Supreme Court of WA|2001-11-26|Before: Mr J, Hasluck J

Clay v Kurelic [2001] WASC 318 (26 November 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : CLAY -v- KURELIC [2001] WASC 318

Taxation of costs - Application for review of taxation - Breach of rules of natural justice alleged - Whether any error in principle - Use of allegedly privileged document as a voucher - Whether discretionary power to grant relief should be exercised

1 HASLUCK J: This is an application for a review of a taxation of costs by a Judge pursuant to O 66 r 55 of the Rules of the Supreme Court. The question is whether the taxing officer erred in failing to make available for inspection to one of the parties to the taxation, a document which was handed to the taxing officer with a view to substantiating the amount of time involved in an item included in the relevant bill of costs.

2 The matter came before me in the general chambers list as an application made by Mark Gregory Clay. It appears from the title to the proceedings that the application concerns a matter pending before the Full Court. The position is, however, as appears from the affidavit of Mark Gregory Clay sworn 15 December 2000, that the bill of costs in question is referable to an order made by Master Sanderson in chambers on 27 November 2000 in respect of a proposed appeal arising out of Supreme Court action CIV 2388 of 1996. Mr Clay was the plaintiff in those proceedings and I will henceforth call him the plaintiff.

3 I note in passing that, by s 61 of the Supreme Court Act 1935 (WA), in any cause or matter pending before the Full Court, any direction incidental thereto not involving the decision of the appeal may be given by a single Judge. I must say at the outset also that, in order to understand the matter in issue, it becomes necessary to refer to the history of the relevant proceedings. It will then be apparent why the application before me is described as FUL 182 of 2000.

4 The plaintiff is the nephew of Alfred Clay who died on 24 January 1995. On 16 March 1995, probate of the deceased's Will dated 25 July 1987, and a codicil dated 30 November 1988, was granted to the executors named in the Will.

5 The plaintiff is a legatee under the Will and the codicil. The codicil reduced the entitlement the plaintiff would have received under the Will if it stood alone. Against that background, on 10 December 1996 the plaintiff issued proceedings alleging that, as at the date of execution of the codicil, the deceased was not of sound mind, memory and understanding. As I have already indicated, the relevant proceedings were Supreme Court Action CIV 2388 of 1996 in which the applicant for relief, Mark Gregory Clay, was named as the plaintiff and the executors were named as defendants.

6 It follows from this brief description of the matters in issue, that the central controversy was whether the deceased was of sound mind, memory and understanding at the time he executed the codicil. Pleadings were exchanged by the parties and it seems that various interlocutory applications had to be decided along the way.

7 On 14 June 1999, Master Sanderson dealt with a chamber summons by the plaintiff seeking an order for further and better discovery. He held that the further discovery requested was extensive and oppressive in that much of the documentation in question related to the deceased's financial position rather than to the question of capacity. This led to an order that the plaintiff's summons be dismissed with costs against the plaintiff.

8 Master Sanderson also dealt with an application by the second defendant, Marie Kurelic, to strike out further parts of answers to particulars of the statement of claim. Master Sanderson was persuaded to strike out certain parts of the particulars.

9 On 30 August 1999 Master Sanderson handed down a ruling in the relevant proceedings concerning a claim for privilege made by the second defendant over certain documents that the plaintiff, Mark Gregory Clay, sought to inspect. The documents in question were written exchanges between the second defendant and certain medical practitioners. Privilege was claimed upon the basis that the documents were brought into existence for the sole purpose of litigation between the parties. See Grant v Downs [1976] HCA 63; (1976) 135 CLR 674.

10 It seems from the written reasons provided by Master Sanderson, that the plaintiff, Mr Clay, sought to challenge the claim for privilege upon the grounds that as he was a beneficiary under both the Will and the codicil it was not open to the second defendant in her role as trustee to claim privilege. In the event, Master Sanderson held, after a careful review of the relevant case law, that there was no general principle that a document obtained by a trustee when there is litigation as between the trustee and beneficiary must necessarily be discoverable. A trustee who is sued for a breach of trust by a beneficiary and who seeks legal advice in relation to the proceedings could not be forced to disclose that advice.

11 Master Sanderson went on to hold that legal advice taken by the executor should be privileged from production and that general litigation privilege should apply. He therefore upheld the claim for privilege made by the second defendant and was not prepared to order that the documents in question be made available for inspection.

