Court of Appeal (WA)|2012-08-14|Before: Murphy JA, Lure P, Newnes JA

RANKILOR -v- CIRCUIT TRAVEL PTY LTD [2012] WASCA 155 (14 August 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RANKILOR -v- CIRCUIT TRAVEL PTY LTD [2012] WASCA 155

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : RANKILOR -v- CIRCUIT TRAVEL PTY LTD [No 3] [2011] WADC 55

Costs - Taxation - Objections - Review by taxing officer - Purported review by judge - Absence of certificate or allocatur - Procedural fairness

District Court Rules 2005 (WA), r 3, r 5(1), r 6, r 15, r 59

Altorfer & Stow (a firm) v Lindsay [2005] WASCA 73

Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Glew v Shire of Greenough [No 2] [2008] WASCA 75

Mossensons (a firm) v Coastline Associates (Unreported, WASC, Library No 970661, 2 December 1997)

Pryles & Defteros (a firm) v Green [1999] WASC 34; (1999) 20 WAR 541

Rankilor v Circuit Travel Pty Ltd [No 2] [2011] WADC 37

Rankilor v Circuit Travel Pty Ltd [No 3] [2011] WADC 55

Rankilor v Circuit Travel Pty Ltd [No 4] [2011] WADC 62

Schweppes Ltd v Archer (1934) 34 SR (NSW) 178

3 This is an appeal against certain orders made in the District Court by Scott DCJ in relation to the appellant's costs of an appeal to the District Court from proceedings initially commenced by the appellant in the Magistrates Court. There was no appearance by the respondent in this appeal. The respondent had advised the court, in effect, that it would abide the result, save as to costs.

4 The circuitous, if not tortuous, route by which the matter came to this court is set out below. It has been pieced together as best as can be done largely from a review of the District Court file. All of the material filed by the appellant has been carefully considered, but it has not, in the end, greatly assisted in elucidating the underlying facts and circumstances beyond what can be derived from an examination of the District Court file. There have been no submissions by the respondent on any of the matters raised in the appeal.

5 On 3 March 2009, the appellant commenced proceedings in the minor case division of the Magistrates Court against the respondent claiming the sum of $10,000 for alleged breach of contract in relation to a European package holiday tour.

6 Proceedings in the minor case division of the Magistrates Court are for claims not more than $10,000 (s 3 and s 26 of the Magistrates Court (Civil Proceedings) Act 2004 (WA)) (MC(CP) Act). In a minor case, the court is not bound by the rules of evidence but may inform itself in such a manner as it thinks fit: s 29(4) of the MC(CP) Act. With certain limited exceptions, a party to a minor case is not entitled to legal representation: s 30 of the MC(CP) Act. The successful party is entitled to an order in relation to 'allowable costs', but not (except in limited specified circumstances) in relation to the party's other costs: s 31(2) and (3) of the MC(CP) Act. The term 'allowable costs' means the court fees and service fees paid by a successful party and the costs of enforcing the judgment: s 31(1) of the MC(CP) Act.

7 On 20 July 2010, the magistrate dismissed the appellant's claim and ordered the appellant pay the respondent's out of pocket disbursements fixed at $957.89.

The appeal to the District Court - Birmingham DCJ's decision

8 The appellant appealed the decision of the magistrate pursuant to s 32(3) and s 40(2) of the MC(CP) Act which in effect provide, relevantly, for a right to appeal an adverse decision in a minor case claim on the grounds of a denial of natural justice.

9 The matter initially came before Deputy Registrar Hewitt on 7 September 2010 for programming towards the hearing of the appeal. The registrar disqualified himself from having further dealings with the matter on the purported basis that he was a close friend of the solicitor for the respondent, and that it would be inappropriate for him to deal with the matter, particularly as the appellant appeared in person.

10 On 12 November 2010, after a two-day hearing, Birmingham DCJ allowed the appeal on the basis that the appellant had been denied natural justice in the proceedings in the Magistrates Court. The judge made orders, inter alia, that the judgment of the magistrate be set aside; that the matter be remitted to the Magistrates Court for retrial before a different magistrate; and that the respondent pay the appellant's 'disbursement costs' of the appeal to be taxed if not agreed. The orders were not extracted.

