Clone Pty Ltd v Players Pty Ltd (No 7)
[2023] SASC 98
•23 June 2023
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CLONE PTY LTD v PLAYERS PTY LTD (No 7)
[2023] SASC 98
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 - ATTENDANCES
Rulings on a Taxation of costs.
District Court Civil Rules 2006 (SA) r 264(2); Uniform Civil Rules 2020 (SA) r 194.6, referred to.
Lawrence v MD Nikolaidis & Co (2003) 57 NSWLR 355; [2003] NSWCA 129 at [50] – [51], per Hodgson JA; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673, at [25], per O’Loughlin J; Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors (No 8) [2014] VSC 567 at [167], per Dixon J; Prudential Finance Ltd v Davander Nominees Pty Ltd [1992] 1 VR 468; Woodward v David Jones Pty Ltd & Ors District Court Action 2590 of 2011, decision no. 7 of 2018, reasons published 27 February 2018 (unreported).; Smith v Bullar [1875] LR 19 Eq 473 at 475; Coleman v Waldron (1980) LSJS 447, per Wells J; Fitzroy Robinson Ltd v Mentmore Towers Ltd [2009] EWHC 1552 (TCC); Clone Pty Ltd v Players Pty Ltd (No 6) [2023] SASC 56; Kuek v Devflan Pty Ltd & Anor [2009] VSC 91, at [25] and [41] – [42], per Beach J; McCoombes v Curragh Queensland Mining Ltd [2001] QDC 142, considered.
CLONE PTY LTD v PLAYERS PTY LTD (No 7)
[2023] SASC 98Supreme Court – Civil Application
NORMAN AJ: This is the continuing taxation of the costs of the applicant Clone Pty Ltd in these proceedings. In these reasons the applicant will be referred to as “Clone” and the respondents 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 numbers of items were reserved. The remaining items have since been grouped into discrete topics, and these are now being taxed in progression.
Three issues have recently been argued:
·The first relates the preparation of a solicitor for conferences with and/or the proofing of witnesses.
·The second relates to the attendances in court of an instructing solicitor.
·The third relates to the attendances in court of a senior clerk.
Preparation for conferences/ Proofing
Clone has claimed for the preparations by its solicitor, Ms Karagiannis, relating to a conference/conference with its potential witnesses Mr Mead, Mr Brooks and Mr Lawry (sometimes called Laury). The relevant items are as follows:
·Item 3149 - 24 November 2004 – Attendance by Ms Karagiannis to cross reference chronological documents and attendance of Ms Karagiannis to review documents to prepare for conference with Mr Mead, Mr Brooks and Laury (3.1 hours) [7] amount $775.
·Item 3153 - 26 November 2004 – Attendance by Ms Karagiannis to go through chronology and sub chronologies, cross reference chronological documents and prepare for conference with Mr Lawry and Mr Mead (4.1 hours) [7] amount $1,025.
·Item 3405 - 19 January 2005 – Attendance by Ms Karagiannis to review documents in light of counsel instructions and in preparation for conference with B Mead (2.2 hours) [7] amount $550.
The total amount claimed in respect to these three attendances is $2,350. This is based on scale item [7] of the Tenth Schedule to the then 1987 Supreme Court Rules (“the Tenth Schedule”) which was in force between 29 April 2004 and 13 July 2005, being an hourly rate of $250.
An alternative rate allowed in the Tenth Schedule is item [8] which provides that where the attendance of a solicitor does not require special skill or legal knowledge but where it is proper that a solicitor should personally attend, including travelling time, an hourly rate of $154 is allowed.
In essence, the issue in dispute is whether as between party and party (now referred to as the standard costs basis pursuant to Uniform Civil Rules (“UCR”) rule 191.1) a solicitor can charge for preparing for a conference with, or proofing of, a witness or witnesses by reviewing materials beforehand such as documents for which perusals have already been claimed, or for cross referencing chronological documents which have already been prepared.
There appears to be little authority on this issue, both in South Australia and in other jurisdictions, although no doubt the issue has been raised during taxations of costs but where the rulings have not been reported.
