McCoombes v Curragh Queensland Mining Ltd
[2001] QDC 142
•14 June 2001
DISTRICT COURT OF QUEENSLAND
CITATION: McCoombes v. Curragh Queensland Mining Limited [2001] QDC 142 PARTIES: MALCOLM ADRIAN McCOOMBES (Plaintiff)
v.
CURRAGH QUEENSLAND MINING LIMITED (Defendant)FILE NO/S: D59 of 1995 DIVISION: PROCEEDING: Review of costs assessment ORIGINATING COURT: District Court Brisbane DELIVERED ON: 14 June 2001 DELIVERED AT: Brisbane HEARING DATE: 12 October 2000 JUDGE: McGill DCJ ORDER: Objections 2, 10, 11, 19, 22, 24, 30, 31 and 35 upheld; objections 4, 14, 36 and 38 upheld in part; other objections disallowed. CATCHWORDS: COSTS – Assessment – review –Uniform Civil Procedure Rules r.742
COSTS – Assessment – notice of objection – whether binding on party liable to pay – whether binding on registrar – Uniform Civil Procedure Rules r.717
COSTS – Assessment – costs of assessment – offer to settle assessment – whether more than one possible – consequence of assessment splitting offers - whether another order appropriate – Uniform Civil Procedure Rules r.721, 722.
COSTS – Assessment – scale items – engrossing – what constitutes
WORDS AND PHRASES – “engrossing”
Re: Feez Ruthning Bill of Costs [1989] 1 Qd.R. 55 – applied
Re: Bain Gasteen & Co’s Bill of Costs [1990] 1 Qd.R. 412 – applied
Garrard v. Email Furniture Pty Ltd (1993) 32 NSWLR 662 – followed
Dalrymple Holdings Pty Ltd v. Gohl (1991) 34 FCR 397 – followed
Adsett v. Berlouis (Writ 783/91, Thomas J, 15.1.93, unreported) – distinguishedCOUNSEL: M. Grant-Taylor SC and S.P. Gray for the plaintiff
N.E. Ulrick for the defendantSOLICITORS: R Rees & Sydney Jones for the plaintiff
Bain Gasteen for the defendant
This is a review pursuant to Uniform Civil Procedure Rules r.742 of the decision made by a deputy registrar on a reconsideration under r.741 of decisions made in the course of conducting an assessment of a costs statement filed on behalf of the plaintiff. On 7 July 1999, Senior Judge Trafford-Walker ordered by consent that the action be adjourned to the settlement list, and that the defendant pay the plaintiff’s costs of and incidental to the action to be taxed on the District Court scale where the amount recovered exceeds $50,000. Pursuant to that order, on 1 December 1999 an application for costs assessment and costs statement was filed in the court by the solicitors for the plaintiff. The costs statement claimed $24,607.85 for professional costs and outlays of $16,044.40, a total of $40,652.25. It was 210 pages long, and included 1,432 items.
On 17 January 2001, the defendant filed its objections. There was a general objection to the manner of claiming for perusals and photocopying for counsel’s brief, and in addition there were 640 specific objections, although many of those were in substance the same objection which arose in respect of a number of particular items in the costs statement. An assessment was held over a period of 10 days in March and April 2000. On 20 April 2000, the deputy registrar directed that any application for reconsideration be filed and served by 19 May 2000. On that day, both the plaintiff and the defendant filed applications for reconsideration. On 26 May 2000, responses to the respective applications were filed by each of the parties. On 1 September 2000, the deputy registrar allowed in part the plaintiff’s application for reconsideration, and allowed a total of $19,388.90[1], which included costs associated with the reconsideration. A taxing fee of $1,968 was ordered to be paid by the plaintiff. The defendant’s application for reconsideration was unsuccessful. On 15 September 2000, the application before me was filed on behalf of the plaintiff; written submissions on behalf of the plaintiff were filed on 2 October 2000, and on behalf of the defendant on 6 October 2000. The matter was argued before me on 12 October 2000. Under r.742(4)(b), unless the court otherwise directs, a party may not raise any ground of objection not stated in a statement of objection or raised before the registrar.
[1]This was net of a set-off of $5,224.74 for the defendant’s costs of the assessment.
History of the proceeding
The action was commenced by a writ filed in the Supreme Court on 10 March 1993 claiming damages for negligence, breach of contract and breach of statutory duty on the part of the defendant, the plaintiff’s employer. The statement of claim was delivered on 8 July 1993 and a defence on 8 October 1993. An application on behalf of the defendant for further discovery and for a further Statement of Loss and Damage on behalf of the plaintiff was filed on 8 December 1994, and on 21 December 1994 Derrington J made an order for the plaintiff to file and serve a further supplement to the Statement of Loss and Damage pursuant to O.39 r.29C of the rules of the Supreme Court. The application for further discovery was adjourned to a date to be fixed. The plaintiff was ordered to pay the costs of the application, not to be enforced until the determination of the action and to be on the District Court scale. According to a costs certificate filed on 28 April 1995, the costs payable pursuant to that order were fixed by the taxing officer at $1,428.
On 5 January 1995 a consent was filed, signed on behalf of both the plaintiff and the defendant, for an order that the action be remitted to the District Court at Brisbane. Pursuant to that consent, a deputy registrar on 6 January 1995 ordered by consent “that the within action be remitted to the District Court at Brisbane”. A certificate of readiness signed by the solicitors for both parties was filed on 4 January 1999, and the following day an entry for trial was filed by the solicitors for the plaintiff. A further amended Entry of Appearance and Defence on behalf of the defendant was filed on 30 June 1999, and a statement of claim was filed on 6 July 1999; this was a copy of the statement of claim delivered on 8 July 1993, and its filing appears to have arisen from an incorrect assumption that such a step was necessary under the Uniform Civil Procedure Rules rather than because of any desire to amend the pleading.
On the first day of the assessment objection was taken to all of the costs prior to the matter being remitted to the District Court, on the basis that no order had been made in the Supreme Court to deal with those costs. Prior to 1 March 2000, s.77 of the District Court Act, which dealt with removal of proceedings from the Supreme Court to the District Court, provided in relation to costs in subsection (6) as follows:
“The costs of the parties in respect of proceedings remitted to a District Court by an order made under subsection (3) –
(a) incurred subsequently to the order shall be allowed according to the scale prescribed in District Courts;
(b) incurred before the order
(i) in the case of proceedings referred to in subsection (1)(a) shall be in the discretion of the Supreme Court or a judge thereof; and
(ii) in the case of proceedings referred to in subsection (1)(b) shall be allowed according to the scale prescribed in the Supreme Court.”
This action fell within subsection (1)(a). The order by which the matter was remitted to the District Court did not make any provision for costs and under that subsection there was no jurisdiction in the District Court which could have been exercised by Judge Trafford-Walker when making the order for costs. There was no order which authorised the assessment of the costs prior to remittal. After this matter was raised, the plaintiff made application to a judge of the Supreme Court, who on 3 April 2000 ordered the defendant to pay the plaintiff’s costs of and incidental to the action up to the date of remitter to be assessed in accordance with the District Court scale applicable to matters where the amount recovered was in excess of $50,000. Her Honour also ordered that the defendant pay the plaintiff’s costs of that application, to be assessed if not agreed. Her Honour, in her reasons on 3 April 2000, was of the opinion that there was power under r.686 for the District Court judge to make an order in respect to the costs of the proceeding prior to remitter, but that that power had not in fact been exercised, so it was appropriate for an order then to be made by Her Honour to deal with those costs.
Section 77(6) was amended by s.20 of the Justice Legislation (Miscellaneous Provisions) Act (Number 2) 1999, so that para. (b)(i) read:
“In the case of proceedings referred to in subsection (1)(a), must be assessed on the basis the proceedings had been started in the Supreme Court if the Supreme Court orders, or, in the absence of an order, as if the proceedings had been started in the District Court.”
That amendment took effect on 1 March 2000. The effect of the amendment is, in my opinion, to make it clear that this provision is concerned with the scale on which the costs are to be assessed, and does not now impose any limitation on a District Court judge from dealing with the costs of the whole of the proceeding after it has been remitted to the District Court pursuant to Uniform Civil Procedure Rules r.686.
It may be that the amendment is irrelevant here because prior to the amendment the parties had an accrued right to have the assessment conducted in accordance with the former law, but in my opinion it would not matter if the section in its amended form did apply, because what has been done by way of assessment is consistent with the provisions of that section in its amended form, as well as being in accordance with the order made by Her Honour, in relation to the costs incurred while the action was in the Supreme Court.
The effect of a Notice of Objection
One issue which arose in relation to a number of objections is the extent to which the content of a notice of objection filed by a party liable to costs under r. 711 is binding on that party, or on the registrar. It was submitted on behalf of the plaintiff that the defendant should have been confined to the objections raised in the notice it filed, and the deputy-registrar had been wrong to disallow items not objected to, or to disallow items on grounds other than those raised in the notice of objection. This is a matter of general importance, on which there is some conflict in earlier decisions.
The scheme of the Uniform Civil Procedure Rules Division 5 dealing with the procedure to assess the costs requires a cost statement to be filed and served: rr.710, 711. There is no obligation on the party liable to pay to file a notice of objection, even though if one is to be filed, it must be filed and served at least two business days before the day fixed for the directions hearing: r.717(1), (6). Rule 717 provides:
“(1) A party on whom a costs statement is served may, by notice, object to any item in the statement.
(2) The notice of objection must –
(a) number each objection; and
(b) give the number of each item in the costs statement to which the party objects; and
(c) for each objection – concisely state the reasons for the objection identifying any issue of law or fact the objector considers the registrar must consider to make a decision in favour of the objector.
…
(4) If the same objection applies to consecutive or near consecutive items in a costs statement, the notice need not separately state the reasons for objecting to each of the items.
(5) Also, if there are a number of associated items, the objection may be in the form of an objection to a common issue related to the associated items.”
If no notice of objection is filed, and the party liable for the costs does not attend the directions hearing, the registrar may assess the costs without considering each item, although the party entitled to costs if not satisfied with the assessment may require the registrar to assess the costs by considering each item: r.719. The rules do not specifically state that otherwise the registrar is required to consider each item, but the inference is that that will occur unless r.719 applies, or unless r.718 applies. That rule provides that if a notice of objection relates only to particular issues or a particular item, the registrar may limit the assessment to the resolution of the matters raised in the objection, and otherwise assess the costs under r.719.
