Warner v Bessant [No 3] - [2011] WADC 91

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WARNER -v- BESSANT [No 3] [2011] WADC 91

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: ON THE PAPERS

DELIVERED : 10 JUNE 2011

FILE NO/S: CIV 2376 of 2007

BETWEEN: NEILL CHRISTOPHER WARNER
Plaintiff
AND
REBEKAH CHANTELLE BESSANT
Defendant

Catchwords:

Practice - Western Australia - Review of taxation - Turns on its facts

Legislation:

Nil

Result:

Allegations of error not sustained

Representation:

Counsel:

Plaintiff: Not applicable
Defendant: Not applicable

Solicitors:

Plaintiff: Chapmans
Defendant: Talbot & Olivier

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

Schweppes' Ltd v Archer (1934) SR (NSW) 178
Warner v Bessant [2010] WADC 108
Warner v Bessant [No 2] [2010] WADC 182

DEPUTY REGISTRAR HARMAN: The plaintiff obtained an order for the costs of the action. In this jurisdiction as there has been no modification of the scope for recovery of costs under common law; thereby the plaintiff was entitled to recover the reasonable cost of services necessarily provided to him for the purposes of the action. In seeking to recover the cost of the service getting up case for trial, by items numbered 1, 2 and the second of two items numbered 9 in his bill he claimed $9,636. At taxation the items were consolidated. When that claim was addressed, the defendant indicated that she took no issue with the item or any of its parts, only the quantum of the fee claimed. In the assessment of quantum it was for the plaintiff to justify the amount claimed. Because the order was made well prior to any trial, perhaps more accurately, the task before the plaintiff was to justify recovery for the service under the order. After hearing submissions I determined that the plaintiff was entitled to recover $5,000.
The plaintiff subsequently lodged a notice of objection that related to a number of determinations. For present purposes the relevant parts of the notice are as follows:

Item objected to Grounds Reasons

Item 1 Getting up Case for Trial

16.03.05 – 30.06.06

Error in Principle

The item and the amount claimed should be allowed.

The Bill of Costs included a total amount of $9636.00 for these three items and included a reasonable amount based on the work done in preparation for trial.

Item 2 Getting up Case for Trial

01.07.06 – 30.06.08

The amount taxed off was too high and disproportionate to the work performed.

Schweppes Ltd v Archer (1934) SR (NSW) 181

The disallowance of $4636.00 reduces the amount significantly and leaves an amount which does not accurately reflect the amount of work done.

Item 9 Getting up Case for Trial

01.07.08 – 25.01.10

Error in Principle

The amount taxed off for the item was unreasonable on the basis of the amount of work done.

Clay and Clay v Karlson and Kurelic (Unreported, WASC, Wallwork J, 26 June 1998, Lib No 980356)

The work done included all work done in preparation for trial, and the work done was done for no other reason, than for preparation for trial.

The Plaintiff was put to proof from the beginning of every item and a lot of work was done on the assessment of economic loss.

Work included taking instructions, corresponding and conferring with the Plaintiff.

Telephone attendances and correspondence with Defendant's solicitors

Perusing defence, drawing schedule of damages

Proofing the Plaintiff and the Plaintiff's partner

Marshalling evidence and considering reports

On 30 July 2010 after considering the terms of the notice I gave short reasons for my decision (Warner v Bessant [2010] WADC 108) that there was no jurisdiction to review. I then utilised the vehicle of the reasons for decision to make some observations on features of the plaintiff's notice. The first related to the plaintiff's reliance on Schweppes' Ltd v Archer (1934) SR (NSW) 178. I continued at [7] – [12] as follows:
The only other observations that I would make in relation to the objections go to the reasons provided in support of the grounds.
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 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.
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.
The plaintiff cites Clay v Karlson & Anor, unreported; SCt of WA; Library No 980356; 26 June 998. 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.
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.
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.
On 18 August 2010 the plaintiff brought an application to quash the determinations made at taxation and on 30 July 2010. The order made has not been extracted however the associate's record of 9 December 2010 reveals as follows:
1.The appeal was upheld.
2.…
3.Matter be remitted back to Registrar Harman to review taxation.
4.…
Had it been extracted the order would have been differently expressed however there is no doubt that I should now undertake a process of review.
The first issue is whether it should be conducted in accordance with r 54(1) by which the objections are constituted as the basis for review. It is 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, and he may if he thinks fit, receive further evidence in relation to the objections.
The reason for raising the question of the applicability of r 54(1) has three aspects. The first is that at [48] of its reasons for decision the court states in part as follows:
The matter should be remitted to the 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.
The second is that I take it to be the case that the associate's record reveals that when the proceedings before the court were reconvened it was considered appropriate that the review would be had without reference to the content of [48].
The third is that the task outlined in [48] would not conform to the process established by r 54(1). The first point of difference is that under the rule the taxing officer would only undertake the task of re‑assessment upon being satisfied that the error in principle specified in the notice had been made at taxation. The second is that contrary to what is expressed at [48], by the notice of objection the plaintiff has not contended that the taxing officer failed to take any work into account. The third is that I infer that by the phrase 'has been taken into account or was considered unnecessary or unreasonable' the court was at least suggesting that the application of one of two alternative tests may result in disallowance. The plaintiff neither contends that any work had been considered to be unnecessary or unreasonable nor that there had been any disallowance. I would add that the prospect that the court considered that a test of reasonableness would apply to the question of allowance of the parts of the service suggests that consideration was being given to recovery on some basis other than the order for costs. That prospect is reinforced by the preceding reference to the plaintiff's solicitors reliance on the work. Together they suggest reference was being had to considerations that would apply in the context of recovery by a practitioner. Neither consideration could be generated by the terms of the plaintiff's notice.
The first step in the process of resolving the issue of the applicability of r 54(1) to the review is to consider whether the court made any finding that would either found the features of difference to which I have referred or at least support the 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 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
3.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.
4.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.
5.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.
6.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.
7.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).
8.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).
9.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
10.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
11.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.
…
27.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.
28.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.
29.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
30.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.
31.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.
32.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).
33.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.
34.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.
35.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.
36.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.
37.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.
38.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.
39.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.
40.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.
41.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.
42.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.
43.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.
44.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.
45.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.
46.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.
47.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.
48.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.

