WREFORD -v- MORAY & AGNEW [2025] WASC 280 (11 July 2025)

1. Ms Wreford was previously involved in a District Court trial where she claimed compensation for injuries she sustained in a motor vehicle incident in 2013.[1]
2. Ms Wreford was represented at trial by the first defendant, as her solicitors, and by the second defendant, as her trial counsel. The third defendant was retained as the solicitors for the negligent driver opposing her claim.
3. On 22 October 2021, after the District Court trial concluded, Ms Wreford commenced an action in this court against each of the defendants.
4. The action was commenced as matter CIV 2114 of 2021.
5. The action was summarily dismissed by Master Sanderson,[2] who on 19 May 2022 relevantly ordered that Ms Wreford pay the defendants' costs of both the application which led to the summary dismissal and of the action itself, such costs to be taxed if not agreed.
6. On 27 May 2022, Ms Wreford filed an appeal against the Master's orders.
7. The appeal was commenced as matter CACV 56 of 2022.
8. On 29 July 2023, the Court of Appeal suspended enforcement of the Master's costs order pending determination of Ms Wreford's appeal.[3]
9. On 18 January 2024, the Court of Appeal dismissed Ms Wreford's appeal entirely.[4]
10. In so doing, their Honours discharged the suspension order made on 29 July 2023 and further ordered that Ms Wreford pay the respondents' costs of the appeal to be assessed.
11. Those costs included the costs of the third defendant, who was the third respondent in the appeal.
12. The taxation of bills of costs filed by the third defendant in matters CACV 56 of 2022 and CIV 2114 of 2021, on 8 April 2024 and 30 September 2024 respectively, were listed before Registrar Fatharly. For convenience, the Registrar elected to tax those bills at the same time.
13. Notice of the Registrar's intention to do so was emailed to the parties, including Ms Wreford, by the Registrar's associate on 16 December 2024, and the date and time of the taxation hearing notified to the parties not long afterwards.
14. Ms Wreford attended the taxation hearing on the appointed date, 7 February 2025.
15. At the conclusion of the taxation hearing, the Registrar made orders which, among other things, recorded the following:

(a) the third defendant's bill of costs filed in matter CACV 56 of 2022 be allowed at $19,063.76 and its bill of costs in matter CIV 2114 of 2021 be allowed at $15,347;

(b) each such amount was to be inclusive of filing fees, preparation of the respective bills, preparation for and attendance at taxation, and the allowable amount for the filing fee for listing of the taxation;

(c) certificates of taxation would be issued accordingly if no objections were filed by 28 February 2025, that is, within three weeks; and

(d) if any party contended that the taxing officer had made an error of principle in allowing or disallowing any item or part of an item in the bill, the party had until 28 February 2024 to file and serve any written objections to the taxation and to apply in writing for a review of the taxation pursuant to O 66 r 53 of the Rules; in which case, following any response by the other party and any reply by the objecting party, the review and costs of the review would be determined in accordance with O 66 r 54 of the Rules on the papers and a certificate issued in accordance with that rule.

1. On 28 February 2025 at 6.44 pm, Ms Wreford sent an email to the Registrar's associate containing written objections to the taxation of each of the third defendant's bills of costs.
2. On 14 March 2025, Registrar Fatharly issued both the CACV certificate and the CIV certificate.
3. Each certificate was accompanied by detailed reasons outlining the Registrar's rulings on Ms Wreford's objections and why those rulings had been made.
4. In short, the Registrar found there to have been no error of principle and dismissed Ms Wreford's objections.
5. A month later, on 22 April 2025, the third defendant filed a Form 6, seeking to enforce the CIV certificate with a PSSO.
6. Registrar Jennings issued the PSSO on 9 May 2025. The subtotal appearing on the PSSO is $20,295.88, comprising:

(a) the judgment sum of $15,347 (the amount on the CIV certificate);

(b) interest at $2693.88;

(c) court application fee of $381.00;

(d) the sheriff's fee of $400.00; and

(e) lawyers' costs of $1,474.00.