The rules therefore contemplate that an assessment may be conducted, in certain circumstances, on a “broad brush” approach without detailed consideration of each item, or may proceed by considering each item, or may proceed by considering particular items which are in dispute, and otherwise assessing on the broad brush basis. However, the rules never oblige a registrar to assess on a broad brush basis, and the registrar is always entitled to consider the costs statement item by item. The overriding obligation is that the assessment must be on the standard basis: r.708. The registrar must consider the matters referred to in r.707. A solicitor’s entitlement to costs is limited by the scale: r.690(1). Further, the registrar can not make a global assessment under r.719 if the party liable for costs does attend the directions hearing required to be fixed by r.710(2), and a party who does not file a notice of objection may nevertheless appear at the directions hearing. In those circumstances, there cannot be a global assessment under r.719. These provisions show that the registrar is not just adjudicating on the particular disputes raised by the parties; her duty under the rules is to assess the costs in accordance with the rules and the scale. The party liable to pay the costs has a right to attend the assessment and to be heard in relation to any matter arising on the assessment: Dalrymple Holdings Pty Ltd v. Gohl (1991) 34 FCR 397 at 403. The right to be heard in the directions hearing is not made conditional upon having filed a notice of objection.
It was submitted on behalf of the plaintiff that r.717(2) was a mandatory provision, so that the party objecting was confined to the reasons for objection identified in that objection. This argument was rejected by the deputy registrar, on the ground that her obligation when assessing costs was to determine whether they met the test identified in r.703(2), and that, even in the absence of written objection, she had an obligation to examine the bill and hear a party wishing to be heard.
There is no rule which expressly confines a party on an assessment to a ground of objection set out in the notice of objection. It may be instructive to look at the rules which confine parties as to the grounds which may be raised subsequently, on reconsideration or review, under Division 7. A party liable for costs on a reconsideration is confined to any objection “previously taken” (r.739(6)) but the subrule does not require that objection to have been taken in any particular way; it does not say that the party is confined to any objection included in the notice of objection filed pursuant to r.717. If the party liable were to be bound by the content of the notice of objection, that subrule would have been drafted differently. Further, r.742(4)(a) confines a party on a review to any ground of objection stated in a statement of objection (under r.739) or raised before the registrar. That also indicates that matters can be raised before a registrar without their having been included in the written document.
The rules do not confine a party to the notice of objection for the reason that the registrar’s function under the rules is not simply to adjudicate on disputes raised by the parties. Her function is to determine what amount is properly allowable by way of costs in accordance with the rules. She is an officer of the court, and a person seeking an assessment of costs carries the onus of persuading her that the costs sought are appropriate in accordance with the rules. The registrar has a duty to determine what amounts should properly be allowed under the bill, which must be discharged whether or not the party liable to the costs appears to contest the assessment, although the failure of a party to object to the bill may be taken into account by her: Garrard v. Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 678 per Mahoney AP. Accordingly, it is not appropriate for the registrar’s consideration of particular items in a costs statement to be confined by the terms of the notice of objection filed by the party liable to pay the costs. She is entitled to consider items not objected to, and it follows that she can consider items objected to on grounds other than those raised in the objection.
It necessarily follows that the party liable is not confined to the grounds of the objection, although any significant disparity between the matters argued and the grounds of the notice of objection, particularly where that is not explicable by issues arising in the course of the assessment, would obviously be a matter relevant to the costs of an assessment, and could well be a relevant circumstance in determining whether it was appropriate to order otherwise under r.722(4). It may have other consequences. A notice of objection is therefore not irrelevant, but it is not confining in the way that a pleading is, since it is not a document which defines the issues to be determined on the assessment. That is consistent in my opinion with the general approach in Dalrymple Holdings, and in Garrard. I do not consider that these cases are distinguishable on the basis that in the present case a notice of objection was filed. It would be counter productive to say that a party had a general right to appear and be heard only if no notice of objection was filed.
Counsel for the plaintiff referred me to the decision in Adsett v. Berlouis (Writ 783/91, Thomas J, 15.1.93, unreported) where his Honour made a direction that the respondent deliver a list of all objections on which he intended to rely and further directed that
“The respondent shall be confined upon the taxation to such objections as are contained in the objections so delivered or to such objections as reasonably arise out of such objections as are so contained.”
His Honour noted, with some disapproval, that it had been a practice to allow objections to be taken late and that no one had ever been deprived of the opportunity of changing ground during an assessment; his Honour thought that such practices ought to be tightened up a little.
There are three points to note in that decision. The first is that the fact that his Honour made a direction confining the party liable on the bill to the grounds stated in the notice of objection suggests that he thought that in the absence of such a direction the party would not be so confined. The second is that his Honour there was dealing with a situation where the party liable was being unusually uncooperative; he did not wish to be directed to deliver his objections within any time at all. That is, I think a different situation from one where the party liable has put in a notice of objection, and the only question which arises is whether the registrar is entitled to disallow an item of costs other than on a ground raised in the notice of objection. The third point is that it does not appear that his Honour had considered the general duty of the registrar on an assessment which arises whether or not there is a notice of objection, or whether or not a particular item is objected to, discussed by the Court of Appeal in Garrard (supra). Accepting therefore that it may be appropriate, at least in some cases, for a respondent to be confined to the content of a notice of objection, the decision does not establish that in the ordinary case the party liable will be so confined, much less that the registrar is so confined.
The plaintiff also relied on the judgment in O’Neill v Waugh (Morley DCJ, 30.8.95, unreported) where his Honour said that the taxing officer was but deciding upon issues between the parties, and was simply to go through those items to which objection was taken and decide the issues raised in the objection. That approach seems to me with respect to be inconsistent with the decisions in Garrard (supra) and Dalrymple Holdings Pty Ltd (supra) and with the provisions of the rules to which I have referred. In my opinion the approach in those cases is in accord with the true construction of the relevant provisions of the Uniform Civil Procedure Rules, and they should be followed in preference to the decision in O’Neill v Waugh.
It is not difficult to think of a situation where it would be quite inappropriate to confine a respondent to matters raised in the notice of objection. A particular item in a costs statement may be claimed under item A in the scale of costs, and the party liable may object that the work properly falls within item B. But the registrar may conclude after considering the point that the work really falls within item C, and that ruling may have consequences for other work claimed in the costs statement which was claimed within item B and not objected to (because the solicitors for the other party also thought it should be claimed under item B) but which consistent with the earlier ruling ought to be allowed under item C. The registrar ought to be able to apply the ruling consistently throughout the costs statement, and the party liable ought to be able to submit, in relation to particular items not otherwise objected to, that consistently with the earlier ruling that item ought to be dealt with under item C. Examples such as this could easily be multiplied. This simply demonstrates that it is unrealistic to approach a task like this on the basis that the only matter for determination is the resolution of particular points raised by the party liable in the notice of objection.
In my opinion, the true position is that the registrar is not confined by the notice of objection. She is entitled to disallow or reduce items not objected to, if she thought on her examination of the bill that there was good reason for doing so, and she is entitled to disallow on one ground an item objected to on another ground. I do not accept that the result is likely to be that the assessment will degenerate into chaos. This does seem to have been an unusually long and difficult assessment, but there is no reason to think that it became chaotic.
Objection 1
In the course of preparing for trial, the plaintiff’s solicitors obtained a copy of a report submitted to the Department of Mines and Energy concerning the incident in which the plaintiff was injured. According to the deputy registrar, who saw the report, the document was four pages in length and largely a tick box document, although there was a three line handwritten description of the accident on the last page. The deputy registrar found that this description was consistent with the account of the accident given by the plaintiff to his solicitors when instructions were taken on 14 October 1991. A copy of the document was sent by the solicitors to the plaintiff for his consideration and comments thereon. Item 24 claimed for photocopying expenses, and item 33 the cost of postage; the fee for the letter was included in the claim at item 1392, which in accordance with item 27 in the costs scale included all correspondence with the plaintiff. The defendant objected that it did not further the action to brief the plaintiff with this document. It was submitted on behalf of the plaintiff that it was appropriate to obtain instructions from the plaintiff in relation to a form which had been prepared on behalf of the defendant, and that this was part of the solicitor’s obligation to obtain instructions from his client about the conduct of the action.
In my opinion, the essential question is whether there was any good reason why it was appropriate, in order to enable the plaintiff’s claim properly to be pursued, for the plaintiff to be informed of the contents of this document. That depends very much on the particular contents of the particular document. In many circumstances it would be appropriate to seek the plaintiff’s instructions on such a document, or even confer with the plaintiff about the contents of such a document. But I do not accept that it is necessarily appropriate for the solicitor to seek instructions from the client on any document coming from the defendant which says anything about the incident, even if it is superficial and entirely consistent with the plaintiff’s account. Whether this particular document fell into a category where it was not necessary to obtain instructions from the client was, in my opinion, a matter which was properly for the deputy registrar to determine, and she has not been shown to have proceeded on any incorrect basis, nor is her decision obviously wrong. Objection 1 is therefore disallowed.
Objection 2
At the time when the plaintiff was injured the Workers' Compensation Act 1916 provided in s.9A(2) that, in such an action, the plaintiff must serve a copy of the Writ of Summons on the Workers' Compensation Board and file an affidavit as to such service in the court before taking any other step in the action. It was then usual to plead in the statement of claim that a copy of the writ had been served and that an affidavit deposing such service had been filed, and that was done in para. 9 of the statement of claim delivered in this action. Item 54 in the costs statement claims for drawing the affidavit of service on the Board, and Item 56 is a claim for a photocopy of the affidavit for the brief to counsel.
Both of these items were objected to by the defendant on the ground that this was a matter covered by item 43 of the costs statement, which in accordance with Item 1 of the Schedule of Costs in the District Court included a reference to “affidavit of service”. This objection was overruled, the deputy registrar evidently taking the view that Item 1 in the Schedule referred to an affidavit of service of the plaint on the defendant, but the deputy registrar disallowed item 56 on the ground that the question of whether the Board had been served was never in issue and that including copies of the affidavit in various briefs to counsel amounted to overcaution on the part of the solicitors for the plaintiff, and was not necessary.
