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

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WARNER -v- BESSANT [No 2] [2010] WADC 182

CORAM: SCHOOMBEE DCJ

HEARD: 11 OCTOBER 2010

DELIVERED : 9 DECEMBER 2010

FILE NO/S: CIV 2376 of 2007

BETWEEN: NEILL CHRISTOPHER WARNER
Plaintiff
AND
REBEKAH CHANTELLE BESSANT
Defendant

Catchwords:

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, because it related to preparation for a pre‑trial conference only and reduced the amount claimed for the second pre‑trial conference, which included preparation, by $900. In his submission for the review of the taxation by a judge, counsel for Mr Warner conceded that there was no item in the relevant costs determination which allowed for preparation for a pre‑trial conference. However, he submitted that the preparation for the first pre‑trial conference should have been considered by the Registrar as part of the work which was necessary for getting up the case for trial. This submission had not been made at the hearing before the Registrar, nor was it raised in the objections filed against the Registrar's taxation.
With regard to the total amount claimed for getting up the case for trial, the Registrar reduced the amount of $9,636 by slightly less than half to an amount of $5,000.
Mr Warner filed objections to the taxation which were considered by the Registrar. The objections stated that the Registrar had made an error in principle when he disallowed the preparation for the trial conference, as such work had been necessary. The objections also claimed that the Registrar had made an error in principle in disallowing an unreasonably high amount, disproportionate to the work performed in relation to the items 'getting up case for trial'. Mr Warner's counsel listed the following six items of work actually performed as substantiation for the amount of costs incurred in getting up the case for trial:
1.The plaintiff was put to proof from the beginning on every item and a lot of work was done on the assessment of economic loss;
2.Work included taking instructions, corresponding and conferring with plaintiff;
3.Telephone attendances and correspondence with defendant's solicitors;
4.Perusing defence, drawing schedule of damages;
5.Proofing the plaintiff and the plaintiff's partner; and
6.Martialling evidence and considering reports.
Counsel for Mr Warner submitted 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).
The Registrar declined to change the outcome of his taxation. Pursuant to O 66 r 54(2) of the Rules of the Supreme Court 1971 a party wishing to obtain reasons for a registrar's decision on the objections, 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).
The Registrar's reasons deal mostly with the question whether a taxing officer has jurisdiction to review the quantum of an item allowed or whether his or her jurisdiction is limited to allowing or disallowing any particular item or part of such an item in a bill of costs. The Registrar came to the conclusion that he did not have jurisdiction on a review to adjust the quantum of an item allowed. Accordingly, the Registrar did not deal in detail with the six reasons provided by Mr Warner as to why the amount allowed for getting up the case for trial was unreasonably low. The Registrar only referred in his reasons to the fact that the appropriate quantum for a particular item was determined by the costs that a competent solicitor acting efficiently would have incurred and not by the work performed by the solicitor for the objecting party. The Registrar said the following at [9] and [12] in this regard:
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 [9].
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 [12].

Application for review by judge out of time

After having delivered his reasons for declining to change the amount taxed upon review of the bill of costs, the Registrar signed off on the bill of costs on 30 July 2010. Pursuant to O 66 r 55(1) of the Rules of the Supreme Court a party who wishes to apply to a judge for an order to review the taxation has to bring the application within 14 days from the date of the certificate or within such other time as the court may allow. The application for a review by a judge was brought five days out‑of‑time. Counsel for Ms Bessant did not deal with this issue in his submissions and did not raise any prejudice by reason of the delay. There does not seem to be any reason why the time for filing the application for a review by a judge should not be extended for such a short period. I extend the time to 18 August 2010, which is the date when the application for a review before a judge was made.

Issues arising on review before the judge

There are two issues that arise on the review before me. The first one is whether a taxing officer has jurisdiction to review the quantum of an item allowed by him or her after objection has been taken to it. The second issue is, whether, assuming that the taxing officer has jurisdiction to review quantum, the Registrar made an error in principle in not reviewing the quantum and whether I should therefore make an order to rectify this error.

