Willmott v Coles Group Ltd [No 2] - [2024] WADC 106

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   WILLMOTT -v- COLES GROUP LTD [No 2] [2024] WADC 106
CORAM:   STAUDE DCJ
HEARD:   30 AUGUST 2024
DELIVERED          :   6 DECEMBER 2024
FILE NO/S:   CIV 2901 of 2022
BETWEEN:   LYNNE WILLMOTT
Plaintiff
AND
COLES GROUP LTD
Defendant

Catchwords:

Costs - Settlement of claim pursuant to s 92(f) of the Workers' Compensation and Injury Management Act 1981 (WA) - Action resolved by filing of writ of summons and consent orders dismissing claim with defendant to pay plaintiff's costs to be taxed - Objections to taxation dismissed - Irregular appeal - Review of taxation by judge - Taxation set aside by consent - Further taxation - Calderbank offers made - Consequential costs orders sought - Whether plaintiff should pay the defendant's costs or be deprived of costs

Legislation:

District Court (Fees) Regulations 2002 (WA)

District Court of Western Australia Act 1969 (WA)
District Court Rules 2005 (WA)
Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (WA)
Rules of the Supreme Court 1971 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Plaintiff to pay defendant's costs of incompetent appeal from taxing officer's decision to dismiss objections to taxation

No order for costs of first taxation and application for review of taxation by taxing officer

Defendant to pay costs of application for review by judge

Representation:

Counsel:

Plaintiff	:	Mr D P Coster
Defendant	:	Mr R J Carey

Solicitors:

Plaintiff	:	Eureka Lawyers
Defendant	:	Hall & Wilcox

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

Calderbank v Calderbank [1976] Fam 93
Cutts v Head [1984] Ch 290
Dobb v Hackett (1993) 10 WAR 532
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1
Stanley v Layne Christensen Company [2006] WASCA 56
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388
Tsallis v Schofield [2012] WASC 231
Wang v Costa Holdings Pty Ltd [2023] WADC 4
Willmott v Coles Group Ltd [2023] WADC 85

STAUDE DCJ:

Background

The plaintiff reached a settlement of a workers' compensation claim against the defendant to which s 92(f) of the Workers' Compensation and Injury Management Act 1981 (WA) applied. The settlement was effected by a deed that provided for the issue of a writ of summons claiming damages for negligence and the subsequent making of orders by consent that the action be dismissed and that the defendant pay the plaintiff's costs of the action. Those orders were made on 29 July 2022.

