Wang v Costa Holdings Pty Ltd - [2021] WADC 120

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   WANG -v- COSTA HOLDINGS PTY LTD [2021] WADC 120
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   ON THE PAPERS
DELIVERED          :   9 DECEMBER 2021
FILE NO/S:   CIV 2501 of 2020
BETWEEN:   LI FANG WANG
Plaintiff

AND

COSTA HOLDINGS PTY LTD
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court 1971 (WA) - Review of taxation - Order 66 r 53, r 42 - Scale item 37 - Claim under item 37 and other items - Taxation under item 37

Legislation:

Nil

Result:

Objection not sustained

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	AH2 Legal
Defendant	:	Moray & Agnew Lawyers

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

Smith v Buller (1875) LR 19 Eq 473

DEPUTY REGISTRAR HARMAN:

The writ of summons in this action was drawn by the solicitors for the defendant. Upon appearance a consent minute was executed by which the parties agreed that the claim be dismissed and that costs be taxed. An order was made in those terms.
It is common ground that the beneficial party of the provision for costs is the plaintiff. Under the order she is entitled to recover the reasonable cost of services necessarily provided to her for the purposes of the action.
The plaintiff's bill of costs is constituted by six items and a single disbursement. The items are writ of summons, consent order, preparation of case, settlement of a claim pursuant to s 92(f) of the Workers' Compensation and Injury Management Act 1981 (WA), taxation - drawing bill of costs and taxation - preparation and attendance. Other than for the disbursement, the amount sought to be recovered is $11,468.60.
In her amended notice of objection the plaintiff first states an objection to disallowance of the disbursement which I will later address.
In her objection to the disallowance of the items of the plaintiff's bill for the writ of summons, consent order and for preparation of case the plaintiff draws on parts of her objection that relate to the disbursement. She asserts that disallowance of the items had been peremptory and infers that their disallowance had followed upon acceptance of an unspecified submission of the defendant that founded disallowance of the disbursement.
Although I accept that the disallowance of each of those items had been peremptory, it is not the case that their disallowance had followed upon acceptance of any submission of the defendant in relation to the disbursement. The submissions of each of the parties on the issue of recovery for the disbursement had simply rendered clear the context in which the plaintiff had been provided with the services embraced by those items.
Item 37 of the scale provides for recovery of a fee for settlement of a claim pursuant to s 92(f) of the Workers' Compensation and Injury Management Act to a maximum of $4,950. It was introduced to the scale in 2018 along with cl 10 of the relevant determination of the Legal Costs Committee. Clause 10 is as follows:
10.New item 37
Item 37 has been introduced to provide for a specific item to cover work performed in relation to effecting a settlement under s 92(f) Workers' Compensation & Injury Management Act 1981 (WA). Whilst the Committee is of the view that this work is already claimable under other items in the determination, the introduction of a special item is intended to remove any doubt in that regard.
It was common ground that the parties had agreed to settle whatever differences they had in relation to injuries sustained by the plaintiff on or about 30 May 2018, in part by obtaining an order for dismissal of an action in the District Court of Western Australia that was expressed to relate any claim of the plaintiff for breach of duty of care and/or breach of statutory duty and/or breach of contract by the defendant.
The meaning of the term by which item 37 is expressed is informed by the steps taken in this action. Those steps follow the usual course where the parties reach such an agreement. It is appropriate to consider that the Committee had been so aware when it made its determination. Clause 10 renders clear that by item 37 the Committee had intended to facilitate recovery for services that are part of the process of such a settlement.
The significance of the Committee's view remains for consideration.
According to that view, it would remain open to a party to claim as a separate item for a service that the Committee has constituted as part of item 37. To do so would establish the prospect that the beneficial party would recover a greater sum than would be permitted by comprehensive recovery under item 37.
The result of the introduction of item 37 to the scale is that settlement of a claim pursuant to s 92(f) of the Workers' Compensation and Injury Management Act is now constituted as a service under which recovery is available upon taxation.
Whilst I have no difficulty with the view expressed at cl 10 that other items are claimable, because item 37 embraces all items required to be provided to the end of such a settlement, those items are now properly regarded as parts of item 37 and it is no longer appropriate to so allow their recovery.
