Clone Pty Ltd v Players Pty Ltd (No 6)

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CLONE PTY LTD v PLAYERS PTY LTD (No 6)
[2023] SASC 56
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 - SOLICITOR'S PROFIT COSTS - OTHER MATTERS
Rulings on a Taxation of costs.
Federal Court Rules (Cth) order 62, r 19, sch 3 item 11; Legal Costs South Australia Service; Quick on Costs (online edition); Supreme Court Rules 1987 (SA) sch 10, r 262.1; Supreme Court Rules 2000 (Tas) sch 1, item 17; Supreme Court Rules 2006 (SA) r 262.1; Uniform Civil Rules 2020 (SA) sch 6, r 191.2; Victorian Supreme Court (General Civil Procedure) r 2015, order 63; Victorian Supreme Court (Chapter I Appendices A and B Amendment) r 2017, referred to.
Baronglow v Willing (SADC) Master Norman 27 February 2007 (unreported) ; McCoombes v Curragh Queensland Mining Limited [2001] QDC 142; Slingsby v Attorney-General [1918] P236 at [241]; Re Cosedge [1885] 209 SJ 306; Re Snell [1877] 5 Ch D 815 at 826 ; Pesce, Costs in taxations in the Family Court 1988 ; Fat-Sel v Brambles Holdings [1984] FCA 204; Kuek v Devflan Pty Ltd & Anor [2009] VSC 91; Players Pty Ltd v Clone Pty Ltd [2009] SASC 186; Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (unreported) FCA 11 March 1986, Fisher J, Number G50 of 1981 , considered.

CLONE PTY LTD v PLAYERS PTY LTD (No 6)
[2023] SASC 56
Supreme Court – Civil Application

NORMAN AJ: 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 completed on 29 June 2021; however, large number of items were reserved. The remaining items have since been grouped into discrete topics, and these are now being taxed in progression.
Two issues have recently been argued. These relate to the approach to be taken in the case of the “bulk” perusals of documents (meaning a large volume of documents), and secondly whether an allowance should be awarded for collating and binding transcripts of evidence for counsel. There appear to be few, if any, South Australian authorities on these issues, and in Clone’s bill there are multiple claims for such attendances.
Perusals of bulk documents
Background
Items presently being taxed include the perusal of numerous documents and groups of documents by Clone’s solicitors. In some instances, perusals have been claimed on a scale basis (pursuant to item 5 of the “Tenth Schedule” to the Supreme Court Rules 1987 (SA) (“87 SCR”), which was in force for much of the time that the work was done), and in others on a time basis (pursuant to item 7 of the Tenth Schedule).
Issues have arisen as to whether, and in what circumstances it is appropriate to use either, or both alternatives.
Note J to the Tenth Schedule, which had commenced and continued under earlier rules and further continues in the Higher Courts Scale in Schedule 6 to the current Uniform Civil Rules 2020 (SA) (“UCR”) under a different number, 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 instead of a perusal fee.
On 6 July 2022, Players had sought production of the Work in Progress and other time entry records of Clone’s then solicitors relating to perusals, so that any record of time spent on its 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 and the matter was referred for argument.
Players relied on written submissions filed on 19 August 2022, FDN 292. These referred to item 424 in the Schedule of Costs which was said to be in respect of “Perusing documents for inclusion of documents for discovery by Ms Karagiannis (documents numbered 1 to 165) (500 pages) [5]”. An amount of $3,500 was claimed, being 500 pages at the $7 perusal rate. However, Players argued, if that was divided by the highest solicitor attendance rate in the Tenth Schedule (being $250), then that amount would equate to 14 hours of work undertaken by a solicitor. Players had submitted that an allowance of 14 hours for reading 500 pages of documents was on its face unreasonable. It also noted that various perusal items listed on Clone’s Costs Schedule relevant to the perusal of documents were claimed in the Schedule at an hourly rate, rather than the scale page rate, in respect of items 2508, 2680, 2937 and 4712. In respect of those items, it was submitted, Clone would be obliged to produce evidence of the time spent which, presumably, would be the relevant entries in its Work in Progress and or time entry records. In such circumstances, Players submitted, it might be appropriate for the Court to allow an hourly rate in respect of such bulk perusal items rather than the specific perusal page rate set out in item 5 of the Tenth Schedule. It contended that for this reason the Work in Progress and other time records should be produced by Clone so that a proper decision could be made as to whether to apply the scale page rate or an hourly rate in individual circumstances.
Clone’s primary submission was that the per page perusal rate was the appropriate and default method of allowing “perusal” claims by solicitors which was required to be allowed unless the party opposing its use proved 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 charge basis should be exercised. It submitted that such reasons were not present in the present case and that the per page perusal rate was the default position. It submitted that the Tenth Schedule perusal rate was clearly the prima facie applicable rate. It was uncontroversial that it was standard practice to present claims and to charge on a per page basis. Note J to the Tenth Schedule did not purport, 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. Noting my decision in Players v Clone,[1] where the issue had been earlier discussed, it submitted that those reasons related to an interim allocator, and were not in the context of any argument or submission on the point. The Court in that decision had referred 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. Noting that Players had urged that the discretion to fix perusals based on an hourly rate should be exercised to avoid purported “injustice” occasioned by the application of the default position, Clone submitted that this had been done with reference to one example that Players had cherry picked out of the bill. Further, it submitted that Players position was not consistent with the wording of item 5 nor with Note J which, at best, merely gave a discretionary power to the taxing officer. The correct position was that the normal per page rule applied unless and until it was disapplied by a taxing officer, so it followed that it was entirely appropriate for a party to make its claims on a per page basis, and to only reformulate 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 fee. Clone submitted that the only gateway to using an hourly rate was through the specific application of the discretion under the note, referring to Fat-Sel Pty Ltd v Brambles Holding Ltd.[2] It 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 categorised as a bulk perusal. However, for convenience, the bill had been drawn placing them into a single item rather than in numerous individual items. This description did not render it as a “bulk” perusal. Further, and importantly, the requests for time-based charges at or around the date of the bill items, was based on a false premise, as Players had assumed that the per page perusal fee was a fee only for the first reading of the 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 the perusal allowance, which was that it 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 a reading of a document might cover more than the first reading. This was a deliberate policy of the Scale and it should not be prejudiced and undermined by an excessive use of the time charge discretion under the Note.