The plaintiff's bill of costs was filed on 13 September 2022 and taxed by Deputy Registrar Harman on 30 November 2022. The learned deputy registrar allowed the plaintiff $1,200 for costs claimed under item 39 of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (WA) (settlement of a claim pursuant to s 92(f) Workers Compensation and Injury Management Act) and disallowed the costs claimed for writ of summons (item 1(a)), consent judgment (item 10(c)), preparation of case (item 19) and conferrals/informal conference (item 27). No allowance was made for drawing the bill of costs and attending taxation (item 32). The plaintiff was dissatisfied and requested that the taxing certificate not be signed.
On 7 December 2022 the plaintiff filed an application for review pursuant to O 66 r 53 of the Rules of the Supreme Court 1971 (WA) (RSC) setting out a number of objections to taxation. On 31 July 2023 the learned deputy registrar dismissed the plaintiff's objections: Willmott v Coles Group Ltd [2023] WADC 85.
The plaintiff appealed from that decision pursuant to r 15 of the District Court Rules 2005 (WA) (DCR) which provides that if a party is dissatisfied with the decision of a registrar the party may appeal to a judge.
On 7 September 2023 the defendant requested a copy of the certified bill of costs. The certificate of taxation was signed on 13 September 2023.
On 14 September 2023 the defendant's solicitors wrote to the plaintiff's solicitors stating that the appeal was irregular and should be withdrawn. The letter said that if the appeal was not withdrawn the defendant would apply for it to be struck out and seek costs. It offered the plaintiff an adjournment of the directions hearing listed for 19 September 2023: affidavit of Sharron Fiona Wise sworn 1 December 2023, attachment SFW-1.
On 19 September 2023 Registrar Kubacz referred to a judge the question of whether the matter should proceed as an appeal or as a review of taxation pursuant to O 66 r 55. The plaintiff subsequently filed a notice of review of taxation on 1 December 2023.
The matter came before me in chambers on 6 December 2023. The defendant's position, set out in a lengthy outline of submissions dated 1 December 2023, was that there was no right of appeal from a review of taxation by a registrar and that there was no power to treat the appeal as an O 66 r 55 review. The plaintiff sought orders that the appeal be struck out with costs.
Counsel for the plaintiff conceded that the matter should proceed as a review of taxation and sought an extension of time for the filing of the application for review. I was satisfied that the appeal notice dated 2 August 2023 was incompetent. The plaintiff, being dissatisfied with the taxation and the dismissal of the plaintiff's objections on review ought to have proceeded by way of an application for review of the taxation by a judge pursuant to O 66 r 55.
The plaintiff's contention was that the learned deputy registrar had erred in principle by failing to apply the decision of Tovey DCJ in Wang v Costa Holdings Pty Ltd [2023] WADC 4 in which it was held that in such a case as this the plaintiff was entitled to costs in respect of the writ of summons, consent order and preparation of case. There was no prejudice to the defendant likely to be occasioned by the grant of an extension of time.
I struck out the appeal and granted an extension of time within which to lodge the application for review. I adjourned the matter to 14 December 2023 for a substantive hearing of the application to review and reserved the costs.
On 13 December 2023 the plaintiff lodged a minute of consent orders in the following terms:
1.The plaintiff's application for review pursuant to [RSC] O 66 r 55 be allowed.
2.The decisions of Deputy Registrar Harman of 30 November 2022 and 31 July 2023 be set aside.
3.The taxation of the plaintiff's bill of costs dated 10 August 2022 proceed before another Registrar.
4.The hearing before a Judge in chambers on 14 December 2023 at 10:30 am be vacated.
5.The costs of the application commenced by notice of appeal and of the application by application for review, the taxation on 30 November 2022, the review to [sic] the Deputy Registrar, and the hearings in this review on 19 September and 6 December 2023 be reserved.
Those orders were made on 14 December 2023. An appointment for a further taxation was listed on 26 February 2024.
On 12 February 2024 the plaintiff lodged a substituted bill of costs for taxation dated 9 February 2024 claiming not merely the seven items set out in the original bill, but a further seven items numbered 8 - 14. Items 8 - 14 were stated to be the costs reserved by the order made on 14 December 2023.
On 16 February 2024 Registrar Nunn wrote to the parties expressing a preliminary view that as liability for the costs reserved on 14 December 2023 had not been determined, those items could not be taxed. The plaintiff's solicitors responded that day submitting that the reserved costs could be dealt with by the registrar at the taxation. The defendant's solicitors replied on 20 February 2024 stating that the taxation of the substituted bill of costs was premature and should not proceed, but that the re‑taxation of the original bill could.
On 26 February 2024 the taxation proceeded with respect to items 1 ‑ 5. The learned registrar reserved his decision and gave liberty to the plaintiff to lodge documents in support of those items. A schedule of documents was filed on 7 March 2024. It appears from the court file that the learned registrar made allowances for those items on 22 March 2024 and adjourned the taxation sine die to permit the plaintiff to apply for the costs reserved on 14 December 2023. The allowed costs were: writ of summons $247.50, consent judgment $187, preparation of case $693, conferrals/informal conference $1,067 and settlement of a claim pursuant to s 92(f) $1,980, in total $4,174.50. An undisputed disbursement of $1,891.45 was also allowed.
The matter was listed for directions on 16 August 2024. The plaintiff then lodged a chamber summons dated 21 May 2024 seeking orders as follows:
1.Order 5 of the orders of Staude DCJ dated 14 December 2023 be set aside.
2.In lieu thereof, there be an order that the Defendant pay the Plaintiff's costs of and incidental to:
a.The taxation on 30 November 2022.
b.The review before Deputy Registrar Harman commenced on 7 December 2022.
c.The appeal/application for review commenced on 2 August 2023, including the hearings on 19 September 2023 and 6 December 2023.
d.This application.
3.Such costs to be taxed as part of the Plaintiff's costs of the action.
The chamber summons was listed before Registrar Nunn on 26 July 2024. The learned registrar ordered that it be adjourned to a hearing before me. I heard the chamber summons on 30 August 2024. The defendant opposed the plaintiff's application for costs and sought the costs of the costs proceedings. I reserved my decision.
Subsequently, pursuant to a request communicated by my associate, the parties signed a minute dated 16 October 2024 indicating (1) that neither intended to object to any of the amounts allowed for items 1 ‑ 5 in the second taxation by Registrar Nunn, (2) that there were three further items to be taxed independent of the reserved costs such that the second taxation 'cannot be said to have concluded', and (3) that those items 'may impact [sic] whether the defendant's offers have been beaten (if they are found to be capable of being relied on)'. Those three items I take to be the costs of drawing the bill of costs, the costs of taxation and the taxing fee.

