Featherstone (by his next friend Angela Featherstone) v Westar Engineering Pty Ltd & Ors [1999] WADC 139 - WADC 1999 case summary — Zoe

WAWADC

Featherstone (by his next friend Angela Featherstone) v Westar Engineering Pty Ltd & Ors [1999] WADC 139

[1999] WADC 139

District Court of WA|1999-11-29|Before: Mr P

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At a glance

AI case summary

Result

appellant. Orders approving compromise varied to ensure costs taxed on basis of costs agreement; appeal dismissed as orders had retrospective effect of negating need for appeal; directions made for expedited...

Key principles

Where a costs agreement exists between a next friend and solicitors acting for a plaintiff under a disability, the District Court has jurisdiction under O66, r24(3) of the Rules...
The existence of a costs agreement does not extinguish the right of a next friend to indemnity from the plaintiff for costs properly incurred; the right is only affected if the...
The jurisdiction of the District Court under O66, r24(3) to tax costs payable to a solicitor by or on behalf of a plaintiff under disability is not ousted by the right under s66...
A Taxing Officer should not require separate representation for a next friend merely because the bill of costs is large or claimed pursuant to a costs agreement; such a direction...

Issues before the court

Whether the District Court has jurisdiction to tax solicitor-client costs pursuant to a costs agreement entered into by a next friend for a...

Plain English Summary

This case concerned a severely brain-injured worker who settled his compensation claim for $728,000. His daughter had acted as his 'next friend' (legal representative) and signed a costs agreement with the family's solicitors. When the solicitors tried to have their additional fees (over $77,000) approved by the Court, the Taxing Officer (Deputy Registrar) refused, saying he lacked jurisdiction because the costs agreement didn't bind the disabled plaintiff, and that he needed to look at the earlier party-party costs agreement. The District Court overturned this decision, ruling that: (1) the Court does have power to tax these costs under the Rules; (2) the next friend was entitled to have her costs paid from the settlement money because she had acted properly and in her father's best interests; (3) the taxation should proceed based on the costs agreement without being limited by the earlier costs figure; and (4) ordering separate lawyers for the next friend was unnecessary and caused unfair delay. The Court also fixed the original settlement approval to specifically allow for the costs agreement, and ordered the taxation to be completed quickly.

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Catchwords

Judgment (38 paragraphs)

[1]

[12]

3 The plaintiff commenced action against the first and second defendants in November 1990 claiming damages for personal injuries suffered in an accident in the course of his employment on 22 August 1989. The statement of claim alleged that on the date of the accident the plaintiff was employed by the first defendant in erecting roller doors in a prefabricated building at the Telfer minesite. While adjusting the height of a roller door the spring-loaded axle suddenly released itself causing a chainwheel to spin rapidly and to shatter. This caused fragments of the plastic chainwheel to travel at high velocity and to strike the plaintiff in the skull causing significant brain and eye injuries. The resultant cognitive disability has required that the plaintiff's daughter act in the proceedings as his next friend.

4 The original claim was against the first defendant as the plaintiff's employer, and against the second defendant as the supplier of the parts of the prefabricated building including the defective roller door. However, after these parties had filed their defences it became necessary for other parties to be joined. In this regard, the third and fourth defendants had been respectively the manufacturer and designer of the roller door. The fifth, sixth and eight defendants had in various ways been involved in the design and/or manufacture of the chainwheel parts in the roller door. The seventh defendant had been the original supplier of the plastic material from which the defective chainwheel was made.

5 During the course of proceedings, most of the defendants filed notices of contribution and/or third party notices against one or more of the others. It is evident from the pleadings that the factual issues were very complex and turned upon the evidence of experts. There were also difficulties in identifying the precise cause or causes of the accident.

6 The action was eventually set down for a trial of not less than five weeks duration commencing on 1 April 1996. However, following a late pre-trial conference and a conference of experts the parties were able to negotiate a settlement of the plaintiff's claim. On 26 February 1996 I approved the compromise whereby there was judgment for the plaintiff against all defendants other than the fifth defendant for $728,000 together with costs of $80,000 and non-counsel disbursements in the sum of $14,687.37. The usual order was made for investment of settlement moneys with the Public Trustee.

[13]

7 The party and party costs recovered from the defendants pursuant to this compromise did not cover the whole of the plaintiff's solicitors' costs. Consequently, the additional solicitor-client costs were required to be taxed pursuant to O66, r24(3).

8 On 30 July 1996 a bill of costs was filed in this Court itemising fees and disbursements totalling $172,572.85, which after deduction of the $94,687.37 recovered from the defendants left a net claim of $77,885.48. The taxation of this bill was listed for 10 September 1996, but the learned Deputy Registrar declined to proceed on that day on the ground that the next friend needed to be represented by a separate solicitor. Accordingly a direction was made pursuant to O66, r44 that the next friend be separately represented.

9 The next friend had difficulty in complying with this order given that neither she nor the plaintiff had the means to pay for such separate representation. Furthermore, the Public Trustee, as a matter of policy was not prepared to arrange such representation for the purposes of taxing costs. Fortunately, this problem was resolved when Mr E C De Vries (acting in accordance with the best traditions of the legal profession) agreed to represent the next friend on the taxation without fee. Mr De Vries subsequently conferred with the next friend for the purposes of advising on and taking instructions in respect of the costs claimed.

10 The taxation of the bill of costs was relisted for 6 December 1996 and on that date the learned Deputy Registrar was advised by Mr De Vries that the next friend did not make any objection to the fee agreement or to the bill of costs. However, the taxation did not proceed on that date because the learned Deputy Registrar directed that a three day hearing would be necessary to enable a consideration of the bill item by item.

11 Thereafter the taxation of the bill of costs proceeded intermittently on 12, 13 and 14 March; 13 and 15 May; and on 7 and 8 August 1997. By the latter date the learned Deputy Registrar had completed his consideration of the professional fees portion of the bill, as well as the disbursements (including counsel fees) other than for photocopying and facsimiles.

12 From that point on it is fair to describe the process of taxation as having stalled, and the learned Deputy Registrar also declined to sign a partial allocatur in respect of the determinations he had already made. The reasons given by the learned Deputy Registrar for this unusual state of affairs appear from his letters dated 19 August 1997 and 11 and 28 May 1998 sent to the plaintiff's solicitors, namely:

Featherstone (by his next friend Angela Featherstone) v Westar Engineering Pty Ltd & Ors [1999] WADC 139

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Catchwords

Judgment (38 paragraphs)

Cited legislation

Featherstone (by his next friend Angela Featherstone) v Westar Engineering Pty Ltd & Ors [1999] WADC 139 (29 November 1999)

Parties

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