Willmott v Coles Group Ltd - [2023] WADC 85

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   WILLMOTT -v- COLES GROUP LTD [2023] WADC 85
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   ON THE PAPERS
DELIVERED          :   31 JULY 2023
FILE NO/S:   CIV 2901 of 2022
BETWEEN:   LYNNE WILLMOTT
Plaintiff
AND
COLES GROUP LTD
Defendant

Catchwords:

Practice and procedure - Taxation of costs - Review - Taxation of costs under item 39 of the Scale - Consideration of the scope for recovery under item 27(b)

Legislation:

Rules of the Supreme Court 1971 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Jurisdiction for review not established

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Eureka Lawyers
Defendant	:	Hall & Wilcox (Perth)

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

Mossensons (a firm) v Coastline Associates (Unreported, WASCA, Library No 970661B, 2 December 1997)
Smith v Buller (1875) LR 19 Eq 473

DEPUTY REGISTRAR HARMAN:

The parties agreed that they would engage in a procedure to settle a claim for damages within the scope outlined by s 92(f) of the Workers' Compensation and Injury Management Act 1981 (WA). Section 92(f) commences as follows:
(f)If a worker's claim for damages … is settled by agreement …
In the process of implementing the agreement, a writ was issued, a memorandum of appearance was filed, and an order was made upon a memorandum of consent dismissing the action. In effect, the action was commenced for the purpose of dismissing the claim brought upon the causes specified by the indorsement of the writ.
According to the order the plaintiff is entitled to recover costs, however as the memorandum did not specify the scope for recovery and the deficiency is reflected in the order, its effect is uncertain.
Neither the common interest of the parties to establish the claim within the scope of s 92(f) nor their success in achieving that result would generate any impetus towards the conclusion that the defendant would pay the cost of any service provided to the plaintiff. Other than to the extent that the parties had agreed, there would be no reason to consider that the defendant would meet the cost of any service provided to the plaintiff.
In circumstances where parties had filed a memorandum of consent that provided for dismissal of an action and without specification, for the costs of one of the parties, in the process of determining the benefit conferred, it may be considered that it would be open to infer that the parties had intended that the beneficial party would recover either the costs of the action or the costs referable to the process by which it was dismissed.
In circumstances where the action had been commenced pursuant to an agreement, it would be open to consider that the context may suggest different results. In an instance where the agreement that preceded the action had been to bring a claim within the scope of s 92(f), a feature of the context presented for consideration in determining the benefit is that the scale by which recovery under any order is both facilitated and regulated, includes item 39. Item 39 specifies the maximum fee recoverable for 'Settlement of a claim pursuant to s 92(f) of the Workers' Compensation and Injury Management Act'.
The significance of item 39 would not simply be established by its existence. The representatives of parties to such an agreement would be familiar with the procedure in which they would engage to implement the agreement. In accordance with the procedure the defendant would prepare a writ and forward it to the plaintiff for approval by reference to the agreement. Upon presentation to the plaintiff of the memorandum of consent the plaintiff would facilitate dismissal of the action. By engaging with the procedure each party would understand that on an objective view, the purpose for which the action had been commenced had been to establish settlement of a claim within the scope of s 92(f) rather than to embark upon litigation. Establishing and terminating the action would simply be the means by which the statutory conclusion expressed at s 92(f) would be achieved.
Item 39 generates some impetus towards the conclusion that the parties had intended that the order would provide the plaintiff with an entitlement to recover her costs of engaging in the procedure.
When it incorporated item 39 (then 37) into the scale, the Legal Costs Committee stated at cl 10 as follows:
Item 37 has been introduced to provide for a specific item to cover work performed in relation to effecting a settlement under section 92(f) of the Workers' Compensation and Injury Management Act 1981. Whilst the Committee is of the view that this work is already claimable under other items in the [scale], the introduction of a special item is intended to remove any doubt in that regard.
The significance of cl 10 is that by the first sentence, the Committee provided the reason for introducing what it characterised as a special item. That explanation is informed by the content of the second sentence. Clause 10 establishes that by item 39, the Committee had intended to provide scope to recover for services provided to the end of achieving the result outlined by s 92(f). The second sentence establishes that recovery under item 39 would be comprehensive. It reinforces the conclusion that services provided to parties to the end of implementing an agreement would be characterised as parts of a procedure.
It is not clear why the Committee characterised item 39 as a special item. The content of the second sentence of cl 10 suggests that the Committee had been considering an issue that had emerged before it. Although not specified, it is open to consider that it had been fundamental to recovery for the provision of services, rather than of fees generated by their provision. The first sentence of cl 10 reveals that by introducing item 39 the Committee considered that the issue to which it referred had been resolved.
Regardless of cl 10 and the observations that I have made, item 39 is taken to speak for itself. It establishes the maximum fee recoverable for engaging in a procedure to establish settlement of a claim for damages by agreement for the purposes of s 92(f) of the Act.
Rule 42(1) provides as follows:
(1)A bill of costs for taxation shall be prepared so as to show clearly -
(a)items consecutively numbered, together with a reference to the item in the scale to which the item in the bill relates; and
(b)dates of items (specifying years, months and days); and
(c)where necessary, particulars of the services charged for; and
(d)disbursements; and
(e)professional charges.
A discrete service for which recovery is sought may be constituted as either an item or a part of an item. Claims are commonly made under an item of the scale without the support of particulars.
By item 5 of her bill of costs, the plaintiff sought to recover by reference to item 39. By the particulars provided by the plaintiff for item 5 are as follows:
Negotiating regarding settlement including exchange of offers of compromise.
By item 1, the plaintiff claimed under item 1(a) for services that relate to the issue of the writ of which she provided particulars as follows:
Perusal and review of the writ of summons, taking instructions and providing advice to client.
By item 2 she claimed under item 10(c) for the consent order. She provided particulars as follows:
Perusal and signing of consent orders, including correspondence to defendant's solicitors amending consent order, advice to client.
By item 3 of the bill, the plaintiff claimed under item 19 for preparation of case. The particulars of the services that she constituted as item 3 are as follows:
Proofing plaintiff and taking instructions (2 hours).
Provide advice on common law negligence claim against the defendant, including liability, duty of care and while [sic] person impairment (2 hours).
Preparation and quantification of damages and providing advice to the plaintiff (1 hour).
By item 4 the plaintiff claimed under item 27 for conferrals/informal conference. The particulars provided of the relevant services are as follows:
Reasonably hold [sic] negotiations to settlement claim, [sic] including preparation.