[1] Players Pty Ltd v Clone Pty Ltd [2019] SASC 186.
[2] Fat-Sel Pty Ltd v Brambles Holding Ltd [1985] 61 ALR 536.
Ruling on the production of documents relating to time spent on perusals
In reasons in Clone Pty Ltd v Players Pty Ltd,[3] I found that having regard to the discretion provided in the Note, it was appropriate that Clone produce its Work in Progress and other time entry records available at the time when each of the perusal items was undertaken, so that a proper decision could be made as to whether the scale page rate or an hourly rate would be more appropriate in each individual circumstance. I found that both under the scale and the rules, the Court was entitled in its discretion to allow for the perusal of a large volume of documents on a time basis in lieu of a scale basis, although this would depend on the circumstances in each case. I ordered that Clone was to produce any Work in Progress and other time records relating to time spent on such perusals referred to in its claim for costs, and indicated that the Court would then 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.
[3] Clone Pty Ltd v Players Pty Ltd (No 5) [2022] SASC 135 at [9]-[24].
Provision of records by Clone
On 9 February 2023, Clone’s solicitors wrote to Players’ solicitors, referring to my order and enclosing both a 19-page summary schedule (the Summary), together with copies of extracts of Clone’s Work in Progress Schedule, redacted where not relevant to the orders. The Summary dealt only with those bulk perusals which Players had submitted should be charged on a time rather than on a per page basis, or which were included in the Work in Progress Schedule relevant to the perusal of documents.
It set out its position in the letter and made clear that it did not accept Players’ contentions and maintained its claim for reimbursement for the consideration of documents on a perusal basis.
It was indicated that the time charges for specific document related tasks relating to the items challenged by Players, or which were included in the Summary, totalled $33,931.70 on a per page basis and $23,884.60 on a time basis. Its position was that the quantum of those time charges was, without more, sufficient to justify the perusal claims and that the quantum of the variance was insufficient to justify departure from the usual rule of claiming on a perusal basis.
Further, it was contended, Clone had prepared a Schedule of general Work in Progress entries, in the latter part of the Summary, relevant to perusals which could not be apportioned to any one specific perusal item but which would, in all probability, include time spent on such matters. This came to some $46,896.75. It argued that even if only a nominal proportion of that time was apportioned to the bulk perusals, there was more than ample justification for the charges, and there was a wholly insufficient and uncertain foundation for departing from the usual position.
Clone reiterated that the per page charge for a perusal was intended to be a once and for all charge covering every occasion an item was perused and not merely the first occasion on which the document was perused. Because the prima facie method of charging for perusals was on a per page basis, there was no reason for a solicitor to keep a detailed record of every time a document was perused and re-perused. Many documents would have been perused on countless, repeated occasions, for example the lease documents and the agreement for lease.
It referred to Kuek v Devflan Pty Ltd & Anor,[4] where it had been judicially recognised that to require a solicitor to undertake such an exercise would be to put an almost impossible burden on him or her.
[4] Kuek v Devflan Pty Ltd & Anor [2009] VSC 91, Beach J at [41]-[42].
Subsequent oral submissions, once the documents had been provided, were presented at the hearing on 21 February 2023.
Clone’s submissions 21 February 2023
In his oral submissions, Mr Ericson, Counsel for Clone, indicated that the major issue for determination was whether it was appropriate for the Court to exercise its discretion under the note to the rule to allow bulk perusals on a time basis. He emphasised that this was a discretionary power and not the general rule. First, he said, the onus lay on the party seeking charging on a time basis, in this instance Players, and it was necessary for them to show some reason why it would be inappropriate to apply the general rule. It was akin to a dispensation power which could be used, but reasons were needed for its application.
He noted that Clone had provided two schedules to the Court. One was of time attendances, which could be related to specific items of bulk perusal, and the other were attendances which, whilst they could not be related to specific items, would contain perusal elements, some of which probably could have been shown to relate to those items if records had been kept – things such as generic trial preparation and the like. Examining these Schedules, he submitted that the difference between charging perusals on a per page basis as compared to a time basis was not so disproportionate that time charging should be used instead. Further, it would result in unfairness to Clone in two regards. In some instances, the time spent perusing would be greater than the per page rate, so it would be unfair in such instances to allow time charging when in other instances a per page charge would be allowed. Secondly, referring to Kuek, he argued that it would be unfair to expect Clone to keep extremely detailed notes of time spent in a case where it would not normally be expected to produce such material. He said that in undertaking the exercise of costing on a per page as opposed to a time basis, there would be a whole series of different totals. He referred to item 424 which claimed $3,085 on a time basis, item 425 which came to $562.50, item 713 which came to $360 and other examples – the figures were all over the place, he said.
In summary, if all items were added together, perusal on a bulk item basis would be allowable at $23,000, as against the sum of $33,000 on a per page basis. Although this was a greater sum, he said, it was not grossly greater.
