Martin & Ors v Commonwealth Bank of Australia

[1995] HCATrans 224

IN THE HIGH COURT OF AUSTRALIA

Registry  No C13 of 1994

B e t w e e n -

ANTHONY GILBERT MARTIN & SUE DOLORES MARTIN & SAROJINI NATASHA VICTORIA MARTIN & RAJAN GILBERT PETER MARTIN & INDIVIDUAL HOMES PTY LIMITED

Applicants

and

COMMONWEALTH BANK OF AUSTRALIA

Respondent

Application for a review of a taxation

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 AUGUST 1995, AT 9.03 AM

Copyright in the High Court of Australia

HIS HONOUR:   Mr Martin, you appear in person, do you?

MR A.S. MARTIN:   Yes, on behalf of the first four applicants, your Honour.

MR F.J. PURNELL, SC:   May it please the Court, I appear for the liquidator. (instructed by Mallesons Stephen Jaques)

HIS HONOUR:   Mr Martin.

MR MARTIN:   Could I have leave to pass over a written submission?  A copy of it has been given ‑ ‑ ‑

HIS HONOUR:   Just before we get to that, there is a document before me described me as a “notice” which is by way of amendment of the summons.  Has a copy of that been made available to Mr Purnell?

MR MARTIN:   Yes, your Honour.

HIS HONOUR:   Do you have anything to say about that, Mr Purnell?

MR PURNELL:   Not as to whether your Honour should receive it or not.

HIS HONOUR:   I am not sure what you mean by that.  Should I give Mr Martin leave to amend paragraph 2 of the summons, or is there any objection to my giving him leave?

MR PURNELL:   No, your Honour.

HIS HONOUR:   Well, Mr Martin, there will be leave to amend paragraph 2 of the summons of 18 January 1995 by substituting paragraph 1 in the notice dated 15 August 1995.  Now before you take me to submissions, are these submissions that deal with particular matters items in the bill of costs that you take issue with or does it range over wider issues?

MR MARTIN:   Only to the amended summons order No 1 and order No 2 that is sought in the amended summons and it is set out as that.

HIS HONOUR:   Perhaps let me see it, if you will.  When was it made available to Mr Purnell, Mr Martin?

MR MARTIN:   This morning, your Honour.

HIS HONOUR:   Well it may not be very satisfactory; let us see.

MR MARTIN:   The previous time a submission was done was done also that written submissions were exchanged only during the - that is the actual written submission and the supporting annexures that goes with it.

HIS HONOUR:   Just keep the annexures for a moment until I see what the document is about.  You see, this really changes the character of the application.  What you asked for in your summons is an order that the certificate of taxation not exceed the sum of $3,000.  Now that tells us nothing.  Now it would appear from this document described as “written submission” that you want to take issue with, what, particular items in the bill of costs as dealt with by the taxing officer?

MR MARTIN:   No, your Honour, it is just the order that is sought now is still that the certificate of title not exceed $3,000.

HIS HONOUR:   But that, in a sense, is meaningless unless I know what the items are and the items that you are challenging might exceed $3,000, they might equal $3,000 or they might be less.  I cannot really deal with an application that asks that the certificate not exceed a sum which seems to be have been plucked out of the air.

MR MARTIN:   Your Honour, the certificate was for $4,700 something as it be shown there and the submission here is that in order 1 that submission shows under no circumstances - the written submission is showing the review should be reduced substantially, probably below 3,000 but we are prepared to accept 3,000.  So the first part of the written submission, your Honour, is justifying that the certificate not exceed the 3,000.

HIS HONOUR:   I do not really think I can deal with it on that basis, Mr Martin.  The taxing officer has taxed the costs received over an objection which has been dealt with at considerable length and in considerable detail with some items being reduced, some of your objections being disallowed and then a figure is produced at the end. 

As I would understand my role here, if you wish to challenge the taxing master’s exercise of power, what you need to do is to say, “Well, this item should have been allowed”,  or “This item should not have been allowed at all”, or “This item should only have been allowed in part and not to the extent allowed by the taxing officer”, and then, in accordance with the ordinary principles operating, namely that you have to show that the taxing officer erred in principle or in some other way, that the Court should intervene.  Then, at the end of that exercise there is an amount which results.  It may be that the application is refused in its entirety, it may be that it is allowed in part, but it is not a proper exercise of power as I would see it to simply say, “Well, I do not think the costs should exceed $3,000.”

