Fleming and Fleming (Review of Costs)
[2009] FamCA 552
•26 June 2009
FAMILY COURT OF AUSTRALIA
| FLEMING & FLEMING (Review of Costs) | [2009] FamCA 552 |
| FAMILY LAW – COSTS – Assessment of Costs – Review of Registrars Decision – Unavailability of Registrar’s Reasons – Counsel’s preparation for trial – Care and consideration – General care and conduct |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Family Law Rules 2004 |
| Auspine Ltd v Australian Newsprint Mills Ltd (1996) FCA 673 |
| APPLICANT: | Mr Fleming |
| RESPONDENT: | Ms Fleming |
| FILE NUMBER: | BRF | 83 | of | 2005 |
| DATE DELIVERED: | 26 June 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 29 May 2009 |
REPRESENTATION
| APPLICANT: | Appeared on his own behalf |
| SOLICITOR FOR THE RESPONDENT: | James Noble Family Law |
Orders
The parties shall each do all such things, sign all such documents and engage in all such correspondence as is necessary to perform the calculation/s required to ascertain the amount used by the Registrar as the taxed-off amount in respect of Item 476 of the Amended Itemised Bill of Costs in arriving at her assessment dated 17 November, 2008.
The assessment of costs made by Registrar Stevens on 17 November, 2008 be varied by:
(a)reducing the amount payable by the husband to the wife by:
(i)the amount of $13,358.04 plus
(ii)the amount of $1106.25 if, but only if, the amount of $1195 was used by the Registrar in lieu of $2301.25 as the figure to be taxed off in respect of Item 476 of the Amended Itemised Bill of Costs in arriving at her assessment.
(b) deleting the notation thereto; and
(c)adding in lieu the following notation: “The effect of this order is that the wife is to refund to the husband the sum of $30,322.10 plus, if the requirements of paragraph 2(a)(ii) of this order are met, the additional sum of $1106.
IT IS NOTED that publication of this judgment under the pseudonym Fleming and Fleming (Review of Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF 83 of 2005
| MR FLEMING |
Applicant Husband
And
| MS FLEMING |
Respondent Wife
REASONS FOR JUDGMENT
On 12 June 2007 O’Reilly J ordered, relevantly, that “the husband pay to the wife her costs of and incidental to the s 79 property proceedings between the parties on the standard basis to be assessed if not agreed”.
Subsequently, an itemised costs account was prepared on behalf of the wife by a costs consultant. Subsequent to that, an amended itemised costs account was provided by the same costs consultant. That costs account sought by way of party and party costs the sum of $72,463.94.
O’Reilly J had also ordered that “the wife’s costs as so assessed or agreed be paid from the husband’s portion of the net proceeds of the sale of the parties’ properties…as calculated pursuant to paragraph 7(d) of the s 79 property order before any payment to the husband pursuant to paragraph 7(e) of that order”. The solicitors for the wife retained $72,463.94 in their trust account.
The husband invoked the processes provided for by the Family Law Rules 2004 to have that itemised costs account assessed. Some complaint is made in affidavit material about the husband’s compliance with the prerequisites for that process, but, at the hearing before me, which is the husband’s application to review the ultimate assessment made by the Registrar acting as a taxing officer, the solicitor for the wife conceded that the matter was properly before me and took no point with respect to any earlier procedural irregularities (if any).
The application for final orders in the substantive application heard by O’Reilly J was filed prior to 1 July 2008. Party and Party Costs are governed by Schedule 6 to the Family Law Rules 2004.
A preliminary assessment was made by Registrar Stevens on 25 August 2008. The wife indicated that she would accept the preliminary assessment. The husband did not, and sought a full assessment of the itemised bill.
The preliminary hearing of that assessment was held before Registrar Stevens on 29 October 2008.
On 17 November 2008 Registrar Stevens issued a costs assessment pursuant to Clause 6.33 (3) of Schedule 6 of the Family Law Rules 2004. That assessment provided:-
1.That the amount payable by the applicant to the respondent is $55,499.88.
2.That the parties bear their own costs of the assessment hearing which took place on 29 October and 12 November 2008.
A notation to the same assessment provided as follows:-
(a)That the respondent’s costs claim of $72,463.94 was satisfied from funds held in the trust account by the respondent’s lawyers on 29 September 2000, so that the effect of this order is that a refund of $16,964.06 to the husband is required.
It is that assessment that the husband seeks to review in these proceedings.
Process of Review
It is necessary in this case to make reference to the process by which this review came to be heard before me.
Clause 6.33 (4) provides that within 14 days after a costs assessment order is made by a Registrar, a party may ask the Registrar to give reasons for the Registrar’s decision about a disputed item. The husband sought reasons from Registrar Stevens in a letter addressed to Registrar Stevens dated 2 December 2008. That letter sought reasons in respect of seven specified items in the bill of costs.
The husband had also filed, in accordance with the Rules, an application in a case seeking a review of the Registrar’s decision. That application was initially returned before Bell J on 9 March 2009. It appears that, because no response had been received from Registrar Stevens with respect to the husband’s letter of 2 December 2008, his Honour’s order included a request to Registrar Stevens to provide reasons for her decision in respect of the disputed items.
Justice Bell was unaware (as was the husband) that, in the intervening time, Registrar Stevens had resigned her position at the Court and consequently was no longer commissioned as a Registrar.
As a result of that hiatus, the Court wrote to the husband and the solicitors for the wife on 13 March 2009 (Exhibit 1).
In broad terms, that letter suggested a procedure of review take place which would obviate the need for the parties to incur further delay and additional expense by the matter being heard and determined in court.
The letter indicated that the procedure there outlined would only take place if both parties consented. On 24 March 2009 the husband – who represented himself in these proceedings - wrote to the court (Exhibit 4) indicating that he did not agree to the procedure outlined and, as a result, the matter was mentioned before me and subsequently came on for a hearing before me on 29 May 2009.
Relevant Principles
Clause 6.53 (2) provides that a party seeking a review must set out each item in the itemised costs account to which the party objects, together with that party’s reasons for objecting and the decision sought from the court in respect of each objection.
The husband did so in Annexure A to an affidavit filed by him on 23 December 2008. That annexure makes it clear that objection is taken to Items 40 and 41; 318; 440; 476; 550-553; 635 and 651.
