ZARKOVIC v PATERNOSTER - [2004] WADC 65

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: ZARKOVIC -v- PATERNOSTER [2004] WADC 65

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 21 NOVEMBER 2003

DELIVERED : 13 APRIL 2004

FILE NO/S: CIV 208 of 2002

BETWEEN: LJILJANA ZARKOVIC
Plaintiff
AND
SIMON PATERNOSTER
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation - Order 66 r 53 of the Rules of the Supreme Court of Western Australia - Claims for pleading, particulars, getting up - Acceptance of O 24A offer

Legislation:

Rules of the Supreme Court of Western Australia, O 66 r 53

Result:

Review unsuccessful

Representation:

Counsel:

Plaintiff: Mr S V Forbes
Defendant: Ms C H Meighan

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Talbot & Olivier

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff's claim in the action was for damages for personal injury sustained as a consequence of an accident involving a motor vehicle in which she was a passenger. The claim was compromised prior to trial dates being allocated. As part of the compromise the plaintiff is entitled the reasonable cost of services necessarily provided by her solicitor for the purpose of conducting her case.
The defendant has objected to certain determinations made in the process of taxing those costs.
The first part of the defendant's objection relates to the claim made for the statement of claim. The only determination made in relation to that claim was as to quantum. That is, as to the reasonable cost of the relevant services. There had been no contest as to the services themselves. Accordingly, however the objection is framed it can only go to quantum.
The most significant consideration is that a taxing officer's jurisdiction to review taxation is not unlimited but is expressed in the terms of O 66 r 53 of the Rules of the Supreme Court of Western Australia as follows:
"A party who contends that a taxing officer has made an error in principle in allowing and disallowing any item or part of an item in the Bill of Costs taxed by him may …"
In my opinion the jurisdiction provided by the rule is limited to allegations of error made in determinations that respond to the application of the test of services. That is, the necessity of their provision. No other determination could result in the allowance or disallowance of an item or any part of an item.
Otherwise the rules do not provide for review. I consider that silence to be something more than evidence of the ongoing oversight of those responsible for framing the rules. Order 66 purports to be a complete code; the concepts of allowance or disallowance of an item or its parts and any other determination made at taxation are distinguishable; the term "error in principle as to the allowance or disallowance of an item" does not sit comfortably with a determination made in relation to quantum.
Be that as it may, I recognise that Judges have reviewed quantum determinations. I understand that the jurisdiction so to do emerges because it is considered to be desirable that it does. I also understand that the test of whether such a determination reveals an error of principle is whether it is considered that no taxing officer acting reasonably could have made the determination in question.
In my opinion the defendant's notice is insufficient. Nonetheless I will respond in order to provide relevant reasons for the decision.
The statement of claim sought to put the issue of liability beyond dispute and presented a case for the assessment of damages. The significant features of the process that might not be obvious were the accurate identification of the cause of action the subject of the claim (there being no indorsement) and that the particulars provided an accurate reflection of the pleaded case.
At slightly less than 3 pages in length, at least as judged by modern standards, it was relatively short for a personal injuries claim. It is evident that in composing the document consideration had been given to the scope of the plaintiff's injuries and symptoms, which range from concussion to neck injury and pain and restricted mobility in the shoulders, arms and hands. The particulars set out a case for recovery for pain in the plaintiff's chest, back, right buttock and right knee. They also refer to depression, post‑traumatic stress disorder, poor concentration, disturbed sleep, excessive sweating and palpations. They include detail of medical treatment and continuing and permanent disability. Claims were made for special damages, loss of earnings and loss of voluntary services.
The objection is expressed in the following terms:
"The defendant submits that the taxing officer erred in principle in allowing $700 for this item as the taxing officer did not adequately consider:
1.which practitioner/paralegal, if any, actually prepared the statement of claim bearing in mind that it is the defendant's solicitors' understanding that the statement of claim was prepared by persons who are paralegals, i.e. not legal practitioners;