11 It is convenient to note here that at the relevant time, a 'daily hearing fee' was payable to the District Court in respect of the appeal to Birmingham DCJ. The relevant fee was contained in item 7 of sch 1 of the District Court (Fees) Regulations 2002 (WA). It provided, relevantly, that a daily hearing fee of $450 was payable in relation to a hearing before a court constituted by a judge. Note 4 to item 7 provided that if a half day were allocated, half of that amount, namely, $225, would be payable. Although the hearing before Birmingham DCJ proceeded over two days, it appears that the District Court may have originally allocated three hours, as it appears (from its letter to the appellant dated 31 January 2011) that it regarded the 'daily hearing fee' to be $225.

12 In fact, it appears that the appellant has never paid any 'daily hearing fee', but has applied, unsuccessfully, to have the claimed fee of $225 waived.

Appellants claim for 'disbursement costs' in her appeal to the District Court

13 On 13 December 2010, the appellant filed a bill of costs for taxation in relation to her appeal to the District Court for a total amount of $3,145.20. The amount claimed under 'disbursements' was $145.20.

14 On 16 December 2010, the respondent's solicitor sent to the appellant a letter headed 'without prejudice save as to costs' offering an amount of $127.50 in satisfaction of the appellant's claim for payment of 'disbursement costs'. The letter stated that the offer remained open until one hour before the allocated time for taxation by the District Court. The letter also outlined two other matters. First, if the appellant did not accept the offer, then the respondent reserved the right to rely on the letter in support of an application for an order that the appellant pay the respondent's costs of attending the taxation. Secondly, it contended that a large portion of the amounts claimed by the appellant in the bill of costs related to legal costs, which as a self-represented litigant, the appellant was not permitted to claim. The offer was not accepted.

15 On 22 December 2010, the appellant filed a revised bill of costs for taxation. The revised bill of costs claimed a total of $2,786.90. The amount claimed under 'disbursements' was $1,250.50. Included amongst the disbursements was an item for 'filing fee for Bill of costs' in the sum of $206. In that regard, it is to be noted that item 10 of sch 1 of the District Court (Fees) Regulations provided, in effect, that on an appointment to tax a bill of costs, a 'lodgement fee' of $128 was payable, and, in addition, a 'taxing fee' at the rate of 2.5% applied to the amount at which the bill was drawn. Note 2 to item 10 provided that the taxing officer 'must' allow, against the person chargeable with the costs as taxed, taxing fees at the rate of 2.5% of the amount eventually 'found to be due on taxation'. The sum of $206 appears to have been the sum paid to the District Court comprising $128 in respect of the 'lodgement fee' and $78 in respect of the 'taxing fee'. The latter sum appears to be 2.5% of the original amount of which the bill was drawn ($3,145.20) and not 2.5% of the revised amount ($2,786.90). The revised bill also claimed a 'Hearing cost' (seemingly a reference to the 'daily hearing fee') of $450.

16 On 21 January 2011, the respondent's solicitors sent to the appellant a further letter headed 'without prejudice save as to costs' which contained an offer to pay $127.50. An offer was also made to reimburse the appellant for 'any daily hearing fee' which the appellant was to pay to the District Court with regard to the appeal hearing. (The appellant had not paid the daily hearing fee in respect of the appeal before Birmingham DCJ.) The letter stipulated that the offer would remain open until an hour before the taxation hearing on 24 January 2011. The respondent's solicitors reiterated that the respondent reserved the right to rely on the letter in support of an application for an order that the appellant pay the respondent's costs of attending the taxation. The letter further stated that should it become necessary to adjourn the taxation hearing, the respondent's solicitors would seek an order that the appellant pay the costs of the adjournment. The offer was not accepted.

The adjourned taxation hearing before Deputy Registrar Hewitt on 24 January 2011

17 The taxation was listed for 24 January 2011. Although Deputy Registrar Hewitt had previously disqualified himself from having further dealings with the matter, the taxation was listed before him. The same solicitor who had appeared at the programming hearing, and who was purportedly a friend of the registrar, again appeared for the respondent. The registrar raised the issue of whether the taxation should be adjourned due to his relationship with the respondent's solicitor, but the appellant stated that she wished to proceed with the taxation. Despite this, the taxation was adjourned after approximately five minutes and rescheduled for a later date. The costs of the taxation in relation to the attendance on 24 January 2011 were reserved.