Clause 6.55 (2) provides, relevantly, that at the hearing of an application for review:-
(a)the court must not receive any new evidence;
(b)the court may:
(i) exercise all the powers of the Registrar;
(ii) set aside or vary the Registrar’s decision, and;
(iii) return any item to the Registrar for reconsideration, and
(c)a party may raise an issue only if it:-
(i) was identified in an itemised costs account or Notice Disputing Itemised Costs Account;
(ii) concerns the costs of assessing the itemised costs account;
(iii) concerns an alleged error of calculation in, or omission from, the assessment of the itemised costs account; or
(iv) concerns an alleged error of law or fact by the Registrar, and the party has made a request under subclause 6.33(4).
Here, as earlier mentioned, a request was made pursuant to clause 6.33 (4) but, for reasons beyond the control of either party or the court, reasons had not been provided, as required, by the Registrar.
I accordingly proceed to determine the application by reference to what I perceive to be the general underlying principles applicable to the assessment of party and party costs referred to in Schedule 6 of the Rules. In particular, that Schedule, in my view, evidences an intention generally that a review by a judge is confined to errors of law or fact perpetrated by the Registrar acting as a taxing officer.
In conducting this review, I also have regard to the principles outlined by Kitto J in Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 628-629 where his Honour adopts what Jordan CJ had to say in Schweppes Limited v Archer. That passage has been described by the Full Court of this Court in Brott v Abeles (2007) FLC 93-310 as “the seminal passage” and as having “been referred to and applied in many decisions in both Federal and State jurisdictions given with reviews of taxing officers”. That passage is as follows:
“I respectfully adopt the summary of the law on this matter which was made by Jordan C.J., with the concurrence of Harvey C.J. in Eq. and Street J., in Schweppes' Ltd. v. Archer. His Honour said: — “In appeals as to costs, the principles to be applied are these. The Court will always review a decision of a Taxing Officer where it is contended that he has proceeded upon a wrong principle, for the purpose of determining the principle which should be applied; and an error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed. Where no principle is involved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he possesses and is purporting to exercise, the Court is reluctant to interfere. It has undoubted jurisdiction to review the Taxing Officer's decision even where an exercise of discretion only is involved, and will do so freely on a proper case, using its own knowledge of the circumstances: Western Australian Bank v. Royal Insurance Co.; Clark, Tait & Co. v. Federal Commissioner of Taxation at pp. 145–146, but it will in general interfere only where the discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong; and where the question is one of amount only, will do so only in an extreme case” [His Honour then proceeded to consider the specific items objected to and having stated his opinion upon them made an order standing over the application generally.] [footnotes omitted]
In holding that a review from an assessment by a Registrar acting as a taxing officer does not involve a hearing de novo, the Full Court in Brott v Abeles, above, went on to say:
“45.As discussed above we consider the process of assessment by a Registrar is primarily a matter of practice and procedure as an incident of an administrative, as distinct from a judicial function, and not an “appeal” in the strict sense.”
In Locke and Locke (1993) FLC 92-352, Baker J held, at 79,720:-
“[A review] is not in the nature of a rehearing of a taxation procedure. It is not [a trial judge’s] primary function to concern [him or herself] with individual items, but rather to determine matters of principle and significant factual error.”
That statement was adopted by the later Full Court decision in Brott and Abeles earlier referred to.
Here, the applicant’s application adequately provides the particulars of alleged errors. However, in light of the absence of reasons by the Registrar, I have determined to be less rigid than I might otherwise have been in the identification and particularisation of error; I have thus given the self-represented husband the opportunity to fully explore any errors said by him to have been committed by the Registrar.
Errors in Calculation
The husband contends independently of the errors made in respect of the items earlier referred to that there are, in any event, two errors of calculation performed by the Registrar.
The first of those errors is conceded by the solicitor for the wife. In correspondence to the husband (Exhibit 5), Registrar Stevens acknowledges that the husband’s objection in respect of Item 41 was upheld to the extent of a reduction of $1,200.00. However, the Amended Itemised Costs Account filed on 14 December 2007 upon which the Registrar recorded amounts taxed off, indicates only $48.23 being taxed off.
Clearly, then, the wrong amount has been used in the overall calculation and it is accepted that, irrespective of any other matters raised in this review, the amount payable by the applicant to the respondent ought be altered to $54,299.88 and the amount of the “refund” referred to in the notation would alter to $18,164.02.
An additional mistake of similar type is alleged in respect of Item 476. The same notated Amended Itemised Costs Account indicates that $2,301.25 is intended to be taxed off. A letter from Registrar Stevens dated 23 December 2008 to the husband (Exhibit 5) confirms that his objection to that Item had been “accepted to the extent $2,301.25 discounted from counsel’s fees”.
The husband alleges that only $1,195.00 has been taxed off in arriving at the total calculation by the Registrar. Accordingly, the husband contends for a calculation error of $1,106.25 which he asserts should also be deducted from the overall assessment (and consequently added to the refund to him contained in the notation).
The wife’s solicitor, Mr Noble, who appeared for her before me, was unable to assist the court in respect of this issue. He said he simply didn’t know whether what the husband was asserting was correct or not; at the assessment before Registrar Stevens the wife was represented by Hartwells Costs Assessors and he had not performed any calculations himself.
It seems clear on the face of the evidence before me that an error has been made. However, that can only be confirmed upon checking the entire addition with the correct amount and comparing it to the entire addition with the incorrect amount.
As I indicated to the parties, I do not propose to compound the possibility of mathematical error by myself doing the calculation across 651 items of professional costs and expenses. Nor should I have to do that calculation. I make it clear that I find that an amount of $2,301.25 should be taxed off in respect of this item irrespective of whether the husband’s other submissions in respect of this item are upheld or not.
I will leave it to the parties to properly and appropriately calculate the amount based on that finding and will reflect that obligation in the orders to be made by me.
The Errors Alleged By The Husband
Items 40 and 41 of the Bill
These claimed Items are for the solicitors perusing the affidavit of the husband filed as his evidence-in-chief in the s 79 property proceedings (Item 40) together with perusing the exhibits to that affidavit (Item 41). The former is said to comprise 57 folios and the latter 340 folios. The amount claimed is calculated on a per-folio basis; the total being $413.25 + $2,465.00 = $2,878.25.
It will be recalled that it is conceded that $1,200.00 is to be taxed off this figure (in lieu of the $48.23 which was erroneously used).
