Clone Pty Ltd v Players Pty Ltd

Supreme Court of South Australia
(Civil)
CLONE PTY LTD v PLAYERS PTY LTD (No 4)
[2022] SASC 51
Judgment of Auxiliary Judge Norman a Master of the Supreme Court
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - PARTICULAR ITEMS - DISBURSEMENTS - PARTY'S EXPENSES - TRAVELLING EXPENSES, ATTENDANCE ALLOWANCE ETC
Rulings on Taxation of costs.

CLONE PTY LTD v PLAYERS PTY LTD (No 4)
[2022] SASC 51
Supreme Court – Civil

This is a continuing taxation of the costs of the applicant Clone in these proceedings.
In these reasons the applicant will be referred to as “Clone” and the respondent as “Players”.
Background
The costs now being taxed are those claimed by Clone in its itemised Schedule of Costs filed on 11 March 2008, FDN 146, being two volumes containing five parts for separate time periods with a total of 6008 items.
The taxation of the Schedule was competed on 29 June 2021, however large numbers of items were reserved. The remaining items have since been grouped into discrete topics, and there are now being taxed in progression.
The items recently taxed included the personal and related attendances of Mr Mark Hamilton and Ms Tonia Karagiannis, the principal solicitors acting for Clone during the trial before Vanstone J. In addition, there were clerical attendances, telephone calls, and some correspondence. Players had objected to these items and they were reserved before further materials and evidence were provided to substantiate them.
As part of this process, affidavits of both Mr Hamilton and Ms Karagiannis were filed by Clone, being FDN 272 (Ms Karagiannis’ affidavit of 19 August 2021) and FDN 273 (Mr Hamilton’s affidavit of 20 August 2021).
In their respective affidavits Mr Hamilton and Ms Karagiannis identified the items in dispute, explained their respective roles in the litigation (including Clones’ position that on occasions it was necessary for two solicitors to be working concurrently on the matter), and elaborated on Clone’s claim for the identified items. The also explained the roles of clerks assisting in the litigation.
Both affidavits exhibited supporting documentation including copies of file notes, transcriptions of these in many instances (as some were not legible or were abbreviated) and containing further particulars elaborating on what the claims and attendances were about and why they were necessary.
In his affidavit, Mr Hamilton provided an “aide-memoire” in respect of certain items relating to his attendances in the claim for costs.
At a subsequent directions hearing Mr Cogan, for Players, informed the Court that it wished to cross-examine both Mr Hamilton and Ms Karagiannis on their affidavits, and a hearing was fixed for this purpose.
On 16 November 2021, Mr Hamilton and Ms Karagiannis were cross‑examined on their affidavits by Mr J Whitington, Counsel for Players.
Following that cross-examination, Players filed submissions on 24 February 2022, FDN 278, as to the weight to be given to Mr Hamilton’s affidavit, and on 2 March 2022, Clone filed its responding submissions, FDN 279.
In Players’ submissions it was contended that the aide-memoires were not contemporaneous notes of the matters which they recorded, and that Mr Hamilton did not say in his affidavit that at the time he made each aide-memoire he had a present recollection of the matters referred to therein. In his cross-examination, he had claimed a recollection in only limited instances (transcript of evidence at pages 20 (item 828), 22 (item 930), 37 (item 4931), 49 (item 5093), 43 (item 5644) and 58 (item 4741). It was acknowledged that on a taxation and pursuant to Uniform Civil Rules (UCR) 195.8(2) a Taxing Officer was not bound by the rules of evidence, but submitted that as a matter of logic there had to be some evidence in support of any proposition put by a party. The submissions referred to Cross on Evidence (online)[1] to the effect that a document to refresh memory had to have been made substantially at the same time as the occurrence of events, and had been made and read over and accepted as accurate by the witness while the facts were still fresh in the witness’s memory. They also referred to Haslbury’s Law of Australia (online)[2] that the essential question was the state of witness’s memory at the time of making or the adoption of the notes, and that the shortness of time made it easier to accept the witness’s assertion that the facts were fresh.
[1] Cross on Evidence (online) at paragraph [17180].
