EVAN David Ross WILLIAMS by his next friend the Public Trustee v Rosenberg - [2003] WADC 78

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: EVAN DAVID ROSS WILLIAMS by his next friend THE PUBLIC TRUSTEE -v- ROSENBERG [2003] WADC 78

CORAM: DEPUTY REGISTRAR HARMAN

DELIVERED : 28 MARCH 2003

FILE NO/S: CIV 1919 of 1997

BETWEEN: EVAN DAVID ROSS WILLIAMS by his next friend THE PUBLIC TRUSTEE
Plaintiff
AND
STEVEN MICHAEL ROSENBERG
Defendant

Catchwords:

Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation of costs - Solicitor and client costs - Incapable person - Pre-trial conference - Recovery of GST - Sufficiency of objection

Legislation:

Nil

Result:

Unsuccessful in relation to each objection

Representation:

Counsel:

Plaintiff: No Appearance
Defendant: No Appearance

Solicitors:

Plaintiff: Paul O'Halloran & Associates
Defendant: The Public Trustee

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff commenced the action in his own right but on 13 November 2000 it was ordered that the Public Trustee be appointed as his next friend. The action was comprised and each of the plaintiff and the plaintiff's solicitor filed bills of costs for taxation. The plaintiff's bill was taxed in part over a period of 2.25 hours but was ultimately the subject of agreement.
The solicitor's bill was significant. One of the 52 items for which a claim was made was broken down in a separate schedule to 304 parts. At taxation, each claim was supported by some record of the provision of relevant services and by submissions both as to the content of the record and the context in which those services were provided. According to the Court's record that bill was taxed on 17 December 2001, and on 11 and 12 April, 23 and 24 May, 29 and 31 July and 11 and 12 September 2002 for a period in the order of 24 hours.
The solicitor has now filed an objection to some of the determinations made in relation to his claims.
The Rules which bear upon review are as follows:
"53(1)A party who contends that the Taxing Officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before the certificate of taxation dealing finally with that item is signed, or at such earlier time as may, in any case, be fixed by the Taxing Officer-
(a)deliver to the other party interested in the allowance or disallowance and carry in before the Taxing Officer, an objection in writing to the allowance or disallowance specifying in the objection by a list, in a short and concise form, the items or parts of items objected to and the grounds and reasons for the objections; and
(b)thereupon apply to the Taxing Officer to review the taxation in respect of those items or parts.
(2)
54(1)Upon an application under the last preceding rule to review the taxation, the Taxing Officer shall reconsider and review his taxation in relation to the objections, and he may, if he thinks fit, receive further evidence in respect of the objections.
(2)If so required by a party, the Taxing Officer shall state in his certificate of taxation or by reference to the objection, the ground and reason of his decision on the objection, and any special facts or circumstances relating to his decision."
Upon receipt of the notice of objection it was my assessment of the task presented that the review would be properly conducted in circumstances where I was able to call upon the solicitor to provide the detail of services relevant to the claims the subject of objection and the context in which they were provided.
Accordingly I requested the List Clerk after consultation with the solicitor to list the review for hearing. The solicitor's response was that he did not wish to make any oral submissions and requested that a decision be made on the basis of the content of the Court's file. I responded to the effect that I would need to review the information provided to me at the taxation in order to determine the objections and attend to the process of review.
The solicitor then lodged his complete file along with a letter requesting that I proceed with the review. The file took the form of two archive boxes each of which was full of written material.
The magnitude of the task of finding relevant documents in the file would have been far more than could properly be expected by the solicitor. Even if the solicitor understood that it was appropriate to lodge documents relevant to each claim the subject of review that could not justify the lodgement of the complete file. The Registry is not a repository for documents simply at the election of a party. Accordingly I communicated to the solicitor that it was not appropriate to lodge his file and that he was required to uplift it.
It is significant that the onus in the review is on the solicitor. To succeed he would need to establish not only the error in principle contended for but also the impact of that error on the relevant determination. Ultimately the solicitor would carry the onus in the taxation absent the impact of the offending error. It would be for the solicitor to put a case in relation to quantum.
By way of illustration, if I was satisfied that an error had been made in relation to the first determination the subject of objection, that the error qualified as an error in principle, and that it had had an impact upon recovery, it would then be appropriate to proceed to tax the claim absent that impact. That claim is as it is presented in the bill as follows:
9/9/98Pre-trial conference (item) 24 ($) 270.00
Item 24 of the scale to which reference is made is as follows:
"Pre-trial; mediation or other conferences -
required by order of the Court, by the Rules
of the Supreme Court or by Practice
Direction – per hour ($) 270.00"
Now I might infer that the claim is for one hour as the arithmetic might indicate. It is a matter of whether it would be appropriate for me to draw that inference.
Fundamentally it comes down to a matter of discretion. In exercising that discretion it is appropriate to consider that the solicitor ought to be aware of the need to satisfy the onus. There is nothing in the course of the communication that would suggest that the solicitor was under any misapprehension as to my expectations. Further that it would not necessarily be appropriate to accord to a practitioner seeking to recover the cost of professional services rendered to his client that degree of latitude that may be accorded to a litigant in person. Ultimately where a party carries the onus, is properly taken to appreciate that fact and fails to take any step towards its satisfaction it is a matter of whether it is appropriate to draw any inference in favour of that party in order to assist it. I suspect not.