MR MARTIN:   Your Honour, the original submission does exactly what your Honour has set out to be.  The first part sets out the major items in the taxing officer’s review that is being challenged, and it shows that if your Honour upholds even part of that then the taxing bill will not come anywhere near $4,700, it will come less than $3,000.  The second part about it relates to order No 2 in the summons.  After that I was going to take your Honour through Order No 71 of the Rules of this Court that supports my submissions.  It has been done precisely.  The written submission has been done precisely the way your Honour has indicated to me that I should do it.

HIS HONOUR:   Can you identify for me in the written submissions those items in the bill of costs where you wish to take issue with the taxing officer’s statement of grounds and reasons for decision?

MR MARTIN:   Yes, your Honour.

HIS HONOUR:   I just want you to identify them for me by number.  Can you take the statement of grounds - you have that document, do you?  The document prepared which dealt with your various objections to the bill of costs.

MR MARTIN:   Yes, your Honour.

HIS HONOUR:   It is dated 4 January 1995.

MR MARTIN:   Yes, your Honour.  The first part of the submission is objections 4 to 14 and it itemises what the taxing officer has allowed.

HIS HONOUR:   Now, when you say objections 4 to 14, are you talking about the objections as numbered in the taxing officer’s statement?

MR MARTIN:   Yes, your Honour.

HIS HONOUR:   And what do you say - I do not want you to go into detail at the moment, but items 4 to 14, are you talking about items or objections 4 to 14?

MR MARTIN:   Objections 4 to 14 and items in the taxing bill have been itemised as well.

HIS HONOUR:   Now, what are you saying in general about objections 4 to 14?

MR MARTIN:   That items in the taxing bill 13, 15, 16, 19, 48 and 38 should not be allowed.

HIS HONOUR:   You see, again, I am trying to steer clear of detail at the moment, but if you look at objection 9, the objection has been allowed in part and the item has been reduced.

MR MARTIN:   Yes, but we have ignored all the small amounts.  The only items that we want your Honour to focus on are the major items.  The written report has been submitted, your Honour, in order - it is not to challenge every item that was originally challenged.

HIS HONOUR:   Well, no, I understand that, but what I am trying to convey to you, Mr Martin, is that if you are inviting this Court to conduct, as it were, a review of the taxing officer’s statement of grounds and reasons for decision, then you need to itemise those particular objections which you wish to be reviewed and the basis upon which you wish to have them reviewed.  Now, is there anything in this document that you have given me this morning that identifies clearly those objections that you wish to have reviewed?

MR MARTIN:   Yes, your Honour.

HIS HONOUR:   By number, what are they?

MR MARTIN:   It is objections 4 to 14.

HIS HONOUR:   Yes, that is what you said before, but when I took you to, say, objection 13, you say, “Well, I’m not really concerned about small figures”.

MR MARTIN:   Your Honour, under objections 4 to 14 the only items in the bill of costs that has been submitted that we are challenging is items 13, 15, 16, 19.

HIS HONOUR:   Do you mean items or are you talking of objections here?  They are differently numbered.

MR MARTIN:   It is items.  Item 48 after that?

HIS HONOUR:   No, I seem to have lost you, Mr Martin.

MR MARTIN:   It is written out in page 2 of the written submission, your Honour.

HIS HONOUR:   There are four items under the heading, First Familiarising With the Winding Up Orders.

MR MARTIN:   Yes, and then under Preparation Instructions for Brief, Second Familiarising, item No 48.

HIS HONOUR:   All right.  It is clear, I think, that items 13, 15, 16 and 19 are all items in respect of which your objection is wholly disallowed, is that right?

MR MARTIN:   Yes, your Honour.

HIS HONOUR:   Item 48 seems to be an item that was originally disallowed but was reinstated.  Is that the position?

MR MARTIN:   I believe that item 48 goes over two or three pages.

HIS HONOUR:   I was looking at page 11 of the taxing officer’s statement.  The amounts involved there for items 48 and 49 appear to be $66.  Where does the figure of $451.70 come from?

MR MARTIN:   Your Honour, I must apologise that I have made an error in that item.  Could you just bear with me a bit, your Honour?  My error in item 48, it should read “45” and “46”.  My apologies, your Honour.

