Practice and procedure - Costs - Fixing costs of interlocutory application

Bray v Ryan [1999] WADC 66

Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3

1 COMMISSIONER GETHING: By orders made on 19 January 2012, I dismissed an application for review of a taxation filed by the appellant on 13 September 2011. I ordered that the appellant pay the respondent's costs of the appeal to be fixed and I listed the application for hearing today to fix the costs.

2 A review pursuant to the Rules of the Supreme Court 1971 (WA) O 66 r 55 is a chambers application. The taxation is thus to be governed pursuant to the Legal Practitioners (Supreme Court) (Contentious Business) Determination WA 2010 rather than the equivalent determination relating to District Court appeals (though I note that given the similarities in each cost scale, the result would not have been any different).

3 In the decision to which this order relates, Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3 [24], I set out the principles relating to the taxation of costs. Those principles, as set out in the decision of Bray v Ryan [1999] WADC 66 [37], are as follows:

In the final analysis it is necessary to first, identify what services were necessary in the particular case and secondly, objectively assess a reasonable allowance for such services by applying the Rules, the Determination and the underlying principles thereof and thirdly, measure the amount actually claimed in the bill for the services against the objective assessment in order to determine whether or not the amount claimed is reasonable and what adjustment, if any, should be made.

4 The respondent filed an affidavit by its solicitor, Mr De Vita, dated 12 January 2012, in relation to this costs issue. The affidavit attached a draft bill of costs (at pages 49 and following).

5 The appellant objected to the court proceeding to fix the cost on the basis that the supporting documentation behind the issue of costs was not provided. The fixing of costs is in the discretion of the court. It is an analogous, but slightly different, process to the taxation of costs. The principles, as set out in Bray v Ryan, probably go into a great deal more detail than is ordinarily the case when the court fixes the costs. In the Supreme Court, for example, the Consolidated Practice Direction sets out standard costs orders in relation to interlocutory applications. It is the practice of the Supreme Court to make orders fixing costs in relation to those interlocutory applications based on the standard costs, having heard from counsel in the case.

6 The fixing of costs following a hearing is in the discretion of the court. The key issue, as I see it, is whether or not the court has sufficient information before it in order to determine what the appropriate measure of costs ought to be. In the present case, I am satisfied that I have sufficient information before me to fix the costs.

7 Using the principles in Bray and Ryan, the first issue for me is to determine what services were necessary in the particular case. The second issue is to objectively assess a reasonable allowance for these services.

8 In my view, in a case like this, it is inevitable that there is going to be work done by an instructing solicitor to position a party to be able to participate in the review. An amount of three hours is a reasonable allowance for such services. This is the amount claimed. It is claimed at an amount less than the maximum hourly rate. I would allow that amount.

9 The second issue is the actual preparation for the hearing. In the present case, an objective assessment of a reasonable allowance for such services would be in the nature of around a half a day for preparation and a half a day for the actual appeal and attendance itself. The claim for counsel in that case is 7.25 hours at $390 per hour plus GST. It seems to me that that is a reasonable allowance for the services of counsel in attending on the matter.

10 In submissions, the appellant raised the fact that there were two counsel in court on 19 January, when the decision was handed down. This was because there were two matters before the court. It would seem to me that allowing time to read the decision, consider its consequences and attend court, an amount of one hour for preparing for and attending the reserved decision is a reasonable amount.

11 The next amount claimed is preparing a draft Bill of Costs at $429. I consider that that is both a reasonable amount and an amount that ought to be granted. There is then an amount of $209 for extracting the order, which I again consider reasonable and grant. And finally, an amount of $429 is claimed, being one hour of the senior practitioner's time, for preparing and attending the taxation (that is, the hearing today). Again, I consider that to be a reasonable amount.

12 So on that basis I will make an order fixing the costs of the review at the amount sought by the respondent. The final amount totals $5,332.25, comprising of:

(a) In relation to scale item 10(a) on pages 49 and 50 of Mr De Vita's affidavit, the amount is claimed of $4,265.25 - I will allow that amount.

(b) For sale item 2 on page 50 of Mr De Vita's affidavit, which is preparing a draft bill of costs, I will allow that at $429.

(c) For extracting the orders from the hearing on 19 January 2012, an amount of $209 is claimed, I allow that.

13 The final issue I need to consider in relation to the fixing of costs is the time for payment. The appellant's submission is that because of her personal circumstances I ought to set a long period of time in which payment is required. I am not prepared to do that. This is because the Civil Judgments Enforcements Act 2004 (WA) provides a regime whereby, among other things, circumstances personal to a judgment debtor can be taken into account by the court in the processes of enforcement of judgments. That is the appropriate mechanism for the sorts of issues raised by the appellant to be dealt with. It is not appropriate to deal with them on an application fixing costs.

14 I propose to make an order then that the costs fixed in the amount of $5,332.25 be paid by 24 February 2012, that is, within 21 days of today's date.