As it appeared that the solicitor had not grasped the dimensions of the issues raised by the terms of the objection and the process of review I advised him that if he wished to have me conduct the review in his absence then before doing so I would require confirmation that he wished me to so proceed. He did so by letter dated 24 December 2002.
The objections taken by the solicitor deal with 12 items or groups of items for which claims were made in the bill.
The first group of items the subject of objection are numbered 5, 7, 12 and 13 in the bill. Each item expresses a claim under item 24 of the scale for the pre-trial conference and each claim was disallowed.
The grounds of objection are expressed as follows:
"(a)The Taxing Officer erred in principle in finding that no allowance at all should be made in respect of these pre-trial conferences, all of which were listed for hearing but adjourned.
(b)The item should have been assessed by:
(i)identifying what services were reasonable in the same manner as items 1-4, 6 and 8 were considered then allowed;
(ii)objectively assessing a reasonable allowance for such services by applying the rule, the relevant Determination (Scale) and the underlying principles thereof;
(iii)measuring the amounts actually claimed in the bill for the services against the objective assessment in order to determine whether or not the amounts claimed were reasonable;
(iv)in which case the sums allowed would have been either the amounts claimed or a reasonable lesser amount."
I have already recorded the terms of item 24 of the scale. Ground (a) describes the relevant error as being a failure to make any allowance for the conference, which was listed on the relevant dates but adjourned. The solicitor fails to assert that any services at all were provided to the client for which for recovery of a fee is available under that item. Indeed there is nothing in ground (a) to suggest that the conference (which had previously been convened) was in any sense re-convened on any of the relevant dates.
It may be suggested that somehow it is implicit that the error asserted lies in the disallowance of each claim for adjournment of the conference. If that is so, it is significant for the purposes of each of r 53 and r 54 that it is no more than implicit.
In that event it is significant that unlike most other items in the scale, the extent of recovery under item 24 is expressed to be determined by time spent in the delivery of relevant services. Prior to the 1996 version of the scale recovery was available for services provided prior to the conference. That is not now expressed to be the case. It follows that where the Taxing Officer is satisfied that a conference was adjourned without being convened it is appropriate to disallow the claim. To allow for recovery under item 24 for the process of adjournment simply in recognition of the fact that time was spent by the practitioner in obtaining the adjournment would in my opinion constitute an error in principle.
Differently put it is conceivable that the claim may have met with success. It is for the solicitor to formulate the bill and it is difficult to justify amendment in the context of difficulties being presented at taxation. The client is entitled to some commitment from the solicitor in the form of a bill drawn in accordance with r 42. To allow for such amendment would depend in part upon an assessment that it is patent that recovery ought be permitted. There was no such application so it is not necessary at this point that I be more specific. Suffice to say that there are probably myriad reasons for any proceeding to be adjourned. Particular considerations may dictate that costs associated with the adjournments are not recoverable from the client.
Similar criticism may be levelled at ground (b). In the absence of the identification of services provided to the client for which allowance is had under item 24 the solicitor has travelled no distance at all down the path of establishing a jurisdictional basis to conduct any review. For what it is worth it is my appreciation of ground (b) that the solicitor appears to have overlooked the fact that the reason quantum was not assessed was because each relevant item was disallowed.
In my opinion in the absence of any support for the proposition that recovery is properly available under item 24 for an adjournment in circumstances where on the day the conference was not convened, the applicant has failed to establish either ground as a basis for a review.
It is appropriate that I record my recollections of the process of taxation of the particular items as the terms of objection fail to engage with a fundamental issue which had a bearing on the relevant determinations.
It is my recollection of the taxation of the plaintiff's bill that a significant number of claims relating to the pre-trial conference were disallowed on the basis that at the relevant times the issue of the plaintiff's capacity was being considered and resolved. I recall that it was the defendant's submission in relation to a number of such claims that until that issue was resolved there could be no progress made in the conference. Considering the prospect that the plaintiff was not competent there would not have been a sufficiently certain basis to found the solicitor and client relationship within which the services for which recovery was available under item 24 could have been provided.
It is my recollection of the taxation of that bill that either the defendant or I (or possibly both) had speculated that at some point, possibly when the issue emerged, that it would have been appropriate to disengage from the process until it was resolved rather than to keep on adjourning to a specific future date in either the hope or expectation that resolution may then have been achieved.
There are items in the plaintiff's bill that were disallowed that correspond with those the subject of objection. I suspect that it was the case that in each taxation they fell for consideration as occasions when on the day the solicitors attended at the Court to obtain an adjournment as it had transpired that the issue remained unresolved.
Apart from those observations, in relation to items 12 and 13 the only thing of which I am certain is that had I been satisfied that services had been provided by the solicitor to the client for which, under item 24, recovery was available, that finding could not be reconciled with the determination made.