In the case of item 3149, Mr Ericson, for Clone, tabled a bundle of documents comprising 107 sheets comprising something in the order of 70 A4 pages of text. The first three pages of the bundle comprise handwritten notes dated 24 November 2004 being the date of Item 3149 of the claim, and these appear to be the notes made by Ms Karagiannis in cross referencing the chronological documents viewed by her on that date. The remaining documents appear to be those discovered by the parties during the proceedings.
No supporting material has been provided in relation to Items 3153 and 3405.
Submissions of the parties
Mr Ericson, for Clone, submitted that the items claimed should be allowed in full. He said that the documents were relevant to matters to be put to the witness or witnesses in their proofing and needed to be considered prior to that proofing even if they had been read before by Ms Karagiannis or other solicitors acting for Clone. The fact of prior perusal, he submitted, should not prevent the further consideration of these documents during conferences or in proofing of the witnesses. He said that the exercise, the subject of the three claims, involved making notes of matters to be raised with the witnesses and deciding upon the provision of copies of documents to the witnesses during such proofing. At least some preparation prior to a conference with a witness should be allowed. The exercise was akin to a solicitor drafting a proof of a witness to be subsequently provided to that witness for consideration and adoption. It was an effective and efficient process. This exercise was undertaken in advance for the proofing, rather than during its course, as the latter would inevitably have taken up more time in proofing the witness.
Mr Cogan, for Players, opposed the allowance of the three claims. He acknowledged that it was reasonable to provide copies of relevant documents to a witness prior to proofing, as this was akin to the drafting of a proposed statement for the consideration and adoption by a witness. However, the present exercise in each of the three claims, he submitted, was different. Each was essentially a note from Ms Karagiannis to herself and should be part and parcel of the conferences for which a claim had been made. Indemnification for these exercises had already been allowed at the stage when the documents had earlier been perused and considered. The perusal fee provided in the Schedule, he submitted, was a “once and for all” amount, and a loading was included within the fee to allow for the fact that a document perused by a solicitor during litigation might have to be read and re-read on several subsequent occasions.
Legal principles
As indicated, there is little direct authority on the issue under consideration.
Preparation
In Professor Dal Pont’s “Law of Costs”[1] under the heading “Cost of solicitor attendances and conferences” the learned author writes as follows:
Conversely, expenses are not allowed in relation to the collation of documents or other material in preparation for giving instructions or evidence, time spent in refreshing recollection or making notes with a view to giving evidence or giving instructions, are matters of like nature.
[1] GE Dal Pont, Law of Costs (LexisNexis Butterworths, 5th ed, 2021) 642-643.
The learned author refers to Lawrence v MD Nikolaidis & Co[2]. In his reasons at paragraphs 50 and 51, Hodgson JA observed:
50. In relation to represented litigants, expenses may be allowed for a conference with a solicitor and/or barrister, insofar as this is necessary in order to prepare for giving oral evidence or to prepare an affidavit. In the case of a solicitor litigant, the same expenses may be allowed in connection with such a conference had with a barrister.
51. However, I do not think expenses would be allowed in relation to such matters as collation of documents or other material in preparation for giving instructions or giving evidence, times spent in refreshing recollection or making notes with a view to giving evidence or giving instructions and matters of like nature.
[2] (2003) 57 NSWLR 355; [2003] NSWCA 129 at [50] – [51], per Hodgson JA.
I note, however, that these reasons involve a case not concerning a solicitor preparing to proof a client or witness, but rather the attendances of a self-represented solicitor litigant.
In Paragraph 17.37 of “Law of Costs” the learned author writes that Court rules in some jurisdictions provide that the attendance of a witness includes an attendance at a conference with counsel before trial and, in the case of an expert witness, qualifying to give evidence as an expert. It is noted that this has in any case been regarded by Courts independent of a specific provision to this effect. The reason is that it is not readily apparent how an expert witness “could be utilised by a party without recourse to proprietary work such as conferences, reports and advises.” There is reference to Auspine Ltd v Australian Newsprint Mills Ltd.[3]
[3] (1999) 93 FCR 1; [1999] FCA 673, per O’Loughlin J.