In the event that it is considered that I erred in disallowing either one or the other or both of the items for the writ and the consent order, the result of allowance of each item would permit recovery of a modest fee bearing in mind that in each instance the document central to provision of each service had been prepared and I take it, filed by the defendant. Such allowance would result in a reduction of the amount recovered for item 37 by a corresponding amount or amounts.
As for the item preparation of case, the additional reason for its disallowance was that there had been no case to prepare. The terms of the plaintiff's objection misrepresent the observations made at taxation.
Taxation under an order is to the end of ensuring that recovery is in accordance with the common law test that applies.
Smith v Buller (1875) LR 19 Eq 473 establishes that the test of recovery for services under an order for costs is the necessity for their provision. At taxation I was satisfied that under the agreement the parties had agreed to dismissal of an action yet to be commenced. I was satisfied that it had been implicit if not explicit that that result would be achieved efficiently. To that end the defendant would prepare each of the writ and the consent order. I was satisfied that preparation of any case had not been necessary in order to carry out the agreement. It was patent that the agreement had been put into effect with the desired result without the necessity for any preparation of case being undertaken on the part of the plaintiff.
Although I accept that disallowance had been peremptory I note that the plaintiff does not now contend that she had been denied the opportunity to put a case to the effect that she had either reconsidered or sought to resile from the agreement.
For the sake of completeness I will undertake an analysis of the provision for recovery for preparation of case that was first expressed in the 1996 determination of the Committee. In circumstances where there had previously been no reference to any feature of the process of provision of the service, it added the words 'includes work reasonably and necessarily undertaken prior to commencement of proceedings'. Those words have appeared in each of its subsequent determinations.
I am satisfied that prior to 1996 had recovery been sought for preparation of case undertaken prior to commencement of an action there had been no impediment to recovery to the extent that it had been so provided. Having been a taxing officer prior to 1996, but for the expression of what appears to be the Committee's understanding of a test of recovery that would apply in an unspecified context, the inclusion of those words was considered unremarkable. No common law principle would be offended by recovery for provision of any part of the service preparation of case prior to commencement of an action.
The scale is utilised at taxation in the process of considering the extent of recovery under both a retainer and an order. Common law provides a test of recovery for each context. Under each test the quantum of the fee recoverable for a service is determined by what is considered reasonable by reference to the scale. The tests differ at the prior point of considering whether the scope of recovery would extend to a particular service.
It is not surprising that in taxation under a retainer the test applied is whether by reference to the retainer and the action a service had been reasonably or properly provided. In taxing under an order, it is also not surprising that the test applied is whether by reference to the action a service had been necessarily provided. In the latter context it is for the beneficial party to establish that his solicitor's perception that services reasonably or properly undertaken had been necessarily provided for the purposes of the action.
For the Committee to suggest that in the context of taxation under a retainer the test of recovery for provision of any part of the service 'preparation of case' prior to commencement of an action would include consideration of the necessity for such provision does not convey the test that would apply to any other item or indeed the balance of any claim under the same item. There is no reason to consider that a less onerous test of recovery would apply simply because a writ had been filed.
In the context of taxation under an order, because the word 'necessary' conveys the extent of recovery in absolute terms whatever might be conveyed by the word 'reasonable' could have no moment.
Ultimately the additional words do no more than suggest that in 1996 the Committee had intended to extend the scope for recovery under the item.
Regardless when work to the end of preparation of the case is undertaken, the extent to which provision of the service had been necessary will be established on the pleadings at the point of the close of pleadings.
Because in this case there was no such event, no preparation of case had been necessary. That result is not an unusual occurrence. It usually emerges in circumstances where a defendant has not filed a defence. Of course there would be many more instances that do not come to the attention of the taxing officer as beneficial parties would recognise that upon the close of pleadings some allegations have not been contested.
Whilst a solicitor may choose to provide all manner of services related to a proposed action prior to its institution, the extent of such provision establishes a risk to recovery, of their cost from the adverse party.
