Clone Pty Ltd v Players Pty Ltd (No 5)

Supreme Court of South Australia
(Civil)
CLONE PTY LTD v PLAYERS PTY LTD (No 5)
[2022] SASC 135
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 - SOLICITOR'S PROFIT COSTS - PERUSAL
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.
Supreme Court Rules 1987 (SA) Schedule 10; Uniform Civil Rules 2020 (SA) r 71.1, 71.2, 195.2(3), 195.8, 195.23; Federal Court Rules (Cth) Schedule 5; Legal Costs South Australia Service, referred to.
D.M Wright & Associates v Murrell (No 2) [2021] QDC 141; Gibson v Drumm & Others [2006] NSWSC 570; Fat-Sel v Brambles Holdings [1984] FCA 204; Kuek v Devflan Pty Ltd & Anor [2009] VSC 91; McCoombes v Curragh Queensland Mining Limited [2001] QDC 142; Players v Clone [2019] SASC 186; Players v Clone [2022] SASC 51; Wentworth v Rogers [2006] NSWLR 484, considered.

CLONE PTY LTD v PLAYERS PTY LTD (No 5)
[2022] SASC 135

Background: In these reasons the applicant will be referred to as “Clone” and the respondents as “Players”. This is a continuing taxation of the costs of the applicant in these proceedings, which are claimed largely pursuant to the ‘Tenth Schedule’ of the Supreme Court Rules 1987 (SA) (“SCR”).
The costs now being taxed are those claimed by Clone in its itemised Schedule of Costs (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 they are now being taxed in progression.
Various issues have arisen in this part of the taxation and points of principle have been argued by Counsel.
In the case of issues relating to perusals of documents and the production of file notes relating to those perusals, a claim for travel expenses to confer with Counsel, and the drawing and engrossing of draft chronologies, the Court’s decision was reserved, and in relation to a claim for attendances of Clone concerning a potential but not proceeded with cause of action, an attendance of a clerk to peruse transcript, and a conversational attendance between two solicitors within the same firm, written reasons are now provided.
Perusals of documents
Items presently being taxed include the perusal of numerous documents and groups of documents, including discovered documents, by Clone’s solicitors.
In some instances, perusals have been claimed on a scale basis (Item 5 of the Tenth Schedule) and in others on a time basis (Item 7 of the Tenth Schedule). Issues have arisen as to whether it is appropriate to use either, or both alternatives, and whether Clone should be required to produce its file notes in relation to perusals.
On 6 July 2022, Players sought production of the work in progress and other time entry records of Clone’s then solicitors relating to perusals, so that any records of time spent on the perusal items could be considered in determining whether to allow perusals of large volumes of documents at an hourly rate and, if so, the amount of time to be allowed for such perusals. This request for production of work in progress and other time entry records was opposed by Clone.
By agreement, the parties primarily rely on written outlines of argument. Players filed their submissions on 19 August 2022 (FDN 292) and Clone filed its submissions on 2 September 2022 (FDN 293). Supplementary submissions have also been received.
Players’ submissions
The basis of the Players’ request for production of work in progress and other time entry records is because in their submission the application of the scale perusal rate on various occasions produces an obscure and untenable outcome on the Bill of Costs.
For example, they point out that item 424 in the Schedule of Costs is said to be in respect of “perusing documents for inclusion of documents for discovery by Ms Karagiannis (documents numbered 1-165) (500.pp)”. An amount of $3,500 is claimed (being 500 pages at the $7.00 perusal rate). However, if that amount of $3,500 is divided by the highest solicitor attendance rate in the Tenth Schedule (being $250), then the amount to $3,500 would equate to 14 hours of work done by a solicitor. An allowance of 14 hours for reading 500 pages of documents is, it is submitted, on its face unreasonable. For this reason, they seek production of Clone’s work in progress and other time entry records so that any record of time spent can provide guidance to the Court in considering what allowance of time for the perusal would be reasonable.
Players also note that various perusal items listed on Clone’s Schedule of Items relevant to the perusal of documents (FDN 291) have been claimed in the Schedule at an hourly rate, rather than the scale page rate (see items 2508, 2680, 2937, 4712). In respect of those items, it is submitted, Clone would be obliged to produce evidence of the time spent which, presumably, will be relevant entries in the work in progress and/or time entry records. They submit that in such circumstances, it might be appropriate for the Court to allow an hourly rate in respect of such bulk perusal items rather than the specified perusal page rate in item five of the Tenth Schedule.
They contend that they, and the Court, ought to have these work in progress and other time entry records available when each of the perusal items being assessed, so that a proper decision can be made as to whether the scale page rate or an hourly rate would be more appropriate in that individual circumstance.
They note that work in progress and other time entry records have already been extensively referred to by Clone’s solicitors during the ongoing taxation by using a laptop computer, such that they should be easily accessible and available to be produced to the Court and Players in respect of the perusal items.