The particulars of item 5 reveal that the plaintiff would limit the scope of her claim under item 39 and that by items 1 to 4 she had claimed under other items of the scale as the second sentence of cl 10 suggests that she might.
By structuring her bill as she did the plaintiff revealed her intention to obtain a benefit beyond the scope provided by item 39. That conclusion is illustrated by the fact that the fee claimed under item 5 of the bill was $4,950. It was the maximum amount recoverable under item 39 according to the version of the scale that last preceded that utilised in taxing the bill. Under the version that was applied at taxation, the maximum had increased by $110. The total of the fees claimed by items 1 to 4 was $5,692.50.
By items 1 to 4 the plaintiff presented the proposition that she is entitled to recover her costs of the action.
The plaintiff failed to put any case to the proposition that she was entitled to recover her costs of the action. Having been identified as the beneficial party generated the prospect that she would recover no more than the costs associated with the process of dismissing the action.
Having made those observations, at the time that the parties addressed submissions in relation to the structure and content of the bill, my only interest was in understanding the attitude of the defendant to the plaintiff's claims.
It was evident from the response to my enquiry as to the parts of the bill that were in issue, that the defendant had no difficulty with the plaintiff recovering for services provided within the scope of item 39 of the scale. The indications were otherwise in relation to the claims made by items 1 to 4 of the bill.
The lack of contest by the defendant for recovery by the plaintiff under item 39 conveyed that it accepted that the plaintiff was entitled to recover the cost of services provided to the end of effecting a settlement under s 92(f) of the Act.
In the context presented upon taxation of the plaintiff's bill, it was open to conclude that recovery based on that concession would simply be of the costs of the procedure rather than of the costs of the action under which the plaintiff could recover the costs of the procedure to which item 39 of the scale refers. The reason that it was appropriate to reach that conclusion is that whilst the defendant made what I have characterised as the concession, it was evident from its response to my enquiry that the concession did not extend to recovery being available for the balance of the items.
I considered that on the basis of the defendant's concession, under the order the plaintiff was entitled to recover the cost of her engagement in the procedure. Once that conclusion was reached the plaintiff was entitled to the full extent of the benefit that the order provided.
In the context of taxation under an order, according to the ratio of Smith v Buller (1875) LR 19 Eq 473, the test that applies to recovery for a contested item, part of an item or service is whether its provision had been necessary. The test would be applied by reference to the scope for recovery expressed in the order.
Because actions commenced in accordance with the procedure are not intended to establish a vehicle for litigation, only one that would establish satisfaction of the statutory provision, it is open to consider that the test of recovery for services would be applied by reference to the procedure followed to implement the agreement.
Taking into account the parties' adoption of the procedure and the concession made by the defendant, in order that the taxation would conform to the regulatory impact of r 42(1) and the scale, it was appropriate that the plaintiff's entitlement to recover the cost of services was had by reference to the necessity for their provision for the purpose of effecting a settlement under s 92(f) and that the fee recoverable for such services was determined within the range provided by item 39. In order that taxation was undertaken under item 39 of the scale it was first appropriate to reconstruct the bill.
To tax the bill in accordance with what I considered to be the plaintiff's entitlement under the order and to demonstrate that item 39 of the scale applied and had been applied in the process of taxation, it was appropriate to relocate the services constituted by items 1 to 4 to item 5 and to consolidate the fees claimed for items 1 to 5. I did not consider that the plaintiff would be disadvantaged by aggregating the services as they would simply be presented as parts of item 5. Although on one view aggregating the fees claimed under each of items 1 to 5 would be of little utility as the scope for recovery of additional fees under item 5 was limited, the process of aggregation of the services would enhance the prospect of the plaintiff recovering a fee to the extent of her claim under that item and open the prospect of recovering an additional $110.
That but for the prospect of recovering the additional $110, the plaintiff would fail to recover the fees claimed for items 1 to 4 was the consequence of her failure to establish that she was entitled to recover her costs of the action.
It was my intention to reconstruct the bill prior to engaging in the task of taxation. In approaching the task of reconstructing the bill I was indifferent to whether the results would withstand application of each part of the test of recovery in the course of undertaking the process of taxation. My indifference was accounted for by the prospect that services provided to the end of engaging in the procedure were recoverable under item 39 regardless their characterisation by the plaintiff in drafting the bill. As for the fees that would be accumulated, since item 39 was introduced into the scale it had been intended that recovery would be limited by a determination of quantum made in accordance with item 39.
I will make two observations. The first is that redrawing a bill is not undertaken by a process of amendment, but rather by way of notation on a bill. It is undertaken regardless the wishes of the beneficial party in order to establish the record of the taxation. In this instance it was undertaken prior to engaging in the task of applying the parts of the test of recovery. The second is that the consequence of the Committee specifying a maximum fee recoverable for the provision of services constituted as an item in a bill in accordance with r 42(1), is that the limit ought to be considered in taxing a claim to which it applies.
Unfortunately I proceeded to attend to the task of redrawing the bill by disallowing the particulars of items 1 to 4. To record the disallowances, I struck through each of the particulars. It was in the process of explaining why I was doing so, that I recognised the error in my approach to the task. I had no difficulty with the plaintiff recovering for services that I was in the process of disallowing. Accordingly, I interrupted myself and explained that I would start the process of reconstituting item 5 afresh. In the process, to record the reversal of the decision to disallow the particulars of items 1 to 4, I scribbled over the diagonal lines by which I had recorded their disallowance. To constitute the particulars of items 1 to 4 as parts of item 5, I then deleted the reference made at each of items 1 to 4 to the scale item that the plaintiff specified in drafting the bill. After I had done so, the only such reference that remained was that made at item 5, to item 39 of the scale. Although it remained evident that the plaintiff had claimed otherwise, the result of reconstruction of the bill revealed that the particulars of each of items 1 to 5 had been constituted as parts of a claim put at item 5 under item 39 of the scale. The total of the fees claimed for items 1 to 5 was recorded alongside the point at which the plaintiff had expressed the fee claimed for item 5.
Because at the time that I enquired of the defendant whether it had any issue with the result of the reconstitution of the bill, there had been no outstanding request for clarification of the process of reconstruction, I believed that despite my misadventure in the process of undertaking the reconstruction of item 5, I had conveyed to the parties both the process of reconstruction and the result. The notations that I made on the bill reflect the explanation that I have given.
