Wainter Pty Ltd v Ansearch Ltd
[2007] WADC 48
•4 APRIL 2007
WAINTER PTY LTD -v- ANSEARCH LTD [2007] WADC 48
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 48 | |
| Case No: | CIV:335/2004 | 19 FEBRUARY 2007 | |
| Coram: | DEPUTY REGISTRAR HEWITT | 4/04/07 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Objections disallowed | ||
| PDF Version |
| Parties: | WAINTER PTY LTD (ACN 008 725 586) ANSEARCH LTD (ACN 001 287 510) |
Catchwords: | Practice and procedure Review at taxation Turns on its own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ANSEARCH LTD (ACN 001 287 510)
Defendant
Catchwords:
Practice and procedure - Review at taxation - Turns on its own facts
Legislation:
Nil
Result:
Objections disallowed
(Page 2)
Representation:
Counsel:
Plaintiff : Ms R Solosy
Defendant : Mr H Robinson
Solicitors:
Plaintiff : Solomon Bros
Defendant : Haydn Robinson
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 DEPUTY REGISTRAR HEWITT: In this matter the plaintiff obtained a judgment against the defendant on 22 September 2006 and the plaintiff then brought in the bill of costs for taxation which was listed before me on 19 February 2007. The plaintiff has now brought in objections to the manner in which I taxed that bill. Such objections are permitted pursuant to O 66 r 53 which is in the following terms:
"A party who contends that the taxing officer has made an error in principle in allowing or disallowing any item or part of any item in a bill of costs taxed by him may at any time before a certificate of taxation dealing finally with that item is signed or such earlier time as may, in any case, be fixed by the taxing officer:
a) deliver to the other party interested in the allowance or disallowance and carry in before the taxing officer, an objection in writing to the allowance or disallowance specifying the objection by a list, in a short and concise form, the items or parts of items objected to and the grounds and reasons for the objection; and
b) thereupon apply to the taxing officer to review the taxation in respect of those items or parts."
2 In dealing with the objection which is before me, it is extremely difficult to identify in many instances precisely what error in principle is relied upon by the objecting party and therefore in dealing with these objections I have attempted to distil from them, notwithstanding their prolixity, that part which might constitute a properly mounted objection.
3 The first item the subject to objection is Item 6 which was an application to administer interrogatories which was claimed at $600 and allowed at $200. The objection appears to be that the sum claimed is a reasonable sum. The interrogatories comprised placing three documents before the defendant and asking in respect of each whether he admitted it to be a true copy of the original. In one instance, the document was not even a document to which the defendant was a party. In no instance was the original put to the defendant for his consideration and comparison. Notwithstanding the explanations of the plaintiff I was unable to grasp the point of the interrogatories, consider the interrogatories should probably have been objected to in toto and that notwithstanding the fact that an answer of sorts to one of the interrogatories was given, very little was achieved by the process.
(Page 4)
4 In the circumstances I consider $200 to be a reasonably generous allowance for what was an extremely routine and undemanding task. I am therefore not inclined to change my assessment as far as that item is concerned.
5 The next item relates to Item 14 "reply and defence to counterclaim". Insofar as a reply is concerned, it is only to be allowed when the filing of the document was necessary. This reply, raised two principles of law and no facts. The principles of law were that a claim brought by the defendant based upon the Trade Practices Act 1974 (Cth) was unsustainable and that the claim on the equity was bound to fail because the plaintiff was a bona fide purchaser for value without notice. Notwithstanding the fact that the allowance has been characterised as manifestly unreasonable, I consider an allowance of $200 for such a pleading to be a proper allowance. In truth there would be an argument that no allowance at all should be made since the pleading only pleaded propositions of law not material facts and was therefore not necessary.
6 I am not persuaded that the preparation of that document required, as is contended, a summary of extensive legal principles cutting across many areas of law requiring research and consideration. The provisions of the Trade Practices Act 1974 (Cth)and the equitable principles relied upon do not strike me as matters of great difficulty. I was therefore on this taxation faced with a reply which in my view pleaded law not facts and thereby offended the conventional rules of pleading, and raised issues that I do not consider would require special research or consideration. For those reasons I am unpersuaded that I should change my allowance.