In the present case, he submitted, the Work in Progress entries provided by Clone in response to the orders had not been prepared for the purposes of a scale taxation, but rather for time charging as between solicitor and client pursuant to the retainer between Clone and its solicitors. Accordingly, various attendances were generic. For example, he referred to the entries on 30 March 2005 for charges such as “perusal of documents”, “attendance various”, “attendance arranging for documents for Court” and the like. Such attendance consisted mainly, although not entirely, of perusals. However, what was not identified in each such case was the precise document or documents perused. If this had been undertaken, it would have resulted in a massive and extremely expensive bill in which a separate item would have to be identified and recorded each time a solicitor perused a particular document, which might have occurred on multiple occasions. He noted that in Kuek[5], Beach J had observed that such a requirement was unreasonable and had been rejected. It should be rejected here, he argued, and it was not the case that in order to justify a per page perusal, a solicitor would be required to produce time records showing a particular document relating to the time claimed for a per page perusal. He submitted that having regard to the Summary, the Court should not embark on the exercise of using its discretion under the Note to reduce the perusal rates charged on a per page basis. To adopt such a policy on a document heavy case such as the present would prejudice the legitimate interests of his client, so accordingly the Court should uniformly apply a per page rate rather than tax the claim on a time basis rate.
[5] [2009] VSC 91 at [21]-[22].
Alternatively, the discretion to use a time basis under the Note should only be undertaken where there was a very clear disproportion between the time taken to peruse documents and the per page rate – in effect be a fall-back position if the Court could be confident that the per page rate was quite disproportionate to the time spent.
In summary, he said, the Court should find that the amounts charged on a per page basis were not so disproportionate to the amounts on a time basis that the discretion should be exercised, but if it rejected this submission, then the approach should be taken only when the per page rate was entirely out of kilter with the time spent on the matter.
Players’ submissions 21 February 2023
While acknowledging that in Kuek, Beach J had observed that it would be onerous to keep a record showing time spent for all perusals, and that the purpose of the Work in Progress records was to bill the solicitor’s own client, Mr Cogan, Counsel for Players, submitted that in South Australia the position was different, because there was a specific Note to the Scale which permitted the Court to allow perusals on a time basis rather than a page rate. He further observed that both the Supreme Court Rules 2006 (SA) (‘06SCR”) Rules and the present UCR required that a party must retain an adequate record of its costs (06 r 262.1 and UCR r 191.2). He submitted that Clone’s Schedule of its costs did not tie in adequately to the work undertaken.
Item 602 of the Bill had claimed for perusing further Minutes from ADC meetings in 1995 and this had been allowed. A claim had been made for drawing a supplementary List of Documents, so an allowance had been made for this already.

Mr Cogan said that such items had not been adequately connected to the perusals, and that if no record had been kept of their perusal on further dates, there was no way of knowing whether in fact time had been spent in re-reading the documents or not. In the light of the existence of the relevant Note as to bulk perusals, which had been in the scales for some time, proper records should have been kept by the solicitors undertaking the work.
Mr Cogan also addressed Mr Ericson’s submissions as to the general Work in Progress Schedule, which he submitted might or might not include the re-perusal of documents already perused. He referred specifically to the Summary and indicated that the problem with this document was that it was in no way tied accurately to the items claimed in the bill.
For example, he said, item 424 in Clone’s Schedule of Costs claimed $3,500 for perusing documents for inclusion within discovery by Ms Karagiannis (documents numbered 1 to 165 totalling 500 pages). The Work in Progress Schedule provided there were items in that Schedule that pre-dated 5 May 2004, the date of the bulk claim for perusals, totalling $3,500.
He noted that items 48, 49 and 50 related to obtaining documents and perusing these, but these items had already been specifically allowed.
The claim on 27 April 2004, item 366, for perusing a letter from Mr Marker of three pages, for which $15 was claimed, had been disallowed on the basis that it was not an appropriate party/party cost.
On 18 May 2004, a claim was made in item 600 for preparing a brief for Mr Jankovic, an expert, for which $55 was allowed and there was a further claim in item 601 for care and consideration and the preparation of the brief for Mr Jankovic.
In item 604 there was also a claim for settling a supplementary list of documents and a claim had already been made for drawing it. These items were not adequately connected to the perusals. Furthermore, if there was no record of the documents having been perused on further dates, then there would be no way of knowing whether in fact time had been spent on re-reading documents or not.
Considering the existence of the relevant scale Note as to bulk perusals, it was Mr Cogan’s submission that records of this type should be kept.
The schedule of the alleged bulk perusal items, item number 424 contained several items mentioned in the column “relevant WIP entries”. The total of these entries up to 5 May 2004 was $1,940 as compared with Clone’s claim for $3,500. The items on 11 May 2004, included claims for “Attendance including further documents in List” (which was a drawing fee and not a reading fee).
On 11 May 2004 there was a claim for “Settling memo to MEH re particular documents and perusing documents” and this was likewise a drawing fee and had no bearing on the reading of documents. Other items on that date for “Reading Minutes of Executive Meeting” and “Attendance adding further minutes to List of Documents” would both appear to be part of the drawing fee of the List of Documents. Items for 12 May 2004 for “Settling List of Document and adding further documents” would likewise be part of a drawing fee.
In item 520 of the bill, a drawing and engrossing fee for the draft list of documents in the sum of $589 had been allowed in full.
Accordingly, Mr Cogan submitted, in these circumstances and in broad terms the value of the work in the Work in Progress entries appeared to be in the order of approximately $2,000 compared with the claim of $3,500 for perusals on the page rate, which he submitted made Players point very clear.