My first observation is that the reasons reveal a consideration more fundamental than the application of r 54(1) to the review. Although the court makes a clear statement that the error of the taxing officer had been made in the context of review, it could not amount to a finding that on 30 July 2010 the taxing officer had been so engaged. Regardless of any other consideration that pertained on that date, arguably at [9] but certainly at [11] of its reasons the court framed the context before it as one where the taxing officer had not undertaken review. There is neither any analysis nor reasoning to establish the statement as a finding to the contrary. Be that as it may, the result of the court's determination that the taxing officer had jurisdiction to review under the terms of the plaintiff's notice is sufficient to establish the basis for the current review.
There is no finding to support the points at which [48] differs from the plaintiff's objections. The only finding that supports [48] is expressed at [46]: that in addressing a ground or grounds of objection the taxing officer had not taken into account features of the plaintiff's reasons. In my opinion, thereby in effect the court considered that the terms of the notice were fundamental to the process of review. Rather than supporting the prospect that it ought not apply, [46] lends support to the prospect that r 54(l) would apply to the process of review.
In my opinion there is no basis upon which to conclude that it was intended that r 54(1) would be excluded from the process of review. The fact that at [34] the court refers to r 54(1); and at [35] and [41] it considered that the plaintiff would be precluded from advancing propositions that were not in accordance with the terms of his objection support that result.
Where the rule applies, before engaging in the process of determining the impact of an allegation of error in principle on the determination the subject of the objection, the taxing officer would first consider whether an error specified in a notice of objection had arisen in the course of taxation.
The reasons for decision at [27] in part reads as follows:
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. …
The subsequent paragraph is in part as follows:
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 appears to me that it is [28] rather than [27] that informs the proposition at [48] that in conducting review the taxing officer would reassess the amount recoverable.
In some instances I accept that it would be appropriate for the review to be so conducted. It would follow upon a finding of the court that there had been an error in principle as had been alleged by the objecting party in its notice. That is not the case in the matter before me. The court did not give any consideration to the sufficiency of any allegation of error in the notice or make any relevant finding.
In the context that I have portrayed, the court not having found that r 54(1) ought not apply, it is appropriate that the review be conducted under r 54(1). Having reached that conclusion I should add that on the basis of what was before the court; its determination in relation to another feature of the plaintiff's notice; and [49] of the reasons for the decision, the scope of review will be limited to the objections that relate to the taxation of the item getting up the case for trial.
As there is still scope to consider that other features of the reasons for decision of the court would inform the process of review, to the end of providing some clarity in my undertaking I will project the scope of the wider impact of r 54(1).
At [9] the court attributes to the plaintiff the proposition that the amount allowed for getting up the case for trial was unreasonably low. The plaintiff does not so object.
At [42] the court identified the work it described at [48] as the 'work which Mr Warner's solicitors say they have performed' and projected the relevant objection as follows:
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.
According to the plaintiff's objection, the ground to which the six categories of work relate is as follows:
The amount taxed off for the item was unreasonable on the basis of the amount of work done.
Even if I am wrong in identifying that ground, I have already recorded that at no point does the plaintiff assert that at taxation work actually undertaken, whether in those six categories or otherwise, or indeed any work undertaken was not taken into account.
To the extent that those parts of the reasons exceed the terms of the plaintiff's notice of objection the plaintiff is not assisted.
Turning to the relevant objections, the three allegations of error are that the amount claimed should have been allowed; the amount taxed off was too high and disproportionate to the work performed; and the amount taxed off for the item was unreasonable on the basis of the work done.
The reason given for the first of those grounds, that the amount claimed should have been allowed, is that the amount claimed was reasonable based on the work done in preparation for the trial.
Before I deal with the ground I make three observations. The first is that the reason does not specify any relationship between the relevant work and the amount of the claim other than that the claim was reasonable. The second is that the plaintiff makes no commitment to how much of the work to be performed in the process of getting up the case for trial had been performed prior to the order being made. The third is that by the ground the plaintiff implicitly portrays the claim as at least significant. The fact that a party in a bill nominates a fee sought to be recovered does not confer upon it any other status. It is not mandated as the datum in assessing the amount recoverable for the service. The only status accorded to such a fee is that by convention it is the datum for the purpose of recording the result of the assessment.