[2] Haslbury’s Law of Australia (online) at paragraph [195]-[7820].
The submissions pointed out that Mr Hamilton had made the aide-memoires in 2021 in respect of events that had occurred in 2004-2005 and that in cross‑examination he had conceded that in these circumstances, the aide-memoires were a reconstruction, and further that he had not deposed to having reviewed the materials relied on in preparing these contemporaneously during the period of the particular events in 2004-2005. The reconstruction, it was submitted, was not evidence, and where there was no reconstruction of particular events the Court could only rely on the contemporaneous written record, Wentworth v Rogers.[3]Accordingly, Players submitted, the conclusions of Mr Hamilton were of no value and should not be relied upon by the Court in the taxation.
[3] Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 at [406].
Clone’s submissions noted Players’ acknowledgment that the rules of evidence were not binding on a Taxing Officer, nor did they otherwise apply on a taxation costs, and asserts that the Taxing Master had an unfettered discretion to accept any material in support of the items claimed to the extent that such was of use on the taxation. The onus was on Players to bring forward credible reasons why the material should not be given weight.
Clone also made submissions as to the relevant background to the Hamilton affidavit. The present taxation had been progressed in 2009-2010 consequent to the costs orders in Clone’s favour made in 2005 and 2006 in relation to the trial before Vanstone J. however, it had been suspended, when part complete, when Players had instituted their set aside proceedings in June 2010. These had taken in the order of eight years to resolve, after which the taxation was promptly resumed.
The set aside submissions had been initiated consequent on Mr Griffin, a party to the proceedings and a Director of Players, accessing and viewing documents and information at the offices of Clones’ solicitors ostensibly in connection with the taxation. However, the High Court’s characterisation of that attendance was that its purpose was to determine whether Clone’s solicitors had been aware of the existence of certain documents during the trial. Clone submitted that the implication from this characterisation was that Mr Griffin’s attendance was not in furtherance of the taxation but for some other purpose, and this had the consequence that there was an eight year delay while the set aside proceedings were determined.
Clone submitted that that challenged offended the principle of finality and was uncommercial, and that one consequence was that the file of Clone’s solicitors, Grope Hamilton, now needed for the taxation, was used in the set aside proceedings where it contained material relevant to Players’ allegations, and which were discovered in the set aside proceedings. The file had become incomplete and had been picked over and pulled apart over the years.[4]
[4] T. 23 of Mr Hamilton’s cross-examination on 16 November 2021.
In the light of these matters, Clone submitted, Players’ actions of using a taxation inspection to launch a set aside application was the cause of the suspension of the taxation and the delay in resuming it, and this delay had hampered and impaired Clone’s ability to obtain evidence from witnesses to substantiate items claimed in the Bill. The difficulties now faced by Clone, namely missing documents, incomplete files, and difficulties with witnesses having actual recollections as to the trial, were a product of Players’ own making, and the Court should not permit the impediment caused by these issues to be visited on Clone to its prejudice.
In relation to Mr Hamilton’s position to depose as to his attendances, Clone submitted that he was a solicitor of long experience, the file principal at the time of the trial, and a witness both at the trial and in the set aside proceedings, all factors which should be given significant weight. To the extent that his evidence was a reconstruction, Mr Hamilton had at the relevant time first-hand knowledge of the relevant matters, and still maintained some actual recollections and the benefit of contemporaneous documents while preparing his aide-memoires. It had never been put to Mr Hamilton in cross-examination that his evidence or aide‑memoires were inaccurate, overstated, or otherwise not reflective of his understanding and recollections. He had given evidence that he had certain actual recollections.[5]
[5] T. 43 of evidence.