HIS HONOUR:   Well, even there it is still not clear to me that the amount is $451.70 but let us just leave that for a moment.  Then, if you go to item 38, that item was disallowed by the taxing officer so what complaint do you have about that?

MR MARTIN:   Your Honour, items 36 to 43 were in the original taxing allowed and subsequently, the others were disallowed but item 38 was the only one that the taxing officer, on review, allowed.

HIS HONOUR:   But that does not seem to be right, Mr Martin.  Go to page 8 of the taxing officer’s statement.  Do you have that?

MR MARTIN:   Yes, your Honour.

HIS HONOUR:   It is headed at the beginning of the page, Objection 13, then there are various items enumerated and if you drop down to about halfway down the page, it says, “Objection allowed in part, items 38 and 40 disallowed.”

MR MARTIN:   Yes, your Honour, and it is only 38 that we are drawing attention.  Item 40, I think, is a very small amount.

HIS HONOUR:   I am sorry, I may have misread that.  I might have read it that item 38 had been disallowed, but I take it it is really your objection that is disallowed.  Is that how I am to read it?

MR MARTIN:   Yes. 

HIS HONOUR:   Even that does not seem right because if you look at the heavy type at the end of objection 13, it says, “Objection allowed in part, items 38 and 40 disallowed”, which I take to mean that the taxing officer has disallowed item 38 from the bill of costs.  If I am right in that - I might be wrong, but if I am right in that then there is nothing about which you have cause for the complaint, is there?.

MR MARTIN:   Your Honour, I did the calculations and I found out that items 40, 41, 42 and 43, added up to - and 37 - $111.60, and the deduction from there was that those things - the taxing officer reduced it by $111.60, and when I added it up, items 37, 40, 41, 42 and 43, that came out to be $111.60, and the deduction was that item 38 was the only one that was not allowed.  Now, the objection raised is all of those documents were submitted and were perused during the hearing - - -

HIS HONOUR:   I do not want to get into the detail of why you object; I am trying to work out what items that you really do object to and what I was putting to you is that item 38, as I read the taxing officer’s statement, was in fact disallowed from the bill.  Now if that is right then clearly there is nothing about which you have any reason for complaint; if it is wrong then I need to be told exactly what the position is.

MR MARTIN:   My reading is, your Honour, that the taxing officer had accepted item 38 as an expenditure from her comments on 8 and the additions that I did, the only deduction I could make out of that that from items 37 to 43, all of those items the taxing officer upheld my objection except for item 38.

HIS HONOUR:   Yes, well perhaps some light might be thrown on that, but what am I to understand now, Mr Martin, that what you wish to take issue with is item 13, item 15, item 16, item 19 - all of which are items for which your objections were disallowed; items 45 and 46 for which your objection was allowed in part, is that right?

MR MARTIN:   Yes, but the one that was not allowed was my calculation for deduction is $451.70.

HIS HONOUR:   All right, and item 38 over which there is a question mark in my mind at the moment.

MR MARTIN:   I am quite happy to let that not be an issue, your Honour.

HIS HONOUR:   That is item 38, all right; then that can be eliminated.  So we are now left with four items clearly identified and two items, 45 and 46, about which there may be some question of overlap.  I need to be informed about that.  That is the first matter.

You also seek in your summons an order that the certificate of taxation not issue until after the application - that was your original summons - for special leave to appeal.  Now you seek an order that the certificate of taxation not issue until the finalisation of two actions before the Supreme Court of the Australian Capital Territory, but on what basis should I direct that a certificate of taxation not issue?  The order for costs was made, the matter then takes its ordinary course.  There is nothing in the order for costs that suspends liability for costs or defers payment.  I do not understand on what footing you are asking me to issue an order that a certificate not issue in respect of those costs.

MR MARTIN:   Could I crave your Honour’s forgiveness to just say I accept that one for the moment, because under the first issue, that one set counsel’s fee of 1,666 is also being challenged, allowance of - - -

HIS HONOUR:   The two matters really are distinct.  There is the question of what costs are properly payable, having in mind the fact that there is a summons before me seeking, in some way, a review of some items in that bill, but it seems to me to be a quite separate matter to say that however the costs are resolved, that no certificate should issue in respect of those costs until actions in the Supreme Court have been finalised.  At the moment, I can see no justification for that course at all.