However, this reference is to the costs of a witness, rather than a solicitor conferring with or interviewing a witness.
Auspine Ltd v Australian Newsprint Mills Ltd, involved an application in the Federal Court to fix a gross sum for costs pursuant to Federal Court Order 62 r 4 (T2). In that case both parties supported a gross sum assessment but there were issues as to how much should be allowed[4]. At paragraph 25, O’Loughlin J considered the quantum of solicitors’ costs to be allowed. The applicant had modelled its claim based on its solicitor and client charges, but the reduction needed to take into account that the costs had been awarded on a party and party basis only.
[4] Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at [25]; [1999] FCA 673.
The respondent proffered what were referred to by the Court as “justifiable criticisms” with respect to the use of the applicant’s billing guide as the base or starting point for the calculations of solicitor’s costs on a party and party basis.
O’Loughlin J observed at paragraph 25, as follows:[5]
[5] Ibid.
…
Those criticisms included the following factors: amounts have been claimed for:
·clerks’ attendances on administrative work such as organising files and attending on solicitors to be instructed in their duties;
·solicitors’ attendances on clerks in order to instruct them;
·solicitors’ attendances to review files; and
·legal research.
In my opinion, none of these items are chargeable.
(Emphasis added)
There is reference to this issue in “Quick on Costs” Thomson Reuters, online edition 18 July 2018 under the headings “Attendances”, “Preparation” and “Case Planning and Legal project Management”.[6]
[6] Thomson Reuters, Quick on Costs (online at 18 July 2018) [270.360].
Under the heading “Attendances” the learned author refers to the decision of Dixon J in Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors:[7]
…a barrister may refer material from the case to a witness for comment at any time, including pleadings, affidavits, statements, exhibits or, subject to any contrary order, the testimony of witnesses that has already been given. The Court does not expect witness to be called when the barrister does not know what the witness will say on the key issues.
[7] [2014] VSC 567 at [167].
Under the heading “Case Planning and Legal Project Management (CPLPM)” the learned author, in the context of legal work undertaken by Federal or NSW governments, notes that traditionally, time spent preparing for hearings, conferences and meetings was generally not allowed on a party/party basis, as it often involved the consideration and review of documents for which a perusal/scanning allowance had previously been made, although where a scale of costs so applied, this work would be allowed as part of the skill and care loading. (I observe that this was not part of the Tenth or subsequent Schedules, not does it apply under the Higher Courts costs scale of the UCR). The learned author notes, however, that increasingly, taxing officers have recognised that case planning and strategy development were part of best practice in management of litigation and would allow an element of this work, referring to the Report of the Review of Commonwealth Legal Services Procurement, Anthony Blunn AO and Sybille Krieger, 2009; NSW Department of Attorney General and Justice Legal Services Blueprint, August 2011.[8] He further observed that this continued to be an area looked at closely.
[8] Anthony S Blunn and Sibylle Krieger, Report of the Review of Commonwealth Legal Services Procurement (Report, 2009).
Pointedly, the learned author does not refer to any authorities where taxing officers have allowed for an element of the work of preparing for hearings, conferences, and meetings.
Under the heading “Preparation fees” referring to Prudential Finance Ltd v Davander Nominees Pty Ltd[9] and other authorities, the learned author notes that preparation and reading fees are only allowable as between party and party in particularly complex applications. But this is in the context of counsel fees, and not in relation to solicitor’s attendances.
[9] [1992] 1 VR 468.
The concept of the proper preparation for litigation was referred to in my reasons in Woodward v David Jones Pty Ltd & Ors.[10] That case involved the taxation of a plaintiff’s costs relating to a claim for damages for personal injury. Objection had been taken by the defendants to various attendances of the plaintiff’s solicitors and counsel to take her instructions. I discussed the principles relating to the term “party and party costs” which were defined in the then r 264 (2) of the District Court Rules 2006:
…(That is, on the basis that the party entitled to the costs will be reimbursed for costs reasonably incurred by the party in the conduct of the litigation to an extent determined by reference to the scale of costs enforced, under these Rules or the old rules, when the costs were incurred).[11]
[10] District Court Action 2590 of 2011, decision no. 7 of 2018, reasons published 27 February 2018 (unreported).
