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

1. 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. 

2. 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 …"

3. 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 … "

4. 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.

5. 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 review was that the travel component of a witness fee had been disallowed. Jordan CJ referred to Western Australian Bank v The Royal Insurance Company [1908] 7 CLR 385 and Clark, Tait & Company & Anor v The Federal Commissioner of Taxation [1931] 47 CLR 142. As was the case in Schweppes' Ltd, each of those cases dealt with objections as to the allowance or disallowance of items or their parts and would have been squarely within the scope of review provided by the rule."

6. In effect, I did not consider that Schweppes' Ltd v Archer (supra) provided grounds for considering that the rule provided scope for review of an alleged error relating to quantum.  In my opinion reasons in a case on the necessity for provision of a service would have nothing useful to say in relation to the cost of provision of that service. 

7. The only other observations that I would make in relation to the objections go to the reasons provided in support of the grounds. 

8. In each case they portray the claim as the datum for what is reasonable.  A claim made in a bill is of no particular interest to a taxing officer until the point is reached of expressing the result of taxing the item.  As a matter of practice it is recorded by reference to the claim.

9. At the points at which recovery was sought for getting up case for trial the plaintiff portrays the work performed as being the datum.  Without wishing to indicate anything adverse to the solicitor or solicitors who attended upon the plaintiff, in applying the relevant part of the test of recovery the appropriate standard is of a competent solicitor acting efficiently.  In determining the value of the relevant service it was that standard that was applied.

10. The plaintiff cites Clay v Karlson & Anor, unreported; SCt of WA; Library No 980356; 26 June 1998.  The only useful observation that I can make is that it was apparent that the court had before it a claim for a chambers appearance and it appears to have been its view that recovery under the relevant scale item was to be had on the basis of hourly rates.  I make no comment in relation to that proposition.  I would observe that under the item for getting up case for trial recovery is not expressed to be time rated. 

11. Absent an understanding that the process of assessing quantum in taxation is different to the exercise in which the Costs Committee was engaged in drawing the scale, it might considered that in assessing quantum, the time spent in the process of delivering a service that is not time rated would either be paramount or significant. 

12. In determining the appropriate extent of recovery under the order for costs obtained by the plaintiff consideration is properly given to the application of the standard that I have already expressed: that of a competent solicitor acting efficiently.  The time actually recorded by a particular solicitor or solicitors engaged in a task is at best indicative of what may be reasonable.  Ultimately, the considerations that determine the extent of recovery are more than the extent to which time may have been devoted to the exercise.