Zaffino v Western Power Corporation

[2006] WADC 170

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   ZAFFINO -v- WESTERN POWER CORPORATION [2006] WADC 170

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   21 SEPTEMBER 2006

DELIVERED          :   19 OCTOBER 2006

FILE NO/S:   CIV 744 of 2004

BETWEEN:   ALDO ZAFFINO

Plaintiff

AND

WESTERN POWER CORPORATION
Defendant

Catchwords:

Practice and procedure - Review of taxation of costs - Getting up

Legislation:

Rules of the Supreme Court 1971

Result:

Objection disallowed

Representation:

Counsel:

Plaintiff:     Mr P Forbes

Defendant:     Mr I Armeli

Solicitors:

Plaintiff:     Ilberys

Defendant:     Phillips Fox

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

Nil

Case(s) also cited:

Nil

1. DEPUTY REGISTRAR HEWITT:  On 21 September 2006 I taxed the plaintiff's bill of costs in this action.  At the conclusion of the taxation I held open my certificate to enable either party bring in objections if they chose to do so.

2. I am now in receipt of the defendant's objections dated 3 October 2006 in which objection is made to one of the items allowed on the taxation.  That item is item 14 for which $30,000 was claimed and allowed.  The objection is:

   "That the plaintiff was allowed the entire amount claimed, which was near the maximum pursuant to item 16, when there was no evidence provided by the plaintiff to support the amount claimed or to allow the defendant to challenge the amount claimed.

   The entire amount allowed is materially excessive given that the matter was not complex, and as liability was not an issue prior to the trial date."

3. The action concerned a man who proposed a bit of do it yourself plumbing in his house and for that purpose came into contact with the copper water pipe on his property.  In doing so he received a very severe electrical shock.  The precise manner in which that shock could have been suffered required considerable investigation and it appears that there were a number of deficiencies in the electrical wiring of the plaintiff's house and neighbour's house and an improper connection of a neutral return at the power pole.  The combined effect of which was to make the return of electricity through both of those houses pass through the water pipes rather than through the correct return wire to the power pole. 

4. I will now deal with the first of the two parts of the objections.  It is simply not accurate to say that evidence was not given as to the amount claimed and indeed I find it somewhat irksome that an allegation of that kind, which alleges something akin to impropriety in the manner in which the taxation took place, should be brought.  In fact detailed examination was made of the tasks which were undertaken by the solicitors for the plaintiff in preparing the case for trial and my notes indicate that I ascertained that a senior practitioner spent something slightly in excess of 60 hours preparing the case for trial, a clerk paralegal spent something approaching 130 hours preparing the case, the case was fully prepared and counsel fully briefed and the matter ready to proceed to trial in all respects.  The plaintiff proposed to call some eight witnesses at the trial and was ready, in my view in all respects to proceed.  The comments concerning the fact that liability was admitted are in my view of no relevance whatever.  The matter was listed for trial in early December and liability was only admitted by an amendment to the defence approximately one month prior to the fixed trial date.  By that stage all necessary preparation on the issue of liability had been undertaken and the concession on liability, coming as it did on the 11^th hour, had no effect on the tasks which were undertaken by the plaintiff.  Indeed it was my impression that it was the work done by the plaintiff, particularly in the provision of expert reports that was probably the catalyst which led to liability being conceded it being reasonably obvious in the light of those reports that the defendant would not succeed in its defence.

5. I now deal with the general proposition that the amount allowed is materially excessive given that the matter was not complex and as liability was not an issue prior to the trial date. As I have already indicated liability was admitted by an amendment to the defence on 17 November 2005 and the trial was listed to commence on 6 December. By the concession of liability no work in getting up was saved and I then held the opinion and still hold the opinion that no deduction for the concession of liability, coming late as it did, should apply to the calculation of getting up costs for trial. As to the balance of the matter in my opinion the matter was complex on a number of fronts including the assessment of quantum and in particular on the issue of causation and the work which was undertaken by the plaintiff's solicitors was commensurate with the difficulties faced by the plaintiff in the action. I was then of the view and still am of the view that an allowance of $30,000 for the case was appropriate. I should further comment that it is difficult to discern a proper objection within the second limb at objection which fails, in my view, to identify an error of principle as is required to found an objection under O 66 r 53 Rules of the Supreme Court 1971.  That rule provides a right of objection when a party contends that the taxing officer has made an error in principle allowing or disallowing any item or any part of a item but does not embrace the proposition that general complaints as to quantum should be entertained.

6. I next deal with the allegation that deficiencies in the manner in which the taxation was conducted prevented the defendant from mounting a challenge to the claims.

7. Certainly the defendant was not effectively represented at the taxation but my impression was that was due to:

   a)The defendant's solicitor had failed to note the taxation date, failed to attend at the correct time and only came after a reminder call and then some 30‑40 minutes late;

   b)The defendant's representative did not have a close knowledge of the file;

   c)The defendant's representative had not prepared for the taxation.

8. For these reasons I am of the view that the objection should not be allowed and I shall sign the bill in the taxed amount namely $58,871.10.