Clone’s submissions
Clone’s primary submission is that the per page perusal rate is the appropriate and default method of allowing ‘perusal’ claims by solicitors, which must be applied unless the party opposing its use proves with admissible and cogent evidence, supported by compelling reasons, that the Court’s discretionary power to substitute the per page perusal rate for a time basis charge should be exercised. Those reasons were not present in this case, it was submitted, and the per page perusal rate was the default position. Clone referred to the Tenth Schedule perusal rate, as discussed below.
This was clearly the prima facie applicable rate it submitted, and it was uncontroversial that it is standard practice to present claims which are charged on a per page basis.
Clone submitted that Note J to the Tenth Schedule did not purport to, nor did it in fact, replace the general Scale provision. Rather, it merely gave a taxing officer a discretion to apply an hourly rate in lieu of the per page rate. This was made clear by the word “may” and by the inclusion of the comment as a ‘note’ as distinct from a substantive part of the Scale. It was a secondary option, only to be exercised in rare and exceptional circumstances.
It was noted that Players appeared to assert that the discretion should be exercised in furtherance of the Court’s comment in Players v Clone[1] referred to below. However, that comment had been made in a different context, namely in relation to an interim allocator, and it was not the product of any argument or submission on the point, and it was never intended to be an overarching infallible statement of principle. The Court’s reference there was to “bulk” (large numbers of) documents, and this was limited to circumstances involving a large quantity of very homogenous documents being perused at the same time.
[1] Players v Clone [2019] SASC 186.
Players had urged that the discretion to fix perusals based on an hourly rate should be exercised to avoid the purported ‘injustice’ that would be occasioned by the application of the default position. Clone submitted that this had been done with reference to one example that they had cherry picked out of the bill. Further, Players’ position was not consistent with the wording of Item 5, or with Note J, which at best merely gave a discretionary power to the taxing officer.
The position, Clone submitted, was that the normal per page rule applied unless and until it was disapplied by a taxing officer, and it followed that it was entirely appropriate for a party to make its claims on a per page basis and only reformulate if, and only if, an order was made by the taxing officer to make a discretionary allowance under a time basis. Consistent with this, there was no inherent discretion to replace a per page perusal fee with an hourly rate.
The only gateway to using an hourly rate was through the specific application of the discretion under the Note. Clone referred to Fat-Sel Pty Ltd v Brambles Holdings Ltd.[2]
[2] Fat-Sel Pty Ltd v Brambles HoldingsLtd (1985) 61 ALR 536.
It was submitted that in many instances, including the example given in Players’ submissions, a solicitor was not perusing a large quantity of largely identical documents, but rather a variety of highly variegated documents for the purposes of making discovery, each of which required the application of independent thought and consideration. These could have been charged on an individual basis for each document, and thus there would have been no possibility of them being categorized as a bulk perusal. However, for convenience the bill was drawn to put them into a single item rather than numerous individual items. The description as such did not render it a “bulk” perusal.
Further, and importantly, the request for time-based charges at or around the date of the bill items was based on a false premise, as it assumed that the per page perusal fee was a fee only for the first reading of a document when it first came to a solicitor. However, during a litigious matter, important documents would be read and re-read several times. Players’ had overlooked the policy behind a perusal allowance, which was that the perusal fee was a once and for all fee which in general covered all subsequent readings of the document. For this reason, the per page fee for reading of a document might cover more than the first reading of the document. This was the deliberate policy of the Scale, and this policy should not be prejudiced and undermined by an excessive use of the time charge discretion under the Note to the Scale.
In conclusion, Clone submitted that Players’ seeking of records of the internal costing documents of Grope Hamilton was premature, and unless it can be shown (and it had not) that a particular item should be discretionarily required to be taxed at an hourly basis, such records were irrelevant. They were not documents which were required to be produced under the Uniform Civil Rules 2020 (SA) r 195.2(3), as they were not documents on which Clone proposed to rely (other than those handful of items for which Clone had charged on a time basis), and it was accepted that records relating to these would need to be produced.
The proper approach, Clone submitted, was for the court to examine each item individually and to only order production if it was of the view that it should be taxed on a time basis.
Principles
The relevant Costs Scale for most of the period to which the perusal items relate is the ‘Tenth Schedule’ of the SCR which provides in relation to perusals:
Perusing any document, per A4 page or the equivalent thereof $7.00
If of substance, not exceeding per A4 page $19.00
(See Notes D and J)
Note J thereto provides:
The maximum rate for perusal is appropriate for documents such as pleadings, particulars, advices and opinions and for the more complicated medical and expert reports. A middle range figure will be appropriate for standard expert reports, lists of documents and medical reports. The lower rate will apply to appearances, ordinary correspondence, special damages, vouchers and the like.
Note J concludes by presenting an alternative basis on which a perusal claim may be awarded, stating:
In cases where a large volume of documents is required to be perused the hourly rate may be allowed by the taxing officer in lieu of a perusal fee.