Accordingly, the issue for determination is whether the husband establishes any error on the part of the Registrar in allowing at total of $1,678.25 by reference to Item 104 of Schedule 3 to the Family Law Rules 2004 in respect of perusing (in total) nearly 400 folios of material.
No challenge is made by the husband to the assertions in the bill of costs that the total folios involved is 397. Rather, the husband submits that his affidavit, which “consisted of approximately 30 pages and that the 19 exhibits to it totalling 93 pages” does not justify the figure claimed. He submits “even allowing 2 minutes per page to perusal approximately 123 pages, it is submitted that the wife’s solicitor should not have taken any more than 4 hours to closely read this material”.
The husband seeks, as I understand his written submissions, that the items be taxed by reference to Item 108 in the 3rd Schedule (“Time reasonably spent by a lawyer”) and that the time allowed should be between four and six hours.
The written submissions for the wife were, I was told from the bar table by Mr Noble, not prepared by him or his firm but by a firm of costs consultants. Mr Noble added little orally to those submissions and essentially relied upon them in support of the rejection of the husband’s contention. Those written submissions assert that:-
“the husband’s submission appears to be based (although it is not expressly stated) on rule 19.43 which states as follows:-
‘If it is reasonable for a lawyer to read more than 50 pages for a case, the amount to be charged under item 104 in schedule 3 is at the discretion of the Registrar’’.
The rule does not say that the Registrar must allow for the reading on some other basis if the amount read is more than 50 pages. Clearly, item 104 should be the starting point for an allowance for reading a document, and the Registrar on assessment should only depart from item 104 where there are a large volume of documents and a reading of all the documents was not required…”
The submissions go on to argue that:
“these items relate to perusal of the husband’s affidavit. It is with respect, absurd to suggest that such a document should not receive a close reading by the wife’s solicitor. Indeed, not to give evidence produced in these proceedings a close reading would be very dangerous practice”.
The husband does not contend that the number of folios claimed to have been perused (charged by reference to Item 104 in schedule 3) is inaccurate.
I accept the submissions on behalf of the wife, as outlined above, and the further submission that a claim pursuant to Item 108 is made as an exception to a claim for specified items. This is made clear in the Item itself: “except [where] work to which any other item in this part applies”.
No error is demonstrated in the approach taken by the Registrar (save in respect of the $1200 earlier referred to).
Item 318 of the Bill
This item refers to three separate items charged as expenses, being counsel’s fees in respect of three pieces of work, specified as: “to draw and settle objections to the husband’s material 4 hours” performed on 1 March 2006; “to preparation for trial including summary of argument 6 hours” on 5 March 2006 and “to fee per day on trial” on 6 March 2006 together with $560.00 claimed in respect of GST.
An amount of $560.00 has been (correctly) taxed off because Schedule 3 includes GST.
The Registrar’s notation on the Amended Itemised Costs Account makes it plain that an additional $1,000.00 has been taxed off in respect of the fee “per day on trial” on 6 March 2006; $2,600.00 was claimed and $1,600.00 allowed.
The husband’s objection to Item 318 is in two parts. The first part objects to the first of the three components (“to draw and settle” objections to the husband’s material). Four hours was claimed by counsel.
(a) Objection to “Drawing and Settling Objections”
The husband’s written submissions assert that “the wife’s solicitor has already charged at item numbers 295, 296, 297 and 298 for drawing objections to the husband’s affidavit material, engrossing the same, photocopying and attendance time to file the objection”. In that same document the husband contends that “given the solicitor’s charge, the husband respectfully seeks to not be burdened with an additional fee claimed by counsel to draw objections to the same material”.
In oral argument, the husband’s objection seemed to be broader than, and slightly different from, his written contention. He argued, firstly, that, because the “objections to evidence” document to which reference was made (Exhibit 6) was not signed by counsel, counsel should not charge for it. I reject that submission.
It is submitted on behalf of the wife that whilst:-
“Counsel’s fee note refers to drawing and settling the objections, it is suggested that the reference to drawing is an error having regard to the work claimed at items 295, 296, 297 and 298”.
I do not agree. Moreover, whilst that assertion is made now, there is no suggestion before me that such a claim was made before the Registrar.
The written submission on behalf of the wife goes on to say: “It is further noted that there is no suggestion in the objections that counsel did not do this work or that it did not or should not have taken him four hours”. In my view, that is not to the point; the number of hours work claimed includes something for which the client has already been charged by the solicitor.
Mr Noble sought to explain this by leading evidence from the bar table. But, there is no evidence before me to suggest that there was evidence before the Registrar other than the itemised bill which, on its face, suggests that the client has been charged for the solicitor to “draw” the document and again for counsel to “draw” the document.
It seems to me to be an error on the part of the Registrar to permit the husband to be charged twice for “drawing” the document.
The husband seemed to suggest that the whole of the amount charged by counsel should be disallowed. I reject that submission. Whilst reference to the Item charged by counsel makes it clear that, at least part of the claim for that fee is the “drawing” of the document, it is equally plain that part of the fee was for “settling” the document. The Registrar’s error was, it seems to me, not taxing off such component of the work done by counsel on 1 March 2006 that related to the “drawing” of the objections to material.
I invited submissions from each of the parties in respect of what amount should be taxed off. I was not assisted by the submissions of either party. In circumstances where a solicitor has drawn objections, I consider it likely that the majority of counsel’s work would be in the settling of them. I consider it appropriate to tax off one-third of the amount claimed, namely, $400.00.
(b) Objection to “Fee on Day of Trial”
The second component of the husband’s objection in respect of Item 318 relates to a claim on behalf of counsel for a whole day’s fee in respect of an attendance by counsel at a trial on 6 March 2006. It is uncontroversial that, through no fault of either party, the trial did not proceed on that day.
The husband claims that the Registrar erred in permitting (albeit at a reduced rate) an amount (apparently) pursuant to Item 205 – fees for counsel in respect of “Other hearings or trials” for a whole day of trial. The husband contends that the Registrar ought to have assessed counsel’s fee by reference to Item 203 – “Short attendances (for example, procedural hearings, summary hearings taking less than 3 hours)”.
The Registrar allowed the wife’s solicitor only one and a half hours attendance time in respect of the same day. The husband argues that it is inconsistent and wrong to allow counsel a whole day:-
“The husband, therefore, respectfully seeks that no more than the item 203 rate applicable to junior counsel prior to 1 July 2006 be allowed to counsel in respect of the adjourned hearing, namely, $876.00 for hearings taking less than 3 hours”.