18 According to reasons eventually published by Deputy Registrar Hewitt on 18 April 2011, the registrar said that the taxation was adjourned on the basis that the appellant had disclosed that she had received an offer from the respondent's solicitors, and its amount. The registrar considered that it was inappropriate to continue to hear the matter '[g]iven the consequences of a taxing party refusing an offer' on costs. He did not elaborate upon what he regarded those consequences to be. (Deputy Registrar Hewitt's reasons dated 18 April 2011 were recorded in Rankilor v Circuit Travel Pty Ltd [No 4] [2011] WADC 62. These reasons were not available either to Deputy Registrar Harman, or to Scott DCJ, at the time of the events referred to below.)

19 On 28 January 2011, the respondent's solicitors sent to the appellant a letter headed 'without prejudice save as to costs' which contained a further offer to pay $334.10. It repeated the offer to reimburse the appellant for 'any daily hearing fee' which the appellant was to pay to the District Court with regard to the appeal hearing. (As noted earlier, the appellant had not paid a daily hearing fee in respect of the appeal before Birmingham DCJ.) The letter stipulated that the offer would remain open until an hour before the taxation hearing on 3 February 2011. The letter again stated that the respondent reserved the right to rely on the letter in support of an application for an order that the appellant pay the respondent's costs of attending the taxation. The offer was not accepted.

The taxation before Deputy Registrar Harman on 3 February 2011

20 On 3 February 2011, the taxation of the appellant's 'disbursement costs' took place before Deputy Registrar Harman. There is, on the District Court file, a copy of the appellant's 'Revised Bill of Costs' apparently bearing Deputy Registrar Harman's notations with respect to the taxation. The document appears to record the following.

21 The deputy registrar allowed 'disbursements' of $284.50 comprising $59.50 for the transcript, and $225 as the daily hearing fee in respect of the appeal to Birmingham DCJ. The registrar taxed off all other items which the appellant had sought to claim. Those items included: notice of appeal; proceedings in court; preparation time; drawing of bill of costs; attending taxation; petrol, parking; public transport; ink cartridges; envelopes, stamps and paper; photocopying; phone calls; legal advice and filing fee for bill of costs. The total of the disallowed items was $2,502.40.

22 At the end of the document it is recorded that the respondent sought costs for 2.5 hours in preparing and attending on the taxation, including in relation to the adjournment, in the sum of $825. The document records that costs were fixed at $700.

23 The appellant's 'disbursement costs' (of $284.50) are then shown as set off against the costs allowed to the respondent ($700), giving a net sum of $415.50 in favour of the respondent. (In reasons subsequently published - see [31] below - the registrar said that a set-off was made under O 66 r 7 of the Rules of the Supreme Court 1971 (WA).)

24 The document also appears to record a direction that any objections were to be made by 11 February 2011.

25 There is no signed certificate of the taxed amount recorded on the bill (which is consistent with the direction for objections).

27 There was no debate in this appeal as to whether Deputy Registrar Harman had the power to order costs against the appellant.

The appellant's objection to the outcome of the taxation - O 66 r 53, Notice of Appeal and letter of 5 February 2011

28 On 7 February 2011, the appellant lodged a 'notice of appeal from a decision of a registrar' (Notice of Appeal). The Notice of Appeal challenged certain items disallowed on taxation and stated that it 'also appeals decision made by Registrar Harman regarding [the order] that [the appellant] pay the [respondent's] costs of [the taxation]'. The Notice of Appeal listed 12 complaints, the last of which was, in substance, a summary claim based on the first 11 complaints. Item 1 of the complaints was in respect of the requirement that the appellant pay the respondent $700 for its costs of attending the taxation hearing, including the amount allowed in respect of the adjournment on 24 January 2011. In items 2 and 3, the appellant contended that she should be 'granted' $59.50 for transcript costs and $225 for hearing costs. (It should be noted here that those items had been 'granted' to her on the taxation.) Item 4 sought $12 in respect of photocopying costs. Item 5 sought $75 in respect of legal advice. Item 6 sought $7.10 (apparently being 2.5% of the final taxed sum of $284.50, being the amount required to be allowed pursuant to Note 2 of item 10 of sch 1 of the District Court (Fees) Regulations). Items 7, 8, 9 and 10 involved, respectively, claims in relation to stamp and envelopes ($25), public transport ($30), telephone ($30) and paper ($30). Item 11 sought a refund of $198.90 (which is seemingly the figure of $206 less $7.10 referred to in item 6, and included the lodgement fee of $128).