[11] District Court Civil Rules 2006 (SA) r 264(2).
At paragraph 20, I noted the decision of Smith v Bullar:[12]
Costs charged or under an adjudication as between party and party are all that are necessary to enable the adverse party to conduct the litigation, and no more. Any charges merely for conducting litigation more conveniently may be called luxuries and must be paid by the party incurring them.
[12] [1875] LR 19 Eq 473 at 475.
In my reasons at paragraphs 21 to 25, I referred to the importance of a party obtaining a proper proof of evidence for a case going to trial:[13]
[13] Woodward v David Jones Pty Ltd & Ors, District Court Action 2590 of 2011, decision no. 7 of 2018, reasons published 27 February 2018 (unreported) at [21] – [25].
21.It is a vital component of the preparation of trial process that thorough and comprehensive proof of evidence are taken for witnesses. There is a substantial difference obtaining a statement and obtaining a proof of evidence. A proof would or should involve assessing one or more of such matter as the relevance, admissibility, probative weight, ethical difficulties or evidentiary problems of the potential evidence. This is even more important when the proof is taken from the plaintiff, as he or she is a source of the solicitors’ instructions.
22. In Coleman v Waldron[14], Wells J made the following observations:
I wish to add some observations upon the administration of Justice, generally, in civil cases. One of the very heavy burdens born by trial Courts is that a degree of uncertainty imparted to the testimony, and accordingly, to the findings of fact, by the lack of a prompt investigation into relevant facts after the accident or other central event has occurred.
… There are few matters in which the chances of a just resolution would not be enormously enhanced if someone were to obtain promptly a full and detailed signed statement from each of the likely parties, and the more obvious witnesses.
…
It seems to me that the strain of litigation upon solicitors and clients would be materially lessened if earlier and fuller investigations were more often carried out, or procured to be carried out, by solicitors in matters of any real substance…
23.In Fitzroy Robinson Ltd v Mentmore Towers Ltd,[15] Coulson J referred the vital importance of proper preparation in litigation, for all concerned. One of the reasons that the defendant in that case failed to substantiate its counter claim for professional negligence was that its experts report was wholly inadequate. Its expert had been “stood down” repeatedly during his preparation for trial, as the Judge said “presumably in order to save fees”. As a result, he had never seen all the relevant documentation, even by the time he was in the witness box being cross examined. He had therefore come to Court without being in possession of the necessary information to form a concluded view. The Judge’s criticism was harsh, describing it as unacceptable that the witness had been seriously hampered in his preparations, and describing the state of affairs as a “sorry story”.
24A witnesses evidence is critical to any allegation of disputed facts, and a case will be won or lost on the quality of the evidence called. A party is entitled to be properly remunerated for the preparation of its claim by the taking of a careful proof of evidence and doing so is not a luxury in the sense referred to in Smith v Buller. Good preparation will save money to all involved in the long term.
25.Before proceeding in litigation, and during its course, it is essential for the parties to assess and reassess the strengths and weaknesses of their cases. A party presenting a case is expected to do so based on full and comprehensive instructions, and to assist the court to determine the facts in dispute. The foundation of this is taking of a clear and comprehensive proof of evidence. It will not only assist the Court but provide the proper basis for necessary investigations by those presenting their cases to the Court.
[14] (1980) LSJS 447.
[15] [2009] EWHC 1552 (TCC).
All these factors indicate the importance of parties thoroughly preparing their cases and of necessity, this involves proper preparation by a solicitor to confer with or proof persons who are, or might be, called upon to give evidence in a matter.
Perusals
The perusal of documents at the time the claims were made was covered by Item 5 of the Tenth Schedule which allowed $7.00 per A4 page or the equivalent thereof, or $19 per A4 page if of substance.
I discussed the concept of perusals in my reasons in Clone Pty Ltd v Players Pty Ltd(No 6)[16] where I summarised the provisions under the scale and the relevant case law.
[16] [2023] SASC 56.
I referred to the decision of the Victorian Supreme Court in Kuek v Devflan Pty Ltd & Anor.[17]
[17] [2009] VSC 91, Beach J, at [41] – [42].