The Rules of Supreme Court regarding review of taxation

The Rules of Supreme Court deal with the powers of a taxing officer once an objection to a bill of costs has been made and also with the powers of a judge on reviewing the taxation. The following rules are of relevance (O 66):
53.Party dissatisfied with taxation may object
(1)A party who contends that the 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, at any time before a certificate of taxation dealing finally with that item is signed, or at 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 in 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 objections; and
(b)thereupon apply to the Taxing Officer to review the taxation in respect of those items or parts.
…
54.Taxing Officer may review taxation
(1)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, and he may, if he thinks fit, receive further evidence in respect of the objections.
(2)If so required by a party, the Taxing Officer shall state in his certificate of taxation or by reference to the objection, the ground and reason of his decision on the objection, and any special facts or circumstances relating to his decision.
…
55.Taxation may be reviewed by a Judge
(1)If a party is dissatisfied with the certificate of the Taxing Officer as to any item or part of an item objected to under Rule 53 of this Order, he may, within 14 days from the date of the certificate, or such other time as the Court, or the Taxing Officer at the time he signs his certificate, allows, apply to a Judge in chambers for an order to review the taxation as to that item or part of an item.
(2)The Judge, if of opinion that the Taxing Officer has made an error in principle, may thereupon make such order to rectify the error as the Judge thinks just.
(3)The certificate of the Taxing officer is final and conclusive as to all matters which have not been objected to in accordance with these Rules.

