Klas Pty Ltd v Australian Ophthalmic Supplies Pty Ltd

[2007] WADC 79

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   KLAS PTY LTD -v- AUSTRALIAN OPHTHALMIC SUPPLIES PTY LTD [2007] WADC 79

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   11 MAY 2007

DELIVERED          :   22 MAY 2007

FILE NO/S:   CIV 840 of 2005

BETWEEN:   KLAS PTY LTD (055 829 144)

Plaintiff

AND

AUSTRALIAN OPHTHALMIC SUPPLIES PTY LTD (005 419 107)
Defendant

Catchwords:

Practice and procedure - Review of taxation - Turns on its own facts

Legislation:

Nil

Result:

Objections not allowed

Representation:

Counsel:

Plaintiff:     Mr J Eastoe

Defendant:     Ms M L Coulson & Mr M Fiorenti

Solicitors:

Plaintiff:     Jonathan Eastoe

Defendant:     Frenkel Partners

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

Nil

1. DEPUTY REGISTRAR HEWITT:  I have before me the defendant's objection to a taxation which was in the most part completed on 19 December 2006 and finalised on 30 April 2007.  The objections are as follows:

Getting up

1.The learned Registrar failed to properly exercise his discretion by allowing the claim for getting up in its entirety.  The learned Registrar erred given:

(a)there was no substantial trial;

(b)the entire time spent on getting up was allowed at the hourly rate of a senior practitioner;

(c)the subject matter was that of a simple debt recovery action;

(d)the work undertaken by the plaintiff's solicitor for getting up did not justify the allowance made;

(e)work undertaken by the plaintiff's solicitor regarding amendments to the defendant's defence, is only allowable as getting up when that work is relevant to getting up or preparing for trial.

Counsel fee on brief

2.The learned Registrar failed to properly exercise his discretion by allowing $8,572 regarding this item given there was no substantial trial.

Solicitor attending trial

3.The learned Registrar failed to properly exercise his discretion by allowing an amount for this item given the matter settled prior to the first day of trial and, accordingly, it was not necessary for a solicitor to attend any trial.

1. Dealing with the points sequentially:

   1.The fact that "there was no substantial trial" is not a bar to an allowance for getting up case for trial (O 66 r 21 of the Rules of the Supreme Court).  In fact this case settled on the first day of the trial and was fully prepared for trial.  In those circumstances no error is disclosed.

   2."The entire time spent on getting up was allowed at the hourly rate of a senior practitioner."  The work of getting up the case for trial was performed by a senior practitioner.  Given the tasks which were required to be undertaken and were undertaken and the efficiencies of an experienced practitioner conducting the matter, I considered that the claim was justified by the work and expertise devoted to getting up case.

   3."The subject matter was that of a simple debt recovery action." 

   I find the objection disingenuous in the fact that it chooses to ignore the complexities introduced by the defence and counterclaim.

   4."The work undertaken by the plaintiff's solicitor for getting up did not justify the allowance made." 

   That objection simply is not sustainable and is not a proper objection identifying an error in principle and is at the best a rehash of the various other matters.

   5."Work undertaken by the plaintiff's solicitor regarding amendments to the defendant's defence is only allowable as getting up when that work is relevant to getting up or preparing for trial."

   At this point the defendant is splitting hairs.  When a defendant amends a defence and thereby exposes the opposing party to additional work, that work is recoverable whether it be called getting up or whether it be called something else.  If the work was to be disallowed as part of getting up, it should be reinstated under some other item.  My personal view is that getting up is as convenient a place to park such a claim as any other and I see no reason to disturb the allowance on that basis.

2. Objection (2) concerns counsel fee on brief.  The objection is that I failed to properly exercise my discretion by allowing $8,572 for this item when there was no substantial trial.  Counsel had mastered his brief and attended the Court to conduct the trial.  The fact that the matter was then settled does not strike me as a basis to deprive the plaintiff from the costs properly payable to counsel for his work undertaken mastering the brief.  I do not accept that the lack of a substantial trial necessarily precludes a recovery for the work undertaken for mastery of brief when clearly that has occurred.

3. The final item is Item (3), an allowance for the solicitor attending trial, the objection is that I failed to properly exercise my discretion "by allowing an amount for this item given the matter settled prior to the first day of trial and, accordingly, it was not necessary for a solicitor to attend any trial".  That statement is not in accordance with my understanding of the facts.  On my understanding the final form of the consent to judgment was settled in the Court and tendered to the Commissioner hearing the trial.  That view is borne out by the fact that a handwritten and much amended consent judgment was prepared and submitted to the Commissioner.

4. I do not accept that the matter had settled prior to that document being presented to the Commissioner and I note that the minute was submitted to the Commissioner approximately one hour after the trial was scheduled to commence.

5. I therefore perceive every reason for the solicitor to have attended trial, indeed his participation was essential if the matter was to be settled since counsel would have no authority to settle the matter himself. 

6. For these reasons I consider that the objections lack merit and I shall, on the issue of these reasons, sign my certificate in the sum of $57,586.11, that being the amount calculated to be due at the taxation.