MR MARTIN:   I will give you the justification, the grounds on which I am making it, your Honour, after I have sort of commented that on the quantum of the amount, counsel fee and the preparation of the bill for taxing and taxing fee are the two major other items that we want reviewed - for your Honour to look at.  Now, to answer your Honour’s question, the question on what grounds am I asking, I am asking on the grounds of equity, and I submitted my authority, which is put there as a - in my notice there was some authorities submitted, your Honour, as annexure A.

HIS HONOUR:   Yes, I see that document, and I must say, Mr Martin, it seems to me to have nothing at all to do with the issue that is before me.  I mean, you have an obligation to pay costs arising out of an order made by a Justice of the Court on proceedings in this Court.  Those costs have not yet been finalised but that is because some of those items are under challenge at the moment.  But, once that matter is resolved, I can see no basis upon which the taxing officer’s certificate should not issue.  What is happening in some other court has nothing to do with the liability for costs in this Court.

MR MARTIN:   Your Honour, in support of order No 2 that I am seeking, I have got the written submission under order No 2 and I put my case for it.

HIS HONOUR:   Are you speaking now of annexure A?

MR MARTIN:   No, your Honour, I am speaking of - in my written submission if you look at my pages 6, 7 and 8.

HIS HONOUR:   I looked at that; I cannot say at the moment that I have read it in any detail.

MR MARTIN:   I am coming to precisely what your Honour is after.  That is my general justification for order No 2, but the specific justification, your Honour, is Order 71 rule 19.

HIS HONOUR:   But that is to do with the taxation of costs, it is not to do with deferring the issue of a certificate.

MR MARTIN:   It does, your Honour.  Order 71 rule 19 states if the original order suggested that the cost be taxed, then it can be “taxed, allowed and certified”.

HIS HONOUR:   Not “can be”, “shall be”.

MR MARTIN:   “Shall be”.  Now, it is my submission the order of the 5th was an order for costs but it did not include the specific words “to be taxed”.

HIS HONOUR:   I do not think you get very far with that argument, Mr Martin.  Orders are made every day in this Court that an appeal be allowed with costs, an appeal be dismissed with costs, an application be allowed with costs, be refused with costs.  It is clearly understood that that is on the basis that the costs will be taxed unless the Justice of the Court decides to fix costs then and there, which is very rarely done.  So I am afraid there is nothing in that argument at all.  Once an order for costs has been made the bill of costs is lodged if the parties are unable to reach agreement and in the ordinary course the taxing officer certifies the costs and then the amount is quantified.

MR MARTIN:   Your Honour, it is my reading of the Rules ‑ and I have read them a number of times ‑ there was absolutely no objection about the right of a taxing officer to tax the cost.

HIS HONOUR:   That is not what you are saying, Mr Martin.  You put to me a moment ago, as I understood it, that there was some defect in the order or that the order, of itself, simply ordering that one party pay costs, did not necessarily lead to a taxation of costs.  Now, if that is your argument, I rule against you because there is just simply nothing in that.

MR MARTIN:   That is not my argument, your Honour.  My argument is that the order, as it is returned there, allows taxation but it does not allow a certificate to be issued in any interlocutory action.  The certificate for the interlocutory action generally should follow the finalisation of the case.

HIS HONOUR:   I rule against you on that matter, Mr Martin, because that is not the position.  Unless the Court has made ‑ if you look at Order 71 rule 79, it provides that:

Where‑

(a) a proceeding is dismissed with costs;

(b) an application is refused with costs; or

(c) any costs are by a general or special order directed to be paid,

the taxing officer may tax the costs without a further order referring the costs for taxation unless the Court or a Justice, upon the application of the party alleging himself to be aggrieved, prohibits the taxation of the costs.

As I said, sometimes orders are made in interlocutory matters, referring the quantification of costs or the obligation to pay costs until the action has been determined.  But, the proceedings in this Court have been finalised.  Your application for special leave to appeal was refused, so there is no proceeding on foot in this Court now.  There is an order made by Justice Gaudron that the first four named applicants meet the costs of the proceedings that were before her Honour and I can see no basis upon which that order should not take the ordinary course of taxation of costs, subject only to the power of a dissatisfied party to apply to a Justice of the Court to review the costs.