29 On 5 February 2011, prior to the lodgement of the Notice of Appeal, the appellant had sent a letter to the registrar informing him that she objected to the outcome of the taxation. Apart from what was, in effect, mere assertions to an entitlement in respect of what were subsequently enumerated as items 5 - 11 in the Notice of Appeal, by this letter the appellant gave reasons why she should recover in respect of item 4 (photocopying of $12), item 6 ($7.10 in respect of the 2.5% allowable on $284.50) and why the costs of the taxation, including in relation to the adjournment, should not have been ordered against her. In respect of photocopying, her complaint was that the item, for $12, had not been objected to by the respondent's solicitor.

30 It is convenient to interpolate here that in her affidavit sworn in support of her grounds in this appeal (see [57] below), the appellant deposed (page 5), in effect, that the respondent's solicitor had agreed that she had spent 'a significant amount of money on photocopying'.

31 According to reasons for judgment which were ultimately published by Deputy Registrar Harman on 11 March 2011 (Rankilor v Circuit Travel Pty Ltd [No 2] [2011] WADC 37 (Rankilor [No 2])), the registrar proceeded as follows.

32 He treated the appellant's letter of 5 February 2011 as an objection to the taxation pursuant to O 66 r 53, in relation to item 4, concerning photocopying costs of $12 (reasons [3]). He also treated the Notice of Appeal as an objection to the determination that the appellant pay the respondent's costs of the taxation (reasons [23]).

33 He dealt with these matters on the papers. It is not clear whether he had given the appellant notice of that proposed course.

34 He dismissed the objections with respect to item 4, being the photocopying item. He recorded that the appellant contended that as the sum of $12 had not been objected to, it should be allowed (reasons [4]). He also considered that item 11(b) of the District Court Appeals Scale 2010 is ultra vires (reasons [16]). He also recorded that, in any event, the appellant had not vouched for the claim in accordance with O 66 r 36 (reasons [18]).

35 He did not deal with the claim in item 6 for $7.10 in respect of item 10 of sch 1 of the District Court (Fees) Regulations, or the claim in item 11 insofar as it related to the lodgement fee.

36 He also recorded his view as to why the appellant should pay the costs of the taxation, including costs in relation to half an hour's attendance at the adjourned taxation hearing before Deputy Registrar Hewitt on 24 January 2011. He said that the amount of $700 was calculated on the basis of two hours' work at $350 per hour. The two hours which he allowed consisted of half an hour for the adjourned taxation on 24 January 2011, and one and a half hours for the taxation on the 3 February 2011.

37 Again, there is no indication that the registrar certified the taxed costs on the bill, as the allocatur. No separate certificate of taxation was issued.

39 It should be noted, parenthetically, that the registrar's finding that item 11(b) of the relevant scale was ultra vires, was (whatever its merits - which are unnecessary to decide) an unusual step to take, given that the appellant was self-represented, the point was not apparently argued, there was no proper contradictor and the 'hearing' was done 'on the papers'.

40 The Notice of Appeal was listed before a judge in chambers on 4 April 2011. On 28 March 2011, the appellant filed submissions in support.

41 The matter was heard by Scott DCJ on 4 April 2011. Scott DCJ characterised the matter as an application for 'a review' of the 'taxation' conducted by Deputy Registrar Harman on 3 February 2011. Presumably his Honour was referring to a review pursuant to O 66 r 55.

42 The appellant attended in person. The respondent did not attend either in person or by its solicitors. Scott DCJ appears to have addressed the application by reference to the Notice of Appeal. The reasons of Scott DCJ were delivered on 7 April 2011: Rankilor v Circuit Travel Pty Ltd [No 3] [2011] WADC 55 (Rankilor [No 3]).

43 It should be mentioned that Scott DCJ did not, it seems, give any consideration to whether the appellant's challenge to Deputy Registrar Harman's decision to award the respondent its costs was appropriately brought by way of an appeal under r 15 of the District Court Rules 2005 (WA), rather than a 'review', under O 66 r 55. Nor has that question been agitated in this appeal.