12 It seems that the plaintiff decided to appeal the ruling given by Master Sanderson on the grounds that the case law relied upon by the learned Master was not truly applicable to the probate jurisdiction. In order to bring the matter before the Full Court, however, he was obliged to seek leave to appeal against the interlocutory order in question and to apply for an extension of time in which to obtain the leave.

13 Twelve months after the handing down of the relevant decision, the plaintiff filed an ex parte motion dated 21 November 2000 which was directed to these procedural requirements. This led to all subsequent documents being designated FUL 182 of 2000. I note in passing that by the same motion, the plaintiff sought to have the proposed appeal joined with FUL 179 of 2000.

14 The plaintiff filed in support of his motion, an affidavit sworn 20 November 2000 in which he sought to explain the delay by reference to recent developments in the relevant case law including a ruling in the matter that had given rise to the proposed appeal FUL 179 of 2000.

15 The matters raised by the plaintiff's motion came on for hearing before Master Sanderson. This gave rise to an order by Master Sanderson dated 27 November 2000. The terms of the relevant order are that upon the application of the plaintiff by motion dated 21 November 2000 and upon hearing the parties it was ordered that the application be dismissed and that the applicant/plaintiff pay the respondent's (second defendant's) costs of the application to be taxed.

16 I digress briefly to note that in a lengthy affidavit sworn 15 December 2000 the plaintiff described the course of events at the hearing. He seems to accept that the learned Master explained that the issue under consideration was whether the delay in applying for leave to appeal had been sufficiently explained. The learned Master ruled against the plaintiff in regard to that matter.

17 The second defendant proceeded to prepare a bill of costs for taxation pursuant to the order of Master Sanderson of 27 November 2000. There is no need for me to traverse the full particularity of the bill of costs in question but I note in passing that it included items of the kind allowed for by the scale, including getting up for hearing and counsel's fee on hearing including preparation. The amount claimed in respect of this latter item, that is to say, counsel's fee on hearing, was the sum of $600.

18 The bill of costs came before the taxing officer on Tuesday 11 September 2001 on which occasion the plaintiff represented himself, and the second defendant was represented by Mr Tydde. The taxing officer, being a Registrar of the Supreme Court, subsequently handed down written reasons bearing upon the decision he made eventually to sign the certificate of taxation, in the sum originally taxed on 11 September 2001 of $1,096.75, with an additional amount of $50 to be allowed pursuant to O 66 r54(3). I will draw upon those reasons in seeking to understand the issues brought before me. However, before turning to the reasons, and so that they may be viewed in context, it will be useful to look at various statutory provisions and rules bearing upon the process of taxation.

19 Section 7 of the Supreme Court Act provides that the Supreme Court shall be a superior court of record and shall consist of such Judges and Masters as are appointed from time to time. Section 155(1) provides for the appointment of such Registrars and other officers as may be necessary for the administration of justice and the execution of all powers and authorities of the court. Section 155(2) provides that the Registrars shall be the taxing officers of the court, and shall perform such other duties as may be conferred upon them by or under this or any other Act.

20 Section 16 of the Supreme Court Act deals with the general jurisdiction of the Supreme Court, including its appellate jurisdiction. Section 21(1) provides that, except as otherwise provided by the Act, all jurisdiction shall be exercised, so far as regards procedure and practice, in the manner provided by the Act and by the Rules of Court.

21 It is apparent from the discussion in Seaman: Civil Procedure at par 1.0.1 to par 1.0.12 that a Judge of the Supreme Court is entitled to exercise certain inherent powers for the purpose of facilitating procedure and prevent abuse of process, but such powers are not at large and do not authorise the making of orders excusing compliance with obligations or preventing the exercise of authority derived from statute.

22 The jurisdiction and powers of the court can be exercised by a Registrar or officer as a delegate, but one has to keep in mind that the exercise of delegated power is generally controlled by provisions in the relevant statute or rules allowing for review or appeal on questions of both fact and law.

