Legal Practice Act 2003 (WA), s 123, s 124

Legal Practitioners Act 1893 (WA), s 77

Rules of the Supreme Court 1971 (WA), O 66 r 55(2)

1 TEMPLEMAN J: This is a chamber summons by a legal practitioner for a review of the taxation of his bill of costs, pursuant to O 66 r 55 of the Rules of the Supreme Court 1971 (WA). The matter comes before me because the practitioner is dissatisfied with the taxing officer's review of the taxation under r 54, objections having been made to that taxation under r 53.

2 Order 66 r 55 entitles a party who is dissatisfied with the certificate of a taxing officer as to any item or part of an item objected to under r 53, to apply to a judge in chambers for an order to review the taxation as to that item or part of an item. Order 66 r 55(2) provides:

The Judge, if of opinion that the taxing officer has made an error in principle may thereupon make such order to rectify the error as the Judge thinks fit.

3 It is therefore clear that a review is concerned only with the question whether there has been an error in principle.

4 The background to the matter is that the party charged was a client of the practitioner, to whom the practitioner rendered an account. The party charged asked for a taxation, as she was entitled to do, albeit out of time. An extension of time was granted by the taxing officer and the practitioner duly produced his bill of costs. He did so in accordance, broadly, with the form suggested in a notice to practitioners under the hand of the Acting Principal Registrar on 20 October 2005: see Seaman, Civil Procedure in Western Australia [7730]. Paragraph 4 of that notice refers to a schedule in a bill which should set out various general heads of work performed in respect of the scale item, the amount of time spent on each head and the amount allocated to each head. The notice goes on in relation to the schedule:

It should not take the form of a breakdown of each and every piece of work performed in respect of an item in the bill and the cost thereof and nor is it appropriate to attach to a bill a computer printout of time spent on any item in the bill. Overly detailed schedules should be avoided.

5 The bill followed the approach set out in the notice and listed various charges under the relevant items in the Legal Practitioners (Supreme Court) (Contentious Business) Determinations of 2002 and 2006.

6 At the taxation, which took place on 5 June 2007, the taxing officer had before him a computer printout of the practitioner's time sheets and two similar computer printouts of time sheets produced by the party charged, these having been provided to her by the practitioner.

7 The total bill was in an amount of $29,329.45 and was allowed at $12,688.17.

8 Following the review by the taxing officer, three items remain in contention. The first is getting up case for trial, which was charged at $16,568.25, but allowed at, I think, either $8,138 or $8,430.25. It is not entirely clear which, but that does not matter for present purposes.

9 Secondly, objection is taken to the disallowance by the taxing officer of amounts charged in relation to work carried out by a clerk. It is common ground that the clerk in question was an articled clerk. Finally, there is an objection to the disallowance by the taxing officer of a charge of $1,815 for drawing the bill of costs.

10 The taxing officer gave reasons for his decision on the review. In par 6 of his reasons he said:

Both at the taxation and on the review, counsel for the party charged put counsel for the practitioner to strict proof of the work done and the allowances claimed.

11 The taxing officer then said that the practitioner's time sheets for all work done had been produced, one set by the practitioner and two by the party charged. As I have already mentioned, the two time sheets produced by the party charged were those she had received from the practitioner.

12 In par 11 of his reasons, the taxing officer referred to the submission made by counsel for the practitioner that reliance should not be placed on the time sheets but that 'an objective standard should be imposed'. Against that, as the taxing officer went on to say in par 12, counsel for the party charged submitted that where hard evidence was available it should be relied on: he reiterated the submission that it was for the practitioner to propound the bill.

13 The taxing officer said he did not consider that he had erred in principle in accepting the available evidence in preference to some objective standard as to what might have been done in determining the appropriate allowances under the item. A little later in his reasons the taxing officer said it was inappropriate to seek to apply some hypothetical standard to overcome a lack of supporting evidence.

14 In my view, that was the correct approach, given that the practitioner was put to proof of the work he had carried out.