The only outstanding complication is that in retrospect I recognise that my initial approach to the task of reconstruction, suggests that contrary to my intention, I had engaged in the task of taxation. That conclusion is founded on disallowance in the context of taxation under an order being the consequence of failure to establish a service as having been necessarily provided. All I can say is that it was my appreciation to that effect that brought me to the point of recognising and remedying my error and restarting the process of reconstituting the bill and that by the process of reconstruction I was doing nothing more than accumulating the services for which for which recovery had been sought and the fees for those services.
The defendant contested the services that the plaintiff had constituted as the particulars of item 3. It contended that recovery was not available for those services under either the order or under item 39. It also contested the quantum of the claim presented by the consolidated fees although it had not been necessary for it to do so as they far exceeded the maximum provided by item 39.
The terms by which each of the particulars of item 3 are expressed suggest that each of the relevant services relates to an action other than that utilised for the purposes of the procedure. The reasons for that conclusion are firstly, that engaging in the procedure would not generate the need for any proofing; secondly, as prior to reaching the agreement both the plaintiff and her solicitor had located her interest in reaching agreement with the defendant and the solicitor had been familiar with both the agreement and the procedure, no instructions would then be required to be taken; and thirdly, the specified features of the advice provided neither draw upon nor relate to either the agreement or the procedure adopted to implement its terms.
In any event, although the provision of advice and having instructions may bear upon a case to be presented at trial and thereby the scope of preparation for trial, despite being antecedent to engaging in the provision of relevant services, alternatively, to not undertaking particular services, it is patent that the provision of advice and being instructed are not actually parts of the process of preparing a case for trial.
What I would describe as a view of the process of preparation of case for trial regularly presented at taxation is put along the lines that recovery comprehended under item 19 would extend to every activity undertaken for the benefit of a beneficial party that is not claimable under any other item of the scale. The term 'preparation of case for trial' has no different meaning for the purposes of taxation than it has in the context of litigation. Broadly speaking, the scope of recovery is confined by the cause or causes of action pleaded and the issues revealed upon the close of pleadings. Apart from services associated with the need to comply with the rules, recovery is available for harnessing the resources by which a case will be either presented or contested at trial.
In the context established by the agreement and the steps taken by the parties to settle the plaintiff's claim, the services specified in the particulars of item 3 had not necessarily been provided for the purpose of implementing the agreement. Accordingly those services, then constituted as parts of item 5, were disallowed. I recorded that result with a line that traverses the particulars in the opposite direction to the line that had been scribbled over.

At the point of considering the amount that was reasonable for the balance of the services the subject of item 5, the total of the fees claimed that had been accumulated was $10,642.50. The maximum fee recoverable under item 39 was $5,060.
I considered that $1,200 was a reasonable valuation of the parts of item 5 constituted by negotiations that had preceded the agreement; the agreement; and commencing and terminating the proceedings along with ancillary communications. Accordingly of the consolidated fees claimed, $9,442.50 was taxed off.
In determining the quantum recoverable for item 5 I took into account the provision of every service for which the plaintiff had claimed by items 1, 2, 4 and 5. The datum for assessment of the quantum of item 5 was not established by either the consolidated fees claimed or the maximum specified by item 39. In making the determination reference was had to the provision of services for the purposes of implementing the agreement in accordance with the procedure adopted by the parties, by a competent practitioner undertaking their provision in an efficient manner.
Subsequent to taxation the plaintiff filed a notice of objection.
The jurisdiction provided to a taxing officer to review taxation is expressed by O 66 r 53(1) as follows:
(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, …
(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.
The terms by which the plaintiff puts what she describes as the first ground of her objection are as follows:
18. In relation to items 1, 2, 3, 4, and 5 of the Bill, the plaintiff objects to the Allowance and the Disallowance on the grounds that the Taxing officer made an error in principle in finding that item 39 of the Scale is an all-inclusive item.
21.… the Taxing Officer erred in finding that:
21.1Item 39 of the scale is an all-inclusive item; and
21.2.That work involved in relation to the claim, including advice in relation to a possible common law claim, any work that may have been undertaken regarding the quantification of the claim, including obtaining medical history and medico - legal reports, and drafting a writ fall within item 39 of the Scale, or are otherwise not claimable on a party and party basis.
22.Further, by reason of the Taxing Officer's reasoning above, the allowance in respect of items 1, 2, 3, 4 and 5 of the bill was so inadequate that no Taxing Officer, acting reasonably, could ever have taxed those particular items in the amount in question. Alternatively, it is submitted that it may be inferred from the allowance and the disallowance that the discretion has been exercised in a manner that is manifestly wrong, for the reasons set out above.
The contentions of allowance and disallowance to which the plaintiff refers by par 18 are drawn from the first sentence of par 3 of the notice. It provides as follows:
In respect of items 1, 2, 3, 4 and 5 of the bill, the taxing officer … allowed $1,200 in respect of item 5 (allowance), and disallowed items 1 - 4 inclusive of the bill in their entirety (disallowance). …
None of items 1 to 4 were disallowed. The only part of the contention of disallowance that could be characterised as correct, is that services that the plaintiff had constituted as particulars of item 3 had been disallowed; however when disallowed, along with the particulars of items 1, 2 and 4, they had been reconstituted as parts of item 5. As no other part of item 5 had been contested, the balance of the services that had been reconstituted as parts of item 5 were not the subject of any determination. The plaintiff's contention of disallowance of items 1 to 4 is mistaken and could not establish the objections put by par 18.
Because the contended error specified at par 21.1 is the same as that put by par 18 it would be open to infer that the plaintiff intended that the contention of disallowance at par 18 would also apply for the purposes of constituting par 21.1 as an objection.
In order that pars 18 and 21.1 be established within the scope of r 53(1) the plaintiff would have the reader infer that the finding that item 39 provided for comprehensive recovery accounted for the contended disallowance of items 1 to 4.
That finding resulted in reformulation of the bill and had its impact at a point prior to application of the test of necessity that accounted for the disallowance of the parts of item 5 by which the plaintiff had constituted item 3. After reconstituting item 5, for the short period of time prior to applying the test of necessity to the services by which the plaintiff had constituted the particulars of item 3, those services had actually been conserved by the process of reconstitution.
Even if it is considered that in the process of reconstructing item 5 I had been engaged in the process of taxation, at the point of doing so I had not then been engaged in applying the test of necessity that resulted in the disallowance of the services that the plaintiff had constituted as item 3. Application of that test was necessary only because the defendant took issue with recovery being had for those services. Despite the defendant having previously contended that items 1 to 4 were in issue, after it made what I have characterised as its concession following which item 5 was reconstituted, the only services that had then been contested and thereby called for a determination were those that had been constituted by the plaintiff as the particulars of item 3. Had the defendant not then contested those particulars, no determination that may have resulted in their disallowance would have been made.