It is submitted on behalf of the wife in this respect that:-
“It is proper and quite usual for counsel to charge on a per day rate rather than a per hour rate for the fees charged for attending a trial or a hearing. Whilst the matter was adjourned due to the unavailability of a judge to start the matter, counsel would have had to set aside a full day. On this basis, counsel is justified in charging those fees. In any event, the Registrar assessing the itemised costs account reduced this item by $1,000.00 at the assessment hearing on the basis that the scale rate in item 204 for a hearing or trial taking at least three hours but not more than one day was between $677.35 and $1,565.60. As Mr Hodges is a reasonably senior member of the junior bar and is experienced in Family Court matters, it is determined that an allowance of the upper end of that range would be appropriate”.
It is asserted that Item 204 was used by the Registrar. It is correct that $1000 was taxed off. The amount allowed, then, was $1600. If, as asserted, Item 204 was used by the Registrar, there is, in my view, plainly error on the part of the Registrar as the amount allowed exceeded the amount provided by the Schedule.
The argument by the husband might be thought to be understandable; there is, as he asserts, a measure of apparent inconsistency between an allowance for a solicitor based on actual time and allowance for counsel for a day. That is, perhaps, all the more so, when an allowance has been made (and not objected to) in respect of counsel’s preparation for trial (claimed and allowed at six hours) for that day.
The difficulty with the husband’s argument, in my view, is that Schedule 3 distinguishes between: “A hearing or trial taking at least 3 hours but not more than 1 day” [emphasis added] in Item 204 and, in Item 203, hearings of an entirely different nature. That distinction is underlined in my view by Item 205 in which a further distinction is made between short trials and “other… trials”.
In my view, the better view is that Item 204 applies.
Accordingly, if there is error, it is in not allowing an amount additional to the $1000 which has been taxed off. As I have indicated, I consider there is error in that respect, but it is confined to $35 being the difference between the allowed amount ($1600) and the top of the relevant scale ($1565). Although the amount is trivial, it is, nevertheless, what is in my view required by the Rules.
I should add that, in applying the top of the relevant scale, I accept the submission on behalf of the wife that her counsel is a very experienced member of the junior bar and the top of that scale is appropriate.
Item 440 of the Bill
Item 440 is a claim for “attendance by a solicitor at court” for an amount of seven hours.
The husband contends that, at Item 441 the wife’s solicitor also claims seven hours but was allowed only 5 hours. He says that the attendance time in respect of each of those items was disputed. He says that, in exactly the same way as Item 441 was reduced from seven hours to five hours, so ought Item 440.
In my view, no error is demonstrated by the husband in respect of this item.
Item 476 of the Bill
Consequent upon the adjournment of the trial in March, the matter returned to court on 31 July 2006. The husband asserted orally that the Registrar allowed a reduction in the amount claimed by counsel in respect of each day of the trial ($2,600.00) so as to tax off the difference between that amount and the top of the “trial scale” at item 205.
There is no evidence before me to indicate that his assertion is correct (although nor is there any evidence to doubt it). There is no evidence before me to indicate why $2,301.25 has been discounted from the total of counsel’s fees in respect of that item, although the Amended Itemised Bill of Costs and the letter of 23 December 2008 from Registrar Stevens each clearly indicate that it was intended to tax that amount off.
In respect of the issue under discussion, the lack of reasons from the then Registrar Stevens becomes a problem. I simply do not know, on the evidence before me, why $2,301.25 was taxed off in respect of the total amount. I am not prepared to speculate.
It seems to me that the interests of justice require me to find that there is error by reason of insufficiency of reasons (albeit in this unusual set of circumstances) for taxing off the sum of $2,301.25. I consider the interests of justice require me to look at that item afresh and to proceed to exercise my own discretion in respect of it.
(a) Counsel’s Fees for Each Trial Day
The four days of trial are each claimed at $2,600.00. I consider that the top end of the “trial scale” provided for at item 205 of Schedule 3 is appropriately applicable to Mr Hodges who, as indicated earlier, is a highly experienced member of the junior bar. Accordingly, I allow $2,301.25 in respect of each of the four days of trial. That has the result of taxing off in respect of each of the four days an amount of $2,600.00 - $2,301.25 = $298.75.
Accordingly, I tax off in respect of the fee per day on trial the total sum of $1,195.00.
(b) Counsel’s Preparation Fee for Trial
An additional source of objection is the amount claimed at the same Item in respect of preparation. There, a total of $4,800.00 (being a total of 16 hours) is claimed for “preparation” in respect of work done on 26 July 2006 and 30 July 2006.
The husband contends in his written submissions that:
“The first day of trial in this matter is scheduled for 6.03.06 and, as stated, was adjourned. At item 318, counsel’s fee for six hours preparation time on 5.03.06 which included the summary of argument was $1,800.00 (that is six hours).”
The husband goes on to argue:-
“If counsel required only six hours to prepare for the very first scheduled day of trial, 06.03.06, and the summary of argument was also prepared within this time frame, it is respectfully submitted that it appears counsel should not have actually required an additional sixteen hours to prepare for the same matter. Especially as it was not necessary for counsel to peruse any new evidence as the husband still relied on the same material in the affidavit of evidence-in-chief he filed on 07.10.05 and the wife’s still relied on the same material in the affidavit of evidence-in-chief she filed on 10.10.05”.
It is submitted on behalf of the wife that “scale item 201 specifically refers to preparation and reading fees”.
That submission is, though, only correct in my view if the word “preparing” in Item 201 ought be read disjunctively from the words which follow it. Item 201 provides for: “Chamber work (including preparing or settling any necessary document, opinion, advice or evidence, and any reading fee (if allowed))”.
In my view, there is, contrary to that assertion, a strong argument to suggest that the word “preparing” should be read conjunctively with the words which follow it. Put another way, that interpretation suggests that the word “preparing” is used in Item 201 in lieu of the more traditional word “drawing”.
In addition, whilst it is true, as submitted on behalf of the wife, that Item 201 “specifically refers to…reading fees”, the item makes it abundantly clear that reading fees are only to be included “if allowed”. The inclusion of the latter words, in my view, clearly indicate that reading fees ought not be allowed in the usual course.
That view is consistent with authority. Moreover, I consider that authority also suggests that fees for preparation for trial should also fall into the same category.