2.the time spent by the practitioner/paralegal on the preparation and/or settling of the statement of claim;
3.the appropriate level of practitioner to perform work of this sort that is not complex in nature;
4.the absence of complex legal issues or questions of fact (Thorpe v Vlavianos (unreported, WASC, Wallwork J, 9 June 1998, Lib No 980313);
5.the fact that the preparation of statements of claim in actions of this nature is standard practice for the solicitors for the plaintiff;
6.the simple and straightforward format of the statement of claim;
7.the likelihood that the statement of claim was generated from a precedent document;
8.the extent of the similarity of the statement of claim with the statement of claim prepared by the solicitors for the plaintiff in District Court Civ No 2625 of 2002 and the likelihood that a process of duplication would have been used to produce the statements of claim in both of these actions;
9. the totality of the amount allowed to the plaintiff on account of the preparation of the likely duplicated statements of claim, being a total of $1,400.
The defendant submits that the amount allowed for this item was not reasonable having regard to the services provided, the simple nature of the action and all of the other circumstances."
What may constitute the error or errors contended for by the defendant is not immediately apparent. It seems to me that the defendant contends that inadequate consideration of each of the matters listed had an impact on the determination of quantum and that implicitly adequate consideration would have had a different impact. By the terms of the notice I am unable to appreciate either the extent of that inadequacy or what would be the impact of any different consideration of the matters canvassed on the result. I would hazard a guess that it is unlikely that the measure of the difference would be likely to satisfy the test that no taxing officer acting reasonably could have arrived at a determination at something in the order of one-quarter of the maximum.
It may be that the error contended for is put at the concluding submission. If that is the case, it does not actually contend for error, simply, implicitly, a different result. The process of review is not to the end of conducting another taxation. Simply because the defendant has gone to the trouble of filing what he refers to as an objection does not provide jurisdiction to review. Recourse to the available jurisdiction depends upon the objecting party filing a sufficient notice.
Paragraph 1 includes the statement that it is the defendant's understanding that services were provided other than by a practitioner. It resonates with similar comment made elsewhere in the notice. Whilst such an understanding may provide a useful datum for the adverse party to test the taxing party's case at taxation, where it seeks review it is obliged to formulate a notice which expresses a reviewable error, not simply to speculate. If the defendant is unable to do any better, as much as he may be considered to be disadvantaged, it might also be considered that it was not appropriate to speculate.
Otherwise at pars 1 and 2 the defendant simply suggests that inadequate consideration was given to the identity of the service provider and the time spent by the service provider.
In relation to par 2, I infer that the defendant may consider that the taxing officer would determine the time actually spent in providing the services represented by the pleading. In the context of taxing costs under the usual order, the jurisdiction of the taxing officer is limited to determining the reasonable cost of services necessarily provided. As much as in undertaking that assessment the taxing officer would not be interested in the actual cost there is no reason to embark upon the exercise of seeking to evaluate whether the quantum claimed by the beneficial party could be justified whether on the basis of time spent or otherwise.
The same analysis applies to par 3. The taxing officer is not concerned with the identity of the service provider only the reasonable cost of the provision of the relevant services. The defendant recognises as much at the concluding submission: ultimately the value of the services represented by the claim is determined on the pleading itself. I have no difficulty with that proposition. It is fundamental to a determination of the extent of the entitlement created by the usual order for costs.
If the point raised on a combination of pars 1, 2 and 3 is in essence that the taxing officer ought to be satisfied that the practitioner in drawing the bill and promoting it at taxation has been honest then I suspect that he has failed to appreciate that it is more a matter of proper expectation than satisfaction. It is appropriate for the court to accept that in their interactions with the court, practitioners act in accordance with the responsibility accorded by the privilege extended to them.
At pars 4, 5 and 6 the defendant submits that inadequate consideration was given to the level of complexity evident on the pleading.
