but the effect of such delay was to make it necessary for the solicitors for the first defendant to attend trial fully prepared to conduct the case on behalf of their client. A final settlement was concluded shortly before 1.00pm on the day of the trial. I am unable to see any sensible reason why the second defendant should escape the responsibility to make a contribution to the first defendant for the cost which it incurred in having its solicitors attend the trial ready to argue the case if that was necessary. $1,000 strikes me as a modest claim in the circumstances when one considers the work which must be undertaken preparatory to a court appearance in a four day trial. I am not persuaded that the allowance of $1,000 discloses an error in principle and the objection will be disallowed.
All objections being disallowed the bill will be allowed in the sum of $12,430.17 to which I will add a further amount of $200 being the costs of the attendance on the hearing of the objections. The final figure will therefore be $12,630.17 and I shall sign my allocatur in that amount upon the issue of these reasons.