Can the taxing master decide professional negligence claims?

Update, 10 March 2009:  See also these posts about Macteldir Pty Limited v Roskov [2007] FCAFC 49, and King v Stiefel [2023] EWHC 453, case note here.

Update, 3 April 2009: It’s still going: Winn v GHB [2009] VSC 93.

Original post: In Winn v GHB [2006] VSC 476, Winn won, another victory for a pro se litigant against their former solicitors, though it seems this former teacher has recently joined the Queensland bar, which suggests she was at something of an advantage over your average punter in unravelling the arcane intricacies of the Supreme Court’s taxing court. Justice Kaye considered whether the Taxing Master was empowered to tax items off a bill of costs in taxable form on a solicitor-client taxation on the basis of professional negligence, and if so, when the process of doing so ought to stop in favour of a properly constituted professional negligence proceeding. His answers? Yes, and it’s a question of degree.Kaye J surveyed the existing law on the subject and concluded:

“18 In my view the following propositions may be derived from the foregoing review of the authorities:

(1) The fact that an objection to a bill of costs may involve an allegation of a negligent error or oversight on the part of a solicitor does not mean that it is not a proper objection to be dealt with on a taxation of costs.

(2) On the other hand, when the nature, extent and effect of the objections go beyond an allegation of negligence in respect of a specific step, or specific steps taken by the solicitors, but relate to the conduct of the whole proceeding, then those matters would not be appropriate grounds for objection to a bill of costs but, rather, ought to be raised in separate proceedings between the client and the solicitors.

(3) There is no sharp line of distinction between what is, and what is not, a matter which is a proper for taxation in accordance with the above principles. The number, nature, variety and extent of the allegations made by the client in objecting to the bill are relevant to determining that question.”

The earlier authorities were:

  • Re Clark (1851) 13 Beav 173; 51 ER 67;
  • The Papa de Rossie (1878) 3 PD 160;
  • Re Massey & Carey (1884) 26 Ch D 459;
  • Abrahams v Wainwright Ryan [1999] 1 VR 102;.

Applying the law to the facts, Kaye J decided that:

“28 It is necessary to bear in mind the nature , as well as the number, of the allegations that are made by the client in the objections. As I have already stated the objections raised are, at least in the main, the type of objections with which a Taxing Master ordinarily deals. They are, I consider, significantly different to the type of allegations made in Abrahams. In that case Brooking JA summarized those allegations in detail, and described them as a “potpourri” of complaints. They pervaded each of the steps taken by the solicitors on behalf of Mr and Mrs Abrahams. As observed by Phillips JA, they were matters which could only be properly raised and determined in a separate action for damages by the client against the solicitor. In the present case, as I have noted, there are nine categories of complaints made by Ms Winn. They are of a different nature to those in Abrahams. Nor are they as diffuse or variegated as the type of allegations noted by Brooking JA in Abrahams’ case. Indeed the central complaints made by Ms Winn comprise three main allegations, namely, the making of three applications rather than one application to set aside the VCAT decisions, the unnecessary briefing of counsel, and the incurring of costs arising out of the solicitor’s delay or failure to take steps within time. Those allegations are to be contrasted with the extraordinarily broad raft of allegations made by the client in Abrahams’ case, a significant number of which could only be properly agitated in a common law proceeding between the client and the solicitors.”

Order 63.23(1) is the relevant provision of the Rules of the Supreme Court. It provides:

“Where a solicitor for a party, whether personally or through a servant or agent, has caused costs to be incurred improperly or without reasonable cause or to be wasted by a failure to act with reasonable competence and expedition, the court may make an order that – (a) all or any of the costs between the solicitor and the client be disallowed or that the solicitor repay to the client the whole or part of any money paid on account of the costs.”

The case was sent back to newish Taxing Master, Jamie Wood, formerly of the Federal Court. The strange thing about this case is that the matter had already been taxed. A bill for $50,000 had been taxed down to $22,000 (slashing 69% from the claim for instructions for brief in the process) (but with no order as to the costs of the taxation). In an interesting move, Ms Winn invoked a procedure I must confess to having been plain ignorant of: something that sounds a lot like an appeal from the Taxing Master to the Taxing Master. Rule 63.56 apparently says:

“(1) Where any party interested objects to an order of the Taxing Master allowing or disallowing, wholly or in part, any item in a bill, or allowing some amount in respect of any item, the Taxing Master may, on the application of that party, review the order….

(5) Upon the application the Taxing Master – (a) shall reconsider and review the taxation upon the objection stated in the notice; and
(b) shall make an order confirming the taxation or make such further or other order as may be necessary.”

It was in the process of doing this that Ms Winn started filing affidavits talking in expansive terms of the overall negligence of her former solicitors. That led Master Wood to set aside his original orders, tell Ms Winn to go off and sue for negligence in a Supreme Court proceeding, if that was how she felt, and order her to pay the costs of the hearing ($10,000). The approach did not find favour on appeal. For one thing, His Honour pointed out at [24] that some of the complaints of Ms Winn involved alleged failures by her former solicitors to comply with the costs disclosure requirements of s. 86 of the Legal Practice Act, 1996 which were capable only of being taken into account, in this case, in a taxation, and not in a professional negligence claim (see s. 91 of that Act).

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