It is probably a fair comment that the only complexity in the task set for the plaintiff lay in ensuring that the particulars were both adequately expressed the limitations of the claim and were comprehensive. That said, of itself the provision of any pleading is a significant task that involves reflection, the integration of facts and the logical articulation of a case. It stands as the primary document in the action. Its creation engages with a significant degree of responsibility. In my opinion neither the quantum claimed nor that determined suggest a measure of complexity. Given the choice I would not have referred to the concept at all in describing the pleading.
As to par 5, it is of no consequence that the plaintiff's solicitors may have constructed many such pleadings. Personal injuries cases are such a common feature of litigation that most practitioners would properly be taken to be familiar with current pleading practices that respond to the requirements of the substantive law. However, simply because the plaintiff chose a solicitor with such familiarity does not mean that an otherwise reasonable amount should be discounted. On the proposition put by the defendant recovery for all personal injury litigation would be discounted.
The defendant concludes by referring to prospect that the pleading was generated from a precedent, that it was prepared by the same person who prepared a similar pleading for the driver of the vehicle in which the plaintiff was a passenger and that taking into account that prospect, the extent of recovery for the pleading will be to the tune of $1,400.
As to the first prospect, I suspect that at some level he is probably right. Even if a standardised document was not utilised or such a format followed, in all probability the service provider did not approach the task on the basis that he was reinventing the wheel.
As to the second, I took it as accepted that the statement of claim in action 2625 of 2002 was drawn after the statement of claim in this action.
As to the third, I gather from the terms of the objection that the statement of claim returned to the plaintiff in that action an amount of $700.
I suspect that the ground is either ill considered or inelegantly stated. The plaintiff did not recover $1,400. It may be that the plaintiff's solicitor has recovered that amount for the services provided to different plaintiffs in different actions. The gist of the defendant's contention is that I did not adequately consider that the result of my determination in this case would be that the defendant has been required to meet costs to the extent of $1,400 for two pleadings. In my opinion had I reduced the amount that otherwise I would have determined in light of the extent to which a different plaintiff made recovery in another action, I would have erred.
In my opinion the listed matters reveal no more than that the defendant does not accept the determination. Although the objection expressed in the notice is more extensive the balance was abandoned at the review.
The next determination the subject of the review relates to the claim made by the plaintiff for answers to the defendant's request for further and better particulars.
The plaintiff claimed $597. That claim was not reduced as a result of the taxation; the limit of the taxing officer's discretion was $900. Perhaps I will state at the outset that in making the determination I would not have arrived at a figure of $597. At the point of recording my determination I simply saw no reason to interfere with the claim that the plaintiff had made. It is fair to say that my assessment was either that the service was either worth more or that there was no good reason to make any adjustment because the determination was so close to the claim. It might not come as a surprise that the assessment of reasonable quantum is not taken at least by taxing officers to be an exacting science.
The first part of the defendant's objection is as follows:
"The defendant submits that the taxing officer erred in principle in allowing $597 for this item by reason that the taxing officer failed to give adequate weight to the need for the plaintiff to plead the particulars of loss and damage in the statement of claim rather than requiring the defendant to request those particulars.
It is submitted that this would have been the prudent course for the plaintiff to have taken in an action in which damages are the only matter in issue."
It seems to me that although the quantum determined is expressed to be the subject of the objection, if the objection has any validity then the issue raised really goes to the allowance of the item. Accordingly, there is jurisdiction to deal with the objection.
