Yorkshire v The Baptist Union of Western Australia Inc - [2025] WADC 32

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   YORKSHIRE -v- THE BAPTIST UNION OF WESTERN AUSTRALIA INC [2025] WADC 32
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   ON THE PAPERS
DELIVERED          :   9 JUNE 2025
FILE NO/S:   CIV 3804 of 2021
BETWEEN:   THELMA JEAN YORKSHIRE
Plaintiff

AND

THE BAPTIST UNION OF WESTERN AUSTRALIA INC
First Defendant

THE STATE OF WESTERN AUSTRALIA
Second Defendant

CHILDREN AND COMMUNITY SERVICES MINISTERIAL BODY
Third Defendant

Catchwords:

Practice and procedure - Taxation of costs - Review - Taxation of costs under item 32 of the Scale

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Jurisdiction for review not established

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Maurice Blackburn
First Defendant	:	Solomon Hollett Lawyers
Second Defendant	:	State Solicitor for Western Australia
Third Defendant	:	State Solicitor for Western Australia

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

Nil

DEPUTY REGISTRAR HARMAN:

Taxation under the scale of costs establishes the extent to which both fees are generated by services provided under a common law retainer and recovery is available under an order for costs.
By such an order the plaintiff is entitled to recover a reasonable amount for each service necessarily provided for the purposes of the action. An amount that is reasonable is determined by reference to the standard that the service had been provided efficiently by a competent practitioner.
For some services the scale specifies either a fixed amount or 'an amount that is reasonable in the circumstances'. For others, it provides that a determination be made by application of an hourly rate. Most of the items and parts of items specify the maximum limit of the discretion of a taxing officer and the factors by which it was calculated.
In the context established by an order, the extent of recovery under such an item or part of an item is determined at a point between a nominal amount and the maximum. The service, the context in which it was provided, and the standard may suggest either a result or a range of results. The point within or conceivably beyond the range that the amount recoverable is determined would be assessed after reflecting upon submissions.
Where an amount claimed is significantly beyond such a range, over the course of submissions a beneficial party will commonly draw upon the method by which the Legal Costs Committee determined the maximum: the product of an arbitrary period of time and an hourly rate. Such a submission presents an opportunity to focus on the standard and reflect upon features of the 1996 determination of the Committee.
The determination introduced what the Committee characterised as a new scale of costs. The changes introduced by the new scale permitted scope for increased quantum assessments for all but one part of an item. Some features of the new scale assist in assessing the impact of other parts of the determination.
Firstly, one part of one item and the ad valorum component for another were each deleted and a total of six parts of three items were added; secondly the basis for determining quantum for the item 'pre‑trial conference' changed; and thirdly, each statement of the scope of discretion in assessing quantum for the majority of items and parts of items was differently expressed.
To elaborate upon the deletions, the ad valorum component had been for the service 'getting up case for trial'. The part of the item deleted was preparation for pre‑trial conference.
Viewed in the context of taxation under an order, prior to 1996, time costing had not then been available for any service or part of a service rendered in circumstances where the adverse party could not at least monitor the period of time devoted to its provision. Upon recovery for pre‑trial conference being added to the category of services to which time costing applied, the part of the item for preparation was deleted.
All that needs to be said in relation to the second feature is that pre‑trial conference had previously been one of the majority.
To elaborate upon the third feature, the majority of items and parts of items of the former scale had specified a range within which a taxing officer would make a determination. By the new scale each range was replaced by a maximum amount and the factors by which it had been calculated. By expressing a maximum, implicitly a range of some dimension would be established. As the context in which the scale operates is one in which the datum for assessment of quantum is a nominal amount and as the scope for recovery had increased, in effect the change established by the third feature was that the range previously expressed had been extended at each of its limits.
The significant consideration that emerged upon introduction of the new scale was that each feature could readily be accommodated within then current taxation practice. As actions frequently endure for longer than the period between versions of the scale, accommodation of change is a feature of taxation practice.
By way of overview, other than to the extent that it provided scope for increase in quantum determinations, application of the new scale presented no reason to change the method of taxing any item or part of an item other than for pre‑trial conference.
In introducing the new scale of costs, the Committee proclaimed that in the main, the costs of legal services are calculated by reference to time reasonably spent in their provision at a reasonable hourly rate and that the rate would depend upon the seniority of the service provider and the complexity of the work.
Prior to the 1996 determination, 3 of 58 items or parts of items specified time costing as the method for assessing quantum. There was no other reference to time in the scale. The majority of the balance of 55 items and parts of items specified either a fixed amount or a range. Accordingly, it is unlikely that the preponderance of the calculations to which the Committee referred by its proclamation had been made in the process of taxing bills of costs under either an order or a common law retainer. That leaves the prospect that they had been made under agreements between practitioners and their clients that provided for time costing.
It is open to consider that such agreements would not refer to any particular service and that the calculations made under those agreements would be undertaken to account for activity and for consideration given to the subject of the agreement. Taxation under such agreements is undertaken accordingly.