Whether taxing officer has jurisdiction to review the quantum of an item allowed

Counsel for Ms Bessant accepted that under O 66 r 53(1)(a) and r 54(1) a taxing officer has jurisdiction to review the quantum of an item in a bill of costs allowed by him or her. It is therefore not strictly speaking necessary for me to deal with this issue. However, as the Registrar seems to have been of the view for some time that he does not have that jurisdiction and it is apparent from the reasons provided by him that this was the main ground on which he declined to review the quantum allowed for getting up the case for trial in this instance it may be helpful if I briefly deal with the issue.
The Registrar's view that he lacks the requisite jurisdiction to review quantum seems to be based on the wording of O 66 r 53(1)(a), where it is provided that an objection to a taxation needs to state in short and concise form 'the items or parts of items objected to'. The Registrar seems to have interpreted these words as meaning that an objection is only allowed to distinct or separable items or parts of items and not to the quantum of an item.
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 have dealt with the new rules. One of these decisions was Grigoletto v Myer Properties (WA) Ltd (Unreported, WADC, Library No 3667, 31 March 1993) where Heenan CJDC came to the conclusion that the words in O 66 r 53(1)(a) were not intended to exclude the taxing officer's jurisdiction to review a decision on quantum. In Roblett v Pieroni the Registrar referred to Grigoletto v Myer Properties (WA) Ltd, but came to the conclusion that the decision by Heenan CJDC was either inconclusive or obiter.
I do not wish to deal with the Registrar's reasoning adopted in Roblett v Pieroni in detail, as this matter has not been placed in issue by the defendant and has not been the subject of submissions by the parties. However, I should note that the decision by Heenan CJDC in Grigoletto does not appear to me to be either inconclusive or obiter. Heenan CJDC considered the argument that a taxation officer's jurisdiction does not encompass a review of an item where the objection is to quantum only and rejected that view. Heenan CJDC referred to Cameron v Bennett (Unreported, WADC, Library No 2678, 19 January 1990) (Barlow DCJ) and Brandon Valley Pty Ltd v Brinklow (Unreported, WASC, Action No 1906 of 1983, 24 July 1987) (Registrar Watt), (which decision does not seem to have been published) and noted that these decisions supported the restrictive interpretation of O 66 r 53(1)(a). However, Heenan CJDC came to the conclusion that these two decisions were wrong because they did not take into account that the rules which had applied in England until 1960 and 'even more recently' in Victoria had been in the same terms and had been interpreted to allow the taxing officer jurisdiction to review quantum.
In Foreman v E & L Metcalfe Pty Ltd (Unreported, WADC, Library No 3935, 14 February 1994) Barlow DCJ, after considering Grigoletto, concluded that his earlier decision in Cameron v Bennett could not be supported.
Heenan CJDC in Grigoletto considered the exact issue which is raised by the wording of O 66 r 53(1)(a) and expressly rejected the interpretation which the Registrar has continued to adopt in Roblett v Pieroni. The fact that Heenan CJDC declined to adjust the quantum assessed by the taxing officer for the getting up of the case for trial does not detract from his Honour's finding that the correct interpretation of O 66 r 53(1)(a) allowed for a review of the quantum by a taxing officer.
In McCahon v Eltin Limited (Unreported, WADC, Library No D980275, 30 September 1998) L A Jackson DCJ dealt with another matter in which the amount for getting up the case for trial was reduced by the registrar and after an objection was taken, the registrar declined to review the quantum on the basis that he had no jurisdiction to do so. L A Jackson DCJ came to the conclusion at (6) that the registrar was wrong in taking that interpretation of O 66 r 53(1)(a) and said that such an interpretation would frustrate the very purpose and intent of a review. L A Jackson DCJ held that an interpretation which facilitated the purpose of the rule should be adopted and that the wording in r 53(1)(a) allowed for an interpretation pursuant to which 'part of an item' referred to a portion of an item in the bill of costs. L A Jackson DCJ also came to the conclusion that the registrar was bound by Grigoletto and erred in departing from it.
Two further decisions by District Court judges were brought to my attention in which Grigoletto was followed and the conclusion 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 conclusion that the Registrar was bound by that decision and was adopting an unnecessarily restrictive interpretation of r 53(1)(a).
In light of the findings by four District Court judges that the interpretation adopted by the Registrar should not be followed, it is not necessary for me to deal with this matter again in detail, particularly as this matter was not argued before me. However, I should refer to the definition of the word 'part' in the New Shorter Oxford English Dictionary which is as follows:
1.portion or division of a whole;
2.a quantity which together with others makes up a whole (whether actually separate from the rest or not); an amount, but not all, of a thing or a number of things; a portion; …
This definition makes it clear that 'a part' is not only a separable part of a whole but also a portion of a whole or an amount.
It further appears that the Registrar is of the view that although the taxing officer does not have jurisdiction to review the quantum allowed for a particular item, a judge may have that jurisdiction. The Registrar said the following in his reasons for dismissing 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.
There is no basis for drawing this distinction. Order 66 r 53(1)(a) provides that an objection may be lodged where the 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'. Order 66 r 55(1) and (2) provide that where a party is dissatisfied with the review of the taxing officer as to 'any item or part of an item objected to' he or she may apply to a judge for an order to review the taxation 'as to that item or part of an item'. The words used in both r 53 and r 55 are the same apart from the fact that O 66 r 53(1)(a) refers to the taxing officer allowing or disallowing any item or part of an item, whereas O 66 r 55(1) refers to the judge 'reviewing' that item or part of an item. That distinction in wording does not provide any basis for a conclusion that a taxing officer does not have jurisdiction to review the quantum of a particular item allowed, whereas a judge has that jurisdiction. Once it is accepted that 'a part' includes 'a portion', allowing a larger portion of an item or disallowing a portion would be no different to reviewing an item and allowing or disallowing a portion.
It also does not make sense for the Rules of the Supreme Court to provide for jurisdiction by a judge to review the quantum, but not by the taxing officer, where, as stated by Heenan CJDC in Grigoletto, a judge is not nearly as competent to say what is the proper amount to be allowed and would only in a very exceptional case overturn a taxing officer's decision as to quantum. Further, the purpose of a review by a taxing officer would be undermined if the only way to have the quantum for a particular item reviewed would be to file an objection with the taxing officer, wait for the reply that the quantum cannot be reviewed and then to take the decision on review to a judge. This is the practical result of an interpretation which limits the jurisdiction of the taxing officer on review to allowing or disallowing a separable part of an item, but gives the judge jurisdiction to review the quantum, as suggested by the Registrar in Roblett v Pieroni [58].

The Registrar also expressed his concern in Roblett v Pieroni that there would be no purpose in asking the same taxing officer to review his or her own decision on quantum. However, as explained by L A Jackson DCJ in McCahon v Eltin Limited, there is nothing strange about a taxing officer (or any judicial officer) changing his or her mind upon hearing further argument on a particular point and reconsidering all the relevant considerations.
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.