1. According to the PSSO, interest was payable at six per cent per annum, (being a daily rate of $2.52) from 19 May 2022 (the date of Master Sanderson's order) until final payment. I infer that the amount recorded in 22(b) above, that is interest of $2693.88, is the product of this calculation.
2. According to Ms Wreford, since the PSSO issued the Sheriff's Office has attended her property on multiple occasions.
3. Ms Wreford now urgently applies to the Court for the relief of the kind to which I referred at the commencement of my reasons.
4. She does so in an effort to prevent seizure and sale of any of her property pending the filing and, ultimately, the determination of a substantive review application to set aside the taxation conducted by Registrar Fatharly, which Ms Wreford says she is currently in the process of preparing.

1. The CIV certificate and the CACV certificate are deemed to be judgments of the Court, and the costs allowed by them are recoverable accordingly.[5]
2. Section 15 (1) of the Civil Judgements Enforcement Act 2004 (WA) (CJE Act) provides that:

A person against whom a judgment is given may apply for an order suspending the enforcement of all or any part of the judgment ...

1. Such an application may only be made to the court that gave the judgment or to a court that is dealing with an appeal against the judgment.[6]
2. The court may only make a suspension order under s 15(1) if there are 'special circumstances' that justify doing so.[7]
3. The principles applicable to an application for such an order are materially the same as those applicable to an application for similar relief in the exercise of the court's inherent jurisdiction to protect the integrity of its processes once set in motion.[8]
4. There are no hard and fast rules as to what constitutes special circumstances. However, in my view, the general principles to be applied in determining if there are such circumstances justifying a suspension order in the circumstances of the present case, where some form of judicial review has been foreshadowed, can be stated as follows: [9]

(1) A successful litigant will ordinarily be entitled to enforce a judgment.

(2) It is for the applicant for a suspension order to move the court to a favourable exercise of the discretion, that is, to establish there are special circumstances justifying a departure from the ordinary rule.

(3) Generally, this will require the applicant to establish that the suspension of enforcement is necessary to prevent the right of a review being rendered nugatory or to avoid practical difficulties in respect of relief which may be granted upon a foreshadowed application for judicial review.

(4) Even if that is made out, the suspension of enforcement will generally be refused, unless the court is satisfied that the foreshadowed review ultimately has reasonable prospects of success so as to result in a grant of relief to the applicant.

(5) Finally, even if those hurdles have been overcome, a suspension order may still be refused where it appears that the balance of convenience does not favour the applicant.

1. As observed earlier in these reasons, the review sought by Ms Wreford in part invites the court to make an order effectively staying enforcement of the CACV certificate.
2. In issuing the CACV certificate, Registrar Fatharly was exercising the costs jurisdiction conferred on the Court of Appeal.[10]
3. It follows that the CACV certificate is therefore deemed to be a judgment of the Court of Appeal for the purposes of O 66 r 57 of the Rules.
4. As was explained to Ms Wreford at the hearing, this court has no power under s 15 of the CJE Act to suspend enforcement of a judgment of the Court of Appeal.[11]
5. That jurisdiction rests with the Court of Appeal itself.
6. At the hearing, Ms Wreford appeared to accept this, and her application proceeded on the basis that she was only seeking relief in relation to enforcement of the CIV certificate and the PSSO.

1. I turn to consider the foreshadowed judicial review application.
2. Although the court was not provided with finalized draft grounds of review, Ms Wreford effectively relied upon two points for the purposes of her foreshadowed review application.
3. First, Ms Wreford says she was denied procedural fairness in that Registrar Fatharly afforded her no opportunity (or perhaps, no adequate opportunity) to object before the CIV certificate was issued.
4. In this context, according to Ms Wreford, the Registrar failed to conduct a provisional assessment in accordance with Consolidated Practice Direction (CPD) 4.7.2.
5. Ms Wreford says the Registrar ought to have done so.
6. Secondly, according to Ms Wreford, the PSSO was irregular in that Registrar Jennings exceeded her jurisdiction by assessing interest without 'lawful court order or judicial scrutiny'.
7. In doing so, Ms Wreford says the Registrar fell into jurisdictional error by calculating interest retrospectively from the date of Master Sanderson's order rather than from the date upon which the CIV certificate was issued.
8. In short, Ms Wreford contends that she is, for these reasons, entitled to prerogative relief by way of certiorari quashing both the CIV certificate and the PSSO.