That case involved a review of a taxation of a claim for costs which had included amounts claimed for 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:[18]
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.
42. 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 will 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 the rationale behind a folio rate- that it is a “once and for all” allowance in 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).
[18] Kuek v Devflan Pty Ltd & Anor [2009] VSC 91 at [21].
Beach J found no error in the Taxing Master’s approach [see paragraph 22].
The issue of perusals was also considered by the learned author of Quick on Costs online edition at paragraph [20.1160] “Perusing”.[19] He noted that, in the context of the Supreme Court Rules 2000 (“SCR TAS”). Item 17 of Schedule One provided:
The scale allowance per folio was for perusal was a higher 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 in preparing for trial, but that the time occupied in a perusal could be taken into account in fixing an instructions for brief allowance.
[19] Thomson Reuters, Quick on Costs (online at 18 July 2018) [20.1160].
In McCoombes v Curragh Queensland Mining Ltd, Magill DCJ observed as follows: [20]
The scale allowance per folio for a perusal was a higher fee, as the allowance for perusal should be made only once for each document and no allowance should be made for a 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.
[20] [2001] QDC 142 at [38].
These authorities reinforce the concept that a perusal, as provided in the Tenth Schedule, is a “once and for all” allowance, so any attendance of a solicitor which involves a second or following perusal should not be further allowed.
Consideration
As appears from the above analysis, there are tensions between properly indemnifying the thorough and efficient preparation of a litigant’s case, on the one hand, and not permitting the charging for perusals of documents on multiple occasions, on the other.
Clone’s claims as described in items 3149, 3153 and 3405 of its Schedule of Costs involve the consideration and cross referencing of documents previously perused, and of chronologies already drawn, in each instance such perusals and drawings having previously been claimed for and allowed in other parts of the Schedule.
This is clear references in the description of those items to “cross reference chronological documents,” to “review documents,” to “go through chronology and sub-chronologies,” to “prepare for a conference” and to “review documents in light of counsel instructions.” These suggest that a large part of the work undertaken by Ms Karagiannis on those occasions was for work already undertaken and claimed, such that the present claims should not be permitted.
However, a taxing officer has a wide discretion and may have regard to any factors considered relevant.[21] Had the preparation not been undertaken, the proofing/conferring process might have taken longer and this would have been inefficient, involving both the witnesses’ and the solicitor’s time. I have come to the view, accordingly, that some modest allowance should be made for the work involved in organizing the material necessary to efficiently confer with/proof the witnesses concerned. I have accordingly determined that a total of two hours preparation should be allowed at a charge of $500. The sums claimed in items 3149, 3153 and 3405, are to be adjusted accordingly.
[21] Uniform Civil Rules 2020 (SA) r 194.6.
Attendances in court of an instructing solicitor
At the hearing on 7 June 2023 the Court taxed those items in Clone’s claim relating to the attendances of Ms Karagiannis, one of the two principal solicitors representing it, at the trial of the proceedings before Vanstone J, together with attendances of a senior clerk from time to time. The items were summarised in a Schedule tabled by Mr Ericson, headed “Schedule of Trial Items.”
I made rulings on these claims during the hearing, and gave brief reasons at the time. These reasons summarise and provide more detail in relation to those rulings.
In support of Clone’s claims, Mr Ericson relied upon the descriptions in the items concerned together with an affidavit sworn by Ms Karagiannis on 19 August 2021[22] identifying her role in the litigation and elaborating on Clone’s claims, and exhibiting supporting documentation including copies of file notes, transcriptions of these where appropriate, and containing particulars elaborating on what the claims and attendances were about and why they were necessary. She had also referred to attendances by a senior clerk working on the case. On 16 November 2021 Ms Karagiannis attended the taxation and was cross examined on her affidavit, but as Mr Ericson has submitted, there was no dispute taken as to what she had testified to in her affidavit and evidence.
[22] FDN 272.
