Costs - Taxation of costs by registrar - Objection to quantum allowed on item - Whether registrar has jurisdiction to review quantum allowed - Review of taxation by judge - Whether error in principle by taxing officer - Whether inadequacy of reasons by taxing officer indicates error in principle - Rules of the Supreme Court 1971, O 66 r 53, r 54, r 55

Legislation:

Rules of the Supreme Court 1971, O 66 r 53, r 54, r 55

Result:

Appeal upheld

Representation:

Counsel:

Plaintiff: Mr A J Stewart
Defendant: Mr P Sheavyn

Solicitors:

Plaintiff: Chapmans
Defendant: Talbot & Olivier

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

Abbotts Pty Ltd v Gel Group Pty Ltd [2007] WADC 197
Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
Cameron v Bennett (Unreported, WADC, Library No 2678, 19 January 1990)
Clay v Karlson (Unreported, WASCA, Library No 970424, 21 August 1997)
Clay v Karlson (Unreported, WASCA, Library No 980356, 26 June 1998)
Crisp v Mossensons (Unreported, WASC, Library No 970302, 18 June 1997)
Eaves v Eaves [1955] 3 All ER 849
Foreman v E & L Metcalfe Pty Ltd (Unreported, WADC, Library No 3935, 14 February 1994)
Griffiths v Delron Cleaning Pty Ltd [2003] WADC 123
Grigoletto v Myer Properties (WA) Ltd (Unreported, WADC, Library No 3667, 31 March 1993)
Joyce v Hutchinson [2000] WADC 42
McCahon v Eltin Limited (Unreported, WADC, Library No D980275, 30 September 1998)
Mossensons (a firm) v Coastline Associates (Unreported, WASCA, Library No 970661, 2 December 1997)
Re: Gibson's Settlement Trusts; Mellors v Gibson [1981] 1 All ER 233
Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178
Titan v Babic [1995] FCA 813
Warner v Bessant [2010] WADC 108

SCHOOMBEE DCJ: This matter concerns a review by a judge of a taxation undertaken by a registrar of the District Court (the Registrar).
Mr Neill Warner, the plaintiff, brought an action for damages against Ms Rebekah Bessant, the defendant, in respect of injuries suffered by him in a motor vehicle accident. The matter was settled at a second pre‑trial conference and Mr Warner accepted $40,000 plus costs to be taxed in full and final satisfaction of his claim.

The bill of costs, the objections and the Registrar's reasons

Mr Warner's solicitors filed a bill of costs for taxation. The bill of costs included an item '15.01.10 Pre‑Trial Conference (preparation only)' in the amount of $1,188, as well as an item '11.03.10 Pre‑Trial Conference, including preparation' at $1,980. The bill of costs also contained three items for 'getting up case for trial' which related to different time periods and amounted to a total of $9,636.
The Registrar did not allow the amount of $1,188,…

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 [No 2]

Details

AGLC: Warner v Bessant [No 2] [2010] WADC 182
Case: [2010] WADC 182
Decision Date: 9 DECEMBER 2010

CaseChat Overview and Summary

In the case of Warner v Bessant, the plaintiff, Mr Warner, sought to challenge the taxation of his costs by the Registrar, arguing that errors in principle had been made in the assessment of the quantum of the costs. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether the Registrar had jurisdiction to review the quantum of costs allowed and whether an error in principle had been made by the Registrar in assessing the costs.

The court considered the legal framework governing the taxation of costs, particularly under Order 66 of the Supreme Court Rules 1971. It was established that the taxing officer would only be required to alter their decision if an error of principle was identified. The court examined whether the Registrar's failure to adjust the quantum for the preparation of the first pre-trial conference and the getting up of the case for trial constituted an error in principle. The court held that an error in principle occurs when the taxing officer acts upon a wrong principle, overlooks relevant considerations, or makes a factual error.

The court found that while the Registrar had initially stated that he did not have jurisdiction to review the quantum, he subsequently assessed the quantum and provided reasons for not adjusting it. The court concluded that the Registrar had not made an error in principle as he had considered the objections raised and provided reasoned justification for his decision. The court emphasised that it would only intervene where the discretion of the taxing officer had not been exercised or was manifestly wrong. The court found that the Registrar's assessment of the costs was within his discretion and that no error in principle had been demonstrated by Mr Warner.

Accordingly, the court dismissed Mr Warner's objections to the taxation of costs. The orders of the court were that the objections to the taxation of costs were dismissed and the costs taxed were to stand as taxed by the Registrar.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The taxing officer would only be obliged to change his view if an error of principle was pointed out to him or her. Order 66 r 53(1) makes it clear that any change in the allowance or disallowance of an item or part of an item in a bill of costs can only be made where the taxing officer has made an error in principle. It is well established law that an error of principle only occurs where an officer acts upon a wrong principle, gives weight to extraneous or irrelevant matters, fails to give weight or sufficient weight to relevant considerations, or makes a mistake as to facts: Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621, 627. Accordingly, a party who objects to an assessment of quantum needs to raise an error in principle in his or her objections and point out matters which the taxing officer did not take into account or should not have taken into account or gave inappropriate weight to. It is then for the taxing officer to take a fresh approach to his or her decision, consider the errors in principle raised by the objecting party and come to a new decision which may or may not be the same as previously arrived at. It is not unusual for any decision maker to overlook a particular issue or give insufficient weight to it, which may happen because of either an overload of information or lack of information. The Registrar erred in principle when he came to the conclusion that he did not have jurisdiction to review the quantum of the amount allowed for getting up the case for trial. Counsel for Ms Bessant submitted that although the Registrar had said in his reasons that he did not have jurisdiction to review quantum, he then proceeded to explain why the quantum for getting up the case for trial should not be adjusted in any event and did not make any error in principle in this regard. Counsel for Mr Warner submitted that the Registrar had made two errors in principle when he reviewed the taxation. He did not allow the amount of $1,188 for the preparation of the first pre-trial conference and did not adjust the quantum for the getting up of the case for trial. It is established law that in respect of a taxation an error in principle may occur both in determining whether an item should be allowed and in determining how much of the item should be allowed. It is also accepted law that a court will be reluctant to interfere with a taxing officer's decision on quantum and will only do so where the officer's discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong: Schweppes' Ltd v Archer (183 – 184); approved in Australian Coal & Shale Employees Federation v The Commonwealth (627 - 628). Counsel for Mr Warner submitted that the Registrar made an error in principle when he did not include the preparation for the first pre‑trial conference in the amount assessed for getting up the case for trial. However, this was not the basis on which the bill of costs had been drafted and was also not raised in the plaintiff's notice of objection. In that notice Mr Warner still claimed that the preparation for the pre‑trial conference should have been allowed as a separate item.