He referred to item 425 “Collating documents 1 to 165” but it appeared from the Schedule that this would seem to have been work done by a junior clerk which was not claimable, rather it was an administrative filing task. The same applied with respect to the entry for 7 May 2004 where there were claims for sorting out documents into chronological order. He submitted that it could be assumed that as documents came into Clone’s solicitor, they would automatically be filed as part of a process within the firm into some form of sensible order, presumably chronologically or in categories sub-sorted into a chronological order. 20 units had been claimed for filing documents and it was unclear what work was involved in this and whether this meant putting the documents into filing cabinets.
There was a further attendance claimed for 7 May 2004 for “Clerk collating documents for discovery” two hours (item 432). This did not really mean anything, and although it might be claimable on a solicitor own client basis it could not be made on a party/party basis against Players.
Item 713 related to perusing documents number 301 to 315 of Clone’s discovered documents, 19 pages in all, for a sum of $133. Mr Cogan likewise submitted that this meant little, and although it might be charged on a solicitor own client basis it could not be charged party/party basis. It was obviously associated with the drawing of the supplementary list of documents.
A Work in Progress entry on 21 May 2004 for 10 units was for settling and numbering a List of Documents and a further attendance on the same day related to a perusal and adding further documents to a supplementary list. These, he submitted were all parts of the drawing fee.
Mr Cogan noted in this regard item 697 on 21 May 2004 for Ms Karagiannis scanning the file for half an hour for $125 for 81 Pirie Street. It was unknown whether this item was included as part of the Work in Progress ledger items or not.
Item 714 for collating documents numbered 301 to 315 in the plaintiff’s list of documents had been allowed and was part and parcel of the drawing exercise.
In summary, Mr Cogan submitted, the Work in Progress record showed that there had not been a close relationship between many of these items, and the items claimed in Clone’s bill. He submitted that the solicitors had a duty to keep records to assist in claiming the party’s costs, and there was no sufficient connection recorded in the claims or perusals at the page rate.
He submitted that where there were items in the bill that might be the subject of the exercise of the discretion under Note 7, the solicitors for a party claiming costs on a taxation were obliged to keep records, as far as they were available, in respect of time spent in perusing or reading those documents. It was insufficient for such a party to inform the Court that it had spent some time preparing for a meeting or for a conference, and that some of the documents must have been re‑read. There was nothing to show for this.
Mr Cogan submitted that in these circumstances each of the contested items would have to be looked at individually, and he agreed with Mr Ericson’s submissions that a blanket ruling could not be made as to items being dealt with on the time basis.
Clone’s submissions in reply
In reply, Mr Ericson noted that the work in question pre-dated not only the UCR but the 06SCR. In his submission this would place an excessive and impermissible burden on a solicitor to have to keep notes not only in accordance with the rules as they then were, but as to how they might change in the future.
He noted that the “bulk perusal” discretion had applied prior to the commencement of these proceedings, but said that there was no suggestion that there was a specific rule requiring a solicitor to keep an “adequate record” of costs at that time. There was an obligation to keep records as to a formulated cost claim, but in respect to perusals of documents, the practice was basically to keep the documents themselves and to retain them on file so that ultimately the number of pages could be counted. It was inappropriate to suggest that a solicitor would be negligent not to make a record every time a document was perused, and in respect to the submission there should be a “cut off” once an item had been claimed, this would be contrary to the basic proposition that a perusal fee was a once and for all fee. In fact, documents could be perused multiple times during the matter.
In respect to the complaint that the items from the Work in Progress guides produced by Clone were not necessarily dedicated to perusals, Mr Ericson said, the problem was that what had been ordered to be disclosed was discovery of the Work in Progress entries, and not a recasting of Clone’s bill on a time basis. That would have been a monumental task involving the identification of each occasion when a perusal was undertaken. That process would have been unfair. The common law duty to keep records was restricted to those sufficient to assess how the client could be billed and then to draft a bill between party/party on a prima facie basis, namely, per page.
In relation to the approach to be taken by the Court, Mr Ericson agreed that it would be appropriate to first rule on item 424, and then, based on such ruling, the remaining items could be taxed. However, ultimately the process would come down to an item-by-item assessment once the position of principle was determined. Accordingly, a ruling was sough with respect to item 424 with the Court indicating its position with respect to the general arguments raised, and the bulk perusal issue being revisited thereafter. However, it was necessary to deal with the basic issue as to whether in the circumstances it was fair to apply the Note in the manner suggested by Players.
Players’ supplementary submissions
In supplementary submissions, Mr Cogan suggested that in respect of the documents numbered 1 to 165 at item 424 of Clone’s bill, which had been claimed at the lower perusal rate of $7 per page, it might be more appropriate to apply blended rates somewhere between scanning and perusals for such documents. Many were quite short, and he suggested that the 500 page was likely excessive, probably there were only about 300 standard pages, and that some of these documents could have been merely scanned.
Clone’s response to the supplementary submissions
In response, Mr Ericson acknowledged that the lower perusal rate was itself notionally a blended rate, and that some parts of the documents would have been scanned. There was no basis, he argued, to tax the bill at less than the lowest perusal rate.
Principles
Provisions of the Tenth Schedule
Clone’s bill of costs covers the period between 3 February 2004 and 21 November 2007. Various scales applied during this period but the provisions were largely consistent. The Tenth Schedule to the 87SCR, the Scale of Costs effective from 29 April 2004, provided as item 5 that the fee for perusing any document per A4 page or the equivalent thereof was $7, but if of substance, not exceeding an A4 page, the amount of $19. Item 5 refers to Notes D and J. Note D relates to the content of an A4 page and is not relevant to the present argument. Note J 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 would 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. 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.”