The reason for reforming the bill had been that item 39 of the scale provided for comprehensive recovery of the services provided to the end of settlement of the plaintiff's claim, the reason for disallowance of the particulars that the plaintiff had provided of item 3 was that the relevant services had not been necessarily provided for the purpose of settling the plaintiff's claim. The contended error had no bearing upon the disallowance.
A review of the context reveals nothing to provide an impetus towards drawing the inference that there had been any connection between the contended error and the contended disallowance.
It is not uncommon that services that are constituted as an item are reallocated and that correspondingly other items are reconstituted. The reason is that the benefit provided by an order will take precedence over an unfortunate decision made in the process of framing a bill of costs. I accept that my mistake in the process of reforming the bill provided a complication, however the process of taxation is relatively simple. The plaintiff was then represented by a senior practitioner that I understood practiced exclusively in the field of cost recovery. Aggregating services whether to constitute an item in the process of drafting a bill or to reconstitute items of a bill either by amendment or by intervention of the taxing officer each involve identifying a scale item under which a claim for services will be taxed: in effect to perform the work outlined by r 42(1)(a). My mistake was no more than to consider that as the parties had been engaged in the procedure and the plaintiff had claimed under item 39, all of the relevant services could be taken to be projected by that claim. It should have been obvious that by her bill the plaintiff had presented a different view.
I took from the defendant's responses to my subsequent question as to the parts of the reformed bill that were in issue, that it had understood what had transpired in the course of reconstituting item 5. Because there had been no outstanding request for information from the plaintiff, there was no reason to consider that she had not also understood. Had a practitioner not understood the result of the process of bringing the case presented by the bill into conformity with the reason that I gave for reconstituting item 5 of the bill I would expect that the practitioner would want to bring clarity to any deficiency in their understanding.
What I take to be the alternative case put by pars 18 and 21.1 is that the contended error in finding that item 39 provides for comprehensive recovery accounted for the quantum determination made in relation to either the plaintiff's claim put by item 5 or item 5 as it had been reconstituted.
The scope for doubt presented by the last point is that although by par 3 the plaintiff specifies the determination with reference to item 5 which in the context outlined by the first sentence of par 3, would be as the plaintiff had constituted that item, by each of pars 2, 3, 18 and 22 of the notice, for reasons that she does not explain, she groups together items 1 to 5 without indicating the reason she does so, in circumstances where neither at those paragraphs nor elsewhere in the notice does she make any reference to the reconstitution of item 5.
By par 3, the plaintiff projects the determination of quantum of the fee recoverable as an allowance. I take it that the plaintiff would characterise a fee claimed in a bill as part of the item to which it relates. The reason that assessment is incorrect is explained by r 42(1). Subrules (b) and (c) equate items to services, subrules (a) and (e) distinguish items and fees.
Upon the assumption that the terms of r 53(1) are drawn from r 42(1), I have considerable difficulty with the proposition that a quantum determination would qualify as the allowance of part of an item. Upon reaching a decision as to the quantum of the fee that is reasonable for the beneficial party to recover for the provision of services constituted as an item and the result was that part of the fee claimed would be taxed off, neither the amount taxed off nor what remains would be transformed from a component of the fee claimed, into a part of the item constituted by the beneficial party in the process of identifying services provided to it by reference to an item in the scale in accordance with r 42(1)(a). Each component of the fee claimed remains a component of the fee claimed, one part recovered and the other taxed off, rather than a part of an item allowed and a part of an item disallowed.
The fee claimed for an item in a bill is not constituted as the datum for the process of assessing what is reasonable. It is only after a determination is made in relation to the quantum recoverable for an item, part of an item or a service that reference is had to the fee claimed in order to record the result. There is every reason to consider that what is taxed off and what remains of a fee claimed for an item each remain components of the fee that had been claimed. There is every reason to consider that the meaning of the term 'part of an item' utilised in r 53(1) to express scope of jurisdiction to review would draw upon the distinctions expressed at r 42(1). Accordingly, r 53(1) does not provide jurisdiction to review a quantum determination.
Putting my difficulty to one side, by pars 18 and 21.1 the plaintiff asks the reader to infer that there is a connection between the contended error in the finding that item 39 provides for comprehensive recovery of the services rendered for the purpose of engaging in the procedure and the determination of quantum for one or other version of item 5.
In determining the quantum of the fee recoverable for item 5 I took into account the provision of every service for which the plaintiff had claimed by items 1, 2, 4 and 5. Specifically I took into account the negotiations that had preceded the agreement; the agreement; and commencing and terminating the proceedings along with associated communications. In making the determination reference was had to the provision of such services for the purposes of implementing the agreement in accordance with the procedure adopted by the parties, by a competent practitioner undertaking the task in an efficient manner.
Whether or not it is considered that by reconstituting the bill I had been engaged in the process of taxation, reconstituting item 5 had been the first step that I took after reaching a decision in relation to the plaintiff's entitlement under the order. The next step was to address the issue raised by the defendant in relation to the services the subject of item 5 that the plaintiff had constituted as item 3, by first hearing submissions and then making a determination that those parts of item 5 be disallowed. Assessing the quantum for the balance of the services that had been reconstituted as item 5 had been the last step.
The determination of the quantum of the fee recoverable stands as an assessment of the value of the services that had been reconstituted at item 5 after the disallowance of the particulars that the plaintiff had provided by item 3. The decision to constitute the services the subject of items 1 to 5 as a single item neither accounted for nor had any bearing upon the determination that the amount of $1,200 was a reasonable fee for what remained of the services that had been reconstituted as item 5. The error contended at pars 18 and 21.1 would not account for the quantum determination that by par 3 the plaintiff portrays as the allowance.
There is no reason to consider drawing an inference that there was any connection between the contended error and the contended allowance.
The objections raised at pars 18 and 21.1 are outside the scope for objection provided by r 53(1) as the contended error operated in the context of considering the impact of item 39. The contended error had its impact prior to applying the test of necessity to the contested services and the test of reasonableness in determining the quantum of the fee for the balance of the services by which item 5 had been reconstituted.
