Wilson v Total Corrosion Control

[1999] WADC 91

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   WILSON -v- TOTAL CORROSION CONTROL [1999] WADC 91

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   10 AUGUST 1999

DELIVERED          :   4 OCTOBER 1999

FILE NO/S:   CIV 4228 of 1994

BETWEEN:   MAURICE BERNARD WILSON

Plaintiff

AND

TOTAL CORROSION CONTROL
Defendant

Catchwords:

Practice - Western Australia - Taxation of costs - Objections - Relevance of O24A offer.

Legislation:

Nil.

Result:

Objections disallowed.

Representation:

Counsel:

Plaintiff:     Mr A Burgio

Defendant:     Ms V Millard

Solicitors:

Plaintiff:     Hoffmans

Defendant:     Freehill Hollingdale & Page

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

Nil

Case(s) also cited:

Nil

1. DEPUTY REGISTRAR HEWITT:  This matter relates to my taxation of the plaintiff's bill of costs on 10 August 1999 to which the defendant has taken a number of objections.

2. The basis of the plaintiff's right to a taxation stemmed from a consent judgment which was entered on 30 March 1999.  The terms of that judgment were as follows:

   "…

   (a)The defendant do pay to the plaintiff $30,000 (in addition to previous payments made by the defendant to the plaintiff pursuant to the Workers' Compensation & Rehabilitation Act) plus the plaintiff's costs to be taxed."

3. Objections 1 to 7 concern my failure to take into account the fact that a s24A offer was made in September 1998 by the defendant in the same terms as the eventual judgment. Order 24A, r5 of the Supreme Court Rules provides:

   "Where an offer is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains judgment on the claim to which the offer relates not more favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim up to and including the day the offer was made, taxed on a party and party basis, and the defendant shall be entitled to an order against the plaintiff for his costs in respect of the claim thereafter, taxed on a party and party basis."

4. In response to that line of argument, I simply refer to the terms of the consent judgment which was entered between the parties.  That judgment entitles the plaintiff to the costs of the action.  There is no basis upon which I should, as suggested by the objection, disallow the plaintiff any portion of the costs of the action.  Furthermore, if the argument advanced by the defendant is correct not only would the plaintiff not be entitled to the costs from the date of the offer but the defendant would be entitled to payment of its costs from that date.  Clearly that outcome does violence to the terms of the consent judgment.

5. Objection 8 is in the following terms:

   "The learned Deputy Registrar erred in failing to take into account, when allowing getting up, what proportion of the plaintiff's getting up costs were incurred between 25 September 1998 and 30 March 1999 and specifically erred in his calculation for allowing getting up of:

   (1)$3,000.00 from the time of the issue of the writ on 6 July 1994 to the entry for trial on 18 June 1997 (the majority of which being under the previous Costs Scale) and

   (2)40 hours at $250.00/hr or $10,000.00 thereafter because:

   (a)at the time of entry for trial, the plaintiff ought have been ready for trial and the majority of his getting up ought to have been done.  In reality, this was not the case as the plaintiff sought to amend his pleadings and to bolster his case when the medical evidence did not and have never supported his cause of action;

   (b)undue weight was placed on the plaintiff's assertions of the work done thereafter; and

   (c)there was a failure to appreciate that the plaintiff's assertions of work done thereafter included all of the plaintiff's costs up to the date of judgment."

6. At the taxation separate allowances were made for the work prior to and subsequent to the present scale coming into effect.  The allowances made reflected my assessment of the work which was undertaken under the relevant scales.  In my view it is not appropriate for me to base a decision on when the work of getting up as the defendant puts it, "should have been done".  My enquiry was as to what work was done and when it was done, and my decision was based on the information obtained from that enquiry.

7. Although the defendant objects that "undue weight was placed on the plaintiff's assertions of the work done after the entry for trial", in the absence of detail of exactly what assertions are relevant to the objection it is not possible to further consider that proposition.

8. As to the balance of the objection it relates to the O24A point with which I have dealt in the earlier part of this decision.

9. For these reasons the objections are disallowed.  I shall sign my certificate upon the issue of these reasons.