(Emphasis added)
That provision was first incorporated by virtue of Note J to the Fifth Schedule of the 87SCR which came into force on 1 July 1999 (SA Government Gazette 22 July 1999 at page 448) and has appeared in all iterations of the Scale under the various Court Rules in force since that date, including the Higher Courts Costs Scale in Schedule 6 to the UCR. As far as I have been able to ascertain it appears to be unique to South Australia by virtue of these Rules provisions.
There appears little authority available on the principles relating to the applicability of charging for perusals on a per page basis as compared with such perusals on a time basis. The authorities referred to in submissions, which relate to different Federal and interstate provisions, need accordingly to be considered in this light.
In Fat-Sel Pty Ltd v Brambles Holding Ltd Beaumont J was referred a question by a taxing master as to whether he had a discretion to allow items other than the scale, measurement, or fee contained in the then Second Schedule to the Federal Court Rules (Cth) (“FCR”).
That 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 a 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. After hearing submissions, Beaumont J found at [12] that subject to the application of Order 62 Rule 19 where appropriate (he expressing no view on that matter), the taxing officer was bound to apply to allow costs in the amount specified in items 17 and 18 of 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 achieve. Fat-Sel, however, is to be considered in the light of the specific rule applicable to that case, namely Order 62 Rule 19 of the FCR which is not in the terms of the SA Supreme Court Scale Schedules summarised earlier in these reasons.
In Players v Clone[6] I observed that it was clear from the Schedule of Supreme Court costs that when perusing bulk documents these were to be reduced to whatever reasonable time was spent. However, that comment was made in a different context, namely in relation to an interim allocator and was not the product of any argument or submission on the point and was never intended to be an overarching or infallible statement of principle.
[6] [2019] SASC 186 at [162].
Kuek (supra) involved a review of a taxation of a claim for costs which had included amounts in relation to the perusal and scanning of documents. In his reasons, Beach J at [21] referred to paragraphs 37 and 42 of the Taxing Master’s judgment which included the following observations:
“37. These items relate to perusing and scanning documents. A perusal is a scale item (items 25 and 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 26”.
“41. 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. 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 a rationale behind a folio rate – that it 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, with a 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)”.
Beach J found no error in the Taxing Master’s approach [see paragraph 22].
It is important to note that the situation in Kuek differs from the present, as in this Court by virtue of Note J, in cases in which 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.
There are observations as to the of perusal of documents in Quick on Costs (Online edition) at paragraph [20.1160] “Perusing.” The learned Author has noted that (in the context of the Supreme Court Rules 2000 (Tas) (“SCR Tas) Item 17 of Schedule 1) that:
“The scale allowance per folio for a perusal was a high fee, as the allowance for perusal should be made only once for each document and no allowance should be made for perusal of a document when preparing for trial, but that the time occupied in a perusal could be taken into account in fixing an instructions for brief allowance”.
The learned Author also refers to the decision of Fisher J in Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission unreported FCA 11 March 1986, Fisher J number G50 of 1981. That decision was fully considered in Pesce, Costs and taxations in the Family Court (1988) page 127. The learned Quick notes that in Ralkon, a claim in the Federal Court was made for perusing 24,619 folios. The Court could not accept that the solicitor had done so more or less continuously. Having regard to the time spent, it was more likely that many of the documents were scanned. The Court accordingly allowed $7,500 but indicated that the full amount would have been allowed if the documents had been perused, or to put it another way, if the practitioner could prove reading each page.
It is noted, however, that in the Ralkon case although the large perusal claim was reduced to a smaller charge equivalent to a scanning, this was at a time when the Federal Court Scale did not contain an item for scanning. This distinction was noted by McGill DCJ in McCoombes v Curragh Queensland Mining Ltd.[7] In that case McGill DJC observed as follows:
The scale allowance per folio for a perusal was a high fee, as the allowance for perusal should be made only once for each document and no allowance should be made for perusal of a document when preparing for trial, but that the time occupied in a perusal could be taken into account in fixing and instructions for brief allowance.
[7] McCoombes v Curragh Queensland Mining Ltd [2001] QDC 142 at [38].
In Quick on Costs at paragraphs [290.80] the learned Author makes observations as to the obligations of a solicitor to substantiate work done. He writes that a solicitor has an obligation to maintain such records of the work he or she has done as to enable her or him to detail the work and thus substantiate the charges for it (referring to Re Cosedge [1885] 209 SJ 306 and Re Snell [1877] 5 Ch D 815 at 826). He writes that the details to be given of the item embrace details of attendances, perusals not otherwise claimed and the time and expense of obtaining evidence. He refers to Slingsby v Attorney-General [1918] P236 at [241] that the details of attendances should show the date, when and the person upon whom an attendance has been had, the time taken in an attendance and its nature, and that the details of documents for which perusals are claimed should identify the documents and their length and that there should be details of the time and expense of obtaining evidence, including the time spent in travelling to obtain evidence, the names of witnesses interviewed and the amount spent in such matters.
In his Commentary at [290.240] “Victoria,” the learned Author notes that the Victorian Supreme Court (General Civil Procedure) Rules 2015 (“VSCR 2015”) Order 63 deals with costs, and he observes that with respect to items 8, 9, and 10 “Perusals, Scanning and Examination” the perusal allowances can give very high rates of recovery, and may be the sort of items which are likely to attract the attention of a taxing officer’s discretion to reduce the scale allowance. He further notes that in the Federal Court, a taxing officer may have regard to the time spent in reviewing documents in relation to the allowance review of documents. For this reason, he notes it may be necessary for solicitors to keep clear time records of document review.