44 Scott DCJ said that the issue for determination, as articulated by the appellant, was whether the costs order in favour of the respondent for and in relation to the appearances on 24 January 2011 and 3 February 2011 ought to be 'reviewed': Rankilor [No 3] [9].

45 Scott DCJ found that the Deputy Registrar Harman was correct to award the costs of the taxation on 3 February 2011 to the respondents. The judge agreed with the findings of Deputy Registrar Harman that the appellant was unsuccessful in the taxation given the total amount of 'disbursement costs' that had been sought by the appellant and the total amount that was proved and allowed. The judge gave considerable weight to the offers made by the respondent's solicitors on the costs of the taxation: Rankilor [No 3] [11] - [13].

46 Although Scott DCJ found that the respondent should be awarded the costs of the taxation on 3 February 2011, his Honour held that there should be no allowance for the costs incurred by the respondent in relation to the adjourned taxation hearing on 24 January 2011. The judge said that the adjournment did not appear to be occasioned by the fault of either party. (The reasons of Deputy Registrar Hewitt, explaining why the taxation had been adjourned, had still not then been delivered.)

47 Also, the judge held that Deputy Registrar Harman had not applied the correct figure in relation to the rate chargeable under the District Court Appeals Scale of Costs 2010 for taxation. The registrar had applied an hourly rate of $350, whereas the scale provided that the maximum amount for taxation was $297 per hour.

48 The judge accordingly ordered that the sum of $445 (approximately one and a half hours' x $297 per hour) be paid by the appellant to the respondent in respect of the costs of the taxation.

49 The judge also said, but without providing reasons, that the allowances of $284.50 made by Deputy Registrar Harman on the appellant's bill of costs was correct, and that it was proper to set-off this amount against the sum of $445.

50 The net result was that the appellant was liable to pay the respondent $160.50.

51 The respondent did not appear at the hearing of the 'review' before Scott DCJ, and no order was made as to costs.

52 The following orders of Scott DCJ, dated 7 April 2011 were extracted:

Certificate of taxation dated 3 February 2011 be set aside.
The appellant do pay the respondent by way of costs the sum of $445.
The respondent do pay the appellant by way of costs the sum of $284.50.
The appellant pay the respondent the net sum of $160.50.
There be no order as to costs for the hearing today.

53 The grounds of appeal are in the following terms:

Denial of facts and denial of legal process by Deputy Registrar Hewitt as he was personal friend of respondent's solicitor and legally was not to be involved in this matter.

Denial of natural justice and denial of legal process by Deputy Registrar Harman.

Denial of facts and denial of legal process by Judge Scott.

54 The appellant contends that Scott DCJ did not have jurisdiction under O 66 r 55 to review the decision of Deputy Registrar Harman, as no certificate of taxation was ever issued.

55 The grounds of appeal contend, in effect, that there was a breach of natural justice by Deputy Registrar Hewitt, Deputy Registrar Harman and Judge Scott.

56 The appellant seeks to have the taxation conducted by Deputy Registrar Harman, and the 'review' of that taxation by Scott DCJ, set aside in its entirety and a new taxation of costs performed either in the Supreme Court or in the District Court by a taxation officer other than Deputy Registrar Hewitt or Deputy Registrar Harman.

57 The appellant was given liberty to file and serve an affidavit in support of her contentions that she was denied procedural fairness. She filed and served an affidavit sworn 30 April 2012. There was no substantive response to her affidavit by the respondent, save to refer the court to the reasons of Deputy Registrar Hewitt.

58 In an appeal to the District Court under s 40 of the MC(CP) Act, the District Court may, amongst other things, make an order as to the costs of the appeal: s 43(7)(e) of the MC(CP) Act.

59 The District Court Rules 2005 have application to such an appeal: r 5(1) of the District Court Rules read with the definition of 'case' in r 3.

60 Rule 59 of the District Court Rules provides, relevantly:

(1) The awarding of the costs of and incidental to an appeal is in the discretion of the Court.

(2) On determining an appeal the Court may fix the amount of costs but otherwise they are to be taxed in accordance with determinations made by the Legal Costs Committee under the Legal Practice Act 2003 and section 215 of that Act.

61 Order 66 of the Rules of the Supreme Court, in relation to costs, are taken to apply by virtue of r 6 of the District Court Rules.