By contrast, identification of discrete services, the features of those services and their provision in the context of an action are central to the process of taxation according to scale.
It is open to consider that by the phrase 'the costs of legal services' the Committee had drawn from the context established under agreements that provided for unqualified time costing rather than taxation according to scale.
Because none of the changes introduced by the new scale either displaced or added any process of assessment, there is no reason to consider that in applying the scale the proclamation had any work to do.
It may be that the proclamation speaks to the choice made by the Committee in adopting the methodology applied in undertaking its task.
The Committee stated that expressing the factors by which the maximum amounts had been calculated addressed a difficulty presented to a court upon an application for a special order for costs.
In the process of addressing that difficulty, the Committee provided three illustrations, only one of which presents the prospect that an application for a special order for costs would be considered.
The other two illustrations engage time costing with services the subject of two items of the scale. According to one illustration a taxing officer is engaged in the process of assessment.
As each of the two illustrations suggest nothing more than the opportunity to multiply a given period of time by an hourly rate, it may be that despite the reference to items of the scale, the illustrations more closely reflect the context projected by the proclamation rather than one in which the standard and the scale are prominent.
Be that as it may, the significant consideration is that neither of the two items of the scale the subject of the illustrations specifies that quantum be assessed at hourly rates. Prior to 1996, one had specified a fixed amount, the other a range. By the new scale each states a maximum and the factors by which it had been calculated.
The issue presented but not addressed by the two illustrations is whether in taxing a claim, an hourly rate be applied where the relevant item or part of an item does not specify that method of assessment.
Prior to the 1996 determination, in the context of recovery under an order, it can be concluded with a sufficient measure of confidence that taxing officers had not done so. That conclusion is informed by the fact that in taxing according to scale, time costing was an exceptional method of assessment then available for three services, each of which would have been rendered in the presence of the adverse party.
Although taxing officers were then familiar with time costing, in taxing according to scale there had been no reason to consider that the mechanism had broader application.
The new scale introduced little change to the scope for application of time costing. Two of the parts of items added to the scale specified that time costing applied and for pre-trial conference time costing had been substituted for a range.
Had it been intended that by the 1996 determination time costing be introduced for the majority of the items and parts of items, it is appropriate to consider that the Committee would have so provided, as it had done for pre-trial conference. In that instance it deleted the minimum and the maximum and thereby the range and substituted an hourly rate.
Because the two items the subject of the illustrations had not specified that an hourly rate be applied, there would be no reason for a taxing officer to look beyond the range established between a nominal amount and the maximum in order to make an assessment of quantum.
There is no reason to consider that the illustrations somehow qualified the process of determining quantum for items and parts of items of the new scale.
The illustrations are revealed as suggesting that time costing be undertaken in circumstances where nothing more than the suggestions themselves would account for doing so.
The illustrations are located in a part of the determination that expressly relates to a context other than taxation. According to that part of the determination, specification of the factors by which the maximum had been established had been exposed to inform consideration of an application for a special order for costs.
Over the period since the 1996 determination applied, there has been no reason to consider that the illustrations had established the proposition that an hourly rate would be applied in taxing an item for which the corresponding item of the scale does not so provide.
That conclusion is informed by the fact that to date 13 subsequent determinations have been issued by which the number of items and parts of items for which time costing is specified has steadily increased to 22 of a total of 81. Over the same period, use of the phrase 'an amount that is reasonable in the circumstances' has also been extended. The increase in the number of each demonstrates that from time to time the Committee has considered how the assessment of quantum for discrete services be undertaken.
Whilst the illustrations may provide a measure of support for the submission commonly made by beneficial parties, considered in context they do not provide a sufficient foundation for the proposition that time costing be applied other than where the scale so specifies.
In assessing the amount recoverable for a service, the method by which a maximum fee was established for a service has no significance. The maximum is nothing more than the limit of a taxing officer's discretion.
The following observations illustrate appropriate results in accordance with standard imported by an order. The first is that the elaborate pleading of a personal injury claim resulting from a motor vehicle collision will not attract a higher fee than a sufficient pleading of the same cause drawn from the same context. The second is that in accordance with the standard, the fee that is reasonable for a service is assessed by reference to the service, not to the service provider. Accordingly, there should be no discount because the maximum was established by reference to a classification of practitioner other than the service provider.
It is commonly said of the 1996 determination that it established the era of time costing. There is no doubt that the illustrations introduced a focus on time costing and that the 1996 determination commenced a period of expansion of items of the scale that provided for time costing, however neither establish time rated recovery for items of the scale that do not specify that an hourly rate be applied.