On behalf of the plaintiff it was submitted that it was appropriate for the affidavit to be briefed in relation to drawing the statement of claim, where such service was pleaded, even if the document ought not to have been included in subsequent briefs, so that this item was properly claimed. The defendant submitted that the information was not necessary for the statement of claim, which appeared to have been prepared leaving the date of service blank for the plaintiff’s solicitors to complete, suggesting that counsel was not actually briefed with, or did not read, the affidavit. The statement of claim delivered on 7 July 1993, a copy of which was filed on 6 July 1999, was obviously prepared with the date of filing of the affidavit of service left blank, and the particular date subsequently typed in, but the date of service on the Board was included in the document when it was originally prepared.
Assuming that this was, or was directly based on, counsel’s draft, that suggests that counsel was aware of the date of service on the Workers' Compensation Board, which is consistent with the affidavit of service having been included in the brief to draw up the statement of claim without instructions as to the filing date. Indeed, it may have been filed after the brief was sent. It would not have been difficult to draw a statement of claim which assumed that the requirements of the statute had been complied with, and allowed blanks for the appropriate dates to be inserted, but including a copy of the affidavit of service on the brief to draw the statement of claim was correct. It appears from the costs statement that counsel was briefed to draw the statement of claim, and it is not clear from the deputy registrar’s decision that this affidavit was not included on that brief; there is no finding to that effect. Attention seems to have been directed rather to the inclusion of the document on later briefs.
In the absence of some dispute as to service on the Board, the inclusion of the document in later briefs was inappropriate. Some barristers do sometimes find it quite annoying to have to wade through a number of documents which have been included in a brief for no good purpose, and they could be expected to approve a rule that costs should not be allowed for documents which a solicitor continues to brief after they have ceased to be relevant. Nevertheless, I do not think that is the correct principle. If a copy of this affidavit was properly included in one brief to counsel, the cost of it is properly recoverable regardless of what was done with it subsequently. The argument for the defendant is not supported by the appearance of the statement of claim as filed, nor by any finding made by the deputy registrar. In my opinion, there has been an error of principle made here by the deputy registrar, and I allow the objection to the decision on Item 56, an amount of $2.80.
Objection 3
This objection concerns a number of items for attendances on, or written correspondence with, the plaintiff in connection with a request by the defendant’s solicitors that the plaintiff undergo an examination by an orthopaedic surgeon for the purposes of a report, and that the plaintiff authorise the treating orthopaedic surgeon to provide a supplementary report to the solicitors for the defendant. The defendant has consistently submitted that these items ought not to be allowed as they were covered by item 1392, which made a claim in terms of scale item 27. The relevant part of that item said that it covers:
“Instructions for brief for counsel, or brief notes for solicitor where no counsel employed on trial, including –
(a) all attendances on, and correspondence with, the party and the party’s witnesses; and
(b) all necessary perusals and work in connection with the preparation for hearing. …..”
The argument before the deputy registrar was that these costs were payable on the basis that any such medical examination was to be undertaken at the cost of the defendant, but that argument was not upheld by the deputy registrar, nor relied on before me.
The submission before me was that item 27(1)(a) was only concerned with attendances on and correspondence with the party for the prosecution of the plaintiff’s claim, and these should not be charged as part of an item dealing with the preparation of the plaintiff’s case at trial. The deputy registrar’s ruling was that item 27 on its face covered all attendances on and correspondence with the party, so these were not claimable as separate items, although they were properly taken into account when determining the amount allowable under item 1392, which was the claim under scale item 27, where $3,000 was claimed and $2,000 allowed. The deputy registrar said that regard was had to the work performed in respect of these various items covered by objection number 3 when considering the global amount at item 1392. There is no reason to doubt that proposition.
This, in my opinion, is an issue which turns on the proper construction of the scale item. There are a number of items in the scale of costs which allow a single sum to cover a range of work, which could have been split up into distinct parts, with each part charged for separately. The approach was to allow lump sums for various parts of the litigation process which commonly occur together. One consequence of this approach is that it simplifies the assessment of costs, although it has the disadvantage that the assessment will be more on a “broad brush” basis. In my opinion, it is undesirable for this approach to be complicated by reading into the words in an item limitations which are not expressed, so as to restrict the ground covered by the item. I think it is of some significance that the limitation “in connection with the preparation for hearing” appears in para. (b) but not in para. (a). The plaintiff’s argument is really an attempt to extend that limitation to para. (a), and is not justified by the words of the item. This objection is disallowed.
Objection 4
This objection relates to items 151, 165, 197 and 234. Apparently on 18 February 1994 the plaintiff’s solicitors received from the defendant’s solicitors a form of authority to Medicare which the plaintiff was asked to execute: item 147. This was forwarded to the plaintiff under cover of a letter which gave advice in relation to the request, claimed in item 151. The form of authority was received and executed by the plaintiff on 4 March (item 165 – perusing). On 28 April there was a further letter from the solicitors to the plaintiff (item 197) passing on a request from the defendant’s solicitors that the plaintiff identify services relevant to the incident on a schedule of Medicare benefits, and return this to them. The plaintiff’s argument is that these items should be separately allowed because they were undertaken specifically at the request of the defendant, and not as part of the preparation of the plaintiff’s case of the trial. This in substance involves the same argument as objection number 3; it is an attempt to read into para. (a) of item 37 the limitation contained in para. (b). In my opinion, that attempt is unjustified. It was appropriate for this work to be taken into account when assessing the quantum to be allowed under item 1392 of the costs statement.
Item 234 is a claim for perusing a letter from the defendant’s solicitors “requesting we advise when they could expect to receive a copy of the plaintiff’s Medicare claims history”, according to the costs statement. This was objected to on the ground that “this information should have been provided to the defendant at an earlier date. The defendant should not have to indemnify the plaintiff for this request.” The deputy registrar appears to have accepted this argument and concluded that there had been sufficient time to receive and provide the information so that perusal of this letter was not necessary or proper on a standard basis.
In the immediate sense, of course, it was necessary and proper for the plaintiff’s solicitors to read any letter they received from the defendant’s solicitors, but if additional work had been made necessary because of a deficiency on the part of the solicitor, that is not a matter which results in extra costs being payable by the other party. The deputy registrar, in her decision on the reconsideration, referred first to item 187 on p.29, which the plaintiff agrees was the letter which item 234 was following up, but then spoke of the letter at item 181 said to have arrived on 22 March 1994. But there is no item dated 22 March 1994, and Item 181 (dated 17 March 1994) is a letter by the plaintiff’s solicitors to a Mr. Lau. The date for item 187 is 22 April. The deputy registrar disallowed item 234 on the basis that over two months had elapsed, which had allowed sufficient time for the plaintiff’s solicitors to provide the information sought. It seems to me that the deputy registrar has misread the month attributable to item 187 as March, and this has led to an incorrect understanding of the factual situation.
However, the defendant submitted that the letter, item 234, was really following up the long overdue statement of loss and damage, and was properly disallowed even though it also referred to the Medicare history. There is, however, no basis upon which I can resolve that point, since there is nothing more before me as to the content of this letter, and further evidence is not ordinarily admissible on a review: r.742(4)(a). In circumstances where there has been shown to be a slip by the deputy registrar, I think this item should be allowed. Objection number 4 is therefore allowed in part, in the sum of $15.50.
Objection 5
The letter at item 181 is described in the costs statement as:
“Letter to Mr. T. Lau referring to our letter of 24th November last, enclosing plaintiff’s executed form of authority and again requesting that he provide us with copies of plaintiff’s income tax documentation for the period from the financial year ended 30 June 1988 to the present time.”
The defendant objected to this letter on the ground that the solicitors had originally forwarded a request for copies of the tax returns on 24 November 1993, and the authority should have been provided with that request, so that this letter was unnecessary. The original letter was item 129. In the reconsideration, the deputy registrar allowed for a short letter under item 97(4) in the scale of costs, which refers to “a short letter of a formal nature sent or received forwarding documents without comment or a letter to the like effect”. It was submitted on behalf of the plaintiff that the letter concerned did more in that it repeated the request to the accountant and informed him of the scope of the request.
I agree that the fact that the letter is short is not the determinative factor, but to read the sub-item as being confined to letters forwarding documents “without comment” ignores the concluding words “or a letter to the like effect”. The approach of the deputy registrar here was that nothing new was said in this letter, so that in substance all it did was forward the authority which Mr. Lau had sought. This involved a conclusion in favour of the plaintiff that the plaintiff should not be deprived of all the costs associated with this letter on the basis that the authority ought to have been sent earlier, but also involved a conclusion that all that was reasonably necessary at that point was a short formal letter enclosing the authority without comment, and the repetition of the request was not something for which the other party should pay. In my opinion, that view was open to the deputy registrar, and has not been shown to be erroneous. Objection number 5 is disallowed.
Objection 6
Item 232 claims for perusing 37 folios of documents discovered by the defendant. The defendant objected on the ground that this matter was covered by item 27 on the scale, which include “all necessary perusals and work in connection with the preparation for hearing”. The plaintiff however relied on item 39, which covers:
“Perusing deeds, correspondence, accounts and documents, if long and necessary, and if the registrar considers that allowance should be made in addition to item 27 …”
The deputy registrar in her decision on the reconsideration stated:
“On a proper construction of item 39, the words ‘if long and necessary’ should be referenced to the nouns ‘deeds, correspondence, accounts and documents’, not the verb ‘perusing’. In other words, what is ‘long and necessary’ is what is being perused, i.e, the ‘deed, correspondence’. Therefore the test should be under item 39, is the document for which perusal is being claimed a ‘long’ document and a ‘necessary’ document?”
She made reference to the content of the documents, and concluded that none of them met the requirements of being individually “long and necessary” as required under item 39 of the scale.
With respect, I do not agree with this construction of item 39. Here the word “perusing” is used as a verbal noun, and in my opinion the words “if long and necessary” govern “perusing” rather than the various items perused. In my opinion, the word “necessary” more naturally applies to the former, since what is important is not whether the document perused was “necessary”, but whether perusing it was necessary. There was a time when a certificate of readiness for trial in the Supreme Court was quite a lengthy document, and it was certainly a necessary document in order to enable the litigation to be carried forward, but because it was in a standard form it was not necessary for a solicitor to “peruse” the full certificate of readiness every time he saw one of them. There will be other examples.