23 Order 66 of the Supreme Court Rules deals with costs generally and makes provision for the taxation of costs. Order 66 r 3 provides that bills of costs shall be taxed, allowed and certified by the taxing officer. By O 66 r 43, the decision of the taxing officer on all questions of fact shall be final. I note in passing that by O 66 r 36, a party leading a bill of costs for taxation must lodge with the bill vouchers for the payment of all disbursements. It is common knowledge that vouchers will inevitably contain hearsay statements and it is certainly customary for a taxing officer to make determinations of fact and quantum upon the basis of what is put to him or her in the course of debate. Nonetheless, by O 66 r 44, the taxing officer may summon and examine witnesses, direct or require the production of books and papers and exercise all the powers of the Court in relation to the admission of evidence.

24 By O 66 r 53, a party dissatisfied with taxation may object and apply to the taxing officer to review the taxation. By O66 r 55, if a party is dissatisfied with the certificate of the taxing officer he may apply to a Judge in chambers for an order to review the taxation. It is pursuant to this latter provision that the present matter comes before me. I note in passing, that the power to provide relief is discretionary and is broadly expressed. By O 66 r 55, the Judge, if of the opinion that the taxing officer has made an error in principle, may thereupon make such order to rectify the error as the Judge thinks just.

25 All these provisions indicate that the taxing officer is to perform a specific function and specific avenues of redress are allowed where errors on the part of the taxing officer are alleged. These provisions strongly suggest that, in the absence of any specific provision in the Supreme Court Act or in the Supreme Court Rules entitling a Judge to exercise a discretionary power specifically conferred upon the taxing officer, no such entitlement exists. Webb v Malcolm J Bateman & Co, unreported; SCt of WA (Franklyn J); Library No 6305; 27 May 1986.

26 It is against this background that I must now return to the reasons of the taxing officer in the present matter delivered 27 September 2001.

27 The learned taxing officer began by noting that he had been required to tax the respondent's bill of costs filed 24 August 2001 pursuant to the order of Master Sanderson of 27 November 2000, whereby the plaintiff's ex parte motion was dismissed with costs being awarded against the plaintiff. The appointment for taxation of costs was attended by the plaintiff, Mr Clay, in person and by Mr Tydde on behalf of the second defendant (described as the respondent).

28 It seems from the reasons that as debate proceeded concerning the item "getting up appeal for hearing", the taxing officer enquired whether Mr Tydde, as counsel for the respondent, could provide an indication of the amount of time taken in argument before the Master on 27 November 2000 because the court record provided no independent detail.

29 Mr Tydde stated that counsel briefed by him had advised in a letter that the attendance was for 45 minutes. Mr Tydde then passed to the taxing officer a letter from counsel which apparently contained a short sentence confirming the position as to time described by Mr Tydde verbally. It is apparent from the reasons, that the letter also contained reference to other matters of a kind that would generally be confidential as between counsel and the instructing solicitor. The taxing officer's reasons continue as follows:

"Mr Clay requested that he be permitted to inspect the letter. I informed him that the only content of relevance to the taxation and to which I had any regard was the sentence which alleged a hearing period before the Master of forty five minutes. I informed Mr Clay that I had made no determination upon that issue and that my assessment of it would be subject to any submissions or 'evidence' which he may wish to put before me. I returned the document to Mr Tydde without providing it for inspection by Mr Clay.

From my recollection the issue of privilege existing in the document or of any possible waiver was not sought to be formally raised for argument before me.

I did ask Mr Tydde if he was prepared to provide the letter to Mr Clay and he indicated that he was not.

In response to Mr Clay's assertion of a denial of natural justice, I repeated my opinion that the letter had no relevance to the taxation process other than upon the extremely limited issue of the time said to have been spent before the Master on 27 November 2000."

30 The learned taxing officer then went on to say in his reasons that Mr Clay was offered the opportunity to present alternative evidence bearing upon this point. Mr Clay availed himself of the opportunity. He placed some emphasis upon the fact that he had appeared before the Master on the day in question and to the best of his recollection the hearing had occupied no more than 20 minutes. The taxing officer raised with the parties the prospect of providing formal affidavit evidence concerning the matter in issue, but this was not pursued by either party.

31 After taking account of various exchanges between those before him, the taxing officer concluded that on any view of the period in controversy, an allowance of $600, being the amount claimed in the bill, was appropriate for the time which would reasonably and necessarily have been spent by a competent practitioner in preparing for and attending upon the application before the Master on 27 November 2000.

32 The taxing officer went on to say in his reasons that the document viewed by him had no impact at all upon his allowances in the taxation, other than to the extremely limited extent noted in respect of the claim for $600, when considering the issue of the time spent before the Master on 27 November 2000.