1. With respect to the first point, I note Ms Wreford neither sought to rely, nor indicated that she intended to seek an extension of time in order to rely, upon O 66 r 55 of the Rules; a provision which permits a party dissatisfied with a certificate of a taxing officer to apply to a judge in chambers for an order to review the taxation.
2. In this regard, I understood Ms Wreford to contend that O 66 r 55 is not open to her given it only provides a limited power to revisit specific items previously objected to under O 66 r 53, and that this is not the basis of her proposed review application.
3. Rather, Ms Wreford evidently seeks to commence judicial review proceedings under O 56 of the Rules. For reasons which will soon be apparent, it is unnecessary for me to determine whether O 56 would be an appropriate vehicle for Ms Wreford to ventilate her foreshadowed challenges to either the CIV certificate or to the PSSO.
4. For present purposes, it is in my view sufficient to make the following observations:

(1) The court, in any event, has an inherent jurisdiction to set the CIV certificate aside if it is "proper" to do so.[12]

(2) It is trite that the court's inherent jurisdiction may be exercised to 'rectify situations of injustice'.[13]

(3) A relevant consideration as to whether to set aside the CIV certificate, in the court's inherent jurisdiction, would be Ms Wreford's prospects of a successful review of the taxation.[14]

(4) The court, in any event, has power to set the PSSO aside under s 105 of the CJE Act, if the court is satisfied an irregularity has actually occurred.

1. I turn now to consider the question of procedural unfairness.
2. According to Ms Wreford, she was denied procedural fairness because she was not afforded an opportunity to object to the third defendant's bill of costs under O 66 r 53.
3. Ms Wreford explained, both in her papers and at the hearing, that Registrar Fatharly had erred by failing to comply with the taxation process outlined in CPD 4.7.2.
4. CPD 4.7.2. among other things states that 'A taxing officer may, prior to a bill of costs being listed for assessment, make a provisional assessment of the amount at which the bill should be allowed'. (emphasis added)
5. The practice direction relevantly goes on to set up the procedure to be followed in undertaking a provisional assessment and the manner in which objections are to be raised against such an assessment.
6. In my view, the word "may" in CPD 4.7.2 is significant.
7. On its proper construction, it leaves the decision as to whether to conduct a provisional assessment in the hands of the taxing officer alone. It is a decision to be made by the taxing officer in the proper exercise of his or her own discretion.
8. It necessarily follows, contrary to Ms Wreford's suggestion at the hearing, that CPD 4.7.2 neither obliges a taxing officer to undertake a provisional assessment nor grants a right to any party to compel a taxing officer to undertake such a process.
9. There has been no suggestion, nor in my view could there be, that Registrar Fatharly did not properly exercise his discretion not to conduct a provisional assessment.
10. Nor, in my view, has an adequate foundation been laid to suggest that Ms Wreford may not otherwise have been afforded procedural fairness.
11. There was, for example, no suggestion that Ms Wreford did not receive the relevant bill of costs from the third defendant in a timely manner. As I have noted, that bill was filed on 30 September 2024, more than four months before the taxation hearing itself.
12. Although Ms Wreford indicated at the hearing before me that she was not provided sufficient time prior to the taxation hearing to consider any proposed objections to the bill, as has already been observed, the court notified her both of the Registrar's intention to tax both bills at the same time, and of the date of the taxation hearing, more than a month before the hearing occurred.
13. Certainly, there was no suggestion that Ms Wreford was denied the opportunity to raise objections line by line to the bills of costs at the hearing itself.
14. Indeed, Ms Wreford properly accepts that she was given that opportunity.
15. Moreover, the Registrar afforded Ms Wreford a further 21 days, until 28 February 2025, to raise any further objections.
16. It follows, in my view, that I am not satisfied that a challenge to the validity of the CIV certificate on the grounds of procedural fairness enjoys any reasonable prospect of success.

1. I now turn to deal with the foreshadowed ground that the PSSO was irregular.
2. By s 59 of the CJE Act, read with O 46 r 2 of the Rules, a Registrar of the court is empowered to issue a property (seizure and sale) order against the judgment debtor.
3. By s 59 (1) of the CJE Act, an application may be made by a creditor for such an order in order to recover a 'judgment debt'. The expression 'judgment debt' is defined in section 3 of the CJE Act to mean:

(a) a judgment sum;

(b) interest on the judgment sum;

(c) enforcement costs of the judgment.