As to item 7 an additional consideration is that I recorded on the bill that effectively there was no pre-trial conference and further that the client did not attend. The note made on the plaintiff's bill for the related claim was that there was no order for costs and the parties did not appear before a Registrar.
The Registrars' Secretary recorded on the 'entry for trial' document:
"Goldstein (P) Allan (D) adjourn to 27/5/99 at 10.00am."
I accept that Goldstein was a certificated practitioner. I know nothing of the circumstances whereby the plaintiff failed to attend.
The conference was listed during the time that the issue of the plaintiff's capacity remained unresolved. That being so, in lieu of appearing the plaintiff's solicitor could have written to the Court to explain the impediment constituted by the issue of capacity and advise the Court that until it was resolved there was nothing that could be achieved at the conference. I accept if such an approach had been taken there may have been some costs consequence but I can say with some confidence that it would not have drawn an allowance under item 24 of the scale as was claimed. Any alternative or amended claim would have been considered on its merits.
As to item 5 the only additional consideration is that on the bill I recorded the word "Shortall". There is a consistent note made by the Registrars' Secretary on the 'entry for trial' document as follows:
"Ms Shortall (P) Allan (D) adjourned by consent 29/10/98 at 10.30am."
It is my recollection that on the taxation of the plaintiff's bill that I was satisfied that the plaintiff's solicitor's secretary had attended at the conference. I believe that I am correct in stating that the defendant contended that prior to her attendance it had been agreed that the conference would be adjourned. I am a little less certain that the plaintiff conceded that was the case. Be that as it may, the claim was for $270. I have recorded on the bill the times "9.57 – 10.00", presumably I did so prior to the plaintiff conceding the claim. By item 5 the solicitor maintained the same claim against the client.
The pre-trial conference is a step in the process of litigation and carries with it a significant professional responsibility. In my opinion a practitioner could not engage an unqualified person to the task of providing services to his client for which there could be any recovery under item 24 of the scale.
In considering that claim conceivably consideration was given to the prospect of recovery for the solicitor instructing his secretary to attend to obtain an adjournment of the pre-trial conference and for the subsequent attendance to that task.
The fact that the Registrars' Secretary recorded that Shortall appeared for the plaintiff did not recognise any authority or capacity to represent the plaintiff. Arguably Shortall was no more than an observer who would report to her employer in the event of there being any difficulty, alternatively someone who could confirm that no one would appear for the plaintiff. At the point of performing whatever task was set, she was not in any sense under the supervision of the solicitor.
Even if I had otherwise been persuaded and that by requiring his secretary to obtain an adjournment the solicitor was providing a service to the client, there is no scope under item 24 to allow for recovery.
The next items objected to are numbered 9, 10 and 11 in the bill.
The grounds of objection are expressed as follows:
"(a)The Taxing Officer erred in principle in making no allowance for the pre-trial conference attended by the plaintiff's solicitor on 21 July 1999, 2 November 1999 and 28 January 2000 thereby making no allowance for the negotiation between the parties' solicitors at the pre-trial conference in question, the discussion of issues with the plaintiff and appearances before the Registrar as part of the pre-trial conference procedure.
(b)The items should have been assessed by:" (and there follows the same recitation as is canvassed in relation to the last group of items).
It is evident from the terms of objection that the solicitor draws a distinction between this group of claims for the pre-trial conference and the last. At least in relation to these listings it would appear that the solicitor asserts that identified services were rendered to the plaintiff.
In relation to item 9 at the taxation I made no note as to any service for which the solicitor sought recovery. The corresponding claim in the plaintiff's bill was made at item 14. I have recorded at that item "no costs order, didn't go to Registrar outstanding next friend issue." There is a record of the attendance on the 'entry of trial' document by the Registrars' Secretary as follows:
"Goldstein (P) Allan (D) adjourn to November at 9.15."
In relation to items 10 and 11 there is no note alongside the relevant claims in the subject bill. That is also the case with each of the corresponding claims in the plaintiff's bill. The only record on the 'entry of trial' document by the Registrars' Secretary is as follows:
"Goldstein (P) Ms McAuliffe (D) Adj 28/1/00" and "Marshall-Goldstein- P Allan-D PTC Adj to 10 March 2000 at 9.30 respectively."
I am satisfied that each note was made in circumstances where the parties were agreeable to the adjournment in circumstances where the conference could not proceed. I am not satisfied that the solicitor did attend before a registrar on any of the relevant dates.
Referring to the terms of objection, although there may have been discussions with the defendant they could not have been what the solicitor would characterise as negotiations. That judgment may be considered to be a little harsh as there may have been a real prospect that ultimately the resolution of the issue of capacity would have been that the plaintiff was competent. In that event it is conceivable that the solicitor could have portrayed those discussions in a different light such that they may have been constituted as negotiations at least in lieu of negotiations which otherwise may have occurred at a later date.
It is also conceivable that at the taxation for any number of reasons the defendant might not have raised the impact of the issue of the plaintiff's competence on the progress of the conference. In my opinion once the issue had been placed before me I could not ignore it. The fact is that the plaintiff was not competent. The solicitor's claim raised for consideration the fundamental issue of the ability of the solicitor to represent the plaintiff. At the relevant time there was no relationship within which the solicitor could have provided relevant services to the plaintiff. The same analysis applies to the contention that discussions were had with the plaintiff.