It was put that Players was required but had failed to identify the specific evidence which it asserted had been compromised. It had never been put to Mr Hamilton that his evidence was inaccurate, overstated, unreliable or was otherwise not reflective of his current understanding and recollections, and the objection that the aide-memoires were prepared well after the events in question was misguided. Mr Hamilton had examined correspondence, file notes and expert reports, court documents and the like which were either produced by him or read by him at the relevant time. The aide-memoires stood as the equivalent of oral evidence by a witness refreshing memory. The laws of evidence did not require an actual refreshing of memory, and it was sufficient that having reviewed the contemporaneous documents, Mr Hamilton was of the view that those facts were as specified in them or inferred in them Maugham v Hubbard,[6] Topham v McGregor,[7] and Kelsey.[8]
[6] Maugham v Hubbard (1828) 8 B&C 14 (108) ER 948.
[7] Topham v McGregor (1844) 174 ER 829.
[8] Kelsey (1982) 74 CR App R 213.
On 1 April 2022, Clone provided a cross-referencing schedule linking disputed items in its Schedule of Costs to references in Mr Hamilton’s affidavit and in the transcript of the cross-examination of Mr Hamilton on the contents of his affidavit.
When the taxation resumed on 10 March 2022, I heard oral submissions from the parties speaking to their written submissions. I reserved the right to provide written reasons, but in oral reasons I ruled that I did not regard the delays in the matter occasioned by the set aside application as excusing Clone from its obligations as a claiming party on a taxation to substantiate the items it was seeking to recover.
Further, I accepted Clone’s submissions (conceded by Players) that on a taxation and pursuant to Uniform Civil Rules 195.8(2) a Taxing Officer was not bound by the rules of evidence, although I also found that as a matter of logic there had to be some evidence in support of any proposition put by a party. I indicated that each and every disputed item in the taxation would be dealt with on its own merits based on the material before the Court in substantiation thereof.
I will provide my written reasons for these oral rulings later in this judgment.
Thereafter, on the same date the taxation resumed and continued with further hearings on 5 April 2022 and 19 April 2022.
During the 5 April 2022 hearing, an issue arose as to what amount should be allowed for item 4738 of Clone’s Schedule of Costs. I heard submissions on this issue from Mr W Ericson, for Clone, and Mr T Cogan, for Players, and reserved my decision.
The following are the reasons for my decision on that item.
Travelling time of a solicitor
Item 4738 claims as follows:
17 Mar 2055 – 4738 – Attendance by Mr Hamilton to Adelaide Development Company files re Atkinson searches (2 hrs) [10] - $240.00
In his affidavit Mr Hamilton exhibited the following file notes as to this item:
Aide memoire filenote for 4/11/19 – Item No 4738
TRIAL DAY 9
This was on Thursday, 17 March 2005, which was Day 9 of the trial before Vanstone J. I personally attended at the offices of Adelaide Development Company Pty Ltd at 83 Pirie Street Adelaide. I travelled there from the offices of Grope Hamilton Lawyers at 15 Bentham Street, Adelaide. At that point, we were seeking to locate Steven Moyes, who had some form of dealings with the tenant, Players Pty Ltd, regarding possibly taking over the licensed premises. These discussions had ultimately involved Adelaide Development Company Pty Ltd, on behalf of Clone Pty Ltd. It appears that we had arranged for Atkinson Commercial Services, who are bailiffs and search agents, to try and locate Mr Steven Moyes, so that we could potentially call him as a witness. Adelaide Development Company had the files of Clone Pty Ltd. We did not yet have any documentation relating to dealings by Clone Pty Ltd with Mr Steven Moyes. It looks like I was trying to get hold of any documentation in the possession of Adelaide Development Company Pty Ltd regarding the dealings or knowledge of Mr Stevens Moyse which Clone Pty Ltd had. It looks like I was looking through files, trying to locate such documentation.
MAH
During submissions it became apparent that of this claim for a two hour attendance by Mr Hamilton, 30 minutes of that time involved his travelling to and from Grope Hamilton’s office at 15 Bentham Street Adelaide to the office of Adelaide Development Company at 83 Pirie Street Adelaide, a round trip, I understand, to be a little over one kilometre in distance. The attendance at Adelaide Development Company was therefore, for one and a half hours duration only, and not for two hours.
Mr Cogan, for Players, objected to the half hour which comprised the travelling time. In his submissions, as I understood them, the practice of the Courts in taxation of costs was not to allow time spent by a solicitor in travelling within the city, including travelling to and from Courts within the city.