In Saaethoff v Saaethoff (1987) FLC 91-817, an item in a bill of costs entitled “Brief to Appear on Appeal - $2,500.00” was, the Full Court observed, “…actually constituted by a conference and two days reading charged at $750.00 per day and $1,000.00 on the appearance”. The Full Court held at 76,158:-
“It does not appear to us that this was an appropriate case for counsel to charge a reading fee additional to the fee on brief to appear. As we had previously indicated the appeal was a straight forward and uncomplicated property appeal occupying half a day and did not in our view require any significant preparation beyond what is involved in the preparation of a brief to appear in the ordinary way. The trial including judgment occupied approximately two full days and the transcript is of approximately 150 pages. The other written material was relatively brief. Counsel for the wife appeared for her at the trial. In ordinary circumstances a brief fee represents an allowance for the time expected to be occupied in court, up to one day, and for the preliminary work in mastering the facts, the law and preparing for the hearing. Where the case is of great complexity or the material is voluminous, a reading fee or a preparation fee may be appropriate, either as a separate fee or as an additional component of the brief to appear: see Magna Alloys and Research Pty Ltd v Kevin Lindsay Coffee and Ors (No.2) (1982) VR 97 especially at pp 109-111 and the cases therein referred to. [emphasis added]
In this context, it is important to note the distinction between matters which might be allowed on a solicitor and own client taxation and those which might be allowed on a party and party taxation. (See eg, Locke and Locke (1993) FLC 92-352 at 79,720 per Baker J).
In my opinion, the Schedule, and Item 204 specifically, are each intended to reflect the position referred to by the Full Court in Saaethoff.
Clause 6.35(1) provides that:-
A Registrar must not allow costs that, in the opinion of the Registrar:
(a) are not reasonably necessary for the attainment of justice;
(b) are not proportionate to the issues in the case.
Clause 6.51(4) provides, relevantly, that the Registrar must not allow:-
(a)a fee paid to counsel as retainer;
(b)a reading fee, unless:-
(i) the case is unusually complex;
(ii) the amount of material involved is particularly large;
…
(d)if a daily fee for counsel’s attendance is payable in accordance with Part 2 of Schedule 3 – an additional amount for work done for the case but counsel on any day for which the daily fee applies.
This court is “an affidavit court”. Evidence is given by affidavit (unless leave is otherwise given). Axiomatically, then, reading will be involved in every case irrespective of its length or complexity or whether the issues result in particularly voluminous material. Similarly, almost by definition, preparation for trial will involve significant reading. The thrust of the case law, and the Rules themselves, are each to the effect that reading fees are the exception.
Further, and in any event, in my view the wording of Item 201 and the interpretation of it more consistent with its purpose, is to read the word “preparation” at Item 201 conjunctively with the words which follow it.
Item 201 does not, in my view, give licence to a claim for a “preparation fee” on a party and party taxation in the usual course.
There is nothing in this case which persuades me that it is “unusually complex” or that “the amount of material involved (was) particularly large”. Indeed, as the solicitor for the wife points out in his affidavit, relied on for the purposes of the proceedings before me, this was a s 79 case where the value of a property was agreed and where the dispute at its widest appeared to be about a disparity in the overall result of approximately ten per cent.
Passages in the written submissions of the wife are reflective of an assertion that the husband’s self representation provided additional difficulty. In a passage from O’Reilly J’s reasons for judgment referred to in the affidavit of the solicitor for the husband, her Honour says:
“At the trial the husband demonstrated a somewhat obsessive personality unwilling to accept any view other than his own. However, I do not find that as a litigant in person he deliberately set out to make matters more difficult or repetitive or longer, but rather that that was an aspect of what I have loosely described as his personality”.
Whilst I can readily appreciate that those characteristics may have created some difficulties, I do not consider, contrary to that which is contended on behalf of the wife, that the trial was “complex” or that the material was particularly voluminous.
Written submissions on behalf of the wife contend that: “[i]t must be accepted that counsel must prepare for trial and having done the work should be entitled to charge for it”. In my view, that statement is, as it applies to an allowance for preparation in a party and party bill, wrong.
I hasten to say that nothing I have said is to suggest that counsel charging for reading or preparation as between himself and his client is, in any way, improper. I consider that I can take judicial notice of the fact (see s 144 Evidence Act 1995) that the charging of preparation (or “reading”) fees are by no means uncommon among counsel in this jurisdiction. Obviously enough, that topic can be the topic of specific agreement and frequently is so.
In my view, that does not mean, however, that it is recoverable from the other party pursuant to an order against that other party for party and party costs.
Accordingly, in my opinion, the whole of the amounts claimed in respect of preparation on 26 and 30 July 2006 should be taxed off; an amount of $4,800.00.
(c) Preparation of Written Submissions
The next component of the objection taken by the husband to the amounts claimed at item 476 relates to work done on 10 and 11 September 2006 being “preparation of written submissions” comprising a total of ten hours.
In contrast to a claim for “preparation” for trial, or preparation generally, Item 201 applies to the “preparation of any necessary document”. It seems to me that written submissions prepared by counsel at the conclusion of a four-day trial constitute a “necessary document” within the meaning of item 201.
The husband seemed to suggest that, because the written submissions refer in some detail to aspects of the evidence that this was a “repetition” of those matters. To that end, the husband sought to adduce before me a copy of the written submissions which had blanked out those components of them which referred parts of the evidence and the like. It was then submitted, in effect, that the document was very brief and that ten hours could not be justified in its preparation.
The husband concedes, however, that five hours at $300.00 per hour be allowed for counsel to draw the written submissions. In respect of the hourly amount, I note that item 201 provides relevantly for fees to be charged by junior counsel in a range between $221.55 and $315.90 per hour. I see no error in the Registrar adopting (as she apparently did) the rate of $300.00 per hour.
The husband did not assert before me and no evidence suggests, that counsel did not spend the time claimed in the items.
It is argued on behalf of the wife that:-
“The preparation of the submissions would have necessarily required counsel to review completely the transcript of four days of evidence. It is submitted, in those circumstances some ten hours to prepare written submissions is more than reasonable”.
There is no evidence before me to suggest that there was evidence before the Registrar that a transcript of evidence was obtained. I am able to take judicial notice (s 144 Evidence Act 1995) of the fact that this court does not, as a matter of course, provide transcripts of trials. The written submissions at trial make no reference to any transcript. There appears to be no evidentiary foundation for the assertion that counsel “review(ed) completely the transcript of four days of evidence”.