Had I otherwise determined the claims I would have erred in principle.
I note that in the bill at item 43 the solicitor also made a claim related to item 11 for counsel's fee for the conference to the extent of $250. That claim was disallowed for the same reason. No issue is now taken to that disallowance although I accept that may have been an oversight.
The next group of items the subject of objection are 13 (part), 14, 15, 16 17 (part), 18 19 and 20. By each claim the solicitor seeks to recover for GST.
The grounds of objection are expressed as follows:
"(a)the Taxing Officer erred in principle in finding that no amount whatsoever was allowable for goods and services tax pursuant to the GST determination in instances where amounts claimed were already the maximum pursuant to the scale. The Taxing Officer thereby did not permit the allowance of any amount in excess of the pre-GST scale maximum, instead regarding the GST determination as only permitting an allowance for GST in circumstances where the total amount claimed (including GST) was no more than the pre-GST determination maximum.
(b)The items should have been assessed by the GST determination as authorising an additional allowance for GST over and above the pre-GST determination maximum."
Item 13 was claimed in two parts, the first, which I have already considered under the first group of items the subject of objection, was for a listing of the pre-trial conference, the second for the impact of GST on the first.
As the first part was disallowed, whatever justification there may have been for the second, it was bound to suffer the same fate. The grounds of objection do not engage with the reason for the disallowance. I suspect that some mistake was made by the solicitor in constituting the item within the group the subject of the objection.
Item 14 is expressed in the solicitor's bill to be a claim for GST on item 20 in the plaintiff's bill. The only sense that I can make of the grounds of objection is that either the claim made by the plaintiff or the determination made in relation to the claim was at the maximum of the scale. The solicitor is wrong on both counts. The claim was made at $540 and determined at $350, according to the scale the maximum was $1,350. I suspect that the solicitor has made a mistake in nominating the item as being an illustration of the error asserted in each ground.
I might take this opportunity to clarify the determination made in relation to item 20 in the plaintiff's bill. It was expressed as being comprised of two parts, one for the provision of the identified service and one for GST.
In O 66 there is a distinction drawn between items (whether in a bill or the scale) and fees. The term "item" describes services comprehended by a particular process and "fees", the extent of the range expressed for an item in the scale or the quantum of a claim under such an item in a bill. An example of an item is provided by the first part of item 20, "interrogatories". An illustration of a part item may be found in the need to take instructions in the context of delivery of the interrogatories. In any particular case such a part may be isolated, considered and disallowed regardless of the fate of the claim for the balance of relevant services. By way of contrast the tax payable on the cost of the provision of a service is not a part of that service. Patently it is no more than an additional consideration to be taken into account in the context of exercising discretion as to the quantum of the fee to be recovered for the provision of services the subject of the item.
In the process of taxing item 20 consideration was given to the item "interrogatories" to the extent of ascertaining that there was no dispute. It was allowed. The claim for GST was contested. As there was no basis to allow that claim it was disallowed. At that point the fee claimed for that part simply fell away.
In assessing the fee for the item allowed consideration had to be given to the impact of GST. In my opinion it would have been wrong in principle to ignore the impost of the tax on the fee payable for the service. So to do would be contrivance founded on the format of the bill and a represent a failure to accord the benefit provided by the indemnity.
At no time during the course of the contest as to the GST claim and the making those determinations was there any suggestion that the plaintiff may have wished to amend the fee claimed for interrogatories to compensate for the effect of the disallowance. I suspect that if the plaintiff had sought to do so that regardless of the defendant's attitude it would have been difficult to justify refusal. At the very least the risk confronted by the defendant would not have changed and the plaintiff's intention would have been transparent.
Having said all that none of it engages with the terms of the objection.
It is worthy of note that for the solicitor to recover for the impact of GST under the item the subject of present consideration would effectively allow for double recovery of GST by the service provider and would be contrary to even my scant understanding of the legislation by which the tax was introduced. Such a result could not be justified and would amount to an error in principle.
Item 15 of the solicitor's bill similarly relates to item 21 of the plaintiff's bill. By that item the plaintiff claimed for a pre-trial conference which was expressed to have endured for 1.5 hours and for which the fee sought to be recovered was $405. There was a related claim for GST of $40.50. The claim for the conference was allowed. The GST claim was disallowed and the fee for that claim fell away. The quantum of the claim allowed was determined at the fee claimed. If as a consequence of the disallowance the plaintiff had sought to take the path of amendment, to allow for the amendment could not have assisted him as the fee claimed was already pitched at the maximum of the scale.
Thereby conceivably the determination engages with the grounds of objection. The problem for the plaintiff is that it is not expressed to be the subject of objection. Worse that that, it is in another bill which ultimately was agreed.
As to the claim the subject of objection, it is a claim for GST for which I have already recorded there is no provision in the scale. It was not presented as a disbursement. Accordingly the process of taxation simply could not admit recovery. The terms of objection do not bear upon the determination.
Turning to the grounds of objection, although their terms would suggest that I might have awarded more than the maximum I have some fundamental difficulty with that proposition. Ultimately I am accountable for the manner in which I exercise discretion. A maximum is a maximum.
The solicitor contends that it was determined that there was no recovery for GST where quantum determinations were made at the maximum under the scale. I would have no difficulty with the proposition that there could be no greater recovery under the scale than the maximum would allow. I do not accept that that result is founded upon a determination that at or implicitly near the maximum the impact the GST becomes irrelevant. No such determination was made. I have no difficulty with the prospect that it may be the solicitor’s perception either that there has been no recovery for GST or that at or near the maximum it is an irrelevant consideration.
I do have some difficulty with what is implicit in the first ground; that is in taxing the plaintiff's bill absent GST considerations the services warranted a determination at the maximum. Firstly it is fairly artificial to seek to disengage one relevant consideration from others which together have had an impact on the determination. Secondly it is not safe to assume that otherwise the case would have warranted the maximum. If it was not intended that the implication be drawn then there is nothing more in that ground than is set out in the second.
As to that ground, the GST determination which was expressed to come into effect on 15 September 2000 is recorded as follows:
"(1)The Committee reviewed the information referred to in clause 4 of the Legal Practitioners (Effect On Costs Of a New Tax System (Goods and Services Tax)) Report 2000 and determined that where any of the determinations referred to in the Table to clause 3 provides for a maximum remuneration, that maximum shall be read and construed to apply unless an excess is justifiable under sub-clause (2).
(2)If the remuneration which a practitioner may charge is limited by any of the determinations referred to in the Table in clause 3, then the practitioner may add on the amount which is so limited no more than necessary to offset the consequences of the New Tax System changes (and no other changes). In determining an amount that may be added on regard shall be had to the guidelines referred to in the New Tax System Price Exploitation Code."
It is implicit that the solicitor would contend for the result where the Committee had either increased the fees recoverable under the scale or somehow provided taxing officers with jurisdiction to exceed the maxima expressed in the scale. There is no support in the Committee's determination for either result. The Committee has done no more than condone practitioners charging above scale maxima. I could waste a lot of time and effort in analysing how it was that the Committee considered it had any jurisdiction to deal with how practitioners may choose to express their charges. It is fair to say that in my view it had no such jurisdiction. Even if I am wrong on that point, by that determination it did not increase the scale. The rules provide that the discretion of the taxing officer is constrained by the scale and not by any other pronouncement of the Committee.