The plaintiff also relies on the content of par 21.2 to establish what she characterises as the first ground of objection presented by par 18. It is put as follows:
21.… the Taxing Officer erred in finding that:
21.1…
21.2.That work involved in relation to the claim, including advice in relation to a possible common law claim, any work that may have been undertaken regarding the quantification of the claim, including obtaining medical history and medico - legal reports, and drafting a writ fall within item 39 of the Scale, or are otherwise not claimable on a party and party basis.
Although each part of par 21 falls within that part of the notice that relates to ground 1, it is not clear whether the plaintiff connects what she characterises as the finding that she expresses at par 21.2 with either the contended disallowances of items 1 to 4 or the quantum determination that she characterises as an allowance. The difficulties in reaching a conclusion are that as much as most of the services outlined by par 21.2 are expressly put as hypothetical, there is nothing other than the word 'finding' in the introduction to par 21 that suggests that they were somehow constituted as part of an item in the bill or had been put as part of a submission. Whatever is made of the content of par 21.2 is presented without either any reference to either its allowance or disallowance or to the disallowances expressed in par 3.
It is open to consider that the 'finding' had been nothing more than a response to unfounded submissions that did not go to any claim for recovery that the plaintiff had made in the bill.
The only scope provided for any different analysis is the commitment made to provision of advice in relation to a possible common law claim. The plaintiff does not assert any connection between that service and the procedure for which she is entitled to recover costs. Even if the plaintiff had the benefit of an order for her costs of the action to which the advice relates, there would be some distance between the service described and the scope for recovery provided by such an order.
In the event that the advice is intended to refer to the second and third of the particulars provided of item 3, as prior to reaching the agreement both the plaintiff and her solicitor had located her interest in reaching agreement with the defendant and the solicitor had been familiar with both the agreement and the procedure, no instructions would be required to be taken for the purpose of implementing the agreement. The specified features of the advice provided neither draw upon nor relate to either the agreement or the procedure adopted to implement its terms but expressly relate to a different context.
In any event, although the provision of advice and having instructions may bear upon a case to be presented at trial and thereby the scope of preparation, despite being antecedent to engaging in the provision of the relevant services, alternatively, to not undertaking particular services it is patent that the provision of advice and being instructed are not actually parts of the process of preparing a case for trial.
What I would describe as a view of the process of preparation of case for trial regularly presented at taxation is put along the lines that recovery comprehended by item 19 would extend to activity undertaken for the benefit of a beneficial party that is not covered by any other item of the scale. Engaging in the process of taxation does not provide reason for the process of preparation of case for trial to be considered any differently to its accepted meaning in the context of litigation. Broadly speaking the scope of recovery for the service is informed by the rules, the cause or causes of action the subject of a claim and the issues presented upon the close of pleadings. The justification for recovery will be established by harnessing resources for the purpose of establishing or defeating a case for relief.
The balance of the content of par 21.2 suggests that the services contemplated relate to a different course of action that it may have been considered, had been open to the plaintiff.
Part of my motivation in reforming the bill had been to ensure that the plaintiff received the benefit to which she was entitled under the order regardless her decision to draft the bill as she did. Otherwise I was motivated to record that I considered that item 39 applied and would be applied in taxing the claims made under the order. In the process of reconstituting the bill I had no interest in how any part of what would be constituted as item 5, would fare upon application of the test of recovery.
Had provision to the plaintiff of any service to the plaintiff that may be projected by par 21.2. been part of an item expressed in the bill, upon reforming the bill it had been reconstituted as part of item 5.
Considering the content of par 21.1 for the purposes of its utility as an objection I will say that in the context presented by the plaintiff's failure to establish that she had the benefit of an order for her costs of the action and being limited in her recovery of costs to the extent of the defendant's concession, I have no difficulty with the proposition that unless a contested service was found to be within the scope of the item 39, the plaintiff would not recover her costs of that service from the defendant.
It follows that the reason that the plaintiff is almost correct in her contention at par 21.2 that services would fall within item 39 of the Scale or would otherwise not be claimable on a party and party basis is that the meaning and effect of the order established by the defendant's concession was that unless she recovered costs under item 39, she would not have been likely to recover from the defendant more than the costs of dismissal of the action.

Finally, to the extent that the content of par 21.2 may be considered to project an objection, that result would depend upon at least one inference being drawn in favour of the plaintiff and it is that either the content of par 21.2 had been disallowed or that par 21.2 draws upon the allowance or disallowance specified at par 3. There is no impetus to do so. In any event it is for an objecting party to put an objection that establishes jurisdiction to review.
Although it was evident that in drafting the bill of costs the plaintiff considered that she had the benefit of an order for the costs of the action, it was taxed on the basis she was entitled to recover the cost of implementing the agreement. There is nothing in the content of pars 3, 18 or 21 of the plaintiff's notice that suggests that there had been reason to reach a different conclusion.
The second sentence of par 3 of the notice is as follows:
The taxing officers reasoning was that item 39 … was an all-inclusive item that encompassed all work involved in the action including work undertaken to effect the settlement of a claim.
The explanation for the plaintiff's provision of the reasoning is that after the balance of the consolidated fee was taxed off and without reference to any particular determination, the plaintiff asked for my reasons. I responded that reasons would issue upon objection. After maintaining that she was then entitled to reasons the plaintiff proposed reasons with which I did not disagree. What was put to me was not my reasoning but that of the plaintiff.
The reasoning expressed in the second sentence of par 3 suggests that features of the action would be distinguished from the procedure by which settlement of the plaintiff's claim was established. That reasoning suggests the perspective that the plaintiff had brought to the task of drawing the bill. She had then considered that she had been entitled to recover costs of the action. The reason for reforming the bill reveals that my view was to the contrary. Once it was evident that the plaintiff would not establish scope for recovery of the costs of the action and it became apparent that the concession of the defendant would justify recovery under item 39 without reference to the action, there was no reason to consider the action other than as the procedure by which the agreement would be implemented. In the process of reforming the bill my focus had been on the procedure in which the parties had engaged to bring themselves within the scope of s 92(f). I did not consider that there was any reason to distinguish 'all work involved in the action' from 'work undertaken to effect the settlement of a claim'. Indeed, I did not regard the fact that an action had been commenced and dismissed to be significant.
Before considering the content of par 22, I will conclude my observations in relation to pars 3, 18 and 21 by considering the prospect that after determining the extent of the plaintiff's entitlement under the order, I had not reconstructed the bill. If prior to the conclusion of taxation of items 1 to 5 the plaintiff did not seek to amend the bill, items 1 to 5 would have been taxed as they had been presented.
