Gordon v Cadbury Schweppes Pty Ltd

[1990] TASSC 101

Serial No B24/1990
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Gordon v Cadbury Schweppes Pty Ltd [1990] TASSC 101; B24/1990

PARTIES:  GORDON, Jennifer Ann
  v
  CADBURY SCHWEPPES PTY LTD

FILE NO/S:  WC 223/1987
DELIVERED ON:  30 May 1990
JUDGMENT OF:  Master Southee

Judgment Number:  B24/1990
Number of paragraphs:  10

Serial No B24/1990
List "B"
File No WC 223/1987

JENNIFER ANN GORDON v CADBURY SCHWEPPES PTY LTD

REASONS FOR JUDGMENT  MASTER SOUTHEE

30 May 1990

1. The plaintiff has filed an interlocutory application pursuant to O80, r102, of the Rules of The Supreme Court, for an order to review the taxation of certain items in the plaintiff's bill of costs to which the plaintiff objected and which were disallowed by the taxing officer as disclosed in Certificate of Taxation and written reasons dated 14 February 1990.

1. The items in the plaintiff's bill of costs which have been objected to and disallowed by the taxing officer are as follows:

Item 126

1. The amount of $62 for instructions for defence and counterclaim was wholly disallowed. The evidence before the taxing officer, as disclosed in his reasons, indicates that no instructions were taken on the date stated in the bill and that an attendance of the plaintiff in relation to this matter was allowed under Item 104.

1. This item is disallowed.

1. I should say that in considering this item and the others under review that I am mindful of the discretion, which, subject to the Rules, may be exercised pursuant to O80, rr1 and 45.

Items 165, 217, 221, 229, 248, 285 and 299

1. I agree with the general view taken by the taxing officer to these items which related to frequent communications between solicitor, counsel and the client. The nature and frequency of such communications during the course of the pre–trial steps can in effect lead to counsel fulfilling the role of a second solicitor in the action and may be incurred through over–caution (see r.68). As such, the other party should not be burdened with these costs. General principle must of course always be subservient to the particulars of the case under review. The present action is one of some difficulty in that the workers' compensation claim arises out of three separate accidents and involves the application of s21 of the Workers' Compensation Act 1927, which, in the past, has not always been easy to construe. I consider that Item 248 which comprised a conference between the solicitor and his client with counsel, although held before delivery of the brief, should be allowed, but that the taxing officer was correct in the disallowance of the other items under this heading. Although the conference occurred at a stage before counsel was briefed for trial the issues were of sufficient importance to warrant a conference with counsel. As a result of the allowance as to the item I shall hear counsel as to Item 573 (counsel's fees).

Items 12, 14, 17, 29, 41, 47, 69, 100, 219, 227, 236, 365, 443 and 447

1. These items, relate to formal letters together with cheques which were forwarded by the plaintiff's solicitor in the payment of medical and hospital reports for advice and services relevant to the present action. In respect of these items the taxing officer said:

"It has long been the practice on party and party taxations in this jurisdiction not to allow a professional charge which does no more than enclose a cheque for the payment of a fee. Such letters have not been considered necessary or proper – in my view correctly so."

1. I am not aware of the period during which such a practice has existed, but practice cannot overrule principle if the purported item is a reasonable and necessary one. The abovenumbered items relate to actual work done which relates specifically to the obtaining of evidence and which relates to relevant issues between the parties in the action. I do not understand how it can be said that the letters are not necessary or proper. The accounts have to be paid and the method used for payment is obviously the most convenient one. Nor do I consider that the items can be classed as "office overheads". They are items which relate to the costs incurred in this action and which would not have been incurred at all, but for the necessity to obtain evidence from the medical practitioners and hospitals concerned. I agree with the taxing officer that the items do not involve a professional attendance. They can be performed by a solicitor's clerk. However, Appendix M of Table A of the Principle Rules of Court recognises that a solicitor may charge for attendances at a clerical rate. The charges made in the present bill under review have been charged at the rate allowed for formal letters. (See Item 22(a) of Table A). Item 23 provides for a fee for any necessary postage, carriage, or transmission of a document, in the discretion of the taxing officer. Mr. Green, the solicitor for the plaintiff, conceded that a fee of $6 for each of the items in dispute in the bill is a reasonable charge. I shall allow each of the items at this rate. Items 574, 575 and 585 were disallowed by the taxing officer pursuant to the one–sixth rate (O80, r78(1)). As a result of this review I shall hear counsel as to these items.

1. The following items are allowed by me in the following amounts:

Item 248  $119.00

Item 573  Amount, if any, to

  

be quantified

Items 12, 14, 17, 29, 41,

47, 69, 100, 219, 227, 236,

365, 443 and 447  $84.00

1. I shall hear counsel as to Items 574, 575 and 585 and as to the costs of this application.