All I can say on the subject of the impact of GST on cost recovery is that it has the effect of elevating what were previously otherwise undeserving claims into claims at a higher position in the range and for claims otherwise deserving of the recognition that they ought to be recovered at the top of the range, an additional reason for coming to that conclusion. That impact is not significantly different from the impact had on determinations made under a former scale which contained what could readily be portrayed as patently inadequate maxima for particular items. The result was compression at or near the maxima. Eventually the authority setting the fees recognised that fact and increased those maxima. The Committee has now followed that same path in its ongoing accommodation of the impact of GST.
The same analysis applies to the determination made in relation to item 16, which relates to item 23 in the plaintiff's bill, although in that instance, the quantum of item 23 was agreed. (I have some conceptual difficulty with the proposition that the plaintiff represented by the solicitor could on the one hand agree the fee with the defendant and later claim for a component of the same fee for the same services from his client.) It also applies to the determinations made in relation to items 18 and 19. The corresponding items in the plaintiff’s bill being 25 and 26.
As to item 17 the corresponding item in the plaintiff's bill was 14. There is no significant difference in the analysis, simply that the plaintiff did not recover to the extent of the maximum for the item in the scale and that in the solicitors bill, in effect the maximum was achieved as I was satisfied that services were properly provided by the solicitor to a greater extent than were properly recoverable by the plaintiff.
As to item 20, the related item was 27, a listing conference claimed at $300. Under item 24 of the scale under which the claim is expressed or item 14(g) which is arguably more appropriate, the maximum hourly rate is $270. In taxing that item I recorded "9.44 –10.09". I do not know whether that time was agreed or whether it founded my determination of recovery at $150. If it did, whichever item applied, quantum is expressed to be time rated and it appears to me on my current calculations that I erred to the extent of some $37.50 against the defendant. In that event recovery was effected by the plaintiff significantly above the maximum which presumably would accommodate the submission implicit in the objection. It would be difficult to see any justification whatsoever to maintain the objection.
The next group of items the subject of objection is constituted by items 22 to 30 inclusive. The corresponding items in the party and party bill are 29 to 33 inclusive and 35. Each of those determination was made on the basis of GST was payable on the cost of the services provided.
The terms of objection more or less repeat the objection expressed for the last group of items and continue:
"(c)The Taxing Officer further erred in principle on not applying the terms of the costs agreement between the practitioner and the next friend which was operative from 18 December 2000. The items should have been assessed in accordance with the costs agreement between the practitioner and the next friend which made express provision for GST".
I do not know what provision was made in the agreement for recovery of costs or indeed the tax. If in the objection the solicitor had articulated the effect of the provision and thereby exposed the alleged error then the objection may have been sufficient to found jurisdiction to review. In default there is no jurisdiction. Had the practitioner chosen to attend the taxation or somehow otherwise inform me of the provision then it is conceivable that such a strict analysis would not have been warranted. That said, none the less it is the proper analysis.
In any event, the terms of ground (c) are meaningless in the context where legislation provides for the impact of the tax regardless of the terms of any agreement between the parties.
It would appear to me that in the event that the solicitor is correct at ground (c), according to r 11(3) the other grounds would have no bearing one way or another.
To focus on ground (c), and accepting the contention that the agreement allowed for recovery of GST, I do not see that the relevant disallowances determine that GST was not recovered in relation to the services provided to the plaintiff. As I have already recorded, the fact that GST was payable on relevant services was a feature of the assessment of the relevant fee party and party. I accept that under an agreement conceivably they solicitor could recover a higher fee than that recovered party and party by the plaintiff and that prospect would bring with it a component for the GST on such increase. However the extent of any additional recovery could not be solely constituted by GST. That result would allow for double recovery of GST.
Otherwise in relation to item 27, "getting up case for trial from 1/7/00" it is not apparent to which particular services that the claim relates. Conceivably some relevant services were provided prior to the agreement being entered into. There is no part of the objection which would suggest any error in failing to give effect to any contractual provision for retrospectivity. There is no indication of the date of the provision of services at items 28 and 29 so I do not know whether the agreement would have any impact. To that extent the objection is found to be wanting in drawing jurisdiction.
The next item the subject of review is item 32 which is described as "solicitor/client costs pursuant to O 66, r 13(3) (item 4)." I do not understand to what "item 4" refers. The item is expressed in a schedule in 304 parts. Each part of the claim relates to a discrete service for which recovery was sought under r 24. Each service was identified by the date and the form of its provision. The taxation of item 32 proceeded on an evaluation of each item in the schedule.
The solicitor now seeks to address objections to the determinations made in relation to some of those items without specifying to which of them the objections relate. In those instances the grounds of objection are expressed in broad terms such as, communications with the Legal Aid Commission regarding funding for some disbursements, adjournments of pre-trial conferences occasioned by difficulties in obtaining a next friend, briefing counsel and communicating with counsel in relation to pre-trial conferences and so on.
For the purpose of r 53(1) each such item in the schedule is properly considered to be a part of the item for which a claim was made in the bill. There is no way of identifying those parts of the schedule to which those broadly expressed objections relate. To that extent the solicitor has failed to file a sufficient objection.
The only such broadly expressed objection that is capable of being addressed is the failure to make allowance for the effect of the GST. There was no such claim expressed in relation to this item or for each of its parts either in the bill or in the schedule. The schedule does refer to GST by making a claim on a global basis after the part claims expressed have been added. In determining the amount recoverable for each of the parts allowed I took into account the impact of GST. At the conclusion of the exercise of taxing the schedule I deducted from the total claimed inclusive of the claim for GST the effect of disallowance and reduction.
I cannot address any particular determination in the absence of the identification of that determination. The solicitor has failed to discharge the onus of establishing any error.
The objection at 5.4(a)(viii) would appear to be expressed in a manner sufficient to identify the relevant item in the schedule. It is expressed by reference to communications with counsel in relation to items 39, 40, 44, 45, 46 and 49 of the bill. So far as I can make out the claims in the schedule to which the objection relates, for the purpose of the reference to item 39 may be 55 and/or 59; for item 40, 82 and/or 85; for item 44, 137 and/ or 9; for item 45, none; for item 46, none and for item 49, 90 and/or 193 and/or 195 and/or 196 and/or 200.
In my opinion fairly considered the objection fails the test of r 53 in that it fails to identify the items disallowed to which the terms of objection relates. There are further considerations that arise on an analysis of those prospective connections.
The first is that of the items identified in the objection as related claims in the bill, I recorded at the taxation that 45 was disallowed as a result of the solicitor's concession. As I have just recorded, I cannot identify the related service the disallowance of which is the subject of objection. I suspect that if I could make any more-useful observation, before I could do so I would need to know why it was that the concession was made.
The second is that of the items in the schedule that I hopefully have successfully identified, 200 was disallowed for the same reason.
The third is that it is often the case in taxation of solicitor's bills that claims are disallowed on the basis that there is nothing to substantiate, the provision of any service. It is conceivable that some of the related items had failed for that reason. To put it any higher than that in relation to any related claim would be pure speculation on my behalf.
Finally although I accept that in relation to some identified services it would not be the case as different counsel was used, there is the prospect that counsel would have been aware of the next listing of the conference prior to leaving the last, so although there would have been communication it may have occurred in the context of the prior conference.
The objection which may allow for identification of particular claims is as follows:
5.4(a)(vii) refers to the failure to make any allowance whatsoever for the costs associated with the pre-trial conference on 2 November 1999.