Taking into account the particulars of each of items 1 to 5, each of items 1 to 4 would have been disallowed on the basis that they were outside the scope of the order and the fees claimed for each of those items would have been taxed off. Because the plaintiff had the benefit of the order and was entitled to recover to the full extent of that benefit, notwithstanding her presentation of items 1 to 4; the limited scope for recovery presented by item 5; and the disallowance of items 1 to 4, it would have remained open to consider that the extent of the fee that she claimed for item 5 along with the scope for recovery provided by her reference to item 39 permitted the result that she would recover under item 5 to the full extent of the scope of her engagement in the procedure notwithstanding her choice in limiting the scope for recovery by the particulars. The result in terms of the quantum of fees recovered would have been no different to that made at taxation for the same reasons.
Since the bill was taxed I have come to a different view of the scope of recovery for the services the subject of the particulars of items 4 and 5. At the time of taxation I had some reservations that the particulars that the plaintiff provided of item 5 were within the scope of item 39 because the negotiations had been undertaken prior to implementation of the terms of the agreement and item 39 only relates to the procedure associated with the implementation of an agreement, not for the agreement and thereby, not for the negotiations that preceded the agreement. Nonetheless I persuaded myself that the explanation for what appears to be a generous maximum fee for item 39 would be explained by the prospect that the Committee had considered that recovery would be had under item 39 for a wider scope of services than had been provided for implementation of an agreement to settle a claim, specifically for the cost of negotiations and of the agreement itself. Clearly that conclusion was wrong. The scope for recovery under item 39 is expressed by item 39. I had fallen into the trap that I have outlined by reference to the submissions of beneficial parties in the context of addressing claims for the service preparation of case for trial.
Since taxing the bill, I have reached the conclusion that the apparent generosity of the maximum specified for item 39 would be accounted for by the fact that the scale is also utilised for the purpose of taxing practitioners' bills and in that context, the less stringent test of recovery for services may be taken to account for the maximum.
Accordingly, if the same exercise is conducted at the point of review, the amount recovered under item 5 for the engagement of the plaintiff in the procedure would be $500.
In the event that the plaintiff had been entitled to recover for the claims that she had made in the bill, I will reconsider my assessment of items 1 to 5. I should add that I am doing so because I consider that there could be no justification for the generation of further fees by either party to the end of contesting determinations that on any view could not result in recovery of fees greater than jurisdictional limit of the Small Claims Division of the Magistrates Court.
The plaintiff had provided what I would characterise as parts of the service comprehended by item 1. The defendant had prepared and lodged the writ. The action having been commenced pursuant to an agreement, provides a significant point of differentiation from the context of an action commenced for another purpose. The content of the document provided to the plaintiff would only need to be considered with reference to the terms of the agreement.
As there is no reason to consider that checking the accuracy of the document had not been a straightforward exercise, assuming a measure of efficiency in the provision of the relevant services, the item would attract a fee of no more than $250. I accept that it may be that such an amount may be regarded as being at the generous limit of what would be reasonable considering that regardless the input of the plaintiff, the risk resided with the defendant.
The result of consideration given to those features of item 1 is that recovery for the parts of the service for issuing the writ would be $250.
As for item 2, the memorandum of consent would only require reference to be had to the agreement. I accept that there had been reason to raise an unspecified issue with the defendant relating to the content of that document. There is nothing revealed by the memorandum that was filed that would identify the issue to which the plaintiff refers. At taxation there had been no elaboration. There is no reason to consider that the issue had generated any controversy. A reasonable fee for provision of services that would be recoverable under item 10(c) of the scale is $225.
Although in presenting the claim at item 3 of her bill the plaintiff refers to item 19 of the scale which provides for recovery for the service 'preparation of case for trial', she omits the words 'for trial'. Whilst that omission may be due to oversight and considered to be of no consequence, in a context where no case to be tried either had been or would be generated, the omission suggests the prospect that the plaintiff had prepared some unspecified case for some unspecified purpose for which she makes a claim for recovery.
Because the only reason that the parties had engaged in the procedure had been to the end of establishing that the plaintiff's claim had been settled, the reason for provision of services associated with preparation of any case is not apparent. As it is clear that the action had been commenced for a purpose other than litigation and the particulars provided for item 3 suggest to the contrary, it is open to consider that preparation accounted for by the particulars relates to a purpose other than that established by the agreement and one that was not within the scope of the action in which he order was made. Accordingly, the particulars add to the doubt that surrounds the claim.
Being familiar with the procedure by which the agreement would be implemented, the representatives of the parties had been aware that despite the action being commenced, it would not be productive of a case that would proceed to trial. As recovery under the order is limited to the services provided for the purpose of engaging in the procedure, there would be no scope for recovery for the preparation of any case whether for trial or for any other purpose. Preparing a case would not establish an entitlement to recover for having done so.
The plaintiff cites the following text of item 19:
includes work reasonably and necessarily undertaken prior to commencement of proceedings …
The writ issued on 14 July 2022 and the memorandum of consent was lodged on 27 July 2022. Although r 42(1)(b) specifies that an item in a bill should clearly show the date of provision of a service, the plaintiff has omitted to do so. There is nothing to indicate that prior to issue of the writ preparation of any case for trial had been undertaken. In circumstances where it is unclear whether those words by which item 19 is expressed have been cited for a reason, the plaintiff has left it to the reader to consider drawing an inference that the services outlined by the particulars had been provided prior to the writ being issued.
The contest raised by the defendant in relation to the services the subject of item 3 would be resolved upon application of the test of necessity. In circumstances where preparation of a case for trial had been undertaken prior to the close of pleadings and the action is concluded prior to that event, application of the test would reveal that the beneficial party had realised upon the risk that such preparation would be exposed as not having been necessarily provided. In this instance it transpired that even the terms by which the indorsement would be expressed were in the hands of another party.
I would add that had preparation of case for trial been undertaken prior to the action being commenced, the context in which it had been undertaken includes the relationship between the parties upon which their agreement had been established. Whether prior to the agreement it had been open to the plaintiff to bring an action against the defendant upon any relevant cause of action would depend upon the impact of other provisions of the Act. That broader context opens consideration of the prospect that prior to the agreement the plaintiff had considered commencing an action for damages against the defendant and that the services outlined by the particulars had been provided to that end. In that event there is no reason to consider that they would be recoverable even under an order for the costs of the action.
Any preparation of a case for trial that had been undertaken to the end of bringing a different action, even on the same causes, had not been undertaken in the action to which the order for costs relates. If preparation of a case been undertaken for some reason other than trial, it would not be within the scope provided by item 19. In either event it would not be within the scope of an order for the costs of the action.