Prior to the Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996 there was no item under which a claim might be made for the provision of particulars. It was my understanding that under the regime that existed prior to 1996, any claim for the provision of particulars was properly incorporated in the claim for the relevant pleading. And so one could understand that in circumstances such as this, under that regime the adverse party would put the proposition that the scale was intended to have a moderating influence upon the process of pleading such that parties were encouraged to provide particulars with their pleading. I would hope that in making the 1996 Determination the Legal Costs Committee had considered and accepted views against that proposition.
According to the terms of the statement of claim, the plaintiff intended to provide further particulars. That does not alter the fact that the particulars the subject of the claim were provided in response to a request. Significantly the request was not simply for the particulars foreshadowed in the pleading by which presumably the plaintiff would have limited her claim. Rather it was a response by the plaintiff to a request for specific information by the defendant. It is conceivable that even if the plaintiff had provided the particulars foreshadowed in the pleading that the defendant would have issued the request in the same or similar terms. For the defendant to have done so would not necessarily have reflected on the sufficiency of the particulars pleaded.
Once the request issued the plaintiff was required to somehow respond. She chose to provide the particulars or information sought. Presumably thereby she provided the defendant with what he required and what he understood would come at a cost in the event that the plaintiff succeeded in the action.
Because either the defendant or the taxing officer may consider that it would have been more prudent, desirable or even fair for the plaintiff to follow a different course is irrelevant. The plaintiff is free to make an assessment as to the extent to which particulars will be provided at any given time. The fact that the defendant might contend that he would have taken a different course and perhaps included the particulars in the pleading is neither here nor there. I am not assessing the case that implicitly the defendant suggests he would have put.
The test of recovery for services provided is whether they were necessarily provided. Had I disallowed the claim then in my opinion I would have erred in principle.
The second part of the objection is as follows:
"It is further submitted that the taxing officer erred in principle in not requiring the solicitors for the plaintiff to provide proof of the level of practitioner, if any, who prepared the plaintiff's answers and in not considering the appropriateness of the level of that practitioner, if any; bearing in mind that it is the defendant's solicitors' understanding that the plaintiff's answers would have been prepared by persons who are paralegals, i.e. not legal practitioners."
I have already commented in relation to the unfounded understanding. I might add that the objection reveals an interesting contrast in the view of the defendant as to the position of the parties at the different stages of the taxation. Implicitly he suggests that the plaintiff ought to have provided proof of certain matters in circumstances where she carried the onus, yet when the onus is on the defendant all that he presents is an unfounded understanding.
The defendant is silent as to whether no proof or what he considers to have been inadequate proof was provided by the plaintiff. If that silence allows for the perception that he sought to have the taxing officer exercise power to require proof and the taxing officer refused to do so, that was not the case. That leaves the implicit proposition that the taxing officer ought to have required proof as a matter of course.
I have been taxing costs for some 15 years. It is fair to say that this is the first occasion that I have come across the proposition that anything other than service needed to be proved at the taxation of a party and party bill. I accept that the current taxation practice whereby parties simply make submissions in relation to costs is not founded upon any principle or rule. It follows that it may be that no party is bound by that practice. Be that as it may, the parties were each represented. They each made such submissions. If either party wished to put a case including as to the sufficiency or appropriateness of the process there was no impediment to following that course.
I would need to be persuaded that the practice generates any responsibility on the part of the taxing officer to require a party to follow any particular course in taxing a bill. Otherwise it is a matter of perception. In my opinion a party is free to put a case in any manner that is considered to be appropriate. The course that the plaintiff adopted was unremarkable. She chose to do so on the basis of the usual practice. That did not preclude the defendant from seeking to follow some other course. There is no suggestion that he sought to do so. In the absence of any such suggestion it was not unreasonable to assume that the parties were then content to follow that practice. What is remarkable is that having had the opportunity and after the event the defendant has chosen to register a protest.