Perusal does not just mean looking at the document; it means, as the deputy registrar correctly said, careful reading with a detailed consideration: Re: Feez Ruthning’s Bill of Costs [1989] 1 Qd.R. 55 at 74. A situation may arise where a lengthy document, which is the foundation of the plaintiff’s claim, only requires consideration of one particular clause under which an amount claimed is said to be payable, so that little attention would need to be given to the rest of the document. The document would be long and necessary, but relatively short perusal of it would be required. On the other hand, a fairly short home made will might require perusal for quite a long time in an attempt to work out what it means, or what it could mean. As well, it would be an unsatisfactory situation if one long document requiring perusal would come within item 39 but one hundred short documents, requiring the same amount of perusal overall, would not.
In my opinion, item 39 can be seen to operate more sensibly if it applies in a situation where perusal rather than a more superficial examination is necessary, and the perusal was long, that is, it took so much of the solicitor’s time that it would be appropriate to make some special allowance under this item rather than have the perusal covered by the global item 27 to which I have referred. In my opinion, both the literal and the purposive constructions of this item led to the same result. It follows that in my opinion there was an error of principle in the approach adopted by the deputy registrar in that she has adopted what is in my opinion the wrong construction of item 39. She erred in proceeding on the basis that it was necessary for the individual documents in the bundle to be “long and necessary” before perusal of them could activate the discretion in that item. On the construction that I adopt, what matters is whether it was necessary for there to be long perusal of the documents as a whole.
The deputy registrar found, and there is no reason to doubt this conclusion, that on the test to which I have referred some documents in the bundle required perusal and others did not. Discovered documents are likely to include documents which require perusal, but not infrequently include documents which do not. That establishes the proposition that some perusal of the bundle was necessary, but the difficulty is that there is no express finding on whether or not the perusal of those documents in the bundle which did require perusal would have been “long”, and if so whether it was appropriate as a matter of discretion to have made an allowance additional to that made under item 27. It is not even clear whether the 37 folios represented the whole of the documents, or that part of the document which the solicitor was claiming justified perusal. There is also the consideration that presumably some allowance has been made for this in fixing the amount allowed under item 27.
In my opinion, item 39 was concerned with a situation where perusal of the various stated documents was necessary and of unusual length in terms of the ordinary run of litigation, so that it could be said that item 27 would not cover such perusal as part of the ordinary process of preparation for trial. Ultimately, I am not persuaded the perusal of all or even some, of 37 folios of discovered documents as part of the preparation of the plaintiff’s case in a matter of this nature, would be sufficient to take this outside the ordinary run of perusal which the plaintiff’s solicitor might be expected to undertake in the ordinary case, so I am not persuaded that it was appropriate for an allowance to be made additional to the allowance under item 27. This objection is therefore not allowed.
Objection 7
Item 241 in the costs statement is a claim for drawing the plaintiff’s draft statement of loss and damages (32 folios) and item 242 is a claim for engrossing it for forwarding to the plaintiff for his consideration and to supply information necessary to complete it. Objection was taken to item 241 but only as to the number of folios involved, but the objection to item 242 was that this represented a duplication, and reference was made to O.91 r.56. At the assessment hearing, most of the amount claimed in these items was disallowed on the ground of the deficiency in the document drawn. This was the subject of the successful application for an order that a further and better statement of loss and damage be filed and served.
On the reconsideration, the deputy registrar said:
“There was no need for a draft statement to be sent to the client. The information required to complete the statement could have been sought and identified in the letter sent to the client at item 243. An attendance to confer with the client regarding the information necessary to complete this statement has been allowed at item 244 …. Engrossing of the document to send to the client is not recoverable on the standard basis under r.703.”
Rule 703 states the basic test for what costs are properly allowed on a standard basis; that is, all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed. It does not in terms repeat O.91 r.56, and in my opinion there is no reason to treat the former rule as still applying in terms, although the result it produced may well in a particular case still be the result of applying the test in r.703.
Engrossing
The concept of engrossing dates from long ago when court records were written by hand in a characteristic, old fashioned style of writing which had been preserved for that purpose after writing styles had generally changed. The term came to be applied to any writing in that special style, so that engrossing a document, usually a deed, meant writing it in that special court hand.[2] As that special style dropped out of use, engrossing came to mean preparing the final version of a deed or other legal document, which would normally be carefully and elegantly written out in full[3]. Some surviving examples are now considered works of art. These would be produced by an engrossing clerk, and there were also copying clerks who made less elegant copies for less formal use.
[2]Jowitt’s Dictionary of English Law, (2nd Ed 1977) – “engross”. See also Butterworths Australian Legal Dictionary (1997) p.418.
[3]See Anderson v. Commonwealth of Kentucky (1938) 121 SW 2d 46 at 48: “to copy the rude draft of an instrument in a fair, large hand”.
Over time, however, the special formality associated with engrossing declined[4], and by 1977 it was regarded by Jowitt as meaning “typing or writing a deed, agreement or the like from the draft with all words, dates and amounts set out at length, and with the formal testatum and attestation clause, so as to be ready for execution.” It has also been described as merely the making of the original of a document: Quick on Costs, para 1/1610. That may be going too far: in Re Flower & Hart’s Bill of Costs [1969] QWN 41 Lucas J referred to Re Moylan (1908) 30 ALT sup. 10; 14 ALR (CN) 37, where drawing a document was said to be the composing of the document, an exercise of application of the mind, and said: “It is of course in one sense necessary to ‘apply the mind’ even to the task of engrossing or copying, but I imagine that the expression is used to mark the contrast between the preparation of a draft on the one hand, taking all relevant matters into consideration and providing for all contingencies which may arise, and the production of a copy on the other." That suggests to me that His Honour regarded the production of a draft as part of the process of drawing, so that engrossing involved turning a draft into a document in the form in which it was to be used[5].
[4]See Osborne “A Concise Law Dictionary” (5th ed., 1964): “copying a deed at length in writing or typewriting for execution.”
[5]See also “Australian Legal Words and Phraases (Blackstone Press Pty Ltd, 1990): “The final stage in drawing a legal document. It is no longer a preliminary copy but a good copy ready for execution (signing) or acceptance at the office of a court.”
At one time the production of a document would have involved a solicitor taking a sheet of paper and composing a draft, often no doubt with much alteration. When he was finished he would give it to a typist to type up. In that situation what the solicitor did was drawing the document. Transforming the draft into the final typed version, after any corrections and alterations were made, was the process of engrossing, even if the document was still a draft in that it was then to be sent to the client, or to counsel, for consideration or settling. These days there may be little practical difference between the form of the first draft of a document prepared using a word processing programme on a computer and the final version which is filed in the court. There may even not be a physical document until the version for filing is produced; but there will still be “drawing” and, once a physical document is produced in a form in which it is to be used by the solicitor for some purpose, “engrossing”. Understood in this way, it was appropriate for preparation of even an incomplete draft of the statement of loss and damage to be sent to the client to be termed “engrossing”. In my opinion, prima facie it was appropriate for this draft document to be engrossed for forwarding to the client.
In my opinion it is in general necessary and appropriate for a draft statement of loss and damage to be forwarded to the client for consideration. This gives the client the opportunity to check what is in the statement, as well as assisting the client in an understanding of what further information is required to complete any gaps in the statement. Ultimately, it is the client who will suffer if there are deficiencies in the statement of loss and damage, and it is therefore appropriate that the client be closely involved in the preparation of the statement, and given the opportunity to consider the statement before it is served. Hopefully in this way discrepancies between what is claimed in the statement of loss and damage and what is ultimately claimed by the plaintiff at trial will be minimised. Apart from the risks to the client’s interest which the existence of such discrepancies pose, in terms of credit for example, having a comprehensive and accurate statement of loss and damage is likely to assist in the early resolution of claims. In my opinion therefore, the deputy registrar erred in principle in concluding that there was no need for the draft statement to be sent to the client.
On the other hand, it appears that originally a substantial amount of the claim under item 241 was disallowed on the ground of deficiency in the statement. It is not at all clear that that ground was abandoned by the deputy registrar on the reconsideration, and she noted in her reasons that apart from the first statement there were four later statements delivered, including two more in 1994. I have looked at the statements filed on 7 June 1994, 28 October 1994, 22 December 1994, 30 May 1997 and 4 November 1998. The third deals only with future economic loss, a matter which was omitted in the earlier statements, a clear deficiency in them. The second statement does contain some additional material which ought to have been included in the original statement, as well as some material which post-dated the original statement. The most significant addition in the second statement is the reference to a claim for gratuitous care which was not included at all in the first statement. In general, however, the earlier amendments built on what was already there rather than discarding the first version and starting again.
A greater contrast however was presented by the one filed on 30 May 1997. The presentation of that document was quite different, and it is generally more informative and more realistic. This version still did not comply in all respects with the rules, for example, addresses of the experts who had examined or given reports on the plaintiff were not included, but it was generally a more comprehensive document. For example, it lists 29 medical reports which pre-date the statement of loss and damage filed on 27 October 1994, whereas that statement only lists 6. (Some of them may have become available later.) In my opinion a conclusion that there were such deficiencies in the document drawn in item 241 that most of the costs claimed for it should be disallowed was one which was open to the deputy registrar on the facts. In arriving at that conclusion, I am conscious that courts on a review of this nature generally attribute considerable significance to conclusions of fact on the part of the registrar: Re: Bain Gasteen & Co’s Bill of Costs [1990] 1 Qd.R. 412 at 416. The costs of drawing the version filed in May 1997 was allowed in full: item 807. The November 1998 version was not much changed from the May 1997 version, and only 4 folios were allowed for drawing it: item 957. Accordingly, my conclusion is that objection 7 should be disallowed.
Objection 8
This objection relates to items 284, 295, 553, 554, 565 and 569, which concern correspondence with and attendance on Dr. Bulwinkel, the plaintiff’s treating surgeon, who was to be a witness for the plaintiff at the trial. These were claimed by the plaintiff in addition to the claim under item 27, on the basis that this contact with Dr. Bulwinkel was undertaken in response to a request from the solicitors for the defendant (by letter at item 252). The attendance at item 295 was disallowed because it was for perusing a document which the solicitors were unable to produce on the assessment, and there is no basis for interfering with that conclusion. In relation to the others, this really involves the same issue about the scope of item 27 which was discussed earlier. For reasons I have already given, in my opinion, the fact that there is correspondence with the plaintiff’s witnesses in response to something raised on behalf of the defendant does not take the correspondence outside item 27, although it is obviously a matter properly taken into account when determining what amount to allow under item 27. The position is not different in principle from that arising under objection 3, and this objection is disallowed.