In Lexis Nexis Legal Costs SA at paragraph [2321] reference is made to the above provisions. There is also reference to Fat-Sel Pty Ltd v Brambles Holdings Ltd[3], where Beaumont J had been referred a question by a taxing master as to whether the latter had a discretion to allow items at other than the scale, measurement or fee contained in the Second Schedule to the Federal Court Rules. The relevant rule, Order 62 Rule 19, provided that:
on every taxation the taxing officer shall allow all such costs, charges and expenses as appear to him to have been necessary or proper for the attainment of justice or for maintaining or defending the rights of a party, but, except as against the party who incurred them, costs shall not be allowed which appear to the taxing officer to have been incurred or increased:(a) through over-caution, negligence or misconduct;(b) by payment of special fees to counsel or special charges or expenses to witnesses or other persons; or(c) by other unusual expenses.
[3] Fat-Sel Pty Ltd v Brambles Holdings Ltd (1985) 61 ALR 536 at [12].
Beaumont J found that, subject to the application of Order 62 Rule 19 where appropriate, the taxing officer was bound to allow costs in the amounts specified in the Second Schedule, and specifically, where that Order was not applicable, the taxing officer had no jurisdiction to reduce those amounts merely because it was considered that an "unreasonable" result would thereby be achieved.
Players have referred to my decision in Players v Clone[4] where the Court held:
It is clear from the schedule of Supreme Court costs that when perusing bulk documents these are to be reduced to whatever reasonable time was spent. This should be spelled out in the claim.
[4] Players v Clone [2019] SASC 186 at [162].
However, this comment was made in a different context, namely in relation to an interim allocator, and it was not the product of any argument or submission on the point. It was never intended to be an overarching infallible statement of principle.
In Kuek v Devflan Pty Ltd & Anor[5], Beach J undertook a review of a taxation of costs which included amounts in relation to the perusal and scanning of documents. In his reasons, he referred to paragraphs 37 and 42 of the taxing master’s judgment which included the following:
These items relate to perusing and scanning documents. A perusal is a scale item (items 25 & 26). ‘Scanning’ is the term to describe a lesser amount allowed pursuant to the discretion to allow a lesser sum referred to in scale item.
The point of including a perusal/scanning item in the scale is to avoid having to establish all the time spent in looking at each document on each occasion it is looked at and charging the Taxing Master with a responsibility to assess whether on each occasion it was necessary or proper to do so. This is the rationale behind a folio rate – that is a ‘once and for all’ allowance in a lump sum. If it were intended that perusal of documents is to be assessed on a time basis, then there would be no perusal rate in the scale and all work would be assessed on a time basis. This point is underscored by scale item 27, where the scale item for ‘examining a document or checking a proof or print or examining an appeal book’ is on a time basis. This is the exception however, the general rule is that quantification of the costs of perusal of a wide range of specified documents (notably including affidavits) per folio is the norm (see scale items 25 and 26).
[5] Kuek v Devflan Pty Ltd & Anor [2009] VSC 91 at [37]-[42],
Beach J found no error in the Taxing Master’s approach as above.[6]
[6] [2009] VSC 91 at [22].
Consideration
There is no inherent discretion to replace a per page perusal fee with an hourly rate.
In Fat-Sel the Court held that it had no jurisdiction to reduce amounts claimed for perusals merely because it was considered that an "unreasonable" result would thereby be achieved, that case was decided based on the then Federal Court Order 62 Rule 19, which (subject to a provision which was not applicable in that case) used the words:
on every taxation the taxing officer shall allow all such costs, charges and expenses as appear to him to have been necessary or proper for the attainment of justice or for maintaining or defending the rights of a party”
(emphasis added).
However, Note J to the Tenth Schedule (which applies here) is in different terms. It specifically provides that in cases where a large volume of documents is required to be perused, an hourly rate may be allowed by the taxing officer in lieu of a perusal fee. Having regard to that provision, the task of the court on any claim for such perusals will be whether this should be allowed on a scale basis or on a time basis. If there is a large volume of documents perused on a particular occasion, it will be for the court to determine whether it should exercise its discretion under Note J (or its present equivalent in the UCR Higher Courts Costs Scale). Each case will turn on its own facts, but the volume of documents incorporated in any item of the costs claim will be a relevant factor.
However, importantly, even if perusals, or bulk perusals, are allowed on a time basis instead of a scale basis, the court in fixing the amount to be allowed should nevertheless have regard to the fact that perusals are traditionally allowed on a ‘once and for all’ lump sum allowance. This should be considered in fixing the quantum of costs to be allowed.
Production of file notes to verify perusals
Players’ submissions
Players referred to UCR r195.2(3) requiring a claimant, if the claim proceeds to taxation, to at the request of the liable party, produce for inspection any documents on which the claimant proposes to rely. They submitted that the appropriate approach was in respect to each claim for perusals where a bulk rate might be appropriate, to determine whether time records would be of assistance in considering an appropriate perusal and/or examination rate and, if so, to direct the production of any such records.
Players submitted that the taxing master in Kuek ultimately took time records for reading documents into account in determining whether to allow the claim at the perusal rate or the scanning rate. The last sentence of paragraph 37 of the taxing master’s judgment supported the proposition that records of time spent may be relevant to allowances for reading documents where the Scale contemplated an allowance on a time basis whether for scanning (as in that case) or pursuant to a discretion (as is the case under the South Australian Scale).