Mr Ericson, for Clone, however submitted that the travelling by Mr Hamilton to Adelaide Development Company’s office from his own office should be permitted, as it was necessary that he be at that Company’s offices to go through Clone’s files stored in there in order to ascertain details concerning any dealings relating to Players between Clone and Steven Moyse, a potential witness for Players.
Counsel referred to the approach of taxing masters from time to time on the issue of travelling time, but no specific authorities were cited.
Item 4738 elated to an attendance on 17 March 2005. As at that date the relevant Supreme Court Scale for Costs was the Tenth Schedule to the Supreme Court Rules (1987), which Schedule applied with respect to work done on and after 3 May 2004, SA Government Gazette at page [1139].[9] The Tenth Schedule continued in operation until the Eleventh Schedule came into operation, which covered work done on and after 1 August 2005, SA Government Gazette at page [2366].[10]
[9] SA Government Gazette, 29 April 2004 at page [1139].
[10] SA Government Gazette, 14 July 2005 ay page [2366].
The item in contention refers to the Scale Item [10] but this appears to be incorrect; whereas the Ninth Schedule which came into force in respect of work done on and after 1 April 2022, SA Government Gazette at page [1375],[11] contained as Item [10] a claim for solicitor’s travel time, the Tenth Schedule Item [10] related to a clerk’s attendance.
[11] SA Government Gazette, 21 March 2002 at page [1375].
It would seem therefore that the item 4738 claimed by Clone should refer instead to Item [8] to the Tenth Schedule, which provided as follows:
[8] The attendance of a solicitor where work done does not require special skills or legal knowledge, but where it is proper that a solicitor should personally attend, and travelling time, per hour (See Note K).
Note K relates to an instructing solicitor attending in Court, and does not refer to travelling time.
The allowance per hour under Item [8] was $154.
The Supreme Court Rules (1987) Tenth Schedule Scale Item [8] provision had continued long standing and virtually identical provisions which had allowed travelling time for solicitors.
As at 1 January 1974 and onwards the Fifth Schedule to the then Supreme Court Rules, provided an Item [17] for:
The attendance of a solicitor where work done does not require special skill or legal knowledge, but where it is proper that a solicitor should personally attend, and travelling time, per hour.
The rate then fixed for such an attendance was $18.
Subsequent iterations of the Scale continued to allow a rate for the travel time of a solicitor. I refer to Item [17] of the Sixth Schedule which operated in respect of work done on or after 1 September 1984 and until 31 December 1986; Item [17] of the Second Schedule which applied for work done from January 1987 to 5 July 1992; Item [8] of the Fourth Schedule which applied for work done from 1 July 1992; Item [8] of the (further) Fifth Schedule which applied for work done from 2 August 1999, Item [8] of the Seventh Schedule which applied for work done from 1 July 2000, and Item [10] of the Ninth Schedule which applied for work done from 1 April 2002 and continued until the Tenth Schedule, which applies to Clone’s claim, commenced on 3 May 2004.
I note that, in contrast to these previous scales, the present Higher Court Costs Scale in Schedule 6 to the Uniform Civil Rules (UCR) does not explicitly provide for travelling time. However, Item [7] to that Scale, which relates to solicitors’ attendance, provides a fee in sub-paragraph (f) for each six minute unit by a lawyer not involving skills, and this will presumably incorporate properly incurred travelling time.
In the Commentary to the (the Butterworths) Legal Costs South Australia Service 20 (December 1986), in relation to the 1 January 1974 Fifth Schedule, the then author Supreme Court Master RM Lunn QC wrote:
The only travelling time which is allowed is travelling for a particular purpose which is justified by the matters in issue. Except in respect of Circuit Courts it is not usual to allow travelling time for trips to Court, Government Offices or conference with other solicitors or counsel. Travelling time is usually allowed for views and consulting expert witnesses where such witnesses would not usually be expected to attend at the Solicitor’s own office. If a solicitor has his offices away from the Courts and Government offices, he cannot claim the costs of travelling to and from such Courts and Offices. In respect of Circuit Courts it is usual to allow the cost of Adelaide solicitors travelling to and from the Circuit Courts unless it would have been more reasonable to have employed solicitors in the Circuit town for the purpose.