Objection 9
Item 347 is a letter to the defendant’s solicitors forwarding a copy of a CAT scan and further and better particulars. The amount was claimed under item 18 of the scale, on the basis this amounted to service of a necessary document. The defendant objected to this item, on the ground that all the costs associated with the requests for and provision of further and better particulars were caused by a failure properly to particularise the claim in the plaint. Evidently, that objection was not upheld at the assessment hearing, but only the amount under scale item 97(4), for a short formal letter forwarding documents, was allowed. On the review, the point was made that at that time the action was in the Supreme Court where further and better particulars were delivered rather than served. Rule 102 of the District Court Rules then in force also provided for particulars to be filed and delivered, rather than served, but the District Court Scale of Costs does not contain any item, or indeed any other reference, to delivering documents rather than serving them.
The Supreme Court scale referred to an attendance to deliver a document: item 10(a). I would think, however, that that would cover a situation where someone had actually attended on the opposite party’s address for service for the purpose of delivering the document. If that had been properly done in a District Court action, a claim could have been made under item 43, attending on the opposite party. However, if the further particulars were simply forwarded by post, as they can be, with (as would be usual) a formal covering letter which did not do anything else, the nature and quality of the work actually done by the solicitor is, in my opinion, more appropriately dealt with under item 97(4), and it is not appropriate to allow an additional amount because the document forwarded in this way happened to be one of which service was required. I therefore agree with the deputy registrar that the letter appropriately fits the description of a formal letter under item 97(4) and disallow the objection.
Objection 10
Item 360 is a letter to Mr. Lau, the accountant, enclosing a form of authority executed by the plaintiff and his wife seeking copies of the plaintiff’s partnership income tax returns for the year ended 30 June 1998 and subsequently. Objection was taken to this item on the ground that all of the relevant material should have been obtained from the accountant on one occasion. Originally at the assessment the amounts claimed under this item were disallowed, but on the reconsideration this letter was treated as a matter properly taken into account under item 27 as correspondence with a witness, and the disbursement of .45c for postage was reinstated. The deputy registrar noted that the partnership tax returns for the years up to 30 June 1993 had been obtained earlier, as they had been perused earlier (items on p.32 and p.33 of the costs statement), and that the only further partnership return obtained from this letter was that for the year ended 30 June 1994. Once additional tax returns are produced, it is appropriate for copies of them to be obtained, and that is obviously something which could not have been done prior to the end of the financial year when the earlier request was made to the accountant.
The deputy registrar on the reconsideration has regarded the letter as appropriate, but falling within item 27. As to the latter point, it is not clear to me that Mr. Lau was the plaintiff’s witness. It does not follow that he falls into this category just because he is the plaintiff’s accountant, and copies of tax returns are usually proved by the party rather than by the party’s accountant. In my opinion, correspondence with Mr. Lau does not come within item 27, and this letter ought to have been allowed separately under item 97. Although I suspect that the letter really ought to be treated as falling within item 97(4), that has not been the subject of any determination by the deputy registrar and in all the circumstances I will uphold the objection and allow the amount disallowed by the deputy registrar, of $15.50.
Objection 11
On 5 October 1994, the solicitor telephoned the plaintiff and discussed issues raised by the amended defence and obtained his instructions thereon. According to item 367 of the costs statement, this took some 25 minutes. Item 368 then is a claim for drawing a summary of the telephone conference (2 folios) and item 369 a claim for engrossing the summary for the brief. Objection was taken to the latter two items on the ground that the summary was of a solicitor and own client nature, and did not further the plaintiff’s action so should not be borne by the defendant. The deputy registrar considered the note prepared, and disallowed these items on the basis that this information should have been obtained at the time when the plaintiff was originally interviewed, since it related to questions of prior back injuries and exactly how the accident occurred. The defendant maintains the submission that this is properly a solicitor and own client item and it does not further the action.
In my opinion, however, if a defence is amended in a way which raises factual matters not previously pleaded, it is likely to be appropriate for those new factual issues to be discussed with the plaintiff, and the plaintiff’s instructions in response to them to be made available to counsel. It is, in my opinion, not enough just to rely on the original version given by the plaintiff. The plaintiff can be expected at the trial to be cross-examined about the new version, and it is therefore appropriate for the proper preparation of the plaintiff’s case for the plaintiff’s comments in relation to the new factual issues raised in the defence to be discussed with the plaintiff, and proper that counsel should be informed of the outcome of that discussion. The deputy registrar did not seem to have proceeded on the basis that the matters raised by the amendment were not matters within the knowledge of the plaintiff or about which any comment from the plaintiff would be unlikely to be relevant. What occurred here was in substance a supplement to the plaintiff’s statement, and that in my opinion is not a matter properly covered under item 27, nor is it a matter of “housekeeping”. The deputy registrar also said that a photocopy of the note taken by the solicitor could have been sent and did not allow for engrossing under item 369. It follows from my discussion earlier of the concept of engrossing that, so long as this note was typed up, it was engrossed. Clearly it ought to be typed up for the brief. In my opinion, therefore, items 368 and 369 should have been allowed. Objection 11 is allowed in the sum of $11.20.
Objection 12
Item 422 claims for drawing the plaintiff’s updated Statement of Loss and Damage (44 folios) and item 423 claims for engrossing it for forwarding to the plaintiff for his consideration and for the supply of information required to complete it. The parties essentially rely on the same arguments as were advanced in relation to Objection 7. The position is not quite the same, because this statement was not as deficient as the previous one, but the proposition remains that ultimately the plaintiff went to trial on a Statement of Loss and Damage which had been completely redrawn so that the work involved in preparation of this statement was of very little use in the end. That was not because of any subsequent development, but because this work was not done properly. I am a little concerned that one folio was allowed in respect of each of these items, in circumstances where it is not quite clear why that one folio was allowed. In all the circumstances, however, I think that sufficient grounds have not been shown to depart from the decision of the deputy registrar in relation to these two items, and this objection is disallowed.
Objection 13
Item 522 of the costs statement claimed for “perusal and consideration of extensive material in relation to the partnership between the plaintiff and his wife (engaged 3 hours).” Objection was taken to this item on the ground that it appeared to fall within item 27 of the scale. The claim was under scale item 39, which as the deputy registrar noted, allowed a folio rate rather than an hourly rate. On the reconsideration the deputy registrar was not prepared to make any allowance on this basis because the documents could not be produced, since any allowance under item 39 had to be on a folio basis rather than an hourly basis, and it was not possible to establish that the documents were “long and necessary” in order to enliven the discretion under item 39. For reasons given earlier in my opinion this last point involved an incorrect construction of item 39. Nevertheless, the absence of the documents produced difficulties, since it was difficult to establish that perusal of them as distinct from a more superficial consideration was necessary, or that such perusal was required at sufficient length to justify making a special allowance under item 39 rather than treating the matter as covered by item 27. The deputy registrar was prepared to take this matter into account when fixing allowance under item 27. The matter was complicated by the circumstance that the solicitors acting for the plaintiff at the time of this perusal were not the same solicitors who were involved when the assessment was occurring, so there was some difficulty in proving up the details of this claim. The documents were identified to some extent in the affidavit of documents.
The difficulty I have with this claim is in seeing how the careful consideration involved in perusing this mass of documents was necessary for the proper conduct of the plaintiff’s case. One argument advanced before the deputy registrar was that it was necessary to peruse the documents in order to prepare the supplementary affidavit of documents. It may sometimes be the case that a document needs to be perused for that purpose, but many documents could be identified as appropriate for inclusion in an affidavit of documents without perusal, because they are obviously discoverable. According to the deputy registrar, the supplementary affidavit of documents disclosed what appeared to be largely financial records. This is not material which would obviously require lengthy perusal for the purposes of this case, although it may be that some perusal of some of the documents was appropriate.
Ultimately, the deputy registrar’s position was that the discretion under Item 39 could not be exercised favourably to the plaintiff unless the documents were produced so that they could be properly assessed, and, to the extent that perusal was necessary, the folios could be counted. It seems to me that there must be a good deal of force in that proposition, although I recognise the difficulty that the plaintiff’s solicitors may well now have in reassembling the material for the purpose of supporting this item in the costs statement, and I do not consider that an inability to reassemble the material should always be a bar to the allowance of something under item 39. But in this case, given the nature of the item and the nature of the material I cannot conclude that the deputy registrar was wrong not to have been satisfied that an allowance was appropriate under item 39. This objection is therefore disallowed.
Objection 14
Item 543 is a claim for photocopying 54 pages of documents received on discovery from the defendant’s solicitor, and item 544 is a claim for photocopying of 32 pages of documents received, apparently on third party discovery, from the Workers' Compensation Board of Queensland, both for forwarding to the plaintiff, seeking instructions on certain matters relevant to the question of liability, particularly whether the plaintiff had been given instructions by his employer concerning manual lifting processes. Objection was taken to these two items on the ground that it was unnecessary to provide the plaintiff with this material. On the assessment the plaintiff’s solicitors were not able to produce the bundle of documents, and the deputy registrar concluded that she could not allow these items if she was unable to confirm the page count, and was unable to determine if any or all of the documents were necessary to be photocopied and sent to the client, for the purposes of assessment on the standard basis. It was submitted on behalf of the plaintiff that the defendant knew what these documents were as they had been provided by either it or the Workers' Compensation Board, and that they would not have been produced if they had not been relevant, so that it was appropriate for them to be provided to the plaintiff for perusing and obtaining further instructions. The defendant on the other hand submitted that the approach of the deputy registrar was appropriate.
In my opinion, the mere fact that a document is disclosed by the other party in the action does not necessarily mean that it is proper for a photocopy of it to be sent to the client. Again, the difficulty here is in being able to determine whether in the case of particular documents it was appropriate for instructions to be obtained on them. There could well be many documents produced in such a way upon which it would be appropriate to obtain instructions, and in such circumstances it would be likely to be an efficient way to deal with the matter to send copies of the relevant documents to the plaintiff so that the plaintiff could consider them before discussing them with the solicitor. I would therefore expect that it would be likely that at least some of these documents were documents properly copied to the plaintiff. There is the difficulty that it is not possible to demonstrate in any particular case in the absence of the particular document that it fell into that category. Nevertheless, I do not think it necessarily follows that no amount can be allowed. The deputy registrar seems to have proceeded on the basis that no allowance should be made under the item unless the actual documents can be produced, and I think that that is also too sweeping a position.