1. As a matter of both logic and administrative necessity, Registrars of this court are, accordingly, required to calculate the interest (if any) applicable to a judgment before issuing a property (seizure and sale) order.
2. For at least this reason, I consider there is no merit in the suggestion that Registrar Jennings had no jurisdiction to calculate interest on the judgment sum reflected in the CIV certificate.
3. Indeed, in my view, Registrar Jennings was required to do so on a proper construction of the provisions to which I have just referred.

1. I turn now to the suggestion that the learned Registrar incorrectly calculated interest on the judgment sum from the wrong commencement date.
2. I understand Ms Wreford to rely, in support of this argument, on O 66 r 57 of the Rules, which states that:

The costs allowed by the taxing officer on any interim or final certificate of taxation shall be deemed to be a judgment of the Court, and shall be recoverable accordingly.

1. Ms Wreford suggested that the reference in O 66 r 57 to a certificate of taxation being 'deemed to be a judgment of the Court' requires that the interest payable on a judgment sum takes effect from the date the certificate is issued.
2. However, as was explained to Ms Wreford at the hearing, such a construction is incorrect as a matter of law.
3. As the Court of Appeal explained in Rambal v The Griffin Coal Mining Company Pty Limited,[15] interest on taxed costs runs from the date on which the court orders costs to be paid and not from the date on which the certificate of taxation is issued.
4. It follows that Registrar Jennings was correct to assess interest from the date of the Master's order and not from the date of the CIV certificate.
5. In the circumstances, I consider that the contention that Registrar Jennings fell into jurisdictional error enjoys no reasonable prospect of success.

1. For at least the reasons I have outlined, I consider Ms Wreford's foreshadowed application to set aside both the CIV certificate and the PSSO enjoys no reasonable prospects of success.
2. Nor has Ms Wreford, in my view, in any meaningful way, otherwise laid an adequate foundation for a conclusion that there are special circumstances warranting a suspension order.
3. Although Ms Wreford did raise the spectre of her losing her house if a suspension order were not to be made, as counsel for the third defendant correctly observed, she has disclosed 'absolutely nothing about her personal financial situation and seeks the assistance of the court to effectively delay [the third defendant] from the fruits of its judgment, which it obtained from Master Sanderson back on 18 May 2022 and which has been endorsed by the Court of Appeal'.[16]
4. Further, even if the CIV certificate were capable of being set aside on some other basis, there would appear to be little to suggest, at least on a cursory review of the bill of costs, that the end result of any future taxation would likely be materially different.
5. In all the circumstances, the application is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Wreford v Lyle [2018] WADC 173.

[2] Wreford v Casterleyheard Pty Ltd [2022] WASC 164.

[3] Wreford v Castleyheard Pty Ltd [2022] WASCA 91.

[4] Wreford v Castleyheard Pty Ltd [No 3] [2024] WASCA 2 (Quinlan CJ, Mitchell and Vaughan JJA).

[5] Rules of the Supreme Court 1971 (WA) (Rules) O 66 r 57.

[8] See Easy Stay Mining Accommodation Pty Limited v Faigen [2017] WASC 266 [14] - [15].

[9] Cf. Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]; Sims v Suda Ltd [2014] WASCA 113; Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203; and Easy Stay Mining Accommodation Pty Ltd v Faigen [2017] WASC 266.

[10] Supreme Court Act 1935 (WA) s 37 read with ss 155(3) and 155(4).

[11] CJE Act s 15(1); see also Tey v Optima Financial Group Pty Ltd [2013] WASC 384 [21].

[12] See Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155 [67]; Pryles & Defteros (a firm) v Green [1999] WASC 34 [38] (Parker J); Mossensons (a firm) v Coastline Associates (unreported, WASC, Library No 970661, 2 December 1997) at 9 (Ipp J, Pidgeon J agreeing).

[13] Monaco v Arnedo Pty Ltd (1994) 13 WAR 522, 524 (Malcolm CJ, Kennedy J agreeing).

[14] Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155 [67]; Mossensons (a firm) v Coastline Associates (unreported, WASC, Library No 970661, 2 December 1997) at 9.

[15] Rambal v The Griffin Coal Mining Company Pty Limited [2015] WASCA 197 [89] - [97].