Clone’s submissions
Clone submitted that Kuek supported its position in relation to perusal claims, as while in that case the production of supporting documents was allowed, this was only on the basis that this might assist in determining whether to allow a higher perusal rate or lower scan rate. Whilst in Kuek the production of supporting documents was allowed, it submitted, that was only on the basis that this might assist in determining whether to allow a higher perusal rate or lower scan rate. However, that was not the challenge being made in the present taxation. Players’ claim that charges should be allowed on a time perusal basis was not supported by Kuek, rather it stood for the opposite proposition, and Kuek had specifically rejected the notion of allowing perusal charges on a time basis, reasoning that documents were read more than once and thus the time recorded on a particular file note for a particular reading would not be of assistance, and was not relevant. It would not be of any assistance to know the time spent reading a document on the date that the charge for perusing was recorded in the Bill since the point of including a perusal/scanning item in the Scale was to avoid having to establish all the time spent looking at each document on each occasion it was looked at, and charging the taxing officer with the responsibility to assess whether on each occasion it was necessary or proper to do so. In any event, Clone submitted, to do so at the present stage would prejudice its position, as given the per page perusal Scale, one could not expect a solicitor to keep a record of every time a document was looked at, so as to ensure that at the end of the day he or she would have a figure for the total time spent looking at it. The different perusal rates for simple and complex documents in part reflected the fact that important complex documents would be read and re-read multiple times.
Principles

UCR r195.8 gives very wide power to the Court to order the production of documents on a taxation, as appears in the Example to subr(1).
UCR r195.2(3) also provides for production of documents on a taxation on the request of the paying party, but in that instance the requirement is limited to instances where the document is one on which the claimant proposes to rely. It provides:
A claimant must, if the claim proceeds to taxation—
(a)at the request of the liable party, produce for inspection any documents on which the claimant proposes to rely; and
(b)if ordered by the Court, identify any documents relevant to the claim that are not produced because of a claim of privilege which is not waived.
This issue was considered in Kuek,[7] at paragraph 37 of the taxing master’s reasons, he wrote:
At the initial hearing on 17 August 2007 the Appellant submitted that the Respondents must produce time sheets or proof that the documents were read. I ruled at that time that the existence of such documentation was not necessary in order for me to consider what to allow for perusal and scanning of documents. The Appellant sought to re-open and re-argue this issue at the resumed hearing on 10 October 2007. I allowed the production of any supporting documentation on that date as I took the view that while the existence or otherwise of such documents was not critical to the allowance or otherwise of perusal items, the documentation, if it included time spent on the activity, could assist in whether to allow the perusal rate (higher) or a lower allowance for scanning.”
[7] [2009] VSC 91 at [22], [37], [41]-[42].
The taxing master concluded at paragraphs 41 and 42 that:
In my view even the absence of a file note altogether would not be conclusive on the point and the time recorded on a particular file note is also not definitive. The quantum of the scale item is pegged at a sum to recognise that a document is read more than once. The fact that it is read more than once does not have to be established. A solicitor may be charging their client on a scale basis so there would be no point in recording how long it took on each occasion the document was read.
In effect I am being asked to assume that the document was not read in the absence of a file note or to only allow a time spent rate when there was one. This is not an acceptable argument and is inconsistent with the scale. The rulings made on taxation are not altered on review.
Likewise, at paragraph 22 of his reasons, Beach J found no error in this approach.
Consideration
Whether or not the Kuek judgment supports Clone or Players’ contentions, the fact is that in that case the court ultimately ordered the production of the claiming party’s time records, even though the taxing master took the view that the absence of a file note would not be conclusive on the point, and the time recorded on a particular file note was not definitive, and importantly that if perusals were to be allowed on a time basis there would be no point in having a perusal rate in the scale a once and for all folio rate.
However, the situation is different under the Tenth Schedule. Note J specifically provides that in cases where a large volume of documents is required to be perused, an hourly rate may be allowed by the taxing officer in lieu of a perusal fee.
Having regard to this clearly identified discretion to allow perusals on a time spent basis rather than under the Scale, I see no reason why such an order should not be made here. In some instances, Clone has in fact claimed for perusal of documents on a time basis. It will likely have work in progress records in its possession relating to these claims. It should be relatively straightforward for it to select any other instances in its time records where it has claimed for perusals and provide these to Players, so that they can, if so advised, seek orders that in those instances where a large volume of documents is required to be perused, an hourly rate be allowed in lieu of a perusal fee. If they exist, the records might provide guidance to the Court in considering whether these should be allowed as set out in the Scale, or on a time basis, and if so what allowance of time for such perusals would be reasonable. It may be, of course, that records relating to particular perusals or groups of perusals may not have been kept, as Clone’s solicitors might well have regarded these as unnecessary because the Scale provides a perusal rate simpliciter.