Taxation, review and set-off Introduction

62 The general rules as to costs are set out in div 1 of O 66 of the Rules of the Supreme Court. Order 66 r 4 sets out the taxing officer's powers. Division 2 of O 66 deals with the taxation of costs, commencing with O 66 r 32. By O 66 r 32(1), unless the court otherwise directs, bills of costs and fees shall be taxed, allowed and certified by the taxing officer who shall appoint a time for taxation on the application of the party claiming taxation. By O 66 r 42, a bill of costs is to be prepared so as to clearly show the particulars of the items being claimed with reference to the item in the scale to which it relates, as well as the dates of the items, particulars of the services charged for, disbursements and professional charges. By O 66 r 42(2), professional charges and disbursements are to be entered in separate columns and each column should be added before the bill is filed. By O 66 r 43, the decision of the taxing officer on all questions of fact is final. Division 3 of O 66 deals with the review of a taxation.

Objections to and review by taxing officer: O 66 rr 53, 54

63 By O 66 r 53, a party who contends that the taxing officer has 'made an error in principle' in allowing or disallowing an item (or part of an item) may, prior to the certificate of taxation dealing finally with that item being signed, deliver an objection in writing to the allowance or disallowance in question, and apply to the taxing officer to review the taxation in respect of the identified items or parts. An 'error of principle' may be raised under O 66 r 53 even if the issue the subject of the objection had not been raised and considered by the taxing officer at taxation: Altorfer & Stow (a firm) v Lindsay [2005] WASCA 73 [56].

64 By O 66 r 54, upon an application under O 66 r 53, the taxing officer shall consider and review the taxation in relation to the objections and may receive further evidence; if so required, he shall state the ground and reason for his decision on the objection. By O 66 r 54(3), the taxing officer may tax the costs of the objections and add them to or deduct them from any sum payable by or to a party to the taxation. By O 66 r 54(4), except as provided by r 54, the taxing officer shall not, after a certificate of taxation is signed, review his taxation or amend the certificate, except to correct a clerical or manifest error. By O 66 r 54(5), if a party fails to appear on the taxation, the taxing officer may, upon an application made in writing within seven days, set aside or vary his certificate of taxation on such terms as he thinks just.

65 By O 66 r 57, the costs allowed by the taxing officer on an interim or final certificate of taxation is deemed to be a judgment of the court and recoverable accordingly. The certificate, sometimes referred to as the allocatur, signed by the registrar at the foot of the bill which has been taxed, is the certificate referred to in the rules, although the court can and will, if asked, sign and seal under O 43 a separate document as a certificate: Civil Procedure Western Australia [66.57.2].

66 The taxing officer is functus officio once he or she has signed the certificate of taxation: Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621, 624. See also O 66 r 54(4) and O 66 r 55(3).

67 A certificate may be set aside in the court's inherent jurisdiction if it is proper to do so: Pryles & Defteros (a firm) v Green [1999] WASC 34; (1999) 20 WAR 541 [38]; Mossensons (a firm) v Coastline Associates (Unreported, WASC, Library No 970661, 2 December 1997) 9, (Ipp J with Pidgeon J agreeing). A relevant consideration will be the applicant's prospects of a successful review of taxation: Mossensons (a firm) v Coastline Associates (9).

68 The signing of a certificate or allocatur so soon after the completion of taxation so as to deprive a party of the opportunity to deliver objections in accordance with the rules of court (relevantly, O 66 r 53), is irregular and may be set aside: Australian Coal & Shale Employees' Federation v The Commonwealth (624); Pryles & Defteros (a firm) v Green [37].

69 Where the parties have proceeded with an objection under the rules despite the issue of a certificate or allocatur, the court may infer that the parties have consented to a revocation of the taxing officer's certificate: Australian Coal & Shale Employees' Federation v The Commonwealth (625).

70 Apart altogether from O 66 r 55 (referred to in [71] - [74] below), the taxing officer has power to reopen his taxation, at any time prior to him signing the certificate, although in so doing the registrar should ensure that procedural fairness is afforded to the parties. Until the certificate is issued, the registrar has not completed the taxation of the bill: Australian Coal & Shale Employees' Federation v The Commonwealth (625).