Rules of the Supreme Court 1971 (WA) O 66

Order 66 r 1(1) provides that the costs of proceedings shall be at the court's discretion, but that the court will generally order that the successful party to any action or matter recover their costs.
Order 66 r 1(2) provides that if the court is of the opinion that the conduct of a party before or after the commencement of litigation or that a claim by a party for an unreasonably excessive amount has resulted in costs being unnecessarily or unreasonably incurred it may deprive that party of costs and may further order it to pay the costs of an unsuccessful party, either wholly or in part.
Order 66 r 50 provides:
When the costs of a motion, application, or other proceeding are reserved by the Court or a judge, the costs of the motion, application, or proceedings shall not be allowed to a party without an order of the Court or a judge.

Costs of the appeal

It is convenient to deal firstly and separately with the application for the costs of the appeal from the decision of Deputy Registrar Harman dismissing the plaintiff's objections to taxation. The appeal from that decision was struck out by me on 6 December 2023 on the grounds that it was incompetent. As this was effectively conceded by the plaintiff, who by that time had lodged an application for an O 66 r 55 review, reasons were unnecessary, but as the plaintiff is seeking the costs of the appeal, I will explain why an appeal was not available.
The District Court of Western Australia Act 1969 (WA) (DCA) provides by s 26(1) that the functions of a registrar are as set out in the Act and in the rules of court.
Section 67(1) provides:
Except as hereinafter provided in this Act and subject to the rules of court, all costs and charges as between the parties shall be taxed by a registrar at Perth or at the place where the action or matter to which they relate was tried or heard, but the taxation by a registrar may be reviewed by a District Court judge on the application of either party.
Part 2 div 2 of the DCR is headed 'Registrars' jurisdiction'. None of the rules in that division (r 8 ‑ r 14) refers to the power of a registrar to tax party/party costs. Division 3 is headed 'Appeals from registrars'. DCR r 15 can be seen to relate to a decision of a registrar exercising the powers set out in div 2.
Section 52 DCA provides:
In all respects, except as expressly provided by or under this Act, the practice and procedure of the Court as a court of civil jurisdiction including the trial of certain cases with or without a jury, shall be the same as the practice and procedure of the Supreme Court in like matters.
As mentioned, O 66 r 55 affords a party who is dissatisfied with the decision of the taxing officer a right to a review of the taxation by a judge. Order 66 r 55(2) provides:
The judge, if of opinion that the taxing officer has made an error in principle, may thereupon make such order to rectify the error as the judge thinks just.
This procedural requirement - to demonstrate an error in principle - distinguishes the process of review of taxation by a judge from an appeal from a registrar pursuant to DCR r 15. An appeal from a registrar is by way of a new hearing of the matter that was before the registrar: DCR r 15(6).
For these reasons I concluded that DCR r 15(1) does not afford a right of appeal from a decision of a registrar acting as a taxing officer. The plaintiff's notice of appeal was struck out accordingly.
The hearing before Registrar Kubacz on 19 September 2023 was a directions hearing in the appeal. The power to summons the parties to a directions hearing in an appeal from a registrar's decision is found in DCR r 16. There is no procedural requirement for a directions hearing before a registrar where a party applies for a review of taxation by a judge pursuant to O 66 r 55. (My incidental statement to the contrary at the hearing on 6 December 2023 was made per incuriam.)
The appeal having been struck out, it follows that the defendant should have the costs of the appeal, including the directions hearing before the registrar on 19 September 2023.
The referral to a judge of the issue of whether the matter should proceed as an appeal or as an O 66 r 55 review was made in the appeal. The issues at the hearing on 6 December 2023 were whether the appeal should be struck out and, if so, whether the time within which to file an application for an O 66 r 55 review should be extended.