Claim for attendances of Clone in relation to a potential cause of action
In items 3485, 3486 and 3487 of its Schedule of Costs, Clone claimed Drawing fees by its solicitors relating to Minutes, Directors’ Resolutions, and a Demand for transfer and delivery up of a hotel licence and gaming machine licence, all of which were to be sent to Mr Firth, junior counsel who was assisting it concerning issues relating to licensing and gaming issues concerning the leased premises the subject of the proceedings. Players objected to the allowances of these and associated items on the basis that they were not relevant to the pleaded issues in the proceedings. Mr Ericson, for Clone, argued that they should be allowed as they related to a demand for the delivery up by Players of its licenses under the lease, and thereby had a nexus to the pleaded issues. He referred to the response by Players contained in the letter from Mr Tisato of Griffins being item 3576 of the costs claim and argued that Clone wished to be in the position to assert that it had an entitlement to the licenses. However, when pressed, it was conceded that this matter was not ultimately included in the pleaded case, rather it was a potential issue only. I accordingly disallowed these, and associated claims in Clone’s claim.
Costs awarded to a party are an indemnity to compensate or partly indemnify it for its legal costs incurred during the proceedings.[8] It follows that the costs must relate to matters which are raised in the pleadings. UCR r 71.1 provides that a party is bound by its pleading at trial, and UCR r 71.2 provides that it cannot go beyond its pleading at trial. Whether or not Clone was investigating an amendment to its pleadings or looking towards a fresh cause of action, I formed the view that it could not recover the costs sought in items 3485, 3486 and 3487 and associated costs, as those issues were not ultimately raised in the pleadings.
[8] Wentworth v Rogers (2006) 66 NSWLR 474 per Basten JA.
Attendance of a clerk to peruse transcript
In item 5189 of Clone’s claim, it sought the sum of $264 for an attendance on 8 April 2005 by a senior clerk to peruse the transcript of hearing, to obtain references to fire damage at the Pirie Street premises and to make notes of same. Mr Ericson, for Clone, submitted that this should be allowed as it was of assistance in the preparation of Clone’s case to summarise the references to this evidence. However, Mr Cogan, for Players, opposed this on the basis that Clone was represented by both senior and junior Counsel at the hearing and that the perusal of transcripts was a task for counsel.
After hearing submissions, I disallowed the claim for this item. The Supreme Court Guide to Counsel Fees then in force (applicable from 30 July 2002 to 30 June 2007) provided a Daily Trial Fee (Item 1) and Note 2 to that Guide provided inter alia that this included an allowance for one conference, an allowance for reading and noting up evidence overnight by way of preparation for the evidence to be adduced on the following day, and by way of preparation of addresses. Clearly, the work claimed for in Item 5189 came within the provisions of Counsel’s Daily Trial fee as it involved the noting up of evidence for the preparation of addresses. Its allowance would amount to doubling up. It is inappropriate to in the normal course to allow for a clerk (or solicitor) to note up evidence, as this is the task of counsel.
I note that I had previously disallowed Item 5164 which likewise claimed an attendance of a clerk to peruse the transcript.
Travel expenses to confer with Counsel
In item 5228 of Clone’s claim, it sought the sum of $5.17 for a taxi fare (both ways) incurred by Mr Hamilton when he travelled to a conference with junior counsel Mr Firth at his Wright Street Chambers. This was opposed by Mr Cogan who submitted that traditionally a solicitor based in the city could not recover costs for time spent in travelling to Court, or to Counsel’s chambers, or to visit another solicitor. Mr Ericson in pursuing the claim argued that the preclusion of travelling to Court could be justified by the fact that under the applicable Costs Schedule (then Item 11) the allowance for a solicitor to attend on an application, matter or taxation in Chambers or on a pre-trial or settlement conference (not certified fit for counsel) whether short, ordinary, or protracted, was an “all up” allowance, whereas an attendance by a solicitor under scale items 7 or 8 could be treated differently.
In earlier reasons in these proceedings, Clone Pty Ltd v Players Pty Ltd[9], I considered travel time by a solicitor, and in that case, I allowed for the travel time by Mr Hamilton to visit his client’s office to inspect papers on the basis that these papers were extensive and came within the concept of work that was reasonable and necessary.
[9] Clone Pty Ltd v Players Pty Ltd [2022] SASC 51.
However, I noted that in the Commentary to 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 that the only travelling time which was allowed was travelling for a particular purpose which was justified by the matters in issue, and that except in respect of Circuit Courts, it was not usual to allow travelling time for trips to Court, Government Offices or conference with other solicitors or counsel.
In my experience as a taxing master, this has remained as a general practice, and I understand that a similar approach has been taken in the Federal Court, although it has been varied when solicitors must travel a greater distance than within the city, such as from the suburbs or from a country town to the city.
I accordingly disallow item 5228.
Drawing and engrossing multiple drafts of chronologies
The issue has arisen as to whether multiple drawing and engrossing costs can be claimed and allowed for various iterations leading to the final copy of the applicant’s chronologies.