During the taxation the Court was informed that Ms Karagiannis kept a “Trial book” incorporating notes made by her as to what she was doing during her court attendances. She also kept a separate “Things to do” book, outlining matters which needed attending to as a result of what transpired during the hearings. Many matters arose during the hearing requiring her involvement, such as the noting of evidence being taken, the maintenance of a list of exhibits, attending to those persons who attended in response to subpoenas, to receive documents produced, arrangements to copy documents, conferences with counsel, witnesses, and representatives of Players, liaising with court staff and reporters, organizing transcripts, providing materials for filing and service such as Tender Books, and so on.
Ms Karagiannis kept records of her attendances in her records and in her firm’s Work in Progress records, although no differentiation was noted in these in relation to what components were included by way of time spent in or out of court, travelling time, out of court conferences, or time spent observing the proceedings whilst not doing other work.
Provisions of the Scale in relating to attendances of an instructing solicitor in Court
Item [7] of the Tenth Schedule provides the rate of $250 per hour for the attendance of a solicitor where the nature of the work requires the exercise of special skill or legal knowledge, and refers to Note K, which provides:
When an instructing solicitor is in Court the lower attendance rate should be allowed if the solicitor is merely assisting counsel by being present, but the higher rate should be allowed if the solicitor is more actively involved, eg by proofing witnesses, preparing indices, etc.
Item [8] of the Schedule provides the rate of $157 per hour for a solicitor where the attendance of the solicitor where the work done does not require special skills or legal knowledge, but where it is proper that a solicitor should personally attend, and travelling time.
Submissions
Lengthy submissions were presented by both Mr Ericson and Mr Cogan in relation to item 4401, which related to Ms Karagiannis’ attendance at Court on 7 March 2005, which was the first day of trial. The claim was based on Scale item [7] and sought $1850 for 7.4 hours attendance.
Mr Ericson submitted that the full rate under Item [7] should be allowed for Ms Karagiannis’ attendance on the first day of trial. He referred to her file notes for this day, which extended to three A4 pages, detailing all her attendances, and to the evidence contained in her affidavit. On that date, he said, 4 subpoenas were answered, a Tender book was produced and marked for identification, 33 documents were tendered into evidence, and other work of importance was undertaken.
Mr Cogan, however, submitted that of the time claimed for by Ms Karagiannis, only 4.5 hours was spent in court, travel time would have been incorporated within the claim, and it could not be established that the work involved such skill and legal knowledge as to warrant allowance under Scale item [7].
Consideration and rulings
After hearing submissions, I allowed the sum of $1600 for Ms Karagiannis’ attendance on this date, based on the higher rate contained in item [7] “skill and legal knowledge”. The first day of a trial is important, particularly a long case (the trial lasted 29 days) which is complex and involves the tender of large amounts of documentation with multiple witnesses being called. Most often the instructing solicitor will personally need to be on hand during the opening day to assist counsel in their opening addresses, to facilitate the tender of documents, to discuss the order of witnesses to be called, to obtain instructions from the litigants, to organize witnesses, and attend to all the other matters which arise early in a trial. Whilst each case will turn on its own circumstances, it will usually be appropriate to allow for the costs of attendance of the instructing solicitor fixed on the high end of the scale for at least the first day’s attendance.
However, having regard to the fact that some of Ms Karagiannis’ attendances that day involved travel and other attendances of lesser importance, I reduced the number of hours claimable by one hour, allowing for 6.4 hours of attendances, and taxed off the sum of $250 accordingly.
I largely took a different approach for the remainder of Ms Karagiannis’ attendances at trial, as claimed in items 4463 to 5832 (leaving aside the clerks’ attendances) of the trial items schedule. Mr Ericson addressed me in relation to the type of work undertaken by Ms Karagiannis on such dates, and I was satisfied from this information that while the solicitor was on occasions involved on matters of skill and importance, at other times the matters attended to attracted instead the lower rate.
Accordingly, for each of these occasions I allowed a “blended” rate, averaging the full rate under item [7] with the lesser rate under item [8], to a figure of $200 per hour. Based on the transcript record of the actual time taken for each day’s hearing, I allowed this portion of the time occupied in full, and depending on the records of what work Ms Karagiannis undertook each day, I also allowed for additional indemnification for the “out of Court” attendances, involving conferences and the other activities recorded. On occasions these amounted to an extra hour or so, on other occasions for multiple hours - such as item 5281 of the claim, during which the parties held a lengthy conference between themselves during out of court hours.