There are few authorities in relation to travelling time by a lawyer, although in the context of Adelaide Counsel travelling to a country Court on a criminal trial the issue was considered by Legoe J in Carter v Coombe.[12] This involved an appeal from a decision of a Magistrate sitting in a criminal prosecution in a country Court which had refused a claim for the engagement of counsel from Adelaide. The Magistrate had found that local counsel was competent to conduct the trial in a satisfactory manner on behalf of the defendant, so the complainant should not have had to bear the expenses of travel and accommodation of counsel from Adelaide. Legoe J, however, found that that the appellant was entitled to retain a solicitor and counsel of his choice, albeit at some risk to the prosecution by way of costs if it failed, and the counsel of choice had had to come from some distance away. He also held that the costs of bringing counsel from Adelaide were reasonably incurred. After summarising in detail the principles of law in relation to Courts of summary jurisdiction, Legoe J found that counsel retained by the appellant had been briefed in a previous matter involving the appellant, he was an experienced junior counsel, and that as local lawyers had to work with and act closely with the local police force in the town this would create an awkward situation if the local police went against them, whereas Adelaide Counsel was independent. Allowing the appeal, he allowed counsel fees, as well as travel and accommodation expenses, of the Adelaide Counsel.
[12] Carter v Coombe (1989) 154 LSJS 317.

I have considered Clone’s claim for travelling time having regard to the above matters and to the wide discretion allowed to a Taxing Officer by the rules.
It is clear that there is no hard and fast rule that an allowance for travel by a solicitor is restricted to particular circumstances or by geographic location. Travelling time will be allowed on taxation to a solicitor provided that the Court is satisfied that the work was reasonable and necessary, and that it was incurred for a particular purpose justified by the matters in issue. Examples include attending a view, interviewing a witness, or travelling to a Circuit or suburban or country Court. Each matter will depend on its own circumstances. The Taxing Officer has a wide discretion.
In the present instance, it was clearly reasonable and necessary for Mr Hamilton to inspect Clone’s files. He wished to see them for a purpose relating to the litigation, namely to investigate dealings between Players and Clone on the issue of possibly taking over the licenced premises. Mr Hamilton wished to locate Mr Steven Moyse in order that Clone could potentially call him as a witness. He did not then have any documentation relating to dealing by Clone with Mr Steven Moyse. The role of Adelaide Development Company in the litigation was clearly relevant and it was referred to several times in the reasons of Vanstone J.[13]
[13] [2005] SASC 281.
Clearly Mr Hamilton had to travel to the offices of the Adelaide Development Company to inspect Clone’s files. Presumably these were extensive documents and it would have been impracticable for him to have looked at them in any other way.
In these circumstances, I allow the travel component of Item 4738, although at the lower rate as provided in Item [8] to the Tenth Schedule.
I will hear from the parties when the taxation resumes as to the balance of the claim made in that item.
Evidence on a taxation of a claiming solicitor’s attendances
In the parties’ written submissions FDN 278 and FDN 279 and in their oral submissions at the 10 March 2022 hearing they addressed the evidence available to the Court in relation to the disputed claims for attendances of Clone’s solicitors and related items.
The first issue raised was the fact of the delay occasioned in the proceeding of this taxation by reasons of the set aside application initiated by Players.
Clone had argued that its inability to obtain evidence to substantiate items claimed in its Bill, and the difficulties with missing documents, incomplete files and witnesses not having actual recollections as to the trial which had occurred some 17 years before, and the like were the product of Players’ own making and that the Court should not permit the impediments caused by these issues to be visited on Clone to its prejudice.
However, the fact is that a party to proceedings has an obligation to maintain an adequate record of its costs – 6R rule 262 (albeit that this only requires a record to be kept sufficient to allow the expeditious production of a Claim for Costs under 6R 271(1) and 271(2), which is considerably less detailed than what is required for properly preparing an itemised Schedule, Baronglow Pty Ltd v Thomas (No 7),[14] Judge Lunn at [16], Uniform Civil Rules 191.2 is to similar effect.