Whether Registrar made an error in principle when he explained how the quantum was assessed

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.
Order 66 r 53(1)(a) requires that a party who wishes to challenge a taxation needs to specify in the notice of objection, in a short and concise form, the items or parts of items objected to and the grounds and reasons for the objections. Pursuant to O 66 r 54(1) the taxing officer has to reconsider and review his taxation in relation to the objections. If a party is dissatisfied with the certificate of the taxing officer as to any item or part of an item objected to, he or she may apply to a judge in chambers for an order to review the taxation as to that item or part of an item.Rule 55(3) provides that the certificate of the taxing officer is final and conclusive as to all matters which have not been objected to.
At the time that the costs for preparation of the pre‑trial conference were incurred, the relevant costs determination did not allow for a separate item for preparation for a pre‑trial conference, although this was the case prior to 1996 and is again the situation under the most recent costs determination. Counsel for Ms Bessant conceded that the taxing officer could have allowed an amount for preparation for the pre‑trial conference as part of the global amount allowed for the getting up of the case for trial, but submitted that the notice of objection should have been drafted to that effect. I agree that a party who files objections is bound by the manner in which items are objected to and the grounds and reasons that are given for those objections. It is not for the taxing officer to consider whether costs claimed for an item that is not recognised by the relevant costs determination could be allowed for under another item. In Australian Coal and Shale Employees' Federation v The Commonwealth (625 – 626) Kitto J pointed out that objections needed to be carefully framed, because it was to those and those alone that the taxing officer's answers were directed.
Accordingly, the Registrar did not make any error in principle when he disallowed the amount of $1,188 claimed for preparation of the first pre‑trial conference.
The other objection raised by counsel for Mr Warner was that the Registrar taxed off an unreasonably high amount in relation to the getting up of the case for trial.
Counsel for Ms Bessant submitted that a judge should not interfere with the discretion exercised by a taxing officer when fixing quantum. Counsel relied on Clay v Karlson (Unreported, WASCA, Library No 970424, 21 August 1997) where Heenan J said the following:
Generally speaking, the decision of a taxing officer is final. It will prevail on review by a Judge unless, as O 66 r 55(2) provides, the Judge is of the opinion that the officer has made an error in principle. A very wide discretion is left to a taxing officer. Further, as a Judge is not nearly as competent to say what is the proper amount to be allowed, only in a very exceptional case will a Judge review a taxing officer's decision as to quantum.
Counsel for Ms Bessant also referred the court to Mossensons (a firm) v Coastline Associates (Unreported, WASCA, Library No 970661, 2 December 1997) where Pidgeon, Ipp and Templeman JJ held the following:
The point is that there must be an 'error in principle' before a Judge will carry out a review under O 66 r 55. Although it is possible for an error in principle to be made in regard to the quantum allowed in respect of a particular item, that is generally regarded as unusual. In my opinion, an error in principle on this basis could only be established if it is shown that no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question.
Counsel for Ms Bessant further submitted that the Registrar had heard submissions from both parties on the taxation and subsequently made an assessment as to the reasonable costs that should be allowed for the getting up of the case for trial. This assessment should not be interfered with by a judge. Counsel for Mr Warner, on the other hand, submitted that the Registrar did not exercise his discretion in a proper manner in that he failed to consider all relevant factors and issues 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 the taxing officer to have regard to the times spent on the item, whether the work was done by a practitioner or paralegal and, if done by a practitioner, the level of seniority of that practitioner and the hourly rate charged by the practitioner or the paralegal. Once that information is known the taxing officer should have regard to any other matters that may be relevant to determine whether the charge is a reasonable charge.
Counsel for Mr Warner submitted that the Registrar did not indicate in his reasons whether he had considered these factors in arriving at the quantum for getting up the case for trial. While the factors listed by Martino DCJ are relevant factors which a taxing officer should take into account, Mr Warner did not state in his notice of objection that the Registrar had failed to consider any of these factors. The only objection raised was that the Registrar had failed to take into account the work actually done by Mr Warner's solicitors in getting up the case for trial. Mr Warner cannot expect the Registrar to give a wide ranging explanation of what matters he has and has not taken into account, irrespective of whether this has been the subject of an objection or has been listed as a reason for the objection.