The position here is somewhat different from the case of a claim under item 39, because it is not necessary to show that there was some particular reason why allowance should be made for copying these documents. Some indication of the content of the material could have been obtained from the defendant’s affidavit of documents, or perhaps from letters or other material from the Workers' Compensation Board. Even apart from such material, the proposition that it was inappropriate to copy any of this material for the plaintiff is just as sweeping, and I think just as likely to be wrong, as the proposition that it was appropriate to copy all of it for the plaintiff. In my opinion, the appropriate course overall was to make some moderate allowance taking into account the fact that the documents were at least likely to be relevant to the matters in issue in the action, but also being cautious because of the inability of the plaintiff to produce the documents for verification. On this basis I would allow one third of the copying claimed, that is 18 pages under item 543 and 11 pages under item 544. This objection is therefore allowed in part, in the amount of $40.60.
Objection 15
Items 572, 573, 574 and 576 claim for drawing a certificate of readiness for trial, engrossing it for filing, photocopy for the brief and attending on the defendant’s solicitors to tender the signed certificate. In its objections the defendant sought a reduction in the folio rate on the ground that the certificate of readiness was a standard form document, and objected that it was unnecessary to brief counsel with the document, or to attend the office of the defendant’s solicitor rather than post the signed certificate. On the assessment, however, these items were disallowed on the basis that to prepare and present a certificate of readiness at that stage was premature, and therefore not necessary or proper on the part of the plaintiff’s solicitors.
The matter raised on behalf of the plaintiff on the reconsideration, and repeated before me, was that it was inappropriate for the deputy registrar to disallow this item in circumstances where the only objection was as to the number of folios. I have considered this argument earlier, and rejected it. The deputy registrar has set out what seem on their face to be good reasons for disallowing these items, and indeed no submission was directed to me dealing with the merits of the decision, the argument being directed to the question of whether the deputy registrar was confined to the ground raised in the notice of objection. In my opinion, she was not and this objection is disallowed.
Objection 16
Item 605 claimed for a telephone attendance on the plaintiff to advise of interrogatories received and conferring thereon; the work done was claimed under item 1392 (the claim under item 27 of the scale) but an outlay of $1.20 was claimed. This was not objected to in the notice of objection but was disallowed by the deputy registrar having regard to the other claims for taking instructions to answer interrogatories. Item 605 claimed a 15 minute attendance on 19 July 1995, item 640 claimed a 30 minute attendance on 20 August 1995, item 645 claimed a four hour attendance on 26 September 1995, item 651 claimed a 10 minute telephone attendance on 19 October 1995, and item 652 claimed a further five minute attendance on the same day. The deputy registrar regarded the total of 5 hours as excessive to take instructions from the client for preparing answers for interrogatories. In relation to item 645, the notice of objection complained about numerous attendances to take answers to interrogatories and continued:
“The defendant should not indemnify the plaintiff for all these attendances.”
Ultimately, the deputy registrar allowed items 640 and 651 in full, allowed item 645 but notionally reduced it to two hours, and disallowed item 605 and 652. The deputy registrar perused the plaintiff’s answers to interrogatories which were finally filed on 13 August 1996 after they had been settled by counsel, and concluded that the amount which she had allowed was “more than adequate” for taking instructions to prepare them. A submission to the contrary was not advanced before me in relation to the merits of that conclusion, but it was submitted that the deputy registrar was not entitled to disallow item 605 because there had been no objection specifically to that item in the notice of objection.
It follows from the reasons that I have given earlier in my opinion that this is not correct, since in my opinion the contents of the notice of objection do not limit the duty of the deputy registrar properly to assess the costs statement. In any case, there had been in substance, in the defendant’s objection to item 645, an objection to the whole extent of the time spent in taking instructions for answers to interrogatories, and how the deputy registrar dealt with the conclusion that that objection was well founded, and that an excessive amount of time had been applied for that purpose, was really a matter for the deputy registrar. It strikes me as quite artificial to suggest that, in circumstances where the objection has been taken that too much time had been spent on this matter and the deputy registrar was of the view that that objection was sound, the adjustment could only be made in the particular item where that objection was taken, and all other items where time had been spent on this matter, which had contributed to the overall result of there being excessive time for this work, had to be left untouched. Such an approach seems to me to be quite artificial. There is no reason to doubt the deputy registrar’s ultimate conclusion that excessive time was taken. Objection 16 is disallowed.
Objection 17
Item 634 claimed for perusing 47 folio of copy records obtained from the Blackwater Hospital. In the notice of objection it was claimed that such perusal fell within scale item 27, and the deputy registrar concluded that the records from the hospital did not contain any long and necessary documents so as to justify allowance under item 39. I have already expressed the opinion in relation to Objection 6 that her interpretation of item 39 was in my opinion erroneous, and the question is whether so much perusal of these records was necessary in order to prepare the action properly that it was appropriate to make some special allowance for this perusal, because it required more work than was expected to be covered by the ordinary perusals appropriate in an ordinary case for preparing a matter, which would be covered under item 27.
The difficulty is that I really have no material which deals with the proper application of this test. I do not know to what extent the hospital records dealt with matters which were likely to be of particular importance in the assessment of the plaintiff’s damages. As a general proposition, it is commonly the case that some entries in hospital records at least are of some relevance, and some parts of hospital records would be appropriately perused, particularly those parts where any note is made of anything the plaintiff is supposed to have said about how the injury came to be suffered. Such experience as I have suggests that it is unlikely however that all of the hospital records required perusal. I was provided with a copy of the hospital records, and the position appears to be typical; some pages required perusal, and some did not. It is difficult for me to know whether, bearing in mind the other material which was being perused in the course of preparation of this matter, there was so much material being perused overall that it was appropriate to make a special allowance under item 39 in respect of these records. The position therefore is that, although in my opinion there was an error of principle on the part of the deputy registrar in dealing with this item, I am not persuaded that it is appropriate to exercise the discretion under item 39 in favour of the plaintiff and the objection is disallowed.
Objection 18
Item 626 claims for drawing a formal authority by Mr Hume for release of statements made by him to the Workers Compensation Board and insurance loss assessors, and item 627 claims for engrossing the document; it was then sent to Mr Hume for execution under cover of a letter claimed at item 628. In the defendant’s notice of objection it was submitted that allowance should not be made for drawing this document because an allowance had earlier been made in item 5 for drawing an authority for the plaintiff and it was not necessary to re-draw individual authorities as they were required for other purposes in the course of the action. The deputy registrar noted that the authority (or a copy of it) could not be produced before her, so she was not able to determine the extent to which the plaintiff’s solicitors had actually drawn this authority as distinct from copying it from other authorities used earlier in the action. Mr Hume was a co-worker who was present at the time of the plaintiff’s accident and who had apparently made statements about that accident, and the plaintiff’s solicitors were trying to get copies of the statement. She noted that allowance had been made for drawing “a general authority” at the commencement of the action, with details of the recipient of the authority inserted as circumstances required, and declined to allow drawing, although on the reconsideration she allowed the charge for engrossing in the amount claimed of $1.40. The objection therefore appears to be misconceived in relation to item 627, which has now been allowed.
As to the disallowance of item 626, it was submitted that the deputy registrar had erred in treating a general authority drawn for a plaintiff as sufficient to enable a document to be obtained where the right to obtain the document resided not with the plaintiff but with someone else. Certainly there is some difference with the authority, in that the authority has to be given by a relevant person, here Mr Hume, rather than by the plaintiff, but that would not necessarily involve anything more than changing the name of the person who was giving the authority. The fact that the authority was being given by someone other than the plaintiff does not necessarily mean that it has to be redrawn completely; an authority by the plaintiff in fairly general terms to release documents to the solicitor could be very easily adapted as an authority in similar terms by someone other than the plaintiff. In circumstances where the document could not be produced so as to demonstrate that it was to some significant extent the product of drawing rather than copying the deputy registrar was in my opinion entitled to come to the conclusion that she arrived at, and the objection is disallowed.
Objection 19
The plaintiff’s solicitors arranged for a medico legal report on the plaintiff to be provided by an orthopaedic surgeon, Dr White, who was paid a fee of $450 for his consultation and report; this is claimed as an outlay at item 712. Objection was taken to this on the ground that the fees were excessive and should be reduced to the AMA recommended scale. However, the deputy registrar disallowed the fee of Dr White, on the basis that the plaintiff had obtained reports from four orthopaedic surgeons for the purpose of the action, and that this was excessive so that the costs would be limited to costs of obtaining reports from the treating orthopaedic surgeon, Dr Bulwinkel, and Dr Gillett whose attendance to give evidence at the trial was ultimately arranged. Accordingly fees to Dr White (and to Dr F.R. Wilson) were disallowed as being not necessary or proper for the purposes of the action, and therefore not allowable on a taxation on a standard basis.
In the written submissions the plaintiff sought leave to dispute the disallowance by the deputy registrar of the costs associated with obtaining a report from Dr Wilson, on the ground that the deputy registrar had failed to appreciate that Dr Wilson had been retained because the plaintiff had been previously seen by Dr Wilson for treatment and Dr Wilson was not prepared to provide a report unless there had been an examination of the plaintiff within a period of six months, which had not been the case. This was not a matter raised before the deputy registrar, and accordingly the plaintiff cannot now raise it without a special direction; r.742(4)(b). In my opinion there has been insufficient reason shown for giving a special direction in relation to these costs.
In the past, the task of counting the number of folios in a document was perhaps the most tiresome aspect of taxation of costs. These days, when most computer programmes can provide immediate information as to the number of words in a document, the task has become very much simpler. It ought to have been possible for someone to have been able to say exactly how many words there were on this document. However, I do not have the document on my computer, and I do not propose to count all the words on all the pages. What I did do was count five pages chosen more or less at random (p.38, 53, 91, 140 and 180). Only one of these (p.91) counted at less than two folios, and p.180 counted at 2.4 folios. The average was 2.2 folios. The number of folios claimed was calculated by the deputy registrar as being the equivalent of approximately 2.98 folios per page on average. My calculation suggests that the deputy registrar was closer to the mark than the plaintiff. Further, it would have been appropriate to make some reduction for items disallowed and items “deemed padding in the bill”. I do not accept the proposition that the bill was properly claimed at 3 folios per page, and in circumstances where there has been a substantial reduction in the bill anyway, it is unsurprising that there would be a significant allowance for reduction in the length of the bill. Overall, I am not persuaded that the deputy registrar erred in her approach to this assessment, and this objection is disallowed.