MR MARTIN:   Your Honour, I have read the Rules of the High Court, the Federal Court, the ACT Supreme Court and the Queensland Court and I have also read commentaries on the order for costs.  I am not in any way asserting there is any defect in Justice Gaudron’s order, I am only submitting to your Honour that there is a substantive difference where an order which says, “dismissed with costs” and an order that says “dismissed and costs to be taxed” and it is my humble submission to your Honour that while I have not challenged and while I specifically submitted to the taxing officer that the first four applicants do not challenge the taxing of the bill, at the time that the taxing officer indicated she wanted to sign the certificate, the matter was before this Court.  Special leave to appeal was before this Court.

HIS HONOUR:   Well, it is not now, Mr Martin.  I do not want to spend more time on this.  The order made by Justice Gaudron on 5 September was that the first four named applicants pay the costs of the respondent to that application and, more relevantly, the liquidator of the fifth named applicant.  The proceedings in this Court have finalised in the sense that the application for special leave to appeal has been refused.  I see no basis upon which an order should be made in terms of paragraph 2 of the summons as amended pursuant to the leave which I gave you at the outset.  That disposes of that matter, let us turn our attention to paragraph 1.

I want you to understand that in dealing with these items that you challenge it is really for you to show that the taxing officer has gone wrong in some way, either in principle in allowing the item at all or in refusing your objection.  In other words, I think it is incumbent upon you at least to show on the face of it that there has been some error on the part of the taxing officer.  What do you say about item 13?

MR MARTIN:   Your Honour, that the affidavits that have been filed, which has been put here as annexure A, shows clearly that the liquidator was familiar with the case before the stay application, and his claim that the charges that have been disallowed on the basis that he had been unfamiliar with the case, he had to review the case, can be shown to be patently and demonstrably false, and I have in the annexure in my submission picked out the five affidavits that were filed in the Supreme Court.

HIS HONOUR:   But the taxing officer’s statement of grounds deals with item 13 at considerable length and, as I read it, accepted that there were some documents which the liquidator would have seen or should have seen, but within respect of one particular document, the taxing officer accepted the liquidator’s submission that he had not previously perused what is referred to as annexure GG, and the taxing officer proceeded to allow, what, $167.40 on the basis of so many folios and at the appropriate rate.

MR MARTIN:   Your Honour, as I submitted to the taxing officer, the bill of costs has been prepared in such a cumbersome fashion that unless it is analysed one gets misled to what the substance of it is. This was a stay application against the liquidator’s own orders sought from the registrar on 22 August and he initiated those orders, he got those orders, and in addition to that there were other matters in the Supreme Court, action No 590 of 94 which he initiated on 1 September 1994, and action No AC21 in the Supreme Court, which he was in war with in July or August, all of that from the affidavit that he filed in the Supreme Court would indicate that the claim that he made that he needed to familiarise himself with the background to this case and in addition to that, within two hours of the Federal Court pronouncing its decision, the liquidator made a false entry in our premises at 8 Grant Place and demanded ‑ ‑ ‑

HIS HONOUR:   I do not really want to get involved in that, Mr Martin.  If you look at what is described as objection No 4 on page 3 of the taxing officer’s statement, you will see a lengthy and very detailed examination of the objection that was taken and the basis upon which the taxing officer disallowed the objection.  Now, what I need from you is succinctly some indication that the taxing officer went wrong in some way on the matter of principle or that - there is really no exercise of discretion as I read this.  The taxing officer was satisfied that that particular annexure had not been perused and made an allowance accordingly.  Now, what are you inviting me to do about that?

MR MARTIN:   Your Honour, the taxing officer was completely misled by submissions made to her that somewhere somehow the solicitor and  the liquidator were brought in for this stay application from the cold.  Her whole lengthy submission there, if you read it carefully you will find out that was the misconception on which she was misled.

HIS HONOUR:   All right.  Well, I take I then that your case is to be found in respect of this item in your written submission.  Is that right?

MR MARTIN:   Yes, your Honour.

HIS HONOUR:   And where, in particular in relation to item 13?

MR MARTIN:   Your Honour, if you look at the bottom of page 2.

HIS HONOUR:   Yes, that is going to the top of page 4, is it?

MR MARTIN:   At page 3 and right up to the top of page 4.  And if your Honour is looking for succinct item, if your Honour can look at annexure B in the taxing officer’s enclosure.

HIS HONOUR:   Annexure B?

MR MARTIN:   - - - in the taxing officer’s - - -

HIS HONOUR:   That is the memorandum of fees, is it?

MR MARTIN:   Yes, your Honour.

HIS HONOUR:   Very well.