In items 860, 1314, 1711 and 2690 of its Schedule of Costs, Clone has sought to claim for the costs of drawing and engrossing documents relating to various chronologies prepared by its solicitors:
1 Item 860 is for “drawing and engrossing draft Chronology of all material events for eventual use at trial by counsel (13pp) [2] $182;
2 Item 1314 is for “Further amending and engrossing Chronologies of Documents (5pp) [5] $750;
3 Item 1711 is for “Further drawing Chronology- Roofing Issues by Ms Karagiannis and enclosing documents from 1998 onwards (8.5pp) [1] $527; and
4 Item 2690 is for “Amending chronology to allow for additional roofing documents (1p) [23] $50
The total claimed for these items was $1509. The page count was 27.5 pages. The attendances preparing the draft chronologies were undertaken on 27 May 2004, 16 June 2004, 6 July 2004 and 29 September 2004 respectively.
These were the precursors for the chronologies finalised on 1 December 2004, which have been allowed as follows:
1 Item 3178 Drawing of main chronology of events for use by solicitors and counsel at trial (48 pp) [1] $ 1829;
2 Item 3184 Drawing of chronology re Heads of Agreement and Lease for use at trial by Counsel (7.5pp) [1] $465;
3 Item 3185 Drawing of chronology of events for use by trial judge (5pp) [1] $310;
4 Item 3186 Drawing chronology re roof issues for use at trial by solicitors and counsel (9.5pp) [1] $589;
5 Item 3187 Drawing of chronology on dealings between Griffin and Roche/Marker for use at trial by solicitors and counsel (3.5pp) [1] $217; and
6 Item 3189 Drawing of chronology of legal proceedings for use at trial by solicitors and counsel (11pp) [1] $682.
In summary, the process of preparation of the chronologies by Clone’s solicitors involved first a drafting stage as described above producing 27.5 pages at a total claimed cost of $1509.
The final stage (also claimed as a drawing) on 1 December 2004 involved 6 chronologies, totalling 84.5 pages at an allowed cost of $4092.
Clone’s submissions
In his submissions Mr Ericson contended that as the preparation of Clone’s case unfolded it had not been possible to prepare final chronologies at the time the preparation commenced. This was because further documents continued to be provided between the time of the first draft of the chronologies and the final versions. Because discovered documents were continuing to be received continuously, it was reasonable for Clone to draw a first draft with what it then had, so to be in a position to progress the matter. The Courts encouraged parties to properly prepare their cases as early as possible and chronologies could hardly be left to a date shortly before trial. Mr Ericson estimated that something approximating three versions of the chronologies had been prepared in all, and that there were no less than 17 sources of documents being received between the first draft and the final version.[10] During the taxation, Mr Ericson tabled a 10-page document ‘Clone Schedule of Chronology Documents compared with Brief Documents’ cross referencing Item Numbers from the Brief and to those appearing, or not appearing, in the Chronology. He also tabled a 3-page Schedule of Items relating and incidental to the drafting and amending of chronologies. He submitted that Clone was entitled to a drawing fee for the first version of the chronology and then each time it was amended a redrawing fee was to be allowed for the “new parts”, with a re-engrossing fee for the old, something akin to the revision of pleadings. He accepted that Clone could not recover multiple drawing fees, because the task of drawing a document was a composing exercise. However, additional engrossing should be permitted for each revised draft. The Scale, he submitted, still allowed for this notwithstanding that nowadays documents were prepared and revised using electronic word processing facilities such that no physical exercise was involved in the preparation of the successive drafts. The scale remained the scale and if a document was re-engrossed then a fee was recoverable. This was a necessity even though the fee claimable was considerably less than the drawing fee.
[10] Transcript of Proceedings, 26 October 2022 T 313.1-2.
Players’ submissions
In his submissions, Mr Cogan contended that those parts of evolving documents which had not been re-drawn should not attract a re-engrossing fee. These did not have be typed up again once the document was on the electronic “System”, such as in a Word document, which did not need re-engrossing again as this had already been allowed in the fee awarded for the original drawing and engrossing. He acknowledged that engrossing fees would be allowed when, for example, a set of handwritten medical notes were entered into a computer: once these were keyed in then an engrossment fee would be attracted. However, this could not be claimed for unchanged parts of an earlier document (although he conceded that a printing fee might be a separate issue).
Principles
The ‘Tenth Schedule’ of the SCR provides as follows in relation to engrossing:
3 Engrossing the original of any document where no allowance is made for such engrossment elsewhere, including the solicitor’s own copy, per A4 page $14
(The item refers to Notes D and E but these relate to the size of the document rather than the concept of engrossment).
The concepts of drawing and engrossing documents are discussed in Quick on Costs (online edition, 12/3/21). In relation to “drawing” the learned author writes (inter alia):
To "draw" a document is to draft or compose it, to prepare it and not simply to write it. Drawing requires the application of the mind to the document so that the correct words are used in the correct sequence and the document expresses what was intended”
A drawing charge is a charge for drawing what is new. Where a document or part of a document drawn is a copy of another document, an engrossing or copying charge may be made for what has been prepared but not a drawing charge. For example, a drawing charge may be allowed for drawing the title to proceedings on the heading or backsheet to the document which originates the proceedings, but in subsequent documents the heading or backsheet should attract a lesser engrossing or copying charge. Similarly, where there are a number of drafts of a document, the drawing charge should be made for the first draft and only for what is new or revised in the succeeding drafts.