33 It seems that, upon completion of the taxation, Mr Clay requested that the taxing officer refrain from executing the certificate to enable him to reflect upon the process, and to consider lodging any objections pursuant to O 66 r 53, that is to say, the rule whereby a party who contends that the taxing officer has made an error in principle as a preliminary to requiring the taxing officer to review the taxation pursuant to O 66 r 54. A letter of objection was subsequently received as a consequence of which the taxing officer undertook the review required of him after taking account of the written submissions of the parties.

34 I pause to note that the plaintiff, by his letter of objection dated 13 September 2001, contended that there had been a breach of rules of natural justice. The second defendant's solicitors, by their written submissions dated 21 September 2001, claimed privilege in respect of the letter handed to the taxing officer and said further that having regard to the long and troubled procedural history of the matter, especially in regard to discovery and the privilege issue, counsel's fee of $600 in respect of the appearance before Master Sanderson on 27 November 2000 was reasonable. Counsel had to be fully conversant with the procedural history of the matter. Counsel had to assume that every point would be hard fought by the plaintiff, and nothing would be conceded.

35 On consideration of the objections and of the submissions, the taxing officer was not prepared to amend any of the allowances and proceeded to sign the certificate of taxation in the sum originally taxed on 11 September 2001 of $1,096.75, with an additional amount of $50 to be allowed pursuant to O 66 r 54(3).

36 The taxing officer said in his reasons that an allowance in total of 3 hours at $200 an hour for consideration by a practitioner of the relevant papers served by the opposing party, analysis of the issues, and to appear in chambers, for at least 30 minutes, could not, in his opinion, on any reasonable approach, be considered to be excessive in respect of the claim for $600 that had been in controversy before him upon the earlier taxation.

37 It was against this background that the plaintiff filed and served the chamber summons that is presently before me dated 11 October 2001. In essence, as I have already indicated, he seeks a review of the taxation pursuant to O 66 r 55. More particularly, he seeks various orders, the effect of which would be first to provide the applicant with access to the disputed document and then to be allowed an opportunity to review the whole or any item of the taxation.

38 Order 66 r 55 provides that if a party is dissatisfied with the certificate of the taxing officer he may, within 14 days from the date of the certificate, or such other time as the Court, or the taxing officer at the time he signs the certificate, allows, apply to a Judge in chambers for an order to review the taxation as to that item or part of an item.

39 The certificate signed by the taxing officer in the present case is dated 27 September 2001, being the date of the written reasons for decision mentioned earlier. Mr Clay contended that the chamber summons, which purports to be dated 11 October 2001, was filed within the prescribed time. I note, however, that the date stamp of the Supreme Court suggests that the document was filed on 17 October 2001 in which event, the document was filed out of time. There was some debate concerning this aspect of the matter at the hearing before me in the course of which I was referred to an endorsement on the Court file suggesting that the summons was filed on 11 October 2001. For present purposes, I will assume that the application for a review was made within the prescribed time, or otherwise extend the time so that the application can be dealt with on its merits.

40 The grounds upon which the plaintiff (or applicant) is said to be entitled to the orders applied for are expressed in this way:

"1. The Respondent having produced the document to the taxing officer and the taxing officer having inspected the document, the Taxing Officer and the Respondent were required by law to produce the document to the Applicant for inspection. The taxing officer had no power to withhold the document and was required to provide the opportunity to the Applicant to make submissions in response to the content of the document as were or might be relevant or appropriate.

2. The authority of Guimelli [sic Giannarelli] & Ors v Wraith & Ors (No 2) [1991] HCA 2; (1991) 171 CLR 592 on this point is binding on the Taxing Officers and on this Court.

3. The refusal to produce the document to the Applicant and provide an opportunity to make submissions in response to its content involved an error in principle in that it was a denial of natural justice tainting the whole of the taxation. Justice must not only be done; it must manifestly be seen to be done."

