Supreme Court of WA|2002-05-28|Before: Ms P, Mrs P

B W Duckham & Co v Robert John Thompson (A beneficiary of the K Stammers Family Trust) [2002] WASC 127 (28 May 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : B W DUCKHAM & CO -v- ROBERT JOHN THOMPSON (A beneficiary of the K STAMMERS FAMILY TRUST) [2002] WASC 127

ROBERT JOHN THOMPSON (A beneficiary of the K STAMMERS FAMILY TRUST)

1 MASTER BREDMEYER: This an application by the practitioner dated 24 April 2002 for orders that the affidavit of Mrs P M Edward sworn 28 March 2000 filed in these proceedings be removed or portions of the same be struck out. The chamber summons does not refer to a particular rule, but I am told the application is under O 37 r 7 of the Supreme Court Rules which provides that the Court may strike out from an affidavit any matter which is "scandalous, irrelevant, or otherwise oppressive".

2 The affidavit of Mrs Edward of 28 March 2000 was before the taxing officer, Registrar Martin, when she made the following certificate:

"I HEREBY CERTIFY:

(a) that the amount of $63,520.25 paid by the party charged in respect of the bills being the subject of this taxation exceeds the amount of 39,562.85 allowed on taxation by $23,957.40; and

(b) that the practitioner is liable to pay the said sum of $23,957.40 to the party charged who may enforce payment in the same manner in every respect by execution attachment or otherwise, as if it were a judgment of the Supreme Court for the payment of the said sum."

3 Mr Duckham has applied to the same taxing officer to have her certificate amended and that has not yet been heard. In support of that application, Mr Duckham has filed an affidavit of 27 November 2001, and, in opposition, Mrs Edward has filed an affidavit sworn 1 May 2002.

4 Mrs Edward's affidavit of 28 March 2000 is a very brief one annexing a letter she wrote of 18 November 1999 to Mr Duckham, some bank accounts and a series of legal accounts issued by Mr Duckham, many of which have the word "PAID" written across them in handwriting. Mrs Edward's letter of 18 November 1999 is a long one and it comments on various taxed bills of costs issued by Mr Duckham against the party charged totalling $63,520.25. In a letter dated 12 December 2000 from Mr Duckham to Mrs Edward, which is attached to his affidavit of 27 November 2001, he points out what he says are a number of errors in Mrs Edward's letter. For example, he says that of the 16 legal bills mentioned which total $63,520.25, one of them dated 9 August 1996 relating to a Margaret River property, has not been taxed.

5 He points out a second error. He says that he has checked those 16 bills against the bank statements attached to Mrs Edward's earlier affidavits and, from that analysis, it is clear that one bill has not been paid from that account. That bill is 9 August 1996, Margaret River $1,055.40. He concludes his letter by inviting Mrs Edward to rectify this error with the Registrar and to consent to the issue of an amended certificate with an appropriate order as to costs. I comment that if that was done, the taxing officer's earlier certificate would be amended and the amount payable by Mr Duckham would be reduced by $1,055.40.

6 I do not see Mrs Edward's affidavit as containing material which is irrelevant, vexatious or scandalous. If it is inaccurate in the ways outlined in Mr Duckham's letter of 12 December 2000, that can be corrected by other evidence. If Mr Duckham is right, for example, in saying that one of those bills was not taxed, then he can give evidence on that. He can produce his file. He could call on the other side to produce a taxation certificate in relation to that bill. If, as he asserts, one of the accounts has not been paid, then the lack of a debit entry in the bank account supports that. If the party charged can show that it has been paid, perhaps from another account, then evidence of that payment could be led.

7 Mr Thorpe, for Mr Duckham, would like his application to have the affidavit struck out, referred to a Master at a special appointment to rule on its admissibility. Mrs Edward, on the other hand, wants the matter to go back to the Registrar so that the Registrar can hear and determine Mr Duckham's application to amend the certificate. I consider that Mrs Edward's submission is correct for a number of reasons. A taxing officer has a wide discretion as to the evidence he will receive. He is entitled to receive all "necessary papers and vouchers" (O 66 r 37). He is entitled to call for the solicitor's file and to peruse it carefully. The strict rules of admissibility of evidence which are appropriate for a trial do not necessarily apply on a taxation. A good description of the taxing officer's duties in this regard is set out in Pamplin v Express Newspapers Ltd [1985] 2 All ER 185, a judgment of Hobhouse J. The taxing officer is well able to decide these disputed questions of fact on the papers that will be put before her and it will not be necessary for her to strike out any affidavits. I do not consider it necessary for a Master to hear this application on its merits.

Practitioners Act 1893

B W Duckham & Co v Robert John Thompson

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B W Duckham & Co v Robert John Thompson (A beneficiary of the K Stammers Family Trust) [2002] WASC 127 (28 May 2002)

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