MR MARTIN:   Your Honour will see that from the bill given from 2 August and the same counsel was involved, the same set of solicitors were involved, at least from 2 August, and it is my submission they were directly involved in it from 30 June.

HIS HONOUR:   All right.  Well, now, what about item 15?  What do you say about that?

MR MARTIN:   The same thing, your Honour.  This was allowance made to the solicitors for having a conference with the counsel while the counsel had already, just a matter of days ago, appeared in this particular order which brought about the stay application.

HIS HONOUR:   Well, as I understand your argument there, it is that the solicitor and counsel should have been familiar with these issues because of the proceedings in the Supreme Court, is that right?

MR MARTIN:   Yes, your Honour.

HIS HONOUR:   All right.  Now, what about item 16?

MR MARTIN:   Item 16, your Honour, that under the Rules of the Court, I mean, preparation of the - there should only be one - just bear with me for a minute, your Honour.  For the drawing of the affidavit, the Rules of the Court - I submit to your Honour that the drawing of affidavit includes instructions for the affidavits, et cetera, and since item 17 has been allowed then item 16 should not be allowed.

HIS HONOUR:   Yes, I understand that.  What about item 19?

MR MARTIN:   Item 19 is that the perusal of the Federal Court’s order, as I submitted to your Honour, within hours of the Federal Court pronouncing its judgment the liquidator forcefully entered our premises and demanded our immediate eviction.  The liquidator had the orders before even the orders were served on us.  In my written submission it is set out on page 3 under (b).

HIS HONOUR:   Yes, I understand that.  All right, what about what now appears to be items 45 and 46?  What distinction, if any, are you drawing between those two items or are you - both of them were disallowed - no, I am sorry, that is not right.  Your objection was allowed in part to those two items and the bill was reduced by $121.10.  What do you say, that it should not have been allowed at all, or it should have been allowed at a lesser figure?

MR MARTIN:   It should not have been allowed at all because, your Honour, that is - under preparation and instructions for brief, the solicitor to the liquidator is asking for a second familiarisation with the case, while he challenged the first familiarisation because he was already aware of it and there is affidavits under annexure A that clearly sets out that.  It shows that.  He is now coming back under preparation instruction brief reasking for a second familiarisation while under items 13, 15, 16 and 19 he was not justified for the first familiarisation..

HIS HONOUR:   Yes, I understand that.  That is really it, Mr Martin.  They are the items that you are inviting the Court to review and deal with in accordance with your submissions, oral and written.

MR MARTIN:   No, your Honour, because there are two other major items in page 4 of my written submission.

HIS HONOUR:   Where do I find that dealt with in the ‑ ‑ ‑

MR MARTIN:   It is in my written submission, page ‑ ‑ ‑

HIS HONOUR:   No, how was that dealt with by the taxing officer?

MR MARTIN:   Under page 13, objection No 16, your Honour.  Page 13 and 14, the taxing officer dealt - - -

HIS HONOUR:   All right.  I have your argument there which is essentially really the same as relates to some of the other items, namely, that counsel should have been familiar with this matter from appearance in the Supreme Court proceedings, is that right?

MR MARTIN:   Your Honour. if I could refer to my ‑ ‑ ‑

HIS HONOUR:   Just before you do that can you just tell me what the basis of the objection is.

MR MARTIN:   The basis of that objection is that counsel came as an observer; counsel was appointed to appear in the Supreme Court that whole week; counsel appeared in the Supreme Court the whole week; counsel came in and left within an hour after the case started; solicitor for the liquidator conducted the rest of the case and item 360 or 370 was paid for the solicitors there. 

Under annexure B of the taxing officer’s document, you will see counsel has charged 750 for a day previously in the Supreme Court and in the Magistrate’s Court.  Even if any allowance is made it should be only $400 for he certainly left well before 12 o’clock.  It should only be for half a day and the other thing in the manner in which the substantiation of the counsel’s disbursement was not substantiated at the time of the taxing, it was the counsel in the annexure B has signed.  He received it on 18 November which was seven days after the review of taxation was ‑ ‑ ‑

HIS HONOUR:   May I just interrupt you.  You spoke of an affidavit.  Is it an affidavit that is already filed in this Court?

MR MARTIN:   Yes, it is the affidavit of 18 January filed for this summons, your Honour, the same day as the other, your Honour.

HIS HONOUR:   Can you just give me a moment.  Yes, very well, I will take that into account, Mr Martin.