I accept that a taxing officer has the power to require proof of matters at taxation. That does not mean that it is appropriate to dictate that the parties not follow the usual practice. I am comfortable with the role of the court being to adjudicate rather than to interfere in decisions made by parties as to how to run their cases.
It seems to me that the defendant has not established a proper basis for the taxing officer to require the plaintiff to prove anything.
None of the above is intended to deny the defendant's legitimate expectation that the plaintiff would be in a position to present a case for the extent of attention given to the request upon its receipt and the particular activities undertaken in response to it including consideration of the ability of the plaintiff to provide the particulars sought at the time requested, any difficulties associated with responding to the terms by which the particular requests were framed and how the plaintiff may appropriately respond.
The next component of that part of the objection is that the taxing officer erred in making a determination as to quantum without considering the appropriateness of the level of practitioner who provided the service.
I might be wrong, but I suspect that reason for the proposition being put is that nothing was taxed off the claim. That was not because I considered that the claim made was justified by whatever the plaintiff may have submitted but rather because on my own assessment of the case. My task was to determine the reasonable cost of the service. Whether the plaintiff could somehow have justified her claim would only have been a matter of interest. If somehow the defendant intended to express the prospect that the result indicates consideration was not given to the test of recovery, I will leave that for others to judge.
By reference to the level of practitioner, the defendant hints at but makes no commitment to the proposition that the plaintiff seeks to recover at say senior practitioners rates when someone other than a senior partitioner provided the service. In the context of taxing under the usual order for costs it is not the role of the taxing officer to conduct an assessment of the taxing party’s claim. The claim is not the datum for assessing what is reasonable.
That is not to suggest that in drawing a claim the practitioner for a party is not constrained. Although at common law the practitioner may not then have generated an account there is a significant responsibility to ensure that the recovery sought is for no more than the cost of the provision of the service. To claim otherwise would amount to a dishonest act and be in breach of the duty owed to the court. It is appropriate for the court to consider that the beneficial party has pitched a claim between what it considers to be the reasonable cost and the actual cost of the provision of the service. It is self evident that all things considered, the reasonable cost could never exceed the actual cost.
Even if a senior practitioner had provided the service, bearing in mind the limited scope for recovery it would not be surprising to find that in drawing the bill, rather than seeking to recover actual costs the claim would be made for what was considered to be reasonable.
The objection concludes with a broadly expressed submission that the amount allowed for the item was not reasonable having regard to the failure of the plaintiff to plead particulars of loss and damage in the statement of claim, the lack of complexity in the answers provided by the plaintiff.
I am not sure that that general submission advances the defendant's case any further. In particular, the prospect that the defendant would contend that the level of complexity demonstrated by the answers does not justify the result is not matched by my view of the answers. They are detailed and in the nature of things such detail involves some degree of complexity at least in the process of ensuring that the particulars rendered in the response to the terms of the defendant’s request are consistent with the pleading.
The subject of the next objection is the quantum determination for getting up the case for trial. It was pitched at $12,995.56 and was considered along with the claim which had been expressed as "Inspection and giving inspection" for $99. In effect the combined claims for what amounted to getting up case for trial was $13,094.56. The result of the taxation was that the plaintiff recovered $12,400. The terms in which the objection is expressed are as follows:
"The defendant submits that the taxing officer erred in principle in allowing $12,401 for this item by reason that the taxing officer:
1.did not require the solicitors for the plaintiff to present proof of the tasks actually completed by way of getting up;
2.did not require the solicitors for the plaintiff to provide proof of the level of practitioner, if any, who completed each task claimed by way of getting‑up bearing in mind that it is the defendant's solicitors' understanding that almost all, if not all, of the tasks were carried out by persons who are paralegals, i.e. not legal practitioners;
3.did not require proof from the solicitors for the plaintiff of the time spent by the practitioner/s on the tasks claimed under this item;
4.did not assess the appropriateness of the fee earner who performed the work claimed under this item;
5.did not appropriately assess the work claimed to be done by way of getting‑up and its necessity;
6.did not adequately consider the simple nature of this matter in deciding what is a reasonable claim for getting‑up (Thorpe v Vlavianos (unreported, WASC, Wallwork J 9 June 1998, Lib No 980313);
7.placed undue weight upon the number of medical reports prepared in relation to this matter without requiring proof of the time spent in perusing those reports or proof of who perused them;
8.did not place adequate weight upon the defendant's submission that in circumstances where damages are the only matter in dispute the maximum amount claimable for this item is $23,475, such that the plaintiff had claimed more than half of this amount for an action which did not even proceed to a listing conference and in which counsel had not been briefed, witnesses had not been proofed, witnesses had not been subpoenaed, there had been no conferences with counsel and, inter alia, there had been very few court documents prepared;