Citations

AGLC Citation

Warner v Bessant [No 2] [2010] WADC 182

Most Recent Citation

Zaghloul v Woodside Energy Ltd [2019] WASCA 187

Cases citing this decision · 3 of 3 shown

Zaghloul v Woodside Energy Ltd
[2019] WASCA 187 Para 2

…essive and unreasonable when compared to the $900 allowed following the discontinuance after 5 weeks in that case.[114] [112] Warner v Bessant [No 2] [2010] WADC 182; Lock v McCallum Donavon Sweeney [2011] WADC 106. [113] UTA Pty Ltd v Albany Star Pty Ltd & Ors [2007] WADC 186. [114] Appeal ts 31.…
Tey v Optima Financial Group Pty Ltd [No 3]
[2012] WADC 3 Para 2

…ons, or makes a mistake as to facts: Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621, 627; Warner v Bessant [No 2] [2010] WADC 182 [27]. In respect of a taxation 'an error in principle may occur both in determining whether an item should be allowed and in determining how much of…
Warner v Bessant [No 3]
[2011] WADC 91 Para 8

…proposition that the court intended that the rule would not apply. Other than the irrelevant parts the reasons for decision ( Warner v Bessant [No 2] [2010] WADC 182) are as follows: 1.This matter concerns a review by a judge of a taxation undertaken by a registrar of the District Court (the Registrar). 2.Mr Neill…

View all 3 citing cases →

Cases cited in this decision · 9 of 9 shown

Warner v Bessant
[2010] WADC 108 Para 6

…needs to request such reasons. Mr Warner did not request reasons, but the Registrar provided written reasons of his own accord (see Warner v Bessant [2010] WADC 108).…
Abbotts Pty Ltd v Gel Group Pty Ltd
[2007] WADC 197 Para 8

…jurisdiction to review did not extent to quantum alone. In Joyce v Hutchinson [2000] WADC 42 [9] (Groves DCJ) and Abbotts Pty Ltd v Gel Group Pty Ltd [2007] WADC 197 [21] (Wager DCJ), their Honours referred to Grigoletto and came to the conclusion that the Registrar was bound by that decision and was adopting an u…
Roblett v Pieroni
[2005] WADC 215 Para 3

…In his reasons for dismissing the objections the Registrar referred to his decision in Roblett v Pieroni [2005] WADC 215. In that decision the Registrar discussed the powers of a taxation officer on review which applied prior to the introduction of O 6 r 53, r 54 and r 55 and the way in which subsequent decisions…
Griffiths v Delron Cleaning Pty Ltd
[2003] WADC 123 Para 11

…es when determining the amount to be allowed for getting up the case for trial. Counsel for Mr Warner referred to Griffiths v Delron Cleaning Pty Ltd [2003] WADC 123 [13] where Martino DCJ held the following: In determining an allowance on a taxation for work done by a practitioner or paralegal it is necessary for…
Joyce v Hutchinson & Anor
[2000] WADC 42 Para 8

…clusion was reached that the Registrar was in error in finding that his jurisdiction to review did not extent to quantum alone. In Joyce v Hutchinson [2000] WADC 42 [9] (Groves DCJ) and Abbotts Pty Ltd v Gel Group Pty Ltd [2007] WADC 197 [21] (Wager DCJ), their Honours referred to Grigoletto and came to the concl…
Titan v Babic
[1995] FCA 813 Para 16

…In Clay v Karlson (Unreported, WASC, Library No 980356, 26 June 1998) 6 Wallwork J referred to Titan v Babic [1995] FCA 813, 18, where Finn J came to the conclusion at that it was appropriate that the general criteria which applied to judicial reasons also be applied to the reasons by a court officer, particularl…
Australian Coal and Shale Employees' Federation v The Commonwealth
[1953] HCA 25 Para 2

…ight or sufficient weight to relevant considerations, or makes a mistake as to facts: Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621, 627.…
Schweppes' Ltd v Archer
51 WN 71 Para 5

…tted in the objections that the Registrar had jurisdiction to review the quantum allowed for getting up the case for trial and referred to two cases, Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178 at 181 and Clay v Karlson (Unreported, WASCA, Library No 980356, 26 June 1998).…
[1892] WN 54
[1892] WN 54 Para 15

…er, no appeal lies as to quantum. The importance of the parties being made aware of these reasons by the registrar is mentioned in Dashwood v Magnic ([1892] WN 54). It should be emphasised that the duty of a taxing officer when answering an objection is to make a full statement of all his 'grounds and reasons'…

Legislation cited in this decision · 0

No legislation cited in this case.