41 It is apparent from the narrative I have provided that in fact the plaintiff was afforded an opportunity to make submissions in response to the content of the document, if the content of the document be regarded simply as that portion of the document utilised by the taxing officer, that is to say, the short sentence bearing upon the time taken in preparing for the appeal. However, it soon became apparent at the hearing before me that the real bone of contention was whether the plaintiff ought to have been afforded an opportunity to inspect the letter from counsel to his instructing solicitor (being the document handed to the taxing officer) in its entirety so that he could address and comment upon, if necessary, any of the matters referred to in the contentious letter. The question was whether the taxing officer's refusal to pass the letter to the plaintiff amounted to a denial of natural justice which could be characterised as an "error in principle" within the meaning of O 66 r 55(2), this being the provision which allows to a Judge undertaking a review of the taxation, to rectify any error in principle in such manner as he or she thinks just.

42 In order to resolve this issue I must turn to a number of decided cases including the decision of the High Court in Giannarelli & Ors v Wraith & Ors [No 2] [1991] HCA 2; (1991) 171 CLR 592, being the authority principally relied upon by the applicant.

43 I begin by noting that in Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550, Mason J of the High Court noted at 582, that it is a fundamental rule of the common law doctrine of natural justice that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it. He went on to say, however, that the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the particular statutory framework within which the issue arises. The critical question is what does the duty to act fairly require in the circumstances of the particular case.

44 These observations were made in the context of a case concerning administrative decision-making. It will therefore be useful to take account also of an earlier decision of the High Court in Patterson & Anor v Barnes & Anor (1965) 39 ALJR 507.

45 In that case, on an appeal from an order for costs made by the trial Judge in favour of the defendants, counsel for the plaintiffs disclosed that through misunderstanding he had furnished to the trial Judge an estimate of the plaintiff's costs which could be misleading. The members of the Full Court consulted with the trial Judge and said later that they were satisfied as a result of the consultation, that the trial Judge's assessment was not affected by the error but was based on his own independent estimate of a proper amount.

46 The High Court held that the course followed by the Full Court was an irregularity of such a nature that the order of the Full Court should be set aside. Barwick CJ noted at 508 that a private consultation had taken place, the detailed nature of which was unknown. This course, although well intentioned, was a departure in a basic respect from the course which ought to be pursued in the administration of justice.

47 I note in passing, however, that in Patterson's (supra) case the party adversely affected by the Full Court's ruling was not afforded an opportunity to address the matter in issue before any determination was made.

48 It emerges, then, from these cases, and from a number of the decided cases mentioned below, that on a taxation of costs, the proceedings are essentially adversarial in that one party is claiming money from another. The outcome of the proceedings is a quantified monetary liability of one party to another. Thus, the principle that each party must have the right to see and respond to any relevant material which their opponent is placing before the tribunal, and which that tribunal takes into account in arriving at its decision, must be observed.

49 It is apparent from these cases, however, that taxation is a hybrid procedure. It can include situations which are more administrative or supervisory than adversarial and therefore, consistently with the reasoning in Kioa & Ors v West & Anor (supra) the requirements of procedural fairness will be influenced by the special features of the taxation process. I have already noted that the provision concerning lodgment of vouchers is one example of the way in which the usual rules of evidence and adversarial process have been relaxed.

50 In Pamplin v Express Newspapers Ltd [1985] 1 WLR 689 the defendants commenced taxation of bills and lodged supporting documents in accordance with the rules of court. The plaintiff objected to not being permitted to examine certain of the documents. The taxing master held that the plaintiff was not entitled to examine the defendant's privileged and confidential documents and rejected the objection. The plaintiff's application for a review of the taxation by a Judge was dismissed.

51 Hobhouse J accepted that, if one party wishes to place evidence or persuasive material before the Tribunal, the other party must have an opportunity to see the material pursuant to the rules of natural justice. Nonetheless, this principle must be considered in conjunction with the equally important principal that if parties are to be able to protect their legitimate legal interests and properly conduct their litigation in an adversarial situation, they must be able to communicate confidentially, and so must their legal advisers.

52 The learned Judge noticed that the rules of professional legal privilege can be waived by adducing a privileged document in evidence but in the context of a taxation process, an express waiver will generally be required. A claimant should not have imposed on him an unintended waiver unless fairness to both parties really does necessitate that result. In other words, the taxation process, although adversarial, is not subject to all the incidents of ordinary litigation. If a taxing officer has to ask for evidence, the party asked is entitled to elect whether they want to use the evidence and waive their privilege or seek to prove what they need in some other way. The taxing officer does not have any power to override a right of privilege. When, exceptionally, questions of implied waiver do arise, the Master should decide them by applying the principle of fairness as between parties in the conduct of the taxation. A claimant should not have imposed on them an unintended waiver unless fairness to both parties really does necessitate that result.