MR MARTIN:   It relates to paragraph 5.

HIS HONOUR:   Yes, thank you.  Now, when I asked you whether the specific items were all, you said “No”.  There is counsel’s fee and there is, what, the preparation of the bill of costs, is there?

MR MARTIN: Yes, your Honour, page No 5.

HIS HONOUR:   Where is that dealt with in the taxing officer’s statement?

MR MARTIN:   Could you bear with me a few seconds, your Honour.  I am having difficulty finding the taxing officer’s ‑ from memory, it is 48.  Objection No 15, pages 10, 11, your Honour.

HIS HONOUR:   Are you complaining all the items 47 to 60 or what?

MR MARTIN:   Yes, your Honour.  If you could read my written submission why it is done.  I am slightly better putting my argument in written form than on my feet, your Honour.  If your Honour could read pages 5 and half of page 6.

HIS HONOUR:   That seems to be an argument, really, that there should be no allowance for preparation, is that right?

MR MARTIN:   Yes, your Honour, and the reason given is that the latter of the eight ‑ ‑ ‑

HIS HONOUR:   What you appear to be saying is that if you had been asked to pay, in the first place, an amount similar to that allowed by the taxing officer on consideration of your objections, then it might be reasonable to expect you to pay the costs of preparing the bill for taxation but not otherwise.

MR MARTIN:   Yes, your Honour, even before the review, the amount that the taxing officer allowed for actual professional legal work was $1,700.  If they had approached it in their letter of the 8th demanding 1,000 or 2,000 - and we made an offer to pay 2,200, I believe, and there is a letter here, and if a demand - in normal circumstances, a solicitor - the letter of the 8th was not a letter of compromise or anything, and if your Honour can read the letter, your Honour would see that it was not.  It was a straight out - after examining the file, they assessed it at that amount.

HIS HONOUR:   All right.  You want me to have regard to the letter of 8 September, do you?

MR MARTIN:   Yes, your Honour, the letter of 8 September.

HIS HONOUR:   Is that in the Court file?

MR MARTIN:   No, your Honour, but it was given.  It is important, your Honour, because - - -

HIS HONOUR:   Well, just let me have it, please, Mr Martin.

MR MARTIN:   Sorry, your Honour.

HIS HONOUR:   Very well, I will take that into account also, Mr Martin.

MR MARTIN:   The taxing officer assumed that that was a letter of compromise.  It was not and Rodgers v Rodgers (1964) that was written is irrelevant because that letter was not a genuine attempt to compromise, or there was not any implied attempt.  Now, the actual bill that was filed was nearly twice as much as that for the amount of about 7,200.  Now, the taxing officer allowed only 1,700 for the actual legal work done, and even if your Honour discard all my objections for the quantum of that part of the bill, it is still an abuse of the process and is an imposition to demand, first of all, 3,650 by letter of the 8th as legal cost when, on taxation, it only came up to 1,700.

HIS HONOUR:   Whether or not it was, Mr Martin, the real question here is whether the taxing officer erred in the way in which she dealt with these items, but I will take into account the letter you received dated 8 September.

MR MARTIN:   Thank you.

HIS HONOUR:   Now, is there anything else you want to put to me?

MR MARTIN:   Yes, your Honour, that it then follows from there that it is vexatious and an imposition of that nature, we should not be then asked to pay the penalty of it by paying the taxing fees on it.  If the taxing fee should be paid, but it should not be paid by us.  Now, the taxing officer - and there was an amount of $150 allowed.  I mean, the manner in which the bill was taxed - was brought for taxation, the bill was brought in and in less than a week, it was set down for taxing.  I was not able to attend it because I had a prior engagement interstate consulting legal opinion on this particular case and other matters.

Now, the taxing officer rang him up and confirmed that that was a genuine one and was a prior one, and the liquidator objected to it and successfully for the adjournment not to be granted.  The taxing officer disallowed it, but still, when it came to charging for an unsuccessful attempt at adjourning the original date for taxation, which was 27 September, she allowed that amount of 150.  If the objection was based on valid ground, you could claim.  Now, the preparation of the taxing bill was 12 pages and I have prepared and gave to the taxing officer that for an amount of 1,700 or 900, according to our calculation, that the - - -

HIS HONOUR:   Just a moment, Mr Martin:  $150 is the total amount allowed, is it not, under items 47 to 60?