9.did not appropriately compare the simple nature of the action, the amount in issue and the amount and nature of the work performed (Craig and Ors v Troy & Ors [2000] WASC 74 at [37] per McKechnie J) as against the most complicated of Supreme Court actions for which the maximum amount allowable under this item is reserved when deciding what was a reasonable claim for getting‑up;
10.gave undue weight to the plaintiff's solicitors submission that the matter was complicated by the plaintiff not understanding English. The defendant should not be liable to pay any greater amount then is usual on account of such a difficulty;
11.gave undue weight to the plaintiff's solicitors submission that an amount of $7,500 included in the plaintiff's claim for getting‑up was the amount at which the solicitor/client bill in this matter was taxed. The amount allowed for getting‑up for the solicitor/client bill was $2,541.38 the rest comprising solicitor/client costs and disbursements.
It is submitted that the amount allowed for this item was not reasonable having regard to the simple nature of the action, the fact that only damages were in issue, the limited services provided by the solicitors for the plaintiff, the fact that the matter settled prior to proceeding to a listing conference and taking into account all of the other relevant circumstances."
As to the particular issues canvassed by the defendant's objection at the review the defendant withdrew from par 5 the words "and its necessity". Thereby the only issue raised by the objection on those grounds goes to the quantum determination.
The scale expresses the maximum range of the discretion of the taxing officer at $23,475 and so the plaintiff's recovery was slightly more than half of the maximum. According to my note of the information provided at taxation the plaintiff and the driver of the vehicle had been proofed and 17 different medical practitioners had provided 37 reports. Those reports displayed differences in the assessment of the plaintiff’s capacity for employment. The plaintiff had a short working history in Australia. She had been engaged as a physiotherapist's assistant in Serbia but at the time of the accident was engaged as a cleaner. There were language difficulties in communicating with the plaintiff and the claim was sufficient to warrant a compromise in the order of $100,000.
Of those factors in my opinion the least significant are the quantum of the compromise and any difficulty in communication. I will leave it for others to judge whether no taxing officer acting reasonably could have made the determination in relation to quantum.
I have already commented in relation to other objections expressed in similar terms to the majority of the paragraphs.
As to par 8, I do not agree with the defendant that the matter had not progressed to a listing conference. That was the next step to be taken in the action. I do not know whether it was the plaintiff's intention to brief counsel. It is conceivable that she would have been the only "lay" witness.
As to par 9, I have no difficulty whatsoever with the comment attributed to McKechnie J. In my opinion it undermines whatever case that the defendant seeks to put along the lines expressed at pars 1, 2 and 3.
In relation to par 11 both at the taxation and upon review the fact that the plaintiff had changed solicitors and that the former solicitor had taxed a solicitor and client bill was canvassed by the parties.
In my opinion it is misleading for the defendant to portray the plaintiff's case as being that the amount paid by the plaintiff to her former solicitor was included in the claim for getting up case for trial. That was not the plaintiff's case. Reference was simply made to the fact that there had been a taxation and the result.
I recall the file had been transferred from the former solicitor prior to the issue of the writ. Whilst it is conceivable that work undertaken by the former solicitor was utilised for the purposes of getting up the case for trial, patently in performing that work the former solicitor was not getting up the case for trial.
Perhaps the best I can say about my approach is that there a proper distinction to be drawn between the service "getting up case for trial" and mere activity that may be no more than ancillary to that process.
The defendant proposes that undue weight was given to what in my opinion was nothing more than information provided by the plaintiff. I know that I did not receive the whole of the information provided to the officer who taxed the solicitor and client bill. I have no difficulty in making a commitment to the fact that regardless of the amount of information provided to me, properly considered, it would have been of no utility.
The last determination the subject of objection is that which relates to the assessment of the quantum of the claim for acceptance of the offer of compromise for which the plaintiff claimed $626 which claim was not reduced as a result of the taxation. That is the maximum recoverable for the item under the scale.
The terms of the objection are as follows:
"The defendant submits that the taxing officer erred in principle in allowing $626 for this item given that:
1.the reasonableness of any offer made by the defendant would have been considered by the solicitors for the plaintiff and discussed with the plaintiff and/or counsel prior to and during the pre‑trial conference;
2.the offer that was accepted by the plaintiff was only $8,371.05 more than the highest offer made by the defendant at the pre‑trial conference such that any additional consideration and discussion required in relation to the amount offered after the pre‑trial conference would not have been extensive;
3.the taxing officer placed undue weight upon the submission made on behalf of the plaintiff that the process was complicated by the fact that the plaintiff did not speak English. The defendant should not be required to pay a greater amount than would be usual because of this difficulty.
