Westpoint Corporation Pty Ltd v Clayton Utz
[2004] WASC 3
WESTPOINT CORPORATION PTY LTD -v- CLAYTON UTZ [2004] WASC 3
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 3 | |
| Case No: | LPA:74/2003 | 9 JANUARY 2004 | |
| Coram: | EM HEENAN J | 9/01/04 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Stay granted | ||
| B | |||
| PDF Version |
| Parties: | WESTPOINT CORPORATION PTY LTD CLAYTON UTZ |
Catchwords: | Legal practitioners Taxation of costs Solicitor and client bill Costs agreement Review of costs agreement pursuant to s 59 or s 66A(2) of Legal Practitioners Act (1893) Adjournment of taxation on condition of payment of half disputed balance Appeal to Master from condition imposed Application for stay of enforcement of condition pending appeal Competency of appeal from Registrar to Master Registrar acting as a "Taxing Officer" |
Legislation: | Legal Practitioners Act (1893) |
Case References: | Harrison v Hocking [2000] WASC 188 Webb v Malcolm J Bateman & Co, unreported; SCt of WA; Library No 6305; 27 May 1986 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
CLAYTON UTZ
Respondent
Catchwords:
Legal practitioners - Taxation of costs - Solicitor and client bill - Costs agreement - Review of costs agreement pursuant to s 59 or s 66A(2) of Legal Practitioners Act (1893) - Adjournment of taxation on condition of payment of half disputed balance - Appeal to Master from condition imposed - Application for stay of enforcement of condition pending appeal - Competency of appeal from Registrar to Master - Registrar acting as a "Taxing Officer"
Legislation:
Legal Practitioners Act (1893)
Result:
Stay granted
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Ms M L Coulson
Respondent : Mr C D Belyea
Solicitors:
Appellant : Corrs Chambers Westgarth
Respondent : Clayton Utz
Case(s) referred to in judgment(s):
Harrison v Hocking [2000] WASC 188
Webb v Malcolm J Bateman & Co, unreported; SCt of WA; Library No 6305; 27 May 1986
Case(s) also cited:
Nil
(Page 3)
1 EM HEENAN J: The application before the court is for a stay of the effect of an order made by Registrar Johnston on 18 December 2003 when dealing with an application by the present appellant for the taxation of a solicitor-client's bill of costs which had been rendered to the appellant by the respondent. The appellant was seeking the taxation of those costs pursuant to s 66 of the Legal Practitioners Act. The respondent produced an itemised bill of costs in accordance with the Act and filed that for taxation on 7 October 2003. This bill sought the recovery of costs totalling some $480,038.88.
2 When the taxation application first came before the Registrar there were some submissions made for the party charged, the present appellant, that some consideration was being given to having the costs agreement between itself and the solicitors reviewed pursuant to the provisions of s 59 of the Legal Practitioners Act. In the circumstances, that might be effected by a reference to the court by the Taxing Officer at the client's request under s 66A(2) of the Act. In the light of that foreshadowed course by the applicant, the Registrar adjourned the proceedings for taxation until 18 December 2003 in an endeavour to ascertain whether or not the parties could agree upon terms for the proposed referral. Quite why it was expected that there could or should be agreement upon terms for the referral or upon the terms of the proposed review is not obvious from the materials before me and I note that a review of an agreement under the Legal Practitioners Act between solicitors and clients may be sought on any grounds raised by the applicant.
3 Be that as it may, when the matter came back before the Registrar on 18 December 2003, the question of whether or not there should be a referral for a review pursuant to s 66A(2) may or may not have been persisted in by the appellant. There is a submission by counsel for the practitioners, the present respondent, that the request for a referral was abandoned in the light of a proposal to initiate proceedings for a review of the relevant costs agreement under s 59(5). However, it seems to me that very little turns upon this because the substance of the position taken by the appellant was that it desired to exercise its statutory right to have the costs agreement reviewed under s 59(5), whether by reference from the Registrar in the course of the taxation application or by independent proceedings.
4 In the event, the appellant seems to have opted to issue an originating summons seeking a review under s 59(5) and, as a consequence, the Registrar made the orders in relation to the application for taxation then pending. They were, first, adjourn the application to 10 am on 19 January
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- 2004 subject to (a) the party charged issuing originating process by 22 December 2003 (a reference which must be taken as meaning to the proposed originating summons for review under s 59(5)), and (b) pay to Clayton Utz, the respondent, by 12 January 2004 the sum of $95,000. The learned Registrar then directed that if the terms of subpars (a) or (b) were not met, the taxation would proceed on 19 January 2004.