7 The next item in issue is Item 5, getting up case, which was claimed at $15,500 and allowed at $12,500. Once again it is very difficult to ascertain what error in principle is being relied upon to support this objection. The objection seems to be largely a chronology but insofar as I can observe any identified error of principle it is said to be that, given the multiple defences, and in the light of the fact that $3000 was taxed off the application for summary judgment, the full amount for getting up should be allowed.
8 As I understand the law, what is required by taxing officer is to consider the task which is required to be undertaken, the person who should properly undertake that task eg junior practitioner, clerk, senior practitioner, and determine a reasonable time to perform the task. The allowance was reduced because as I discerned it, the amount charged for
(Page 5)
- the tasks undertaken by the plaintiff's solicitors were excessive and nothing that I can see in this objection persuades me otherwise.
9 The next item challenged is 17.1 and 17.2 fee on brief and counsel fees. The errors relied upon were that the amount allowed is not reasonable together with reliance on a comment made at taxation, that taxing parties who simply claim maxima should not expect much sympathy at taxation.
10 In this case counsel was a principal of the firm of solicitors representing the plaintiff who had a significant hand in the conduct of the case from its inception including settling the statement of claim which is indorsed upon the writ. The maximum which is allowable is $11,572 and that includes an allowance of three days preparation together with the first day of trial. That allowance contemplates the situation when a brief is delivered to a barrister who is required to master that brief and prepare to adduce the case outlined by the brief at trial. In this case the solicitor who appeared as counsel at trial was the solicitor with the conduct of the action, albeit with some assistance from other individuals within his firm from time to time. I take the view that a solicitor who is sufficiently acquainted with a case to settle the statement of claim and every successive pleading filed by his client and to appear and argue a summary judgment application must be regarded as having a knowledge of the case such that it is inappropriate to treat him in the same position as a barrister receiving a brief which will, when he masters it, contain his whole knowledge of the action.
11 In the present case clearly counsel who appeared at trial was well acquainted with the case and in my view the task of mastery of brief was much less onerous for him than it would have been for independent counsel. A reduction in these circumstances is usual. (See Civil Procedure Western Australia, 66.11.9 and the cases there cited). I therefore reduced the amount for the fee on brief by some $7000 to $4572. I consider that an appropriate reduction in the circumstances of the case. I should also mention that I doubt even if independent counsel had been briefed, that a maximum would have been justified in the circumstances of this case given the issues which were raised. The brief was not of itself challenging since the plaintiff's case comprised the evidence of two witnesses and a number of documents of evidentiary relevance. As to the remark concerning the maximum it seems to me that where parties simply claim maxima without producing any objective evidence to indicate work which would justify a maximum has been done are not entitled to much sympathy when their bills come to be taxed. As
(Page 6)
- to the successive days of trial once again those were charged at maximum. In my view the case is not one where the demands on counsel would justify a maximum. Accordingly, the amount claimed was reduced. In relation to the successive days the reduction was a fairly modest one such that the amount allowed was approximately three quarters of a maximum. I find it difficult to accept that this case was complex and difficult as is contended for the plaintiff. Again I see no reason to disturb the allowance which I made.
12 The next item which is objected to is Item 17.3, solicitor attending trial. I wholly disallowed that item. My reason for doing so was firstly I could see nothing in the case which would require counsel to need the assistance of another solicitor. It needs to be born in mind that the plaintiff only called two witnesses and that counsel himself was a solicitor of the firm representing the plaintiff. If it were necessary to obtain instructions from the plaintiff then counsel was in a position to do so. I took the view and I still take the view that the attendance of a supporting solicitor in the circumstances of this case was a luxury which should not be visited upon the defendant. Accordingly, I am not inclined to disturb my decision in regard to that item.
13 For these reasons I am not persuaded on this review that any of the allowances which were made at taxation should be disturbed, and I shall therefore sign the bill in the amount originally allowed of $34,254.06.
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