15 In par 24, the taxing officer dealt specifically with item 12 of the bill, which was the item relating to getting up for trial. The taxing officer said:

It is said that I 'erred in not confining himself in his consideration of the time sheets/matter transaction reports relied upon by the practitioner (attachment "A") but rather was distracted/unduly influenced by a matter transaction/billing reports which were not adduced by the practitioner but were attachments to affidavit of the party charged ... ' I do not understand the objection - all of the reports were prepared by the practitioner and purport to be time recordings of work done in the practitioner's office for the party charged. The reports were not able to be reconciled by counsel for the practitioner and it was for this reason that I found them unhelpful and lacking in credibility. The time sheets produced by the party charged were attached to affidavits filed in the proceedings by the party charged. I do not accept that they were unavailable for comparison with the time sheet produced on behalf of the practitioner.

16 It is accepted by counsel for the practitioner this morning (who did not appear on the taxation), that the various reports could not be fully reconciled. However, counsel submits that the taxing officer erred in principle in rejecting the time sheets in their totality. Counsel submits that there had to be a rational reason for rejecting the time sheets and that there should have been some attempt made to at least allow charges reflecting, as counsel described it, the lowest common denominator; that is, charges relating to time which was recorded in each of the records, even though there were times recorded in some records which were not recorded in all of them.

17 I do not accept that submission. The time sheets themselves do not prove that work was done for which it was appropriate to charge. The time sheets are clearly a business record. They show, I assume, that time was spent in relation to specific work carried out for the party charged. However, they do not prove that time was spent, nor the reasonableness of the amounts charged.

18 The taxing officer was, I think, fully entitled to come to the view that because counsel for the practitioner was unable to reconcile the time sheets, they could not be trusted. It was entirely a matter for the taxing officer, to decide what weight he placed on the materials and whether or not he regarded them as credible. There is no error in principle in conducting the taxation on that basis.

19 The onus was on the practitioner to propound his bill. He was therefore required to prove that the amounts charged were appropriate in the circumstances. If he was unable to do that through time sheets which the taxing officer did not regard as credible, then it had to be done by reference to the file and such evidence as might have been given by the practitioner at the taxation.

20 (Although not strictly relevant to this review, I am told by counsel for the party charged - who was present at the taxation - that the taxing officer dealt with the matter by reference to the file. That is, of course, a perfectly appropriate way of proceeding. There is no error in principle there.)

21 Within the items relating to getting up, there were a number of charges for work carried out by an articled clerk. Some of that work was carried out while the Legal Practitioners Act 1893 (WA) was in force. Because the practitioner was put to strict proof of his bill, he would only have been entitled to charge for that work if he proved that it was carried out under his supervision.

22 The authority for that proposition is contained in the judgment of the Chief Justice in D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191: in particular at 220 under the heading of Conclusions.

23 The taxing officer said, in par 29 of his reasons:

When asked to show any evidence of supervision of the clerical work counsel for the practitioner was unable to do so. The fact the time is claimed for work done by a solicitor and a clerk in some instances on the same day and in others within a few days is not evidence of supervision of the clerk by the solicitor nor is it enough of a basis on which to draw any inference about supervision. I accept that articled clerks are in a special category in that they are obliged to be supervised by their principals but I do not accept that an obligation to supervise is evidence that supervision took place nor do I accept that traditional notice of the fact that articled clerks are supervised by their principals arises to prove actual supervision by the principal in this case. Section 124(2) of the Legal Practice Act does not remove the obligation of the principal to supervise the work of an articled clerk but as was submitted by counsel for the party charged 'only removes an articled clear from the prohibition against practice of law whilst an uncertificated legal practitioner.