53 In the case before him, Hobhouse J concluded that a stage was never reached where the defendants had to be required to waive their privilege or fail in their claims for the item in dispute on the bill being taxed. The opposing party's request to see the document was in effect a request for discovery to which he was not entitled. It was a fishing expedition which was rightly rejected by the taxing officer without any injustice.

54 In Goldman v Hesper [1988] 1 WLR 1238 the plaintiff sought to inspect all documents lodged in support of the bill, including those which were privileged. The Court of Appeal held that the procedure for lodging documents on taxation required a claimant to disclose to the Court all documents relied on, including those which were privileged, and the general protection afforded by privilege was relaxed to that extent. Taylor LJ noted that voluntary waiver or disclosure by a taxing officer on a taxation would not prevent the owner of the document from reasserting his privilege in any subsequent context. Thus, in that case, the defendant's wish to assert a right of confidentiality prevailed.

55 In Giannarell & Ors v Wraith & Ors (supra) McHugh J of the High Court held that if the taxing officer was of the opinion that there was a genuine factual issue between the parties he could exercise the powers allowed to him to require the production of papers and documents. However, a party applying for taxation could refuse to produce documents on the ground that they were subject to legal professional privilege. Thus, the taxing officer was not entitled to refuse to tax a bill on the ground that the party seeking taxation had refused to produce privileged documents. So long as the taxing officer exercises his powers for the purpose of taxation of costs and not capriciously or unreasonably, he need not have any evidence before him.

56 There was also a further question before McHugh J, the answer to which bears upon the issue in the present case. McHugh J considered that if a party produced and sought to rely upon documents which were not privileged, the other party was entitled to see the documents pursuant to the principles of natural justice, this view of the matter being consistent with the reasoning in the decided cases mentioned earlier. He then went on to say that, likewise, if a party produced privileged documents, they could not object to the taxing officer showing the documents to the other side. He was not prepared to follow Pamplin v Express Newspapers Ltd (supra) and Goldman v Hesper (supra) and was of the view that, in the circumstances of the case before him, any initial disclosure of the privileged document to the taxing officer would amount to waiver of privilege, with the result that the document could be inspected by the other side.

57 Not surprisingly, the applicant, Mr Clay, seeks to apply the reasoning of McHugh J in Giannarelli & Ors v Wraith & Ors (supra) to the circumstances of the present case. The applicant contends that if the disputed letter was disclosed to the taxing officer and the taxing officer made some use of it, albeit for the limited purpose of verifying the amount of time devoted to an item on the bill being taxed, these events amounted to a waiver of privilege and the rules of natural justice required that the applicant be afforded an opportunity to inspect the document. Inspection had not been allowed with the result that an error in principle had been made in regard to the taxation.

58 It is important to understand that the case before McHugh J concerned a situation in which the taxing officer had called for the production of certain documents relevant to the issues in taxation and the respondents had refused to produce the same on the ground that they were the subject of legal professional privilege. The matter in issue before McHugh J was effectively resolved by his ruling that a party applying for taxation could refuse to produce documents on the ground that they were subject to legal professional privilege. In other words, the decision of McHugh J in Giannarelli & Ors v Wraith & Ors (supra) is principally an authority for the proposition that claims for professional privilege cannot and should not be lightly overridden by any powers allowed to the taxing officer in the course of taxation. Thus, McHugh J himself noted that his answer to the question of whether documents could be inspected by the other side if they were produced and relied upon was a question which was "probably hypothetical". It was in that context that he indicated, in observations that must be regarded as obiter dictum, that if the respondents did produce and seek to rely upon privileged documents they could not object to the taxing officer showing the documents to the applicant.

59 It is immediately apparent that these observations were made in the context of a case which is not quite the same as the case before me. It is apparent, from the decided cases, that a party is entitled to claim professional privilege and must be put to an election as to whether the privilege should be waived. Hobhouse J noted in Pamplin v Express Newspapers Ltd (supra) that in taxation it will normally be a matter of express waiver only. A claimant should not have imposed on him an unintended waiver unless fairness to both parties really does necessitate that result. In the present case, the disputed letter was produced in the course of the taxation for a limited purpose and essentially to be used as a voucher to verify the time devoted to the matter. An opportunity was not afforded to counsel for the respondent to elect whether professional privilege would be waived in respect of the document in question.