The reason for dismissing the objection is that it must be founded on propositions that in the process of recovery under an order for costs the significant task would be undertaken in framing the claim; that at taxation the beneficial party would bear no onus of persuasion; and that the taxing officer would simply indorse the claim as the appropriate result. In my opinion, for the plaintiff to characterise the exercise of independent judgment on the taxing party's claim as an error in principle is absurd.
The reason given for the second ground: that the amount taxed off was too high and disproportionate to the work performed, is that the disallowance of $4,636 reduces the amount significantly and leaves an amount which does not accurately reflect the amount of work done.
As much as the impact of the decision on the fee claimed may be portrayed as having been too much the same may be said of the fee claimed. The only sense that can be made of the balance of the ground and the reason is that the determination is out of proportion to work that on this occasion is not even characterised as having been performed in preparation for trial.
Whether one considers the want of proportion contended for in the ground alone or together with the relevant reason, as the measure adopted by the plaintiff to project the error is the amount by which the determination reduced the amount claimed, in effect the ground is no more than that the determination should have more closely reflected the amount claimed. In my opinion such an allegation does not disclose an error in principle. At [35] of its reasons the court dealt with the impact of drafting in the context of review.
As for the proposition that $4636 was disallowed, my response is that there was no disallowance at all. As the test of recovery for the service or its parts was not in play, there was no prospect of any disallowance. After determining what was reasonable I simply recorded that result by way of deduction of the balance from the amount claimed.
The last ground is that the amount taxed off was unreasonable on the basis of the amount of the work done.
Reasonableness is the test that applies in assessing the fee recoverable for a service under an order for costs. The proposition put by the plaintiff is that such a test would apply to the extent to which a taxing party failed to establish its claim. In my opinion he does no more than restate his second objection borrowing terminology from a test that applies at an earlier point in the process. In my opinion the objection is meaningless.
In the relevant reasons, the plaintiff identifies categories of work that was undertaken by way of preparation for trial. I am satisfied that the work described amounts to a summary of the information and submissions that were given at taxation. There is no mechanism in the notice to connect that work with the extent to which the plaintiff failed to establish his claim.
In summary I do not consider that the grounds expressed in the plaintiff's notice identify any error in principle in the assessment of the amount determined as recoverable for the item under the order. In the absence of sufficient allegations of error, the reasons he expresses to support those grounds are of no moment. The consequence is that the exercise of review under r 54(1) is concluded with the result that none of the objections are sustained.
Now that I have undertaken a more comprehensive analysis of the objections than I did on 30 July 2010 I will say that at that time my intention had been no more than to provide some useful observations. In retrospect I regret that I did not conduct a provisional review. In now provisionally undertaking the task outlined at [48] I am motivated to avoid any further adverse consequence for the parties.
It seems to me that there are two parts of the exercise proposed at [48]. The first is that I would re-assess quantum; the second that I would express the extent to which the categories of work specified in the notice have been taken into account alternatively have been considered to be unnecessary or unreasonable.
I will first address the second prospect addressed in the second part of that exercise. It seems to me that the court is proposing that the application of alternative tests may be productive of disallowance such that if work is found to have been unnecessarily undertaken the plaintiff would still recover had it been reasonably undertaken.
At common law the test of reasonableness operates at the point of assessing quantum. Regardless whether the court considered that it would somehow apply as an alternative test of recovery for a service I would be bound by the broader context that I have described. The defendant having conceded the claim it is not now open to me to disallow any part of the work relating to the item.
To remove any doubt I will run through the categories of work that the plaintiff specifies in order to demonstrate that they relate to the item and that each feature would be central to the task of getting up a case for trial to the point that it had been entered for trial.
One of the benefits of a system of pleading is that the close of pleadings will reveal the scope of the service 'getting up case for trial' that would necessarily be provided. The scope of work that would need to be undertaken in getting up the case for trial could only be established upon an evaluation of the defence. That the plaintiff had been put to proof from the beginning on every item is not a difficult proposition to digest.
As for the assessment of economic loss, the plaintiff projected such a claim in his pleading and provided details in the schedule of damages.
On the point of communication with the plaintiff, where a plaintiff is put to proof of a claim for damages for loss arising from personal injury, in the process of getting up case for trial his solicitor would regard his client as the source for instruction and his primary recourse for information.