Summary of Review
Apart from the two objections concerning costs of the assessment, the review may be summarised by listing the objections allowed:
Objection 2 $ 2.80
Objection 4 (part) $ 15.50
Objection 10 $ 15.50
Objection 11 $ 11.20
Objection 14 (part) $ 40.60
Objection 19 $ 450.00
Objection 22 $ 55.00
Objection 24 $ 11.40
Objection 30 $ 57.00
Objection 31 $ 250.00
Objection 35 $ 40.30
Objection 36 (part) $ 800.00
$1,749.30
The remaining objections are disallowed.
Objection 39
Although this followed objection 38 which deals with the question of costs, it is convenient to deal with objection 39 before dealing with objection 38, because it relates to a separate issue which arises in the course of considering how costs should be resolved. It concerns the construction of r.721. That rule relevantly provides:
“(1) A party liable to pay costs may serve on the party entitled to the costs a written offer to settle the costs.
(2) An offer to settle costs –
(a) must state it is made under this rule; and
(b) must be for all of the person’s liability for costs to the party to whom it is made; and
(c) …
(3) An offer to settle costs –
(a) can not be withdrawn without the leave of the court; and
(b) does not lapse because the party to whom it is made rejects or fails to accept it; and
(c) ends when the assessment of the costs statement to which it relates starts.”
Subrule 4 then prohibits disclosure of the amount of the offer until all questions other than the costs of the assessment have been resolved. The plaintiff’s point is that the rule does not contemplate that more than one offer to settle costs may be made, and therefore the deputy registrar should have disregarded all offers other than the first one (there were altogether three made by the defendant).
This argument is based on the rule permitting service of “a written offer to settle the costs”, and notes the absence of an equivalent to r.353(2) which expressly permits more than one offer of settlement to be made under that rule. It was submitted that The absence of such a subrule in r.721 suggests that the intention was that only one offer could be made. It was also noted that there was no provision for a counter offer, and for this reason the rule should be interpreted strictly.
I have some difficulty with seeing how the absence of provision for a counter offer provides the justification for interpreting the rules strictly, but the provision that an offer once made remains open until the commencement of the costs assessment of the statement is a factor which suggests that it was contemplated that there would be only one offer, since it would be unusual to have more than one offer of settlement open at the same time. Under the general law of contract, any variation in the terms of an offer by the offeror would readily be regarded as an implied revocation of the offer in its original form, so that ordinarily making a second offer dealing with the same subject would impliedly revoke an earlier one. Hence having two offers which are open for acceptance at the same time but on different terms is not clearly consistent with ordinary principles of contract.
On the other hand, in the Rules generally words in the singular are taken to include the plural: Acts Interpretation Act 1954 s.32C(a). In addition, there is no obvious reason of policy why it would be undesirable to permit a second (presumably better) offer of settlement of the costs to be made; in circumstances where an offer once made cannot be withdrawn, there would be no point in making a second, less favourable offer. The desirability of encouraging realistic settlement offers was referred to in the Court of Appeal in Cameron v. Nominal Defendant [2000] QCA 137; in my opinion the same policy applies in relation to settling disputes as to costs.
The purpose of formalising an offer to settle costs under r.721 is to activate r.722(3) and (4) if the offer is not accepted. Those sub-rules are also drafted on the assumption that there is only one offer to settle, but that in my opinion is essentially for the sake of simplicity of expression, and there is nothing about them which would preclude their operation in circumstances where there had been more than one offer to settle. If any difficulty arose in a particular case, it could be overcome by the fact that there is a residual discretion in the registrar to order otherwise under each sub-rule. If an assessment fell between two offers, so that both subsections were activated, the use of the word “however” at the beginning of subsection (4) shows that that is the dominant provision, and the party propounding the costs statement gets the costs up to the date of the second offer, but has to pay them on and from the date of service of that offer to settle, and the fee for the assessment.
In my opinion the absence of an equivalent to r.353(2) was not deliberate so as to indicate that only one offer of settlement could be made. Policy considerations which would make it undesirable to adopt a construction which might impair the resolution of a dispute as to quantum of costs by settlement, by discouraging a party from making more than one offer if the original offer was not accepted, reinforce the ordinary rule that the singular includes the plural. The importance of adopting a construction of the relevant provisions which encourages resolution of disputes as to assessment of costs was referred to by the Court of Appeal in Suncorp Insurance v. Moule (Appeal 105/91, Court of Appeal, 23.3.92, unreported), BC9202559. In my opinion, therefore, more than one offer of settlement can validly be made for the purposes of r.721 and 722.
The submission was also made that the offers were not offers within r.721 because they were not made for all of the defendant’s liability for costs and therefore ought not to have been considered by the deputy registrar. The defendant made three offers, on 27 September 1999, on 17 January 2000 and on 3 February 2000. They were in identical terms and were expressly made pursuant to r.721. They offered to settle “the costs payable under their order/judgment of Senior Judge Trafford-Walker made 7 day of July 1999” by payment of a specific lump sum. The defendant’s liability for costs was (prior to 3 April 2000) under the order made by His Honour, so at the time each of those offers was made there was an offer for all of the defendant’s liability for costs to the plaintiff under that order.
The plaintiff’s point however was that, by the agreement by which the matter had been settled, it was agreed that the defendant would pay the entire costs of the action to be assessed on the District Court scale, but the order of His Honour did not cover all of that liability because it only applied to that part of the costs which were incurred after the matter was transferred to the District Court. The liability in respect of the other part of the costs lay only in contract until Mullins J. made the order on 3 April 2000 that the defendant pay the plaintiff’s costs of the action while it was in the Supreme Court.
In my opinion this submission misinterprets r.721. That rule when it speaks of “a party liable to pay costs” is not talking in the abstract; it is to be understood taking into account where it appears in division 5 of chapter 17 of the Rules, dealing with the procedure to assess costs. The division makes provision for that procedure to be set in train by an application for costs to be assessed and costs statement: r.709. A discussion of the subsequent provision appears earlier in these reasons. In my opinion, the reference to costs in r.721 is a reference to the costs claimed in the costs statement. The purpose of inserting r.721(2)(b) is plainly to ensure that any offer made would be one which, if accepted, would produce an agreement on the basis of which the costs, the assessment of which the registrar had been asked to undertake pursuant to the application, could be set pursuant to r.722(2). It must bring that assessment to an end. This is to avoid a situation where the offer, if accepted, would still leave some matters to be determined on that assessment by the registrar.
It is not intended to refer to any liability for costs which may exist on any basis in that party in favour of the party who has filed the application. For example, if there have been two separate orders made (perhaps on two separate applications) under which costs to be assessed were payable to the same party, and that party had filed an application under r.709 in respect of one of them but not the other, an offer under r.721 in respect of the liability for costs under the order in respect of which the application of assessment had been filed would be a valid offer for the purposes of r.721, even though it did not cover the liability for costs that the party also had on the second order. See John Goss Projects Pty Ltd v. Thiess Watkins White Constructions Ltd [1995] 2 Qd.R. 591.
The fact that a costs statement may cover a liability for costs on more than one basis (for example under two separate interlocutory orders) does not affect this construction; if that is what the costs statement covers, an offer would not be valid under r.721 unless it was for all of the party’s liability covered by the statement, that is under both orders. If this is thought to be too restrictive in a particular case, the party liable may always make a Calderbank[10] offer which, although not one which will activate r.722(3) or (4), will nevertheless be a matter properly taken into account by a registrar when making an order for costs of the assessment under r.694(2).
[10]Calderbank v. Calderbank [1976] Fam 93; AMEV Finance Ltd v. Artes Studios Thoroughbreds Pty Ltd (1988) NSWLR 486.
It follows that objection 39 is disallowed.
Objection 38
This objection relates to the order made in respect of the costs of the assessment. At the assessment the deputy registrar determined that the first of the settlement offers made under r.721 by the defendant, the offer of 27 September 1999, was an operative offer for the purposes of r.722, so that r.722(4) applied and the plaintiff was liable to pay the defendant’s costs of the assessment, including the assessment fee and fee payable to the court. In arriving at this conclusion, the deputy registrar disregarded that part of the costs statement covered by items 1-511, the items relevant to the time when the action was in the Supreme Court, on the basis that the liability to pay those items arose only when the order was made by Mullins J. Accordingly, they should be disregarded when determining the liability for costs, and the offer made on 27 September 1999 was greater than the assessed liability under the order of Trafford-Walker DCJ.
The plaintiff submitted that the deputy registrar had erred in allowing the defendant to raise, for the first time on the first day of the assessment, the issue of whether the costs for the period while the matter was in the Supreme Court were covered by the existing order, because this was not a matter raised in the notice of objection. For reasons given earlier, in my opinion that was not a matter which prevented this issue from being raised by the deputy registrar, or by the defendant. It was submitted that it was inappropriate for the plaintiff to be penalized in costs for in effect not accepting the offer of settlement in circumstances where that offer could not be assessed by reference to a comprehensive statement of objections. Although the notice of objection was not filed and served until 17 January 2000, well after the offer had been made, the offer was still open for acceptance, the assessment not having commenced.
Alternatively, the plaintiff could have made the application that he did ultimately make to the Supreme Court at an earlier stage. Indeed, I think it very likely that if the matter had been raised in the notice of objection originally the plaintiff would not have accepted the offer which was on the table, but would have made the application to the Supreme Court, when an order like that ultimately made would no doubt have been made. The practical effect then would have been to provide a justification for the assessment of the whole statement, as ultimately occurred. Once that order was made, the offer of 27 September 1999 became inadequate as, even on the original assessment, including the amounts allowed for items 1-511, the deputy registrar allowed an amount in excess of the offer of 27 September 1999.