Consideration
Onus of establishing that perusals should be charged on a time basis

Mr Ericson has submitted that the onus lies on the person seeking to allow charges for perusals on a time basis, in this instance Players, and that it is necessary to show some reason why it would be inappropriate to apply the general rule. It is akin to a dispensation power, he has argued, and reasons are needed for its application. I accept this submission. A reading of the Scale Item and the Note makes clear that the default provision at item 5 of the Tenth Schedule provides for perusals to be claimed on a per A4 page basis (with two applicable monetary amounts), and the dispensation is provided by Note J, which provides an hourly rate in lieu where there is a perusal of a “large volume” of documents, in which case “an hourly rate may be allowed by the taxing officer in lieu of a perusal fee”. Pointedly, the Note uses the word “may.”
Obligation of a party to record the time spent on a perusal of documents
This issue was raised in Kuek by Beach J, who agreed with the taxing master’s findings that even the absence of a file note altogether would not be conclusive on the point, and that the time recorded on a particular file note was also not definitive. This was because the quantum of the Victorian scale item was pegged at a sum to recognise that a document was read more than once. The fact that it was read more than once did not have to be established, and that there would be no point in recording how long it took on each occasion the document was read. The point of including a perusal/scanning item in the scale was to avoid having to establish all the time spent in looking at each document on each occasion the document was read such that the taxing master would have a responsibility to assess whether on each occasion it was necessary or proper to do so.
As indicated, however, the South Australian scale is different, and the Court has a discretion to allow perusals on a time spent rather than a page basis.
Mr Cogan referred to 06SCR r262.1 and UCR r191.2 which both require that a party must retain an adequate record of its costs, and submitted that the details provided in the Clone’s Summary and the redacted costs records did not tie in adequately to the work undertaken, as they were not adequately connected to the perusals. He said that if no records were kept of perusals on further dates, there was no way of knowing whether in fact time had been spent in re-reading them or not. He said that the Note as to bulk perusals required that proper records should be kept by the solicitors undertaking the work.
In response Mr Ericson said that although the “bulk perusal” discretion had applied prior to the commencement of these proceedings, the requirement to keep an adequate record of its costs records was not in force until after much of the work had been undertaken, and that a party was expected only to comply with the Rules as they were then, rather than how they might change in the future. In respect to perusals of documents, the practice was basically to keep the documents themselves and to retain them on file so that ultimately the number of pages could be counted, and it was inappropriate to suggest that a solicitor would be negligent not to record every time a document was perused.
The 06SCR relating to a solicitor’s obligation to keep an adequate record of its costs did not come into operation until the commencement of those rules, namely 4 September 2006, and sub rule (2) thereof, which defined “adequate record”, did not come into operation until 1 October 2014. These rules did not operate retrospectively, so I reject the submission that Clone has failed to comply with its Rules obligations in this regard.
There remains a common law duty to keep records, which is restricted to keeping records sufficient to assess how a client can be billed and then to draft a bill between party/party on a prima facie basis.
Notwithstanding that Clone’s solicitors had no obligation under the Rules to maintain records of perusals, and that different rule provisions applying in South Australia which render Kuek distinguishable, it seems to me that the observations made by the taxing master in that case have some relevance here. It may well be onerous to expect that a party make a time record of perusing a document every time it is perused. This may occur on multiple occasions, especially in respect of a significant document, such as the lease and the agreement for lease in this case. Often such perusals may be cursory, or occur during situations of urgency during the busy thrust of litigation, so a flexible approach must be taken when analysing the adequacy of a party’s time records.
Nonetheless, by reason of the Rule and Note, since the time of their introduction the parties to litigation should anticipate that during a taxation of any costs awarded, they might be called upon to substantiate the time spent in perusing documents. If the Court determines to exercise its discretion to award the costs of perusals on a time basis, it will assist if the claiming party has kept appropriate records, but if it has not, then the Court can only make use of whatever information might be otherwise available to assess and determine what amount or amounts will be allowed.
Circumstances in which perusals of large volumes of documents should be taxed on a time basis
This is very much a question to be determined depending on the circumstances of each claim. Multiple factors need to be considered.
The first is what constitutes a “large volume.” The term is not defined in the scale or notes, but some guidance may be discerned from the Scale allowances for the paging, collating, binding and indexing of a brief, Item 20 of the Tenth Schedule provides varying rates for briefs of 10 pages or less, 11 to 50 pages, 101 to 200 pages, and more than 200 pages. It is difficult to be precise, and each instance will have to be assessed on its own merits, but presumably something approaching 50 to 100 pages would be a “large volume”.
The second consideration relates to the importance of the documents perused, and whether they are likely to be read on more than one occasion, or indeed on multiple occasions. The Scale rate for perusal per page basis is, as was discussed by the taxing officer in Kuek, a “once and for all” allowance in a lump sum, and the quantum of the scale item is pegged at a sum to recognize that a document may be read more than once. Clearly, there will be key documents in certain cases that may need to be pursued on multiple occasions, such as when they are initially read by a solicitor, then later when proofing clients or witnesses, discussing with counsel, drafting pleadings, preparing lists of documents, forwarding to experts, compiling briefs and so on. If such documents fall within this category, the taxing officer would presumably be less likely to allow perusals on the time basis if the solicitor is not adequately remunerated in so doing. On the other hand, other documents may only need to be perused on the one occasion, so a time rate might be appropriate particularly if there are many of these in a bundle.