MR MARTIN:   No, your Honour.

HIS HONOUR:   Well, unless I am reading it wrongly, that is what it seems to be.

MR MARTIN:   It is not included in the original taxation bill.  $150 was the amount allowed for an unsuccessful objection to an adjournment.

HIS HONOUR:   I am sorry, I beg your pardon.  It is the total of the items allowed under costs of adjournment.  And you say that the adjournment was granted against opposition from the liquidator?

MR MARTIN:   Yes.After it was verified that I was genuine about it, but the liquidator should not be paid for making a vexatious objection for the adjournment.

HIS HONOUR:   Well, I understand your argument in relation to that matter.

MR MARTIN:   The preparation of the bill to charge on review $800 to prepare a bill with the actual professional costs that the taxing officer herself has allowed is at about $1700.  It is disproportionate and it has got no relevance and the discretionary power that the Court uses in the award of costs is for professional costs.  I am not entitled to costs because I am not a professional legal practitioner in the same way preparation of the taxing one, particularly when there are attempts by letter of the 8th, the original letter of the 8th, the demand made and then - the demand made by letter of 8 September was itself an imposition.

HIS HONOUR:   Well, I understand that, Mr Martin.  That is just going over the same ground we have gone over before.  Now, is there anything else you wish to add?

MR MARTIN:   No, your Honour.

MR MARTIN:   No, your Honour.

HIS HONOUR:   Thank you.  Mr Purnell, we are rapidly running out of time.  I am in court at 10.15. 

MR PURNELL:   I can deal with it before then, your Honour.  I will be very brief.

HIS HONOUR:   Very well.

MR PURNELL:   Your Honour, it is incumbent upon Mr Martin to show that there was an error in principle or that the discretion miscarried or that the quantum was so great that no reasonable taxing officer could apply it.  They are the three errors that have to be shown.  There has not been a demonstration, in my submission, of any error of that sort. 

In essence the complaint is that because the liquidator was involved in some other matters, therefore, no legal costs should be allowed either to counsel or to solicitor for appearing in a matter in this Court and the taxing officer in objection No 5 sets out succinctly the matters that we would raise in answer to the majority in reality of the submissions made by Mr Martin, namely, that the stay application in this Court involved different questions to the lower court proceedings and she sets them out there, your Honour, and there is no need for me to go over them again. The other complaint was in relation to annexure GG, which Mr Martin erroneously submitted to your Honour related to matters that were put forward in an application by the liquidator. In fact, GG is an affidavit.

HIS HONOUR:   Where do I find that?  In relation to which item?

MR PURNELL:   I have got it here, your Honour.  It quite clearly was ‑ ‑ ‑

HIS HONOUR:   It is item 13, I think.

MR PURNELL:   Yes, item 14 - sorry, objection No 4 item 13 and it is annexed to his affidavit of 31 August 1994.

HIS HONOUR:   Filed in these proceedings?

MR PURNELL:   Yes, your Honour, in the stay application and your Honour will see that item GG in short relates to the winding up and they were matters that we had not seen and that was found correctly, in our submission, by the taxing officer. 

Lastly, we say this, your Honour, that if your Honour finds that no error has been shown then we would be entitled to the costs of this review application and we would seek those.  That is all I wish to put, your Honour.

HIS HONOUR:   Thank you, Mr Purnell.  Mr Martin, do you wish to say anything by way of reply?

MR MARTIN:   Yes, your Honour.

HIS HONOUR:   I just want you to understand that it is by way of reply.  I do not want you to open up the case again, but if there is anything said by Mr Purnell that you take issue with, let me know.

MR MARTIN:   No, your Honour, I just want to submit that I would appreciate if your Honour could quantify the costs and if your Honour rules against me, what you intend doing for today’s hearing, therefore, we do not have to use up the courts for taxing again.

HIS HONOUR:   No, you will have my reasons in writing.

MR MARTIN:   What I am saying is that if your Honour can also quantify a cost.  One other thing is that an application was made to the taxing officer to put a lump sum and I would only appreciate if your Honour could quantify the ‑ ‑ ‑

HIS HONOUR:   I am dealing with the particular items that are the subject of objection and I will deal with them in accordance with the arguments that I have heard on both sides, so I will reserve my decision on the matter and the Court will now adjourn.

AT 10.10 AM THE MATTER WAS ADJOURNED