The case involved, as earlier indicated, a dispute about a relatively small disparity in overall result in a case where the values of the property the subject of the proceedings was agreed. The written submissions themselves (Exhibit 6) do not reveal any complex issues of fact or law that needed to be addressed.
The trial took four days. The father himself, in earlier parts of the written reasons for objection refers to the fact that the affidavit of evidence adduced by him contained what he himself said was (and what on the face of the document would appear to be) irrelevant material. The preparation of written submissions is a time consuming task.
I accept the assertion manifest in the bill itself that ten hours work was involved. The issue is, however, the extent to which the opposing party should, in effect, pay for that work. The fact that I have found that written submissions are a “necessary document” within the meaning of Item 201 does not mean that the whole of the time taken in the preparation of that document is to be allowed on a taxation; whether a particular item is allowed or whether a particular amount is allowed within an item must each, as the Rules contemplate (see eg. Clause 6.35), be governed by the principle that the costs should be “reasonably necessary for the attainment of justice” and “proportionate to the issues in the case”.
It seems to me that an allowance for half of the amount claimed achieves the proportionality required. I repeat, this seems to me to have been a simple case. Accordingly, I find that five hours is a reasonable amount to allow in respect of this item. I allow five hours at $300.00 per hour, a total of $1,500.00. I accordingly tax off $1,100.00.
(d) Effect of Findings
It will be recalled that I have approached this item afresh. Accordingly, in order to arrive at the correct “net effect” on the Registrar’s initial assessment, it is necessary to add back the $2301.25 taxed off by the Registrar. The calculation needed to calculate the amount to be taxed off in light of my findings, then, is: $1195 + $4800 + $1100 - $2301.25 = $4793.75
Items 550 to 553 of the Bill
These items all relate to fees charged by the wife’s legal costs consultants invoiced in February 2007. $506.00 has been disallowed in respect of assessment fees of $2,506.00.
In broad compass, the husband’s objections in respect of these items rest upon an assertion that Hartwell’s work was, in effect, incompetent and therefore they ought not be entitled to charge the fee.
The particulars of that assertion appear to be that 139 items were conceded as being disallowed, of which 109 relate to expenses in and about properties owned jointly by the husband and wife. Those items include a claim for GST, which as Schedule 3 makes clear, are included within the item charges. The husband submitted that 228 items out of a total of 651 were conceded and that therefore “no credibility should attach to the account from Hartwell’s”.
The submissions of the husband reveal no error on the part of the Registrar.
Item 635 of the Bill
The objection here relates to a claim for $2,400.00 to draw written submissions in respect of the wife’s application for costs ultimately granted by O’Reilly J.
Again, this is an issue where the absence of reasons presents significant problems to a reviewing court. I propose to adopt a similar course to that outlined in respect of the previous item.
Reference to Item 635 simply shows a total amount of $5,280.00 payable to counsel in respect of “court attendance” on 12 July 2007. It seems to be common ground, however, by reference to each of the written reasons for objection and the submissions in response, that this sum comprises, in part, the amount of $2,400.00 for eight hours preparation of written submissions.
The written submissions made on behalf of the wife in the proceedings before me assert that:
“the submissions speak for themselves and the judgment of her Honour Justice O’Reilly of 12 June 2007 is evidence that the costs issues raised were of some significant complexity. Indeed, her Honour’s judgment itself is some fourteen pages.”
Having read her Honour’s reasons, I am not convinced that the costs issues raised were, by any means, “of some significant complexity”. The issues essentially surrounded the weight which ought be attached to various offers made by the wife (together, obviously enough, with the other factors relevant under s 117(2A)).
I draw no inference that the matter was complex from the fact that her Honour’s judgment was some fourteen pages in length.
The husband submits that:
“…counsel’s claim of eight hours at the cost of $2,400.00 to draw costs submissions this day is excessive as approximately eighty per cent of the submissions are basically a restatement of each party’s written offers of settlement and their responses to same during the course of the proceedings. The document consists of approximately four pages. …”
It can be seen that the argument here is essentially a restatement of that raised in respect of the previous item. Again, the husband sought to demonstrate, by blanking out references to the evidence and the like, that the submissions were repetitive of matters already raised. I reject those arguments for the same reasons as referred to in respect of the previous item.
The issue is whether it is reasonable to allow the whole of the eight hours for the preparation of those written submissions (accepting, as earlier referred to, that they were “a necessary document” as referred to in Schedule 3).
The costs submissions referred to are Exhibit 8. I have had reference to those submissions. In my view no particular issues of complexity of either fact or law are involved in the submissions although I take note that, in circumstances where a number of offers were made, it would obviously have been necessary for counsel to refer to the offers and the responses made in the course of the preparation of those submissions.
Per force of the reasoning outlined earlier, I consider that eight hours (that is the whole of the amount of time claimed) exceeds that which should be allowed on a party and party taxation.
I consider that half of the amount claimed is a reasonable amount. Accordingly, I consider that four hours at $300.00 per hour ought be allowed in respect of these submissions. Accordingly, I will tax off the sum of $1,200.00. However (for unexplained reasons) the Registrar has, by reference to the Amended Itemised Costs Account, apparently already taxed off $839.20 (being $834.40 + 4.80). Therefore the additional amount to be taxed off the total is $360.80 (being $1,200.00 less $839.20)
Item 651 of the Bill
This objection refers to an amount of $8,616.72 claimed in respect of what is commonly called “care and consideration”. The Registrar’s notation to the Amended Itemised Bill of Costs indicates that $2,000.00 was taxed off.
The question for me then is, is any error demonstrated such that $6,616.72 should, additionally, be taxed off in respect of “care and consideration”? The item, in its original form, is represented by a 30% addition to the gross sum otherwise arrived at by reference to the preceding items.
Can a Claim for Care and Consideration be included in Party and Party costs?
This issue arises in this form because the husband, in arguing that the Registrar erred, submits that “No such item exists in Schedule 3”. He submits, then, that there is no basis for the claim.
He goes on to argue (in what I perceive to be an alternative argument) that “the court should only allow a ‘Care and Consideration’ uplift if the matter is unusual or complex in nature. It is submitted that there was nothing in this matter that met those criteria”.