It is submitted that the amount allowed by the taxing officer was not reasonable given the services provided, the repetitive nature of those services and all of the other relevant circumstances."
I assume the defendant contends that the amount determined was too much.
As for par 1, it canvasses the services rendered in the context of the pre-trial conference. The defendant does not actually contend that the fact that such services were so rendered precludes recovery under item 4(d) of the scale.
As for par 2, it is no more than that because an offer of 10 per cent less had been made some 6 weeks earlier meant that additional consideration given in response to the offer would not have been extensive.
There must be some doubt about whether under an order for costs of the action a party in receipt of an offer under O 24A is entitled to recover other than under item 4(c) at all. Other related services are not necessarily provided in the course of an action. In this case there was no issue taken by the defendant with the allowance the claim under item 4(d) either at taxation or now by way of review. Under what may be no more than a construct of the parties making it is a matter of considering what services would be recoverable by the plaintiff under item 4(d).
It seems to me that the quantum of the maximum expressed in the scale as the limit of the taxing officer's discretion indicates that recovery would be available for considering and responding to a proposal, rather than simply the mechanical step of filing a document accepting or rejecting the offer made. In my opinion it would be appropriate for the taxing officer in making an assessment of the services relevant to the item to reflect on the need for the party to appreciate the context in which the offer is made, its substance and the consequences of any response.
In all probability it would have been fairly easy to understand the thrust of the offer regardless of how it was expressed. I probably do not need to say much in relation to the other aspects, as it is not apparent that any issue is taken with them. Indeed I suspect that in all probability the only issue taken is really with quantum in the form of what the defendant would portray as being repeated or replicated work by the solicitor. It is a matter of considering the impact of past relevant discussions on a later process.
A significant part of the costs generated in an action arise under the item getting up case for trial. Because a case may be seen as developing over time whether in response to changed circumstances or otherwise it is easy to see that significant relevant services are undertaken and perhaps repeated from time to time during that process. Obvious illustrations are provided by the dynamic relationship between proofing and "advice on evidence" and "assessment of the case". Under the usual order for costs it is appropriate to import into consideration of what is reasonable for such components a measure of efficiency simply because to do otherwise would promote inefficiency and thereby the prospect of oppression. The important consideration for present purposes is that such a mechanism properly has the effect of limiting recovery within the context of an item. In this instance any such efficiency contended for by the defendant would operate across two items.
The defendant appears to contend that either the services were rendered so close in time or in relation to such similar offers that there should have been a discount for that part of the item represented by the response that related to consideration of the substantive part of the process. In my opinion there is no proper basis to consider that the mechanism that applies within an item in order to respond to efficiency properly acts across items. I would go so far as to say that it ought not. If consideration of the same or similar issues is properly considered to be part of a subsequent process then it ought not be disallowed or discounted.
Otherwise to the extent that the defendant contends that some familiarity with what was relevant to a consideration of the offer ought to be taken into account I suspect that the defendant has missed the essential point. Unlike all other items in the scale the cost is generated not so much by the objectively necessary work provided by the practitioner but rather what it takes to produce the result in the form of his client’s response to the offer.
It seems to me that the proposition put by the defendant might be reduced to something that approximates the proposition that the plaintiff was informed of the offer and the relevant transaction was little more than the plaintiff indicating that she would accept that figure.
Contrary to that proposition I was informed that two hours had been devoted to the interaction between the practitioner and the client in attending to the task presented by the defendant's offer. The relevant item in the scale does not provide for time costing. Nonetheless I considered that if two hours had been devoted to the task then it was reasonable to assess that the transaction was more complicated than the defendant would contend that it might have been. The determination made does not reflect an assessment made by time costing but it does reflect my opinion that on the basis of the submissions made by the parties, including what is now recycled as the defendant's objection, that the claim was worth the maximum. I will leave it for others to judge whether in the circumstances the result was such that the defendant has established jurisdiction on the basis that no taxing officer acting reasonably could have arrived at that determination.
As to par 3, I am not sure that I placed much weight on the language difficulty at all. I was not in a position to do so as I not familiar with the dimensions of that difficulty. Even if there had been no such difficulty, in all probability everything else being equal, the result would have been at least close to the maximum. As to the proposition that costs should be limited to the usual case I disagree. The plaintiff is entitled to recover the reasonable cost of services provided to her in the action, that is, to her, not some notional plaintiff.
The defendant fails in the application for review and the plaintiff is entitled to the costs.