71 By O 66 r 55, if a party is dissatisfied with the certificate of the taxing officer 'as to any item or part of an item objected to under rule 53', he may, within 14 days from the date of the certificate or such other time as the court allows, apply to a judge in chambers for an order 'to review the taxation as to that item or part of an item'. By O 66 r 55(2), the judge, if of the opinion that the taxing officer 'has made an error in principle' may thereupon make such order or rectify the error as the judge thinks just. By O 66 r 55(3), the certificate of the taxing officer is final and conclusive 'as to all matters which have not been objected to in accordance with these rules'.

72 On an application under O 66 r 55, the judge is to determine the application upon the evidence brought before the taxing officer, and further evidence shall not be received upon the application unless the judge directs otherwise: O 66 r 56.

73 The standing of a party to apply under O 66 r 55 for review by a judge is conditional upon the issue of a certificate or allocatur: Australian Coal & Shale Employees' Federation v The Commonwealth (626).

74 On an application under O 66 r 55, only items covered by the objections carried in before the taxing officer may be considered: Australian Coal & Shale Employees' Federation v The Commonwealth (626); Glew v Shire of Greenough [No 2] [2008] WASCA 75 [18].

75 Order 66 r 53 and O 66 r 55 refer to an 'error in principle'. In this context, errors in principle have been contrasted with questions of mere quantum. In Re Catlin [1854] EngR 481; [1854] 18 Beav 508 [52 ER 200], Sir John Romilly said:

The petition is to review the taxation made by the Taxing Master of a bill of costs delivered by Mr Catlin, and complaining of the disallowance of various items. It is admitted, on both sides, that this Court can only be called upon to determine on the propriety of allowing or disallowing items which involve some principle, and not where a question only of quantum arises. (Alsop v Lord Oxford [1833] EngR 606; 1 Myl & K 564.)

76 Nevertheless, errors in principle may be made both in determining whether an item should be allowed and in determining how much should be allowed: Schweppes Ltd v Archer (1934) 34 SR (NSW) 178, 183; Australian Coal & Shale Employees' Federation v Commonwealth (628).

77 An error in principle may be inferred from a decision of the taxing officer if the result is such that the discretion appears not to have been exercised at all, or where it has been exercised in a manner that is manifestly wrong: Australian Coal & Shale Employees' Federation v Commonwealth (628 - 629).

78 In Mossensons (a firm) v Coastline Associates, Ipp J (Pidgeon J agreeing) observed (9 - 10):

The point is that there must be an error in principle before a judge will carry out a review under O 66 r 55. Although it is possible for an error in principle to be made in regard to the quantum allowed in respect of a particular item, that is generally regarded as unusual. In my opinion, an error in principle on this basis could only be established if it is shown that no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question.

79 By O 66 r 59, where a party who is entitled to be paid costs is also liable to pay costs, the taxing officer may, subject to any direction of the court:

(a) tax the costs which that party is liable to pay and set off that amount against the amount he is entitled to be paid, and direct payment of any balance; or

(b) delay the issue of the certification of taxation for the costs he is entitled to be paid until he has paid or tendered the amount he is liable to pay.

80 On the information available to this court, there does not appear to have been a certificate of taxation issued by Deputy Registrar Harman on 3 February 2011, or at all.

81 Accordingly, Scott DCJ had no jurisdiction to 'review' the taxation under O 66 r 55 and the orders made by Scott DCJ should be set aside.

82 That leaves the appellant's complaints in relation to the taxation by Deputy Registrar Harman on 3 February 2011, Deputy Registrar Harman's subsequent decision in relation to the appellant's objections to the taxation, and his order, at the taxation on 3 February 2011, that the appellant pay the respondent's costs, fixed at $700. There is also the complaint concerning Deputy Registrar Hewitt. Although these matters do not strictly fall for decision, as they are anterior to the orders of Scott DCJ, the following observations may nevertheless be made.

83 As to the order to pay $700, there has, in my view, been a denial of procedural fairness to the appellant. Insofar as Deputy Registrar Harman, on 3 February 2011, purported to order that the appellant should pay the respondent's costs fixed in the sum of $700, and that that amount should be set off against the amount recoverable by the appellant on taxation, those orders could not have been made (except perhaps conditionally) until the objection process had been completed and a final taxation amount had been certified. Then, the parties should have had an opportunity to put any submissions on the question of the costs of the taxation in light of the certified sum.