The relevant part of the item would appear to be 99 of the schedule.
The objection is as follows:
"The Taxing Officer erred in principle by not making any allowance whatsoever for the costs of preparation for the pre-trial conference on 2 November 1999 notwithstanding the finding that the pre-trial conference included negotiations with the defendant in regard to issues of liability and quantum and discussions regarding the appointment of a next friend."
The terms of the objection imply that particular services were provided to the client. I have considerable doubts that such was the case. The claim made for the conference of 22 November 1999 was disallowed both as claimed by the plaintiff at item 15 of his bill and by the solicitor at item 10. If I had found as the solicitor contends then it would have been illogical to disallow each of those and item 99 of the schedule. Had I done so I certainly would have erred.
As I have already recorded in relation to the objection taken to the disallowance of item 10, the reason for the disallowance was that for the purposes of a claim for the conference, while the capacity of the plaintiff remained unresolved no services were rendered, as there was no recipient of those services. It follows that there could be no recovery for preparation for the conference.
5.4(a)(ix) identifies item 231, which is expressed as "attendance at accident scene and testing theories". That attendance was of a paralegal. At the taxation I made no note of the reasons for the disallowance. I have no doubt that simply on a consideration of those facts that I would have considered that there was no proper basis for allowance. Had I made allowance I would have erred. There is no expression in the relevant part of the notice of objection of any error in principle.
5.4(a)(x) identifies a similar claim for services provided by a paralegal at item 201 being an attendance upon the incapable person for 1 hour possibly in the context of a meeting between the incapable person and the next friend and according to the terms of the objection, to inform the next friend regarding the matter and to discuss settlement prospects. In my opinion it is conceivable that there could have been something useful communicated to the next friend by the paralegal. I do not know what was actually communicated. The communication of "settlement prospects" in the hands of and expressed by a paralegal is too nebulous to allow for a determination in favour of the solicitor. Similarly so the provision of "information regarding the matter". Before embarking upon any more serious analysis it would be appropriate for the solicitor to properly formulate an objection by reference to the context in which the advice was given and the nature of their advice.
I would suggest that had the solicitor been engaged in the process there might have been no difficulty with recovery of a fee. I might also suggest that in engaging a paralegal in that task the solicitor was aware that he was providing the sort of service which may properly be viewed as being in order for maintaining good relationships but not one for which he could realistically expect to recover a fee. In my opinion I would have erred in making allowance. The objection fails to articulate any error in principle.
5.4(a)(xi) refers to the costs of an incidental to the conference of 11 April 2001. It is alleged that an error of principle was made in not making any allowance notwithstanding the finding that both a senior practitioner and a paralegal attended at the conference. The conference is probably that recorded at item 236 of the schedule, and was with counsel. None of the surrounding claims suggest that any senior practitioner other than counsel attended that conference. Recovery appears to be sought for an unqualified person attending a conference with counsel. According to the terms of the objection the subject of the conference was settlement.
As a matter of interest there seems to be no claim in either bill to recover counsel's fee for that conference. If indeed it was a conference for the purpose of settlement it is surprising to me that if counsel rendered an account, recovery was not sought in the solicitor's bill. It is also of interest that counsel rendered an account on that same day. It is at item 50 of that bill and is for advice on evidence.
There is nothing to suggest that it is the case that a determination was made as the objection recites. In any event I would say that I have considerable difficulty with the proposition implicit in the objection that any service for which recovery is properly had is available in circumstances where an unqualified person has what may be constituted as a conference with counsel concerning the settlement of the significant claim of an incapable person. There is no allegation of any error in principle in the objection
5.4(a)(xiii) relates to the costs of the instruction of alternative counsel on an urgent basis due to the unavailability of counsel.
On scanning the schedule I recall that was the context in which items at about 239 of the schedule were considered. Evidently counsel was briefed on the defendant's application to adduce expert evidence. That service appears to have been claimed at item 30 of the plaintiff's bill although I cannot reconcile the different dates by which the claims are expressed. Recovery was made on the plaintiff’s bill for $180. In the schedule, what would appear to have been relevant claims were made at items 239, 243 and 244 each of which was disallowed, conceivably as recovery had been made in the plaintiff's bill for his costs on that application and there was no basis for any additional claim. I do not now know what issues were raised by the parties in the taxation of item 30. According to my record of the taxation of the solicitor's bill, the solicitor conceded what would appear to have been a related claim at 242. Otherwise a claim made at item 240 was allowed in relation to briefing counsel, conceivably on the basis that it was necessary to engage other counsel or that there was some urgency or both.
The solicitor is not accurate when he contends that there was no recovery for the provision of relevant services by the solicitor to the client. First, there was recovery under the plaintiff's bill for the services associated with the representation of the plaintiff's interests in relation to the defendant's application. Second, any residual consideration of those services and the circumstances of their provision was available on the presentation and determination of the plaintiff’s claim for getting up case for trial. As to each it was appropriate to consider the impact of r 11(4). Third, there was recovery of a further amount on the solicitor's bill at item 240.
The next ground of objection to item 32, contends for taxation proceeding as follows:-
"(i)identifying what services were reasonable with due regard to the nature and complexity of the issues in dispute;
(ii)objectively assessing a reasonable allowance for such services by applying the rules, the Determination and the underlying principles thereof in respect of services rendered prior to 18 December 2000 and Costs Agreement thereafter.
(iii)measuring the amount claimed in the bill for the services against the objective assessment in order to determine whether or not the amount claimed was reasonable;
(iv)in which case the sum allowed would have been significantly more."
Thereby implicitly the solicitor seeks to contend for is an error of principle in determining the quantum of the fee for that item. It is significant that no error is articulated.
In my opinion under r 53 there is no jurisdiction for the Taxing Officer to review any quantum determination independent of the disallowance of any item or part of an item. The analysis that bears upon that opinion is evident upon a plain reading of the Rule. Be that as it may I do accept that Judges have found for jurisdiction under r 55 to review determinations purely as to quantum. It is my appreciation that the state of the authority is to the effect that a party contending for an error of principle in a purely quantum determination would need to establish that no taxing officer acting reasonably could possibly have arrived at a particular conclusion. In my opinion it is significant that the solicitor does not so contend.
In any event, the objection implicitly made does not accord with the manner in which the taxation was conducted. As the solicitor anticipated in drawing the schedule, taxation of the components of the claim would occur on an item-by-item basis for each discrete service for which a claim was made. Accordingly there was no comprehensive determination made in relation to the quantum claimed under the item. The only quantum determination made in relation to the item was simply by bringing to a total the quantum determinations for the parts.
Accordingly I could understand that the solicitor may take such an objection to the quantum determination in relation to a discrete item or groups of items in the schedule but not for the whole of the item.
If it was intended by the solicitor that the second ground of objection relates to the discrete parts the subject of the first, he has failed to so specify. Frankly I doubt that prospect as each expression of error in relation to the first ground relates to the disallowance of part of the item. The effect of the disallowance being that quantum was not considered.
The next determination the subject of review relates to item 33 being the claim for drawing the bill of costs, copies and service. The determination in issue appears to be in relation to the assessment of quantum. Perhaps I should record that no part of the services expressed to constitute the item in the bill was disallowed.
The grounds of objection are expressed as follows:
