UTA Pty Ltd v Albany Star Pty Ltd & Ors
[2007] WADC 186
•15 August 2007 (ex temporare)
UTA PTY LTD -v- ALBANY STAR PTY LTD & ORS [2007] WADC 186
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 186 | |
| 24/10/2005 | |||
| Case No: | CIV:558/2005 | 15 AUGUST 2007 | |
| Coram: | YEATS DCJ | 15/08/07 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Certificate of taxation of costs be set aside and the bill be remitted to another taxing officer for determination | ||
| PDF Version |
| Parties: | UTA PTY LTD ALBANY STAR PTY LTD MARK PETER CELENZA AND PETER CLEMENT MOORE |
Catchwords: | Appeal Review of Taxing Officer's decision Costs of the action Getting up costs |
Legislation: | District Court Act 1969 s 87 District Court Rules 2005 r 6, r 15 Rules of the Supreme Court 2005 O 66 r 55 |
Case References: | Crisp v Mossensons; unreported; SCt of WA, Lib No 970302 Harrison v Leutner (1881) 16 Ch D 559 Sharp v Pascoe; unreported; SCt of WA, Lib No 521.1 UTA Pty Ltd v Albany Star Pty Ltd & Ors [2007] WADC 39 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
PUBLISHED : 24 OCTOBER 2005 FILE NO/S : CIV 558 of 2005 BETWEEN : UTA PTY LTD
- Plaintiff
AND
ALBANY STAR PTY LTD
First defendant
MARK PETER CELENZA AND PETER CLEMENT MOORE
Second defendant
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DEPUTY REGISTRAR HARMAN
Citation : UTA PTY LTD -v- ALBANY STAR PTY LTD & ANOR [2007] WADC 39
(Page 2)
Catchwords:
Appeal - Review of Taxing Officer's decision - Costs of the action - Getting up costs
Legislation:
District Court Act 1969 s 87
District Court Rules 2005 r 6, r 15
Rules of the Supreme Court 2005 O 66 r 55
Result:
Certificate of taxation of costs be set aside and the bill be remitted to another taxing officer for determination
Representation:
Counsel:
Plaintiff : Ms R C Solosy
First defendant : Mr S V Forbes
Second defendant : Mr S V Forbes
Solicitors:
Plaintiff : Solomon Brothers
First defendant : Conal O'Toole
Second defendant : Conal O'Toole
Case(s) referred to in judgment(s):
Crisp v Mossensons, unreported; SCt of WA; Lib No 970302; 18 June 1997
Harrison v Leutner (1881) 16 Ch D 559
Sharp v Pascoe, unreported; SCt of WA; Lib No 521.1; 12 August 1968
(Page 3)
1 YEATS DCJ: This is an application by the first and second defendants pursuant to Rules of the Supreme Court O 66 r 55 for a review of the decision of Deputy Registrar Harman sitting as a taxation officer. Deputy Registrar Harman had initially taxed the bill of costs on a party-party basis under O 66 r 53 on 8 December 2006. There was an objection by the plaintiff and there was a further hearing. The first and second defendants objected to an aspect of the taxation and there was a review held pursuant to O 66 r 54. It was on review that Deputy Registrar Harman gave his reasons on 29 March 2007 for disallowing the application of the first and second defendants.
2 As a preliminary matter, the plaintiff in this case objects to my hearing this matter. The plaintiff submits that the procedure under O 66 r 55 of the Rules of the Supreme Court does not apply to a taxation of costs in the District Court because r 6 of the District Court Rules, consistently with s 87 of the District Court Act 1969, makes provision that the Rules of the Supreme Court apply to all cases unless there is an inconsistency between those rules and the District Court Rules, in which case the District Court Rules apply. The plaintiff's submission is that a party dissatisfied with a decision of a Registrar may appeal from the decision to a Judge pursuant to r 15 of the District Court Rules (1). The plaintiff submits that r 15 is inconsistent with O 66 r 55 because each provides a different review mechanism to a party dissatisfied with a Registrar's decision on taxation and for that reason, applying the rule in r 6 of the District Court Rules, the plaintiff contends that this should have been an appeal under the general appeal provisions related to the decisions of Registrars and not a review as it has been pleaded under O 66 r 55.
3 I do not accept the plaintiff's submission. There is no provision under the District CourtRules for costs to be taxed. Costs are taxed under the Rules of the Supreme Court O 66 and when costs are taxed, the Deputy Registrar does not sit as a Registrar; he sits as a taxing officer. Therefore, the initial decision which he made back in December 2006 and the review he held with reasons handed down in 2007 are not decisions of a Registrar as those words are used in the District Court Rules. They are decisions of a taxing officer and the matter proceeds under O 66 of the Rules of the Supreme Court. There is no inconsistency with the District Court Rules.