Attendances in court of a senior clerk
The Schedule of Trial items also contains a list of those items in Clone’s claim which relate to the attendance of a senior clerk at trial with Ms Karagiannis and Counsel. These commence at item 4430 and conclude at item 5234 (excluding Ms Karagiannis’ attendances in the schedule). I made rulings and gave reasons at the 7 June 2023 hearing and these reasons summarise and supplement those rulings.
Item [10] of the Tenth Schedule relates to the attendances of a senior clerk, and allows $123 per hour for such an attendance of a clerk on work not properly able to be carried out by a junior clerk, including travelling time.
Item [11] of the Tenth Schedule relates to attendance of a junior clerk, and provides a rate of $20 per attendance, for work such as attendances at Court to file or lodge papers, or to deliver documents etc.
I note in passing that the “senior clerk” rate does not appear in the present UCR Higher Court costs scale, although an allowances for deliveries, filing etc is provided in item [9].
Both counsel made submissions as to the appropriateness of allowing for the attendance of a senior clerk at trial. Mr Ericson referred to the necessity for a clerk to attend at times during the trial, particularly in relation to the transportation of large quantities of documents to and from Court, collecting and taking other documents from the solicitors’ offices to Court, delivering documents elsewhere, taking documents away for photocopying and returning them later, and the like.
Mr Cogan, on the other hand, queried the need for a senior clerk to be at Court at any time, especially allowing for the fact that Clone was already represented throughout the trial by both senior and junior counsel and by an instructing solicitor. He submitted that the item [11] rate would be more appropriate for many of the attendances.
On each occasion Mr Ericson provided details of what work was undertaken by the senior clerk on each occasion that a claim was made, and I made rulings accordingly.
On the first day or trial, 7 March 2005, a claim was made in item 4450 for the sum of $480 for a senior clerk’s attendance for 4 hours. I allowed the claim insofar as it was based on scale item [10], on the basis that it was the first day of trial, and large numbers of documents were required to be taken to Court - exhibits, tender books etc - it would have been inappropriate for these to be taken by counsel to court, and they were too voluminous to be conveyed there by Ms Karagiannis. I reduced the sum payable for this attendance, however, to one hour, allowing the sum of $240.
I likewise allowed the sum of $240 for a further day of trial, item 4541, 9 March 2005, and for the sum of $120 for item 4583, 10 March 2005 for similar reasons.
With most if not all the subsequent items in this category, however, I disallowed claims for the attendances of a senior clerk at trial.
However in the majority, if not all, of the other claims for the attendances of a senior clerk at Court I was persuaded by Mr Ericson that it was appropriate from time to time to allow for the attendance, on some occasions multiple attendances, of a junior clerk charging under then scale item [11] to travel to court to collect documents, to deliver them elsewhere (and vice versa) on the occasions when this became necessary, such as to remove and return documents to the office for photocopying, and such tasks. Invariably during trials, it will be necessary for clerks to undertake deliveries etc to and from court, and it is appropriate to indemnify the successful litigant for such attendances under the present UCR Higher Courts scale item [9], which replaced the former scale item [11].
Record keeping
As with any other attendance recorded by a solicitor, it is important that records of time spent at court as an instructing solicitor be as complete and comprehensive as possible. Note K to the Tenth Schedule allowed the Higher rate set out in item [7] in cases where the instructing solicitor at Court was more actively involved, eg by proofing witnesses, preparing indices, etc. The Court was assisted in determining the appropriate rate to allow in this instance by reason of the file notes referred to it by counsel. The former Note K is largely replicated in Item (4) to the Notes to the present Higher Court costs scale set out in UCR Schedule 6, and the same position continues to apply.
Orders
1.In respect of Clone’s claims in items 3149, 3153, and 3405 of its Schedule of Costs, the sum of $500 is allowed.
2.The Court will hear from the parties on the next attendance as to how the Schedule of Costs is to be adjusted accordingly.
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6
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