I observed at the hearing that those procedural issues ought to have been resolved without the need for a hearing and reserved the issue of costs, yet disappointment that a matter has come to court and dismay at the costs incurred by the parties do not prevent an objective determination of the merits if that is required. In this case, lamentably, it is.
The defendant was entitled to submit that the appeal should be struck out: defendant's outline of submissions 1 December 2023. That submission was supported by the affidavit of Ms Wise sworn 1 December 2023. Up to that point the plaintiff had not sought an extension of time within which to bring an application for review of taxation by a judge or conceded that the appeal was incompetent. The hearing on 6 December 2023 arose in the appeal. It was listed for the purpose of determining how the matter should proceed. In my view that hearing was occasioned by the plaintiff's default. In any event, the plaintiff required the court's indulgence for an extension of time. I am not satisfied that the defendant's opposition was unreasonable. Accordingly, the general rule is not displaced: see Stanley v Layne Christensen Company [2006] WASCA 56 [52].
The defendant should have the costs of the appeal, including the costs of the directions hearings on 19 September 2023 and 6 December 2023, notwithstanding the fact that the defendant subsequently conceded the application for review by consenting to the orders that were made on 14 December 2023.

Costs of the first taxation, the application for review of taxation by the taxing officer and the application for review by a judge

The plaintiff, having succeeded in setting aside the taxation and the order dismissing the plaintiff's objections to taxation, seeks an order that the defendant pay the plaintiff's costs of the first taxation, the O 66 r 53 application for review of taxation filed 7 December 2022, and the O 66 r 55 application for review filed 1 December 2023.
There is no application for the costs of the second taxation which has not been concluded. The costs of the second taxation will be determined by the taxing officer. I am informed, however, by the parties' minute dated 16 October 2024 that neither intends to object to the allowances made for items 1 ‑ 5.
In opposition, the defendant seeks an order that the plaintiff pay its costs, alternatively, that there be no order as to costs, because the plaintiff unreasonably refused three offers of settlement of the costs of the action that were more favourable to her than the result of the second taxation. (The defendant did not seek such costs on an indemnity basis.)
As I have noted, for the purpose of the second taxation the plaintiff saw fit to file a substituted bill of costs claiming costs that had not been awarded. Those costs, having been reserved, could only have been awarded by a judge: O 66 r 50. Accordingly, they were not able to be taxed as part of the costs of the action and should not have been included in the bill of costs.
The plaintiff's chamber summons was contested before me on the basis of the main issue being whether the defendant's offers were privileged and, if not, whether the plaintiff should be deprived of costs. The submissions of both sides were premised on the outcome of the second taxation, a process that has determined the quantum of the five items claimed as the costs of the action though it has not been concluded.
The parties saw fit on 14 December 2023 to consent to an order reserving the costs in question on the basis, as I understand, that the outcome of the second taxation might influence the court's discretion as to the costs in issue. Neither party argued that the application and cross‑application for costs of the first taxation, the objections to taxation and the application for review by a judge were premature by reason of the fact the second taxation has not been concluded.
While the court has been assured that neither party will object to the allowances made for items 1 ‑ 5 which have been taxed, an allowance is yet to be made for drawing the bill of costs. Ordinarily, there would be an allowance made for attending taxation and the fees payable on lodgement of the bill (District Court (Fees) Regulations 2002 (WA), sch 1, item 11) calculated according to the costs allowed.
As I have said the costs of the second taxation will be determined by the taxing officer in due course.