The submissions for the wife are based, firstly, on Clause 6.36(1). It provides that “a Registrar may allow a reasonable sum for work properly performed that is not specifically provided for in schedule 3”. Sub-clause (2) then refers to ten specific factors which the Registrar may consider in exercising that discretion. It is submitted on behalf of the wife that:-
“These items essentially restate the sort of issues which are generally regarded as forming a claim for care and consideration. Compare for example item 1 in the Supreme Court scale of costs and item 41 in the Federal Court scale of costs. It would be incorrect, therefore, to suggest that there can be no allowance for what can be described as “care and consideration”.
The analogy with the Federal Court Rules (and more particularly Schedule 2 to those Rules) and the Queensland Supreme Court scale of costs (Schedule 2 to the Uniform Procedure Rules (Qld) 1999) is, though, in my view, by no means perfect.
Each of those court’s Rules provide (as do this Court’s Rules) that party and party costs are to be assessed by reference to the respective scales contained as Schedules to those Rules. It is, in my view, significant to note, then, that while each of the Queensland Supreme Court and the Federal Court’s scales of costs include a specific item for care and consideration (described in each case as “general care and conduct”) no such specific item is contained in Schedule 3 to the Family Court Rules.
Each of the Queensland Supreme Court scale and he Federal Court scale includes a ‘general” or “miscellaneous” item. The former provides:
“2 For a matter for which a cost is not provided for in this schedule the amount to be allowed is the amount the Registrar considers reasonable”
The latter provides:
“50 Matters not included in this scale may be allowed to the extent they are covered by Order 62, rule 21”
What might be seen to be a similar (albeit more circumscribed) provision in Schedule 3 to the Family Law Rules is Item 108, which provides:
“108 Time reasonably spent by a lawyer on work requiring the skill of a lawyer (except work to which any other item in this Part applies)”
It seems to me, then, that what might be described as “care and consideration” or “general care and conduct” should be regarded, as it is in each of the other two court’s scales, as something distinct from that which is contemplated by Item 108.
Such an interpretation is, in my view, also more consistent with Item 108 being something distinct from a matter that might be covered by Rule 19.35.
O’Loughlin J has referred to “the right for a successful litigant to charge for “care and conduct” being “found in Item 41 in the second schedule [to the Federal Court Rules] (Auspine Ltd v Australian Newsprint Mills Ltd ([1996] FCA 673 at [31].
The author of Law of Costs (Dal Pont, Lexis Nexis Butterworths 2nd ed. 2009) argues (at [15.82]):
“The reason the scale in the above jurisdictions makes provision for an additional allowance for care and conduct has been explained on the ground that it is an item-based scale. Yet, in other jurisdictions, which also prescribe item-based scales, no equivalent provision is made. To this end, in jurisdictions where no provision for a mark-up for general care and conduct is made, the taxing officer arguably lacks the power to make an allowance for it. In those jurisdictions, in order to give an equivalent allowance, the taxing officer must resort to the power to increase scale fees as prescribed by the court rules or, in some jurisdictions, the power to set a reasonable fee where an item is not governed by the scale” [footnotes omitted]
It will be clear, then, that I consider the fact that there is no specific item in Schedule 3 to the Family Law Rules for “general care and conduct” to be of particular significance in pointing away from it being allowable on a party/party taxation.
It is to be noted that an Example to Clause 6.20 (which provides for the “Method of calculation of Costs”) provides:
“Example - For paragraph (1) (c), the stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.”
If an amount for general care and conduct or care and consideration cannot be claimed as an item in a bill of costs, two further issues arise. First, what is the nature of the power pursuant to Clause 6.34 which is given to a Registrar (and to this court on review, which is empowered to do all that a Registrar may do - see Clause 6.55(2)(b)(i)). The second issue is the interrelationship between Clause 6.36 and Clause 6.19`.
The latter provides, relevantly:-
“6.19 Maximum Amount Chargeable
6.19(1) This clause sets out the maximum amount of costs a lawyer may charge and recover for work done for a case, or in complying with pre-action procedures: :
(a) for a client;
(b) if the court orders that costs are to be paid and does not fix the amount; and
(c) if a person is entitled to costs under these Rules.
(d) for part of the case, or part of an amount, assessed in accordance with Schedule 3.
6.19(2) The maximum amount of costs that a lawyer may charge and recover is as follows:
(a) for fees — an amount calculated in accordance with Schedules 3 and 4;
…”
It is not immediately clear to me what the expression “under subclause (1)” in cl.6.20(2) is intended to convey – one would have thought that by reference to its heading and terms, that it either refers to the maximum amount recoverable in the circumstances specified in sub-clause (1) or it doesn’t.
One possible explanation is, though, that the words are inserted specifically to exempt that maximum total from a greater total arrived at by adding the Schedule 3 total and any additional amount permitted by a Registrar pursuant to Clause 6.36.
Clause 6.36 provides, relevantly:
“Allowance for matters not specified
(1) A Registrar may allow a reasonable sum for work properly performed that is not specifically provided for in Schedule 3.
(2) When considering whether to allow an amount for costs or an expense, the Registrar may consider:
(a) any other fees paid or payable to the lawyer and counsel for work to which a fee or allowance applies;
(b) the complexity of the case;
(c) the amount or value of the property or financial resource involved;
(d) the nature and importance of the case to the party concerned;
(e) the difficulty or novelty of the matters raised in the case;
(f) the special skill, knowledge or responsibility required, or the demands made, of the lawyer by the case;
(g) the conduct of all the parties and the time spent on the case;
(h) the place where, and the circumstances in which, work or any part of it was done;
(i) the quality of work done and whether the level of expertise was appropriate to the nature of the work; and
(j) the time in which the work was required to be done”.
When read together, Part 6.5 of Schedule 6 to the Rules (which contains Clause 6.19) and Part 6.6 (which contains Clause 6.36), the effect is, in my judgment, to permit a party to claim, in an itemised bill, only those items prescribed in Schedule 3 but to permit a Registrar, as part of an assessment (and a court as part of a review) to allow an additional amount, having considered the matters prescribed in Clause 6.36 (and any other matters considered relevant to the case) and having thereby arrived at a decision that such an amount is justified.
There is, though, in my judgment, no licence under the Rules for an amount in respect of “care and consideration” or “general care and conduct” to be allowed as a matter of course. Indeed, in those jurisdictions where such a claim is included as a specific item in the applicable court scales, the law is, in my view, clearly to the effect that something more than the usual is required for such a claim to be allowed.