To that assessment of the context, I would add that there is nothing unusual in the result that the early conclusion of an action reveals the provision of services that would be characterised as preparation of case for trial as not having been necessarily provided. Such a result is generated by a successful application of a plaintiff for judgment in default of appearance or defence and summary judgment. The common law generated in the realm established by orders for costs does not draw upon any notion of fairness. If an adverse party choses to make a concession it is free to do so however the law has been generated in a cauldron of unrelenting contest.
To the extent that the claim under item 3 depends upon an inference being drawn that the services had been provided prior to the action being commenced, the fundamental consideration is that the need to do so has been generated by the failure of the plaintiff to comply with r 42(b). Her unexplained default could not justify intervention. Because no preparation for trial had been necessary and that is the test of recovery, there would be no impetus towards drawing the inference that parts of such a service had been undertaken prior to issue of the writ.
Upon analysis of the terms of the claim made for recovery under item 19, none of the doubts generated by its presentation are resolved in favour of the plaintiff.
It follows that in considering the claim for preparation of case and the particulars provided the plaintiff does not make out a sufficient case to permit recovery. Accordingly, item 3 would be disallowed and the fee claimed for the services taxed off.
Before leaving item 19 of the scale, I have referred to the test of necessity that applies to services for which a beneficial party seeks allowance under an order for the costs of an action. The scale also applies in the context of taxation of practitioners' bills where the test applied is whether a service for which allowance is sought had been either reasonably or properly provided. That observation may somehow account for the qualification 'reasonably and necessarily' expressed at item 19 to which the plaintiff refers at item 3.
Turning to the claim for recovery of costs by item 4 of the plaintiff's bill, item 27 of the scale appears in the form of what might be characterised as parts under a heading, 'Pretrial, mediation, conferrals, or other conferences', as follows:
(a)Where required by order of the Court, by the Rules of the Supreme Court or by practice direction
(b)including informal conferences where reasonably held before or after commencement of proceedings
(c)attendances by counsel and instructing legal practitioners at the conferrals and conferences set out in paragraphs (a) and (b) of this item
(d)preparation reasonably undertaken for the conferrals and conferences described in paragraphs (a), (b) and (c) of this item
(e)conferences between counsel and own instructing legal practitioner where reasonably necessary(sic)
In the process of presenting item 4 the plaintiff does not identify when the service the subject of her claim had been provided. Although she specifies that her claim is made under item 27, she does not identify the relevant part or parts under which she contends that she is entitled to recover for the 'reasonably hold [sic] negotiations to settlement claim [sic] including preparation'.
I took it to be common ground that there had been relevant communications between the parties prior to agreement being reached that they would bring themselves within the scope of s 92(f) of the Act. Accordingly, it was open to consider that in whatever context the plaintiff undertook what she describes as negotiations, she draws upon paragraph (b). The reason to so conclude was that the agreement had followed upon some form of communication; that the action had been commenced after agreement was reached; and that of the parts of item 27, it is only par (b) that provides for recovery for a service rendered prior to commencement of proceedings.
I refer to my earlier observation that the scale is also applied in the process of taxation of practitioners' bills of costs. That may account for the reference made in par (b) to reasonableness. As the test of recovery that applies to services for which a beneficial party seeks allowance under an order for the costs is the necessity for their provision and it would be difficult to imagine that any form of conferral prior to an action being commenced would be considered to be necessary, it is open to consider that it had not been intended that recovery under par (b) would be available under an order for the costs of an action.
There is another feature of the context that supports that conclusion.
Prior to the 1996 version of the scale there was no scope for recovery for any conferral or for any conference. By the 1996 version, provision was made for recovery of costs for pre-trial, mediation or other conferences in the terms that now appear at par (a) of item 27. By the 2002 version, the scope for recovery was increased to the extent that par (b) now provides, but only for conferences held after proceedings had been commenced. By the 2010 version, the balance of what is now item 27 was introduced. The explanation then given for expansion of the scope for recovery was provided at cl 9(b) of that determination as follows:
The Committee considers that Order 59 Rule 9 of the Rules of the Supreme Court of Western Australia and any other rule in substitution for it, supports the expansion of the provisions in Item 27 …
The explanation has no bearing upon the extension of the terms of par (b) to include recovery for a conference held prior to proceedings being commenced.
Recovery under item 27 has never been available to the extent suggested by what may be characterised as its heading. It has been by a process of evolution that item 27 expresses as it does. Each limitation on the scope for recovery has been intended to have effect. Satisfaction of a test of reasonableness would not be of any moment in a context in which the test of recovery is of necessity for provision of a service.
To the extent that the plaintiff has claimed for preparation, I take it that she does so under par (d). In this instance recovery under that part of the item would only be available in circumstances where the preparation had been undertaken for the purposes of a conference the subject of par (b) of the item.
It follows that in the event that I was now called upon to make a determination in relation to recovery under item 4, the item would be disallowed and the fee claimed taxed off.
It is not clear how the service outlined by the particulars of item 5 differs from that to which the particulars of item 4 refer. Like item 4, by item 5 the plaintiff neither provides the date nor the period of time over which the service or services were rendered. As item 4 would be disallowed, there would be no reason to disallow item 5 on the ground of duplication.
The particulars of item 5 are as follows:
Negotiating regarding settlement including exchange of offers of compromise.
In the event that item 5 was now taxed, the result would be that it was disallowed as the services the subject of the particulars are outside the scope of item 39. Although there is a prospect that consideration would be given to engaging the rule that permits recovery by analogy, what I have already recorded in relation to item 4 would defeat recovery.

The last part of the notice of objection by which the plaintiff puts what she characterises as her first ground of objection is at par 22. It is as follows:
Further, by reason of the Taxing Officer's reasoning above, the allowance in respect of items 1, 2, 3, 4 and 5 of the bill was so inadequate that no Taxing Officer, acting reasonably, could ever have taxed those particular items in the amount in question. Alternatively, it is submitted that it may be inferred from the allowance and the disallowance that the discretion has been exercised in a manner that is manifestly wrong, for the reasons set out above.
According to the first sentence the allowance put in issue is the determination of quantum and accordingly it would be outside the scope for review provided by r 53(1).
I accept that Mossensons (a firm) v Coastline Associates (Unreported, WASCA, Library No 970661B, 2 December 1997) expresses obiter that relates to the scope for review before a judge as follows:
The point is that there must be an 'error in principle' before a judge will carry out a review under O66 r55. 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.