A drawing fee may be allowed for those parts of a document already in print, reflecting the consideration required as to whether those parts of the document in print apply to the particular matter, or should be amended. A number of scales draw a distinction between drawing what is in print and what is new, allowing a lower fee for the "in print" matter.
In relation to engrossing the learned author writes:
“Engrossing" was originally the making of the indenture of a fine (see Tomlins, The Law Dictionary (1835) Vol 1, under the title Ingrossing of a fine), the compromise of the fictitious law suit which formerly acted as a conveyance of land. In more recent times the word has meant the making of a formal copy of a document. Nowadays, however, the word engrossing equally often means getting down on paper the material drawn or composed in the mind, that is, the making of the original of a document. Drawing may include the completion of printed forms, but the allowable charge for engrossing is confined to the actual handwriting or typing by which such a document is completed. Similarly, where a document has been the subject of successive drafts, the engrossing charge should be made only for the final draft.
(Emphasis added)
The topic was considered in McCoombes v. Curragh Queensland Mining Limited[11] in the context of the review of a costs assessment in the District Court of Brisbane. The decision under review was the reconsideration by a deputy registrar of a costs assessment of a plaintiff’s costs claim. One of the determinations sought to be reviewed (Objection 7) related to a claim for drawing the plaintiff’s draft statement of loss and damages and another claim for engrossing it for forwarding to the plaintiff for his consideration and to supply information necessary to complete it. On the review, McGill DCJ discussed the concept of engrossing:
At one time the production of a document would have involved a solicitor taking a sheet of paper and composing a draft, often no doubt with much alteration. When he was finished he would give it to a typist to type up. In that situation what the solicitor did was drawing the document. Transforming the draft into the final typed version, after any corrections and alterations were made, was the process of engrossing, even if the document was still a draft in that it was then to be sent to the client, or to counsel, for consideration or settling. These days there may be little practical difference between the form of the first draft of a document prepared using a word processing programme on a computer and the final version which is filed in the court. There may even not be a physical document until the version for filing is produced; but there will still be “drawing” and, once a physical document is produced in a form in which it is to be used by the solicitor for some purpose, “engrossing”.
[11] McCoombes v Curragh Queensland Mining Limited [2001] QDC 142 per McGill DJC at [46].

The topic was also considered in D.M.Wright & Associates v Murrell (No 2) [2021][12], an appeal from the decision of a Magistrate which had dismissed an application to review a costs assessment conducted by a costs assessor. The relevant cost agreement provided that the solicitor would charge fees calculated at rates set out in a table headed “Scale of Fees”. That table included a provision for producing letters and other documents and other documents in printed form (including the reproduction of letters) at various charging rates for each item.
[12] D.M. Wright & Associates v Murrell (No 2) [2021] QDC 141 at [97]-[102] per Barlow QC DJC.
Barlow DCJ referred to provisions in the agreements as to, inter alia “drafting documents (other than letters)” and “producing documents in printed form (including the reproduction of letters)” These terms referred to different steps toward the final production of a document. In the course of the appeal, it was necessary for the Court to determine what each of these terms meant, in the context of the entire agreements. Their context was the basis for a solicitor charging a client for legal work. The costs assessor had obtained assistance on this question of construction from Quick on Costs, as has been outlined above.
In his reasons at paragraph 101, Barlow DCJ held that the “drafting and producing” of a letter involved the same concepts as “drawing and engrossing” a letter. This was supported by the separate items for drafting a document other than a letter and producing documents in printed form, including reproduction of letters. He wrote that to draft a letter was to create the written parts of a letter (including the formal parts) for the first time. To produce a letter was to engross, or to put into one document, the drafted parts and any other parts of the letter. Where some parts were freshly drafted and other parts were taken from previous letters (whether taken by copying and pasting or by retyping from earlier letters that have previously been drafted), then the production of the new letter involved partly the production of the freshly drafted parts and partly the reproduction of the previously drafted parts.
Barlow DCJ concluded at paragraph 102 as follows:
Therefore, with respect, neither the solicitor nor the assessor was correct. The solicitor was entitled to charge $40 per 100 words or part thereof for the entirety of an entirely new letter, including formal parts. But, after the first letter to the client or other person had been drafted and produced, she was entitled to charge at that rate only for the body of each letter. But she was also entitled to charge $15 per 100 words or part thereof for the formal parts that had previously been drawn. Those formal parts are, in my view, parts such as the internal file reference, the date, the name and address of the addressee, the manner of transmission (such as by email, post or facsimile), the salutation and the signatory. The heading or subject matter may be reproduced or drafted, depending on whether it changes between letters.
Consideration
The starting point is that Clone has to date been awarded $4092 for the final drawing and engrossment of its 6 chronologies, totalling 74.5 pages, on 1 December 2004 (page 244 of the Bill). As observed by the learned author of Quick on Costs, and as discussed in D.M.Wright & Associates v Murrell (No 2), the drawing of a document is to draft or compose it and to prepare it, and not simply to write it. Drawing requires the application of the mind to the document so that the correct words are used in the correct sequence and the document expresses what was intended. Drawing charges are for drawing what is new, and where a copy of a previously drawn and engrossed document is prepared a further drawing fee is not allowed, other than for “fresh” additions.