5 Since that time the present appellant, the party charged, has issued an originating summons seeking a review of the costs agreement pursuant to s 59(5) of the Legal Practitioners Act. I am not aware of how far those proceedings have progressed, but there is every indication that it is in the interests of the party charged to pursue them expeditiously. In the unlikely event that it should fail to do so, appropriate steps can be taken by the respondent's solicitors to ensure that that is done or to have the proceedings dismissed. Secondly, the party to be charged, the present appellant, has instituted the present proceedings seeking to appeal against the decision of the Registrar to adjourn the taxation on the terms which I have outlined and, in particular, upon terms which require payment of $95,000 by 12 January.
6 As an initial step in the appeal process, this present application for a stay of the Registrar's order requiring payment of $95,000 has been made. The appeal against the Registrar's decision has been initiated pursuant to O 60A of the Rules of Court dealing, as that does, with appeals from Registrars' decisions. The appeal has been taken to a Master on the basis that O 60A r 4(2) applies in the circumstances of this case. It has not been submitted before me that there is any other or independent right of appeal or review and I have not considered that question. However, I would not wish to be taken as deciding that the only avenue for review of the Registrar's decision is under O 60A r 4(2) without that issue being more fully investigated and argued. Nevertheless, proceeding on the assumption that the appeal is under O 60A r 4 to a Master, objection has been taken by the solicitors on the basis that no such right of appeal or review exists because of the provisions of subrule 4(6)(c) which provide, in terms, "This rule does not apply to an order or decision of a Registrar when acting as a taxing officer." In reliance upon that provision submissions by the respondent have been developed which stress that any inherent jurisdiction which the court might otherwise possess to review a decision of a Taxing Officer are impliedly excluded by reason of the operations of subrule 4(6)(c).
7 In that regard reliance is placed by the respondent on the decision of Hasluck J in the case of Harrison v Hocking [2000] WASC 188 of
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- 28 July 2000 which, however, in my view, deals with a somewhat different situation. The appellant relies on a decision of Franklyn J in a case of Webb v Malcolm J Bateman & Co, unreported; SCt of WA; Library No 6305; 27 May 1986 which, under earlier and different provisions of rules, concluded that a decision by a Registrar in the course of an application for taxation under the Legal Practitioners Act refusing an application to extend time for bringing an application to review was a decision by a Registrar but not one made when "acting as a Taxing Officer".
8 It is not appropriate on this occasion to make any final determination of whether or not the decision of Registrar Johnson adjourning the taxation on terms requiring the payment of the $95,000 and also conditional upon the appellant initiating proceedings for review of the costs agreement under s 59 was a decision made as a Taxing Officer. However, in that regard it seems to me that the concept of acting of a Taxing Officer is closely related, if not absolutely confined, to those decisions of a Taxing Officer which are reviewable, if at all, only under O 66 r 53 to r 56 of the Rules and then only if involving an error of principle.
9 There appears to me to be much to be said for the argument that, in imposing conditions of the type which the learned Registrar ordered on the adjournment of this taxation pending the exercise of a statutory right to have the costs agreement between solicitor and former client reviewed, the Taxing Officer or Registrar was not dealing with the taxation itself. But that is a matter which may require further argument and consideration. At the very least, I am satisfied that there is an arguable basis for the appellant to submit, as it has, that it is entitled to appeal from the decision of the Registrar and that pending the appeal the status quo should be maintained.
10 In regard to the status quo, I note that there has been no judicial determination of the claimed entitlement of the solicitors to the sum of $95,000 or to any other sum claimed under the taxation. On the submissions and information provided to me it is evident that there has been no assessment or determination of the costs claimed such as might, perhaps, have occurred if the taxation had been embarked upon and had proceeded to some extent. There has been no concession by the client that the amount claimed for costs or any amount, still less $95,000, was due or owing. Accordingly, the situation can be distinguished from the situation which applies when a party seeks a stay of proceedings or a stay of
(Page 6)
- execution in respect of a judgment or order which has been the product of some form of judicial determination.
11 The rights of the solicitors to the sum claimed have not yet been established by any judicial decision and, hence, the principles relating to the stay of proceedings which dictate that a successful party is entitled to the fruits of the decision which is challenged do not seem to me to apply in the present case.
12 For those reasons I will direct that there should be a stay of that part of the order of Registrar Johnston made on 18 December 2003 which requires payment of the sum of $95,000 by the appellant on or before 12 January 2004 and that this stay should operate until further order of the Court. I also propose to order that there should be liberty of either party to apply.
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