84 As to Deputy Registrar Harman's purported disposition of the objections, the registrar should, in my view, have construed the appellant's letter, read with the Notice of Appeal, as raising objections, in principle, not only to the photocopying item, but also to the failure to allow the lodgement fee of $128, and the failure to allow the taxing fee (which, on the taxed figure of $284.50, was $7.10, but which would increase to 2.5% of any ultimate figure allowed on taxation in the event that any objections were allowed). Both of those items were, prima facie, allowable in principle, but were not dealt with by the registrar. In these two respects, the appellant was denied procedural fairness in the determination of her objections in relation to the taxation.

85 Also, although it is unnecessary to determine the appellant's claim that she was denied natural justice in relation to the registrar's dismissal of the objection in respect of the photocopying item of $12, I will, for completeness, record my observations on that matter. The appellant does not contend, as I understand it, that she was denied procedural fairness because she was not given the opportunity to make submissions on whether item 11(b) of the District Court Appeals Scale was ultra vires. (The registrar's finding in that regard was not, in any event, apparently dispositive of the objection as he also appears to have rejected the claim on the basis that it had not been vouched.) Moreover, her essential argument, which was that she was entitled to recover that sum because the respondent had not objected to it, was expressly referred to by the registrar, who also recorded that despite the absence of objection, the respondent still required the item to be the subject of a determination by the registrar. The registrar dealt with the matter, including by reference to the absence of vouching. In these circumstances, it does not appear to me that the appellant has established a denial of procedural fairness in relation to the objection to the photocopying item.

86 Save to the extent outlined above (in relation to the order for the appellant to pay the respondent's costs) there is nothing in the appellant's affidavit filed in this court, or in the other material before the court, which, in my view, indicates a denial of procedural fairness in the taxation on 3 February 2011. Although the appellant says at page 5 of her affidavit that Deputy Registrar Harman gave her 'no chance' to show him her Smart Rider receipts, the appellant has not demonstrated that the receipted travel costs were other than to attend court hearings, which would be irrecoverable: Cachia v Hayes [1994] HCA 14; (1994) 179 CLR 403, 417. Further, the appellant's letter of 5 February 2011, read with the Notice of Appeal, did not, in my view, raise any other objections within the meaning of O 66 r 53(1), save in relation to items 4, 6 and 11 of the Notice of Appeal.

87 The appellant's contention that Deputy Registrar Hewitt denied her procedural fairness on 24 January 2011 is rejected. Deputy Registrar Hewitt made no substantive orders that day. He did not deal with the taxation himself, and he reserved the question of costs.

88 As no final orders were extracted in relation to Deputy Registrar Harman's decision to order costs, there is no occasion to set aside any orders purportedly made on that occasion in relation to costs. Further, as no certificate has ever been issued, the taxation has not been completed, and the objection process remains to be properly completed.

89 By way of general observation, it would seem appropriate, in all the circumstances, for there to be a review, under O 66 r 54, of items 6 and 11 of the Notice of Appeal in relation to Deputy Registrar Harman's taxation of the appellant's revised bill of costs dated 22 December 2010. The review should be undertaken by a registrar other than Deputy Registrar Harman or Deputy Registrar Hewitt. If, in relation to that review, the appellant made any proper objections, within the meaning of, and in accordance with, O 66 r 53, to the taxation beyond the objections to items 6 and 11 in the Notice of Appeal, those additional objections could be dealt with at the same time as the objections to items 6 and 11. That observation is not to be read as an encouragement to make additional objections, but is merely intended to recognise that objections within the meaning of O 66 r 53(1) may be made at any time before a certificate of taxation dealing with an item is signed, or at any earlier time as may be fixed by the relevant Taxing Officer.

90 It should be added that it would also be appropriate for the orders of Birmingham DCJ to be extracted.

91 Subject to hearing from the parties, it would appear that the formal orders of this court should be:

(1) The orders of Scott DCJ dated 7 April 2011 be and are hereby set aside.

92 The question of the costs of this appeal should be determined after the parties have had the opportunity to consider these reasons, and to make submissions on costs.

Court (Fees) Regulations 2002

Court (Civil Proceedings) Act 2004

RANKILOR -v- CIRCUIT TRAVEL PTY LTD [2012] WASCA 155 (14 August 2012)

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Judgment (123 paragraphs)

RANKILOR -v- CIRCUIT TRAVEL PTY LTD [2012] WASCA 155 (14 August 2012)

Legislation Cited (4)

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