I also accept that because the procedure outlined at r 55 would follow upon a taxing officer having undertaken review under r 53(1), logically the availability of jurisdiction under r 55 would emerge upon an objection having been taken in similar terms before the taxing officer. However for the purposes of both r 55 and implicitly, r 53(1) the observation is no more than obiter; its focus appears to be on distinguishing errors in principle from mere errors, not upon what constitutes an error for the purposes of the rule.
Regardless the qualification by which she puts her objection the plaintiff does not provide any basis for her contention that the amount recovered was inadequate.
The test of recovery applied to for the purpose of determining the quantum of the fee recoverable for the parts of item 5 that had not been disallowed was reasonableness. It was applied in accordance with the standard that relevant services had been undertaken efficiently by a competent practitioner. In applying that standard, the consolidated fees claimed were not considered to be the datum in making the assessment. The process of assessment was complicated by doubt generated by a disproportionately large maximum fee expressed in the scale for a relatively straightforward procedure. That assessment of the maximum was not simply by reference to items 1(a) and 10(c) but by reference to the broader scope of items for which recovery is not specified as being time rated.
I will make three observations. Although I had some considerable measure of doubt that the determination made was reasonable, the genesis of that doubt was not in making the assessment in accordance with the standard and the extent to which I had been persuaded by the plaintiff's submissions, but by reference to the maximum fee expressed for item 39. The second is that in wrestling with the result of my assessment ultimately I persuaded myself that there was no reason to inflate the result simply to the end of generating a figure closer to the maximum. Equally that there was no reason to consider that there ought to be consistency between the maximum fee expressed for certain items of scale. The third is that over the period that has elapsed since the determination was made, I have come to an appreciation that an explanation for the scope of recovery for fees expressed at item 39 is simply that the scale applies in the context of taxation of practitioners' bills in which the scope of recovery of services under a less stringent test is greater than that which applies in the context of taxation under an order. Had I found that appreciation at the point of making the determination I am satisfied that the measure of doubt would be no more than that which usually emerges.
Not only does the plaintiff fail to provide a basis for her contention that the result is inadequate there is no reason to consider that it is.
By the second sentence of par 22 the plaintiff puts an alternative objection in which her contention of unspecified error would be drawn by inference that in determining that both items 1 to 4 be disallowed and that the amount of the fee assessed for an unspecified version of item 5, the exercise of an unspecified discretion had manifestly been flawed.
Four determinations were made in the course of dealing with the plaintiff's bill, one or more of which may be taken to be relevant for the plaintiff's purposes. The first gave some meaning to the order. The result emerged after the plaintiff had failed to establish her case that she was entitled to recover her costs of the action upon the defendant's concession. The second was that the bill ought to be reconstituted in order to conform with the item of the scale in accordance with which it would be taxed. The result brought the bill into conformity with r 42(1). The third determination resulted in the disallowance of the particulars of item 5 that the plaintiff had constituted as item 3. The result was justified upon a number of grounds. The fourth was of the quantum of the fee recoverable for what remained of item 5 after application of the test of necessity to the services by which it was constituted. That determination made was in accordance with the test of recovery that relates to quantum and it was applied on the basis of an objective standard. In reaching the result consideration was given to all the services that the plaintiff had presented in her bill that had not been disallowed.
For the plaintiff to contend that some feature of any of those determinations would account for some unspecified wrong by reference to some unspecified reasons could not amount to an objection that would establish jurisdiction to review under r 53(1).
Accordingly, par 22 of the notice is outside the scope of r 53(1).
By items 6 and 7 of the bill, the plaintiff sought to recover the cost of drawing the bill and of taxation.
In opposing recovery for items 6 and 7 the defendant submitted that the plaintiff had not beaten an offer that it made in relation to costs. Because the defendant's submission extended to the bill, I took it that the offer had been made prior to the bill being drafted.
Whilst the defendant's challenge to the claims presented the need to tax items 6 and 7, its submission provided only part of the reason to disallow those items.
Because the plaintiff accepted the proposition put by the defendant, I was not provided with any detail of either a proposition that had been put by the plaintiff to the defendant or its response.
The context in which the determination was made was established upon a choice made by the plaintiff in framing her bill of costs. Whilst the second sentence of cl 10 suggests that it had been open to the plaintiff to claim other than under item 39, the first sentence of cl 10 reveals that it had not been open to her to recover for services provided in the context to which item 39 applies other than under that item.
Neither the order nor the context in which it was made established a basis for recovery under any item of the bill other than the memorandum of consent. The plaintiff was revealed as dependent upon an inference being drawn that she could recover the cost of any service. The prospect that an inference would be drawn to bring the result that she was entitled to the costs of the action was remote. It was only due to the defendant's concession and reformulation of the bill that the plaintiff succeeded in recovering the costs of services to the extent that she did.
Each of those considerations had a bearing upon whether the plaintiff would recover for the service of drafting the bill. Although being the beneficiary of an order for costs the plaintiff had an entitlement to present a bill for taxation it was irresistible that in combination the plaintiff's choice in framing the bill; her failure to establish any basis for recovery of any item; the defendant's concession; the reformation of the bill; and the defendant's offer justified the result that the item be disallowed.
As for the costs of taxation, in addition to the context that I have outlined it was my assessment that broadly speaking the plaintiff had been unsuccessful in the submissions that she advanced in the course of the taxation. Ultimately there was no reason to reach a different conclusion for item 7 than that reached for item 6.
The second ground of the plaintiff's objection is put at par 23 as follows:
In relation to the items for drawing the Bill and taxing the Bill, the plaintiff objects to the Further Disallowance on the grounds that the Taxing Officer made an error in principle in applying the test as to whether the outcome of the earlier offer was more favourable to the plaintiff than the outcome of the taxation, when the appropriate test should be whether the plaintiff acted unreasonably in rejecting the offer.
In presenting the objection the plaintiff does not suggest other than that being identified as the beneficial party she was entitled to lodge a bill. She simply focuses upon the defendant's submission which was only one feature of the context considered ought to speak for the result.
The plaintiff is incorrect in her contention of error. The determinations made were justified upon consideration of the defendant's submission in the context in which it was made.
It is not inappropriate to consider the issue of the costs of the taxation from the perspective of the defendant. It had it made the offer and the concession, and it had witnessed the plaintiff's failure to establish any claim under the order other than in accordance with its concession. It did not seek the costs of the taxation only that it be not burdened with those generated by the plaintiff's failure. Those results had a measure of appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MD
Associate to Registrar
31 JULY 2023