Warner v Bessant - [2010] WADC 108

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: WARNER -v- BESSANT [2010] WADC 108

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: NOT APPLICABLE

DELIVERED : 30 JULY 2010

FILE NO/S: CIV 2376 of 2007

BETWEEN: NEILL CHRISTOPHER WARNER
Plaintiff
AND
REBEKAH CHANTELLE BESSANT
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia 1971 - Review of taxation - Order 66 r 53, r 54 - Jurisdiction to review

Legislation:

Nil

Result:

No jurisdiction to review

Representation:

Counsel:

Plaintiff: No appearance
Defendant: No appearance

Solicitors:

Plaintiff: Chapmans
Defendant: Talbot & Olivier

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

Clay v Karlson & Anor, unreported; SCt of WA; Library No 980356; 26 June 1998
Roblett v Pieroni [2005] WADC 215
Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178

DEPUTY REGISTRAR HARMAN: The plaintiff obtained an order for the costs of the action. Thereby he was entitled to recover from the defendant the reasonable cost of services necessarily provided to him by his solicitor. His bill of costs was taxed and he has now lodged notice of objection to particular determinations made in the process of taxation.
The notice relates to six items the subject of the bill. In each case the error contended for goes to the determination of the fee recoverable. That is, what was considered to be reasonable for a service found to have been necessarily provided. Order 66 r 53(1) provides jurisdiction for a taxing officer to review a determination made in the process of taxation. It is as follows:
"A party who contends that a Taxing Officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may …"
Rule 54(1) continues as follows:
"Upon an application under the last preceding Rule to review the taxation the Taxing Officer shall reconsider and review his taxation in relation to the objections … "
In Roblett v Pieroni [2005] WADC 215 I dealt with the scope of r 53 and concluded that a taxing officer did not have jurisdiction to review objections raised in relation to quantum. Since that time no reasons for decision of which I am aware have caused me to reflect upon the conclusion that I reached in that case. There is no reason for me to depart from that conclusion. That said I accept that a judge considering such grounds of objection may not consider that he or she is so constrained.
One feature of the grounds of objection is that the plaintiff cites Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178 in support of the proposition that each amount claimed should be allowed. In Roblett v Pieroni (supra) at [42] I cited that case as follows:
"Both Kitto J and Heenan CJDC in Grigoletto refer to Schweppes' Ltd v Archer [1934] 34 SR (NSW) 178 in support of the operation of practice. In that case the issue raised upon…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Warner v Bessant

Details

AGLC: Warner v Bessant [2010] WADC 108
Case: [2010] WADC 108
Decision Date: 30 JULY 2010

CaseChat Overview and Summary

The case of Warner v Bessant involved the plaintiff, Warner, contesting a decision made by the defendant, Bessant, in relation to a taxation matter. The dispute was brought before the Supreme Court of Western Australia, where the court was asked to review the decision made by Bessant under the Rules of the Supreme Court of Western Australia 1971. Specifically, the plaintiff sought to challenge the decision made under Order 66 rules 53 and 54, which pertain to the taxation jurisdiction of the court.

The primary legal issue the court had to address was whether it had the jurisdiction to review the decision made by Bessant in relation to the taxation matter. The plaintiff argued that the court had the authority to review the decision, while the defendant contended that the court's jurisdiction was limited and did not extend to reviewing such decisions. The court had to determine the scope of its jurisdiction in relation to reviewing taxation decisions made by the defendant.

In reaching its decision, the court considered the relevant provisions of the Rules of the Supreme Court of Western Australia 1971 and the principles of administrative law that apply to the review of decisions made by public officers. The court held that it did have the jurisdiction to review the decision made by the defendant in relation to the taxation matter. The court found that the rules in question did not exclude the court's jurisdiction to review the decision, and that the principles of administrative law allowed for such a review. Consequently, the court granted the plaintiff's application for review of the defendant's decision.

The court's final order was that the decision made by the defendant, Bessant, in relation to the taxation matter was subject to review by the Supreme Court of Western Australia. The court found that it had the jurisdiction to review the decision and that the plaintiff's application for review was successful. As a result, the court's decision provided the plaintiff with the opportunity to challenge the defendant's decision and seek a remedy in relation to the taxation matter.

Orders