A third consideration will be if it can be established that perusal on a per page basis would be unreasonable or out of proportion to the time spent undertaking the perusals. This might for example be assessed by dividing the number of documents by the time spent or likely to be spent. Applying the 10th Schedule, where the solicitor’s maximum hourly rate was $250 per hour and the maximum perusal rate was $19 per A4 page, it might be shown to be unreasonable if say 100 pages were perused over 1 hour, then on scale rate the amount would total $1900 but on an hourly rate it would be $250.
Clearly, in these circumstances, it will be impossible for the Court to apply a blanket rule to each claim for bulk perusals. The factors may well be different in each instance.
For this reason, the parties have agreed that in the present instance, where there are multiple instances of bulk perusals, which can be seen from the Summary, it would be inappropriate to deal with all such claims together (see Mr Cogan at T 425.36 and Mr Ericson at T 431.13). Each suggested that item 424 should be ruled upon first, dealing with the basic issue of costing perusals on a time basis, and then the remaining issues argued thereafter.
This approach will be appropriate.
Amount to be allowed for item 424
As appears from the Summary, this item seeks the recovery of $3500 for the perusal of documents for inclusion in the documents for discovery by Ms Karagiannis (documents numbered 1-165) The item identifies the length of these documents as 500 pages and the $7 per page (lower) rate is claimed.
The Summary identifies 17 attendances for this work for a range of dates between 28 April 2004 and 12 May 2004 with each relevant WIP entry being described together with the corresponding dollar amount and the number of time units spent. These entries are produced (in a redacted form) in the booklet forwarded with the 9 February 2023 letter.
The total calculated for this claim on a time basis is 200 units, so with a time unit being 6 minutes and 10 units each hour, the time spent related to 20 hours of solicitor’s work. The “claim” on a time basis is based on a solicitor’s hourly rate of $200 per hour although I note that at the time the solicitor’s rate under Scale Items 7 and 8 ranged from $250 for matters of substance to $154 for a lesser rate.
I note also the section of the Summary entitled “General Work in Progress Entries relating to Perusals” which incorporates items not specifically linked to claims in Clone’s bill such as item 424. These items total $46,896.75, and Mr Ericson emphasised that even if only a nominal proportion of that time was apportioned to the bulk perusals, there would be more than ample justification for the charges sought in Clone’s bill.
Mr Cogan in his analysis of the content of the Summary relating to item 424 as is referred to above concluded that this did not tie in adequately to the work undertaken, some earlier perusals had already been allowed, and the total entries up to the 5 May 2004 date amounted to $1,940 as compared with Clone’s claim for $3,500. He submitted that in these circumstances and in broad terms the value of the work in the Work in Progress entries appeared to be in the order of approximately $2,000 compared with the claim of $3,500 for perusals on the page rate.
I have considered these submissions in the light of the factors relevant to the discretion provided under Note J.
The first issue is the volume of documents included within the claim in the item, which constitutes 165 documents with a page count of 500 pages. In my view, notwithstanding Mr Ericson’s submission that this description did not render it as a “bulk” perusal but rather that for convenience the bill had been drawn placing them into a single item rather than in numerous individual items, this claim should be regarded as a “large volume” for the purposes of Note J. The documents are described as collectively the documents included in Clone’s discovery.
Secondly, I have regard to the importance of the documents perused. Generally, they would appear to be important. They include the lease, which was no doubt a key document in the litigation and would no doubt have had to be perused on multiple occasions (albeit that the time claimed for perusal of the lease was 2 units, and of the agreement to lease which occupies 3 units, so these do not appear to have occupied large amounts of Ms Karagiannis’ time). Further, the purpose of this item was to consider the documentation to be included in Clone’s discovery. It is self-evident that is extremely important for a litigant and its solicitors to properly comply with the discovery process, as failure to do so by one or other or both can have serious consequences. Allowance should be made for the fact that great care should be taken in the exercise of reading and selecting documents to be included in the party’s discovery, which will also include making decisions on what documents need not be discovered. Documents included in the list will more likely need to be read on more than one occasion than those not in that category.
Thirdly, I have regard to the time likely to have been expended in the perusal process. Clone has analysed this time in the Summary, as has been verified in the booklet of WIP records, and asks the Court to also consider the “general” Work on Progress inventory. However, as Mr Cogan has pointed out in his submissions analysed above, some proportion of this time has been expended on other topics, such as drawing settling and checking Clone’s discovery, which have been allowed elsewhere in the Bill. It is also necessary to consider that the claims for items that pre-dated 5 May 2004 total $1,940 as compared with Clone’s claim for $3,500, although what is of most importance is having regard to all those items which strictly relate to perusals.
Fourthly, I consider that some of the pages might have been shorter than others, and that some documents might more appropriately have been scanned, rather than perused, and Mr Ericson acknowledged this in his submissions. However, I note that the perusals have been claimed at the lower rate of $7 per page so this somewhat balances out this contention.
I have regard to all these matters. It is impossible to assess the claim on other than a “broad brush” basis, but in the result, I have concluded that the appropriate amount to allow for item 424 is the sum of $2,500, which represents about 12½ hours of attendances of Ms Karagiannis, who as appears from the Summary charges at the rate of $200 per hour.
The sum of $1,000 is taxed off item 424.