4 In the grounds of objection of the first and second defendants filed on 18 December 2006 they specified in par 4.1.2:
(Page 4)
- "The pleadings had not closed at the time when the matter was discontinued and consequently the issues had not been defined."
5 In his reasons for refusing to allow the objection, Deputy Registrar Harman said this (UTA Pty Ltd v Albany Star Pty Ltd & Ors [2007] WADC 39) at [4]:
"Paragraph 4.1.2 accurately portrays the reason for disallowance of the claim. In an action where pleadings would confine the issues to be tried the close of pleadings provides a datum for determining whether services claimed to be part of the getting up case for trial may be characterised as such."
6 In this case the first and second defendants had claimed $900 costs for getting up for trial. The background to the case is that the writ issued on 17 March 2005 and the writ was served on 1 March 2006 with the statement of claim on 28 March 2006. The notice of discontinuance was on 2 May 2006. The submissions on taxation, as I understand it, would have relied on the first and second defendants preparing to undertake a strike-out application in relation to the plaintiff's writ and statement of claim.
7 It is the contention of the plaintiff that the learned Deputy Registrar rightly disallowed any of those costs because in his view they were not costs related to getting up. The plaintiff contends that the defendants were only entitled to costs of the action and that a strike-out application was a separate chamber application with a separate costs order. In those circumstances, the plaintiff claims that because these were not costs of getting up, the Deputy Registrar has not made any error of principle.
8 The law in this area is well established and has been clear for some time. The principle stated in Harrison v Leutner (1881) 16 Ch D 559 at 560 that the learned taxing officer should have allowed all costs reasonably and properly and not prematurely incurred prior to the receipt of the notice of discontinuance has more recently been applied and adopted in the Supreme Court of Western Australia in the decision of Sharp v Pascoe, unreported; SCt of WA; Lib No 521.1; 12 August 1968; per Hale J. That case considered the issue in relation to costs where there had been an admission of liability and costs had to be taxed on the basis of a case involving only the quantum of damages. In those circumstances at p 2 of his decision Hale J said:
"In my opinion, an additional allowance may be made for getting up the case on the issue of negligence if that work was
(Page 5)
- properly done when it was done, subject of course to the overall limit imposed by Item 9 in respect of the whole of the work of getting up."
9 At that time the amount or limit on costs differed, depending on whether the costs of the trial involved merely the assessment of damages or whether liability was also an issue. On p 4 of his judgment Hale J further considered the issue of costs allowed before the writ was issued and whether those could be costs of the action and he said this:
"Counsel for the defendant also raised before me another point, namely that some or all of the costs allowed on the issue of negligence were incurred before the writ was issued, and therefore, could not be costs of the action. At one time, apart from very special circumstances, this would have been so: the only item allowed before writ was one 'letter before action'."
10 But then Hale J went on to say this:
"But over a number of years the stringency of the rule has been considerably relaxed, and the question propounded has come to be whether the work in question was necessarily and properly, and not prematurely, done for the purpose of the action."
11 I refer to what was said by Templeman J in the more recent decision of Crisp v Mossensons, unreported; SCt of WA; Lib No 970302; 18 June 1997; Templeman J, where he said:
"The practice is to take into account the amount of work in fact done by counsel before the case was settled or stopped."
12 In this case, a fair reading of what was said by Deputy Registrar Harman in his reasons published on 29 March 2007 is that at the point of discontinuance of this action because no defence had been filed, getting up costs were not allowed. He says that particularly in par 4 when he said:
"In this case where no defence had been filed and on the submissions, I concluded that to the point of discontinuance none had been contemplated."
13 For that reason he determined that there had not been getting up costs because anything done was for a strike-out application and not for getting up a defence or filing a defence. I think the wrongness of that approach
(Page 6)
- when one considers the rule in Sharp v Pascoe (supra)and one also considers what was said in the Chancery Division case becomes even more apparent in par 13 of his reasons where Deputy Registrar Harman said:
"Even if the pleadings had closed and substantial work had been performed in getting up the case for trial, the defendants would not have recovered such costs under a claim for getting up the case for trial."
15 I agree with Mr Forbes' submission that because of case management principles, parties to cases are required to do a considerable amount of work before matters are even considered to be listed for trial and well before trial. In a case of this nature where the Notice of Discontinuance came so shortly after the service and filing of the statement of claim anything the defendants did during that several month period could only have been costs incurred as costs of the action.
16 The taxing officer will have to look at specific items to see whether the work in question was necessarily and properly and not prematurely done for the purpose of the action. The first and second defendants are entitled to have those costs taxed applying that principle. That is the decision of the Court.
3