"The Taxing Officer erred in principle in reducing this amount claimed on the basis of the disallowance of may items in the bill in circumstances where;-
(i)There was a reasonable expectation by the plaintiff's solicitor that the items for at least a large portion of the items would be allowed;
(ii)Many of the items wee disallowed as a consequence of errors by the Taxing Officer as set out in this notice of objection.
(iii)The amount claimed would have been reasonable even if none of the disallowed items had be included in the bill;
(iv)Due regard to the Costs Agreement between the Practitioner and the Next Friend would have resulted in the item being allowed in full."
The starting point is to record that in the context of the taxation the interests of the solicitor and the next friend are adverse. There is nothing unusual or inappropriate in the Taxing Officer considering that had a bill been drawn more in line with the result of taxation rather than the taxing party's ambitious claims, the process of drawing the bill would have been significantly less onerous. That is no more than a proper consideration in an appropriate case. It is a matter of evaluating whether in a case where the preponderance of items claimed was disallowed it is appropriate to promote that consideration over any other. Of course it is only by that mechanism that the result countenanced above could be reached.
On my evaluation of the result of taxation it was appropriate to promote that consideration. An illustration of the solicitor's failure in the process of taxation can be readily discerned by turning to any page of the first 17 pages of the 22 page schedule. On each of those pages at least 50 per cent of the items was disallowed. On most pages the proportion is considerably higher. For what it is worth I will comment that the significant consideration after that point is not that the solicitor was any more discerning but rather that most of the items were bound to be solicitor/client in nature as they related to the process of settlement and the formal conclusion of that process.
Turning to the grounds of objection, as to the first, there may have been such an expectation on the part of the solicitor and it may be that he would describe that expectation as reasonable. In my opinion, however, it was unrealistic. As to the second, the solicitor is undoubtedly correct. If as a consequence of the review the solicitor establishes multiple errors then I would have no difficulties with the quantum claimed.
As to the third ground, I have counted 16 items in the bill that were not disallowed and along with the proportion of the schedule to which I previously made reference, it is matter of opinion as to whether the amount determined was so unreasonable as to constitute an error of principle.
As to the last ground, I accept that my memory may be found to be wanting, but as I recall the costs agreement relates to the services provided by the solicitor to the next friend. It would not extend to what are essentially services provided solely for the benefit of the plaintiff's solicitor. If that is the case that it is significant that the objection fails to put the case that the scope of the agreement extends to the process of taxation of the solicitor/client costs.
The next determination the subject of review relates to the assessment of quantum for the claim for item 34, preparing for and attending the taxation.
The grounds of objection are the same as for the last item save that the third has been substituted as follows:-
"No provision was made for the increase in time spent in preparation and at taxation caused by the administrative arrangements for listing the taxation absence of the court file on one occasion and the necessity to respond to the Taxing Officer's requests for information and oral submission."
As to that ground the plaintiff's solicitor or at least, the solicitor representing the plaintiff's solicitor would have been aware that the only manner in which taxation could proceed was by a review of each claim as provided by r 24.
As to the reference to administrative arrangements for listing the taxation, it would appear to me that the efficient method would have been to write to the Court and seek a listing over an extended period on the first occasion. It is in part for that reason that the Court often lists solicitor/client bills for directions prior to embarking upon the task of taxation. I note that on 17 December 2001, on what may have been such a listing, that I made an assessment that at least two full days would be required to complete the task. As to the balance of that ground of objection, I am not sure what the solicitor complains of where reference is made to the Taxing Officer's request for information and oral submissions. Taxation always proceeds on the basis of an exchange of information from the taxing party to the Taxing Officer and it is usually in the interests of the taxing party to make submissions in order to best put the case. I cannot take that matter any further.
It may have been the case that on one occasion the file was missing. Fortunately such events are relatively rare. The significant considerations are that any costs associated with that event are probably of relatively minor moment. In making that proposition I imagine that it was the case that some relatively short period was wasted either until the file was located or until it was recognised as being unavailable. And in any event, there is no proper basis to determine that the client should pay for any time thereby wasted.
As to the balance of the grounds in my opinion the analysis that I conducted in relation to those grounds as they arose in relation to the last item apply equally to this item.
The next determination the subject of objection relates to the taxation of item 39, a disbursement for counsel's attendance at pre-trial conference on 10 December 1998 and for advice and interrogatories. The relevant determination being the disallowance for that part that related to advice and interrogatories.
The grounds for objection appear to be expressed along the lines of how it is that the plaintiff's solicitor would contend that the taxation should have proceeded. The terms are more or less as I have quoted in the second ground of objection to the determination at item 32.
Frankly I have failed to record the disallowance of those parts of the item claimed, however, if they were so disallowed as the solicitor contends I can deal with the objection fairly simply. I accept that counsel may have provided some advice at the relevant time. I am at some disadvantage because I do not understand what the plaintiff refers to by way of reference to interrogatories either in the bill or the objection. It is evident from the file that the plaintiff delivered interrogatories to the defendant in July 2000. According to the item, the account was rendered on 11 December 1998.
If one simply reflects upon the relationships between the plaintiff's solicitor and counsel and that constituted between the plaintiff and the defendant by the order for costs, and takes into account r 11(3) and r (4), it is not a matter of considering the cost of services reasonably provided to the client but rather the scope for the recovery of costs by the solicitor over and above those assessed as being payable party and party.
There is nothing, which would suggest that recovery was not effected either for the advice or for the interrogatories. The latter appeared as a claim at item 20 in the plaintiff's bill. Presumably the former may have had some impact at that point or perhaps in relation to getting up the case for trial. Before I am able to make any greater commitment it would be appropriate for the solicitor to make a proper objection which articulated the error in principle contended for, and the nature of the advice, the context in which it was provided and the basis upon which further allowance may be made under r 11(3).
The next determinations the subject of review relate to items 40 and 46, by which claims are made for counsel attending at pre-trial conference on 21 July 1999 and on 6 October 2000. The grounds are expressed to be the same in relation to the previous item. The plaintiff's solicitor on this occasion adds an objection in the following terms:
"The decision of the Taxing Officer is further objected to on the basis that the Taxing Officer erred in principle in finding that the Scale (even excluding item 13A and the provisions of O 66 r 11) does not provide for more than one practitioner and that an adequate allowance had already been made on the party/party taxation for the service."
I note that by the objection he makes a backhanded reference to the prospect of advancing the case on a different basis under item 13A. I have already canvassed my understanding of the prospect of amendment in the course of taxation. Conceivably there is scope for amendment at the time of review although it is difficult to discern.
In relation to the first item, that is for a conference for which the plaintiff's claim and the solicitor's claim were each disallowed. Those disallowances were effected because it transpired that there was no client to whom any relevant service could have been provided. It would have been illogical to allow for the recovery of counsel's fee for the same conference. I would suggest that in the absence of the prospect of receiving instructions at or about the time of the conference, regardless of the fact that there may have been some discussions there could be no conference for which recovery could be had.
As to the second item, the plaintiff made recovery for a related claim under his bill. It appears that counsel represented the plaintiff at the conference. Although that does not accord with the note made by the Registrars' Secretary I accept that note may be incorrect. In any event r 11(4) provides that the identity of the service provider is irrelevant.