As for communications with the defendant, it would be unusual for there to be no communication of significance with one's opponent during the course of proceedings.
As to documents, on the particular points raised by the plaintiff, I have already referred to the process of assessing the case to be established. The schedule of damages is a requirement of the rules.
As to proofing, to the point of settlement over a period in excess of two years the case had progressed to the point of the pre-trial conference. By those markers it would be difficult to conclude that the process of proofing had been prematurely undertaken.
I imagine that the term 'marshalling evidence', in context, would refer to a process of locating proposed evidence. It would be undertaken in the course of taking instructions, proofing and considering documents.
Because it is all core work that would be associated with the task of getting up case for trial, it seems to me that if in determining quantum I did not take it into account the only justification would be that it had been disallowed.
As to quantum, an assessment of what is a reasonable fee for the provision of a service is properly made in the context provided by features of the case. At taxation it was for the plaintiff to satisfy me that his claim was reasonable and patently he failed. It is not clear whether that part of the task specified at [48] calls for re-assessment of quantum or some analysis to support the determination. In my opinion ultimately it probably does not matter as there is a more fundamental consideration: there is absolutely no difference between what is now before me and what was before me at taxation.
I have read the file and considered the pleadings, the interlocutory applications of the defendant and the affidavit of Ms Angel, the plaintiff's schedule of damages the entry for trial and the judgment. I have read through the items in the plaintiffs bill of costs. I have assessed the notes that I took at taxation. I then recorded that the plaintiff had been a police officer but had later been a security officer. Although I made no particular note of the plaintiff's submissions relating to medical opinion, I noted that it had drawn the response that there was no conflict. I am satisfied that at the very least my note was intended to record the defendant's view that at any such conflict was minimal rather than significant. I have considered the six aspects of the work highlighted in the notice and have reflected upon my observations in the preceding paragraphs.
As to the contention that the plaintiff was put to proof on every item, I note that the defendant admitted his negligent driving and that he had previously done so. Otherwise but for the generality of the description of the work in the plaintiff's notice I have no particular observation to make. As for its generality I am satisfied that the plaintiff has not been disadvantaged as the description of the work in the notice is simply a summary of the submissions that he made at taxation. As to economic loss, I am satisfied that 'a lot of work' describes a process that includes obtaining and evaluating information provided by the plaintiff and his present and former employers. As to taking instructions and conferring with the plaintiff, communicating with the plaintiff and the defendant; although no detail is provided there was no suggestion that any of those features engaged any difficulty, complication or other unusual feature.
In the usual context, after taking into account the information provided and the impact of submissions; after consideration is given to the extent to which the beneficial party has met the onus; after the nature and complexity of the case are reflected upon; and where an action has not been tried, consideration has been given to the extent to which getting up case had been performed, what is reasonable is determined by consideration of what a competent practitioner acting efficiently should recover for the service to the extent that it or its parts have been provided. In the task set by [48] there is no reason to consider that I should ignore my determination that to the extent that I had been satisfied that it had been provided the plaintiff was entitled to recover $5,000. As I did at taxation, I take into account the nature of the case and its complexity, the services canvassed by the plaintiff in his submissions and the defendant's response, the time over which the service was provided (bearing in mind the scale changed), and the extent to which the service was provided to the point of settlement. In my opinion recovery for the service at $5,000 is reasonable.
In reaching that conclusion I wish to make the point that as was the case at taxation the significant feature in the process of assessment was the extent to which the plaintiff had discharged the onus of satisfying me that the service had been provided to the point that the order was made.
As to the issue of the extent that I have taken into account the work relied on by the plaintiff in his notice I consider that it is somewhat artificial for me to respond to the limited features expressed in the notice. Having said that, proofing, the process of evaluating the extent of economic loss and drawing the schedule of damages are the features of the work that accounted in significant part to the extent of recovery. I am not persuaded that there had been any significant communications between the parties; that there had been any difficulty in communications between the plaintiff and his solicitors; or that there had been any difficulty in communicating with the plaintiffs former and current employers. In the process of assessing the plaintiff's injuries and their residual impact, the task for the solicitors was not complicated by any significant differences of opinion. In contrast with the features that tended to justify the extent of recovery I considered that those features should have a relatively minor impact.