[14] Baranglow Pty Ltd v Thomas (No 7) [2008] SASC 33
A party must ensure that its records to substantiate any claim for costs in its favour are properly kept and maintained whatever twists and turns the case may take, and however long the period may be between the undertaking of the work and the eventual taxation.
There are often reasons why the progression of claims for costs are delayed, and the consequences for a party which is unable by reason of its own actions to properly substantiate its costs, cannot be visited on the paying party which will not privy to the details of the claiming party’s costs, and how they are recorded and substantiated, until the taxation process commences.
Further, it is clear from the authorities referred to below that a party seeking to recover costs but which cannot substantiate the detail of an attendance, other than to establish that fact of the attendance, is at risk of the Court coming to the conclusion that the attendance was unnecessary, and disallow, or partly disallow, the claim.
I accordingly indicated in my oral reasons that any impediment to Clone’s ability to justify the times in its costs claim could not be sheeted home to Players, notwithstanding that the latter was ultimately unsuccessful in defending the proceedings.
The second issue raised by Clone was that on a taxation and pursuant to UCR 195.8(2), a Taxing Officer is not bound by the rules of evidence. Players did not dispute this contention, and I accepted it. However, notwithstanding this proposition, as a matter of logic there has to be some evidence in support of each and every attendance claimed by a party in its Schedule of Costs, and each item has to be dealt with on its merits.
I adopted this approach in the taxation of the claim. In some instances, Mr Hamilton had a specific recollection of an attendance, even if not the date, but generally, he said that he had reconstructed what had occurred from the surrounding documents.[15] In some instances, Mr Hamilton said that he had no file note.[16]
[15] T.12 Line 19.
[16] T.33 Line 27.
In his aide-memoires he used other expressions as to his recollections, including, without being comprehensive , the following:
·“would have”: items 4364, 4372, 4373, 4377, 4539, 4545, 4586, 4588, 4589, 4591, 4737.
·“I believe”: item 3853.
·“I assume”: items 3710, 4488, 4498.
·“it appears”: items 3980, 3993, 4586, 4666.
·“it is probable”, “probably”, “possibly”, “perhaps”: item 4595, items 3967, 4374, 4640, 4760.
·“I think”: items 3993, 4376, 4462, 4590, 4592, 4640, 4667.
·“it looks like”: item 4366.
In some instances, the aide-memoire was more specific as to attendance notes.
In these circumstances, I approached each item on the taxation on its own merits.
In some instances, I disallowed the item in its entirety (e.g. items 3980, 3993, 4364, 4372, 4374, 4373, 4588, 4589, 4590, 4591, 4595, 4666).
In others I allowed the item in its totality (e.g. items 3710, 4366, 4488, 4545, 4592, 4667, 4739).
Substantiating a claim for the attendances of a solicitor
During the course of this taxation there had been numerous objections taken by Players to claims made by Clone for the attendances of its solicitors from time to time. In various instances such claims have been either wholly or partially disallowed, as has been marked by me alongside the items as the taxation has proceeded. During the course of the taxation, I have provided brief oral reasons in these cases, but as is usually the case on a taxation, no transcript has been taken. I have thought it appropriate, therefore, to provide some written reasons for these rulings, although these are general rather than in the context of any particular item.
The majority of the claims in this category are based on items [9] and [10] of the Ninth Schedule, items [7] and [8] of the Tenth Schedule, items [7] and [8] of the Eleventh Schedule of the Supreme Court Rules (1987), and items [7] and [8] of the First Schedule to the Supreme Court Rules (2006) (the higher and lower rates of a solicitor, respectively), covering the period of the claim from 3 February 2004 to 21 November 2007.
The requirements for Schedules of Costs for work undertaken during the above periods as set out in the Approved Forms are that the description of each item should be as brief as possible, but include enough detail to enable the respondent to make appropriate offers, and abbreviated reasons for dispute, for example, names of solicitors should be provided, documents drawn or perused and their length should be identified, and the nature of attendances should be briefly described: e.g. sol for solicitor, cl for client, ltr for letter and for scale items were to be used where possible.