Defendant's offers of settlement

The defendant made three offers, the first by email on 29 April 2022 as a term of its final offer of settlement of the plaintiff's substantive claim, the second by letter from its solicitors dated 19 August 2022 reinstating the first offer, and the third by letter also from its solicitors dated 14 September 2023. The email and letters are contained in a book of documents dated 28 August 2024. Each is marked 'without prejudice'. The third is expressed to be a Calderbank offer that the defendant reserved the right to rely upon with respect to costs if it were not accepted (Calderbank v Calderbank[1976] Fam 93).

The plaintiff has objected to evidence of the offers being received on the basis that it is of 'without prejudice' communications in respect of which privilege is not waived. The court having been informed of the defendant's offers, the issue with respect to the claim of privilege is whether any regard should be paid to them for the purposes of determining liability for costs.
The rationale for without prejudice privilege is that it serves the administration of justice that a party to a dispute be able to offer to compromise on the basis that their offer will not be used against them.
Without prejudice privilege is a joint privilege that cannot be waived without the consent of all parties to the negotiation for obvious reasons: see Tsallis v Schofield [2012] WASC 231 [4]. An exception to the privilege is a Calderbank letter. In Cutts v Head [1984] Ch 290, 310, Oliver LJ said that where an express reservation was made there would be no infringement of 'the public policy that protects negotiations from disclosure while liability is still in issue' by reliance being placed on the offer with respect to the costs of the litigation.
In this context the remarks of Murray J in Dobb v Hackett (1993) 10 WAR 532, 540 are instructive. His Honour said:
The court should preserve in the minds of litigants, the conscious consideration that their behaviour may place them at risk as to costs if they refuse reasonable offers of settlement. The court should be careful not to foster the proposition that obstinacy and unreasonableness will not be punished by orders as to costs. Such considerations foster the public interest in the desirability, not only from the point of view of the particular litigants in the case in question, but from the point of view of litigants generally, of the court so behaving as to encourage the achievement of reasonable and timely settlements.
These comments are pertinent to costs offers, in my opinion, particularly for the reason that costs litigation is capable of generating costs that are disproportionate to the quantum of costs in issue. This consideration enhances the desirability of reasonable and timely settlements of costs issues.
For a Calderbank offer to displace the general rule that costs follow the event, it must be unambiguous and expressed in terms that reserve the right to rely upon the offer when it comes to the question of costs, and its rejection must be unreasonable: Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 [16] ‑ [19] (Lo Presti). The factors to be considered in determining whether a rejection of an offer was unreasonable are summarised in Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [83] as follows:
The mere fact that the recipient of a Calderbank offer is ultimately worse off than they would have been had the offer been accepted, does not mean that its rejection was unreasonable. Instead, in determining whether the rejection of the offer was unreasonable, all relevant facts and circumstances must be considered. Ordinarily, regard should be had to at least the stage of the proceeding at which the offer was received; the time allowed to the offeree to consider the offer; the extent of the compromise offered; the offeree's prospects of success, assessed as at the date of the offer (and not with the benefit of hindsight as to the result of the proceedings); the clarity with which the terms of the offer were expressed; and whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejection of it.
(citations omitted)
Although the Calderbank principles as distilled in Lo Presti are applicable in this case, it is important in my view to recognise that these principles were developed to deal with the costs consequences of a settlement proposal made outside the procedural rules that in the past provided for the making of payments into court and offers to consent to judgment pursuant to O 24 (now repealed) and, since 1991, formal offers to compromise pursuant to O 24A as a means by which a party could protect itself from the costs of litigation.
It was held in Cutts v Head (Oliver LJ at 312) that an offer in the form of a Calderbank letter could be taken into account on the question of costs but was not a substitute for a payment into court. Thus, as a matter of principle, a Calderbank offer can influence but not govern the costs discretion.
As the decision in Lo Presti illustrates, rejection of a Calderbank offer made by a plaintiff may ground an application for indemnity costs. In that case the plaintiff was entitled to party/party costs in consequence of proving the defendant's liability for negligence, quantum having been agreed, but sought indemnity costs on the basis that he had before trial offered to accept a lesser sum than the agreed quantum to settle the action. It was held by the trial judge that the defendant's rejection of the offer was not unreasonable so as to warrant an award of indemnity costs. The Court of Appeal upheld that decision.
In this case the defendant is not seeking indemnity costs, rather that the plaintiff pay its costs, or at least be deprived of costs. Each of these consequences is a considerably less serious sanction than an order that the plaintiff pay the defendant's costs on an indemnity basis.
As I have noted, O 66 r 1(2) expressly empowers the court to depart from the general rule by depriving a party of costs where their conduct or a claim by the party for an unreasonably excessive amount has resulted in costs being unnecessarily or unreasonably incurred.
It seems to me therefore that while some assistance may be drawn from the authorities dealing with applications for costs, including indemnity costs, on the basis of an unreasonable rejection of a Calderbank offer, the discretion to depart from the general rule in this case is found in O 66 r 1(2).