For example, with respect to Item 41 in the Federal Court scale, O’Loughlin J held in Auspine Ltd v Australian Newsprint Mills Ltd, above that:
“[29] … the subject of “care and conduct” is a discrete topic. It is to be dealt with separately from solicitor’s costs for it is always necessary first to make a primary finding whether the case is one where a claim for care and conduct is justified.
…
[32][the opening words of Item 41] show quite clearly that this item of charging is not automatic; it is a discretionary charge in all respects and it is only available if the taxing officer is satisfied that the nature of the case warrants it. I do not consider that [the enumerated factors] are exhaustive but they are strong indicators of the matters that should exist to warrant a successful party invoking this item of charge”
…
[46]…there should not be any mark-up in the Federal Court for care and conduct in cases that are properly described as non-exceptional or run-of-the-mill”
In summary, then, in respect of the question posed above for consideration, I find that:
§No Item in Schedule 3 is applicable to “care and consideration” or “general care and conduct”;
§Accordingly, it is not permissible for any such item to be included in an itemised Bill of Costs (see Clause 6.23);
§No such amount can form part of “the maximum amount of party/party costs a person may recover” claimable within the meaning of Clause 6.19;
§The Registrar, acting as a taxing officer, lacks the power to so include it;
§Further and in any event, “care and consideration” or “general care and conduct” cannot be claimed in ordinary or “run-of-the-mill” cases;
§Such an amount may be allowed by a Registrar, but only upon being satisfied that, by reference to the matters prescribed in Clause 6.36 (as well as any other matters properly considered to be relevant), the circumstances of the case warrant its imposition as an amount additional to the amount of the itemised bill.
It follows that I am of the view that the Registrar erred in this case by including “care and consideration” as an item in this bill.
Do the Requisite Factors Nevertheless Justify an Order Pursuant to Clause 6.36?
Even if I am wrong, as a matter of principle, that the Registrar erred as a matter of law in permitting an allowance for care and consideration as an item, I am satisfied that, in the circumstances of this case, an error was made by the Registrar by permitting such an allowance.
As appears to be conceded on behalf of the wife, if the Registrar had power to award a figure for care and consideration, it was pursuant to Clause 6.36. I consider that, when regard is had to all of the matters detailed in cl. 6.36(2), an insufficient basis for allowing the sum is made out.
The written submissions on behalf of the wife argue “complexity is but one issue to consider in making an allowance under r 19.35”. In any event, it is submitted that “the manner in which the case was conducted by the husband, as a self represented litigant, made this a case which could be described as complex”. I disagree.
The husband argues that “having regard to the husband being a litigant in person and the end result, the fifty per cent/50 per cent division of the parties’ assets, it is evident that the husband shared the same level of success at trial as the wife’s legal team. Therefore, the wife’s solicitor cannot claim that this matter was unusual or complex. The submission does not justify the conclusion and I reject it. I also reject the submission that the ultimate result ordered by her Honour (50 / 50) means that the parties shared a level of success in the proceedings.
The husband also alleges that the refusal of O’Reilly J to order indemnity costs should impact upon the decision to allow care and consideration. Whilst some of the factors relevant to a claim for indemnity costs might overlap with those which might be taken into account pursuant to Clause 6.36(2), again, the submission does not justify its conclusion.
The written submissions on behalf of the wife address each of the matters contained at subclause 6.36(2). It is submitted, for example, in respect of sub-paragraph (a) of the Clause that:-
“…it is impossible in virtually any matter for claims under the scale to fully cover all time spent by a solicitor preparing a matter for trial. Indeed, work done on research, and preparation are not claimed at all in the itemised costs account, nor can they be pursuant to the scale. This matter proceeded to a four day trial and would have required significant preparatory work and consideration by the instructing solicitor”.
It is by no means clear to me that the central assertion made there is correct. I repeat that item 108 in schedule 3 provides for precisely the sort of matters referred to in that submission. If it is work of the type referred to, I see no reason why that work cannot be particularised and claimed pursuant to that Item in the scale.
For example, I can see no reason why the “significant preparatory work” referred to could not have been particularised and claimed. So, too, there is no particularisation, and certainly no item claimed, in the bill of costs for “research and preparation”. But, again, I can see no reason why all such necessary work undertaken could not have been recorded and subsequently particularised and claimed.
This was, in my view, by no means a complex case. In fact, it seems to me to have been a relatively simple case. I can see no evidence that there was the necessity for “research and preparation” beyond that which has been included in the itemised bill of costs. The same applies to the asserted additional “complexity” required by reason of the husband’s self representation. A perusal of the Amended Itemised Costs Account reveals numerous specific items claimed that might be seen as readily attributable to this issue. For example, many items refer to the correspondence passing to and fro between the solicitors and the husband.
I have considered all of the matters enumerated in cl. 6.36(2). On the assumption that cl. 6.36 provides a proper basis for a claim in care and consideration over and above items claimed pursuant to schedule 3, I do not consider that the evidence before me in respect of those factors justifies an additional claim in that respect. I consider that the Registrar erred in allowing the claim at all.
Accordingly, I will tax off the (remaining) $6,616.72 in respect of this item.
Summary
As indicated earlier, I will require the parties (or their representatives) to do the addition of the bill to check if the amount at Item 476 (pars 30 -35 of these reasons) has been properly included in accordance with the Registrar’s assessment.
For the reasons given above, the findings to be included (apart from the checking of the addition in respect of Item 476) are summarised as follows:
§An amount of $1151.77 to be taxed off in respect of Item 41 (para 29 reasons);
§Additional mounts of $400 and $35 in respect of Item 318 (pars 59; 68 reasons);
§A total net amount of $4793.75 in respect of Item 476 (para 112 reasons) comprising: an amount of $1195 (par 78 reasons); an additional amount of $4800 (par 100 reasons) and an additional amount of $1100 in (par 111 reasons) less $2301.25 being the amount originally taxed off by the Registrar;
§An amount of $360.80 in respect of Item 635 (par 128 reasons)
§An amount of $6616.72 in respect of Item 651 (par 164 reasons)
Accordingly, apart from the matter of addition concerning Item 476, the amount of $13,358.04 is to be taxed off the bill and the same amount added to the refund to the husband.
I order accordingly.
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.
Associate:
Date: 26 June 2009
Key Legal Topics
Areas of Law
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Civil Procedure
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Family Law
Legal Concepts
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Costs
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Procedural Fairness
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Proportionality
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Statutory Construction
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