The plaintiff's bill of costs was taxed. She has filed a notice of objection to the amount recoverable for each of the services drawing and taxing the bill.
The scale provides that recovery for each of those services be 'an amount which is reasonable in the circumstances'.
According to the submissions of the plaintiff, each claim had been calculated in accordance with a process of time costing and it was on that basis that recovery was sought.
The history of amendment of the scale reveals that in 1999, when each provision was introduced, for a bill it was substituted for a maximum along with the factors by which it had been calculated and for taxation, for an hourly rate.
There is no reason to consider that in the process of assessing quantum for a service for which the scale does not provide recovery at an hourly rate, time devoted to the provision of the service should be determinative.
Other than by the common law test and the standard it imports, a taxing officer is unconstrained in approaching the task of assessing the amount that is recoverable for the provision of each service.
Other than the services to which the objections refer, the bill presented items for the writ, the pleading and particulars, discovery, inspection, entry for trial, pre-trial conference, mediation, preparation of case, advice on evidence and copying, along with 12 disbursements. On an overview, the bill was unremarkable for an action that was concluded by mediation after it had been entered for trial. As a bill in an action founded upon the particular cause of action, it was unremarkable. There was no reason to consider that the task of drawing the bill would present itself otherwise to a solicitor with conduct of the file.
In the hands of such a solicitor, it is appropriate to consider that drawing the bill would engage reflection upon the cause; the extent and complexity of the issues generated by the close of pleadings; and the extent to which the services specified by the bill had been provided. Although it is open to consider that such reflection may have extended to the proposition that a close relationship may be established between the scope for recovery provided by the order and activity undertaken, ultimately the solicitor is taken to be aware that recovery would be limited by the scale, the test and the standard.
The practitioner that provided each of the services had not previously had any involvement with either the file or the action. The practitioner had been engaged to undertake an investigation of a volume of material for the purpose of presenting and taxing the bill.
Although provision of each service by the practitioner may somehow have been justified by the plaintiff; it ought to have been obvious that engagement of a practitioner with no knowledge of the action or the content of the file would generate inefficiency in their provision and thereby the question whether the additional cost would be recovered under the order.
As for the bill, the appropriate result would be no different to that which emerges in any other circumstance where a practitioner other than a solicitor with conduct of the file undertakes generation of a document. It is probably unnecessary to draw the analogy, but there is some resonance with the proposition that after engaging alternative representation, a beneficial party would struggle to recover the cost of a recently appointed practitioner familiarising themselves with the content of a former solicitor's file and the action.
By engaging the practitioner and claiming for the practitioner's time, the plaintiff has sought to burden the defendant to the extent that the practitioner became acquainted with landscape familiar to the solicitor with conduct of the file.
Although the terms of the relevant item of the scale specify recovery of 'an amount which is reasonable in the circumstances'; to the extent that the circumstances were accounted for by engagement of the practitioner, the result should not enhance either the scope or the measure of recovery.
The less significant but nonetheless remarkable observation to make in relation to the bill is that it has been burdened by two unnecessary features. One is that the hourly rates charged by all practitioners that had some engagement with the file have been provided. That detail was not required in the bill. It would be appropriately provided at taxation at the point that the beneficial party advanced submissions in relation to any item for which recovery is had by time costing and then be limited to the provider of the relevant service. The second is that the bill included a schedule of the tasks associated with preparation of the case. The practice of this court is that such information be advanced by submission at taxation. A schedule is only required for actions commenced by originating summons.
The scope of recovery for taxation includes preparation. The extent to which preparation establishes part of the service is informed by an objective assessment.
As an aside, since 2006, time costing has not been confined to services provided in the presence of the adverse party.
In the process of drafting the bill, the solicitor would identify the features of any service for which submissions ought to be presented at taxation. The process of taxation did not reveal a level of complexity sufficient to justify much significance to the task of preparing for taxation. In the hands of a solicitor with conduct of the file, taxation of the bill would justify recovery for a limited scope of preparation.
Assessment of the amount recoverable for taxation did include a portion for preparation but not to the extent undertaken by the practitioner. In effect, recovery was had for preparation by the measure that would have been recovered had the service been undertaken by a solicitor familiar with both the action and the services provided to the plaintiff. The rationale for that approach to assessment is that the plaintiff has an entitlement to recover for preparation established by the order but only to the extent of the standard.
The fee claimed for a service by a bill of costs is the challenge that the beneficial party establishes for itself at taxation.
The context established upon taxation provides the opportunity to reflect the measure of success of the beneficial party. The expression 'an amount which is reasonable in the circumstances' admits the proposition that an objective assessment of each service may include the measure of success achieved by the beneficial party by reference to the claims presented by the bill. The prospect that the costs associated with taxation may not have been generated had the claims been reasonable, projects one end of a spectrum.