First offer

The first offer was made by the defendant in person when the settlement of the plaintiff's workers' compensation claim was reached. There was an exchange of email correspondence that included offers and counteroffers. The email correspondence has been evidenced. The relevant emails are marked 'without prejudice'.
The defendant's offer was not stated to be 'without prejudice save as to costs'. It did not state that it would be relied upon, if not accepted, in support of an application for the costs of taxation. For these reasons it does not amount to a Calderbank letter and thus remains privileged.

Second offer

The defendant's second offer, made by its solicitors, was for $5,500 plus a disbursement of $1,891.45. It was made on 19 August 2022 in acknowledgement of and response to the plaintiff's bill of costs for taxation served by letter of 10 August 2022. It was expressed to be a final offer. It did not stipulate a time for acceptance but was sent 11 days before the appointment for taxation. It was, by necessary implication, open for acceptance until the taxation appointment unless withdrawn or countered. It concluded:
If our client's offer is not accepted and your client's costs are ultimately assessed to be $5500 or less, this letter will be relied upon to dispute any orders sought by your client for our client pay the costs of, and incidental to, the assessment.
In my view, the terms of the letter put the plaintiff on notice that if she did not recover more on taxation than was offered, the defendant's liability for the costs of the taxation would be disputed. The intended costs consequence of non‑acceptance was clearly expressed.
The defendant relies on the offer to deprive the plaintiff of the costs of the first taxation, the application for review of taxation pursuant to O 66 r 53, and the application for review by a judge pursuant to O 66 r 55 on the basis that the total of the amounts allowed on the second taxation was less favourable than the amount of the offer. Put in terms of O 66 r 1(2), the defendant's position is that the plaintiff's conduct in not accepting the offer has resulted in costs being unreasonably or unnecessarily incurred.
The first taxation was set aside on the grounds of an error in principle, thus necessitating the second. Ordinarily, costs would follow that event and the plaintiff would recover her costs. The question then is whether the defendant's second offer of $5,500 plus the undisputed disbursement of $1,891.45, in the form of a Calderbank letter, can be found to be more favourable to the plaintiff than the likely outcome of the second taxation, and if so, whether that should enliven the court's discretion to depart from the general rule.
In my view, because the offer was made in terms that reserved the right to rely upon it in relation to the costs of taxation it qualifies as a Calderbank letter and is thus not subject to without prejudice privilege. It was open to the defendant as the only means available to do so, the action having been concluded by consent judgment, to protect itself from the costs of taxation by making an offer that was expressly intended to put the plaintiff at risk of not recovering the costs of taxation if it were not accepted. Such offers are commonplace.
I am satisfied in the circumstances that the defendant's offer is a relevant consideration when it comes to determining the costs of the second taxation. It is a well-established practice for parties liable for costs to protect themselves from the costs of taxation by making Calderbank‑type offers, there being no other means of doing so provided by the rules of court. For the reasons given by Murray J in Dobb v Hackett to which I referred at [49] there is a public interest in encouraging the achievement of reasonable and timely settlements. The quantum of legal costs is perhaps the most predictable subject of litigation given the applicability of costs scales and the particular knowledge and experience of taxing officers.
Was the offer more favourable than the result of the second taxation? The offer was made after the bill of costs was lodged. The plaintiff therefore would be entitled to an allowance for drawing the bill (scale item 32(a)). This was initially claimed at $495 being for one hour's work by a senior practitioner. The plaintiff should be confined to that claim. So, based on the allowances for items 1 ‑ 5 made in the second taxation ($4,174.50) and allowing $495 for drawing the bill, the plaintiff would have recovered $4,669.50. The fees payable on taxation for an individual are $313 plus 2.5% of the amount at which the bill is drawn. On taxation, the ad valorum component is calculated on the amount allowed. The plaintiff would therefore have recovered $434.74 ($318 plus $116.74). This gives a total result of $5,104.23, which is about $400 less than the offer. That is a notional result, but as reliable an estimation as can be made in the circumstances of this case.
The question, applying the Calderbank principles, and for the purposes of O 66 r 1(2), is whether the plaintiff's failure to accept the offer resulted in costs being unreasonably or unnecessarily incurred. Had the plaintiff accepted the sum offered she would have been better off. She would have avoided the costs of the first taxation and the subsequent application for review. Those costs were unnecessarily incurred.
There should be no order for costs in respect to the taxation before Deputy Registrar Harman (scale item 32) or the application for review made pursuant to O 66 r 53.
The remaining issue is with respect to the application for review by a judge pursuant to O 66 r 55 filed on 1 December 2023. By the time that application was filed the defendant had made its third offer.