However, counsel for Mr Warner did list six items of work that Mr Warner's solicitors had performed and the objection was based on the fact that the Registrar did not take the actual work done in these six categories into account when assessing the amount to be allowed for getting up the case for trial. The actual work performed by the objecting party's solicitors is a relevant matter to be taken into account. So much seems to be accepted by the Registrar when he says that the time recorded by a particular solicitor is 'at best indicative of what may be reasonable'. However, because the Registrar dealt in the greater part of his reasons with the view that he had no jurisdiction to re‑assess quantum on review and because he did not say that he had taken into account the reasons for the objection raised by Mr Warner's solicitors, I have to assume that he did not exercise his discretion anew by considering the specific matters that Mr Warner's solicitors had raised.
In Crisp v Mossensons (Unreported, WASC, Library No 970302, 18 June 1997) 14, Templeman J held that because a judge could only rectify errors of principle upon a review of a taxation, it was important that the party seeking the review should require the taxing officer to state the grounds and reasons of his decision on each objection and equally important that the taxing officer should give clear but concise reasons.
In Eaves v Eaves [1955] 3 All ER 849, 851 Sachs J said the following in respect of O 65 r 27(40) of the English Rules of the Supreme Court which were then in the same terms as O 66 r 54(2):
The main object of the above cited provision is to enable an aggrieved party to ascertain what the taxing officer has or has not taken into account as being relevant factors. If he has taken into account factors which are irrelevant or if he has not taken into account all the factors which should have been in his mind, an appeal lies as regards principle. Normally, however, 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' in relation to the objection, a duty which may well, as in the present case, entail stating specifically whether or not the matter complained of was taken into account.
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, particularly where such reasons were required to be given before a judge reviewed the officer's decision. Finn J held that the effectiveness of the review process depended on the sufficiency of the reasons given by the officer. Finn J further referred to Re: Gibson's Settlement Trusts; Mellors v Gibson [1981] 1 All ER 233 at 243 where Megarry V-C said the following:
The duty to give reasons is plainly most important. The reasons are needed initially to enable the unsuccessful party to decide whether to carry matters further. If he does bring the taxation before a Judge for review, the reasons are needed to enable the parties to know the propositions they have to attack or defend, and also to enable the Judge to understand why the taxing officer did what he did. … the duty of the taxing officer is to make a full statement of all his reasons, and this duty may well entail stating specifically whether or not a matter complained of was taken into account.
Because of the lack of adequate reasons in this case it is impossible to know whether the Registrar has taken into account the reasons for the objections and it must therefore be assumed that he did not properly exercise his discretion. Not taking into account relevant material, namely the reasons for the objections, is an error in principle. The Registrar therefore made an error in principle upon the review of his own taxation and the error needs to be corrected.
Counsel for Mr Warner further submitted that an error in principle had occurred when the Registrar assessed the quantum for getting up the costs for trial because the amount was so low that this in itself indicated that the Registrar had not exercised his discretion properly. Counsel relied on Clay v Karlson (Unreported, SCt of WA, Library No 970424, 21 August 1997) where Heenan J observed that 'a decision as to quantum alone might be so outrageous as to speak for itself and show that the taxing officer did not exercise his discretion in a proper manner'. I do not agree that the mere fact that the amount for getting up the case for trial was reduced by almost half indicates that no taxing officer, acting reasonably, could have arrived at this decision. It is not inconceivable that solicitors could incur double the amount of costs that are reasonable for a particular item.
Not having been the trial judge, it is not appropriate for me to conduct an assessment of what a reasonable amount would have been for getting up the case for trial. The matter should therefore be remitted to the Registrar or another registrar in order to re‑assess the amount allowed for getting up the case for trial with specific attention being given to the work which Mr Warner's solicitors say they have performed. Because the matter is remitted for another review, the taxing officer should provide reasons indicating to what extent the work relied upon by Mr Warner's solicitors has been taken into account or was considered unnecessary or unreasonable.
Counsel for Mr Warner asked that the bill of costs as taxed by the Registrar should be quashed in its entirety. However, there is no reason why this should occur. The only items in respect of which valid objections were lodged are the three items relating to the costs of getting up the case for trial. It is only those items that should be reviewed again.