It is a fair assessment that the result of taxing the majority of the claims presented by the bill had been that a significant proportion of amounts claimed had been taxed off. On a rough assessment, the total of the fees claimed had been reduced by one-third.
In determining the quantum of each relevant fee, a taxing officer would be informed by experience since 1999 in taxing bills of similar dimension and composition where resolution of an action had been achieved prior to trial; the significance of the task of attending to recovery of costs; whether taxation has revealed any intricacy in the action or some other ground to suggest complexity in undertaking each task; the dimensions of each service; and the extent of success at taxation.
For drawing the bill, the plaintiff claimed $6,864 and recovered $1,500. Accordingly, $5,364 was taxed off the claim. For taxation, of the $4,290 claimed, the plaintiff recovered $1,875. Accordingly, $3,125 was taxed off.
Upon reflection during the process of preparing these reasons, the amount recovered for the bill is more than is warranted by an amount of $200.
The issue raised by the notice goes to the quantum of each amount assessed as recoverable. Jurisdiction to review is provided by O 66 r 53(1) of the Rules of the Supreme Court 1971 (WA). Because by reference to the terms of an objection, the rule establishes a limited scope of jurisdiction, the first task is to consider whether the objection is within the scope of the rule.
Rule 42(1) distinguishes professional fees and items. In accordance with r 42(1) the phrase 'item or part of an item' used in r 53(1) refers to a service or part of a service specified by the scale and thereby a claim for that service or part of that service in a bill. The scope of jurisdiction established by r 53(1) is limited to alleged errors made in determinations that relate to items or parts of items. It follows that the scope of jurisdiction to review is limited to determinations made in relation to services or parts of services.
An error in allowing or disallowing an item or part of an item could only emerge upon application of the first part of the test of recovery: that of necessity for provision of a service or any of its constituent parts.
By the terms of the objection the plaintiff characterises each result as an allowance. After determining each amount recoverable the result was recorded in accordance with convention by taxing off part of each amount claimed. What remained of each claim was not an allowance, but rather the amount recoverable for the service. In the other context to which the scale applies, the determination would have been of the fee.
In taxing each of the items, no contest had been raised in relation to the provision of either service or any constituent part. Accordingly, by default, to the extent that each service had been provided, recovery for the bill and each part of the process of taxation was allowed.
As the test of necessity was not applied to either the bill or to either part of the process of taxation, no objection raised by either party could fall within the scope provided by r 53(1).
If it is considered that r 53(1) does provide scope for review of each quantum determination, the terms of the notice of objection reveal that the plaintiff is wedded to the proposition that time costing ought to have been applied.
In the hands of a competent solicitor with conduct of the file, provision of the services would be regarded as straightforward. That consideration informs the standard by which what is reasonable is assessed. Where time costing applies, it is primarily the service provided, not the service provider that determines the rate of recovery.
It is interesting that the plaintiff proposes that the tasks undertaken warrant recovery at the maximum rate for the time of a senior practitioner.
The allocatur will be signed accordingly.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
TA
Court Officer
9 JUNE 2025