I accept that there is scope for further recovery under r 11(3) but it is for the solicitor to make out a case. The solicitor has not even hinted at that case in the objection. Perhaps it is appropriate to record that in relation to each item the solicitor would have difficulty relying upon that part of the rule which draws upon any agreement. At the time of the first service the plaintiff was found to be incompetent. In any event, the only agreement for which the solicitor contended in the course of the taxation came into effect after the provision of the relevant services.
In the absence of making out such a case it is of no consequence that a party may have been represented by any number of practitioners at a pre-trail conference. In this instance it appears counsel represented the plaintiff and the plaintiff has already recovered the costs of his representation for the second plaintiff item. If the solicitor seeks to effect recovery beyond that point then it is for him to establish the basis for the greater entitlement.
The next determinations the subject of review relate to items 44 and 45 for the opinion of counsel on liability and quantum of 20 June 2000 and of different counsel on 20 February 1997.
The grounds of objection are expressed as follows:
"(a)The Taxing Officer erred in principle in making no allowance for these opinions on the basis that these opinions formed part of the getting up recovered on a party/party basis.
(b)The items should have been assessed by taking into account the unavailability of Mr Marshall at the time, the need to obtain further opinions from counsel at the request of the plaintiff and so as to provide the respective Next Friend as to prospects of success and the more generous nature of a solicitor/client taxation."
Opinion obtained in relation to liability and quantum are simply calls by the solicitor for assistance or analysis in the process of getting up the case for trial. In my opinion, r 11(4) has the effect that recovery both party and party and solicitor/client is determined by the extent to which services are provided. It is of no consequence that counsel provided some of those services.
Subject to the qualifications that the first ground omits the critical word "additional", it is a proposition with which I have no difficulty. It is for the taxing party to establish the basis for additional recovery. The objection at that point is perhaps canvassed in the second ground but insufficiently to make out a basis either for allowance or to establish error. Significantly I have recorded in relation to items 45 that it was conceded.
The next item the subject of objection is item 49 of the bill, being for the recovery of counsel's fees for counsel attending a listing conference on 11 December 2000 (balance). The claim was disallowed. It appears to me that the related item in party and party bill is item 27 the taxation of an aspect of which I have already canvassed. I have recorded on that bill that the listing conference was held between 9.44 am and 10.09 am. That claim was allowed although quantum was reduced such that the plaintiff recovered $150.
The determination made in relation to quantum on that occasion took into account the services properly provided to the plaintiff for the purposes of the conference proceeding. That determination was not the subject of any objection.
The grounds of objection to the determination made on the solicitor's bill are as follows:
"(a)The Taxing Officer erred in principle in not allowing the amount claimed on the basis that no more generous allowance was available for the taxation of solicitor/client costs than was available at taxation on a party/party basis.
(b)The item should have been assessed on the basis that solicitor/client taxation is approached on a more generous basis than a party/party taxation and then assessing what services were reasonable and objectively assessing a reasonable allowance for such services."
As to the first ground, either on the basis of r 11(3) or the operation of the limited indemnity provided by an order for party and party costs there is scope to allow for the prospect that the extent of recovery against the plaintiff may exceed that by the plaintiff against the defendant.
It is evident from what I have already said that the solicitor and I would disagree as to the proper basis upon which taxations of either nature are conducted. There is nothing in the scale and no principle of which I am aware which would suggest that solicitor/client and party/party taxations proceed on any different basis. But for the prospect that I have already alluded to, the quantum determinations for party/party and solicitor/client should be the same. Rule 24 suggests as much but it is clearly provided for in r 11(3).
I would suggest that the scope for recovery on a solicitor and client basis might be considerably greater than would be available on a party and party basis simply because of the prospect that in all likelihood additional services are provided over the life of a retainer, such as the costs associated with settlement. However there is no greater scope for recovery against the client than was available party and party in the absence of there being some justification for additional services being provided which were not properly recoverable from the defendant. It does not appear to me from the grounds of objection expressed by the solicitor that there were any such additional services, which would allow for any greater scope for recovery.
The last item in the subject of objection is item 50 for counsel's advice on evidence. The claim was disallowed.
The grounds of objection are as follows:-
"(a)The Taxing Officer erred in principle in not allowing the amount claimed on the basis that no more generous allowance was available for the taxation of solicitor/client costs and was available at taxation on a party/party basis.
(b)The item should have been assessed on the basis that a solicitor/client taxation is approached on a more generous basis than a party/party taxation and then assessing what services were reasonable and objectively assessing a reasonable allowance for such services."
A useful starting point is to record that in the party and party bill the plaintiff recovered for the costs associated with getting up the case for trial. According to r 11(4) it is of no significance that services related to any aspect of litigation were provided by a solicitor by recourse to counsel.
Work done in relation to preparation for trial particularly in the nature of an advice on evidence is core work associated with getting up the case for trial for which the plaintiff has made recovery against the defendant. The only basis upon which the plaintiff's solicitor could recover an additional amount for the provision of that service is upon the plaintiff's solicitor establishing that he is entitled to do so either on that basis of the provisions of a general agreement or on the basis of an agreement specifically to obtaining the relevant advice. The grounds of objection do not suggest either basis for recovery.
Turning to the grounds of objection, they seem to seek to draw from r 11(3) more than it provides. It does condone solicitor client recovery in excess of party and party costs in the circumstance that I have outlined. Significantly it provides that the fees allowed under any relevant scale shall apply both between party and party and solicitor and client. I am not aware of any more generous scale for the taxation for solicitor and client costs. Surely if the services assessed by the Taxing Officer under a claim are the same solicitor client and party and party and the scale under which a determination is made is the same the result can only be the same.
The solicitor is unsuccessful in relation to each objection.