The deputy registrar however was of the opinion that the effect of r.716 was that items 1-511 had to be disregarded when deciding whether the amount of assessed costs was more or less than the amount of the offer. On 3 April 2000 she gave the plaintiff leave to amend the application for costs assessment to include as authority to assess items 1-511 the order of Mullins J made the same day. There was some point taken as to whether this was an amendment to the “costs statement” as distinct from the “application to assess”. Rule 709 speaks of them as if they were two documents, but the approved form (Form 60) treats them as one document, and apart from r.709 the Rules speak only of the “costs statement”. Indeed, r.711 only requires the “costs statement” to be served on the party liable to pay. In my opinion there is only one document, and the order made by the deputy registrar on 3 April 2000 was an amendment to the costs statement. Accordingly r.716(2)(b) was triggered and r.722 was prima facie properly applied by disregarding the amendment. Without that amendment, there was no authority to assess items 1-511, so the amounts allowed in respect of those items were strictly speaking properly disregarded.
I am however concerned about two aspects of the matter. One is the matter adverted to by Mullins J at p.3 from her reasons. In the form of discharge signed by the plaintiff in connection with the settlement of his claim there was an agreement by WorkCover in clause 2 to pay
“the worker’s reasonable party and party costs of and incidental to the proceedings with such costs in accordance with the District Court Scale applicable to the matter in which more than $50,000 is recovered to be agreed between the solicitors ... and failing agreement, such costs shall be taxed.”
As her Honour also noted the
“proceedings were defined as the proceedings claiming damages in the Supreme Court under Writ No. 369 of 1993 were subsequently remitted to the District Court ….”
Therefore, the matter was settled on the basis that WorkCover (on behalf of the defendant) would pay the costs of the whole action, in the Supreme Court as well as in the District Court.
Her Honour concluded that the order of Trafford-Walker SJDC dealt only with the costs of the District Court, and that it therefore “did not reflect the terms of settlement of the personal injuries action in relation to costs as set out in clause 2 of the discharge” (page 7). This is a matter which Her Honour thought was relevant to the question of the costs of the application before Her Honour, and she also took into account the fact that no objection was made until the first day of the assessment (page 8). Her Honour continued (page 9)
“As Mr Robinson [counsel for the defendant] pointed out, the matter could have been resolved by consent orders by the parties at any time after 1 December 1999 if the defendant had chosen to draw that to the plaintiff’s attention. It is not unreasonable that it did not occur to the plaintiff that there was the deficiency in the costs order, having regard to the terms of settlement reflected in paragraph 2 of the discharge and the fact that it does not appear to have been raised between the parties until 7 March 2000 that there was this deficiency in the costs order.”
Because of this and because the applicant then was successful in obtaining the order necessary to enable the assessment of items 1-511, Her Honour ordered the respondents (the defendant and WorkCover) to pay the plaintiff’s costs of the application to be assessed.
It follows that there was always a contractual obligation on either WorkCover or the defendant (or possibly both) to pay the plaintiff’s costs of the proceedings in the Supreme Court. The point taken at the commencement of the taxation therefore was a technical one, devoid of merit. There is the further consideration that Her Honour found that it was not unreasonable that it did not occur to the plaintiff that there was a deficiency in the costs order. There is also the circumstance that the matter was not raised prior to the first day of the assessment, and in particular was not raised in the defendant’s notice of objection filed on 17 January 2000. Given that the matter went to the authority of the deputy registrar to assess the bill at all, the defendant was entitled to take the point, and indeed the point might well have been taken by the deputy registrar had it not been raised by the defendant. But that does not mean that the failure to take the point earlier was of no consequence when considering whether it was appropriate to order otherwise under r.722.
The deputy registrar has apparently not considered these features, and has not provided any justification for disregarding them when deciding to apply the rules in accordance with their terms. That in my opinion is not the right approach in this case. In circumstances where there was a contractual obligation to pay the costs anyway, where the point was not taken at the appropriate time, where it was not unreasonable for the matter not to occur to the plaintiff, and where the plaintiff had been put to the trouble of having to make an application to the Supreme Court to recover something the plaintiff was contractually entitled to receive, in my opinion it was clearly inappropriate to disregard items 1-511 for the purpose of applying r.722. Whether the matter is regarded as one where the deputy registrar should have ordered otherwise under r.716(2), or whether she should have determined under r.722(4) to order otherwise, the costs incurred while the matter was in the Supreme Court ought not to have been disregarded for the purpose of applying r.722, in order to avoid a manifest injustice to the plaintiff. But for the circumstance of the issue it may well have been raised by the deputy registrar anyway because it went to her authority to assess the costs statement, I would have no hesitation in saying that the point is one that ought never to have been taken at all by the defendant, being devoid of merit. In my opinion it would be quite unjust for the costs of the assessment to be determined in any basis other than with the costs properly allowable in respect of items 1-511 included. On that basis, the first offer did not activate r.722(4).
Counting items 1-511, once the additional items allowed on the reconsideration and the additional amounts which I have allowed are added in, the amount which ought to have been allowed in the bill up to item 1418 exceeds the amount offered on 17 January 2000. That offer was $28,890.80, and the deputy registrar performed a hypothetical calculation of the amount allowed up to 17 January 2000 on the basis of the assessment and taking into account extra amounts allowed on the reconsideration, of $27,589.70. If I add in the total allowed by me on the other objections, $1,749.30, this is an amount of $29,339 which is in excess of the offer.
For the purpose of assessing the third offer, made on 3 February 2000 in the sum of $30,000, the deputy registrar determined that it was necessary also to add in the fee for attending the directions hearing in the sum of $29.25 (item 1415), so that her hypothetical assessment up to 3 February was $27,618.95. If I add the total of the additional amounts I have allowed, $1,749.30, this produces a total of $29,368.25 which is still less than the amount of the offer. It was submitted however that for the purpose of determining whether to order otherwise it was appropriate to disregard reductions where the defendant on the assessment raised matters not in the notice of objections. That may well be right, but in this case the matters identified in the application for review and written submissions of the plaintiff as falling in to this category which were not allowed on the review, are those in objections 9, 15, 20, 23, 26 and 28. The amounts in issue with these objections totalled $470, and after allowing for this the final amount is still less than the final offer, so it is unnecessary to consider this point further, although I will add that, as I have stated earlier, I consider that the notice of objection did raise the relevant grounds concerning the items covered by objections 20, 23, 26 and 28. Accordingly, that offer was one which did activate r.722(4).
Nevertheless it was submitted that allowance should be made for the fact that the assessment was prolonged and delayed because the point about absence of authority to deal with items 1-511 was raised by the defendant, and I consider there is some force in that: see Uniform Civil Procedure Rules r.726. The deputy registrar said she took into account the number of successful objections made on the assessment for the defendant, the generous amount of the offer, given the size of the matter and what the action ultimately settled for, the length of the assessment hearing, and the fact that matters had to be stood over on a number of occasions to give the plaintiff the opportunity to produce documents. But the deputy registrar, when assessing the costs allowance for the notice of objection, does not seem to have made any allowance for the fact that the original notice of objection contained a number of objections which were not upheld, nor has she allowed for delays attributable to the defendant, as I have indicated. In my opinion these are matters properly taken into account.
As I indicated earlier, because there were offers which fall within r.722(3) and (4), the plaintiff should recover his costs of the assessment up to the date of the offer within subsection (4), and pay the defendant’s costs of the assessment thereafter. The details of the defendant’s costs of the assessment are set out at p.65 of the reasons of the deputy registrar. All except the attendance on the assessment hearing must have been incurred prior to the making of the third offer, and so should have been disallowed. The remaining item should be reduced to take account of the additional matters to which I have referred. The appropriate way to make allowance for them is to reduce the defendant’s costs of attendance on the assessment by one third, to the sum of $2,457. I accept this would involve a greater reduction than is justified by the specific matters, but it is convenient to deal with the time wasted by taking the point about the costs in the Supreme Court just by reducing the defendant’s costs rather than by reducing them by a lesser amount and increasing the plaintiff’s costs by some amount.
There is also the question of what should happen in relation to the costs of the reconsideration. There were a total of 66 matters subject to reconsideration, of which 14 produced some improvement before the deputy registrar, and a further 12 ought to have, in view of my conclusions. Although only 13 of the 39 objections before me have been successful, the amounts involved (apart from objection 38) meant that the plaintiff obtained an additional $1,749.30 out of the total additional amount sought of $4,924.07. In all the circumstances I think it would have been more appropriate in view of the ultimate outcome for there to have been no order as to the costs of the plaintiff’s reconsideration.
Final calculations
Total amount of claim $40,652.25
Less
Reductions in bill by deputy registrar
to item 1418 $12,467.95
Disallowance of items 1419 – 1432 $ 761.45
Subtotal $13,229.40
Balance $27,422.85
Add
Total of short charges (deputy registrar) $ 122.60
Additional amounts allowed on
review $1,749.30
Subtotal $1,871.90
Balance $29,294.75
Less set off of defendant’s costs $2,457.00
Add plaintiff’s costs on defendant’s
application for reconsideration 79.40
Final amount allowed $26,917.15
A taxing fee which is 8% of the amount properly allowable to the plaintiff on the costs statement, that is 8% of $29,294.75 namely $2,343.58, remains payable by the plaintiff, because of the third offer. This is an increase of $375.58.
The issue which remains is the costs of the review. The plaintiff has had success in a number of items on the review, and although they were less than half of the total number of items in issue on the review, they were in a number of cases items where the amounts involved were relatively large. The plaintiff has been more successful in monetary terms than in terms of counting items. As well, some arguments advanced on behalf of the plaintiff in relation to other items were successful, but the objections were disallowed for other reasons. On the other hand, there were some cases where arguments were advanced which were not successful, even in relation to particular objections which otherwise have succeeded in whole or in part. I am conscious of the fact that the plaintiff ultimately fell short of what must have been the true objective of the review, of getting the allowable costs increased by enough for none of the defendant’s offers to bring r.722(4) into operation, and ultimately that objective was unsuccessful. Subject to the existence of any offers to compromise the review (as to which at the moment of course I know nothing) in my opinion a fair outcome overall is to make no order as to the costs of the review. I will circulate these reasons and invite submissions as to costs when I make the formal orders.
In conclusion I should like to record my gratitude for the very thorough detailed and helpful reasons prepared by the deputy registrar in relation to the reconsideration, which have greatly facilitated my conduct of the review. I also acknowledge the assistance received from detailed and helpful written submissions provided on behalf of each of the parties.
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