The fact that the plaintiff made the claim, pursued the claim at taxation and now objects to its disallowance establishes her endeavour to recover for services that I take it her solicitor had provided to her that would relate to an action that she had contemplated bringing against the defendant. With reference to that prospect I need only state that the order for costs was made in the action that was commenced under the agreement. Under that order she is entitled to recover for services provided for the purposes of the action in which it is made.
Upon disallowance of the items in the bill for writ of summons, consent order and preparation of case, the plaintiff increased the fee claimed under item 37 of the scale from $1,909.60 to the maximum provided by the scale. Of that claim, the amount taxed off was $3,450.
The plaintiff objects to the determination of quantum for the claim. The only contention of the plaintiff that would suggest an error in principle in the determination is that on the basis that the maximum had been claimed, by implication an allowance for 10 hours is not unreasonable. I note that the plaintiff does not contend that the work undertaken for provision of the service would either be established by or would justify recovery for the value of 10 hours of time.
Item 37 does not provide for recovery on the basis of time costing but rather for the value of the service provided. Whilst time devoted to provision of a service would inform the process of taxing such a claim, the standard to be considered is of the efficient provision of a service by a competent practitioner.
Broadly speaking the service necessarily provided to the plaintiff had been to consider the terms of the agreement she had reached with the defendant and the content of the documents generated by the defendant in the course of it carrying out its part of the agreement. In the course of undertaking that work I take it to have been the case that the plaintiff's instructions to her solicitor had remained in accordance with the terms of the agreement.
It is evident that in determining the maximum amount recoverable under item 37 the committee multiplied a specified hourly rate by 10 hours of time costed at that rate. Simply because it specified the maximum fee recoverable and how it explained its determination to so provide does not justify the proposition that the taxing officer erred in principle by not determining that she should recover the maximum.
I am aware of various obiter comment relating to my difficulty in reconciling the impact of r 42 on the provision of jurisdiction for review of taxation at r 53 with the proposition that there is jurisdiction to review a contended error that goes only to the determination of quantum. Leaving that issue to one side, the proposition that a quantum determination is sufficient to qualify as an error in principle would only be established upon a contention that no taxing officer acting reasonably could have reached the determination made. The plaintiff does not so contend.
The only observation that I will make is that upon reflection at this point in dealing with the objection I consider that the amount recovered for under item 37 was too generous.
I will now turn to the disallowance of the disbursement claimed. It is for the special evaluation report of Dr Will.
By her objection the plaintiff contends that disallowance of the claim would be explained by acceptance of particular submissions provided by the defendant.
The taxation was undertaken in accordance with the terms of the order taking into account the context from which it emerged. That context is established by the claim under the statutory provision and was informed by the submissions of the parties. The claim for the disbursement was disallowed simply because neither commissioning the report nor considering its content falls within the scope of work necessarily undertaken either for the purpose of commencing the action or dismissing the plaintiff's claim in accordance with the agreement. Regardless the reason for commissioning the report, at no time could it have had any utility for the purposes of the action that was commenced.
In her submissions, the plaintiff refers fact that the plaintiff has not yet been recompensed for the cost of the report. In the context established by the order, that fact is of no consequence.
In what she describes as a preliminary matter, the plaintiff proposes that despite the objection, the process of taxation should be drawn to a conclusion because the defendant had revealed that a Calderbank Offer had been made in a sum 'significantly in excess' of the amount taxed. The plaintiff considers that the process of review of taxation, would be tainted by that information.
Whilst the defendant may have a valid logical point, in the event an objection is lodged, the process of taxation extends to review of determinations made in the course of taxation. Once a party files an objection, the taxing officer has no alternative than to conduct a review.
The plaintiff has not been successful in any objection to the particular determinations made at taxation. Accordingly, I will sign the allocator.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RB
Court Officer
9 DECEMBER 2021