However, notwithstanding the brevity of description required for claims made in a Schedule of Costs, it is required that in order for claims to be substantiated and allowed as proper costs, the claiming party must ultimately sufficiently detail the work undertaken so as to demonstrate that it was reasonably and necessarily undertaken in the circumstances.
The substantiation should enable the paying party to analyse the work done and the time taken in doing so in sufficient detail so as to enable it to agree to the figure or challenge it, and for the Taxing Officer to make a ruling when a claim is disputed. As was observed by counsel during submissions, if details of an attendance, and what was discussed and what took place, are not important enough to have been recorded on a file note, it should not generally be appropriate to be allowed on taxation.
In his decision in In the matter of Bill of Costs of Lamrock, Brown & Hall,[17] Cussen J observed on a review of a taxation of costs that if a solicitor could say nothing more than that there were a number of attendances in the course of preparing the hearing of an action, and could give no information as to the specific advice given, the Taxing Officer might properly come to the conclusion that some of the attendances charged for were unnecessary, and disallow them.
[17] Brown & Hall [1908] VLR 238.
In Quick on Costs (Lawbook Co, Australia, Online edition) the learned author refers to several cases on point.
In Re Snell,[18] Jessell MR held at first instance that a claim for costs was bound to disclose sufficient detail to enable a person ordinarily acquainted with the business to tax it, and that a claim required dissection, with particulars and details to be furnished before a decision was made as to whether it was a proper charge or not.
[18] Re Snell (1877) 5 Ch D 815 at [826].
In Re Cosedge,[19] Kay J on review of a taxation held that a solicitor who has failed to keep full entries of the work done by him, but had by estimate and recollection assigned the several pieces of legal business to the dates given in his bills, was, by reason of his neglect of the ordinary routine of business by not keeping the usual records, precluded from recovery of numerous items in his claim for costs.
[19] Re Cosedge (1885) 29 SJ 306.
Referring to Slingsby v Attorney-General,[20] the learned author notes that that the details of attendances should show the date, the time taken in attendance, whether the attendance is a personal or a telephone attendance, the length of the attendance, the persons attending, whether the attendance was one by a solicitor or a clerk, or, time spent in travelling, or, time spent in waiting for an action to commence or for a matter to be called on in Chambers. Attendance notes on counsel should clearly show any advice or instruction given by counsel and separately indicate the nature of and extent of counsel settling any documents during the conference, attendance notes in relation to discovery should indicate in a general way the nature of the documents examined or, for example, describe these documents by reference to numbers of a lever arch files or archive boxes. A short general description of the nature of the documents examined should also be taken into account, and careful notes should also be made of any time separately spent in considering and reaching decision on claims relating to privilege. Where an attendance is by telephone the note should clearly record whether the telephone call was ingoing or an outgoing, and where a telephone call was made at the request of an opponent, proof of that would make it difficult for her or him to argue that the call was unnecessary
[20] Slingsby v Attorney-General [1918] at page [236]-[241].
Of course, each item in a claim must be looked at on its own merits, and ultimately the discretion to allow, or disallow, or partly allow, will be for the Taxing Officer to determine, as was the case in the disputed items in this category dealt with on this taxation.
In proceeding with the taxation of Clone’s costs, I had regard to the above considerations. In some instances, where there were detailed and comprehensive file notes produced to substantiate the claim, I allowed the item in full. Om others, even where a few or indeed no details of the attendance were provided, I also allowed the attendance in full (such as at particular stages of the hearing where I considered it appropriate for the solicitors to confer with counsel and/or the client on a “catch up” basis). In other instances, I either reduced the amount allowed, or wholly disallowed the claim, where there was little or no information provided as to what the attendance was about.
Summary of Orders
I allow the travel component of item 4738 of Clone’s claim for costs, although at the lower rate provided in Item [8] of the Tenth Schedule.
I will hear from the parties when the taxation resumes as to the balance of the claim made in that item.

[2022] SASC 51

17 May 2022