In the case of a document such as a pleading, which is drawn and engrossed as a draft for settling by counsel, after settling it is then re-engrossed, and the practice is to allow an engrossing fee for the whole of the settled draft.
However, where there are multiple drafts (for example two or more updates) of a document, as has occurred in the present case with the chronologies, the question arises as to what is appropriate for the court to allow for engrossments relating to the unamended parts of earlier drafts. Freshly drawn parts of previous chronologies will, of course, attract a drawing and engrossing fee for those parts.
While each case will depend on its own merits, it would seem inappropriate in cases of multiple drafts to allow a further fee each time for the re-engrossment of unamended parts of a former draft of a document, as such an allowance would effectively remunerate the claiming party multiple times for undertaking the same work, especially by reason of the fact that with word processing, earlier engrossments are carried forward unamended at the press of a button.
In the present case, if Clone were awarded recovery of the disputed items 860, 1314, 1711 and 2690 for the drafts at the amount claimed ($1509), as well as what it has already been awarded for the final copies, items 3178, 3184 ,3185, 3186, 3187 and 3189 ($4092), it would receive a considerable premium on the claimable drawing fee for the chronologies.
I have accordingly determined that it would be inappropriate to award to it the sum claimed for items 860,1314, 1711 and 2690.
However, the question remains as to whether Clone should be remunerated in some manner for the work undertaken in the preparation and updating and revision of the chronologies as the matter unfolded. The preparation of multiple drafts of documents is not uncommon in litigation, particularly in large and complex cases. Chronologies prepared in such cases at an early stage are extremely useful, as they enable those preparing their claims for trial to then see the “big picture” and to plan their strategies and tactics accordingly. It should not be expected that a party not be adequately remunerated for preparing its case in a timely manner. In the present case, the proceedings were commenced on 24 March 2004, lists of documents were filed in May 2004, amended pleadings were filed in September-October 2004, and the final chronologies were prepared in early December 2004, relatively close to the trial which was to commence in February 2005.
As I understand the position, as was referred to above, there were in the order of three drafts of the chronologies. Unless some allowance is made for these, Clone will not be remunerated in any respect for its work preparing the earlier drafts. Indeed, I note that during submissions Mr Cogan acknowledged that if drafts were printed out the party may be able to claim a printing fee.[13]
[13] Transcript of Proceedings, 26 October 2022, T 324.15-17.
I accordingly propose to hear from the parties as to whether any other allowance, and if so the amount thereof, should be made for Clone’s preparation of the various draft chronologies, such as for photocopying of these, prior to the final versions being made on 1 December 2004.
Conversational discussions between solicitors in the same firm
In item 4141 Clone claimed for a telephone attendance by Mr Baldock on a Mr Campbell of the same firm regarding liquor licencing issues. This was objected to by Mr Cogan on the basis that a conversational attendance between two solicitors of the one firm should not be allowed on a party and party basis. Mr Ericson argued however that the attendance should be allowed, as the inquiry related to a matter in issue in the litigation, and the solicitor to whom it was made, and who supplied the information to Mr Baldock, was not involved in the litigation, but rather handled the commercial affairs of the applicant.
I allowed the attendance on the basis that although it would not ordinarily be allowed between two members of the litigation team, that was not the case here. A similar issue was raised in Gibson v Drumm & Others[14] where the Court held that the principle that two people in a firm could not both charge for reading counsel’s advice etc that would not be the case where there was a very good reason to the contrary, such as for instance where one solicitor or clerk was dealing with the intellectual property side of a case and the other with the presentation of evidence. The same approach was appropriate here.
[14] Gibson v Drumm & Others [2016] NSWSC 570 at [20] per Young AJ.
Orders
1.Under the Scale and Rules, the Court is entitled in its discretion to allow for the perusal of a large volume of documents on a time basis in lieu of a Scale item basis although this will depend on the circumstances in each case.
2.Subject to any claims for privilege, Clone is ordered to produce any work in progress and other time records relating to time spent on such perusals referred to in its claim for costs.
3.The court will hear from the parties as to whether any such claims for perusals on a scale item basis should instead be considered on a time spent basis.
4.The disallowance of items 3485, 3486 and 3487 relating to investigation of a potential cause of action not ultimately pursued by Clone is confirmed.
5.The disallowance of item 5189 for a clerk perusing transcript is confirmed.
6. The claim in item 5228 for a taxi fare is disallowed.
7.The claims relating to preparation of chronologies in items 860, 1314, 1711 and 2960 are, subject to the following qualification, disallowed, but the Court will hear from the parties as to what if any other allowance should be made for Clone’s preparation of the draft chronologies, such as the photocopying of these, prior to the final versions being made on 1 December 2004.
8.The allowance of item 4141 for a telephone attendance between two solicitors in Clone’s law firm is confirmed having regard to the circumstances of that attendance.

[2022] SASC 135

18 November 2022