Collating and binding transcripts for counsel
Clone has claimed the sum of $116 in item 5088 for an attendance on 4 April 2005 for collating and binding transcripts for counsel. The transcript was of 100 pages and Clone relies on the Tenth Schedule scale item 20, which provides for Paging, collating, binding and indexing of a brief. Sub paragraphs (a) to (e) apply a sliding scale for briefs of 10 pages or less from 11 to 50 pages, from 51 to 100 pages, from 101 to 200 pages and more than 200 pages respectively with amounts ranging from $18 to $270.
The scale item provides at its conclusion that where it is proper to deliver more than one brief, and in with respect of appeal books after the first, an additional amount of one half of the amount allowable under this item for the first copy of the brief or appeal book for each additional brief or appeal book will be allowed. Where a brief or appeal book exceeds 300 pages the pages in excess of 300 pages may be treated as a separate brief or appeal book.
It is noted that Clone’s claim in this item relates not to the preparation of a brief, or an appeal book, but rather to the collation and binding of transcripts of evidence for counsel. This is not specifically provided for in the scale. There is a further scale item, item 10, which relates to the attendance of a clerk on work not properly able to be carried out by a junior clerk, including traveling time, per hour. The hourly rate under this item was $120. The Court has been informed that the exercise here involved the collation of the transcript into four tabs which were marked with dividers bearing the four separate dates of hearing involved. The transcript was hole punched and placed into the binder with the tabs then inserted. Mr Cogan submitted that this involved no collation or pagination and furthermore that the scale item relates to briefs and not transcripts of evidence, which are supplied by the Court.
Similar items were claimed in bill items 5050 ($455 claimed) and 5659 ($697.50). $336.25 was taxed off item 5050, and item 5659 was disallowed in its entirety.
Additionally, a claim for care and consideration was made in relation to the preparation of Transcript Volume 3, item 5660 ($82). This was disallowed in its entirety. In item 5661, $697.50 was claimed for paging and collating Transcript Volume 4, and the sum of $630 was taxed off. In item number 5662 the sum of $82 was claimed for care and consideration for the Transcript Volume 5, and this was taxed off in its entirety. No note has been made of the reasons for these reductions or disallowances, or whether the point was argued as to whether the amounts were allowable under the scale, although the reductions appear to relate to the length of the documents in applicable cases.
Mr Cogan submitted that the work involved in preparing bound transcript might have more appropriately been undertaken by a junior clerk, rather than by a “clerk” as is referred to in scale item 10, and charged in the order of two units, pointing out that item 10 of the scale did not relate to a junior clerk but rather a senior clerk. He pointed out that no rate for a junior clerk was provided in the scale, nor was there a fee provided in relation to binding transcript.
Mr Ericson pursued the claim.
In Legal Costs South Australia Volume 1 at para [24345] there is a discussion relating to briefs and copy documents. It is noted that the present Higher Court Cost Scale provides for various components for the preparation of briefs and copy documents. Scale item 2 relates to the drawing of proofs, indices, formal lists, extracts from other documents, list of authorities, or other formal document (including original and the lawyer’s file copy), for each quarter page. Scale item 6 relates to inter alia Documents produced by copying or scanning, for each sheet and Scale item 13 relates to the Preparation of Pleadings Books, Tender Books, Application Books, Appeal Books and Briefs, including indices, pagination and binding, for each page. Pointedly, there is no reference in the Scale for the compilation of volumes of transcript.
In the Commentary relating to the First Schedule under previous rules, it is noted that the charges do not include the cost of photocopying, but cover the clerical exercise involved in paging, collating, binding, and indexing documents. It is noted that this item is only claimable in full where the brief has been properly put together and indexed. Binding can include placing the brief in a spring back folder or some similar covering and is not necessarily mean a permanent form of binding. The use of a commercial binder for the preparation of copy documents has been allowed as a disbursement on a solicitor/client taxation based on the analogy of appeal books, in that such a binding will assist the trial Judge if the copy documents are bound so that they lie flat when opened: Baronglow v Willing (SADC) Master Norman, 27 February 2007 (unreported), a ruling on a reconsideration of a taxation of costs.
The Court is not aware of any previous authorities in relation to a claim for the paging, collating, and binding of a transcript of evidence, nor for care and consideration in relation to same. In the Federal Court, Schedule 3 of the FCR under item 8 for “Collation, pagination and indexing” provides that Collation (including collation for the purposes of copying), pagination and indexing of documents for the purposes of discovery, inspection, briefs to counsel, instruction to expert witnesses, court eBooks, appeal eBooks or eBooks of authorities (in accordance with the eBooks Practice Note), exhibits or annexures to court documents or similar (but excluding maintaining files) - in accordance with item 1.3, or at the discretion of the taxing officer, having regard to the number of pages and the number of documents collated, paginated or indexed. Pointedly, this does not refer to transcript collation.
Neither does the Supreme Court of Victoria scale under the Supreme Court (Chapter I Appendices A and B Amendment) Rules 2017, (“VSCR”) which in relation to Collation, Pagination, and indexing of Documents (Item 14) limits this to documents or files including for discovery or inspection purposes, briefs to Counsel, Court Books, Appeal Books, exhibits or annexures to Court documents, hearings, instructions to expert witnesses, correspondence, and the like.

Although in the context of the preparation of Appeal Books, or Briefs to Counsel on an appeal, it is appropriate to allow for the binding etc of transcripts of the hearing, in the context of a trial no provision is made for same in the Scales, so I have determined that bill item 5088 should be disallowed.
Orders
1.    The sum of $1000 is taxed off item 424.
2.   The sum of $116 is taxed off item 5088.
3.   Other items claimed by Clone which it is asserted should be taxed on a time basis will be considered when the taxation resumes.

[2023] SASC 56

18 April 2023