60 If the question of an election had arisen, then it would have been open to counsel for the respondent to make a decision as to whether he wished to rely upon the short passage in the letter bearing upon the amount of time spent on the item or whether it was better, all things considered, to protect the confidentiality that would otherwise apply, to the balance of the document. He might well have decided to claim privilege in respect of the document and then leave the matter to be decided by the taxing officer upon the basis of other evidence and the submissions made by the parties. It follows from this analysis that, in my view, the decision in Giannarelli & Ors v Wraith & Ors (supra) is not directly applicable to the circumstances of the present case, because the observations relied upon by the applicant are confined to a situation in which it is clear that the party seeking to rely upon and use the document is prepared to waive privilege. In the present case, in the absence of an election by the respondent to waive the privilege, I do not consider that the privilege was waived.

61 I must now return to first principles. A taxation of costs is an adversarial procedure, and thus the rules of natural justice apply. These rules generally require that a party, such as the plaintiff, must be allowed to see and respond to any document relied upon by the other side. It is apparent from the reasoning of the High Court in Kioa & Ors v West & Anor (supra), however, that the content of the duty to act fairly will depend to a large extent on the statutory framework within which the issue arises.

62 In the present case, the issue arose in the context of a procedure which allows for the production of vouchers, and it was for that limited purpose that a passage in the relevant document was provisionally relied upon. When the question of privilege was brought into issue by the plaintiff's call to inspect the entire document the document was withdrawn. An opportunity was then afforded to the plaintiff to respond to the issue of time to which the letter or proposed voucher was provisionally directed. When one has regard to the nature and quantum of the item in issue it is difficult to see in what way the plaintiff was prejudiced by the incident or denied an opportunity to address the issue. Accordingly, in the particular circumstances of the present case, I am not persuaded that the rules of natural justice were infringed. It follows that I am not satisfied that the taxing officer made an error in principle within the meaning of O 66 r 55(2).

63 If I be wrong in this view, and it be held that the rules of natural justice were infringed, a further question would then arise as to whether the plaintiff should be granted relief of the kind claimed, for the power to rectify the error is discretionary.

64 It is apparent, having regard to the decided cases, that a party should not be lightly deprived of any professional privilege he wishes to claim simply because the special and rather informal circumstances of a taxation process may give rise to unintended consequences. Accordingly, in considering the kind of relief which ought to be provided, in the absence of a waiver of privilege, I would not be prepared to make an order that the disputed letter be immediately produced to the applicant for his inspection in the manner contended for by the plaintiff.

65 The appropriate form of relief might arguably be for the existing certificate to be quashed and for the relevant bill of costs to be taxed again. If that course were followed, an opportunity would have to be afforded to the respondent to make an election as to whether he wishes to rely upon the disputed letter or not. If an election were made to use some part of it, then this would amount to a waiver. The plaintiff would then be entitled to inspect the document in its entirety in the manner allowed for by McHugh J in Giannarelli (supra). If, on the other hand, the respondent maintained the claim for privilege set out in her written submissions, and refused any request made by the taxing officer for production of the document, it follows from Giannarelli's case that the taxing officer could not override the claim. He would have to decide the issue upon the basis of the other materials before him, including the submissions made by the parties.

66 It appears from the taxing officer's reasons that he placed no particular reliance upon the disputed letter. Accordingly, if a further taxation is held, the outcome is likely to be exactly the same irrespective of whether the privilege is waived or whether the respondent elects to claim privilege and refuses to produce the document. Either way, there was and will be sufficient material before the taxing officer independently of the letter to justify his determination as to quantum. There would not be any material change in the amount at which the bill would be taxed. I therefore conclude that to grant relief of this kind would be futile. In these circumstances, a Court should not grant discretionary relief. Mossensons (a firm) v Coastline Associates, unreported; SCt of WA; Library No 970661; 2 December 1997.

67 Accordingly, for this reason also the plaintiff's application will be dismissed. I will hear from the parties as to whether any further orders or directions are required.

Clay v Kurelic [2001] WASC 318

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Judgment (74 paragraphs)

Clay v Kurelic [2001] WASC 318 (26 November 2001)

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