Third offer

The third offer was for $10,000 inclusive of disbursements. As mentioned, it was made by letter from the defendant's solicitors on 14 September 2023. Although the words 'save as to costs' do not follow 'without prejudice', it is clear from the terms of the letter that it is an offer to settle all costs issues alive at that date and that the defendant intended to rely on the offer (if not accepted) to support an application for costs by the defendant in the event that the plaintiff did not achieve a more favourable outcome on taxation. (Although the letter states an intention to apply for indemnity costs, that application has not been made.)
The letter meets the requirements of a Calderbank offer and is therefore not privileged. In view of my ruling with respect to the costs of the appeal it is necessary only to deal with the costs of the O 66 r 55 application. That application was conceded by the defendant. Yet, had the third offer been accepted it would not have been necessary for the defendant to respond to the application and the hearing on 14 December would have been avoided. The offer affords grounds for an order that the plaintiff pay the defendant's costs of the application.
The application however was occasioned by an error that the defendant ultimately conceded. The defendant was unduly focussed on the irregularity of the appeal rather than the substance of the plaintiff's contention. It could have conceded the error at an early stage thereby obviating the necessity of an O 66 r 55 application that I find the plaintiff in all the circumstances was entitled to bring without being placed at risk of costs.

Conclusion

The orders that follow from these rulings are:
1.The plaintiff do pay the defendant's costs of the appeal herein from the decision of Deputy Registrar Harman dismissing the plaintiff's objections to taxation, including the directions hearings on 19 September 2023 and 6 December 2023, to be taxed if not agreed.
2.There be no order for costs with respect to:
(a)the plaintiff's attendance at the appointment for taxation on 30 November 2022; and
(b)the plaintiff's application pursuant to O 66 r 53 for review of taxation by the taxing officer.
3.The defendant do pay the plaintiff's costs of the plaintiff's application pursuant to O 66 r 55 for review of taxation by a judge, excluding the directions hearing on 6 December 2023, to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DC
Associate to Judge Staude
5 DECEMBER 2024