24 Counsel for the practitioner this morning, submits that the Legal Practice Act 2003 (WA), which came into force on, I think, 1 January 2004, changed the position obtaining under the 1893 Act. In s 77(1) of the 1893 Act there is a prohibition against persons 'other than a certificated practitioner directly or indirectly performing or carrying out or being engaged in any work in connection with the administration of law,' et cetera. Section 77(2) says:

Nothing in subsection (1) should be construed to affect paid or articled clerks or certificated practitioners thereby placing articled clerks and paid clerks in the same category, that is, they would require to be supervised by the practitioner and proof of supervision would be required if the practitioner was to be permitted to charge for work carried out by those clerks.

25 Sections 123 and 124 of the Legal Practice Act 2003 are similar provisions to s 77(1). Section 124(2) says that nothing in s 123 (which contains the prohibition) is to be construed as affecting a person doing work under the supervision of a certificated practitioner as a paid employee of the certificated practitioner or as an articled clerk of a certificated practitioner.

26 The point made by counsel for the practitioner here, is that there is a distinction drawn in the 2003 Act between work done under the supervision of a certificated practitioner and work done by an articled clerk of such a practitioner.

27 Counsel emphasises that he is not submitting that this provision relieves the practitioner from supervising the articled clerk. However, he submits that it does relieve the practitioner from proving, in the context of a taxation of a bill of costs, that he supervised the articled clerk in relation to the work of that clerk which is charged in the bill.

28 That is clearly not the position as the taxing officer saw it: and in my view he did not err in principle. That is to say, I respectfully agree with the taxing officer that s 124(2) does not relieve the practitioner of the obligation to prove that the work carried out by the articled clerk was supervised. I therefore see no error in principle in the way in which the taxing officer dealt with item 12 of the bill.

29 The other matter is the drawing of the bill of costs, for which the practitioner charged $1,815. The taxing officer disallowed all of that amount. In his reasons the taxing officer said:

I am of the view that In re National Bank of Wales [1902] 2 Ch 412 applies to drawing of solicitor/client bills in taxable form and specifically does apply to bills prepared pursuant to an order of the Court. I do not consider that any error occurred in the exercise of my discretion.

30 Both the 2002 and 2006 legal costs determinations contain, in item 29 of the scales, an item for drawing bill of costs, copies and service. In other words, the taxing officer has a discretion to allow a practitioner to charge for the preparation of a bill of costs. That therefore relaxes the position set out in In re National Bank of Wales [1902] 2 Ch 412, where Buckley J held that such a cost is never allowed. The existence of a discretion is recognised also in the judgment of Fryberg J in Re Morris Fletcher and Cross' Bill of Costs (1997) 2 Qd R 228, 249 - 250.

31 I can see that in the present case, there may be a question whether the taxing officer did exercise a discretion, having regard to the fact that he applied the National Bank of Wales case. Having said that, I have already noted that the taxing officer said in his reasons that he did not consider that any error had occurred in the exercise of his discretion; suggesting that he did exercise it in the present case.

32 Counsel for the party charged, who has considerable experience in these matters, has informed me that it is often regarded by taxing officers as inappropriate for practitioners to charge for the preparation of a bill of costs requested by a client, because in preparing an itemised bill of costs the practitioner is only carrying out the statutory duty imposed on him by the Legal Practitioners Act.

33 Against that, counsel for the practitioner says this bill was prepared with the leave of the taxing officer, well out of time; suggesting, perhaps, that the preparation of the itemised bill was a more onerous exercise than it might otherwise have been.

34 I referred at the outset of these reasons to O 66 r 55(2) which gives the judge a discretion, if the taxing officer has made an error in principle, to make such order to rectify the error as the judge thinks fit.

35 I find it difficult to say whether the taxing officer made an error in principle: that is to say, whether he did or did not exercise a discretion. But taking the view most favourable to the practitioner and assuming, without deciding, that the taxing officer did mis-exercise his discretion, I would not be prepared to make any different order. That is because it seems to me, setting aside the fact that the practitioner was merely discharging his statutory duty, albeit well out of time and with the leave of the court, the fact that so much was taxed off the bill, the practitioner being unable to justify a very large part of it, militates against permitting him to charge for its preparation.

36 The result must be, for the reasons I have given, that the chamber summons be dismissed.